The Senior Executive Service (SES), established by the Civil Service Reform Act (CSRA) of 1978, was designed to form a corps of top-level Federal executives who provide leadership and continuity between political appointees and career civil servants. The SES operates under a unified personnel system with standardized executive qualifications and provides agencies flexibility in managing executive resources, all while preserving the public interest.

In 2004, the SES transitioned to a pay-for-performance system under Section 1125 of Public Law 108-136 (November 24, 2003). This change replaced the prior six-level pay system with an open-range structure tied to individual performance. Automatic pay increases were eliminated, and compensation became contingent upon rigorous performance evaluations. Agencies had to obtain certification of their appraisal systems from the Office of Personnel Management (OPM) and the Office of Management and Budget (OMB) to exceed the standard SES pay cap of level III of the Executive Schedule. The intent of the pay-for-performance system is to attract top talent, reward high performers, and improve accountability.

SES performance is assessed annually based on individual and organizational outcomes, as specified in 5 CFR part 430, subpart C. Ratings range from Level 1 “Unsatisfactory” to Level 5 “Outstanding.” In 2012, OPM issued a model SES performance appraisal system referred to as the “Basic SES Performance Appraisal System,”  1 which created a consistent and uniform framework to communicate expectations and evaluate the performance of SES members across agencies. The Basic SES Performance Appraisal System was later refined in 2016 following a 2015 Government Accountability Office (GAO) report  2 and OPM updates to SES performance management regulations.

Despite OPM's efforts to drive uniformity and consistency in the SES appraisal system, agencies have continuously struggled to ensure meaningful distinctions are made in SES performance ratings. According to the 2015 GAO report, about 85% of SES members received ratings of “Outstanding” or “Exceeds Fully Successful” from 2010 to 2013 while only 0.1% of senior executives in Chief Financial Officers Act agencies (see 31 U.S.C. 901) were rated at the lowest rating level. Similar patterns have continued; for the 2023 performance cycle, approximately 96% of SES members received top ratings ( i.e., Levels 4 and 5), while fewer than 0.5% were rated below “Fully Successful.”  3

This inflation in ratings undermines the SES appraisal system's integrity and the statutory requirement at 5 U.S.C. 4312(a)(3) to encourage excellence in performance. For instance, in 2014, despite a national scandal involving manipulated wait times and mismanagement at the Department of Veterans Affairs (VA), 4 80% of VA SES members received an “Outstanding” or “Exceeds Fully Successful” rating. 5 OPM and GAO have both recognized the lack of meaningful distinctions in performance ratings as a critical issue.

Efforts to improve performance management, such as OPM's 2019 memorandum  6 to agencies on how to increase rigor in performance management through well-developed performance standards, have not been successful. The 2024 Federal Employee Viewpoint Survey showed that just 47% of employees agreed with the statement, “In my work unit, differences in performance are recognized in a meaningful way.” This was the lowest positive response rate for any question and has consistently been the lowest over the past three years. 7 These patterns suggest a disconnect between executive performance ratings and actual organizational outcomes, raising concerns about accountability in key public service areas.

This final rule removes the regulatory prohibition of forced distribution of performance ratings at 5 CFR 430.305(a)(5) and provides that OPM may establish a forced distribution of SES rating levels. Forced distribution involves assigning ratings based on pre-determined limits, such as reserving top ratings for a fixed percentage of performers. This approach aligns with performance practices in the private sector, where companies have used forced distribution of some sort in their performance evaluations. 8 9

Several foreign civil service systems including those in the UK, Germany, Portugal, and Indonesia have also implemented similar models. 10 Research indicates that forced distribution, when implemented with appropriate oversight can promote merit-based rewards and increase organizational performance. 11 This is particularly pertinent for the Federal Government because, unlike the private sector, the Federal Government lacks a profit motive to ensure meaningful evaluations of its executives. As such, the Federal Government must rely on accurate appraisals and meaningful distinctions in performance to ensure accountability, uphold public trust, and meet statutory obligations.

On January 20, 2025, President Trump issued a Presidential Memorandum titled “Restoring Accountability for Career Senior Executives,” (90 FR 8481; Jan. 30, 2025) (“Restoring Accountability Memo”), directing OPM and OMB to issue SES performance plans that agencies must adopt. The Memorandum's goal is to ensure SES members are held accountable to the President and the public and to reinvigorate the SES system by prioritizing merit and performance. In line with the Restoring Accountability Memo, on February 25, 2025, OPM issued a new SES performance appraisal system and plan. 12

On January 20, 2025, President Trump also signed Executive Order (E.O.) 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” 90 FR 8339 (Jan. 29, 2025). This order directs the termination of all DEI policies, programs, and preferences in the Federal Government, under whatever name they appear. OPM proposed several regulatory changes in conformance with this E.O.

OPM has reviewed the performance management regulations governing the SES and is issuing this final rule in response to both of the President's January 2025 directives and pursuant to its regulatory authority in 5 U.S.C. 4315. OPM is amending 5 CFR 430.305(a)(5) by removing the prohibition on the use of a forced distribution of ratings and adding a provision at 5 CFR 430.305(d), allowing OPM to require and enforce a pre-established agency-wide and Governmentwide distribution of performance ratings among SES members for covered agencies and personnel. OPM expects agencies to implement a forced distribution limiting the highest rating levels ( i.e., Levels 4 and 5) only, as opposed to implementing any requirements with respect to the number of executives rated at Levels 1 through 3. In response to public comment, OPM is also adding a provision to 5 CFR 430.305(d) in this final rule, specifying that OPM may exclude noncareer SES appointees from such forced distribution requirements. This provision helps alleviate a concern described in the Public Comment section—that noncareer SES appointees might receive preferential consideration for high rating levels at the expense of career SES members' ratings.

As discussed in more detail in a subsequent discussion of comments, OPM is making additional revisions to eliminate diversity, equity, and inclusion (DEI) language within SES performance management regulations, consistent with E.O. 14151.

In response to the proposed rule, OPM received 26 comments during the 30-day public comment period from multiple individuals, multiple labor organizations, a professional organization representing employment law lawyers, and six Federal agencies. At the conclusion of the public comment period, OPM reviewed and analyzed the comments. In general, the comments on the rule change were mixed, with some expressing support and others expressing opposition, and one comment that was outside the scope of the rulemaking. The comments are summarized below, along with the suggestions for revisions that were considered and either adopted, adopted in part, or declined, and the rationale therefor.

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

OPM received several comments from individuals and agencies expressing general support for the proposed regulatory changes. For example, one commenter stated, “I think it is ridiculous that 95 percent of SES members get rated four or five out of five. And nearly two-thirds are rated as five out of five.” The same commenter went on to say “OPM should do this. It is just common sense.” Comment 06. 13 Additionally, two commenters at one agency conveyed that their agency fully supports the OPM proposed rule, acknowledging that it aligns with the Trump Administration policy priorities around restoring accountability in the career SES and ending radical and wasteful government DEI programs. Comments 14 and 17.

OPM also received responses that expressed general opposition to the changes. One commenter stated: “I recommend we do not change the SES rating system. It is important that we have professionals in the SES and other agencies who have the Knowledge, Skills, and abilities to keep progressing in the mission of the agencies.” Comment 02. Another commenter stated, “Please do not change the existing evaluation process for Federal employees due to the whims of the current administration.” Comment 10.

In the following sections, we address the public comments related to the specific portion of the regulation to which each comment applied.

OPM received a wide range of comments in response to its proposal to remove the prohibition of a forced distribution of performance rating levels within the SES. Comments ranged from strong support to strong opposition, while others agreed that, although something should be done to address inflated ratings in the SES, there are alternatives to forced distribution that could be pursued.

Members of the public and several agencies expressed support for removing the prohibition of a forced distribution due to the large number of high-level ratings issued under the current SES rating system, resulting in a lack of differentiation between the higher and lower performers. One commenter stated, “I support this proposed rule to limit the number of Federal executives who can receive the highest performance ratings. Currently, too many top-level managers receive `outstanding' or `great job' ratings, which makes it difficult to hold leaders accountable or recognize who is truly excelling.” Comment 20.

Notably, all the agencies that provided comments supported removing the prohibition on forced distribution. One agency in particular stated that the proposed change “would fundamentally elevate the standard of accountability within the Executive Branch, ensuring that only the truly deserving performers are rewarded for their performance.” Comment 27. Several other agencies agreed that removing the prohibition on forced distribution would lead to a more normalized ratings distribution and would result in greater recognition for the truly exceptional performers. See, e.g., Comments 18, 24, 25.

Another agency suggested that the implementation of a forced distribution will better serve the merit system principle at 5 U.S.C. 2301(b)(1), which requires that advancement be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. The agency asserted that the statute's use of the term “relative” is not accidental. The agency stated that, “It is a recognition of the fact that assessing the ability, knowledge, and skill of a Federal employee requires a comparison to similarly situated individuals to make a full and fair assessment. In appropriate circumstances, forced distribution will greatly assist agencies in distinguishing between SES employees—who would otherwise appear to be indistinguishable and interchangeable from their personnel records—for purposes of selection or advancement.” Comment 22.

OPM agrees that this rule will have a positive impact on reducing inflated ratings within the SES. Enabling agencies to implement a forced distribution limiting the number of high-level SES ratings will create conditions that support meaningful distinctions in performance. OPM also agrees that utilizing a forced distribution, where agencies must consider relative performance, better reflects the merit system principle at 5 U.S.C. 2301(b)(1) than a system that predominantly fails to make distinctions in performance.

Several individual commenters, the two labor organizations, and the professional organization opposed OPM's proposal to remove the prohibition on a forced distribution. For example, some of the commenters and one of the labor organizations were concerned that forced distribution could negatively impact the culture and work environment if implemented. Comments 13, 15, 23. One commenter stated that, “such systems have been criticized for creating an environment of unhealthy competition, decreased morale and reduced collaboration among employees.” Comment 13. The labor organization echoed this concern stating: “Forced distribution is not well-suited to entities that value security or long-term orientation, as it disincentivizes creativity and risk-taking and inhibits relationship building between employees. Organizations like the Federal Government that rely on data sharing and long-term planning are especially vulnerable to the culture created by forced distribution, which often strangles innovation and dissuades collaboration.” Comment 23.

OPM disagrees with the concerns posed about the effect of forced distribution on agency culture and innovation. By removing the prohibition on a forced distribution of ratings, OPM is advocating, as it has done for many years, for agencies to strive towards creating a high-performance culture where truly exceptional performance will be differentiated from mediocre and poor performance and that a Level 3 “Fully Successful” rating will be increasingly recognized as a positive rating that is valued. 14 Appraisals of performance in the SES, as required by 5 U.S.C. 4313, must be based on both individual and organizational performance and, for an agency's appraisal system to be certified under 5 U.S.C. 5307(d), it must make meaningful distinctions based on relative performance. As such, the concern that forced distribution will stifle collaboration or lead to unproductive competition is obviated by the executive's rating depending on the successful achievement of organization and agency goals. Senior executives cannot receive high ratings through their individual efforts alone; collaboration and cross-functional cooperation are unavoidable imperatives that a successful senior executive must embrace, regardless of whether a forced distribution is implemented or not.

Some commenters and the professional organization were concerned that imposing a forced distribution will diminish accuracy and accountability from the appraisal of senior executive performance. Comments 04, 05, 19. For example, one commenter stated: “Certainly, an individual who may have been entitled to a top-notch review will be hamstrung into a lower category, simply because this forced distribution requires it. In fact, lower performers may even get placed into a higher category because this forced distribution requires that no more than x number of employees be evaluated at the lowest level.” Comment 04. The professional organization stated, “Any such curve necessarily introduces inaccuracies in the appraisals provided to SES employees, by forcing employees whose performance may merit `4' or `5' level rating under the applicable performance standards to only receive a `3' rating to comply with the `grading curve.' ” The professional organization also argued that the proposal to remove forced distribution violates 5 U.S.C. 3131(2) and (4) and 4312(a)(1). Comment 19.

OPM does not agree that imposing a forced distribution would remove accuracy or accountability from the appraisal of senior executive performance. On the contrary, OPM believes that failing to effectively reform a Governmentwide appraisal system in which approximately 96% of its senior executives receive the highest rating levels erodes accountability and credibility from SES performance appraisals. OPM also disagrees that implementation of a forced distribution could result in a poor performer receiving a higher rating than he or she earned. The final rule does not mandate any minimums with respect to the rating levels issued at an agency. Rather, it simply removes the categorical prohibition on forced distribution. The new SES appraisal system and plan issued on February 25, 2025, instructed that, if the regulatory prohibition on forced distribution is removed, each agency would be expected to limit their number of Level 4 and 5 ratings to no more than 30%. The new system also includes flexibility for the President to waive the 30% limit by certifying that the performance of the agency's executives was outstanding during the relevant time period. OPM has no intention of requiring a minimum number of ratings at any of the lower rating levels. OPM also disagrees with the interpretation by the professional organization that removing the prohibition on forced distribution violates any statutes. The current SES appraisal landscape is one in which the accuracy of SES ratings should be questioned, given that almost no meaningful distinction in performance is made across Governmentwide SES ratings. This rule strives to increase the accuracy of SES ratings, consistent with 5 U.S.C. 4312(a)(1), by incorporating relative performance, thereby resulting in a more normalized SES ratings distribution. This rule also provides for increased conformity with 5 U.S.C. 3131(4) by emphasizing that only exceptional performers should be recognized with the highest ratings, as opposed to the vast majority of the SES population receiving the highest ratings.

