Please refer to Docket ID NRC-2025-0479 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2025-0479.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov.

• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m. eastern time, Monday through Friday, except Federal holidays.

The NRC encourages timely electronic comment submission through the Federal Rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2025-0479 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The NRC uses the “direct final rule procedure” for rulemaking when the NRC anticipates the rule is unlikely to attract significant adverse comment because the rule is non-controversial. As explained further, this rulemaking would add a “sunsetting clause” to certain regulations many of which are outdated, seldomly used, or duplicative with other regulations. Moreover, the NRC will provide the public with an opportunity to provide additional information on whether the sunsetting provision should be extended for these provisions at a future time as well as provide Tribal consultation opportunities in compliance with NRC's Tribal Policy Statement (82 FR 2402; January 9, 2017). Therefore, because the NRC does not anticipate significant public comments on this rulemaking and considers it to be noncontroversial, the NRC is using the “direct final rule procedure” for this rule. The amendments are effective on January 8, 2026. However, if the NRC receives significant adverse comments on this direct final rule by January 2, 2026, then the NRC will publish a document that withdraws this action and will address the comments received in a subsequent final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register or take other action as appropriate. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. 1 A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule.

For detailed instructions on filing comments, please see the ADDRESSES section of this document.

Executive Order (E.O.) 14270, “Zero-Based Regulatory Budgeting to Unleash American Energy,” directs the NRC to issue a rule inserting a conditional sunset date into each of its regulations that are in effect as of the date of the E.O. (90 FR 15643; April 9, 2025) and were issued in whole or in part pursuant to the following statutes, as amended: the Atomic Energy Act of 1954, the Energy Reorganization Act of 1974, and the Nuclear Waste Policy Act of 1982. The conditional sunset date for covered regulations is to be one year after the effective date of the sunset rule. The E.O. directs the NRC to issue a sunset rule “to the extent consistent with applicable law” and provides that the E.O. does not apply to “regulatory permitting regimes authorized by statute.” For purposes of implementing this E.O., regulations that provide standards and requirements for NRC license and permit holders or applicants constitute the NRC's “regulatory permitting regime.” Thus, the scope of this rulemaking is generally limited to those regulations that do not fit into one or more of the following three categories: (1) regulations that could not be sunset “consistent with applicable law” because they are necessary to fulfill the NRC's statutory mandate to provide for the common defense and security and to protect public health and safety; (2) regulations that are part of the NRC's “regulatory permitting regimes authorized by statute”; or (3) regulations that do not implement one of the three NRC-specific statutes identified in the E.O. ( i.e., regulations that implement government-wide requirements such as the Freedom of Information Act of 1969). The vast majority of the NRC's regulations fit into one of these three categories. Nonetheless, the NRC identified several regulations that although they fall into one or more of these categories and are therefore outside the scope of the E.O., they are not being used or no longer serve their original purpose. As explained in section IV, “Discussion,” of this document, the NRC will add a sunsetting provision to those regulations. Importantly, the NRC is continuing its regulatory reform efforts through the rulemaking activities directed by E.O. 14300, “Ordering the Reform of the Nuclear Regulation Commission.”

As stated in E.O. 14270, the sunsetting provision will state a conditional sunset date that is one year after the effective date of this rule and provide that the NRC will offer the public an opportunity to comment on the costs and benefits of the regulations to be conditionally sunset before that effective date. The NRC will issue a separate notice describing the comment opportunity after this rule is effective. Following the sunset date, the NRC will consider sunset regulations to no longer be effective, will not seek to enforce sunset regulations, and will remove the regulation from the Code of Federal Regulations and make necessary conforming changes. However, following the opportunity for the public to comment on the sunset rule's costs and benefits, the NRC may extend the conditional sunsetting date if warranted and may do so as many times as appropriate.

The NRC will include the sunsetting provision in the following regulations for the reasons explained below.

The President has directed the NRC to issue this proposed zero-based regulating rule. Section 4(a) of E.O. 14270 states that “each of the Covered Agencies shall issue a sunset rule,” and further specifies the terms of that rule. Accordingly, the NRC lacks any discretion over whether to undertake this sunsetting rule. The President's direction provides an independent, and sufficient, justification for this proposed rulemaking. However, the Executive Order does not direct the NRC to rescind or reissue any particular regulation. The NRC retains its full authority to issue and repeal regulations under the three relevant statutes and their amendments. The President has directed only the manner in which the NRC is to review and issue the relevant regulations.

Moreover, as reflected by the Nuclear Energy Innovation and Modernization Act (NEIMA) (Pub. L. 115-439), the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024 (Pub. L. 118-67), and E.O. 14300, nuclear technology is quickly evolving. The sunsetting provisions in this rulemaking will enable the NRC's regulatory infrastructure to keep pace with those developments by requiring the agency to periodically reevaluate its regulations and remove those that are no longer necessary. Thus, outside of the directions in E.O. 14270, the NRC concludes that adopting the proposed sunset rule is warranted and based on its independent policy judgment, as further explained in greater detail, will add to the efficacy of its regulatory oversight by adding a mechanism to periodically streamline the NRC's regulatory infrastructure.

Executive Order 14270 also directs the NRC to include a sunsetting provision in future rulemakings that would be covered by the E.O. Therefore, the NRC would also add a new provision to 10 CFR 2.807, “Effective date,” specifying the circumstances in which regulations adopted by the NRC after the effective date of this rulemaking would include a sunsetting provision.

Subpart F to part 2, “Additional Procedures Applicable to Early Partial Decisions on Site Suitability Issues in Connection With an Application for a Construction Permit or Combined License To Construct Certain Utilization Facilities; and Advance Issuance of Limited Work Authorizations,” of title 10 of the Code of Federal Regulations (10 CFR), provides special procedures for a hearing and the issuance of a partial decision on site suitability matters for which an applicant seeks early resolution. While these provisions constitute part of the NRC's permitting regime authorized by statute, they are no longer needed. Despite being updated to reflect the amendments made in the final rule to 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants” (72 FR 49352; August 28, 2007), these procedures were last used in the 1970s. 2 Moreover, industry stakeholders do not appear to have any immediate plans to use them. In the preamble to the proposed rule, “Risk-Informed, Technology-Inclusive Regulatory Framework for Advanced Reactors” (89 FR 86918; October 31, 2024), the staff observed, “[i]nteractions with external stakeholders during the development of the proposed rule did not identify significant interest in or need for including the process for early review of site suitability issues in part 53[,”Risk-Informed, Technology-Inclusive Regulatory Framework for Commercial Nuclear Plants”].” A sunset date will allow these unused regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

Subpart N of 10 CFR part 2, “Expedited Proceedings with Oral Hearings,” is a specialized hearing track that contains the NRC's “fast track” hearing procedures intended to provide for the expeditious resolution of issues in cases where contentions are few and not complex. These procedures can be used if all parties agree ( see 10 CFR 2.310, “Selection of hearing procedures”). They have not been used to date. While these provisions constitute part of the NRC's permitting regime authorized by statute, they are no longer needed. A sunset date will allow these unused regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

Subpart O of 10 CFR part 2, “Legislative Hearings,” provides for procedures to be used if the Commission decides to hold legislative hearings for design certification rulemakings where the Commission, at its discretion, determined to hold a hearing under 10 CFR 52.51(b). The procedures also can be used at the Commission's discretion in developing a record to assist in resolving a waiver petition filed under paragraph (b) of 10 CFR 2.335, “Consideration of Commission rules and regulations in adjudicatory proceedings.” Subpart O procedures have never been used. While these provisions constitute part of the NRC's permitting regime authorized by statute, they are no longer needed. A sunset date will allow these unused regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

Subpart F of 10 CFR part 26, “Licensee Testing Facilities,” provides requirements for fitness-for-duty testing facilities. No licensee fitness-for-duty programs currently use subpart F licensee testing facilities because these facilities are no longer cost-beneficial for licensees. The marketplace offers a more efficient and cost-effective alternative: submitting specimens for testing to a laboratory that is certified to meet the standards of the U.S. Department of Health and Human Services, “Mandatory Guidelines for Federal Workplace Drug Testing Programs” (88 FR 70768; October 12, 2023). While these provisions constitute part of the NRC's permitting regime authorized by statute and at one time played a role in assuring adequate protection of public health and safety, they are no longer needed. A sunset date will allow these outdated regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

The regulations at 10 CFR 31.21, “Maintenance of records,” 10 CFR 32.3, “Maintenance of records,” 10 CFR 34.87, “Form of records,” and 10 CFR 35.5, “Maintenance of records,” are duplicative of 10 CFR 30.51, “Records,” which covers 10 CFR part 31, “General Domestic Licenses for Byproduct Material,” 10 CFR part 32, “Specific Domestic Licenses to Manufacture or Transfer Certain Items Containing Byproduct Material,” 10 CFR part 34, “Licenses for Industrial Radiography and Radiation Safety Requirements for Industrial Radiographic Operations,” and 10 CFR part 35, “Medical Use of Byproduct Material.” In addition, 10 CFR 34.111, “Applications for exemptions,” 10 CFR 35.19, “Specific exemptions,” paragraph (a) of 10 CFR 36.17, “Applications for exemptions,” and 10 CFR 39.91, “Applications for exemptions,” are duplicative of 10 CFR 30.11, “Specific exemptions,” which covers 10 CFR part 34, 10 CFR part 35, 10 CFR part 36, “Licenses and Radiation Safety Requirements for Irradiators,” and 10 CFR part 39, “Licenses and Radiation Safety Requirements for Well Logging.” While these provisions constitute part of the NRC's permitting regime authorized by statute and at one time played a role in assuring adequate protection of public health and safety, they are no longer needed. A sunset date will allow these duplicative regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

The regulations in 10 CFR 50.150, “Aircraft impact assessment,” are safety enhancements that are not necessary for the NRC to meet its statutory mission under the Atomic Energy Act of 1954 to provide reasonable assurance of adequate protection from radiological hazards. When the rule was promulgated, the NRC quantified the costs of the rule but did not quantify the benefits and concluded that the key qualitative benefit of the rule was an “improvement in knowledge” of how a new reactor would address beyond-design-basis hazards, such as a deliberate large aircraft impact. At the time, the NRC concluded that qualitative benefits outweighed the cost of the rule. However, if reconsidered today, the cost of implementation would not be justified by the increase in safety for future reactors. Other more recently developed regulations ( i.e., 10 CFR 50.155, “Mitigation of beyond-design-basis events,” and proposed 10 CFR part 53) provide alternative approaches to understand how newly licensed plants would address those beyond-design-basis hazards. Because the analyses required by this regulation are incorporated into plants' licensing bases and are now required by other more comprehensive regulations, sunsetting this provision will not decrease safety at any operating facility. Thus, while this provision constituted part of the NRC's permitting regime authorized by statute, it is no longer needed. A sunset date will allow this outdated and duplicative regulation to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for this regulation, the agency can extend the sunset date as appropriate.

Appendix Q to 10 CFR part 50, “Pre-Application Early Review of Site Suitability Issues,” provides for NRC staff issuance of a staff site report on site suitability issues with respect to a specific site for which a potential applicant seeks the NRC staff's views. The staff site report is issued after receiving and considering the comments of Federal, State, and local agencies and interested persons, as well as the views of the Advisory Committee on Reactor Safeguards, but only if site safety issues are raised. The staff site report does not bind the Commission or a presiding officer in any hearing under 10 CFR part 2, “Agency Rules of Practice and Procedure.” This process was not included in 10 CFR part 52 because it was not needed due to the early site permit process in subpart A of 10 CFR part 52, “Early Site Permits.” Similarly, it was not included in the proposed 10 CFR part 53. Given its limited value, appendix Q should be sunsetted. The downside is that removal of this regulation could remove some flexibility to part 50, “Domestic Licensing of Production and Utilization Facilities,” applicants to potentially address regulatory issues related to siting, such as seismic hazards, emergency planning, and environmental considerations early in the process; however, the benefits afforded by the staff site report could be covered in pre-application interactions through issuance of white paper or topical report feedback. Moreover, applicants for licenses and permits under part 50 may also apply for an Early Site Permit under part 52. Thus, while this provision constituted part of the NRC's permitting regime authorized by statute, it is no longer needed. A sunset date will allow this unused regulation to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for this regulation, the agency can extend the sunset date as appropriate.

The regulation in 10 CFR 51.124, “Commission duty to comment,” states the NRC's policy to provide comments on draft environmental impact statements prepared by other Federal agencies. However, the regulation is not needed because it only states a policy; the NRC has authority to provide comments on draft environmental impact statements from other Federal agencies independent of the operation of 10 CFR 51.124. Thus, while this provision was not promulgated under one of the three statutes identified in E.O. 14270, it is no longer needed. A sunset date will allow this unnecessary regulation to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for this regulation, the agency can extend the sunset date as appropriate.

The NRC has not issued a certification under 10 CFR part 76, “Certification of Gaseous Diffusion Plants,” since 1996 and does not expect to issue another one because gaseous diffusion technology is now obsolete. While these provisions constitute part of the NRC's permitting regime authorized by statute and at one time played a role in assuring adequate protection of public health and safety, they are no longer needed. A sunset date will allow these outdated regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

The regulations in 10 CFR part 160, “Trespassing on Commission Property,” are unnecessary because the General Services Administration regulations and notices currently on the NRC's facilities provide adequate warning to the public against trespassing, which is also covered under State laws. These regulations promulgated under the Atomic Energy Act are not part of the NRC's regulatory permitting regime and are not statutorily required. A sunset date will allow these duplicative regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

The regulations in 10 CFR 19.4, 20.1006, 21.4, 25.7, 26.7, 30.5, 34.5, 36.5, 37.9, 39.5, 40.6, 50.3, 51.5, 52.2, 54.5, 55.6, 60.5, 61.5, 62.4, 63.5, 70.6, 71.2, 72.5, 73.3, 74.5, 75.5, 81.4, 95.7, 110.3, 140.4, 150.5, 170.4, and 171.7 state that no interpretation of the meaning of NRC regulations are to be considered binding on the Commission, other than a written interpretation by the General Counsel. Some of these provisions were part of the original rulemakings for these parts. 3 No explanations for including these provisions were provided in the proposed or final rules. Usage or reliance on these provisions has historically been rare. There is also considerable doubt that the General Counsel, as an inferior officer, can bind the Commission on a question of law. These regulations promulgated under the Atomic Energy Act are not part of the NRC's regulatory permitting regime and are not statutorily required. A sunset date will allow these seldomly used regulations to roll off the books. At the same time, if evidence emerges in the interim indicating a continued need for these regulations, the agency can extend the sunset date as appropriate.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. The substantive portions of this final rule affect only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

Because the sunset rule is needed to implement E.O. 14270, and this rulemaking is an administrative activity, the NRC did not prepare a regulatory analysis.

The sunset rule would not constitute backfitting as that term is defined in 10 CFR 50.109, “Backfitting,” or affect the issue finality of an approval issued under 10 CFR part 52. As a general matter, eliminating a requirement does not meet the definition of “backfitting” because such an act by the NRC would be a nonmandatory relaxation of an existing requirement. For the same reason, the elimination of a requirement would not affect the issue finality of a 10 CFR part 52 approval.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(2), which categorically excludes from environmental review rules that are corrective or of a minor, nonpolicy nature and do not substantially modify existing regulations. Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

The Office of Information and Regulatory Affairs (OIRA) has determined that this direct final rule is a significant regulatory action. Accordingly, NRC submitted this direct final rule to OIRA for review. The NRC is required to conduct an economic analysis in accordance with section 6(a)(3)(B) of E.O. 12866. However, NRC considers the costs incurred by this rule to be solely those related to the rulemaking process for this administrative activity.

The NRC has examined this direct final rule and has determined that it is consistent with the policies and directives outlined in E.O. 14154, “Unleashing American Energy,” E.O. 14192, “Unleashing Prosperity Through Deregulation,” E.O. 14215 “Ensuring Accountability for All Agencies,” and E.O. 14300, “Ordering the Reform of the Nuclear Regulatory Commission.” This direct final rule is considered an E.O. 14192 deregulatory action.

This direct final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has found it does not meet the criteria at 5 U.S.C. 804(2).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2, 19, 20, 21, 25, 26, 30, 31, 32, 34, 35, 36, 37, 39, 40, 50, 51, 52, 54, 55, 60, 61, 62, 63, 70, 71, 72, 73, 74, 75, 76, 81, 95, 110, 140, 150, 160, 170, and 171.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface Buckeye Municipal Airport, Buckeye, AZ, to support IFR operations at this airport.

The FAA published an NPRM for Docket No. FAA-2024-2562 in the Federal Register (89 FR 96619; December 5, 2024) proposing to establish Class E airspace at Buckeye, AZ. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These amendments will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This amendment to 14 CFR part 71 establishes Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius Buckeye Municipal Airport, Buckeye, AZ; and within 1.2 miles each side of the 182° bearing from the airport extending from the 6.5-mile radius of the airport to 7.3-miles south of the airport.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends, establishes, or removes Class D and Class E airspace at the affected airport to support IFR operations.

The FAA published an NPRM for Docket No. FAA-2025-2232 in the Federal Register (90 FR 38615; August 11, 2025) proposing to amend the Class D and Class E airspace, establish Class E airspace, and revoke Class E airspace at Wichita, KS. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Three (3) comments were received. The three commenters agreed with each other. The commenters supported the proposed amendment to the northern boundary of the Beech Factory Airport Class D airspace. However, one commenter, with the two other commenters in concurrence, suggested changes to the Beech Factory Airport Class D airspace and McConnell AFB Class D airspace. Specifically, the commenter suggested changes to the proposed eastern, western, and southern boundaries of the Beech Factory Airport Class D airspace. The commenter also recommended removing the one-mile exclusion zone and instead using his proposed boundaries for Beech Factory Airport Class D airspace as the exclusion zone. In addition, the commenter suggested reducing the radius to 4.4 miles for McConnell AFB Class D airspace so that a medical center and elementary school would be outside of the airspace. The commenter believed these facilities should be outside the airspace due to a high number of medevac helicopter flights and a popular hot air balloon launch site located in the vicinity. Lastly, the commenter proposed that the McConnell AFB Class D airspace not include his suggested Beech Class D airspace. The following responses are provided.

The Class D airspace proposed by Mr. Condon—and concurred with by Mr. Rogers and Mr. Pitt—for Beech Factory Airport, Wichita, KS, is not feasible as it does not comply with the airspace requirements for Class D airspace outlined in FAA Order JO 7400.2R, Procedures for Handling Airspace Matters. While Beech Factory Airport air traffic control may not be utilizing the western portion of the current airspace, FAA Order JO 7400.2R requires that airspace to allow for diverse departures. This is the same reason that the proposed western boundary is not feasible. And the proposed southern boundary exceeds that necessary for operations out of Beech Factory Airport. Additionally, the proposed 1-mile cutout increases the operational area around Beech Factory Airport beyond the current airspace allocation.

The current airspace orientation was agreed upon by Beech Factory Airport and Colonel James Jabara Airport when the Beech Factory Airport Class D and E airspace were established in 2019. The Beech Factory Airport air traffic manager and Colonel James Jabara Airport management were given an opportunity to review the proposed airspace. Neither provided any feedback nor requested any changes to the current airspace or the airspace as proposed.

As for the commenters' concerns regarding hot air balloon operations at Andover Central Park and Tanglewood, hot air balloon operations are regulated by 14 CFR part 101, which includes operating in Class D airspace. Those operations are assumed to be currently complying with part 101 without issue so there do not appear to be any issues with current hot air balloon operations, and the airspace changes do not change the part 101 requirements.

As for the commenters' recommendation that the McConnell AFB, Wichita, KS, Class D airspace radius not be increased to 4.6 miles but instead be decreased to 4.4 miles, this increase is required to protect diverse departures and instrument procedures as required by FAA Order JO 7400.2R, so the recommendation cannot be accommodated.

Regarding the commenters' concern that the proposed airspace would infringe on operations from Wesley Medical Center Heliport, Wichita, KS, the heliport is already within the Beech Factory Airport Class D airspace. These changes will not change the operating procedures for the heliport, and would only possibly change which facility is communicated with. Operations can be further accommodated by a letter of agreement between Wesley Medical Center Heliport, Beech Factory Airport air traffic control, and McConnell AFB in accordance with FAA Order JO 7210.3EE, Facility Operation and Administration, if needed.

This NPRM had a typographic error in the Beech Factory Airport Class D airspace legal description, “. . . but excluding 2,700 feet . . .” should have been “. . . and including 2,700 feet . . .” Additionally, the “Wichita Dwight D. Eisenhower International Airport” should be the “Wichita Dwight D. Eisenhower National Airport” and the “Wichita Dwight D. Eisenhower Intl: RWY 01R-LOC” should be the “Wichita Dwight D. Eisenhower NTL: RWY 01R-LOC” in the Wichita, KS, Class E airspace extending upward from 700 feet above the surface. As these typographic errors do not change the boundaries of the airspace as they currently exist or as proposed or impose any additional requirements on users of the airspace, the FAA has determined that good cause exists for not recirculating this action for public comment, and the errors are being corrected in this action.

The NPRM described the Wichita Dwight D. Eisenhower National Airport Class E airspace extension as “That airspace extending upward from the surface within 7.2 miles each side of the 126° bearing from the Wichita VORTAC extending from the airport to 7.8 miles northwest of the airport.” A clearer legal description has been determined to be, “That airspace extending upward from the surface within 7.2 miles each side of the 126° bearing from the Wichita VORTAC extending from the Wichita VORTAC 126° bearing at 1.3 miles southeast to the Wichita VORTAC 126° bearing at 9.2 miles.” This modification of the airspace legal description does not change the airspace as proposed but provides a clearer, less confusing description of the airspace. As this change does not change the boundaries of the proposed airspace or impose any additional requirements on users of the airspace, the FAA has determined that good cause exists for not recirculating this action for public comment, and the change is being corrected in this action.

The NPRM listed the line separating the Beech Factory Airport Class D airspace and Class E surface airspace and the Colonel James Jabara Airport Class E surface airspace as “. . . from lat 37°43′22″ N, long 097°18′26″ W to lat 37°43′23″ N, long 097°07′49″ W. . .” A more accurate line has been determined to be “. . . from lat 37°43′22″ N, long 097°18′21″ W to lat 37°43′23″ N, long 097°07′48″ W.” As this adjustment does not change the boundaries of the airspace as proposed or impose any additional requirements on users of the airspace, the FAA has determined that good cause exists for not recirculating this action for public comment, and the change is being corrected in this action.

Class D and E airspace designations are published in paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025 and effective September 15, 2025. These amendments will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This action amends 14 CFR part 71 by modifying the Class D and E airspace in the Wichita, Kansas area as the result of a U.S. Air Force request to change the McConnell AFB, Wichita, KS, Class D airspace from full-time to part-time and to establish part-time Class E surface airspace and the associated airspace reviews affected by the request.

For the Beech Factory Airport, Wichita, KS, Class D airspace, this action: (1) expands the radius from 4.2 miles to 4.4 miles; (2) removes the name of the airport from the airspace legal description header to comply with changes to FAA Order JO 7400.2R, Procedures for Handling Airspace Matters; (3) removes the city associated with the airport in the airspace legal description to comply with changes to FAA Order JO 7400.2R; (4) adds an exclusion for the McConnell AFB, Wichita, KS, Class E surface area; and (5) changes the coordinates of the boundary line from “lat. 37°43′07″ N, long. 97°17′51″ W to lat. 37°43′47″ N, long. 97°08′21″ W” to “lat 37°43′22″ N, long 097°18′21″ W to lat 37°43′23″ N, long 097°07′48″ W” to account for the expansion of the Class D airspace and Class E surface airspace at Beech Factory Airport and Colonel James Jabara Airport, Wichita, KS.

For the McConnell AFB Class D airspace, this action: (1) expands the radius from 4.5 miles to 4.6 miles; (2) removes the name of the airport from the airspace legal description header to comply with changes to FAA Order JO 7400.2R; (3) removes the city associated with the airport from the airspace legal description to comply with changes to FAA Order JO 7400.2R; (4) adds an exclusion area within a 1-mile radius of the Beech Factory Airport; (5) updates the name of the Wichita Mid-Continent Airport, KS, Class C area to Wichita, KS, Class C area to coincide with a change to the airspace legal description; and (6) adds part-time language to the airspace legal description.

For the Beech Factory Airport Class E surface airspace, this action: (1) increases the radius from 4.2 miles to 4.4 miles; (2) removes the name of the airport from the airspace legal description header to comply with changes to FAA Order JO 7400.2R; (3) removes the city associated with the airport in the airspace legal description to comply with changes to FAA Order JO 7400.2R; (4) adds an exclusion for the McConnell AFB Class E surface area; and (5) changes the coordinates of the boundary line from “lat. 37°43′07″ N, long. 97°17′51″ W to lat. 37°43′47″ N, long. 97°08′21″ W” to “lat 37°43′22″ N, long 097°18′21″ W to lat 37°43′23″ N, long 097°07′48″ W” to account for the expansion of the Class D airspace and Class E surface airspace at Beech Factory Airport and Colonel James Jabara Airport.

For the Colonel James Jabara Airport Class E surface airspace, this action: (1) increases the radius from 4 miles to 4.3 miles; (2) removes the name of the airport from the airspace legal description header to comply with changes to FAA Order JO 7400.2R; (3) removes the city associated with the airport from the airspace legal description to comply with changes to FAA Order JO 7400.2R; (4) adds an exclusion area south of a line from lat 37°43′22″ N, long 097°18′21″ W to lat 37°43′23″ N, long 097°07′48″ W; and (5) removes the exclusion to the McConnell AFB Class D airspace as it is no longer required.

This action establishes a part-time Class E surface area at McConnell AFB within a 4.6-mile radius of the airport excluding that airspace within a 1-mile radius of Beech Factory Airport and within the Wichita, KS, Class C airspace area.

This action establishes a Class E airspace area designated as an extension to Class C airspace at Wichita Dwight D. Eisenhower National Airport, Wichita, KS, within 7.2 miles each side of the 126° bearing from the Wichita VORTAC extending from the Wichita VORTAC 126° bearing at 1.3 miles southeast to the Wichita VORTAC 126° bearing at 9.2 miles.

This action removes the Class E airspace area designated as an extension to a Class D surface area at McConnell AFB as it is no longer required.

For the Wichita, KS, Class E airspace extending upward from 700 feet above the surface, this action: (1) increases the radius from 7.2 miles to 7.9 miles at Wichita Dwight D. Eisenhower National Airport; (2) modifies the extension to within 1.1 miles (reduced from 4 miles west east) each side of the 126°/306° bearings of the Wichita VORTAC (previously the Mid-Continent Airport ILS localizer course to runway 1L) extending from the 7.9-mile radius (previously airport) of the Wichita Dwight D. Eisenhower National Airport to 9.5 miles (reduced from 13 miles) northwest (previously south) of the Wichita Dwight D. Eisenhower National Airport (previously airport to 7.4 miles north of the airport); (3) adds an extension within 4 miles each side of the 200° bearing from the Wichita Dwight D. Eisenhower NTL: RWY 01R-LOC extending from the 7.9-mile radius of Wichita Dwight D. Eisenhower National Airport to 12.3 miles south of Wichita Dwight D. Eisenhower National Airport; (4) updates the name and geographic coordinates of the Wichita Dwight D. Eisenhower NTL: RWY 01R-LOC (previously Wichita Mid-Continent Localizer Runway 1L) and McConnell AFB (previously McConnell Air Force Base) to coincide with the FAA's aeronautical database; (5) updates the name of Wichita Dwight D. Eisenhower National Airport (previously Wichita Mid-Continent Airport) to coincide with the FAA's aeronautical database; (6) increases the radius from 7 miles to 7.1 miles at McConnell AFB; (7) removes the Wichita McConnell Air Force Base, KS, listing associated with the localizer and the associated extension south of the McConnell AFB from the airspace legal description as they are no longer required; (8) removes the cities associated with McConnell AFB and Colonel James Jabara Airport to comply with changes to FAA Order JO 7400.2R; (9) increases the radius from 6.4 miles to 6.8 miles at Augusta Municipal Airport; (10) updates the geographic coordinates of Augusta Municipal Airport to coincide with the FAA's aeronautical database; (11) increases the radius from 6.5 miles to 6.8 miles of Colonel James Jabara Airport; (12) removes the AUBRA Waypoint and the associated extension from the airspace legal description as they are no longer required; and (13) removes the name of Wichita Mid-Continent Airport from the airspace legal description header to comply with changes to FAA Order JO 7400.2R.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures.” This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class D and Class E airspace at the affected airport to support IFR operations.

The FAA published an NPRM for Docket No. FAA-2025-2245 in the Federal Register (90 FR 38421; August 8, 2025) proposing to amend the Class D and Class E airspace at Burns Flat, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These amendments will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This action amends 14 CFR part 71 by modifying the Class D and E airspace at Burns Flat, Oklahoma due to an airspace review conducted as part of the decommissioning of the Burns Flat LOM and OM.

For the Clinton/Sherman Airport, Burns Flat, OK, Class D airspace, this action: (1) increases the radius from 4.7 miles to 5.2 miles from the airport; (2) reduces the vertical limit of the airspace from 4,500 feet MSL to 4,400 feet MSL to comply with FAA Order JO 7400.2R, Procedures for Handling Airspace Matters; and (3) updates the name of the airport from Clinton-Sherman Airport to Clinton/Sherman Airport to coincide with the FAA's aeronautical database;

For the Clinton/Sherman Airport Class E airspace extending upward from 700 ft above the surface, this action: (1) increases the radius from 7.2 miles to 7.7 miles from the airport; and (2) updates the name of the airport to from Clinton-Sherman Airport to Clinton/Sherman Airport to coincide with the FAA's aeronautical database.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures.” This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace at the affected airport to support IFR operations.

The FAA published an NPRM for Docket No. FAA-2025-2255 in the Federal Register (90 FR 38618; August 11, 2025) proposing to amend the Class E airspace at George West, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One (1) comment was received. The following response is provided.

The comment supported the proposed action and suggested that the FAA should evaluate whether the change would increase air traffic or noise to the surrounding area before finalizing.

Class E airspace extending upward from 700 feet above the surface primary serves to transition aircraft from the terminal to enroute environment and protect the instrument procedures at the airport for which the airspace is designated. Air traffic counts are not part of the evaluation process for this type of airspace. This action is not being taken to accommodate increased air traffic operations but to contain the instrument procedures.

Noise screening is part of the environmental review process all airspace actions must complete.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These amendments will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This action amends 14 CFR part 71 by modifying the Class E airspace at George West, Texas due to an airspace review conducted as part of the decommissioning of the Three Rivers VOR as part of the VOR MON Program.

For the Live Oak County Airport, George West, TX, Class E airspace extending upward from 700 ft above the surface, this action: (1) increases the radius from 6.4 miles to 7.7 miles of the airport; (2) removes the Three Rivers VORTAC and the associated extension from the airspace legal description; and (3) removes the city associated with the airport from the airspace legal description to comply with changes to FAA Order JO 7400.2R, Procedures for Handling Airspace Matters.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures,” Paragraph B-2.5(a). This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revokes the Class E airspace at the affected airport as it is no longer justified as a result of the cancellation of instrument flight procedures at the airport.

The FAA published an NPRM for Docket No. FAA-2025-2304 in the Federal Register (90 FR 40539; August 20, 2025) proposing to revoke the Class E airspace at Oakwood, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Three (3) comments were received. Two (2) comments support the action, and one (1) comment is substantively unrelated to the action proposed. No responses are provided.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These amendments will be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This action amends 14 CFR part 71 by removing the Class E airspace extending upward from 700 ft above the surface at Carter Ranch Airport, Oakwood, Texas, due to the instrument procedures being cancelled and the controlled airspace no longer being justified.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures,” Paragraph B-2.5(a). This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The Commodity Futures Trading Commission is amending its rules of practice and its rules relating to investigations. The Commission is authorized to promulgate this rule under section 2(a)(12) of the Commodity Exchange Act (“the Act”). 1

The revisions fall into five categories: (1) revisions in part 10 to clarify the definition of adjudicatory proceedings to include an order by the Commission instituting proceedings pursuant to the Act, making findings, and imposing remedial sanctions; (2) revisions to part 10 removing references to regulations that are no longer effective or to communications by facsimile machine; (3) revisions to part 10 to clarify that the Commission can accept an offer of settlement by an order; (4) revisions to part 10 establishing certain requirements for the form of the recommendation memorandum that the Division of Enforcement (“Division”) provides to the Commission when recommending that the Commission accept an offer of settlement; and (5) revisions to appendix A to part 11 detailing the procedures to be used when the Division chooses to inform persons who may be named in a proposed enforcement proceeding of the nature of the allegations pertaining to them as well as the procedure to be followed by such persons in submitting a written response to the Division.

The Commission is revising part 10, Rules of Practice, in four ways.

First, the Commission is revising the definition of adjudicatory proceedings in § 10.2(b) to clarify that adjudicatory proceedings under the Rules of Practice include the issuance of an order by the Commission instituting proceedings pursuant to the Act, making findings, and imposing remedial sanctions.

Second, the Commission is revising § 10.1(i) to remove a reference to no longer effective provisions of part 13 of the Commission's regulations.

Third, the Commission is removing references to communications by fax from §§ 10.4 and 10.12.

Fourth, the Commission is revising § 10.108(d) to clarify that in lieu of adjudicatory proceedings under subpart B of part 10, the Commission may accept an offer of settlement by order instituting proceedings pursuant to the Act, and making findings and imposing remedial sanctions, and that the Commission can determine to accept an offer of settlement in lieu of an adjudicatory proceeding either by Commission meeting or by the Commission's seriatim process. To ensure that the Commission has the information necessary to evaluate a matter, the revisions require the Division to include certain information with its recommendation that the Commission accept an offer of settlement. In particular, the revisions require the Division must provide an objective memorandum that adheres to the applicable rules of professional conduct, provides a comprehensive explanation of the factual and legal foundation for the recommendation, and distinguishes unfavorable facts or legal precedents. In addition, to ensure a complete and accurate administrative record, the Division's recommendation memorandum must be supported by citations to evidence in the investigative record or to stipulations by the parties, and legal arguments must be supported by points and authorities.

The Commission is making several revisions to this procedure, which applies to when the Division, in its discretion, chooses to inform persons who may be named in a proposed enforcement proceeding of the nature of the allegations pertaining to them. While the Division can decide whether it will provide such notice, the revised procedure details the requirements for such notice if given. Under the revised appendix A, the notice should be provided in writing when possible, and, if given orally, is to be followed by written confirmation. The revisions promote transparency to entities or individuals who may be named in a proposed enforcement proceeding by requiring that the written notice or confirmation of oral notice identifies the specific charges that the Division has made preliminary determinations to recommend to the Commission. The revisions also state that the Division may provide information regarding the facts and circumstances that form the basis for the recommendation by referring to specific evidence. Establishing that the Division can choose to disclose specific evidence learned during the investigation promotes transparency and enhances the Division's ability to have productive dialogues with the entity or individual who may be named.

While the Division still maintains the discretion to advise entities or individuals who may be named that they may submit a written statement prior to consideration of a staff recommendation, the revised appendix A modifies the procedures surrounding such a response. The revised appendix A provides that a potential respondent shall have at least 30 days to submit a response, rather than having to submit within 14 days as required by the prior version of appendix A. The amended procedures only permit the Division to require a submission be made in a shorter period if there is both good cause and the approval of specified senior attorneys, a change from the prior version which did not explicitly require good cause. This revision is designed to ensure that respondents have adequate time to respond. The revised appendix A also states that a person submitting a written statement may request that the statement be provided to the Commission “promptly,” a requirement that may expedite consideration of the matter in some cases and, when used, may inform the Commission about the pending matter at an earlier stage than the previous Appendix A, which contemplated providing respondent responses to the Commission when the Division made its recommendation to the Commission rather than when the response was initially received. Finally, the Revision states that all written statements will be forwarded to the Commission, a change from the previous version which only required that written submissions be forwarded to the Commission upon request of the submitter. This provision helps to ensure that the Commission has an accurate and complete record on which to base decisions if the Division ultimately does recommend the commencement of an enforcement action.

The Administrative Procedure Act (“APA”)  2 requires federal agencies to publish a notice of proposed rulemaking and provide an opportunity for public comment before issuing a new rule. Rules are exempt from notice and comment if they are interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. 3 The Commission has determined that this exception applies. These amendments apply to agency procedure and practice, as they pertain to the procedures by which the Commission settles adjudicatory proceedings, the Division of Enforcement makes settlement recommendations to the Commission, and the Division of Enforcement, in its discretion, makes persons aware of potential allegations against them. Furthermore, an agency may also issue a new rule without a pre-publication public comment period when it for “good cause” finds that prior notice and comment is “impracticable, unnecessary, or contrary to the public interest.”  4 If made effective immediately, these amendments to parts 10 and 11 will promote efficiency and facilitate the Commission's core mission without imposing any new burden on market participants or the public.

The Regulatory Flexibility Act  5 requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities. The Commission is obligated to conduct a regulatory flexibility analysis for any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of the Administrative Procedure Act or any other law. 6 This rulemaking is excepted from the public rulemaking provisions of the Administrative Procedure Act. 7 Accordingly, the Commission is not required to conduct a regulatory flexibility analysis for this rulemaking.

The Paperwork Reduction Act (“PRA”)  8 imposes certain requirements on federal agencies in connection with their conducting or sponsoring any collection of information. This proposed rule does not contain any new collection of information requirements within the meaning of the PRA. Accordingly, the requirements imposed by the PRA are not applicable to this rule.

Section 15(a) of the CEA  9 requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. Section 15(a) further specifies that the costs and benefits shall be evaluated considering five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of the futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

The Commission may, in its discretion, give greater weight to any of the five enumerated areas of concern, and may, in its discretion, determine that, notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest, or to effectuate any of the provisions, or to accomplish any of the purposes, of the CEA. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

The Commission identifies and considers the benefits and costs of the final rule relative to the baseline of those generated by the current statutory and regulatory framework applicable to the issues addressed by this final rule, i.e., the current status quo. The baseline is the current rules of practice in part 10 with regards to adjudicatory proceedings and appendix A to part 11 detailing the procedures to be used when the Division chooses to inform entities or individuals who may be named in a proposed enforcement proceeding and the procedures surrounding the submission of a response prior to consideration of a staff recommendation.

As discussed above, the Commission is revising part 10 to: (1) clarify the definition of adjudicatory proceedings to include in that definition an order by the Commission instituting proceedings pursuant to the Act, making findings, and imposing remedial sanctions; (2) remove references to regulations that are no longer effective or to communications by facsimile machine; (3) clarify that the Commission can accept an offer of settlement by an order; (4) establish certain requirements for the form of the recommendation memorandum that the Division provides to the Commission when recommending that the Commission accept an offer of settlement. In addition, the Commission is revising appendix A to part 11 detailing the procedures to be used when the Division chooses to inform persons who may be named in a proposed enforcement proceeding of the nature of the allegations pertaining to them as well as the procedure to be followed by such persons in submitting a written response to the Division.

The proposed amendments to parts 10 and 11 relate solely to agency organization, procedure and practice. The clarification of § 10.2(b) should reduce any burdens on market participants caused by any confusion interpreting the current definition. The amendment to § 10.108 is procedural regarding internal Commission procedures and does not impose any new burdens on outside entities. The amendment to the part 11 appendix reduces burdens by providing more time for potential respondents to submit responses, and by providing more clarity regarding potential charges and evidence. Taken collectively, these amendments will have no cost to the market or the public, and there is only a de minimis cost for Commission staff to provide documents already within the Division of Enforcement's control or produce a recommendation memorandum in a particular format. The Commission has considered the costs and benefits of this amendment and has concluded that, with regard to the public interest consideration, the rule is fully consistent with the public interest and with the requirements and prohibitions of the Commodity Exchange Act.

Section 15(b) of the CEA requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the objectives of the CEA in issuing any order or adopting any Commission rule or regulation. 10 The Commission does not anticipate that the proposed amendments to parts 10 and 11 will result in anticompetitive behavior because the Commission would simply be updating certain internal procedures and in some cases providing potential respondents to enforcement action with additional clarity (and potentially additional time) to respond to a request from the Division of Enforcement. Accordingly, the Commission has determined that the amendments are not anticompetitive and have no anticompetitive effects. Because the Commission has made this determination, the Commission has not identified any less anticompetitive means of achieving the purposes of the CEA.

For the reasons set forth in the preamble, and pursuant to the authority contained in sections 2a and 8a of the Commodity Exchange Act, 7 U.S.C. 2(a) and 8a, the Commodity Futures Trading Commission amends 17 CFR chapter I as follows:

Note: The following appendix will not appear in the Code of Federal Regulations.