Several commenters cautioned that allowing for a forced distribution of ratings could hinder retention of competent executives and deter talented individuals from joining the SES if they expect a Level 3 rating. Comments 07, 09, 16. For example, one commenter stated, “few would want to forego higher private sector salaries, knock themselves out for a few years while turning around a bureau or an agency, and then receive performance ratings of `3' each year because of forced distribution.” Comment 07. Another commenter pointed out that engrained perceptions associated with the current rating labels could be an underlying issue that needs to be addressed. For instance, Level 3 “Fully Successful” likely has a certain connotation shared throughout the Federal Government. The commenter suggested that it might aid with the transition to a forced distribution to establish new rating labels to avoid executives “feeling like they are being graded lower than they were previously for the same work.” Comment 09.

OPM accepts that there may be connotations associated with various rating levels. However, OPM anticipates that one of the outcomes of this final rule will be a more normalized distribution of SES ratings, in which a rating of Level 3 will not be viewed as a poor rating, but rather a good rating that is valued. Because rating inflation has been allowed to persist for so long within the SES, it has created an environment devoid of meaningful distinctions in SES performance ratings where many senior executives now expect to receive the highest ratings without demonstrating superior performance relative to the other senior executives in their agency. Under a forced distribution, a truly exceptional senior executive who turns a low performing bureau or agency around into a high performing one should still expect to receive a Level 5 (“Outstanding”) rating. OPM expects that high-potential executive talent will not be dissuaded from joining the SES under a system that utilizes a forced distribution and that is more likely to accurately differentiate the performance of its senior executives. Those who join the Federal Government often do so because they are driven by a public service motivation and belief in the agency's mission. A national survey conducted by the Partnership for Public Service in the spring of 2024  15 found that 65% of U.S. adults agree that “working in the Federal Government is a good way for a person to serve their community.” SES members are in positions to directly shape the direction of their agency and make positive impacts on their community and the Nation. Beyond the meaningful work, the SES offers a strong package of benefits, including competitive salaries, generous annual and sick leave programs, health and life insurance, access to the Federal Employees Retirement System, opportunities for executive development and training, and eligibility for rating-based performance awards. Agencies are able under the new SES appraisal system and plan to provide performance awards to executives who receive a Level 3 (“Satisfactory”) rating, which will reinforce the value of that rating.

Two commenters voiced concern that forced distribution can be subject to “gaming” (Comments 09, 11), where supervisors may choose to rotate who receives higher ratings regardless of performance, such as by categorizing employees who were retiring in the near future into the lowest performance category so that, if there were termination consequences, those affected would be employees retiring in the near future. Although one of the commenters applauded OPM's current regulatory effort to curb rating inflation, the commenter also stated that “all a percentage limit or quota on high ratings will get you is a [sic] an informal `just wait your turn' rotation system. That sort of backdoor system gives a career executive a high performance rating every third year or so, when it's their `turn' to be wonderful. And they're told `be patient' when it isn't.” Comment 11. These commenters suggested that, if forced distribution is implemented, OPM should add further reporting requirements to evaluate whether ratings are being rotated (Comment 09) or possibly utilize the President's Management Council (PMC) to evaluate agency performance “to ensure that an agency's individual SES performance ratings were generally consistent with a particular agency's overall performance.” Comment 11.

OPM acknowledges that forced distribution, when not implemented with appropriate oversight or controls, could lead to an agency “gaming” the rating process by rotating which senior executives receive the highest rating levels. That would understandably demoralize top performers and undermine the intent of the rule—which is to ensure that only the truly deserving executives receive the highest rating levels and associated rewards. To ensure proper oversight over senior executive ratings, the President's January 20, 2025, memorandum on Restoring Accountability for Career Senior Executives required agencies to re-constitute their SES Performance Review Boards (PRBs) with individuals committed to full enforcement of the SES performance standards. OPM is confident the re-constituted PRBs will provide fair and accurate recommendations on SES annual summary ratings based on objective consideration of both individual and organizational performance. Additionally, under its February 25, 2025, memorandum on the new SES performance appraisal system and plan, OPM expects ratings to be aligned with and reflect organizational performance and for senior executives to be evaluated in part based on achieving organizational goals. Under the new system, there is also a provision that the President may waive the limits imposed by a forced distribution by certifying that the performance of the agency's executives was outstanding during the relevant time period. As such, we have not adopted in these regulations any new requirements to incorporate PMC oversight responsibilities or to establish additional reporting requirements on ratings distributions.

One individual commenter and the two labor organizations suggested alternatives to forced distribution and other recommendations for improving SES appraisal such as utilizing 360-degree reviews, robust feedback, and developmental coaching (Comment 15); requiring that SES have a variety of experience before entry into the SES ( e.g., at multiple agencies and/or experience at state or local government) (Comment 23); requiring performance plans for political appointees (Comment 23); and by having performance plans linked to mission, assessing candidates against leadership-oriented skills in addition to technical competencies, and by requiring that performance appraisals be transparent, timely and linked to the executive's development plan (Comment 26). One of the labor organizations provided direct quotes from senior executives who shared their perspectives on performance management, with one executive stating, “The mechanisms for holding SES accountable already exist. The problem is that leadership has not exerted the fortitude necessary to confront non-performing SES and hold them accountable.” Comment 26.

Many of the suggested alternatives to forced distribution are already in place and have been for years—but have failed to effectively address the fact that SES performance ratings do not meaningfully and reliably distinguish relative senior executive performance. For example, E.O. 13714, “Strengthening the Senior Executive Service,” E.O. 13714, 80 FR 79225 (Dec. 15, 2015), requires that senior executives have executive development plans that include at least one leadership assessment involving employee feedback (such as a 360 degree-type review) every 3 years to provide feedback and inform the executive's developmental needs. Agencies continue to be expected to adhere to this requirement. OPM has also championed a coaching culture across the Federal workforce to support effective mission achievement and deliver improved services to the American people. 16 Additionally, SES performance appraisal regulations already require that both career and noncareer SES members receive performance plans containing critical elements based on validated executive leadership competencies  17 and that align with results-oriented goals. 18

SES are hired primarily for their possession of Executive Core Qualifications (ECQs) rather than for their technical expertise. These core qualifications are often attained through diverse experiences spanning across agencies and the public and private sectors. OPM's May 29, 2025, memorandum —Hiring and Talent Development for the Senior Executive Service   19 —overhauled the ECQs and SES candidate development programs to strengthen SES hiring and reform “broken, insular, and outdated” Federal hiring practices. 20 However, even within an elite cadre of senior executive performers, SES appraisal systems must provide for appraisal of all senior executives, including career and noncareer SES appointees, and produce accurate ratings that make meaningful distinctions based on relative performance. This is a statutory requirement for certifying an agency's SES performance appraisal system under 5 U.S.C. 5307(d). The regulations at 5 CFR 430, subpart D, establish the criteria for certifying SES performance appraisal systems and require alignment of senior executive performance plans with the agency's mission and other strategic goals and policy objectives, incorporation of robust feedback from customers and stakeholders, and transparency through consultation and oversight. Thus, while many mechanisms for holding SES accountable already exist, they have not translated into performance standards that accurately distinguish relative Senior Executive performance. This problem has persisted for years, as evidenced by consistently inflated SES ratings across the Federal Government, even for senior executives who demonstrably do not perform. 21 Removing the prohibition of a forced distribution of SES ratings will create the conditions necessary to ensure raters differentiate senior executives' performance.

One commenter suggested applying different forced distribution requirements for career and politically appointed employees, stating “It likely does not make sense to use stacked rankings that compare career and political candidates because of the differences in their service and background. There may be also an incentive to assign the high ratings to political appointees instead of career staff, regardless of performance, and then to more prominent political appointees over less prominent ones.” Comment 09.

OPM agrees with the commenter's concerns. While the proposed regulations only addressed the removal of the categorical prohibition of a forced distribution and did not regulate any specific provisions for how an agency implements forced distribution, OPM incorporated into this final rule a provision clarifying that it may establish a forced distribution of SES ratings and that noncareer SES appointees may be excluded from such requirements, as determined by OPM. This provides flexibility for forced distribution requirements to be established, consistent with OPM guidance, in a manner that best supports rigor and accountability within the SES. Agency leadership decisions remain bound by the merit system principles ( See 5 U.S.C. 2301(b)) and the prohibited personnel practices ( See 5 U.S.C. 2302) which, among other things, obligate Federal agencies to implement personnel management such that all employees receive fair and equitable treatment without regard to political affiliation.

Another commenter suggested that OPM failed to address one of the primary drivers of GS level employees moving to the SES ranks—annual performance awards ( i.e., bonuses). That commenter claimed that a senior executive must get a Level 4 or 5 rating to receive a bonus and that, if a forced distribution is to be the practice going forward, senior executives who are “Fully Successful” (rated Level 3) should also receive a bonus, as it would also “provide some incentive for these employees to stay in their executive positions and continue to serve the American people in execution of the policies, practices and direction of the administration.” Comment 12.

OPM agrees with the commenter's suggestion, with some clarification. SES performance awards are authorized under 5 U.S.C. 5384 for senior executives whose performance is determined to be at least Level 3 (“Fully Successful”). It may be that the particular commenter's agency has established an internal policy limiting performance awards to only those senior executives rated at Levels 4 and 5. However, that is not a Governmentwide policy. These regulations do not address SES awards programs. OPM's February 25, 2025, memorandum on the new SES performance appraisal system and plan allows agencies to grant a 5% performance award to senior executives rated Level 3. This helps to support a culture shift in which a Level 3 rating reflects “Satisfactory” performance and is not viewed as a poor rating.

Two commenters, a labor organization, and the professional organization challenged OPM's general conclusion that the large proportion of Level 4 and 5 ratings reflects an inherent miscalibration of the current rating system. Comments 04, 13, 19, 26. The professional organization highlighted that Congress intended, under the CSRA, that the SES should be established to provide agencies the necessary flexibility to recruit and retain the highly competent and qualified senior executives needed to provide effective management of agencies and their functions. The professional organization said, “It is not surprising that a group of employees deliberately selected to be highly qualified high performers would perform at a high level, if graded fairly on their own performance and not `graded on a curve.' ” Comment 19. One of the commenters expressed a similar view, stating that “The data indicating high percentages of SES ratings at levels `Outstanding' and `Exceeds Fully Successful' could be interpreted as evidence of the high caliber of public service executives rather than a systemic failure.” Comment 13.

OPM is keenly aware that entry into the SES represents a significant achievement; it is a highly selective process that ensures only the most capable and accomplished individuals are admitted. However, the high caliber of the SES cadre does not justify assigning the highest performance ratings to all its members. Even within elite groups, there are variations in performance. Therefore, performance expectations should be equally rigorous to encourage excellence in performance as required by 5 U.S.C. 4312(a)(3) and result in meaningful distinctions in performance as required for SES performance appraisal system certification under 5 U.S.C. 5307(d).

A labor organization argued that “OPM's rule is unsupported because it is based on no recent data or evidence about SES performance management. No such data has been cited or released to the public or as part of the regulatory record.” Comment 26. The labor organization noted that OPM has not issued a report on SES ratings distributions to the public since 2015.

OPM previously disseminated an annual report titled, Report on Senior Executive Pay and Performance Appraisal Systems, which was last produced for FY 2016 and is publicly available. 22 In the FY 2016 report, approximately 92% of SES Governmentwide were rated at Levels 4 and 5. Due to OPM resource constraints, the report was discontinued. For the purposes of preparing for this rulemaking, however, OPM analyzed SES ratings for the most recent completed fiscal year for which ratings data were available (FY23) and reported on those results in the NPRM's Supplementary Information at 90 FR 18820. The FY23 data do not show meaningful distinctions being made, with approximately 96% of SES Governmentwide rated at Levels 4 and 5. Thus the FY23 data further demonstrate the continuing trend of SES members increasingly receiving Level 4 and 5 ratings, beginning with the 2015 GAO report (showing that between 2010 and 2013, 85% of SES were rated Level 4 or 5) and continuing with OPM's FY 2016 report (showing that 92% of SES were rated Level 4 or 5). The FY 23 data represents yet another example of reported data showing that SES ratings continue to be extremely high.

This final rule removes diversity, equity, and inclusion (DEI) language from the SES performance appraisal regulations at 5 CFR part 430, subpart C, consistent with President Trump's Executive Order titled, “Ending Radical and Wasteful Government DEI Programs and Preferencing.” E.O. 14151, 90 FR 8339 (Jan. 29, 2025). This order directs the termination of all DEI policies, programs, and preferences in the Federal Government, under whatever name they appear.

The existing regulation at 5 CFR 430.308(d)(7) requires that “leadership effectiveness in promoting diversity, inclusion, and engagement” be taken into account as one of several factors in appraising senior executive performance. OPM is deleting paragraph (d)(7), thereby removing promotion of DEI from the list of factors. This change is consistent with E.O. 14151 because paragraph (d)(7) conveys to both the senior executive and to the public that executives are expected (1) to promote a particular, controversial ideology throughout the government and (2) to promote policies, programs, and preferences throughout the Federal Government that the President has identified as wasteful and divisive.

Additionally, 5 CFR 430.311(a) imposed requirements pertaining to the membership of agency PRBs and encouraged agency heads “to consider diversity and inclusion in establishing their PRBs.” OPM is removing that language from the paragraph and, in its place, encouraging agency heads to consider selecting members that are committed to applying the requirements in the SES Performance Appraisal System and Plan and assuring an SES of the highest caliber, consistent with the Restoring Accountability Memo.