On this matter, Acting Chairman Pham voted in the affirmative. No Commissioner voted in the negative.

This document, as well as the notice of proposed rulemaking (NPRM), and all comments received may be viewed online through the Federal eRulemaking portal at www.regulations.gov. The website is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's website at: www.federalregister.gov and the U.S. Government Publishing Office's website at: www.GovInfo.gov.

Under section 320(a) of title 23 of the United State Code (U.S.C.), State departments of transportation (State DOT), jointly with the Secretary of Transportation, may determine and certify to a Federal Agency with jurisdiction over and custody of a dam constructed or to be constructed and owned by or for the United States, that a public highway bridge upon and across such dam is economically desirable and needed as a link in the State or Federal-aid highway systems. The Federal Agency may then use funds available to design and construct the dam in such a manner that will serve as a suitable and adequate foundation for a public highway bridge and to design and construct a public highway bridge upon and across the dam. In accordance with 23 U.S.C. 320(b), construction of any bridge upon and across any dam pursuant to 23 U.S.C. 320 may not start until the State in which the bridge is to be located, or the appropriate subdivision of such State, enters into an agreement with the Federal Agency and the Secretary of Transportation to construct the approach roads necessary to connect such bridge with existing public highways. While a portion of the bridge may be financed wholly with Federal funds, any approach roads “shall be financed by the State or its appropriate subdivision with or without the aid of Federal funds.” See 23 U.S.C. 320(d). Finally, 23 U.S.C. 320(f) makes clear that 23 U.S.C. 320 does not affect any bridge, approach structure, or highway constructed or to be constructed by a Federal Agency to satisfy a legal obligation incurred independently of 23 U.S.C. 320.

On October 10, 1974, FHWA amended part 630 of title 23 of the Code of Federal Regulations (CFR) by adding a new subpart H. See 39 FR 36474. This rule required that a proposed bridge over a dam constructed and owned by or for the United States, together with the approach roads to connect the bridge with existing public highways, must be eligible for inclusion in the Federal-aid highway system. See 23 CFR 630.802. The regulation also required that a State's application to qualify a project under the new subpart to include a certification that the bridge is economically desirable and needed as a link in the Federal-aid highway system, a statement showing the source and availability of funds to be used in construction of the roadway approaches, and a statement of any obligation on the part of the Federal Agency constructing the dam to provide such bridge or approach roads to satisfy a legal liability incurred independently of the subpart. See 23 CFR 630.803. This subpart has not been amended since its issuance in 1974.

On May 30, 2025, at 90 FR 22874, FHWA published an NPRM proposing to rescind the rule issued on October 10, 1974, Bridges on Federal Dams, via 39 FR 36474, amending 23 CFR part 630, subpart H. FHWA proposed to rescind 23 CFR part 630, subpart H in full and sought comment on all aspects of that proposal. FHWA received one comment on its NPRM expressing general disagreement with deregulation but no substantive comment on the proposal. As such, FHWA now adopts the proposal in this final rule without change.

FHWA finds that 23 U.S.C. 320 is clear on its face and, therefore, the regulations found in 23 CFR part 630, subpart H are not necessary. FHWA believes the regulations are merely duplicative of statutory language and, thus, unnecessary and may be rescinded.

Further, as a practical matter, no additional funding for the construction of bridges on Federal dams has been authorized since the Federal-aid Highway Act of 1978 (Pub. L. 95-599). In fiscal year 1994, Congress rescinded the balance of funds that were made available for bridges on Federal dams pursuant to 23 U.S.C. 320, leaving no funds currently available for the work contemplated by 23 CFR part 630, subpart H. See Public Law 103-211, Title III, Chapter 10. Were Congress to provide additional funds, the requirements in 23 U.S.C. 320 would apply, and they are sufficiently clear.

This final rule does not meet the criteria of a “significant regulatory action” under Executive Order (E.O.) 12866, as amended by E.O. 14215 and 13563. Therefore, the Office of Management and Budget (OMB) has not reviewed this rule under those orders.

This rule removes duplicative regulations applicable to projects that are not currently funded. FHWA does not believe there are any costs to this rulemaking. While FHWA believes there are deregulatory benefits to this rule, FHWA believes any monetary benefits or costs to this rule would be minimal. FHWA anticipates some unquantified cost-savings associated with removal of unnecessary provisions from the CFR. To the extent that the public needs to understand the requirements applicable to bridges on Federal dams, those requirements will now be available in one convenient place, 23 U.S.C. 320. FHWA expects that the public would realize some unquantifiable cost-savings by only needing to read and understand 23 U.S.C. 320, rather than both the statute and the duplicative regulations rescinded in this final rule.

These changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another Federal Agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

This final rule is an E.O. 14192 deregulatory action. Cost-savings are not quantified.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by the Small Business Regulatory Enforcement Fairness Act of 1996; 5 U.S.C. 601 et seq. ), Federal Agencies must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). No regulatory flexibility analysis is required, however, if the head of a Federal Agency or an appropriate designee certifies that the rule will not have a significant economic impact on a substantial number of small entities. FHWA has concluded and hereby certifies that this rule would not have a significant economic impact on a substantial number of small entities; therefore, an analysis is not included. This rescission removes requirements regarding procedures for the construction and financing of public highway bridges over dams constructed and owned by or for the United States that are not otherwise required by statute.

This rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 109 Stat. 48) for State, local and Tribal governments, or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This action has been analyzed in accordance with the principles and criteria contained in E.O. 13132. FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a Federal Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number. This rule is deregulatory and so would not impose any additional information collection requirements.

FHWA has analyzed this rule pursuant to the National Environmental Policy Act (NEPA) and has determined that it is categorically excluded under 23 CFR 771.117(c)(20), which applies to the promulgation of rules, regulations, and directives. Categorically excluded actions meet the criteria for categorical exclusions under 23 CFR 771.117(a) and normally do not require any further NEPA approvals by FHWA. This rule would rescind regulations regarding procedures for the construction and financing of public highway bridges over dams constructed and owned by or for the United States. FHWA does not anticipate any adverse environmental impacts from this rule, and no unusual circumstances are present under 23 CFR 771.117(b).

E.O. 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. FHWA has assessed the impact of this rule on Indian tribes and determined that this rule would not have Tribal implications that require consultation under E.O. 13175.

A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the spring and fall of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

As required by 5 U.S.C. 553(b)(4), a summary of this rule can be found at www.regulations.gov, under the docket number.

For the reasons stated in the preamble, FHWA revises title 23, Code of Federal Regulations, part 630, as set forth below:

This document, as well as the notice of proposed rulemaking (NPRM), and all comments received, may be viewed online through the Federal eRulemaking portal at www.regulations.gov. The website is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at: www.federalregister.gov and the U.S. Government Publishing Office's website at www.GovInfo.gov.

FHWA is rescinding the rule issued on September 30, 1974, Federal-Aid Contracts (Appalachian Contracts), at 39 FR 35146, as amended on October 21, 1975, by 40 FR 49084 and on March 1, 1976, by 41 FR 8769, amending 23 CFR part 633, subpart B. The rule being rescinded provided policies and procedures for administering projects and funds for the Appalachian Development Highway System (ADHS) and Appalachian local access roads. 23 CFR 633.201. FHWA rescinds the entire subpart B of part 633.

This subpart concerns projects for the ADHS and Appalachian local access roads. Under section 14501 of title 40 of the United States Code (U.S.C.), the Secretary of Transportation may assist in the construction of the ADHS and local access roads serving the Appalachian region, and Congress has appropriated funds for this purpose. While such Appalachian projects have been, are being, and likely will continue to be constructed, FHWA does not find it necessary to maintain the current regulations to administer such construction. This subpart is being rescinded because it is substantially outdated and duplicative of other statutory and regulatory sections.

Further, the rescission of this rule does not affect the application of the use of special preference to materials and products indigenous to the region, or the use of coal derivatives as provided in 40 U.S.C. 14501(d), implementation of Executive Order (E.O.) 14261 (April 8, 2025), “Reinvigorating America's Beautiful Clean Coal Industry and Amending E.O. 14241,” and applicable wage rates as required under 40 U.S.C. 14701.

On May 30, 2025, at 90 FR 22878, FHWA published an NPRM proposing to rescind 23 CFR part 633, subpart B, and sought comments on all aspects of that proposal. FHWA received one comment on its NPRM expressing general disagreement with deregulation but no substantive comment on the proposal. As such, FHWA now adopts the proposal without change.

This final rule does not meet the criteria of a “significant regulatory action” under E.O. 12866, as amended by E.O. 14215 and 13563. Therefore, the Office of Management and Budget (OMB) has not reviewed this rulemaking under those orders.

This rescission removes regulations that FHWA believes are outdated, duplicative, and unnecessary. FHWA believes there may be some cost savings from this rescission, such as cost savings from not having to include unnecessary contract provisions. FHWA, however, does not have data on the extent of those savings. FHWA sought comments on any impacts that could result from removing the provisions identified in this final rule but did not receive any additional information.

These changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another Federal Agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

This final rule is an E.O. 14192 deregulatory action. Cost-savings are not quantified.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by the Small Business Regulatory Enforcement Fairness Act of 1996; 5 U.S.C. 601 et seq. ), Federal Agencies must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rulemaking on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). No regulatory flexibility analysis is required, however, if the head of a Federal Agency or an appropriate designee certifies that the rulemaking will not have a significant economic impact on a substantial number of small entities. FHWA has concluded and hereby certifies that this rule would not have a significant economic impact on a substantial number of small entities; therefore, an analysis is not included. This rescission would only remove requirements that FHWA believes are outdated and unnecessary.

This rulemaking does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 109 Stat. 48) for State, local and Tribal governments, or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This action has been analyzed in accordance with the principles and criteria contained in E.O. 13132. FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a Federal Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number. This rule is deregulatory and so would not impose any additional information collection requirements.

FHWA has analyzed this rule pursuant to the National Environmental Policy Act (NEPA) and has determined that it is categorically excluded under 23 CFR 771.117(c)(2), which applies to the promulgation of rules, regulations, and directives. Categorically excluded actions meet the criteria for categorical exclusions under 23 CFR 771.117(a) and normally do not require any further NEPA approvals by FHWA. This rule rescinds an outdated regulation and does not require any new Federal actions or procedures. FHWA does not anticipate any adverse environmental impacts from this rule, and no unusual circumstances are present under 23 CFR 771.117(b).

E.O. 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. FHWA has assessed the impact of this rule on Indian Tribes and determined that this rule would not have Tribal implications that require consultation under E.O. 13175.

A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in the spring and fall of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

As required by 5 U.S.C. 553(b)(4), a summary of this rule can be found at www.regulations.gov, under the docket number.

For the reasons stated in the preamble, under the authority of 23 U.S.C. 315, 49 CFR 1.81, and 1.85, FHWA amends 23 CFR part 633 as set forth below:

Subject to OSMRE's oversight, section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find additional background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated June 14, 2016, and received by OSMRE on June 21, 2016 (Administrative Record No. WV-1606), the West Virginia Department of Environmental Protection (WVDEP) submitted to us an amendment regarding its approved regulatory program under West Virginia's Surface Mining Reclamation Regulations at CSR title 38, series 2. This amendment includes regulatory revisions to CSR title 38, series 2 with the passage of Committee Substitute for House Bill 117 (H.B. 117) of 2016 (Administrative Record No. WV-1606). See 2016 W. Va. Acts ch. 5 (1st Extraordinary Session). The bill includes revisions related to contemporaneous reclamation, inactive status, topsoil, bonding requirements for permit renewals, and incremental bonding for permit renewals.

We announced receipt of the proposed amendment in the April 3, 2019, Federal Register (84 FR 12984). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because none was requested. The public comment period ended on May 3, 2019.

We are partially approving the revisions proposed as described below. We made the following findings concerning West Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 730.5, 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at Regulations.gov .

The following describes the substantive regulatory revisions that West Virginia submitted to OSMRE for approval on June 14, 2016 (Administrative Record No. WV-1606) (WV-124).

West Virginia seeks to amend several administrative regulations at CSR 38-2-3.27 (Permit Renewals), CSR 38-2-7.6 (Forest land), CSR 38-2-7.7 (Wildlife), CSR 38-2-11.4.a.2 (Incremental Bonding), CSR 38-2-14.3 (Topsoil), CSR 38-2-14.11 (Inactive Status), CSR 38-2-14.15 (Contemporaneous Reclamation, Backfilling and Grading, Excess Spoil Disposal, Variance), and CSR 38-2-22.3(t)(4) (Coal Refuse—Abandonment Plan).

West Virginia has proposed to add language to these provisions to exempt operations that have received a waiver of the permit renewal requirement under CSR 38-2-3.27 from the restriction at CSR 38-2-11.4.a.2, which prohibits operators from changing between full permit bonding and incremental bonding after their initial choice to proceed under either system. The proposed addition also provides a process for changing the bonding system by allowing the operation to submit a bonding revision to the Secretary for approval.

OSMRE Finding: Subsequent to West Virginia's submission of this amendment, West Virginia submitted an amendment that included West Virginia Senate Bill 163 of 2018 (S.B. 163), 2018 W. Va. Acts ch. 141, by letter dated May 2, 2018 (Administrative Record No. WV-1613-A), which we docketed as WV-126-FOR. S.B. 163 contained various revisions to the West Virginia CSR, including significant revisions to section CSR 38-2-11.4 (Incremental Bonding). Among those revisions, West Virginia deleted the restriction at CSR 38-2-11.4.a.2, which stated “[o]nce the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, he shall continue bonding in that manner for the term of the permit.” We approved those revisions because they made the regulation substantively identical to the Federal counterpart provision at 30 CFR 800.11. See 89 FR 19266 (Mar. 18, 2024). West Virginia's revision to CSR 38-2-11.4.a.2 under S.B. 163 of 2018, and our subsequent approval in WV-126-FOR on March 18, 2024 (89 FR 19262), supersedes the revision addressed in this amendment and renders it moot because it was meant to exempt certain surface mining operations from a restriction that no longer exists.

Regarding the proposed language at CSR 38-2-3.27, neither S.B. 163 nor any subsequent amendment by West Virginia has altered this proposed language, but it now provides an exemption to a restriction in CSR 38-2-11.4.a.2 that no longer exists there. However, the restriction at CSR 38-2-11.4.a.2 comes almost verbatim from section 11 of WVSCMRA, W. Va. Code 22-3-11(a), which has not been amended and still exists. When we approved that statutory provision, we noted that Federal law does not specifically require that the operator's initial choice to bond the entire permit area or increments thereof be continued for the entire term of the permit, but also that West Virginia's proposal would not conflict with any Federal requirement. See 60 FR 51900, 51905-06 (Oct. 4, 1995). Therefore, an exemption from this restriction would also not conflict with Federal law.

While this vestigial reference to CSR 38-2-11.4.a.2 would not make the West Virginia program less stringent than SMCRA or less effective than the Federal regulations, we are not making a determination on the revision to CSR 38-2-3.27 at this time because it is unclear whether West Virginia intends the exemption to apply to W. Va. Code 22-3-11(a) or intends to remove it in concert with its revision to CSR 38-2-11.4.a.2. If West Virginia wants us to approve this amendment in the future, it should correct the reference and submit new language for our review.

West Virginia seeks to revise its requirements for the postmining land uses of forest land and wildlife, the use of topsoil relating to soil placement, and the use of soil substitute material in sections CSR 38-2-7.6 (Forest Land), CSR 38-2-7.7 (Wildlife), and CSR 38-2-14.3 (Topsoil).

West Virginia has proposed to amend CSR 38-2-7.6.c. 7.6.d.1, 7.7.c, 7.7.d.1, 14.3.a, and 14.3.c to address conflicting uses of the terms “topsoil,” “topsoil substitute,” “soil,” and “soil substitute” that West Virginia has asserted were apparent in their review of a Petition made to OSMRE dated June 24, 2013 pursuant to 30 CFR part 733.

Among other issues, the Petitioner alleged that WVDEP failed to enforce the SMCRA requirement at 30 U.S.C. 1265(b)(6) that operators “[r]estore the topsoil or best available subsoil which is best able to support vegetation . . . .”; however, they made no allegations of specific on-the-ground violations. To adequately evaluate the Petition, OSMRE requested information from WVDEP. In its response to OSMRE, WVDEP explained that the topsoil in portions of West Virginia is very thin and that WVDEP sometimes uses its discretion to allow the use of topsoil substitutes when an applicant has demonstrated the volume of topsoil on the permit is insufficient to meet the mandatory depth requirements for topsoil. See, e.g., CSR 38-2-7.6.c.3. WVDEP also explained that a soil substitute must not only be capable of supporting tree growth but must also provide ground cover needed to control erosion and sedimentation leaving the site. Finally, WVDEP showed that its topsoil replacement regulations, regulations granting variances, and postmining land use regulations all complied with the requirements of the approved State program in its approval of soil media in reclamation. In our response, we found that Petitioner did not appear to present any allegations in this section and, thus, determined Petitioners' allegation would not be evaluated.

West Virginia has proposed three minor revisions to CSR 38-2-14.3, including the insertion of an explicit reference to the definition of “topsoil” at CSR 38-2-2.128 to CSR 38-2-14.3.a (which definition is already part of the approved State program), replacing “Top Soil Substitutes” with “Substitute material” in the title to CSR 38-2-14.3.c, and replacing “resulting soil medium” with “resulting substitute material” in CSR 38-2-14.3.c.2. West Virginia has also proposed two more substantive changes. The existing first sentence of CSR 38-2-14.3.a requires that, before disturbance of an area, topsoil will be removed in a separate layer and either immediately redistributed or segregated and stockpiled in a separate stable location as specified in the preplan. West Virginia has proposed to insert, as the next sentence, “[p]rovided, however, if topsoil is less than 6 inches thick, the permittee may remove the topsoil and the unconsolidated materials immediately below the topsoil and treat the mixture as topsoil.” West Virginia has also proposed to begin CSR 38-2-14.3.c with a similar, related provision: “[w]here the topsoil is of insufficient quantity or poor quality for supporting and maintaining the approved postmining land use substitute material may be approved by the Secretary.”

West Virginia has also proposed to change CSR 38-2-7.6.c.2-3 and CSR 38-2-7.7.c.2-3 to replace instances of the word “topsoil” with “soil” and to provide for the use of soil substitutes. Even as amended, CSR 38-2-7.6.c.2 and CSR 38-2-7.7.c.2 explicitly cross-cite to the extensive requirements for soil substitutes at CSR 38-2-7.6.c.1 and CSR 38-2-14.3.c. West Virginia has also proposed to remove the word “soil” at various places at CSR 38-2-7.6.d.l and CSR 38-2-7.7.d.1, addressing liming and fertilizing when the soil pH is below 5.0. One instance of the word “soil” remains in each provision, and taken altogether, the regulation makes it clear that liming is required if the soil or substitute material pH is less than 5.0.

Even with these changes, the soil or soil substitute is required to be capable of supporting and maintaining the approved postmining land use, its capability for such must be based on the results of appropriate chemical and physical analysis of overburden and topsoil, and the nutrients and soil amendments must be applied to redistributed surface soil to support the approved postmining land use and meet revegetation requirements.

OSMRE Finding: Neither SMCRA nor the Federal implementing regulations define the term “soil” by itself. The Federal regulations instead define “soil horizons” as four contrasting layers of soil that are differentiated on the basis of field characteristics and laboratory data. 30 CFR 701.5. The four master soil horizons, in descending order of depth, are the A, E, B, and C horizons. Both the Federal regulations and West Virginia's CSR define “Topsoil” as the A and E soil horizon layers, while the Federal regulations add that the B horizon is “often called the subsoil.” 30 CFR 701.5; CSR 38-2-2.126. Because “topsoil” and “subsoil” are placed in specific soil horizons, any use of the word “soil”, without other descriptors, could include any of the four soil horizons, singularly or in combination.

SMCRA and its implementing regulations permit the use of topsoil substitutes in certain circumstances. See, e.g., 30 U.S.C. 1265(b)(6) (“or best available subsoil”); 30 CFR 816.22. The revisions that West Virginia proposes to add to its program bring CSR 38-2-14.3 closer in line with the Federal regulations at 30 CFR 816.22. Like West Virginia's proposed addition to CSR 38-2-14.3.a, 30 CFR 816.22(a)(2) provides “[i]f topsoil is less than 6 inches thick, the operator may remove the topsoil and the unconsolidated materials immediately below the topsoil and treat the mixture as topsoil.” West Virginia's proposed addition to CSR 38-2-14.3.c. reflects 30 CFR 816.22(a)(ii) and (b), which together allow the regulatory authority to approve the use of select overburden materials as a substitute for, or supplement to, existing topsoil where the topsoil is of insufficient quantity or poor quality for sustaining vegetation. While West Virginia's proposed addition is written to ensure supporting and maintaining the approved postmining land use, 30 CFR 816.22 refers to sustaining vegetation. West Virginia's regulations include paragraphs CSR 38-2-14.3.c.1 and CSR 38-2-14.3.c.2, which require that the substitute material be equally suitable for sustaining vegetation as the existing topsoil and that the material is the best reasonably available in the permit area to support vegetation. 30 CFR 816.22(b); CSR 38-2-14.3.c.1-2. We concluded before that these provisions are “substantively identical to the Federal requirements.” S ee 55 FR 21304, 21326 (May 23, 1990). Nothing in West Virginia's proposed additions change that conclusion. Because they are in accordance with SMCRA and consistent with the Federal regulations, we approve these amendments.

West Virginia seeks to amend CSR 38-2-14.11 (Procedures to Obtain Inactive Status) in several areas. CSR 38-2-14.11.a.1-9 provides a list of requirements that must be satisfied before the Secretary allows a permittee to cease mining and reclamation operations for a period of thirty days or more. West Virginia has proposed to change one of these requirements at CSR 38-2-14.11.a.6, which required the permittee to make a detailed showing “that the cessation is necessary because of temporary market conditions which are likely to change in the period for which the temporarily inactive status is sought.” West Virginia has proposed to amend this requirement to remove references to temporary or changing market conditions, and simply state that the permittee must show that “cessation is necessary due to market conditions.”

West Virginia has proposed to delete CSR 38-2-14.11.c, which provided for a notice and public comment period for inactive status requests. West Virginia has also proposed to amend CSR 38-2-14.11.d to remove a reference to the deleted public review process, delete a provision limiting the total time granted for inactive status to three (3) years, and delete a provision requiring the applicant to demonstrate the need for extension due to of litigation, labor strike, or if equipment is kept on the permit during the inactive period. With West Virginia's revision, an extension could be granted if an applicant shows that the extensions are necessary and that all provisions of CSR 38-2-14.11.a are satisfied.

West Virginia also has proposed to amend CSR 38-2-14.11.e and CSR 38-2-14.11.f to change the period within which inactive preparation plants, load-out facilities, and underground mining operation must be capable of resuming operations from sixty days to 180 days. Furthermore, West Virginia has proposed to delete the provision at CSR 38-2-14.11.h (related to duration of inactive status for preparation plants, load-out facilities, underground mining operations, and coal refuse sites) that required a permittee to maintain full-cost bonding in effect for the life of the operation, allowing instead that such bonding will remain in effect until the permittee requests termination of inactive status and requests a recalculation of the bond in accordance with W. Va. Code 22-3-11, W. Va. Code 22-3-12, and CSR 38-2-11 (Insurance and Bonding).

OSMRE Finding: Regarding the proposed change to the market conditions showing, the Federal regulations at 30 CFR 816.131 and 817.131 require that a permittee who is seeking inactive status must submit to the regulatory authority a notice of its intention to cease or abandon mining and reclamation operations, include a statement of the exact number of acres that will have been affected in the permit area, the extent and kind of reclamation of those areas that will have been accomplished, and identify the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation. The Federal regulations do not require any finding from the regulatory authority that the cessation is necessary due to market conditions, labor strike, litigation, or upon a showing that the permittee will keep operable equipment onsite.

Regarding the proposed removal of the public notice and comment period for inactive status applications and extension requests, while the Federal regulations do require public review for permit applications, significant revisions to a permit, or renewals of a permit, they do not require public review for permittee applications for temporary cessation of operations. 30 CFR 773.6, 816.131, and 817.131.

Regarding the proposed changes to procedures and time limits for obtaining inactive status, the Federal regulations addressing applications for temporary cessation of operations only require a permittee to submit to the regulatory authority a notice that includes a statement of the exact number of acres that will have been affected in the permit area before such temporary cessation, the extent and kind of reclamation of those areas which will have been accomplished, and identification of the backfilling, regrading, revegetation, environmental monitoring, and water treatment activities that will continue during the temporary cessation. 30 CFR 816.131(b) and 817.131(b). West Virginia's regulations, even as amended, contain safeguard provisions before a permittee may obtain inactive status. These include that the site must remain in full compliance with all standards of the program and permit, including but not limited to contemporaneous reclamation; no outstanding violations or penalties are allowed to exist; significant coal reserves for the mine must remain; all disturbed acreage is bonded; and all required and necessary backfilling, regrading, revegetation, environmental monitoring, and water treatment activities will continue on the mine site. See CSR 38-2-14.11.a.1-9. The proposed amendments do not alter the force or effect of those West Virginia provisions that fulfill the minimum Federal requirements.

Accordingly, we approve of the proposed revisions because they are no less stringent than SMCRA and are as effective as Federal regulations at 30 CFR 816.131 and 817.131. We also note that, while no renumbering is apparent on the face of West Virginia's submission, subsequent corrective renumbering to these provisions may occur without our approval.

West Virginia has proposed to revise many provisions that placed time and distance limits on different types of mining operations. West Virginia proposed to amend CSR 38-2-14.15.b.1, which prohibits more than thirty-five acres of disturbed and unreclaimed acreage on an operation consisting only of a single seam contour mining operation, without augering, on steep or non-steep slopes. West Virginia has proposed to strike the thirty-five acre limit. Furthermore, CSR 38-2-14.15.b.1 continued to require that grading and backfilling shall follow the mineral removal by a period not to exceed sixty days or a distance of 1,500 linear feet. West Virginia has proposed to add, “[p]roviding the provisions of 14.15.d are satisfied”, incorporating by reference the requirements for excess spoil disposal fills.

CSR 38-2-14.15.b.2 provides that for single seam contour mining and augering or highwall mechanical mining operations on steep or non-steep slopes, grading and backfilling must be completed within a certain time limit. West Virginia seeks to extend the time limit from thirty days to 180 days. West Virginia has also proposed to revise CSR 38-2-14.15.b.3, which formerly provided that, for augering or highwall mechanical mining operations only on steep or non-steep slopes, the grading and backfilling must follow the augering or highwall mechanical mining by a period not to exceed thirty days or a distance of not more than 1,000 linear feet. West Virginia has proposed to increase the time limit and highwall length to sixty days and 1,500 linear feet respectively.

West Virginia has proposed to revise CSR 38-2-14.15.b.4 to strike a provision that applied to all area mining operations, limiting the maximum open pit size to 3,000 linear feet and requiring that backfilling and grading occur within 180 days of mineral removal. West Virginia has proposed to replace these general provisions with new language specifying time and distance limits for single seam mining operation as opposed to multiple seam operations. In the proposed language, single seam area operations retain the former time and distance limits. The proposed language would add that multiple seam operations are limited to 3,000 feet for the initial pit with subsequent cuts of the next underlying seam occurring within 180 days, while backfilling and grading would be required within 180 days of mineral removal from the lowest seam to be mined. West Virginia has also proposed to implement these time and distance rules that distinguish between single seam and multiple seam operations at CSR 38-2-14.15.b.5, CSR 38-2-14.15.b.6.A, and CSR 38-2-14.15.b.6.B.2.

West Virginia has proposed to strike certain exceptions to time and distance requirements at CSR 38-2-14.15.b.6.B.1 relating to pre-stripping or benching on entire coal seam removal operations that use draglines with a bucket capacity of greater than forty-five cubic yards. CSR 38-2-14.15.b.6.B.1 prohibits pre-stripping or benching operations from exceeding 400 acres for any single permit, and that such cannot precede dragline operations more than twenty-four months unless otherwise approved by the Secretary, or as necessary to satisfy AOC+ requirements, specific postmining land use requirements, or special materials handling facilities requirements. The proposed changes would leave exceptions simply at the discretion of the Secretary, striking the list of additional exceptions beginning “or as necessary to satisfy. . . .” West Virginia has also proposed to strike the final sentence of CSR 38-2-14.15.b.6.B.1, which required that all fill construction must occur during the pre-stripping or benching phase of the operation and be conducted in accordance with CSR 38-2-14.15.d.

Similar to the proposed changes to CSR 38-2-14.15.b.6.B.1, West Virginia has proposed to strike the additional enumerated exceptions to the time requirement at CSR 38-2-14.15.d.1 for the construction of excess spoil disposal fills, which required that spoil fills cannot have a period of inactivity exceeding 180 days unless otherwise approved by the Secretary or certain other conditions exist. The proposed amendment would leave such exceptions to the discretion of the Secretary. West Virginia has also proposed to strike CSR 38-2-14.15.d.3 in its entirety. This provision required that operations that propose excess spoil disposal fills designed with erosion protection zones must bond the proposed fill areas based upon the maximum amount per acre specified in W. Va. Code 22-3-12(b)(1). This would allow the amount of bond required to be posted for such operations to be between $1,000 and $5,000 per acre, rather than requiring bond to be set at the maximum of $5,000 per acre.

OSMRE Finding: The Federal regulations formerly provided schedules for backfilling and grading time and distance requirements for several types of mining operations at 30 CFR 816.101, but these have been suspended indefinitely. See 57 FR 33875 (July 31, 1992). The only remaining Federal guidance on timing is at 30 CFR 816.100 and 817.100, which state that contemporaneous reclamation efforts, including backfilling, grading, topsoil replacement, and revegetation must occur as contemporaneously as practicable. As a result, neither SMCRA nor the Federal regulations provide specific time and distance requirements for backfilling and grading, and there is no Federal counterpart to the time and distance limits which West Virginia has proposed to amend at CSR 38-2-14.15.b.1-4 and CSR 38-2-14.15.b.6.B.1. Furthermore, neither SMCRA nor the Federal regulations provide time requirements for the construction of excess spoil fills or an inactivity period that match those at CSR 38-2-14.15.d.1 which West Virginia has proposed to amend. As we noted in our prior approval of CSR 38-2-14.15.d.3, which required that operations that propose excess spoil disposal fills that are designed with erosion protection zones must bond the proposed fill areas at a set amount, no direct Federal counterpart of this provision exists. See 85 FR 27139 (May 7, 2020).

Because the proposed changes and deletions at CSR 38-2-14.15.b and CSR 38-2-14.15.d will not make these regulations less stringent than sections 515(b)(16) and (b)(22) of SMCRA (30 U.S.C. 1265(b)(16) and (b)(22)) or less effective than the Federal regulations at 30 CFR 816.71, 816.100, and 816.102, we approve these proposed amendments.

West Virginia has proposed to amend CSR 38-2-14.15.g, which specifies that when the Secretary has approved a permit variance from one or more standards related to the contemporaneous reclamation, the amount of bond will be based on the maximum amount per acre specified in W. Va. Code 22-3-12(b)(1). West Virginia has added language that such bond shall remain in effect until the permittee requests termination of variance and requests a recalculation of the bond.

OSMRE Finding: West Virginia law sets the minimum bond for a permit at $10,000 and require the per acre bond to be set between $1,000 and $5,000 dollars per acre, vesting the Secretary with substantial discretion to choose the proper amount of bond required based on a large number of site and operation parameters. W.Va. Code 22-3-11; CSR 38-2-11.5. SMCRA and the Federal regulations also set the minimum bond amount for a permit at $10,000. 30 U.S.C. 1259(a); 30 CFR 800.14(b). Neither SMCRA nor the Federal regulations provide specific per-acre bonding fees, leaving such to the discretion of the regulatory authority based on the site conditions and the nature of the mining operation. 30 U.S.C. 1259(a); 30 CFR 800.14(a). SMCRA and the Federal regulations also allow the bond amount to be adjusted upward or downward by the regulatory authority, as affected land acreages are increased or decreased or where the cost of future reclamation changes. 30 U.S.C. 1259(e); 30 CFR 800.15. We find that the proposed revision, allowing recalculation of the bond at the termination of a variance, is no less effective than the Federal provisions at 30 CFR 800.11, and no less stringent than section 509 of SMCRA (30 U.S.C. 1259). Therefore, we approve this amendment.

CSR 38-2-22.3.t.4 states “[a]t abandonment, all fine refuse in the impoundment pool shall be covered with a minimum three foot layer of coarse refuse or other fill material prior to topsoiling unless otherwise approved by the Secretary.” West Virginia has proposed to replace the phrase “prior to topsoiling” with the phrase “prior to being covered with the non-toxic and non-combustible material.” This material is described in further detail at CSR 38-2-22.3.t.5. This revision is related to the foregoing amendments addressing terminology differences between “topsoil”, “soil”, and “soil substitutes”.

OSMRE Finding: Neither SMCRA nor the Federal regulations at 30 CFR 780.25(c)-(e), 784.16(c)-(e), 816/817.81, 816/817.83, and 816/817.84, which relate to coal processing waste banks, dams, embankments, and impoundments, specify any type of soil or material that should be used for the coarse refuse layer covering fine refuse in an impoundment pool. We approve of the proposed revision regarding coal refuse disposal abandonment plans because we find that it is no less stringent than sections 515(b)(5), (11), (13), and (f) of SMCRA (30 U.S.C. 1265(b)(5), (11), (13), and (f)) and no less effective than the Federal regulations at 30 CFR 780.25(c)-(e), 784.16(c)-(e), 816.81, 817.81, 816.83, 817.83, 816.84, and 817.84.

We asked for public comments (Administrative Record No. 1616) on the amendment (Document ID No. OSM-2016-0012). None were submitted.

On April 5, 2019 (Administrative Record No. 1616), under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the West Virginia program. We received comments from one agency.

By letter dated April 26, 2019 (Administrative Record No. 1625), the United States Forest Service (USFS) within the Department of Agriculture responded with a list of thirty-three (33) comments, which we have summarized, grouped, and addressed in the following 11 general comments.

Comment 1: USFS commented on CSR 38-2-7.6.c.2 as follows. The term `topsoil' refers to a specific type of soil that has a nutrient status to support seedbed establishment. Topsoil specifically refers to soils that are higher in organic matter and often available nutrients as opposed to subsoil. Also, topsoil has a specific legal definition as defined by the USDA with regard to soil designated as Prime Farmland and other special designations such as hydric soils. It is highly recommended to not leave root balls in the soil or soil substitute. Once this organic material decomposes, it will leave a depression on the surface which on slopes could become instability concerns. It is recommended to only leave them on the soils. Leaving them on the soils will increase organic matter of the soil or soil substitute and also aid in sediment/erosion retention.

OSMRE Response: As explained in more detail in our finding in section III.2, neither SMCRA nor the Federal implementing regulations define the term “soil” by itself; instead, the Federal regulations instead define “soil horizons” as four contrasting layers of soil that are differentiated on the basis of field characteristics and laboratory data. 30 CFR 701.5.

West Virginia's proposed revisions bring CSR 38-2-14.3 closer in line with the Federal regulations at 30 CFR 816.22, which permit the use of topsoil substitutes. Like West Virginia's proposed addition to CSR 38-2-14.3.a, 30 CFR 816.22(a)(2) provides “[i]f topsoil is less than 6 inches thick, the operator may remove the topsoil and the unconsolidated materials immediately below the topsoil and treat the mixture as topsoil.” West Virginia's proposed addition to CSR 38-2-14.3.c. reflects 30 CFR 816.22(a)(ii) and (b), which together allow the regulatory authority to approve the use of select overburden materials as a substitute for, or supplement to, existing topsoil where the topsoil is of insufficient quantity or poor quality for sustaining vegetation. West Virginia's regulations include subsections CSR 38-2-14.3.c.1 and CSR 38-2-14.3.c.2, which require that the substitute material be equally suitable for sustaining vegetation as the existing topsoil, and that the material is the best reasonably available in the permit area to support vegetation. 30 CFR 816.22(b); CSR 38-2-14.3.c.1-2.

Substitute materials usually have adequate nutritional value but lack organic matter and a seed pool. The topsoil/soil substitute process under CSR 38-2-14.3.c requires comparing the chemical and physical analysis of proposed substitute materials to the existing soil. Substitutes are selected based on nutrient analyses and the ability to meet the proposed postmining land use. Also, by allowing the removal of subsoil with the topsoil under the proposed changes to CSR 38-2-14.3.a, most of the seed pool and organic matter will be captured and redistributed. Incorporating root balls in and on the surface adds organic matter, helps salvage the seed pool, and creates perches for birds to further distribute seeds.

Regarding USFS's comment that root balls left in the soil could decompose and cause instability issues on slopes, we have discovered that salvaging and redistributing the organic matter, including root balls, the topsoil, and the subsoil, all in one process is more efficient to the operator than salvaging and redistributing these materials in separate steps. It also helps minimize the compaction of the growth medium by reducing the number of times the operator must pass over the growth medium with heavy equipment to redistribute these materials. West Virginia has salvaged and redistributed organic matter, including root balls during the reclamation process for the last 15 years, and no stability issues have resulted from this practice. When the root balls buried in the growth medium decompose, it could also create an undulating feature to the surface, which would mimic a more natural condition.

While we appreciate the explanation and concerns raised by the USFS, as explained above, the amendment as proposed is in accordance with SMCRA and consistent with the Federal regulations. Thus, as explained above, we are approving the amendment.

Comment 2: USFS commented on CSR 38-2-7.6.d, stating that, if the desired postmining land use is tree establishment or grass/herbaceous cover, soil medium, whether that be native topsoil/subsoil or alternative soil-like material, “soil” instead of crushed rock will be necessary for the success of revegetation. It is suggested to leave the word “soil” or include “soil or soil substitute pH.” It is also recommended that soil tests be taken and sent to a lab for fertilizer/lime recommendations.

OSMRE Response: Topsoil substitutes have been used for decades in West Virginia for forestland, wildlife habitat, and other postmining land uses that require the establishment of trees with good results. The resulting growth medium is more than just crushed rock. Furthermore, the proposed changes to CSR 38-2-7.6.c.2 require that “the use of soil substitutes may be approved by the Secretary providing the applicant demonstrates: the volume of soil on the permit area is insufficient to meet the depth requirements of 7.6.c.l, the substitute material consists of at least 75% sandstone, has a composite paste pH between 5.0 and 7.5, has a soluble salt level of less than 1.0 mmhos/cm, and is in accordance with 14.3.c.” The requirements at CSR 38-2-14.3.c provide many requirements for the quality of substitute material, including that such must be capable of supporting and maintaining the approved postmining land use, that this determination be based on the results of appropriate chemical and physical analysis of overburden and topsoil, that such analyses include at a minimum depth, thickness, and areal extent of the substitute structure or soil horizon, pH, texture class, percent coarse fragments and nutrient content, and that there is a certification of this analysis made by a qualified laboratory.

The growth medium is described by the plan preparer, a registered professional forester for permits with a forestland postmining land use or a biologist employed by the West Virginia Division of Natural Resources for permits with a wildlife postmining land use. The resulting growth medium is usually a mixture of substitute material (crushed rock), pre-mining native soil (subsoil and as much topsoil as possible), and organic material. Standards for success under CSR 38-2-7.6.f for forestland, and CSR 38-2-7.7.f for wildlife, also mandate the number of live trees per acre and percent of ground cover for bond release.

With the requirements of the planting plan preparer under CSR 38-2-7.6.b.1.A and CSR 38-2-7.7.b.1.A, the soil substitutes requirements of CSR 38-2-7.6.c and CSR 38-2-7.7.c, the standards of success of CSR 38-2-7.6.f and CSR 38-2-7.7.f, and the certification process under CSR 38-2-14.3.c, the resulting growth medium should never be just crushed rock.

We can infer that the pH is referring to the soil or soil substitutes in CSR 38-2-7.6.d.l and in CSR 38-2-7.7.d.1 from context. The term soil appears to have been removed to clarify its application to substitutes in addition to topsoil or subsoil.

Soil testing for lime and fertilizer is required at CSR 38-2-14.3.d: “[n]utrients and soil amendments in the amounts determined by soil tests shall be applied to the redistributed surface soil layer so that it supports the approved postmining land use and meets the revegetation requirements of section 9 of this rule. These tests shall include nutrient analysis and lime requirement tests. Results of these tests shall be submitted to the Secretary with the final planting report as required by this rule.” These soil tests are usually taken by the operator before hydroseeding the lime, fertilizer, and seed all in one process. The substitute process also requires testing of the soil and the proposed substitutes. Acid-base accounting is also required on all rock layers in the mineral removal area. Also, the planting plan at CSR 38-2-9.2.g.2 requires that “[t]he proposed treatment to neutralize acidity” be applied, and at CSR 38-2-9.2.g.4 “[t]he application rates and analysis of fertilization” be noted.