Comments were evenly split between those who generally support removing DEI language from the SES performance appraisal regulations and those who oppose removing it. Agencies and some members of the public voiced support for removing DEI for various reasons. Some agencies agreed with removing the DEI language because doing so aligns with the Trump Administration policy priorities around restoring accountability in the career SES and ending radical and wasteful government DEI programs and preferencing ( See Comments 11, 14, 17, 27). One agency in support of removing the language stated that it would allow for more of a focus on “job-relevant criteria and measurable outcomes” (Comment 25), while another agency said that the current language “promoting diversity is likely to promote unlawful discrimination and that the proposal to remove that language is appropriate and necessary.” Comment 22. An individual commenter also strongly supported removing the DEI language stating, “DEI is counter-productive. As a taxpayer and citizen, I demand employees are hired based on merit and not on identity. Hiring by identity is a violation of civil right discrimination laws and produces inferior results that put public safety at risk. Or punishes people for their identity. It is not a constitutional right to be elevated in importance because of one's identity.” Comment 21.

OPM agrees that race- and sex-based preferencing operating under the banner of “diversity, equity, and inclusion” have no place in the Federal Government and the changes being made in this final rule reflect a commitment to supporting the policies of the Administration and upholding the Federal Government's merit-based hiring and performance evaluation system.

Several commenters opposed removing DEI language because they argue DEI represents essential values that contribute positively to the Federal Government, and that removing DEI language sends a regressive message undermining the importance of those values. See Comments 08, 10, 13. Additionally, one commenter said, “removing DEI language from SES appraisal undermines the public interest, reduces accountability for inclusive leadership, and directly contradicts decades of evidence that diverse, equitable leadership improves government performance and trust.” Comment 15.

OPM disagrees that the race- and sex-based preferencing programs operating under the banner of “diversity, equity, and inclusion” represent essential values of the Federal Government. On the contrary, the Equal Protection Clause of the Constitution establishes the foundational principle that Government may never discriminate based on protected characteristics, including race, except in rare circumstances. As the Supreme Court articulated in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“ SFFA” ), 600 U.S. 181, 206 (2023), the “core purpose” of the Equal Protection Clause is to “do away with all governmentally imposed discrimination based on race.” The Court further emphasized that “eliminating racial discrimination means eliminating all of it.”

One of the labor organizations, the professional organization, and one commenter disagreed with removing the DEI language on a legal basis. See Comments 16, 19, 26. Specifically, with regard to eliminating the performance appraisal factor at 5 CFR 430.308(d)(7), the labor organization asserted that OPM's conclusion was that the regulation is inconsistent with 5 U.S.C. 7201 and went on to say “It is hard to understand how OPM reaches this conclusion, based on the plain statutory language at 5 U.S.C. 7201(b) which states, `It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin.' ” Comment 26.

It should be noted that 5 U.S.C. 7201(b) goes on to say, “The President shall use his existing authority to carry out this policy.” 5 U.S.C. 7201(b). The removal of DEI language from 5 CFR 430.308(d)(7) and 5 CFR 430.311(a) follows from and is consistent with President Trump's Executive Order titled, “Ending Radical and Wasteful Government DEI Programs and Preferencing.” E.O. 14151, 90 FR 8339 (Jan. 29, 2025). This order directs the termination of all DEI policies, programs, and preferences in the Federal Government, under whatever name they appear. OPM is eliminating promoting DEI as an SES performance appraisal factor because making promoting DEI at work as a basis for evaluating SES performance is, at a minimum, confusing and contradictory in light of the President's Executive Order. It also may lead to the impression that executives should (1) be ideologically committed to DEI, when DEI is very controversial, condemned by the Trump Administration, and may lead to unlawful hiring practices, and (2) have leeway to engage in DEI practices that are unlawful as described in U.S. Equal Employment Opportunity Commission (EEOC)  23 and U.S. Department of Justice (DOJ) guidance. 24 OPM does not believe that 5 U.S.C. 7201 required this confusing performance appraisal factor at 5 CFR 430.308(d)(7). Furthermore, eliminating the promotion of “diversity” and “inclusion” as appraisal factors does not impede SES members from having their appraisal take into account equal employment opportunity requirements, or compliance with merit systems principles, as required by 5 U.S.C. 4313(5). Similarly, eliminating the requirement in § 430.308(d)(7) to promote “engagement” removes a redundant requirement. Engagement is already accounted for in SES appraisals. The new SES appraisal system and plan issued on February 25, 2025, includes standardized critical elements, one of which is titled “Holding Others Accountable and Treating them Fairly.” This critical element includes requirements for SES to treat all employees fairly and consistent with their merit and competence, as well as obey laws regarding equal employment opportunity. OPM expects that all employees should receive fair and equitable treatment in all aspects of personnel management consistent with Merit System Principles, including 5 U.S.C. 2301(b)(2).

Commenters opposing the removal of DEI language in 5 CFR 430.311 did so mostly through statements that opposed removing DEI language in general as opposed to targeting objections to OPM's changes to 5 CFR 430.311. In this final rule, OPM is amending the regulation on PRB membership so that agency heads are encouraged to select members that are committed to applying the requirements in the SES Performance Appraisal System and Plan and assuring an SES of the highest caliber. This replaces the current regulatory language encouraging agency heads to consider diversity and inclusion in establishing their PRBs. Any system that would inject racial considerations into who is chosen for a particular position at an agency—be it the PRB or anything else—would be in tension with SFFA as well as other cases such as McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976) and Ricci v. DeStefano, 557 U.S. 557 (2009). Therefore, OPM is not adopting any recommendations to retain DEI language or replace the eliminated language from 5 CFR 430.308 or 5 CFR 430.311 with other DEI language.

OPM is issuing this final rule pursuant to its authority to issue regulations governing performance appraisals in the SES in subchapter II of chapter 43 of title 5, United States Code. The purpose of this rulemaking is to provide a means by which only the highest performing SES members receive the highest performance ratings. Previous efforts  25 to promote rigor in SES performance appraisal by encouraging agencies to develop more stringent performance requirements have not resulted in significant changes to SES ratings distributions.

During the FY23 performance appraisal cycle, across 91 Federal agencies, the distribution of SES members' performance ratings was as follows: 64.3% (4608 members) were rated “Outstanding” at Level 5, 31.7% (2273 members) were rated “Exceeds Fully Successful” at Level 4, 3.6% (261 members) were rated “Fully Successful” at Level 3, 0.2% (15 members) were rated “Minimally Satisfactory” at Level 2, and 0.1% (10 members) were rated “Unsatisfactory” at Level 1. 26 The distribution of these ratings demonstrates that there continues to be inflation of SES performance ratings and that action must be taken in order to re-set and infuse rigor into the SES performance appraisal process. As such, the removal of the prior prohibition of forced distribution of SES ratings is necessary to enable the establishment and enforcement of limits on SES rating levels.

By applying a forced distribution of SES performance ratings, agencies and individual SES members will be held to a higher standard of accountability because there will be a pre-established limited number of higher performance ratings, thereby ensuring only the truly deserving performers are rewarded for their performance.

Removing the regulatory prohibition on forced distribution is an important first step towards recalibrating agencies' focus and efforts on ensuring meaningful distinctions in SES performance ratings. OPM expects that forced distribution will incentivize improved performance of SES members as they no longer will expect to receive the highest ratings without demonstrating superior performance relative to the other senior executives in their agency. This will ultimately improve the performance of the government in providing services to the American public.

This final rule is expected to affect the operations of more than 90 Federal agencies—ranging from cabinet-level departments to small independent agencies—that have employees in the SES. Individuals employed by these agencies will spend time updating agency SES performance appraisal policies and procedures during fiscal year 2025 to prepare for implementation in the fiscal year 2026 performance appraisal period. Typically, an agency's Executive Resources staff handles tasks associated with updating SES performance plans and refining policy documents. Therefore, for this cost analysis, the assumed average salary rate of Federal employees performing this work will be the rate in 2025 for GS-14, step 5, in the Washington, DC, locality pay table ($161,486 annual locality rate and $77.38 hourly locality rate). We assume the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $154.76 per hour.

To comply with the regulatory changes in this rule, affected agencies must review the rule and update their policies and procedures. We estimate that, in the first year following publication of a final rule, this will require an average of 80 hours of work by employees with an average hourly cost of $154.76 per hour. This should result in estimated costs of about $12,400 per agency and about $1.1 million Governmentwide.

SES members revise their performance requirements each year as they develop their performance plans. OPM anticipates that adjusting their performance requirements to reflect the updated critical elements may take each executive slightly longer than usual in the first year. We estimate that this will require approximately 15 additional minutes in the first year of implementation compared to the time usually spent to develop performance requirements for the annual performance plan. Based on the average salary for the ES pay plan in September 2024 (most recent available data), we assume an average salary rate of $207,313, or $99.67 per hour. 27 We assume the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $199.34 per hour. There are approximately 8,430 members of the SES corps in the executive branch. This results in a one-year, transitional increase in costs of about $420,000 Governmentwide.

OPM anticipates that the overall implementation costs will be limited in duration and total about $1.5 million. OPM did not receive any comments on its estimates of costs.

The 2015 GAO report expressed that a cultural shift might be needed among agencies and employees to acknowledge that a rating of “Fully Successful” is already a high bar and should be valued and that “Outstanding” is a difficult level to achieve. 28 The application of a forced distribution within the SES performance appraisal system will reinforce the understanding that success as a senior executive is aligned to the appropriate rating at the “Fully Successful” level. By establishing a limit on the number of SES members who can receive a rating above the “Fully Successful” level, there will be a clear distinction of the highest performers across an agency and the Federal Government. Agencies will no longer be able to rate virtually all of their senior executives at the highest performance ratings, thus encouraging SES members to strive for increased levels of performance and ultimately provide better results for the government and the American public. Consistent with the letter and intent of 5 U.S.C. 3131 and 4312(a), only truly deserving senior executives will be recognized and rewarded for excellent performance.

OPM considered the alternative of not removing the prohibition on forced distribution and instead issuing further guidance encouraging agencies to be increasingly rigorous in their management of SES performance to promote meaningful distinctions in SES performance. However, previous attempts to achieve this result through guidance have not been successful in curbing inflated SES ratings; instead, it appears that the percentage of SES receiving Level 4 or 5 performance ratings has only increased. Without the ability to place limits on SES ratings, there will almost certainly continue to be a pervasive inflation of ratings and a lack of accountability and meaningful distinction in performance ratings throughout the SES.

OPM also considered the alternative of reinstating the review of SES performance plans by OPM as part of the SES performance appraisal system certification review process. Prior to the issuance of OPM's further streamlined performance appraisal system certification process in 2018, referred to as Certification 2.0, agencies were required to submit a sample of performance plans to OPM for review. OPM could revert to requiring agencies to submit SES performance plans for review to ensure that performance requirements are properly calibrated to established SES performance standards. OPM's practice of reviewing individual SES performance plans was abandoned under Certification 2.0 primarily due to the administrative burden that it placed on agencies and OPM. While the aim of this rule is to increase the performance of SES, OPM also must consider the mandate to deliver a government to the American people that is lean and efficient. Returning to the practice of OPM reviewing individual SES performance plans is not a practical alternative given the additional time required by OPM to review, and for agencies to make corrections to, SES performance requirements. In addition, it is unlikely that requiring OPM to individually certify agency SES performance plans would meaningfully shift the distribution of SES performance ratings in the absence of a repeal of the rule against forced distribution.

OPM received several comments that suggested alternatives to removing the prohibition on forced distribution. OPM's consideration of these alternatives is addressed in the discussion of comments. See, e.g., the preceding discussion of comments 15, 23, and 26.

The Director of OPM certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.

OPM has examined the impact of this rule as required by Executive Order 12866 and Executive Order 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rulemaking does not reach that threshold but has otherwise been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. This final rule is not an Executive Order 14192 regulatory action because it does not impose any more than de minimis regulatory costs.

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

This rulemaking meets the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits before issuing any rule that would impose spending costs on State, local, or tribal governments in the aggregate, or on the private sector, in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold is currently approximately $206 million. This rulemaking will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, in excess of the threshold. Thus, no written assessment of unfunded mandates is required.

The Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs has determined this rule does not meet the criteria listed in 5 U.S.C. 804(2). In addition, this is a rule related to agency management or personnel and agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties and thus does not come within the meaning of the term “rule” as used in the Congressional Review Act. See 5 U.S.C. 804(3)(B), (C). Therefore, the reporting requirements of 5 U.S.C. 801 do not apply.

This regulatory action will not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act.

Accordingly, for the reasons stated in the preamble, OPM amends 5 CFR part 430 as follows:

Title I of the Disaster Relief Supplemental Appropriations Act, 2025 (Division B of the American Relief Act, 2025; Public Law 118-158; referred to as “the Act” in this document) provides “$30,780,000,000, to remain available until expended, for necessary expenses related to losses of revenue, quality or production of crops (including milk, on-farm stored commodities, crops prevented from planting, and harvested adulterated wine grapes), trees, bushes, and vines, as a consequence of droughts, wildfires, hurricanes, floods, derechos, excessive heat, tornadoes, winter storms, freeze, including a polar vortex, smoke exposure, and excessive moisture occurring in calendar years 2023 and 2024 under such terms and conditions as determined by the Secretary of Agriculture . . .”. From that amount, the Act directs the Secretary of Agriculture to use up to $2 billion to provide assistance to livestock producers, as determined by the Secretary, for losses incurred during calendar years 2023 and 2024 due to drought, wildfires, or floods.