We appreciate the comment, but we do not agree that retaining the word “soil” or replacing it with “soil or soil substitute pH” is necessary for this portion of West Virginia's program to be in accordance with SMCRA and consistent with the Federal regulations. As proposed, West Virginia's proposal complies with both 30 CFR 816.22 and CSR 38-2-14.3. We also do not agree that soil tests be taken and sent to a lab for fertilizer/lime recommendations in this amendment because the requirement for soil tests to be taken and sent to a lab for fertilizer/lime recommendations is already addressed under 30 CFR 816.22, CSR 38-2-14.3, and CSR 38-2-9.2.i.1, and this amendment does not change that requirement.

Comment 3: USFS commented on CSR 38-2-7.7.d.2, suggesting that this language become the primary requirement instead of providing the minimum/maximum rates and then providing this as the secondary option.

OSMRE Response: We value USFS's suggestion, but, in approving program amendments, we can only consider the submissions of the State, and West Virginia did not submit any proposed changes to CSR 38-2-7.7.d.2. Thus, we are not making any changes as a result of this comment.

Comment 4: USFS suggested the addition of this language: “Fertilizer and lime rates will be based on soil testing performed by State certified laboratories.”

OSMRE Response: Under West Virginia's program at CSR 38-2-14.3.d, soil tests, including nutrient analysis and lime requirement tests, must be performed and submitted to the State. Likewise, under CSR 38-2-9.2.g.2, the planting plan must contain a statement on how to treat to neutralize acidity. CSR 38-2-7.6.d.1 requires specific liming requirements for a postmining land use of forestland. This standard must be clearly stated in the permit application (planting plan) and is based on past performance. Alternate rates are available, if stated in the planting plan and based on the revegetation species. While we appreciate USFS's suggestion, because this portion of the West Virginia program, as amended, is in accordance with SMCRA and consistent with the Federal regulations, we are not making any changes.

Comment 5: USFS commented on CSR 38-7.7.e, regarding revegetation and seeding methods that provide initial seeding, which includes a mixture of erosion control species and natives, and then a subsequent seeding with the desired native species.

OSMRE Response: While we applaud the use of native species, we are concerned with requiring native species in the temporary seed mixtures, permanent seed mixtures, and tree and shrub mixtures. The provision at CSR 38-2-7.7.e.l requires that “cover shall consist of a combination of native and domesticated non-competitive and non-invasive cool and warm species grasses and other herbaceous vine or shrub species including legume species and shrubs.” Most ground covers are established by hydroseeding seed, lime, and fertilizer all in one process. Surface mining permits can cover a very large area, so it is important to complete this process as efficiently as possible. Rarely will the entire mine area be hydroseeded more than once, so the erosion control species should be included with the desired native ground covers. The cost and availability of native seed must also be considered, especially on this scale. Flexibility must be allowed in the species mix to match the site-specific conditions over the entire State. Therefore, we are not making any changes to our decision as a result of this comment.

Comment 6: USFS commented on CSR 38-2-14.3.a stating that it recommends changing the provision to read as follows:

USFS added that it is not recommended to allow topsoil to be mixed with full subsoil plus unconsolidated rock material because it will make nutrients, organic material, and microbes that are beneficial for the planting medium unavailable for plant uptake during reclamation. Even though “topsoil” may be less than 6 inches, the benefits of topsoil, (organic matter, microbiological component, available plant nutrients, etc.) even if the horizon is 1-2 inches, are important and necessary for successful reclamation. USFS recommended that CSR 38-2-14.3 specifies a depth of material that may be removed and included below the topsoil.

OSMRE Response: We agree with the USFS that topsoil is extremely important for reforestation purposes. However, it is extremely difficult to salvage and redistribute a thin layer of topsoil on the steep slopes of southern West Virginia for reforestation purposes. Stripping and redistributing this material along with the subsoil and/or weathered sandstone just below the topsoil has proven very effective. Stripping and redistributing this material in one step are also more efficient for the operator and reduce the number of times the operator must pass over the growth medium, minimizing the compaction of this material. Stockpiling of topsoil can also be detrimental to the biota. We encourage stripping of this material and immediately redistributing the material in the contemporaneous reclamation.

The West Virginia State program is consistent with this practice and that espoused in the Forestry Reclamation Approach (FRA) as advocated by the Appalachian Regional Reforestation Initiative (ARRI), which recommends a four-foot-thick growth medium comprised of topsoil, soil, or the best available material. The FRA provides that mixing these materials provides an excellent growth medium for reforestation purposes. Topsoil provides organic material, biota, and a seed pool. Subsoil provides fines for moisture retention. Substitute materials such as weathered and unweathered sandstone provides pore space, which allows for aeration, root penetration, and infiltration of water, and mimics a more natural soil surface for reforestation purposes than using just soil. Mixing these materials has proven very effective for mine land reforestation plan to avoid stockpiling.

Likewise, the West Virginia program at CSR 38-2-7.6.c.1 and 7.7.c.1, states that “[e]xcept for valley fill faces, soil or soil substitutes shall be redistributed in a uniform thickness of at least four feet across the mine area.” Thus, the West Virginia State program ensures that enough soil and soil substitutes will be stripped and redistributed to meet the requirements of SMCRA. Therefore, we are making no changes to our approval of this portion of the program amendment as a result of this comment.

Comment 7: USFS commented on CSR 38-2-14.3.c. that the term “topsoil” should be replaced with the term “Soil Substitute Material”.

OSMRE Response: While we recognize that West Virginia's program could have been clearer, we note that the proposed title of subsection c of CSR 38-2-14.3, “Substitutes material,” appears within section CSR 38-2-14.3, which is entitled “Topsoil.” This structure provides some clarity for a reader to understand that this section refers to soil substitutes in general. Thus, whatever potential ambiguity that there may be, we do not find it rises to the level for us to deny this portion of the program amendment proposed by West Virginia.

Comment 8: USFS commented on subsection 14.3.c. to recommend that West Virginia use the suggested language: “This determination of capability shall be based on the results of appropriate chemical and physical analysis of overburden and topsoil material. An analysis of overburden material shall include at a minimum depth, thickness, pH, geochemical analysis, and areal extent of the material wanting to be used as substitute. An analysis of substitute topsoil material shall include at a minimum pH, texture, structure, percent coarse fragments, and nutrient content. A certification for all analyses for desired substitute material shall be made by a qualified laboratory stating such.”

OSMRE Response: Although we believe the process contained in West Virginia's program as part of the soil analyses required in the pre-mining native soil inventory at CSR 38-2-7.6.b.1.A.1 and in the substitute process under CSR 38-2-14.3.c captures the geochemical analyses recommended in the USDA comment, we recommend that West Virginia consider the USFS comment if it makes future revisions to this aspect of its State program. However, this comment does not indicate that the current West Virginia program is not in accordance with SMCRA or inconsistent with the Federal regulations; thus, we still approving this portion of the amendment as proposed by West Virginia.

Comment 9: The USFS recommended that West Virginia change the language of CSR 38-2-14.3.c.l. The USDA also stated that if the permittee is proposing substitute material due to insufficient quantity, but acceptable quality, the proposed substitute material should be of equal or greater suitability for sustaining vegetation and existing topsoil. If the permittee is proposing substitute material due to sufficient quantity, but poor quality, the proposed substitute material should be suitable for sustaining vegetation and the intended postmining land use designation;”

OSMRE Response: CSR 38-2-14.3.c.l requires that the proposed substitute material is equally suitable for sustaining vegetation as the existing topsoil. We recognize that the language that USFS is proposing could be a good alternative, but, as proposed by West Virginia, this program amendment is consistent with 30 CFR 816.22; therefore, we are approving this part of West Virginia's program as proposed.

Comment 10: USFS suggested that the following statement be added to CSR 38-2-14.3.c.3: “The analyses were conducted using standard testing procedures. These methodologies along with the QA/QC will be included in a final report along with the results of the analyses.”

OSMRE Response: While we understand the point USFS is making with this proposed addition, such a requirement is not necessary for the amendment to be in accordance with SMCRA and consistent with the Federal regulation.

Comment 11: USFS commented on CSR 38-2-22.3.t.4, suggesting that changing the term “top soiling” to “being covered with the non-toxic and non-combustible material” is overly inclusive of potential material. The USFS recommends consistency with the rewording used previously in the document for topsoiling, such as “soil or suitable soil substitute.”

OSMRE Response: While we understand the concern of the USFS, West Virginia's proposal is in accordance with SMCRA and consistent with the Federal regulations and we are approving this part of West Virginia's as proposed. We also note that, at abandonment, all fine refuse in the impoundment pool must be covered with a minimum three-foot layer of coarse refuse or other fill material before being covered with the non-toxic and non-combustible material unless otherwise approved by the Secretary. Replacing the term “topsoil” with the phrase “being covered with the non-toxic and non-combustible material” will make the language more consistent with other provisions of the rule. This cover is intended as a growth medium but concerns over the chemistry and combustibility of this material are paramount.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). OSMRE determined that none of the proposed State revisions pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on April 5, 2019, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. 1616). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 5, 2019, we requested comments on West Virginia's amendment (Administrative Record No. 1616). We did not receive comments from the SHPO or ACHP.

Based on the above findings, we are approving in part the amendment (WV-124) that West Virginia submitted on June 14, 2016 (Administrative Record WV-1606). In particular, we are approving the proposed amendments to CSR 38-2-7.6.c-d (Forest land), CSR 38-2-7.7.c-d (Wildlife), CSR 38-2-14.3 (Topsoil), CSR 38-2-14.11 (Inactive Status), CSR 38-2-14.15.b.1 through CSR 38-2-14.15.b.6.B.2 (Contemporaneous Reclamation, Backfilling and Grading), CSR 38-2-14.15.d.1-3 (Excess Spoil Disposal), CSR 38-2-14.15.g (Variance), and CSR 38-2-22.3(t)(4) (Coal Refuse—Abandonment Plan). We are making no determination about CSR 38-2-3.27 (Permit Renewals) because it is moot. We are also making no determination about CSR 38-2-11.4.a.2 (Incremental Bonding) because the proposed amendment contains an apparent reference to an obsolete provision that must be corrected or clarified before we can review.

To implement this decision, we are amending the Federal regulations, at 30 CFR part 948, which codify decisions concerning the West Virginia program. In accordance with the Administrative Procedure Act (5 U.S.C. 533), this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA (30 U.S.C. 1253(a)) requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rule would not result in a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993 (OMB Memo M-94-3), the approval of State program amendments is exempted from OMB review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by section 3 of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction.

Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive order did not extend to the language of West Virginia regulatory program or amendment that West Virginia drafted.

This rule has potential Federalism implications as defined under section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. West Virginia, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves most of an amendment to the West Virginia program submitted and drafted by the State except for certain provisions that we deem to be moot as explained in our finding at section III.1 above. Thus, our approval of this rule is consistent with the direction to provide maximum administrative discretion to States.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal Government and Tribes.

The basis for this determination is that our decision on the West Virginia program does not include Indian lands as defined by SMCRA or other Tribal lands, and it does not affect the regulation of activities on Indian lands or other Tribal lands. Indian lands under SMCRA are regulated independently under the applicable Federal Indian program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.

Executive Order 13211 requires agencies to prepare a statement of energy effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not significant energy action under the definition in Executive Order 13211, a statement of energy effects is not required.

State program amendments are not regulatory actions under Executive Order 14192 because they are exempt from review under Executive Order 12866 (OMB Memo M-94-3).

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.

This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon corresponding Federal regulations for which an economic analysis was prepared, and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2). This rule: (a) does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) 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 determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.

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. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

For the reasons set out in the preamble, 30 CFR part 948 is amended as set forth below:

Subject to OSMRE's oversight, section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. 30 U.S.C. 1253(a)(1); 30 U.S.C. 1253(a)(7). Based on these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find additional background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

West Virginia revised its Code of State Regulations (CSR) and the West Virginia Code (W.Va. Code), as reflected in four bills enacted by the legislature in 2009: Senate Bill (SB) 153, SB 436, SB 600, and SB 1011. The amendment approved by this final rule covers a variety of topics, including continuing oversight by the Secretary of the West Virginia Department of Environmental Protection (WVDEP) of “approved persons” who prepare, sign, or certify mining permit applications and related materials; incidental boundary revisions (IBRs) to existing permits; deletion of the Coal Bonding Calculations Tables; changing the term “Bio-oil” to “Bio-fuel”; clarifying standards at CSR 38-2-9.3.f that pertain to West Virginia's regulatory program for revegetation success standards for areas developed for hayland or pasture use; and adjusting the per-ton coal tax.

By letter dated May 11, 2009 (Administrative Record No. WV 1522), WVDEP submitted one of several amendments regarding its approved regulatory program under West Virginia's Surface Mining Reclamation Regulations at CSR title 38, series 2. This amendment includes regulatory revisions implemented by the passage of SB 153, which was adopted by the West Virginia Legislature on April 8, 2009, and signed into law by the Governor on April 30, 2009.

SB 153 included provisions for the continued oversight of “approved persons” who prepare, sign, or certify mining permit applications and related materials. The bill also included provisions modifying IBR requirements for existing permits by clarifying that certain types of collateral activities are deemed parts of the primary mining operations and, therefore, subject to the same acreage limitations while providing additional criteria for the WVDEP Secretary to consider in evaluating an application for revision. The bill deletes the requirement that the Secretary must advertise all IBR applications and provide a 10-day public comment period and would instead allow IBRs deemed “insignificant” to be approved without public notice. In addition, the bill deleted the Coal Bonding Calculations Tables without changing the regulatory criteria the tables represented, changed the term “Bio-oil” to “Bio-fuel,” and clarified revegetation standards for hayland and pasture use. We initially determined that the change from “Bio-oil” to “Bio-fuel” was non-substantive and that soliciting public comment was unnecessary, but we later sought further clarification from WVDEP about the use of those terms, as further discussed below.

By letter dated May 22, 2009 (Administrative Record No. WV 1521), WVDEP submitted two additional legislative enactments, SB 436 and Committee Substitute SB 600. SB 436 was adopted by the West Virginia Legislature on April 3, 2009, and was signed into law by the Governor on April 11, 2009. SB 600, which authorized changes to West Virginia's alternative bonding system, was passed by the Legislature on April 10, 2009, and was signed into law by the Governor on May 4, 2009, with an effective date of July 1, 2009.

SB 436 amended W.Va. Code 22-3-8. In addition to non-substantive textual changes, SB 436 replaced references to certain defunct agencies at W.Va. Code 22-3-8(6)(A) by substituting their modern analogs. The May 22, 2009, letter advised that West Virginia considers the revisions authorized by SB 436 to be non-substantive changes and requested that they not be included in the proposed rule. Given the nature of the changes, we concurred with West Virginia's assessment and found them to be non-substantive changes. Therefore, we did not solicit public comment on these revisions in the October 21, 2009, proposed rule. Further, because the revisions amended a statutory provision of West Virginia's approved program, we are approving them without specific findings.

SB 600, also transmitted by the May 22, 2009, letter, amended W.Va. Code 22-3-11. As stated in West Virginia's May 22, 2009, letter transmitting the amendment for approval on an interim basis, SB 600 amended Section 22-3-11 “to implement actuarial recommendations relating to the continuing fiscal viability of the Special Reclamation Fund.” The letter explained that the “legislation consolidates what has been known as `the 7-and-7.4 tax' (the 7.4 [cents per ton] portion of which is currently subject to annual renewal) into a 14.4 cent tax per ton of clean coal mined, reviewable every 2 years by the Legislature.” We approved the revision on an interim basis and solicited public comment in the Federal Register on July 22, 2009 (74 FR 36113) (Administrative Record No. WV 1528). The public comment period on the interim rule closed on August 21, 2009.

By letter dated July 6, 2009 (Administrative Record No. WV 1523), WVDEP also submitted a copy of SB 1011. SB 1011 amended the West Virginia Code at 22-3-10, 5B-2A-3, 5B-2A-5, 5B-2A-6, and 5B-2A-9. The amendments require surface mine reclamation plans to comport with approved master land use plans, as defined at CSR 145-8-2.11, and authorize surface mine reclamation plans to contain alternative postmining land uses. SB 1011 was passed by the West Virginia Legislature on June 2, 2009, and was signed into law by the Governor on June 17, 2009.

In sum, West Virginia submitted a total of three letters relevant to this final rule (May 11, 2009, May 22, 2009, and July 9, 2009), transmitting four legislative enactments (SB 153, SB 436, SB 600, and SB 1011). As noted above, the changes enacted in SB 600 were adopted in an interim rule published on July 22, 2009 (74 FR 36113), and public comment was solicited. The changes reflected in SB 153, SB 436, and SB 1011 were announced in a notice of proposed rulemaking published in the Federal Register on October 21, 2009 (74 FR 53972). In the October 21 notice, we opened the public comment period on the proposed rule and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendments (Administrative Record No. WV 1533). We did not hold a hearing or a meeting because none were requested. The public comment period closed on November 20, 2009.

Additional administrative events in connection with WVDEP's 2009 submissions followed in 2010 and 2011. While responding to a request we submitted by email on July 26, 2010 (Administrative Record No. WV 1544), we asked WVDEP to provide a definition of “Bio-oil” and “Bio-fuel” and an explanation of the differences between them. WVDEP explained that bio-fuels “are a wide range of fuels which are derived from biomass.” WVDEP noted that the term bio-fuel “covers solid biomass, liquid fuels, and various biogases while bio-oil was limited to biodiesel.” Given WVDEP's explanation, we reopened the 15-day comment period on February 7, 2011 (76 FR 6589) in order to afford the public the opportunity to comment on the proposed amendment to change an allowed type of cropland postmining land use from “bio-oil” to “bio-fuel.” We did not hold a hearing or a meeting because none were requested. The public comment period closed on February 22, 2011.

In a November 9, 2011, response to our June 7, 2011, letter (Administrative Record No. WV 1559), WVDEP submitted additional clarification on its use of cropland for bio-fuel production as a postmining land use (Administrative Record No. WV 1559). In addition, WVDEP submitted West Virginia's Noxious Weed Act Rules (title 61, series 14A) of 1976 and the Federal Noxious Weed List as of January 6, 2006 (Administrative Record No. WV 1574).

We approve in part and disapprove in part the revisions proposed by West Virginia as described below. We made the following findings about West Virginia's amendments as provided under SMCRA and the Federal regulations at 30 CFR 730.5, 732.15, and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov, searchable by the docket ID numbers referenced at the top of this notice.

West Virginia amended CSR 38-2-3.15 by changing a reference to section “13(b)(10)” of the Act to “13(b)(10)(C)” to clarify when an approved person must be a registered professional engineer or licensed land surveyor. West Virginia also amended CSR 38-2-3.15.b by adding language to require that an approved person's approval be in writing, the approval is subject to annual renewal, and that approvals and renewals be granted on the basis of the criteria set forth in subsections 3.15.b.1 through 3.15.b.2.

While there is no direct Federal counterpart to this requirement, we find that, as amended, subsections 3.15.a and 3.15.b are no less effective than the Federal requirements pertaining to professional certification and other application requirements under the provisions of 30 CFR 777.11(c) (concerning application oath requirement), 777.13(b) and 780.14(c) (imposing various professional certification requirements), and that these requirements are in accordance with sections 507(b)(14) and 515(b)(10)(B)(ii) of SMCRA, 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii) (setting professional certification requirements for submission of cross-sections, maps, or plans, and for design of siltation structures). For these reasons, we approve these changes.

West Virginia has proposed to add new language at CSR 38-2-3.15.b.3 that requires an approved person, as defined in CSR 38-2-3.15.a, to use a digital signature and requires such person to maintain the capability of submitting documents bearing digital signatures to the Secretary. This provision provides that a digital signature will have the same effect as any other signature for the purposes of this subsection.

While there is no direct Federal counterpart to this requirement, we find that, as amended, subsection 3.15.b.3 is no less effective than the Federal requirements governing approved persons under the provisions of 30 CFR 777.11 (concerning applications for permits, revisions, and permit rights), 777.13, and 780.14(c) (imposing various professional certification requirements) and is in accordance with SMCRA provisions at 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii) (setting professional certification requirements for submission of cross-sections, maps or plans, and for design of siltation structures). Therefore, we approve these changes.

West Virginia proposes to add a new provision at CSR 38-2-3.15.e that would authorize the Secretary of WVDEP to take disciplinary actions against a person approved to prepare, sign, or certify permit applications, such as suspending or revoking that person's “approved person” status in the event of fraud, negligence, or other enumerated behaviors.