On May 29, 2025, FSA announced ELRP 2023 and 2024, which provides approximately $1 billion in assistance to eligible livestock producers for losses due to qualifying drought and qualifying wildfire using producer data already on file with FSA through participation in the Livestock Forage Disaster Program (LFP) (90 FR 22614). Assistance for losses due to qualifying wildfires from ELRP 2023 and 2024 is limited to qualifying wildfires occurring on federally managed land. This rule announces ELRP 2023 and 2024 FW, which will use the approximate $940 million in funding remaining of the $2 billion authorized to assist eligible livestock producers who incurred losses as a result of increased supplemental feed costs due to a qualifying flood or qualifying wildfire in calendar years 2023 and 2024. ELRP 2023 and 2024 FW assistance for wildfires is available only on non-federally managed land, and this requirement is not applicable to qualifying floods.

Severe floods and wildfires in 2023 and 2024 disrupted feed availability and worsened forage conditions in major livestock-producing regions, particularly impacting the dairy and beef cattle sectors. These events, on both public and private land, strained local feed markets, increased supplemental feed costs for livestock producers, and reduced livestock productivity including milk production and livestock weaning weights. In 2023 and 2024, just under 11.5 million acres were affected by wildfires in the United States, according to the National Oceanic and Atmospheric Administration's (NOAA's) Annual Wildfires Reports. 1 In March 2024, five wildfires were contained in the Texas Panhandle, the largest cattle-producing region in the world. These wildfires resulted in approximately 1.1 million scorched acres, hundreds of destroyed structures, hundreds of miles of ruined fencing, and more than 7,000 dead cattle. 2 During July 2023 and continuing into 2024, heavy rains and flash floods swept across the nation, inundating large portions of the country, particularly in the Northeast, Southeast, and Midwest. California was severely impacted by floods in 2023 due to atmospheric rivers, while Hurricanes Helene and Milton caused widespread flash flooding in the Southeast in 2024. These extreme weather events had widespread effects including:

• Disruptions to infrastructure (roads being impassable or washed out) and to local feed supply chains, causing delays and increased transportation costs to deliver feed products to livestock producers;

• Increased feed costs for livestock producers and difficulty in securing replacement feed due to reduced crop quality or outright crop failure; and

• Degraded livestock performance (including reduced production and lower weaning weights), especially among dairy cattle, as a result of low-quality feed and feed ration inconsistencies. 3

Unlike losses due to drought and losses due to wildfire on federally managed land, which were covered under the LFP and the previous ELRP 2023 and 2024, the new ELRP 2023 and 2024 FW compensates eligible livestock producers for losses due to qualifying floods, and qualifying wildfires on non-federally managed lands, that LFP and other Federal programs do not cover.

ELRP 2023 and 2024 FW will compensate eligible livestock producers for the equivalent of 60 percent of:

• 1 month of the calculated monthly feed costs for the producer's eligible covered livestock inventories for a qualifying wildfire; and

• 3 months of the calculated monthly feed costs for the producer's eligible covered livestock inventories for a qualifying flood.

While both qualifying disaster events are significant, the 3-month time period used for calculating payments for a qualifying flood will address both short-term and long-term feed needs resulting from the impact a qualifying flood has to the agricultural landscape, including the likely delay associated with bringing the flood impacted land back into production for livestock forage or grazing needs. The 1-month time period used for calculating payments for a qualifying wildfire is intended to address immediate feed needs and short-term impacts to the affected acres impacted by the qualifying wildfire. While wildfire destroys existing cover present on the landscape, it does not typically require extensive rehabilitation to support the regeneration of grazing acres or forage production like that of flood affected acres. The monthly feed costs are calculated based on the kind, type, and weight class, if applicable, for the livestock at the time of the qualifying event using the same monthly feed cost calculation used for LFP. 4 FSA's use of a standard monthly feed cost calculation, based on 1 month for qualifying wildfire or 3 months for qualifying flood, streamlines program delivery by minimizing the amount of information a producer must submit and reduces the burden on producers to produce records of supplemental feed costs during an application period that is months or years after the qualifying disaster events. This approach is similar to LFP, which provides assistance based on the occurrence and severity of drought as verified by the U.S. Drought Monitor.

FSA cannot determine eligible producers and payment amounts using producer data that is already on file as a result of participation in other programs; therefore, livestock producers will be required to submit an application for ELRP 2023 and 2024 FW. Although FSA was able to use data previously reported to FSA to streamline administration and identify program demand for ELRP 2023 and 2024, FSA is unable to determine the total number of eligible applicants and resulting program demand for ELRP 2023 and 2024 FW with existing data on file, and therefore requires eligible livestock producers to apply for assistance. Due to the need to evaluate program demand, FSA will not issue payments at the onset of the application period. Payments are expected to be factored because program demand is anticipated to exceed the amount of funding available. 5

To be eligible for ELRP 2023 and 2024 FW, a livestock producer must have owned, leased, purchased, entered into a contract to purchase, or was an eligible contract grower of eligible covered livestock on the beginning date of the qualifying disaster event; and suffered an eligible loss due to a qualifying disaster event, as described below. Eligible producers may receive payment for 1 or both years, and they may receive payments for multiple qualifying disaster events, if applicable, not to exceed the equivalent of 3 months of assistance per producer, per physical location county of the qualifying disaster event, per program year.

Eligible livestock producers for ELRP 2023 and 2024 FW do not include livestock auction facilities, operations in the business of housing livestock on a day-to-day basis (including but not limited to preparing livestock for sale or export) or those whose business is to buy and sell livestock from various sources, only serving as an intermediary between livestock producers and buyers. As with LFP, livestock located in commercial feedlots or feedyards (livestock in the final stage of production before slaughter) are not eligible for ELRP 2023 and 2024 FW.

Forage quality is important at varying livestock development levels to both dairies and feedlots; however, forage serves a different purpose in dairy versus feedlot feed rations. Dairies rely on high quality forage for healthy rumen for optimizing milk production while forage needs for feedlots focus on fiber and calories for cattle growth. Cattle feeding operations have a broader opportunity to balance and alter their feed sources to meet energy needs (such as feed grains, silage, and earlage) and fiber needs (such as dry hay, cover crops, and sorghum silage) in their rations, versus dairies, which typically require high-quality alfalfa. By far the most important hay crop fed to dairy cattle in the United States is alfalfa. Alfalfa provides a significant amount of energy, which is essential for milk production and reproduction in dairy cows. Dairy utilization may account for 75 to 80 percent of the utilization of alfalfa in the major dairy States, such as California, Wisconsin, New York, Idaho, and New Mexico. 6 Alfalfa is bulky and expensive to transport, so when a livestock producer's fields are impacted by disaster, it can become difficult or impossible to secure this critical feed.

Consistent with other disaster programs including ELRP, ELRP 2022, ELRP 2023 and 2024, the Emergency Relief Program (ERP), ERP 2022, 2017 Wildfire and Hurricane Indemnity Program (WHIP), and WHIP+, the average adjusted gross income (AGI) limitation is not applicable to ELRP 2023 and 2024 FW.

Eligible losses for ELRP 2023 and 2024 FW are losses due to increased supplemental feed costs as a result of the qualifying disaster event that occurred in calendar year 2023 or 2024, if the eligible livestock producer, as of the beginning date of the qualifying disaster event, was an owner, operator, landlord, tenant, sharecropper, or eligible contract grower who shares in the risk of producing covered livestock and who is entitled to a share in the eligible covered livestock, physically located in the county affected by the qualifying disaster event, or that normally would have been physically located in that county in the absence of the qualifying disaster event, as described below.

Qualifying disaster events for ELRP 2023 and 2024 FW include qualifying floods and qualifying wildfires that occurred in calendar year 2023 or 2024. “Qualifying flood” means a severe and extreme flooding event that causes widespread destruction, significant property and crop damage, livestock loss and displacement, and major economic loss to infrastructure and the environment, typically overwhelming local flood defenses and response systems. “Qualifying wildfire” means an unplanned, unwanted wildfire burning in natural areas like forests, grasslands, or brushlands, on non-federally managed lands. These wildfires can be started by natural causes like lightning, or human activities, and they consume vegetation and spread based on environmental conditions. A qualifying wildfire does not include fires that were planned, intentional, or prescribed burns. Wildfires on federally managed lands are not included because they were covered under ELRP 2023 and 2024.

To streamline program delivery and reduce the burden on applicants, FSA has confirmed that qualifying floods and qualifying wildfires have occurred in many counties based on disaster designations (including Secretarial disaster designations, Presidential declarations, and FSA Administrator's physical loss notifications), weather data, and reported economic impacts. For losses in these affected counties, which have been approved by the Deputy Administrator, livestock producers are not required to submit supporting documentation of the qualifying disaster event. A list of counties approved by the Deputy Administrator is available in FSA county offices and at https:// www.fsa.usda.gov/resources/programs/emergency-livestock-relief-program-elrp .

For losses in counties that have not been approved by the Deputy Administrator, livestock producers must provide supporting documentation to substantiate that a qualifying flood or qualifying wildfire occurred in the county where their livestock were physically located, and eligibility is subject to the county committee's determination that the disaster event meets the specific criteria established for a qualifying flood or qualifying wildfire eligibility. Acceptable documentation includes but is not limited to: photographs that document the impact that a qualified disaster event had on the producer's livestock, showing damage to land and property; documentation that indicates economic losses, loss and displacement of livestock, and damage to infrastructure; insurance documentation; reports of a declared emergency area by local, State, or Federal authorities; any documentation that supports long term recovery needs such as debris removal or property or land repair; news articles; NOAA storm event database records; other FSA disaster program participation records; and any other documentation determined acceptable by the county committee.

Eligible covered livestock, as of beginning date of the qualifying flood or qualifying wildfire, must:

• have been physically located in the county in which the qualifying flood or qualifying wildfire occurred; or

• have normally been physically located in the county in the absence of the qualifying disaster event on or after the disaster event; or were livestock physically relocated from the county due to the imminent threat of the qualifying flood or qualifying wildfire.

For example, a qualifying wildfire, according to the Administrator's Physical Loss Notification (APLN), occurred in Roberts County, Texas on March 8, 2024. “Livestock Producer A” had a grazing lease for adult beef cattle in Roberts County beginning on January 1, 2024 for the calendar year, however, as a result of the threat of the Smokehouse Creek Fire in the neighboring county, “Livestock Producer A” made the management decision to move the livestock for safety purposes to another feeding facility in Sherman County on March 4, 2024, four days prior to the qualifying wildfire reaching Roberts County, and as a result incurred increased supplemental feed costs. “Livestock Producer A” would report on the ELRP 2023 and 2024 FW application that the beginning date of the qualifying wildfire event in Roberts County occurred on March 8, 2024, and report the number of eligible covered livestock in inventory on March 8. 2024.

Categories of eligible covered livestock for ELRP 2023 and 2024 FW are consistent with the kind, type, and weight class of eligible livestock for LFP  7 and previous ELRP programs (that is, livestock that receive 50 percent or more of their nutritional needs from forage). This includes weaned beef cattle, dairy cattle, beefalo, buffalo, bison, alpacas, deer, elk, emus, equine, goats, llamas, ostriches, reindeer, or sheep.

Eligible livestock producers must provide documentation to support the number of livestock in inventory, as of the beginning date of the qualifying disaster event as reported on FSA-970, at the time of application.

The application period begins on September 15, 2025. To be eligible for an ELRP 2023 and 2024 FW payment, a livestock producer must submit the following by October 31, 2025, the ELRP 2023 and 2024 FW application period deadline:

• FSA-970, Emergency Livestock Relief Program (ELRP) 2023 and 2024 Flood and Wildfire (FW) Application;

• Supporting documentation of livestock inventories reported on FSA-970;

• Supporting documentation of the qualifying disaster events reported on FSA-970, for a flood or wildfire in a county not approved by the Deputy Administrator as described above;

• Supporting documentation to establish or update FSA's farm records to support and verify the livestock producer's physical location of their livestock, if applicable; and

• Contract Grower Agreement, if applicable.

Applicants will submit 1 application for each program year, as applicable. Applicants must also submit the following forms to FSA by November 2, 2026, for each applicable program year to be eligible for payment:

• CCC-902, Farm Operating Plan, for an individual or legal entity as provided in 7 CFR part 1400;

• CCC-901, Member Information for Legal Entities, if applicable;

• AD-1026, Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification, for the participant and applicable affiliates as provided in 7 CFR part 12; and

• FSA-510, Request for an Exception to the $125,000 Payment Limitation for Certain Programs, accompanied by a certification from a certified public accountant or attorney as to that person or legal entity's certification, for participants and members of legal entities to be eligible for the increased payment limitation of $250,000, if applicable.

Certain livestock disaster programs, such as LFP and the Emergency Livestock Assistance Program (ELAP), have already established the cost to sustain livestock for 1 month based on 1 animal unit (AU). The industry standard for 1 AU is one mature, 1,000 pound cow with or without a calf. This is a measurement used to standardize the forage needs of different types of livestock. The AU conversion rates for all covered livestock, based on livestock kind, type, and weight class, are consistent with the conversion rates established for LFP.

For ELRP 2023 and 2024 FW, eligible livestock producers will receive a payment for losses due to increased supplemental feed costs for qualifying disaster events using the same monthly feed cost calculation used for LFP, equal to the amount of feed grain equivalent, as determined in 7 CFR 1416.207. ELRP 2023 and 2024 FW will compensate eligible livestock producers the equivalent of 60 percent of 1 month of calculated monthly feed costs for a qualifying wildfire and 3 months for a qualifying flood.

The following is the ELRP 2023 and 2024 FW payment calculation:

Step A:

(1) The number of eligible covered livestock (by livestock kind/type/weight) on the beginning date of the qualifying disaster event, multiplied by;

(2) The producer's share of the reported livestock, multiplied by;

(3) The ELRP 2023 or 2024 FW Wildfire Payment Rate, which equals 1 month of calculated monthly feed costs, or the ELRP 2023 or 2024 FW Flood Payment Rate, which equals 3 months of calculated monthly feed costs.

Step B: The resulting number obtained from the multiplication of (1), (2), and (3) equals the gross ELRP 2023 or 2024 FW payment. This number is then multiplied by a payment factor, if applicable, to be determined by the Deputy Administrator, to arrive at the ELRP 2023 and 2024 FW payment. A payment factor will be applied to ensure that total payments do not exceed the available funding.

The ELRP 2023 and 2024 FW Payment Rates used in Step A (3) will be equal to 60 percent of the calculated monthly feed cost per 1 AU for 1 month for the applicable calendar year for a qualifying wildfire and 60 percent of the calculated monthly feed cost per 1 AU for 3 months for the applicable calendar year for a qualifying flood.

The following is an example of the payment calculation for ELRP 2023 and 2024 FW for a loss due to a qualifying flood in calendar year 2024. An eligible livestock producer was directly impacted by a qualifying flood in Alleghany County, North Carolina, on September 27, 2024, due to Hurricane Helene. This disaster destroyed feed that had been purchased and limited livestock grazing, causing the producer to purchase additional supplemental feed to sustain the producer's livestock. The producer provided documentation that the producer owned 250 head of adult beef cattle in inventory on the beginning date of the qualifying flood. The following illustrates the gross ELRP 2024 FW payment calculation for this eligible livestock producer, before application of a payment factor, if applicable:

FSA will not issue payments at the beginning of the application period. However, during the application period, the Deputy Administrator will evaluate program demand and if an initial payment factor can be established, payments may begin to be processed. After the application period, FSA will determine a final payment factor, if applicable, to be applied to the gross ELRP 2023 and 2024 FW payment calculation described above to ensure payments do not exceed the funding authorized by the Act. The final payment factor will be announced in a USDA press release.

As required by the Act, ELRP 2023 and 2024 FW is subject to payment limitations consistent with 7 CFR 760.1507, as in effect on December 21, 2024. Separate payment limitations apply to each program year (2023 and 2024). For payment limitation purposes, payments under ELRP 2023 and 2024 FW and the previous ELRP 2023 and 2024 will be combined for each program year, consistent with the combined payment limitation used for each program year of the Emergency Relief Program (ERP) Phase 1 and Phase 2, ELRP and ELRP Phase 2, and ERP 2022 Tracks 1 and 2. Therefore, producers who have received the maximum payment amount for a program year under ELRP 2023 and 2024, based on their applicable payment limitation, will not be eligible to receive an additional payment under ELRP 2023 and 2024 FW for the same program year.

The payment limitation is determined by the person's or legal entity's average adjusted gross farm income. Specifically, a person or legal entity, other than a joint venture or general partnership, cannot receive, directly or indirectly, more than $125,000 for each program year if their average adjusted gross farm income is less than 75 percent of their average adjusted gross income (AGI) for the applicable base period. If at least 75 percent of the person or legal entity's average AGI is average adjusted gross farm income and the participant provides the required certification and documentation, as discussed below, the person or legal entity, other than a joint venture or general partnership, is eligible to receive, directly or indirectly, up to $250,000 for each program year.

Average adjusted gross farm income includes income derived from farming, ranching, and forestry operations, which has the same meaning for ELRP 2023 and 2024 FW as in other recent FSA programs such as ELRP 2023 and 2024, the Supplemental Disaster Relief Program (SDRP), ERP, ERP 2022, ELRP, and ELRP 2022. If the average adjusted gross farm income derived from the items listed in the definition of “income derived from farming, ranching, and forestry operations” (7 CFR 760.2102) is at least 66.66 percent of the average adjusted gross income of the person or legal entity, then the average adjusted gross farm income may also take into consideration income or benefits derived from the sale, trade, or other disposition of equipment to conduct farm, ranch, or forestry operations, and the provision of production inputs and production services to farmers, ranchers, foresters, and farm operations. Inclusion of those items and benefits in this manner was first introduced by section 1604 of the Food Conservation and Energy Act of 2008 (Pub. L. 110-234), which amended section 1001D of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171). This provision has been applied in other recent FSA and Commodity Credit Corporation programs that use a producer's average adjusted gross farm income for payment eligibility or payment limitation purposes.

As provided in 7 CFR 1400.105, a payment made to a legal entity will be attributed to those members who have a direct or indirect ownership interest in the legal entity unless the payment to the legal entity has been reduced by the proportionate ownership interest of the member due to that member's ineligibility. As in other FSA programs, attribution of payments made to legal entities will be tracked through four levels of ownership as follows:

• First level of ownership—any payment made to a legal entity that is owned in whole or in part by a person will be attributed to the person in an amount that represents the direct ownership interest in the first level or payment legal entity;  8

• Second level of ownership—any payment made to a first-level legal entity that is owned in whole or in part by another legal entity (referred to as a second-level legal entity) will be attributed to the second-level legal entity in proportion to the ownership of the second-level legal entity in the first-level legal entity; if the second-level legal entity is owned in whole or in part by a person, the amount of the payment made to the first-level legal entity will be attributed to the person in the amount that represents the indirect ownership in the first-level legal entity by the person;

• Third and fourth levels of ownership—except as provided in the second level of ownership bullet above and in the fourth level of ownership bullet below, any payments made to a legal entity at the third and fourth levels of ownership will be attributed in the same manner as specified in the second level of ownership bullet above; and

• Fourth level of ownership—if the fourth level of ownership is that of a legal entity and not that of a person, a reduction in payment will be applied to the first-level or payment legal entity in the amount that represents the indirect ownership in the first level or payment legal entity by the fourth-level legal entity.

If an individual or legal entity is not eligible to receive ELRP 2023 and 2024 FW payments due to the individual or legal entity failing to satisfy payment eligibility provisions, the payment made either directly or indirectly to the individual or legal entity will be reduced to zero. The amount of the reduction for the direct payment to the producer will be commensurate with the direct or indirect ownership interest of the ineligible individual or ineligible legal entity.

Like other programs administered by FSA, payments made to an Indian Tribe or Tribal organization, as defined in section 4(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304), will not be subject to payment limitation.

Payments made directly or indirectly to a person who is a minor child will not be combined with the earnings of the minor's parent or legal guardian.

ELRP 2023 and 2024 was announced on May 29, 2025 (90 FR 22614). This rule amends § 760.2004 to provide that October 31, 2025 is the final date for a producer to have an approved LFP application on file for the 2023 or 2024 program year to receive an ELRP 2023 and 2024 payment, and all payment eligibility forms must be submitted to FSA by November 2, 2026. It also amends the payment limitation provisions of ELRP 2023 and 2024 in 760.2006(a). As described above, payments will be combined for payment limitation purposes for ELRP 2023 and 2024 and ELRP 2023 and 2024 FW.

The Administrative Procedure Act (APA, 5 U.S.C. 553(a)(2)) provides that the notice and comment and 30-day delay in the effective date provisions do not apply when the rule involves specified actions, including matters relating to benefits or contracts. This rule governs disaster assistance payments to agricultural producers and therefore falls within the benefits exemption.

This rule is exempt from the regulatory analysis requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) because it involves matters relating to benefits. The requirements for the regulatory flexibility analysis in 5 U.S.C. 603 and 604 are specifically tied to the requirement for a proposed rule by section 553 or any other law; in addition, the definition of rule in 5 U.S.C. 601 is tied to the publication of a proposed rule.

The Office of Management and Budget (OMB) found this rule meets the criteria in 5 U.S.C. 804(2) of the Congressional Review Act (CRA), which would ordinarily necessitate delaying its effective date for 60 days (5 U.S.C. 801(a)(3)(A)). However, the CRA, at 5 U.S.C. 808(2) allows an agency to make such regulations effective immediately if the agency finds there is good cause to do so. USDA has determined that such good cause exists here. The beneficiaries of this rule are livestock producers who have incurred losses as a result of increased supplemental feed costs due to qualifying floods and qualifying wildfires in calendar years 2023 and 2024, and this assistance is necessary to help those producers sustain their normal business operations. To mitigate further harm to livestock producers for losses due to qualifying events that were beyond their control, USDA finds that notice and public procedure are contrary to the public interest. Therefore, USDA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review. Accordingly, this rule is effective upon publication in the Federal Register .

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 14192 “Unleashing Prosperity Through Deregulation” announced the Administration policy to significantly reduce the private expenditures required to comply with Federal regulations to secure America's economic prosperity and national security and the highest possible quality of life for each citizen and to alleviate unnecessary regulatory burdens placed on the American people. In line with the Executive Order requirements, the Agency chose this regulatory approach, which uses monthly feed costs and conversion rates previously established for LFP and does not require documentation of qualifying disaster events in certain counties identified by the Deputy Administrator, to maximize benefits and minimize burden on American producers. The requirements in Executive Orders 12866 and 13563 for the analysis of costs and benefits apply to rules that are determined to be significant or economically significant. This rule is not an E.O. 14192 regulatory action because it does not impose any more than de minimis regulatory costs.

The Office of Management and Budget (OMB) designated this rule as economically significant under Executive Order 12866 section 3(f)1 and therefore, OMB has reviewed this rule. The costs and benefits of this rule are summarized below. The full CBA is available on regulations.gov .

ELRP 2023 and 2024 FW compensates eligible livestock producers in qualifying disaster-affected areas who faced increased supplemental feed costs due to degraded forage conditions from qualifying flood, or qualifying wildfire on non-federally managed land, in 2023 and 2024. To ensure rapid assistance, payments will be calculated based on a simplified formula: eligible producers will be compensated for the equivalent of 60 percent of 1 month of the calculated monthly feed costs for the producer's livestock inventories for a qualifying wildfire and 3 months of the calculated monthly feed costs for a qualifying flood. The monthly feed costs are calculated based on the kind, type, and weight class, if applicable, for the livestock at the time of the qualifying event using the same monthly feed cost calculation used for LFP. Payments will be issued after the program application period deadline, subject to adjustment using a payment factor to keep total costs within the available funding.

Estimated ELRP 2023 and 2024 FW costs total $2.45 billion before payment factoring: about $1.01 billion for 2023 floods, $1.08 billion for 2024 floods, $17 million for 2023 wildfires, and $120 million for 2024 wildfires. In addition, the sum of those numbers is increased by 10 percent to account for livestock in counties without formal Secretarial, Presidential, or APLN Disaster Designations that may have experienced a qualifying disaster event and to account for all other eligible animals. Payments are expected to be factored as estimated program demand is anticipated to exceed available funds. The majority of payments are expected to be made in FY 2026.

The environmental impacts have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347) and the USDA regulation for compliance with NEPA (7 CFR part 1b).

The purpose of ELRP 2023 and 2024 Flood and Wildfire is to provide assistance to eligible livestock producers for losses incurred due to increased supplemental feed costs from a qualifying flood or qualifying wildfire in calendar year 2023 and 2024. The limited discretionary aspects of this program do not have the potential to impact the human environment as they are administrative. Accordingly, these discretionary aspects are covered by the FSA Categorical Exclusions specified in § 1b.4(c)(16)(viii) that apply to individual farm participation in FSA programs where no ground disturbance or change in land use occurs as a result of the proposed action or participation, and § 1b.(c)(16)(ix) that applies to safety net programs.

No Extraordinary Circumstances (§ 1b.3(f)) exist because these are administrative payment programs. As such, the implementation of and participation in ELRP 2023 and 2024 Flood and Wildfire do not constitute major Federal actions that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, FSA will not prepare an environmental assessment or environmental impact statement for this action and, consistent with § 1b.3(g), this document serves as the programmatic finding of applicability and no extraordinary circumstance (FANEC) for this Federal action.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a Government-to-Government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

USDA has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have Tribal implications that required Tribal consultation at this time. If a Tribe requests consultation, the USDA Farm Service Agency will work with the Office of Tribal Relations to ensure meaningful consultation is provided.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions of State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320), requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. The information collection request has been approved by OMB under the control number of 0503-0028; Expiration Date: 10/31/2027. FSA will issue payments to producers using the following forms: CCC-901, CCC-902E, CCC-902I, AD-1026, and FSA-510. In addition, for the information collection under 0503-0028; Expiration Date: 10/31/2027, the agency is seeking to use FSA-970 with this data collection. The AD-1026 is exempt. 9 The FSA-970 is the only new data collection activity associated with this request. The total annual burden hours for this information collection is 240,665. See table below for the breakout. This final rule is a one-time announcement of ELRP 2023 and 2024 FW Federal financial assistance funding.

For Further Information Contact: Requests for additional information or copies of this information collection should be directed to Kathy Sayers, Farm Service Agency, U.S. Department of Agriculture, via email to Kathy.Sayers@usda.gov .

Title: Emergency Livestock Relief Program (ELRP) 2023 and 2024 Flood and Wildfire (FW).

Form Numbers: CCC-901, CCC-902E, CCC-902I, FSA-510, FSA-970, and AD-1026.

OMB Number: 0503-0028.

Expiration Date: 10/31/2027.

Type of Request: Revision to Generic Information Collection.

Abstract: As authorized by Section 2102 of Division B of Title I of the American Relief Act, 2025 (“the Act”; Pub. L. 118-158), FSA is administering ELRP 2023 and 2024 Flood and Wildfire (FW) to assist eligible livestock producers who suffered losses due to increased supplemental feed costs due to a qualifying flood or qualifying wildfire occurring in calendar years 2023 and 2024. ELRP 2023 and 2024 FW will use approximately $1 billion in funds. Due to limited funding, payments may be factored.