While there is no direct Federal counterpart to these new provisions, we find that, as amended, CSR 38-2-3.15.e is no less effective than the Federal requirements governing approved persons under the provisions of 30 CFR 777.11 (concerning applications for permits, revisions, and permit rights), 777.13, and 780.14(c) (imposing various professional certification requirements) and is in accordance with SMCRA provisions at 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii) (setting professional certification requirements for submission of cross-sections, maps or plans, and for design of siltation structures). Therefore, we approve this new provision.

West Virginia proposes to add a new provision at CSR 38-2-3.15.f, which provides that a person adversely affected by the Secretary taking one or more actions against them under CSR 38-2-3.15.e will receive notice of the action and receive the right to request a hearing to challenge the Secretary's decision.

While there is no direct Federal counterpart to these new provisions, we find that, as amended, CSR 38-2-3.15.f is no less effective than the Federal requirements governing approved persons under the provisions of 30 CFR 777.11 (concerning applications for permits, revisions, and permit rights), 777.13, and 780.14(c)(imposing various professional certification requirements) and is in accordance with SMCRA provisions at 30 U.S.C. 1257(b)(14) and 1265(b)(10)(B)(ii) (setting professional certification requirements for submission of cross-sections, maps or plans, and for design of siltation structures). Therefore, we approve this new provision.

The prior version of CSR 38-2-28.b.1 provided that where a permit revision constitutes a significant departure from the terms and conditions of the existing permit that may result in a significant impact in certain defined areas, it will be deemed to be a significant revision and be subject to the public notice requirements of CSR 38-2-3.2.a and CSR 38-2-3.2.b. West Virginia now proposes to make such permit revisions also subject to the public notice requirements at CSR 38-2-3.2.c. and CSR 38-2-3.2.d. CSR 38-2-3.2.c requires the Secretary to provide notice to State and Federal governmental agencies of such permit revisions and CSR 38-2-3.2.d requires the Secretary to maintain a file containing public comments and other similar materials and to publish or notify certain parties when a permit or revision is issued.

Section 511 of SMCRA (30 U.S.C. 1261) and the Federal regulations at 30 CFR 774.13 set forth the Federal requirements for permit revisions. Except as discussed below, we find that West Virginia's requirements are in accordance with section 511 of SMCRA and no less effective than the Federal requirements at 30 CFR 774.13.

The Federal regulations at 30 CFR 778.21 require submission of proof of publication of an advertisement notifying the public of a permit application, significant permit revision, or permit renewal to be filed with the regulatory authority no less than 4 weeks after the last date of publication; the requirements for the advertisement must comply with the requirements of 30 CFR 773.6(a)(1). West Virginia also requires proof of publication of the advertisement for a permit action at CSR 38-2-3.2.g, once the application is deemed technically complete. However, West Virginia's proposed revisions to CSR 38-2-3.28.b.1 do not also include a reference to the proof of publication rules at CSR 38-2-3.2.g. We are nevertheless approving the West Virginia's changes to CSR 38-2-28.b.1 with the understanding that West Virginia will also require proof of publication of the advertisement for permit actions, including permit revisions, once they are deemed technically complete, as provided by CSR 38-2-3.2.g and 30 CFR 778.21. If we determine in the future that West Virginia is implementing this provision differently, we may require West Virginia to submit a program amendment to revise their program to reflect our understanding of this provision.

West Virginia proposes to delete language prohibiting the use of IBRs to abate a violation where encroachment beyond the permit area is involved, unless an equal amount of acreage is deleted from the permit area.

The Federal requirements governing IBRs are set forth in section 511(a)(3) of SMCRA (30 U.S.C. 1261(a)(3)) and 30 CFR 774.13(d). The Federal requirements do not specifically address the potential use of IBRs to abate violations. However, section 511(a)(3) of SMCRA and 30 CFR 774.13(d) clearly provide that any extensions to an area covered by a permit except IBRs must be made by application for another permit. IBRs are intended to allow for limited or minor adjustments in permit boundaries to account for landslides, sinkholes, or other unanticipated events.

While there is no discussion in the preamble of the Federal regulations that mentions the use of IBRs to abate violations, we have discussed in our original approvals that the use of IBRs to abate violations would be contrary to the intent of SMCRA, especially when an operator intentionally removes coal beyond an original permit boundary. 55 FR 21316 (May 23, 1990); 61 FR 6520 (Feb. 21, 1996). We recognize that there could be a situation where a State regulatory authority would order an operator to obtain an IBR as part of its remedial measures to abate an unanticipated event that would require an operator to go outside the original permit area to abate the violation. In this type of instance, the operator has no intent to remove coal beyond the existing permit area or to mine additional acreage.

Therefore, except as discussed below, we find that the proposed deletion at CSR 38-2-3.29.a is in accordance with the Federal IBR requirements at section 511(a)(3) of SMCRA and consistent with 30 CFR 774.13(d). Furthermore, we are approving the proposed deletion of the language at CSR 38-2-3.29.a, which reads, “or to abate a violation where encroachment beyond the permit boundary is involved, unless an equal amount of acreage covered under the IBR for encroachment is deleted from the permitted area and transferred to the encroachment area.” We have long maintained that an IBR cannot be used for the primary purpose of increasing the size of the area from which coal may be removed. Furthermore, only minor adjustments in the area for coal removal may occur so long as the total area permitted for coal removal is not increased.

Therefore, we are approving the deletion at CSR 38-2-3.29.a with the understanding that the primary purpose of an IBR cannot be to provide for coal removal. In a situation where coal removal is intentional and the primary purpose for operations conducted outside of the existing permit area, we expect WVDEP to require an operator to remove acreage from the permitted area and transfer it to the encroachment area. If we determine, in the future, that West Virginia is implementing this provision differently, we may require West Virginia to submit a program amendment to revise their program to reflect our understanding of this provision.

West Virginia proposes to add language that will increase its IBR acreage limitation and apply its waiver provisions for underground mining operations to other mining operations, including, but not limited to, loadout operations, coal refuse disposal operations, and coal preparation operations. The Federal regulations at 30 CFR 774.13(d), like W.Va. Code 22-3-19(b)(3) and section 511 of SMCRA (30 U.S.C. 1261(a)(3)), provide that any extensions to the area covered by a permit, except IBRs, must be made by application for a new permit. However, the term IBR is not defined in SMCRA, the Federal regulations, or applicable West Virginia law. West Virginia attempted to fill this void by defining it through its regulations.

In the May 23, 1990 Federal Register (55 FR 21316), we found West Virginia's original IBR requirements to be consistent with SMCRA and no less effective than the Federal regulations because the proposed State criteria recognized the distinct differences between surface and underground mining operations as required by section 516(a) of SMCRA (30 U.S.C. 1266(a)), and the criteria gave reasonable meaning to the term “IBR” in that such revisions would result in only minor or insignificant changes to the permit area. On February 21, 1996, we approved additional State revisions that allowed IBRs for underground mines in West Virginia to be larger than 50 acres when an applicant demonstrated the need for a larger IBR, and because no IBRs would be authorized by West Virginia where additional coal removal is the primary purpose of the IBR. 61 FR 6520.

While the term “IBR” is not specifically defined in the Federal regulations, the term “incidental” at least implies that such revisions be minor in nature, so as not to cause significant changes to the environment or to the considerations upon which permit conditions and permit approval are based. With this amendment, West Virginia is proposing to increase the IBR acreage limitation for mining operations other than coal removal, including loadouts, coal refuse disposal, and coal preparation operations.

When we approved West Virginia's IBR requirements in the May 23, 1990, Federal Register (55 FR 21316), the different IBR acreage limits for surface mines and underground mines were recognized. We acknowledged that surface disturbances for underground mines were generally smaller, more static, and of a longer term than for surface mines. Therefore, we found that the IBR acreage limitation for underground mining operations of 150 percent of the original permitted acreage or a maximum of 50 acres, whichever is less, throughout the life of the permit was not inconsistent with the Federal requirements. In addition, we approved West Virginia's waiver provision allowing larger IBR acreage limits for underground mining operations when the need for such facilities (for purposes of site development or for construction of air shafts, fan ways, vent holes, roads, staging areas, etc.) could be demonstrated by the operator. 61 FR 6520 (Feb. 21, 1996). Again, this provision was approved and limited to underground mining operations because of the distinct differences between surface and underground mining operations and because coal removal cannot be the primary purpose of an IBR.

Under the proposed amendment, West Virginia now wants to apply its IBR acreage limitation and its waiver provision for underground mining operations to other mining operations, including, but not limited to, loadout operations, coal refuse disposal operations, and coal preparation operations. In essence, this would allow IBRs for these types of surface mining operations to be larger than 50 acres. While these operations may be undertaken in support of underground mining activities, they are, by definition, surface mining operations.

As previously mentioned, we initially approved West Virginia's IBR acreage limitation criteria because of the distinct differences between underground and surface coal mining operations, and West Virginia's waiver provision was limited to facilities solely associated with underground mining operations. Under the proposed amendment, the distinction between surface and underground mining operations would no longer exist, and West Virginia would be free to grant waivers that could allow unlimited acreage under an IBR for various types of surface mining operations. Permit boundary extensions of this size could exceed the “incidental” limitations authorized by Federal law and can only be granted under a new permit or permit amendment.

We have long maintained that IBRs were not intended to add area to construct such facilities as coal preparation plants, coal mine waste disposal areas, etc. Given that IBRs can only provide for minor or insignificant shifts in a permit area, the proposed State amendment conflicts with the intent and purpose of the Federal IBR requirements. Therefore, we find that the proposed changes to CSR 38-2-3.29.b.2 are inconsistent with the Federal IBR requirements at section 511(a)(3) of SMCRA (30 U.S.C. 1261(a)(3)) and 30 CFR 774.13(d), and we are not approving these changes.

West Virginia proposes to delete language about the findings that the Secretary must make before approving IBRs. Currently, the Secretary must make six required findings before approving an IBR. As proposed, West Virginia intends to delete four of these required findings: the requirement for the Secretary to find that approval of the IBR does not constitute a change in the postmining land use; that approval will only involve lands for which an approved probable hydrologic consequences (PHC) determination is applicable; that approval does not constitute a change in the mining method; and that approval will not result in adverse environmental impacts of a larger scope or different nature from those described in the approved permit. Due to the proposed deletion of these four IBR findings, West Virginia proposes to renumber CSR 38-2-3.29 subsections d.5 and d.6 as subsections d.1 and d.2, respectively.

The provision that West Virginia proposes to amend sets forth findings the WVDEP Secretary must make in approving an IBR. As discussed below in Finding 9, West Virginia has proposed criteria at CSR 38-2-3.29.e to clarify what constitutes significant and non-significant IBRs and the public notice requirements for each. The Federal regulations are silent regarding the difference between a significant and an insignificant IBR.

However, because West Virginia will require that significant IBRs be subject to the notice and comment procedures applicable to significant permit revisions, and because the Federal regulations provide broad discretion to the regulatory authority to establish guidelines for determining what constitutes a significant revision, we find that the resulting regulation, with West Virginia's proposed deletions, is consistent with the Federal IBR requirements in section 511(a)(3) of SMCRA (30 U.S.C. 1265(a)(3)) and is as effective as 30 CFR 774.13(d) (IBR requirements) and 30 CFR 774.13(b)(2) (permit revision requirements). Therefore, we approve these revisions.

West Virginia proposes to add new language setting forth a standard for determining whether an IBR should be deemed significant or non-significant, to add new language about the review of IBR applications to determine if an updated PHC determination or an updated cumulative hydrologic impact assessment is required, and to delete language that gives the Secretary the authority to require IBR applications to be advertised and to provide for a 10-day public comment period.

The proposed amendment provides criteria to be used by the Secretary for determining that an IBR is “significant.” The criteria that West Virginia proposes to use, appearing in subsections 3.29.e.1.A through 3.29.e.1.G, duplicate some of the existing criteria in subsection 3.28.b.1, used for determining whether a permit revision is significant. The proposed amendment also provides that “significant” IBRs are subject to the public notice requirements at CSR 38-2-3.2.a through CSR 38-2-3.2.d. West Virginia proposes to add CSR 38-2-3.29.e.2, which would provide that where an IBR constitutes only an “insignificant” departure from the terms and conditions of an existing permit, it will be deemed to be non-significant, which requires no public notice.

We must caution that, in using largely the same criteria to define significant IBRs as are used in the case of significant permit revisions, there may be conflicts in West Virginia's regulations, such as the restriction on adding acreage through a permit revision. In contrast, an IBR provides for minor or insignificant shifts in permit boundaries, which could result in adding acreage. However, neither SMCRA nor the Federal regulations require public notice or a public comment period for the approval of an IBR.

West Virginia proposes to make significant IBRs subject to its public notice requirements at CSR 38-2-3.2.a through CSR 38-2-3.2.d. However, these subsections do not include the requirement for proof of publication, which appears at CSR 38-2-3.2.g. The Federal regulations at 30 CFR 778.21 require proof of publication for a significant revision of a permit.

Therefore, consistent with requirements for permit revisions, we are approving CSR 38-2-3.29.e.1 with the understanding that West Virginia will require proof of publication of the advertisement for a significant IBR as required by CSR 38-2-3.2.g and 30 CFR 778.21. If we determine, in the future, that West Virginia is implementing this provision differently, we may require West Virginia to submit a program amendment to revise their program to reflect our understanding of this provision.

In our proposed rule dated October 21, 2009, announcing receipt of and a comment period on the proposed amendment, we stated that West Virginia's proposed changes to their program, deleting “Bio-oil” and replacing it with “Bio-fuel” were non-substantive as applied to postmining land use of hayland or pasture. As explained in Section II above, WVDEP subsequently explained that “Biofuels cover are [sic] a wide range of fuels which are derived from biomass. The term covers solid biomass, liquid fuels and various biogases while bio-oil was limited to biodiesel.” See Administrative Record No. 1544. Given these definitions, we also reopened public comment.

After the public comment period closed, we sent a letter dated June 7, 2011, (Administrative Record No. WV 1559) to WVDEP seeking additional clarification of West Virginia's rule change from “Bio-oil” to “Bio-fuel” at CSR 38-2-7.8. WVDEP responded first by email on September 8, 2011, and, after we requested further clarification of the terms on November 2, 2011, WVDEP provided a final response in an email dated November 9, 2011, which provided West Virginia's procedures and rules dealing with noxious weeds (Administrative Record No. WV 1574). As part of this communication, West Virginia recognized that it cannot restrict the use of non-native plants as long as they are biofuel sources and are not considered invasive, toxic, or noxious under State or Federal law. WVDEP will not authorize biofuel as a postmining land use on sites requesting a mountaintop approximate original contour (AOC) variance unless the plans include a financial commitment to build a biofuel plant.

Given WVDEP's clarification, we find that West Virginia's change from bio-oil to bio-fuel for cropland or pasture as postmining land use on all surface mining operations neither renders West Virginia's proposed bio-fuel cropland revisions at CSR 38-2-7.8 less effective than the Federal requirements at 30 CFR 779.19, 780.18, 780.23, 783.19, 785.14, 816.111, 816.116, 816.133 and Part 824 nor inconsistent with sections 507(d), 508(a), 515(b)(2), 515(b)(19), and 515(c) of SMCRA (30 U.S.C. 1257(d), 1258(a), 1265(b)(2), 1265(b)(19), and 1265(c)). We therefore approve these changes with the understanding that West Virginia's bio-fuel cropland requirements will be implemented in the manner described above. As with bio-oil cropland, bio-fuel cropland can be approved for all mining operations with variances from approximate original contour and in accordance with revegetative success standards provided that they meet the regulatory requirements in SMCRA and the implementing Federal regulations, and that the plans include a financial commitment to build a bio-fuel plant. In the future, if we determine that West Virginia is implementing this provision differently, we may require West Virginia to submit a program amendment to revise their program to reflect our understanding of this provision.

West Virginia proposes to amend its regulatory program's revegetation success standards by deleting the phrase “Where the post mining land use requires legumes and perennial grasses,” and replacing it with the phrase “For areas to be developed for hayland or pasture use.” The proposed revision would make the introductory format of CSR 38-2-9.3.f conform with the other provisions included in CSR 38-2-9.3 by providing for specific postmining land uses instead of the types of vegetative cover to be evaluated. Legumes and grasses would still qualify as appropriate vegetative cover where the postmining land use is “hayland or pasture use.”

Because WVDEP is only changing the nomenclature from `legumes and perennial grasses' to `hayland and pasture use' and is not adjusting the revegetation standards or the vegetative cover allowed, we find the proposed amendment to CSR 38-2-9.3.f (concerning success standards for evaluating vegetative cover and productivity for hayland and pasture use) as effective as the Federal revegetation success standards at 30 CFR 816.116(b)(1) and 817.116(b)(1). Therefore, we approve this amendment.

West Virginia is proposing to delete the Coal Bonding Calculations Tables 1, 2, 3, and 4 at CSR 38-2-11.5 for surface mines, underground mines, coal preparation plants, and coal refuse sites. In addition, West Virginia is proposing to delete language at CSR 38-2-11.5.c through CSR 38-2-11.5.f referring to the Bonding Calculations Tables. Inclusion of the bonding tables in West Virginia's initial program submittal was discretionary and intended to demonstrate how the bond rates would be calculated for individual permitted sites. West Virginia now seeks to delete these tables as part of its regulatory program. The criteria for calculating bond remain the same as stated in the existing State regulations. Because removal of the tables does not alter the process of determining bond amounts or the regulations that govern the calculations at 30 CFR 800.14, this revision would make no change to substantive law. Therefore, we approve this revision.

West Virginia proposes to add, at W.Va. Code 5B-2A-3(a)(3), a definition for the term “Operator” that cross references the existing definition for that term given at W.Va. Code 22-3-3(n). West Virginia also proposes to add the following definition for “Renewable and alternative energy” at W.Va. Code 5B-2A-3(a)(4):

(4) “Renewable and alternative energy” means energy produced or generated from natural or replenishable resources other than traditional fossil fuels or nuclear resources and includes, without limitation, solar energy, wind power, hydropower, geothermal energy, biomass energy, biologically derived fuels, energy produced with advanced coal technologies, coalbed methane, fuel produced by a coal gasification or liquefaction facility, synthetic gas, waste coal, tire-derived fuel, pumped storage hydroelectric power or similar energy sources.

We find that the proposed definition for “operator” is in accordance with the definition at found at section 701(13) of SMCRA (30 U.S.C. 1291(13)) and consistent with the definition for “operator” found at 30 CFR 701.5. While there is no direct Federal counterpart to the proposed definition for “Renewable and alternative energy,” we find that, as amended, these definitions added at W.Va. Code 5B-2A-3 are no less stringent than the definitions in section 701 of SMCRA (30 U.S.C. 1291) and are no less effective than the Federal requirements at 30 CFR 700.5 and 30 CFR 701.5. Therefore, these revisions are approved.

W.Va. Code 5B-2A-5(8) provides that the West Virginia Office of Coalfield Community Development (OCCD) may, on its own initiative or by request of a community near a mining operation, offer assistance to facilitate the development of economic or community assets. The previous version of W.Va. Code 5B-2A-5(8) continued: “Such assistance may include the preparation of a master land use plan pursuant to the provisions of section nine of this article.” West Virginia has proposed to amend this sentence to replace “may,” which is discretionary, with “shall,” which is ambiguous but, in this context, is intended to make the preparation of a master land use plan required.

While there is no direct Federal counterpart to this requirement, we find that, as amended, this change is no less stringent than section 508 of SMCRA (30 U.S.C. 1258) and no less effective than the Federal requirements of 30 CFR 780.23. Therefore, we approve this change.

West Virginia proposes to add a new provision at W.Va. Code 5B-2A-6(9), which would require the community impact statement to include the operator's acknowledgment of recommendations and infrastructure components identified by the master land use plan. West Virginia has also proposed to move the prior provisions of W.Va. Code 5B-2A-6(d) to 5B-2A-6(e) and add a new provision at W.Va. Code 5B-2A-6(d), which would require the local, county, or regional development authorities in the vicinity of a surface mining operation to provide a written acknowledgment of receipt of the community impact statement to the OCCD. The former provisions of W.Va. Code 5B-2A-6(d), which provides the effective date of W.Va. Code 5B-2A-6, has been moved to newly created W.Va. Code 5B-2A-6(e). At W.Va. Code 5B-2A-6(e)(1), West Virginia has proposed to replace “the effective date of this article” with “June 11, 1999.”

Under the proposed revisions, operators must not only develop community impact statements but also must provide an acknowledgement of the recommendations of any approved master land use plan that pertains to the land to be mined and any infrastructure components needed to accomplish the postmining land use required by the plan. While there is no direct Federal counterpart to this requirement, we find that, as amended, the new language added at W.Va. Code 5B-2A-6 is no less effective than the Federal requirements in 30 CFR 780.23, 784.15, 784.16, 816/817.133 and Part 824, and no less stringent than SMCRA sections 507, 508, and 515(b), (c), (d) and (e) (30 U.S.C. 1257, 1268, 1265(b), (c) and (e)). Therefore, we approve the revisions.

W.Va. Code 5B-2A-9(f) generally describes that State and local government entities are responsible for determining land and infrastructure needs in the general area of mining operations and describes the creation, revision, and review of a master land use plan. At W.Va. Code 5B-2A-9(f), West Virginia proposes to delete a provision that “[p]articipation in a master land use plan is voluntary.” At W.Va. Code 5B-2A-9(f)(1), which describes the target West Virginia governmental units responsible for developing a master land use plan, West Virginia proposes to replace “State, local, county or regional development or redevelopment authorities” with “[t]he county commission or other governing body for each county in which there are surface mining operations that are subject to this article.” This change would require those authorities to determine land and infrastructure needs and develop a master land use plan along certain lines; the revision also adds several examples to a non-exclusive list of postmining land uses to be considered. In addition, West Virginia proposes to add language to the end of W.Va. Code 5B-2A-9(f)(1) that would allow a county commission or other governing body of a county to designate a regional development or redevelopment authority to assist in the development of a master land use plan and to add that such commission may adopt a master land use plan developed after July 1, 2009, only after a reasonable public comment period.

West Virginia proposes to delete the prior version of W.Va. Code 5B-2A-9(f)(2), which required OCCD to review and WVDEP to approve, any master land use plan to ensure compliance with W.Va. Code 22-3-10. West Virginia proposes to add a requirement that OCCD assists in the development of the master land use plan on request of a county or designated development or redevelopment authority. West Virginia proposes to renumber W.Va. Code 5B-2A-9(f)(3) to W.Va. Code 5B-2A-9(f)(4) and add new provisions at W.Va. Code 5B-2A-9(f)(3)(A) through W.Va. Code 5B-2A-9(f)(3)(D). These new provisions would require OCCD and WVDEP to review master land use plans existing as of July 1, 2009, to determine compliance with the amended rules and regulations, require that master land use plans be submitted to OCCD to be approved or disapproved within 3 months of submission, require OCCD to review approved master land use plans every 3 years, provide stipulations for submission and public comment of updated master land use plans, and require the county or designated development authority to submit a supplemental master land use plan if a prior plan was disapproved by OCCD.

Under these requirements, an operator must include in the surface mining permit application a master land use plan developed by the county or by the development or redevelopment authority and approved by OCCD. Infrastructure component standards must be in place before the respective county development or redevelopment authority may accept ownership of property donated pursuant to a master land use plan. As provided in the introduction to W.Va. Code 5B-2A-9(f), no provision of W.Va. Code 5B-2A-9 may be construed as modifying the requirements of WVSCMRA (W.Va. Code 22-3-1 et seq. ). Even as modified, and even with the new requirement for a master land use plan in the permit application, the Secretary still retains oversight over permit issuance and compliance with WVSCMRA. This includes ensuring that permits satisfy reclamation plan requirements at W.Va. Code 22-3-10 and comply with the requirement to restore the approximate original contour at W.Va. Code 22-3-13.

While there are no direct Federal counterparts to these requirements about master land use plans, we find that, as amended, W.Va. Code 5B-2A-9 is not inconsistent with the Federal requirements at 30 CFR 780.23, 784.15, 784.16, 816/817.133 and Part 824 and is in accordance with SMCRA sections 507, 508, and 515(b)-(e) (30 U.S.C. 1257, 1258, 1265(b)-(e)). Therefore, we approve these changes.

West Virginia proposes to add new language to W.Va. Code 22-3-10 providing a non-exclusive list of alternative postmining land uses, allowing the Secretary to approve postmining land uses not specified in the master land use plan under certain circumstances, allowing an operator to seek a permit revision to include a postmining land use approved in a master land use plan, and specifying the effective date of these amendments.

The revised provisions are intended to require that surface mine reclamation plans conform with master land use plans approved by OCCD or to authorize surface mine reclamation plans that include alternative, non-conforming postmining land uses under certain circumstances. Although there are no specific requirements governing compliance with master land use plans in SMCRA, we find that, except as discussed below, the proposed revisions at W.Va. Code 22-3-10(a)(3), (b), and (d) are in accordance with the provisions at SMCRA sections 507, 508, and 515(b)-(e) (30 U.S.C. 1257, 1258, 1265(b)-(e)) and consistent with the Federal regulations at 30 CFR 780.23, 784.15, 784.16, 816/817.133, and are therefore approved.

West Virginia's proposed changes to W.Va. Code 5B-2A-9(f)(2) would remove the requirement that WVDEP approve a master land use plan ensuring compliance with W.Va. Code 22-3-10. West Virginia's proposed changes also include, at W.Va. Code 22-3-10(a)(3)(A), a requirement that the postmining land use proposed in any reclamation plan must comport with the land use that is specified in the master land use plan approved by OCCD. West Virginia has proposed to add, at W.Va. Code 22-3-10(a)(3)(C), a provision stating that a postmining land use complying with a master land use plan approved in accordance with W.Va. Code 5B-2A-1 et seq., satisfies the requirements for an alternative postmining land use and also satisfies the variance requirements at W.Va. Code 22-3-13, if applicable to the proposed use. This scheme could arguably allow OCCD to approve a proposed postmining land use that does not meet the applicable reclamation and postmining land use requirements set forth in W.Va. Code 22-3-10 and W.Va. Code 22-3-13. While West Virginia has added new provisions that require a master land use plan to be submitted to WVDEP and OCCD for review at W.Va. Code 5B-2A-9(f), this section does not contain any further mention of WVDEP's oversight over such plans or describe a consequence if WVDEP finds that the plan fails to comply with WVSCMRA.

However, the proposed changes have made master land use plans a required part of the reclamation plan proposed at the permit application or permit revision stage. WVDEP still retains oversight over permitting actions and must ensure that the reclamation plan, including the master land use plan, complies with WVSCMRA, including reclamation plan requirements at W.Va. Code 22-3-10 and performance standards at W.Va. Code 22-3-13. Approval of a master land use plan by OCCD does not create a safe harbor allowing a postmining land use that is inconsistent with West Virginia's reclamation plan, an alternative postmining land use, or the AOC requirements at W.Va. Code 22-3-1 et seq.

We are approving these changes with the understanding that WVDEP will continue to ensure compliance of the reclamation plan, including any master land use plan, with WVSCMRA. WVDEP must review any such plan to ensure they meet the requirements of the reclamation plan, the alternative postmining land use, and the AOC variance requirements of the approved program to ensure that WVSCMRA continues to accord with sections 508 and 515 of SMCRA. If we determine, in the future, that West Virginia is implementing this provision differently, we may require West Virginia to submit a program amendment to revise their program to reflect our understanding of this provision.

The prior version of W.Va. Code 22-3-11(h)(1) contained a two-stage special reclamation tax on each ton of coal extracted. The tax was to be initially assessed at seven and four-tenths cents per ton for the first 12 months after the tax was established, increasing an additional seven cents per ton effective July 1, 2009. We approved West Virginia's alternative bonding provisions on an interim basis in the July 22, 2009, Federal Register (74 FR 36113), and in the same notice provided for a public comment period and an opportunity for a public hearing. We subsequently approved an increase in the tax to twenty-seven and nine-tenths cent, per actuarial recommendations, in the July 11, 2012, Federal Register (77 FR 40793), and provided an opportunity for public comment. West Virginia has proposed to amend W.Va. Code 22-3-11(h)(1) by removing obsolete references to the expired, lesser rate, and reorganizing W.Va. Code 22-3-11(h)(1) for clarity. In addition, the prior language of this subsection required the additional seven cent tax to be reviewed and, if necessary, adjusted annually by the legislature on recommendation of the Special Reclamation Fund Advisory Council. West Virginia has proposed to replace this with a requirement that the legislature review the tax rate every 2 years to determine whether it should be continued. The existing requirement that the special reclamation tax cannot be reduced “until the Special Reclamation Fund and Special Reclamation Water Trust Fund have sufficient moneys to meet the reclamation responsibilities of the state” is left intact.

Pursuant to the Administrative Procedure Act at 5 U.S.C. 553(b)(3)(B), we found that good cause existed to approve the revisions on an interim basis, without notice and the opportunity for comment, which would have delayed collection of the increased special reclamation tax, contrary to the public interest.

In addition, as provided by W.Va. Code 22-1-17(g), the Special Reclamation Fund Advisory Council is required to submit annually to the legislature and the governor a report on the adequacy of the special reclamation tax and the fiscal condition of the special reclamation fund. The report is to include a recommendation on whether any adjustments to the special reclamation tax should be made.

Therefore, we find the proposed State revisions to W.Va. Code 22-3-11(h)(1), when read in combination with existing W.Va. Code 22-1-17(g), to be consistent with the Federal alternative bonding requirements at section 509(c) of SMCRA (30 U.S.C. 1259) and no less effective than the Federal alternative bonding requirements at 30 CFR 800.11(e). Accordingly, we approve the changes.

West Virginia's proposed alternative bonding provisions, as discussed above, are approved on a permanent basis.

On July 22, 2009, we published a Federal Register notice (74 FR 36113) announcing our approval on an interim basis of West Virginia's alternative bonding revisions enacted in SB 436 and SB 600 and submitted by letter dated May 22, 2009 (Administrative Record No. WV 1521). The July 22 notice requested public comments on the revisions (Administrative Record No. WV 1528).

On October 21, 2009, we published a Federal Register notice (74 FR 53972) (Administrative Record No. WV 1533) and asked for public comments on additional program amendments, as submitted by WVDEP in letters dated May 11, 2009, and July 6, 2009 (Administrative Record Nos. WV 1522 and WV 1523). Several of the revisions were enacted in SB 153 and SB 1011 and the remainder were the result of WVDEP rulemaking under existing statutory authority. On November 20, 2009, the West Virginia Highlands Conservancy (WVHC) requested an extension of the comment period (Administrative Record No. WV 1542). An extension was granted, and the comment period closed on December 18, 2009 (Administrative Record No. WV 1542).

On February 7, 2011, we published another Federal Register notice (76 FR 6589) concerning one of the revisions proposed in the October 21, 2009, notice, in particular, a provision authorizing postmining use of cropland for bio-fuel production. We also reopened the comment period on this one revision (Administrative Record No. WV 1554). The comment period closed on February 22, 2011.

By letter dated December 17, 2009, WVHC submitted written comments on the October 21, 2009, notice (Administrative Record No. WV 1541). No other public comments were received.

1. WVHC explained that the unchanged original language of subsection 3.29.a establishes a generally positive limitation on the use of IBRs. However, WVHC stated that the proposed deletion in subsection 3.29.a of the prohibition on use of IBRs to address unauthorized mining outside of the original permit areas is unexplained. According to WVHC, an unexplained amendment that expands the use of IBRs to circumstances where such use is now unauthorized is arbitrary and capricious. WVHC contends that West Virginia has a legal obligation to justify every expansion in the use of IBRs in lieu of permit revisions.

OSMRE Response: WVDEP proposed to delete language prohibiting the use of IBRs to abate a violation where encroachment beyond the permit area is involved, unless an equal amount of acreage is deleted from the permit area. As discussed above in Finding 6, the Federal regulations do not specifically provide for the use of IBRs to abate violations. It could be argued that the proposed deletion at subsection 3.29.a is meant to allow an operator to conduct an operation outside the permit area without obtaining a new permit or to obtain an IBR to abate a violation without requiring the acreage to be deleted from the permitted area and transferred to the encroachment area. However, there is no positive grant of any such right to conduct mining operations outside the permitted area. While the rule with its proposed deletion is still no less stringent than SMCRA and no less effective than the Federal regulations, we will continue to monitor the implementation of IBR provisions in West Virginia to ensure that WVDEP continues to require operators whose primary purpose is coal removal to delete acreage from the permitted area and transfer it to the encroachment area.

2. WVHC also stated that the authority in subsection 3.29.b.2 allowing use of IBRs to expand the permit areas of other mining operations, including but not limited to loadout operations, coal refuse disposal operations and coal preparation operations, is unexplained and, therefore, arbitrary and capricious. According to WVHC, WVDEP has a legal obligation to justify every expansion in the use of IBRs in lieu of permit revisions. In addition, WVHC commented that all the other (mining) operations are conducted primarily or exclusively on the surface and, therefore, logically should be subject to the same limitations on IBR use as surface mining operations,

OSMRE Response: As discussed above in Finding 7, WVDEP proposes to increase its IBR acreage limitation and apply its waiver provisions for underground mining operations to certain surface activities associated with underground mining operations, including, but not limited to, loadout operations, coal refuse disposal operations, and coal preparation operations. In the 1990s, we initially approved West Virginia's 50-acre limitation on IBR waivers for underground mining because of the distinct differences between underground and surface coal mining operations. West Virginia's waiver provision, allowing expansion up to 50 acres, was limited to underground mining operations. This would not be the case under the proposed amendment, which effectively ignores the distinction between surface and underground mining operations in the IBR context, and West Virginia would be free to grant waivers that could allow unlimited acreage under an IBR for surface mining operations. Therefore, as explained in Finding 7, we are not approving the language proposed in WVDEP's revision that states “and other mining operations including but not limited to loadout operations, coal refuse disposal operations and coal preparation operations.” As a result, West Virginia's rationale for the proposed language need not be explained.

3. WVHC further stated that the proposed deletion of four of six required findings in subsection 3.29.d that the Secretary must make before approving an IBR is unexplained and, thus, arbitrary and capricious. According to WVHC, the removal of these required findings is inconsistent with SMCRA and the applicable Federal requirements.

OSMRE Response: As explained above in Finding 8, the language that West Virginia is proposing to delete sets forth criteria that are used by the Secretary to determine whether an IBR should be approved. In their place, West Virginia has adopted similar criteria in new subsection 3.29.e, as discussed in Finding 9. We are approving West Virginia's proposal for subsection 3.29.e, with the caution that the use of the new criteria may result in internal program inconsistency. The Federal regulations are silent about the difference between a significant and an insignificant IBR. However, because West Virginia will require that significant IBRs be subject to the notice and comment procedures applicable to significant permit revisions except as discussed above and because the Federal regulations provide wide discretion to the regulatory authority to establish guidelines for determining what constitutes a significant revision, we determined that West Virginia's proposed deletion and the remaining required findings for IBRs at subdivision 3.29.d are as stringent as the Federal IBR requirements in section 511(a)(3) of SMCRA and are no less effective than either 30 CFR 774.13(d) or the permit revision requirements at 30 CFR 774.13(b)(2). In addition, we are requiring proof of advertisement of all significant IBRs in accordance with CSR 38-2-3.2.g. and 30 CFR 778.21.

4. In addition, WVHC stated that the proposed requirement at subsection 3.29.e, which provides that the Secretary will review each IBR application to determine if an updated PHC determination or cumulative hydrologic impact assessment (CHIA) is required, is arbitrary and capricious because the proposed requirement fails to incorporate existing reasonable, science-based criteria for making the required determination; instead, according to WVHC this provision makes the determination entirely discretionary with the Secretary. WVHC also stated the proposed requirement that the Secretary determine the significance of each IBR based only on the information provided in the IBR application is also arbitrary and capricious. The WVHC commented that the use of the word “significant” in establishing criteria for determining the significant nature of a proposed IBR creates a circular unenforceable definition that will effectively allow the Secretary to dispense with public participation. According to WVHC, in the approval of any IBR, WVDEP must establish and apply specific, reasonable, and non-discretionary criteria for dispensing with the public participation requirements. Finally, WVHC noted that rulemaking and IBR approvals by WVDEP have increasingly allowed changes that are no longer incidental but rather substantial alterations to active permits. The latest proposal, according to the WVHC, takes that abuse one step further and should be denied.

OSMRE Response: WVHC expresses concerns with the standards imposed by the proposed amendment in two instances: (1) when the agency determines whether an IBR is significant, such that public comment is required before approving it; and (2) when the agency determines whether an IBR requires an updated PHC or CHIA. We do not agree that either concern demands a change in the proposed rule.

As to the first point (whether an IBR is significant), we agree with the WVHC that use of the term “significant” in the proposed amendment provides little guidance to the agency beyond applying its technical expertise and exercising sound professional judgment in assessing significance. But we believe the guidelines can be implemented successfully because the agency must construe the word “significant” in a manner consistent with its commonly understood meaning and in a manner that is reasonable under the factual circumstances present. Importantly, the regulation guides the agency in this task by identifying seven circumstances in which significance should be considered, as set out in subsections 3.29.e.1.A through 3.29.e.1.G. WVHC construes the proposed amendment as providing that an application is the “only” basis for determining significance. We do not read the regulation to provide such an exclusive limitation. It is incumbent upon the agency to use any available information to determine whether an IBR is significant instead of limiting itself solely to the information contained in the IBR application.

As to the second point (whether an updated PHC or CHIA is required), WVHC has contended that that the absence of a standard (or “science-based criteria”) for making the first determination required in subsection 3.29.e ( i.e., whether an updated PHC or CHIA is required when approving an IBR) makes the proposed amendment entirely discretionary and subject to “agency whim.” We agree the IBR provision vests the agency with very broad discretion in making the update determination, but it establishes the same authority as is provided in the context of permit revisions. See CSR 38-2-3.28.b.1. That subsection states, in almost identical language, that each permit revision “shall be reviewed . . . to determine if an [updated PHC or CHIA] is required”, and does so, like the provision in in subsection 3.29.e, without specifying any standards. WVHC does not identify any principle of law that prohibits a broad grant of discretionary authority, and we are unaware of any. We further note that statutes and regulations frequently make broad grants of authority and vest considerable discretion in administrative agencies, just as WVDEP has done in the case of permit revisions in subsection 3.28.b.1. The agency, nonetheless, is not unbounded in making its update on a PHC determination. It must apply its technical expertise and exercise sound professional judgment, reaching a conclusion that is rational, supported by the record, and based on a consideration of all relevant factors.

As discussed above in Finding 9, because of the internal program inconsistency that could result due to the change, we are approving this part of the amendment with the understanding that West Virginia's proposal that the criteria set forth in subsection 3.29.e for determining whether a permit revision is significant be used only as guidance. With this caveat, we are approving West Virginia's proposed changes at subdivision 3.29.e when determining what constitutes a significant and non-significant IBR. In addition, we are approving subsection 3.29.e with the understanding that WVDEP will require proof of publication of the advertisement for a significant IBR as required by subdivision 3.2.g.

Therefore, our partial approval of subdivision 3.29.e is contingent on our understanding as set forth in Finding 9.

5. WVHC also commented that the special reclamation tax of 14.4 cents per ton of prepared coal at 22-3-11(h)(1) continues to be insufficient to assure the long-term viability of the Special Reclamation Fund to provide sufficient moneys for West Virginia to meet its reclamation responsibilities under the law.

OSMRE Response: As described in Finding 18 and in the interim rule as published in the July 22, 2009, Federal Register (74 FR 36113), West Virginia consolidated and increased its special reclamation and additional taxes, into a special reclamation tax with a rate of 14.4 cents per ton of clean coal mined, reviewable every 2 years by the Legislature, instead of annually. This statutory revision was adopted by the Legislature and approved by the Governor upon the recommendation of the Special Reclamation Fund Advisory Council (Advisory Council). Subsequently, we approved in the July 11, 2012 Federal Register (77 FR 40794) an increase of the rate of the special reclamation tax to twenty-seven and nine-tenths cents per ton of clean coal mined. This rate increase was based on actuarial recommendations relating to the continued fiscal viability of the Fund. The Advisory Council's purpose is “to ensure the effective, efficient and financially stable operation of the special reclamation fund.” See W.VA. Code 22-1-17. Despite this, WVHC claims that the tax rate will be “insufficient to assure the long-term viability of the Special Reclamation Fund,” but the commenter neither offers any basis for this statement nor offers any or data to support it, which leaves the assertion conclusory.