Livestock producers who experienced increased supplemental feed costs due to a qualifying flood or qualifying wildfire in calendar years 2023 or 2024 are required to submit a FSA-970, ELRP 2023 and 2024 FW Application, for program years 2023, 2024, or both if applicable by the program application period deadline of October 31, 2025. Eligible livestock producers may receive payment for one or both years. Applicants will also need to provide documentation to support the livestock inventories reported on the application, along with evidence that a qualifying flood or qualifying wildfire impacted their livestock, as applicable. For contract growers, a copy of their grower agreement must be submitted with their application. If the livestock producer's operation is not established in FSA's system of farm records for the physical location for which they are applying for assistance, they must supply FSA a deed, lease, or other forms of verification to add them to the land record. Other forms required are the CCC-902, Farm Operating Plan, for an individual or legal entity as provided in 7 CFR part 1400; CCC-901, Member Information for Legal Entities, if applicable; AD-1026, Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification, for the participant and applicable affiliates; and FSA-510, Request for an Exception to the $125,000 Payment Limitation for Certain Programs, for participants and members of legal entities to be eligible for the increased payment limitation of $250,000, as applicable.

FSA will calculate payments either during the application period if program demand can be determined or after the application period. The eligibility criteria applicable to LFP also apply to ELRP 2023 and 2024 FW, excluding the LFP average adjusted gross income (AGI) limitation.

Affected Public: Farms or businesses for profit.

Estimated Number Respondents: 396,195.

Estimated Number of Responses per Respondent: 2.70356012.

Estimated Number of Total Annual Responses per Respondent: 1,071,137.

Estimated Time per Respondent: .2246816 hours.

Estimated Total Annual Burden on Respondents: 240,665 burden hours.

There are 396,195 respondents anticipated for this data collection. The “Number of Respondents” column is not a sum, it represents the same respondents participating in different activities for this data collection; therefore, these respondents are not double counted.

Once this request has been approved by OMB, the agency plans to publish another notice in the Federal Register announcing OMB approval. There is no recordkeeping or third-party burden on the respondents.

FSA is committed to complying with the E-Government Act of 2002, 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.

The titles and numbers of the Federal assistance programs, as found in the Assistance Listing, to which this document applies are 10.986—Emergency Livestock Relief Program 2023 and 2024, and 10.987—Emergency Livestock Relief Program (ELRP) 2023 and 2024 Flood and Wildfire (FW).

For the reasons discussed above, the Farm Service Agency amends 7 CFR part 760 as follows:

This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 927, as amended (7 CFR part 927), regulating the handling of pears grown in Oregon and Washington. Part 927 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of growers and handlers of pears operating within the area of production, and a public member.

The Agricultural Marketing Service (AMS) is issuing this final rule in conformance with Executive Order 12866, as amended by Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires federal agencies to consider whether their rulemaking actions would have tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.

This final rule has been reviewed under Executive Order 12988—Civil Justice Reform. Under the Order now in effect, Oregon and Washington pear handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate will be applicable to all assessable Oregon and Washington fresh pears for the 2024-2025 fiscal period, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act (7 U.S.C 608c(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule increases the assessment rate for Oregon and Washington fresh “summer/fall” pears and “winter” pears handled under the Order from $0.468 per 44-pound standard box or equivalent, the rate that was established for the 2021-2022 and subsequent fiscal periods, to $0.516 per 44-pound standard box or equivalent for the 2024-2025 and subsequent fiscal periods.

Sections 927.40 and 927.41 of the Order authorize the Committee, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are familiar with the Committee's needs and with the costs of goods and services in their local area and are able to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.

For the 2021-2022 and subsequent fiscal periods, the Committee recommended, and AMS approved, an assessment rate of $0.468 per 44-pound standard box or equivalent of assessable fresh “summer/fall” pears and “winter” pears within the production area. That rate continues in effect from fiscal period to fiscal period until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS.

The Committee met on May 29, 2024, and recommended, with a vote of 10 in favor, with 1 opposed, and 1 abstention, 2024-2025 fiscal period expenditures of $8,167,642 and an assessment rate of $0.516 per 44-pound standard box or equivalent of fresh “summer/fall” and “winter” pears for the 2024-2025 fiscal period. In comparison, last year's budgeted expenditures were $8,364,570. The member voting in opposition did not support any increase to the assessment rate. The member who abstained did not provide a justification. The new assessment rate of $0.516 per 44-pound standard box or equivalent is $0.048 higher than the rate currently in effect. The Committee recommended increasing the assessment rate due to a smaller estimated 2024 crop and to provide adequate income to cover the Committee's budgeted expenses for the 2024-2025 fiscal period without needing to draw from the Committee's financial reserves. The Committee projects handler receipts of 16,000,000 44-pound standard boxes or equivalent of assessable fresh pears for the 2024-2025 fiscal period, down from the approximately 18,000,000 44-pound standard boxes or equivalent that the Committee initially projected for the 2023-2024 fiscal period.

The major expenditures recommended by the Committee for the 2024-2025 fiscal period include $6,928,000 for promotion and paid advertising, $621,148 for production research and market development, $435,321 for contracted administration and Committee expenses, and $183,173 for industry development. For comparison, budgeted expenses for these items during the 2023-2024 fiscal period were $6,930,000, $843,373, $415,238, and $175,959, respectively.

The Committee derived the recommended assessment rate by considering anticipated expenses, the estimated volume of assessable fresh pears, and the amount of funds available in the authorized reserve. The estimated 16,000,000 44-pound standard boxes or equivalent of assessable fresh “summer/fall” and “winter” pears is expected to generate $8,256,000 in assessment revenue (16,000,000 44-pound standard boxes or equivalent multiplied by the $0.516 assessment rate). The income generated from handler assessments, along with $3,000 expected in interest income, is expected to be sufficient to meet the Committee's estimated program expenditures of $8,167,642 without needing to draw from the Committee's financial reserves. Funds available in the financial reserve (currently about $716,365) will be kept below the maximum permitted by the Order (approximately one fiscal period's expenses as authorized in § 927.42).

The assessment rate established herein will continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other available information. Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or AMS. Committee meetings are open to the public and interested persons may express their views at these meetings. AMS will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2024-2025 fiscal period budget, and those for subsequent fiscal periods, will be reviewed and, as appropriate, approved by AMS.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 27 handlers subject to regulation under the Order and approximately 700 growers of fresh pears in the production area. At the time this analysis was prepared, the Small Business Administration (SBA) defined small agricultural service firms as those having annual receipts of equal to or less than $34,000,000 (North American Industry Classification System (NAICS) code 115114, Postharvest Crop Activities), and small agricultural producers of fresh pears as those having annual receipts of equal to or less than $3,500,000 (NAICS code 111339, Other Noncitrus Fruit Farming) (13 CFR 121.201).

Data from USDA's National Agricultural Statistics Service (NASS), indicates a three-year average grower price for Oregon and Washington fresh pears of approximately $11.92 per 44-pound standard box or equivalent for the most recent seasons for which data is available (2020-2021 through 2022-2023 fiscal periods). Committee records indicate average annual fresh pear shipments of 15,246,095 44-pound standard boxes or equivalent over the same period. Based on these data, the average total annual value of assessable fresh pears over this period would have been approximately $181,733,452 (15,246,095 44-pound standard boxes or equivalent multiplied by $11.92 per box). Dividing that figure by the number of fresh pear growers (700) yields an average annual crop value per grower of approximately $259,619. This figure is well below the SBA small agricultural producer threshold of $3,500,000 in annual sales. This provides evidence that a large majority of pear growers would likely be considered small agricultural producers according to the SBA definition.

According to USDA Market News data, the most recent shipping point price for fresh pears out of the Yakima Valley and Wenatchee District ranged between $36.25 and $45.05 per 44-pound standard box or equivalent. Using this data to assume an average shipping point price of $40.65 for all Oregon and Washington fresh pears yields a total crop value of approximately $619,753,762 (15,246,095 44-pound standard boxes multiplied by $40.65 per box). Dividing this figure by 27 regulated handlers yields estimated average annual handler receipts of approximately $22,953,843. Therefore, according to the above data and assuming a normal distribution of receipts among handlers, the majority of growers and handlers of Oregon and Washington fresh pears may be classified as small entities.

As noted above, the average price received by growers in the previous three crop years was $11.92 per 44-pound standard box or equivalent of assessable fresh “summer/fall” pears and “winter” pears. Given the Committee-estimated production of 16,000,000 44-pound standard boxes or equivalent of assessable fresh pears for the 2024-2025 crop year, total grower revenue is estimated to be $190,720,000. Total assessment revenue is expected to be $8,256,000 (16,000,000 boxes multiplied by $0.516 per box). Therefore, estimated assessment revenue as a percentage of total grower revenue is expected to be about 4.3 percent ($8,256,000 divided by $190,720,000 multiplied by 100).

This final rule increases the assessment rate collected from handlers for the 2024-2025 and subsequent fiscal periods from $0.468 to $0.516 per 44-pound standard box or equivalent of fresh “summer/fall” and “winter” pears. The Committee recommended 2024-2025 fiscal period expenditures of $8,167,642 and an assessment rate of $0.516 per 44-pound standard box or equivalent of assessable fresh “summer/fall” and “winter” pears handled. The assessment rate of $0.516 is $0.048 higher than the rate currently in effect. The Committee expects the industry to handle 16,000,000 44-pound standard boxes or equivalent of assessable fresh “summer/fall” pears and “winter” pears during the 2024-2025 fiscal period. Thus, the $0.516 per 44-pound standard box or equivalent assessment rate is expected to provide $8,256,000 in assessment income (16,000,000 44-pound standard boxes or equivalent multiplied by the $0.516 assessment rate). The income generated from handler assessments, along with $3,000 expected in interest income, should be sufficient to meet budgeted expenditures for the 2024-2025 fiscal period.

The major expenditures recommended by the Committee for the 2024-2025 fiscal period include $6,928,000 for promotion and paid advertising, $621,148 for production research and market development, $435,321 for contracted administration and Committee expenses, and $183,173 for industry development. For comparison, budgeted expenses for these items during the 2023-2024 fiscal period were $6,930,000, $843,373, $415,238, and $175,959, respectively.

The Committee recommended increasing the assessment rate to provide adequate income to cover the Committee's budgeted expenses for the 2024-2025 fiscal period without needing to draw from the Committee's financial reserves. The Committee projects handler receipts of 16,000,000 44-pound standard boxes or equivalent of assessable fresh pears for the 2024-2025 fiscal period, down from the estimated 18,000,000 44-pound standard boxes or equivalent that the Committee initially projected for the 2023-2024 fiscal period.

Prior to arriving at this budget and assessment rate recommendation, the Committee discussed various alternatives, including maintaining the current assessment rate of $0.468 per 44-pound standard box or equivalent of assessable fresh pears and increasing the assessment rate by a different amount. However, the Committee determined that the recommended assessment rate would be necessary to adequately fund budgeted expenses for the 2024-2025 fiscal period without needing to draw from the Committee's financial reserves. Consequently, those alternatives were rejected.

This action increases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to growers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.

The Committee's meetings are widely publicized throughout the Oregon and Washington pear industry and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the May 29, 2024, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons were invited to submit comments on this rule, including the regulatory and information collection impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0189, Fruit Crops. No changes in those requirements will be necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large Oregon and Washington pear handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying 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.

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A proposed rule concerning this action was published in the Federal Register on October 24, 2024 (89 FR 84828). A 30-day comment period ending November 25, 2024, was provided for interested persons to respond to the proposal. AMS received two comments during the comment period. One commenter supported the increased assessment rate, and the other commenter did not address the merits of the proposed rule. Accordingly, AMS made no changes to the rule, as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses . Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, AMS has determined that this rule is consistent with and will effectuate the declared policy of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 927 as follows:

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2025-2278; Project Identifier MCAI-2025-01369-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, 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 final rule 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 final rule.

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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Camille Seay, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5149; email: Camille.L.Seay@faa.gov. Any commentary that the FAA receives which 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 2025-0180, dated August 15, 2025 (EASA AD 2025- 0180) (also referred to as the MCAI), to correct an unsafe condition for all Model A350-941 and -1041 airplanes. The MCAI states that an occurrence was reported where the decorative cover to an evacuation slide detached in flight, with the slide pack found resting unsecured on the cabin floor. The root cause was attributed to an incorrect installation procedure, potentially leading to installation errors. This condition, if not detected and corrected, could result in the detachment of the slide pack, possibly preventing timely evacuation in the case of an emergency, leading to injury to airplane occupants.

The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2025-2278.

The FAA reviewed EASA AD 2025-0180, which specifies procedures for a visual inspection of all slide upper latch assemblies to ensure that they are fully engaged in the aircraft door fitting and locked properly and applicable corrective actions. Corrective actions include locking the slide upper latch if it is not fully locked, doing a visual inspection of the slide condition, correctly installing the slide, and replacing the slide.

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.

EASA AD 2025-0180 references Airbus Alert Operators Transmission (AOT) A25P033-25, dated June 18, 2025, for accomplishing the visual inspection of the affected part and corrective actions. The FAA clarifies that the procedures in paragraph 5.5 of the AOT are RC steps. Although paragraph 5.5 of the AOT is not marked as an RC step, the third note in paragraph 5 of the AOT specifies that paragraph 5.5, in addition to other paragraphs, must be done to comply with the AD.

These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2025-0180 described previously, except for any differences identified as exceptions in the regulatory text of this 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, EASA AD 2025-0180 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2025-0180 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2025-0180 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 2025-0180. Material required by EASA AD 2025-0180 for compliance will be available at regulations.gov under Docket No. FAA-2025-2278 after this AD is published.

Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because incorrect installation of the slide pack could lead to slide pack detachment that, in the event of an emergency, could prevent timely evacuation and result in injury to airplane occupants. Additionally, the compliance time in this AD is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 38 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2023-25-09, Amendment 39-22636 (89 FR 242, January 3, 2024) (AD 2023-25-09). AD 2023-25-09 applied to all Airbus SAS Model A318, A319, A320, A321, A330-200, A330-200 Freighter, A330-300, A330-800, A330-900, A340-200, A340-300, A340-500, and A340-600 series airplanes. AD 2023-25-09 required replacing affected SLGOCs and prohibiting the installation of affected SLGOCs. The FAA issued AD 2023-25-09 to address missing heat treatment of the actuation pin of the SLGOC, which could cause its jamming, with consequent failure of oxygen flow activation. This condition, if not corrected, could prevent supplemental oxygen supply in case of decompression in the cabin/lavatory, possibly resulting in injury to lavatory occupants.

The NPRM was published in the Federal Register on June 17, 2025, (90 FR 25520). The NPRM was prompted by AD 2024-0197, dated October 18, 2024 (EASA AD 2024-0197) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states a new Model, A321-253NY, has been certified, on which affected parts could be installed in service.

In the NPRM, the FAA proposed to continue to require the actions in AD 2023-25-09 and to add airplanes to the applicability, as specified in EASA AD 2024-0197. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2025-1104.

The FAA received a comment from the Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

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

The FAA reviewed EASA AD 2024-0197, which specifies procedures for replacing affected SLGOCs and prohibiting the installation of affected SLGOCs. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 2,018 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

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

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

Background

On October 15, 2024, the Commission published in the Federal Register final guidance for designated contract markets (“DCMs”) regarding the listing of voluntary carbon credit (“VCC”) derivatives contracts. 1 Specifically, the final guidance outlined factors for consideration by DCMs when addressing certain provisions of the Commodity Exchange Act (“CEA”), and CFTC regulations thereunder, that are relevant to the design and listing for trading of VCC derivatives contracts (the “VCC Guidance”). The VCC Guidance was intended to assist DCMs with understanding how the Commission's existing regulatory framework applies to VCC derivatives contracts. The VCC Guidance was also intended to help DCMs advance the standardization of such products in a manner that promotes transparency and liquidity. 2

The Commission is withdrawing the VCC Guidance as section 5c of the CEA and Commission regulations in parts 38 and 40 already set forth the regulatory framework for listing VCC derivatives contracts.

After careful review, the Commission believes that the VCC Guidance provides limited value to DCMs when listing VCC derivatives contracts. The VCC Guidance, which is explicitly non-binding, 3 does not create new compliance obligations or product listing standards for DCMs. As such, the VCC Guidance has not provided DCMs with any new regulatory structure or standards that resulted in the advancement of market transparency or liquidity for VCC derivatives contracts.

Further, VCC contracts should be evaluated in the same manner as any other derivatives contract listed on a DCM. The Commission's review of VCC derivatives contracts is consistent with its well-established approach for reviewing all derivatives contracts as set out in parts 38 and 40 of the Commission's regulations. As a result of issuing the VCC Guidance, the Commission believes that it placed a disproportionate focus on a particular class of derivative contracts, which could lead to confusion and inconsistencies in DCMs' implementation of the CEA and Commission regulations, as well as the Commission's application of the product listing regulatory frameworks in parts 38 and 40 of its regulations. A uniform regulatory framework for listing contracts on a DCM, as already established in the Commission's regulations, best serves market transparency, expectations, fairness, and integrity.

The Office of Management and Budget has determined that this action is not a significant regulatory action as defined in Executive Order 12866, as amended, and therefore it was not subject to Executive Order 12866 review.

Pursuant to the Congressional Review Act, 4 the Office of Information and Regulatory Affairs has designated this rule as not a “major rule,” as defined by 5 U.S.C. 804(2).

On January 20, 2025, the President signed Executive Order (E.O.) 14172, Restoring Names that Honor American Greatness. This E.O. directs the Secretary of the Interior (Secretary) to take all appropriate actions to rename as the “Gulf of America” the U.S. Continental Shelf area bounded on the northeast, north, and northwest by the States of Texas, Louisiana, Mississippi, Alabama, and Florida and extending to the seaward boundary with Mexico and Cuba in the area formerly named as the Gulf of Mexico. BSEE is removing all references to the Gulf of Mexico from its regulations. BSEE is updating all its references in the Code of Federal Regulations (CFR) to the Gulf of America or (GOA), consistent with 43 U.S.C. 364 through 364f. (a). BSEE is promulgating this final rule to implement the directive of E.O. 14172 and for good cause finds that a proposed rule is unnecessary pursuant to 5 U.S.C. 553(b)(B). Public notice and comment is unnecessary because this rule makes minor technical amendments to conform the language of the regulations with the directive of E.O. 14172. Updating the name for the Gulf of America region imposes no substantive changes and does not impact the public's rights or obligations. Accordingly, this final rule is exempt from public notice and comment rulemaking requirements under 5 U.S.C. 553(b)(B).

The area formerly known as the Gulf of Mexico has long been an integral asset to our once burgeoning Nation and has remained an indelible part of America. The Gulf was a crucial artery for America's early trade and global commerce. It is the largest gulf in the world, and the United States coastline along this remarkable body of water spans over 1,700 miles and contains nearly 160 million acres. Its natural resources and wildlife remain central to America's economy today. The bountiful geology of this basin has made it one of the most prodigious oil and gas regions in the world, providing roughly 14 percent of our Nation's crude-oil production and an abundance of natural gas, and consistently driving new and innovative technologies that have allowed us to tap into some of the deepest and richest oil reservoirs in the world. The Gulf is also home to vibrant American fisheries teeming with snapper, shrimp, grouper, stone crab, and other species, and it is recognized as one of the most productive fisheries in the world, with the second largest volume of commercial fishing landings by region in the Nation, contributing millions of dollars to local American economies. The Gulf is also a favorite destination for American tourism and recreation activities. Further, the Gulf is a vital region for the multi-billion-dollar U.S. maritime industry, providing some of the largest and most impressive ports in the world. The Gulf will continue to play a pivotal role in shaping America's future and the global economy, and in recognition of this flourishing economic resource and its critical importance to our Nation's economy and its people.

E.O. 12866 provides that the OMB Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 further emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements, to the extent permitted by statute.

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. ( See 5 U.S.C. 603(a) and 604(a)). This rule is exempt from the requirement to publish a proposed rule for notice and comment pursuant to 5 U.S.C. 553(b)(B). Thus, the RFA does not apply to this rulemaking.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Does not have an annual effect on the economy of $100 million or more;

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, a takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. To the extent that State and local governments have a role in Outer Continental Shelf activities, this rule will not affect that role. Therefore, a federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(1) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(2) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department of the Interior's consultation policy, Departmental Manual Part 512 Chapters 4 and 5, and under the criteria in E.O. 13175. We have determined that this final rule has no substantial direct effects on federally recognized Indian Tribes or Alaska Native Claims Settlement Act (ANCSA) Corporations, and that consultation under the Department of the Interior's Tribal and ANCSA consultation policies is not required.

This rule does not contain information collection requirements, and a submission to the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act (NEPA) is not required because, as a regulation of an administrative nature, this rule is covered by a categorical exclusion ( see 43 CFR 46.210(i)). BSEE also determined that the rule does not implicate any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. Therefore, a detailed statement under NEPA is not required.

This rule is not a significant energy action under the definition in E.O. 13211. Therefore, a statement of energy effects is not required.

This action by the Assistant Secretary is taken herein pursuant to an existing delegation of authority.

For the reasons stated in the preamble, BSEE amends 30 CFR parts 203, 250, and 254 as follows.

The SDWA protects public health by regulating the nation's public drinking water supply, including both surface and groundwater sources. Among other things the SDWA requires the EPA to develop minimum requirements for effective State and Tribal UIC programs to prevent underground injection of fluids (such as water, wastewater, brines from oil and gas production, and carbon dioxide) from endangering underground sources of drinking water (USDWs). In general, USDWs are aquifers or parts of aquifers that supply a public water system or contain enough groundwater of sufficient quality to supply a public water system. See 40 CFR 144.3 (defining USDW).

The EPA's UIC program regulates various aspects of injection. These include technical aspects throughout the lifetime of the project from site characterization, construction, operation, and testing and monitoring through site closure, as well as permitting, site inspections, and reporting to ensure well owners and operators comply with UIC permits and regulations.

SDWA section 1421 directs the EPA to establish requirements that States, territories, and authorized Tribes must meet to be granted primary enforcement responsibility or “primacy” for a UIC program. 42 U.S.C. 300h. SDWA section 1422 provides that an applicant seeking primacy for a UIC program must demonstrate to the EPA that the applicant's proposed UIC program meets the applicable requirements promulgated by the EPA pursuant to section 1421 for protecting USDWs. 42 U.S.C. 300h-300h-1. An applicant must demonstrate, among other things, jurisdiction over underground injection and that it possesses the administrative, civil, and criminal enforcement authorities required by the EPA's implementing regulations. See 40 CFR part 145, subpart B. After the EPA approves a State for UIC program primacy, the State's UIC program may be revised with EPA approval. See 40 CFR 145.32.

The EPA evaluates each primacy application in accordance with SDWA section 1422 and the EPA's implementing regulations to determine whether the State has satisfactorily demonstrated that, after reasonable notice and public hearings, it has adopted and will implement a UIC program that meets the requirements of the SDWA regulations at 40 CFR parts 144, 145, and 146.

In this final rule, the EPA is approving Arizona's primacy application to administer the UIC program for six classes of wells (Classes I-VI) in the state. EPA's approval is based on the Agency's determination that the application meets all applicable requirements for approval under SDWA section 1422 and the EPA's implementing regulations and that the State is capable of administering a UIC program in a manner consistent with the SDWA and applicable UIC regulations. The EPA will remain the permitting authority for all UIC well classes on Indian land within the State, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program. The EPA will oversee Arizona's administration of the State's UIC program as authorized under the SDWA.

The UIC program consists of six classes of injection wells. Each well class is based on the type and depth of the injection activity and the potential for that injection activity to result in the endangerment of a USDW. Class I wells are used to inject wastes into deep isolated rock formations. Class II wells are used to inject fluids related to oil and natural gas production, primarily to enhance recovery of oil and gas or to dispose into rock formations wastewater associated with oil or gas production. Class III wells are used to inject fluids to dissolve and extract minerals. Class IV wells are used to inject hazardous and radioactive wastes into or above USDWs and are only allowed as part of an EPA- or State-authorized groundwater clean-up action. Class V wells are used to inject non-hazardous fluids underground, typically into or above a USDW, and range from simple shallow wells to complex experimental injection technologies. Most Class V wells are “low-tech”, depending on gravity to drain fluids directly below the land surface and include dry wells, cesspools, and septic system leach fields. Class VI wells are used to inject carbon dioxide into deep rock formations for the purpose of long-term underground storage, also known as geologic sequestration. 40 CFR 144.6.

The UIC program provides multiple safeguards that work together to protect USDWs and human health from injection activities. To operate an injection well, operators must receive authorization by permit, or by rule in certain circumstances, through the UIC program. Operators must obtain a permit that authorizes injection in accordance with specific statutory and regulatory conditions. A draft of each permit is made available for public comment before the decision is made whether to issue a final permit. Qualifying Class V wells that meet certain requirements can be authorized by rule after the operator submits required information describing the injection activity, location, operating status, and operator contact information. All wells must be operated according to applicable UIC program requirements for the injection activity.

The statutory authority for this final rule is SDWA sections 1422 and 1450, 42 U.S.C. 300h-1 and 300j-9.

SDWA section 1421 requires the EPA promulgate requirements for effective State UIC programs to prevent underground injection activities that endanger USDWs. 42 U.S.C. 300h. SDWA section 1422 requires that applicants seeking primacy approval demonstrate that they have adopted (after notice and public hearing) and will implement a UIC program which meets the requirements that the EPA promulgated under SDWA section 1421. 42 U.S.C. 300h-1.

The EPA has promulgated regulations setting forth the applicable procedures and substantive requirements for applicants seeking primacy approval for UIC programs under SDWA section 1422. The regulations in 40 CFR part 144 outline general program requirements that States must meet to obtain primacy. The regulations in 40 CFR part 145 specify the procedures the EPA will follow in approving, revising, and withdrawing UIC programs and outlines the elements and provisions that an applicant must include in its application for primacy. 40 CFR part 145 also includes requirements for State UIC permitting programs (by reference to certain provisions of 40 CFR parts 124 and 144), compliance evaluation programs, enforcement authority, and the sharing of information between the EPA and the State. The regulations in 40 CFR part 146 contain the technical criteria and standards applicable to each well class.

On February 16, 2024, Arizona applied to the EPA under SDWA section 1422 to administer a UIC program for Class I-VI injection wells located within the State, except those located on Indian lands. Arizona's requirements for UIC wells would be codified and implemented in lieu of the Federal UIC requirements currently in effect in the State. See 40 CFR part 147, subpart D. Arizona's UIC program primacy application includes a letter from the Governor requesting UIC program primacy approval, a complete description of the State's UIC program, an Attorney General's statement, copies of all applicable State statutes and regulations, a summary and the results of the State's public-participation activities, and a Memorandum of Agreement (MOA) between Arizona and the EPA's Region 9 Office. The EPA reviewed the application for completeness and performed a technical and legal evaluation of the application materials to assess and confirm that Arizona's proposed UIC program meets Federal requirements.

In order to have State regulatory authority in place prior to seeking EPA approval of its UIC program, ADEQ conducted stakeholder outreach and engagement to inform the general public, the regulated community, and Tribes of ADEQ's rule development process and to explain and present early drafts of the applicable State UIC rules. ADEQ held nine general stakeholder and three Tribal consultation events from December 2017 to October 2019. ADEQ received and considered hundreds of comments from the regulated community and other stakeholders on these early drafts of the State rules.

On October 1, 2021, ADEQ filed a notice of imminent SDWA-UIC rulemaking with the Arizona Secretary of State asserting its intent to adopt the UIC program. On January 7, 2022, ADEQ filed three notices of proposed rulemaking for licensing time frames and UIC program rules and fees, which were followed by a comment period of more than 30 days. ADEQ held a public hearing on February 14, 2022, the final day of the written comment period. ADEQ received a total of 77 discrete written and oral comments on the proposed rules. Commenters shared concerns on licensing time frames, fees, drywells, underground storage or recharge facilities, UIC septic regulation, program scope or jurisdiction, and Tribal consultation, among other topics. ADEQ considered all the comments and adjusted the proposed rules as summarized in the responsiveness summary. The Arizona UIC regulations became effective on September 6, 2022.

On October 15, 2023, ADEQ published notice in two Arizona newspapers, through its website, and by email distribution to stakeholders, seeking public comment on the State's proposed application for primacy for the UIC program. ADEQ held a public comment period from October 15, 2023, to November 20, 2023, on the State's intent to seek primacy. ADEQ also held a virtual public hearing on November 20, 2023. ADEQ received 1 oral comment and 21 discrete written comments. The commenters shared concerns with the primacy application, including language regarding aquifer exemptions, permit transition upon primacy, Federal UIC policies, permit templates, regulatory differences between the State's Aquifer Protection Program and the SDWA UIC program, and minor editorial comments such as incorrect cross references. These comments were considered and addressed by ADEQ as summarized in the responsiveness summary and did not result in any significant changes to the proposed primacy application.

Documentation of Arizona's public participation activities, including comments received and responses by ADEQ, can be found in EPA Docket ID No. EPA-HQ-OW-2025-0087.

The EPA evaluates primacy applications in accordance with SDWA section 1422 and the agency's implementing regulations to determine whether an applicant has satisfactorily demonstrated that it has adopted, after reasonable notice and public hearings, and will implement, a UIC program that meets applicable regulatory requirements. 42 U.S.C. 300h-1(b)(1)(A)(i). The EPA conducted a comprehensive technical and legal evaluation of Arizona's primacy application to determine whether the State's UIC program—including statutes and regulations, program description, Attorney General statement, MOA, and documentation of public participation—demonstrates that Arizona has met the requirements of SDWA section 1422. Upon review, the EPA determined that Arizona has adopted and will implement a UIC program that meets the requirements of 40 CFR parts 144, 145, and 146.

The EPA evaluated Arizona's UIC program description for consistency with 40 CFR 145.23, which lists all the information that must be submitted as part of the program description. The EPA's evaluation of the UIC program description included reviewing the scope, structure, coverage, and processes of the State's program. The EPA assessed Arizona's permitting, administrative, and judicial review procedures, as well as the State's permit application, reporting, and manifest forms. The EPA also reviewed the State's compliance evaluation program and enforcement authorities and the State's demonstration that its UIC program will have adequate in-house staff or access to contractor support for technical areas including site characterization, modeling, well construction and testing, financial responsibility, and regulatory and risk analysis.

The EPA evaluated Arizona's Attorney General's statement for consistency with 40 CFR 145.24. In an Attorney General's statement, the State's top legal officer affirms that applicable statutes, regulations, and judicial decisions demonstrate adequate authority to administer the UIC program as described in the program description and consistent with the EPA's regulatory requirements for UIC programs. The EPA confirms that the Arizona Attorney General's statement certifies that Arizona's environmental audit privilege, which protects certain self-reported information, will not affect the ability of the State to meet the enforcement and information gathering requirements under the SDWA, nor will it prevent the public from obtaining information about noncompliance or prevent the public from bringing citizen suits under the SDWA.

The EPA determined that the MOA, which was duly signed by EPA Region 9 and ADEQ, meets the requirements at 40 CFR 145.25. The MOA is the central agreement setting the provisions and arrangements between the State and the EPA concerning the administration, implementation, and enforcement of the State UIC program. The EPA's evaluation includes ensuring that the MOA contains the necessary provisions pertaining to agreements on coordination, permitting, compliance monitoring, enforcement, and EPA oversight.

Arizona has demonstrated that it has the legal authority to implement all UIC permit requirements found in 40 CFR 145.11. Arizona's UIC permitting provisions, established under SDWA section 1422, meet the minimum Federal requirements in 40 CFR parts 124 and 144 through 146. The State has incorporated necessary procedures pursuant to 40 CFR 145.12 to support a robust UIC compliance evaluation program. Additionally, Arizona has the necessary administrative, civil, and criminal enforcement authorities pursuant to 40 CFR 145.13. Arizona's UIC regulations regarding permitting, inspection, operation, and monitoring meet requirements in 40 CFR parts 145 and 146. Arizona's reporting and recordkeeping requirements meet the requirements in 40 CFR 144.54 and 40 CFR part 146.

As a result of this comprehensive review, the EPA approves Arizona's primacy application based on the Agency's determination that the application meets all applicable requirements for primacy approval under SDWA section 1422 and that the State has demonstrated that it is prepared to implement its UIC program in a manner consistent with the SDWA and all applicable UIC regulations.

On February 29, 2024, the EPA Region 9 Water Division Director sent a letter via email to Arizona Tribal leaders offering an opportunity for Government-to-Government consultation on Arizona's application for primacy to administer the UIC program. On March 14, 2024, the EPA Region 9 hosted a Tribal informational meeting and listening session for Arizona's application for primacy to administer the UIC Program. One Tribe, the Navajo Nation, attended the informational meeting and followed up with a letter of support for Arizona administering the UIC program. Another Tribe, the Gila River Indian Community (GRIC), requested that the EPA meet with them separately to present and discuss the information shared at the meeting on March 14, 2024. The EPA met with GRIC representatives on March 22, 2024. GRIC asked questions about differences between the implementation and oversight of the Federal versus State UIC program, and the primacy approval process and EPA responded.

On May 19, 2025, the EPA published a proposed rulemaking in the Federal Register (90 FR 21264) to approve Arizona's application to implement a UIC program for all injection well classes within the State. The proposal established a public comment period that closed on July 3, 2025. The EPA held a public hearing on June 25, 2025, that participants could attend virtually, as well as by phone. The EPA published notice of the hearing on the EPA's website, in the Arizona Daily Star and the Arizona Republic newspapers, and sent an email notification to each of Arizona's federally recognized Tribal leaders.

During the public comment period, the EPA received eleven written comments and two oral comments on the proposal from individuals and stakeholder organizations, including GRIC, the Ground Water Protection Council, the Grand Canyon Chapter of the Sierra Club, the Consumer Energy Alliance, the American Petroleum Institute, the American Mining Association, and the Arizona Chamber of Commerce and Energy.

The EPA considered these comments in the development of this final rule. All comments are available as part of the public record and can be accessed through the EPA's docket (ID No. EPA-HQ-OW-2025-0087). Documentation of the EPA's public participation activities, including comments received and the EPA's comment response document, can also be found in the docket (ID. No. EPA-HQ-OW-2025-0087).

The EPA received comments both supporting and opposing the proposed approval of UIC program primacy for the State of Arizona, as well as some comments outside the scope of the primacy approval action.

Commenters in support of Arizona's UIC program primacy approval stated that ADEQ's UIC rules meet or exceed the EPA's UIC requirements, that ADEQ has conducted adequate outreach and engagement related to its UIC primacy application, and that the State's request is consistent with the principles of cooperative federalism outlined in the five pillars of the EPA Administrator's Powering the Great American Comeback Initiative. They also stated that Arizona's primacy application shows that the State takes program compliance and enforcement seriously. They stated that Arizona is heavily invested in protecting its drinking water sources, as shown by how Arizona water providers use Managed Aquifer Recharge (MAR)—a water management technique to store available freshwater underground and which often utilizes UIC Class V injection wells. They commented that ADEQ has a better understanding of the State and local needs, is more readily accessible to stakeholders, has intimate knowledge of historic UIC operations, has an extensive knowledge and understanding of the State's aquifers and geology, and has demonstrated a strong commitment to transparency through extensive stakeholder engagements. Lastly, commenters stated that with ADEQ's dedicated UIC staff positions, the State has the capacity for timely review and action on UIC permit applications and rule applications and further, that the State's UIC program includes licensing time frame requirements for ADEQ, which provide predictability and certainty with respect to the timing of permit decisions.

Commenters opposing Arizona's UIC program primacy approval stated concerns about vulnerable communities in low-income and rural areas as well as those on Tribal lands who may be overburdened by pollution. One commenter stated that permitting actions could impact the groundwater quality on Tribal lands and impact cultural resources located off Tribal lands. Commenters asserted that Arizona and ADEQ have been underfunded and, therefore, lack the staffing and resources needed to stand up to powerful polluters, to regulate carbon capture and storage projects safely and effectively, and to protect groundwater quality. Commenters also raised concerns related to Arizona's limited water supply and potential threats posed by UIC wells. Lastly, commenters stated concerns about ADEQ's current online tools and public information systems and questioned whether they are adequate to track and evaluate potential threats from injection wells.

Comments received outside the scope of this primacy approval action included concerns about fracking activity, the direct and indirect costs of producing and burning fossil fuels, the lack of international considerations, whether the EPA has the authority to “delegate” the UIC program to a State, and the fitness of leadership within the EPA. The EPA has noted and addressed all topics, including out-of-scope topics, in the Agency's response to comments document included in the docket (ID. No. EPA-HQ-OW-2025-0087).

The EPA is approving the State of Arizona's UIC program primacy application for regulating Class I-VI injection wells in the State, except for those located on Indian lands. This action would amend 40 CFR 147.150 and 147.151 and incorporate by reference Arizona's EPA-approved statutes and regulations that contain standards, requirements, and procedures applicable to UIC well owners or operators within the State. Any provisions incorporated by reference, as well as all permit conditions issued pursuant to such provisions, are enforceable by the EPA pursuant to SDWA section 1423, 42 U.S.C. 300h-2, and 40 CFR 147.1(e).

The EPA compiled the applicable Arizona statutes and regulations to be incorporated by reference into 40 CFR 147.150 in a document titled “Arizona SDWA § 1422 Underground Injection Control Program Statutes and Regulations to be Incorporated by Reference,” dated March 24, 2025. This compilation is publicly available in the EPA's Docket No. EPA-HQ-OW-2025-0087 for this rulemaking https://www.regulations.gov. The EPA will codify a table in 40 CFR 147.150 listing the EPA-approved Arizona Statutes and Regulations for Well Classes I-VI that will be incorporated by reference. Additionally, the EPA lists the other Arizona statutes and regulations containing standards and procedures that constitute elements of the State's approved UIC program that do not apply directly to owners or operators in the amendment to 40 CFR 147.150. In accordance with 40 CFR 147.1(c), these other statutes and regulations are not incorporated by reference.

The EPA will oversee Arizona's administration of its UIC program, including by requiring quarterly reports on instances of permittee non-compliance and annual UIC performance reports pursuant to 40 CFR 144.8. The MOA between the EPA Region 9 and ADEQ specifies that the EPA will oversee the State's administration of the UIC program on a continuing basis to assure that such administration is consistent with the program MOA, the SDWA and implementing regulations, UIC grant agreements, and other applicable requirements.

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

This action is exempt from review under Executive Order 12866, because the Office of Management and Budget (OMB) has exempted, as a category, the approval of State UIC programs.

Executive Order 14192 does not apply because actions that approve State UIC Programs are exempted from review under Executive Order 12866.

This action will not impose an information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2040-0042. Reporting or recordkeeping requirements will be based on Arizona's UIC regulations, and the State of Arizona is not subject to the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any additional burdens on small entities as this action codifies a State program already in effect and transfers primary implementation authority from the EPA to a State program with substantially the same requirements.

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any State, local, or Tribal governments or the private sector. The EPA's approval of Arizona's UIC program will not constitute a Federal mandate because there is no requirement that a State establish a UIC regulatory program and the program is a State program, rather than a Federal program.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have Tribal implications as specified in Executive Order 13175. This action contains no Federal mandates for Tribal governments and does not impose any enforceable duties on Tribal governments. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it approves a State program.

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

This rulemaking does not involve technical standards.

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

For the reasons set forth in the preamble, the EPA hereby amends 40 CFR part 147 as follows:

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

The 2025 blackspotted and rougheye rockfish TAC in the CAI/WAI of the BSAI is 298 metric tons as established by the final 2025 and 2026 harvest specifications for groundfish in the BSAI (90 FR 12640, March 18, 2025). The Administrator for the Alaska Region of NMFS has determined that the 2025 blackspotted and rougheye rockfish TAC in the CAI/WAI of the BSAI will soon be or has been reached. Therefore, in accordance with § 679.20(d)(2), NMFS is prohibiting retention of blackspotted and rougheye in the CAI/WAI of the BSAI and requiring that blackspotted and rougheye rockfish in the CAI/WAI of the BSAI be treated in the same manner as a prohibited species, as described under § 679.21(a), for the remainder of the year. Blackspotted and rougheye rockfish species in the CAI/WAI caught by catcher vessels using hook-and-line, pot, or jig gear as described in § 679.20(j). This action is necessary to prevent exceeding the 2025 blackspotted and rougheye TAC in the CAI/WAI of the BSAI.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting retention of blackspotted and rougheye rockfish in the CAI/WAI of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data on the total catch of blackspotted and rougheye in the CAI/WAI of the BSAI only became available as of September 10, 2025.

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