In addition, the law provides that the tax may not be reduced until the Special Reclamation Fund and the Special Reclamation Water Trust Fund have sufficient moneys to meet the reclamation responsibilities of West Virginia established in this section. West Virginia's 2021 actuarial report, assuming a funding rate of twenty-seven and nine-tenths cents per ton and new permits at current bond values, the Special Reclamation Fund and the Special Reclamation Water Trust Fund are projected to have sufficient revenue to last through 2039. Given that land and water reclamation costs, water treatment standards, and economic conditions are constantly changing, it is difficult to say for certain how much money these Funds will need to assure their long-term viability. Thus, it is a matter that West Virginia is obligated to closely monitor. West Virginia has made significant progress in completing land reclamation at its backlog of bond forfeiture sites, including treating pollutional discharges at those sites that needed it. Furthermore, as provided by 22-1-17(g), the Advisory Council is continuing to use its technical expertise to monitor these Funds and recommend adjustments in their revenue rates to ensure their financial solvency. We will continue to monitor the Advisory Council's progress in ensuring the long-term financial stability of these Funds.

6. WVHC indicated that the proposed changes in section 22-3-10 of the West Virginia Code lend undue weight to master land use plans that are often approved with little input from people living in small, somewhat isolated communities in hollows where most large mining operations occur. WVHC also stated that the proposed changes add “renewable and alternative energy uses” to the mix of acceptable postmining land uses. WVHC questioned why West Virginia defined these uses at 5B-2A-3 if they are already acceptable under State law.

OSMRE Response: As discussed in Findings 14 through 17 above, we determined that the revised provisions are intended to require that surface mine reclamation plans conform with master land use plans and to authorize surface mine reclamation plans to contain alternative, non-conforming postmining land uses under certain circumstances. Although there are no specific requirements governing master land use plans in SMCRA, we determined, except as discussed below, that the proposed revisions are no less stringent than SMCRA and no less effective than the Federal regulations.

We made this determination, in part, based on 5B-2A-9 which provides that “no provision of this section may be construed as modifying the requirements of” WVSCMRA. However, compliance with a master land use plan, as described in the discussion of subsection 10(a)(3)(C) above, will not necessarily ensure that the approved postmining land use will satisfy West Virginia's alternative postmining land use and AOC variance provisions. Nothing in the master land use plan can be inconsistent with or supersede any reclamation plan, alternative postmining land use, or AOC variance requirements of West Virginia's approved regulatory program.

In response to WVHC's specific comments, we agree that master land use plans should neither be given undue weight nor supersede an approved reclamation plan. The proposed changes have made master land use plans a required part of the reclamation plan proposed at the permit application or permit revision stage. WVDEP still retains oversight over permitting actions and is still required to ensure that the reclamation plan, including the master land use plan, complies with WVSCMRA, including reclamation plan requirements at W.Va. Code 22-3-10 and performance standards at W.Va. Code 22-3-13. We have approved these changes with the understanding that WVDEP will still exercise its authority to ensure compliance of the master land use plan with WVSCMRA, particularly regarding other requirements of the reclamation plan, the alternative postmining land use, and the AOC variance requirements of the approved program to ensure that WVSCMRA continues to accord with sections 508 and 515 of SMCRA.

On June 17, 2009, in accordance with 30 CFR 732.17.17(h)(11)(i) and 503(b) of SMCRA, we requested comments from various Federal agencies on West Virginia's proposed changes to its alternative bonding system submitted by letter dated May 22, 2009 (Administrative Record No. WV 1524).

In response, OSMRE received responses from the Natural Resources Conservation Service (NRCS), the Mine Safety and Health Administration (MSHA), the U.S. Department of Energy (DOE), and the Bureau of Land Management (BLM); each stated that they had no comments. See Administrative Record No. WV 1525 (NRCS), Administrative Record No. WV 1526 (MSHA), Administrative Record No. WV 1527 (DOE), and Administrative Record No. WV 1531 (BLM).

On October 27, 2009, we again wrote various State and Federal agencies with an actual or potential interest in the West Virginia program and requested comments concerning the proposed State amendments submitted by letters dated May 11, 2009, and July 6, 2009. Those amendments related to changes in West Virginia's surface mining reclamation regulations and in reclamation plan requirements (Administrative Record No. WV 1535).

NRCS, DOE, and MSHA each responded that they had no comments. See Administrative Record No. WV 1534 (NRCS), Administrative Record No. WV 1539 (DOE), and Administrative Record No. WV 1540 (MSHA).

On December 9, 2010, we requested comments from various State and Federal agencies on WVDEP's proposal to change the term bio-oil cropland to bio-fuel cropland (Administrative Record No. WV 1549).

On January 7, 2011, the NRCS (Administrative Record No. WV 1551) responded with concerns that WVDEP, in consultation with the West Virginia Department of Agriculture, may release the performance bond based solely upon the performance of converting the land use to cropland for the purpose of bio-fuel production. The NRCS suggested that language should be included to allow for a postmining land use for bio-fuel cropland or grasslands that includes adequate rotations to prevent erosion, such as cover crops, permanent close-grown grasses, or vegetation, before bond release.

States are required to encourage operators to establish diverse, non-invasive native vegetative species as part of the postmining land use of a surface mining reclamation operation. While it is West Virginia's practice to do so, West Virginia cannot restrict the use of non-native plants if they are grown as a bio-fuel source as long as they are not considered invasive, toxic or noxious under State or Federal law. Under West Virginia's approved program, operators who choose biofuel as an alternative postmining land use will have to demonstrate that their reclamation plans control erosion and prevent the degradation of the soil resource and nearby water resources.

As set forth in Finding 10, West Virginia has acknowledged that WVDEP will not authorize bio-fuel as a postmining land use on sites requesting a mountaintop AOC variance unless the plans, financial commitment, and construction schedule for a plant facility to convert the cellulose, plant, or algae to bio-fuel are approved before permit issuance and reaffirmed at the time of final bond release, and the plant is located on-site or within a reasonable driving distance of the area. In addition, West Virginia will require the operator to comply with revegetation standards and use approved statistical sampling methods for assessing revegetation success prior to approving final bond release for any site that has a postmining land use of bio-fuel cropland.

On January 7, 2011, the MSHA's Office of Standards, Regulations and Variances (OSRV) (Administrative Record No. WV 1552) responded to our request for comments on the bio-oil/bio-fuel change. The OSRV responded that they disagree with WVDEP's statement: “Biofuels cover a wide range of fuels which are derived from biomass. The term covers solid biomass while bio-oil was limited to biodiesel.” OSRV considers bio-oil to not be limited to biodiesel because bio-oil can be upgraded to gasoline and aviation fuel. OSRV feels that the two terms are interchangeable and opines that West Virginia's change was non-substantive. In contrast, on January 14, 2011, the DOE (Administrative Record No. WV 1553) responded to our request for comments on the bio-oil/bio-fuel change. The DOE agreed with WVDEP that changing the term from “Bio-fuel” from “Bio-oil” is a useful change. According to DOE, the term bio-fuel covers a wide range of fuels derived from biomass that includes solid biomass, liquid fuels, and gaseous fuels such as synthetic natural gas, syngas, hydrogen, and various bio-gases while bio-oil is limited in scope to mostly biodiesel.

It is not necessary for us to weigh in on the proper scope of the terms “bio-oil” and “bio-fuel.” For purposes of our consideration of this proposed amendment, because West Virginia considers bio-fuel to be broader and covering a wider range of fuels than bio-oil, we have considered this change to be substantive. As a result, we solicited additional public comments.

Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we are required to solicit comments and get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (CWA) (33 U.S.C. 1251 et seq. ) or the Clean Air Act (CAA) (42 U.S.C. 7401 et seq. ). As we determined that none of the proposed State revisions pertained to air or water quality standards, EPA's concurrence was not requested. However, OSMRE solicited comments from EPA, along with the other Federal agencies, on the three occasions mentioned above.

On July 28, 2009 (Administrative Record No. WV 1530), the EPA responded to our June 17, 2009, request, (Administrative Record No. WV 1524) concerning West Virginia's alternative bonding system, commonly referred to as the Special Reclamation Fund. The EPA stated that it did not have any specific comments/proposed edits at this time. In addition, EPA noted that implementation of West Virginia's regulations, including the proposed amendments, must comply with the CWA, the regulations implementing the National Pollutant Discharge Elimination System (NPDES), and other relevant environmental statutes and regulations. EPA also noted that, pursuant to 30 U.S.C. 1292, SMCRA and its implementing regulations, including WVDEP's proposed amendments, do not supersede, modify, amend or repeal the CWA and its implementing regulations. In other words, any discharges associated with surface mining operations must comply with the CWA.

On June 22, 2010 (Administrative Record No. WV 1543), in response to our letter dated October 27, 2009 (Administrative Record No. WV 1522), the EPA responded to our request for comments on proposed revisions to West Virginia's permanent surface coal mining regulatory program. The EPA stated that, whereas subsection 3.29.d.4, proposed for deletion, required a finding that an IBR “will not result in adverse environmental impacts of a larger scope or different nature from those described in the approved permit,” this same criterion set forth in proposed 3.29.e. would serve only as “guidance” in determining whether an IBR is significant. EPA also stated that approval of an IBR may “require a major modification of the applicable NPDES permit ( see 40 CFR 122.62(a)(1)) before an approved IBR could be implemented. In addition, an IBR may encompass activities that trigger the new source provisions of the NPDES regulations.”

In response, we note that the proposed amendment includes criteria that are to be used as guidance by WVDEP for making a determination as to whether an IBR is significant or insignificant. As noted above in Finding 9, we have cautioned that West Virginia's proposal may result in internal program inconsistency. We agree that the new IBR provisions must be implemented in accordance with all SMCRA, CWA, and regulatory provisions cited by the EPA. Finally, we agree that there may be occasions when approval of an IBR may require a major modification of the applicable NPDES permit before the IBR can be implemented, and that an IBR may encompass activities that trigger the NPDES new source regulations.

EPA also noted a concern that the changes to West Virginia's NPDES Rule for Coal Mining Facilities in SB 153, 47 CSR, series 30, could have the potential to affect water quality, citing, for instance, the adverse water quality effects associated with the placement of valley fills in streams; degraded water quality by alkaline mine drainage; and impaired aquatic life.

In response, we acknowledge that decisions on changes to West Virginia's NPDES regulations for coal mining facilities are solely within EPA's purview.

The EPA noted its concern that, if SB 1011 is implemented in its current form, it may have adverse water quality impacts because it legislates a preference for postmining land use that does not encourage consideration of environmental impacts arising from the postmining land use and may be at odds with current science that suggests a need for revised mine design to increase postmining slopes to avoid infiltration. In addition, the bill makes no provision for any site-specific determination about the water quality impacts associated with a dual project purpose.

Noting that the list of renewable and alternative energy uses in SB 1011 is not all-encompassing, EPA points out that the list does not encourage localities to consider reforestation or returning the land to its previous natural conditions.

An operator must include a master land use plan developed by the county or by a development or redevelopment authority and approved by OCCD in the reclamation plan that accompanies a permit application. Infrastructure component standards must be in place before the county or other relevant authority can accept ownership of property donated pursuant to a master land use plan. No provision therein may be misconstrued as modifying the requirements of WVSCMRA.

Operators must not only develop community impact statements but provide an acknowledgement of the recommendations of any approved master land use plan that pertains to the land to be mined and any infrastructure components needed to accomplish the postmining land use required by the plan.

The EPA also indicated that SB 1011 encourages mining projects to create flat-top lands instead of slopes, citing a growing body of science pointing to the slope's ability to prevent infiltration and the discharge of total dissolved solids. The effort of SB 1011, according to the EPA, does not encourage slopes in connection with master land use plans or their incorporation in reclamation plans and site-specific projects, which would avoid the infiltration of the dissolved solids. The EPA recognizes that the PHC and CHIA may partially address this concern but notes that, historically, issues related to water budget have been addressed more often than not.

The amendment requires that surface mine reclamation plans conform with master land use plans and authorizes surface mine reclamation plans to contain alternative, non-conforming postmining land uses under certain circumstances. Revisions were approved with the understanding that postmining land uses involving “renewable and alternative energy” for mountaintop removal mining operations with variances from AOC and in accordance with revegetative success standards provided that they meet the regulatory requirements in SMCRA and Federal regulations and that the plans include a financial commitment to build a bio-fuel plant. Master land use plans and postmining land uses authorized under this section must comply with the reclamation and other postmining land use requirements of West Virginia's approved program.

In addition, any water quality impacts associated with such postmining land uses are expected to be addressed in the reclamation plans and must comply with the approved State program. However, we agree that compliance with a master land use plan may not necessarily ensure that the approved postmining land use will satisfy West Virginia's alternative postmining land use and AOC variance provisions of its approved program. Therefore, we have approved W.Va. Code 22-3-10(a)(3)(C) with the understanding that WVDEP retains the ability to ensure compliance of the master land use plan with WVSCMRA, particularly regarding other requirements of the reclamation plan, the alternative postmining land use, and the AOC variance requirements of the approved program to ensure that WVSCMRA continues to accord with sections 508 and 515 of SMCRA, as discussed above in Finding 17.

Based on the above findings, we partially approve, with exceptions, West Virginia's program amendments submitted by letters dated May 11, 2009 (Administrative Record No. WV 1522), May 22, 2009 (Administrative Record No. WV 1521), and July 6, 2009 (Administrative Record No. WV 1523).

As discussed in Finding 5, we approve West Virginia's permit revision requirements at subparagraph 3.28.b.1 with the understanding that WVDEP will require proof of publication of the advertisement for permit revisions as provided by subdivision 3.2.g and 30 CFR 778.21.

As discussed in Finding 6, we approve the proposed deletion of the IBR language regarding the abatement of a violation at subdivision 3.29.a with the understanding that the primary purpose of an IBR cannot be to provide for coal removal. In a situation where coal removal is intentional and the primary purpose for operations conducted outside of the existing permit area, we expect WVDEP to require an operator to delete acreage from the permitted area and transfer it to the encroachment area.

As discussed in Finding 7, we do not approve the proposed IBR revision at subparagraph 3.29.b.2 which reads, “and other mining operations including but not limited to loadout operations, coal refuse disposal operations and coal preparation operations.”

As discussed in Finding 9, we approve new subsection 3.29.e with the understanding that West Virginia will require proof of publication of the advertisement for a significant IBR as required by subdivision 3.2.g.

As discussed in Finding 10, we approve West Virginia's bio-fuel cropland requirements at subsection 7.8 with the understanding that they be implemented in the manner described therein.

As discussed in Finding 17, we approve the changes to W.Va. Code 22-3-10(a)(3)(C) with the understanding that WVDEP retains the ability to ensure compliance of the master land use plan with WVSCMRA, particularly regarding other requirements of the reclamation plan, the alternative postmining land use, and AOC variance requirements of the approved program to ensure that WVSCMRA continues to accord with sections 508 and 515 of SMCRA.

To implement this decision, we amend the Federal regulations at 30 CFR part 948 that codify decisions concerning the West Virginia program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that West Virginia's program demonstrate that West Virginia has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rule would not effect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866.

State program amendments are not regulatory actions under Executive Order 13771 because they are exempt from review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by section 3 of Executive Order 12988. The Department determined that this Federal Register notice meets the criteria of section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive order did not extend to the language of West Virginia regulatory program or amendment that West Virginia drafted.

This rule has potential federalism implications as defined under section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. West Virginia, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves an amendment to the West Virginia program submitted and drafted by the State, and thus is consistent with the direction to provide maximum administrative discretion to States.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of Tribal right to self-governance and sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal Government and Tribes.

The basis for this determination is that our decision on the West Virginia program does not include Indian lands as defined by SMCRA or other Tribal lands, and it does not affect the regulation of activities on Indian lands or other Tribal lands. Indian lands under SMCRA are regulated independently under the applicable Federal Indian program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.

Executive Order 13211 requires agencies to prepare a statement of energy effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not a significant energy action under the definition in Executive Order 13211, a statement of energy effects is not required.

This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not address environmental health or safety risks disproportionately affecting children.

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 3701 et seq. ) directs OSMRE to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. (OMB Circular A-119 at p. 14). This action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA.

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required.

This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon corresponding Federal regulations for which an economic analysis was prepared, and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2). This rule: (a) does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) 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 determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.

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. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

For the reasons set out in the preamble, 30 CFR part 948 is amended as set forth below:

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

The source category that is the subject of this final action is the Crude Oil and Natural Gas source category regulated under CAA section 111, New Source Performance Standards. Table 1 summarizes the 2024 North American Industry Classification System (NAICS) codes for the source category.

The NAICS codes outline the type of entities that this final action likely will affect. Other types of entities not listed in the table could also be affected by this action. The NSPS codified in 40 CFR part 60, subpart OOOOb, are directly applicable to affected facilities that begin construction, reconstruction, or modification after December 6, 2022. Federal, State, local, and Tribal government entities would not be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, you should carefully examine the applicability criteria found in 40 CFR part 60, subparts OOOOb and OOOOc, and consult the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble, your State air pollution control agency with delegated authority for NSPS, or your EPA Regional Office.

The deadline extensions in 40 CFR part 60, subpart OOOOc do not impose binding requirements directly on existing sources. The EG codified in subpart OOOOc, applies to States in the development, submittal, and implementation of State plans to establish performance standards to reduce emissions of greenhouse gases (GHG) from designated facilities that are existing sources on or before December 6, 2022. Under the Tribal Authority Rule (TAR), eligible tribes may seek approval to implement a plan under CAA section 111(d) in a manner similar to a state. 1 Tribes may, but are not required to, seek approval for treatment as a State for purposes of developing a Tribal Implementation Plan (TIP) implementing the EG codified in 40 CFR part 60, subpart OOOOc. The TAR authorizes tribes to develop and implement their own air quality programs, or portions thereof, under the CAA. However, it does not require tribes to develop a CAA program. Tribes may implement programs that are most relevant to their air quality needs. If a Tribe does not obtain the authority from the EPA to establish a TIP, the EPA has the authority to establish a Federal CAA section 111(d) plan for designated facilities that are located in areas of Indian country. 2 A Federal plan would apply to all designated facilities located in the areas of Indian country covered by the Federal plan unless and until the EPA approves a TIP applicable to those facilities.

In addition to being available in the docket, an electronic copy of this final action is available on the internet at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-operations/2025-interim-final-rule-extend-compliance. In accordance with 5 U.S.C. 553(b)(4), a brief summary of this rule may be found at www.regulations.gov, Docket ID No. EPA-HQ-OAR-2025-0162. Following publication in the Federal Register , the EPA will post the Federal Register version of the final rule and key documents at this same website.

The same CAA provision that provided authority to issue the regulations being amended and the July 2025 IFR—CAA section 111—provides the statutory authority to issue this final action, the change the EPA is making to the NHV monitoring compliance deadline, and the change to the initial reporting deadline. 3

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by February 2, 2026. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings to enforce the requirements.

Section 307(d) applies to this final rule. 4 Section 307(d)(7)(B) provides a mechanism for the EPA to convene a proceeding for reconsideration “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

In this section, the EPA summarizes relevant history to provide context for this final action. For further discussion of regulatory history for this source category and issues arising after promulgation of the most recent substantive amendments to the NSPS, please see section II.A of the preamble for the July 31, 2025 interim final rule (“2025 IFR”). 5

On March 8, 2024, the EPA published a final rule for the Crude Oil and Natural Gas source category under CAA section 111(b) and (d) (“2024 final rule”). 6 The EPA finalized NSPS OOOOb for GHG and VOC emissions from new, modified, and reconstructed sources in this source category. The EPA also finalized EG OOOOc for GHG emissions from existing sources in this source category, along with various other regulatory amendments. The 2024 final rule became effective on May 7, 2024.

After publication of the 2024 final rule, the EPA received multiple petitions for reconsideration and determined, including through ongoing and recent communications with stakeholders and review of the relevant regulatory language, that certain discrete provisions in the 2024 final rule presented immediate problems related to compliance. 7 The EPA's review of the issues raised in petitions for reconsideration and other information presented to the EPA after promulgating the 2024 final rule, as well as the EPA's experience implementing certain aspects of the 2024 final rule and review of relevant regulatory text, resulted in the EPA issuing an IFR on July 31, 2025. In the 2025 IFR, the EPA amended certain compliance deadlines and timeframes for implementation in response to information received after promulgation of the 2024 final rule to address significant concerns, raised by stakeholders and through the EPA's own review, that certain regulatory provisions in the 2024 final rule were not workable or contained problematic regulatory language that prevented compliance.

The 2024 final rule covers many different types of individual emissions sources at thousands of facilities in the Crude Oil and Natural Gas source category across the country. The 2024 final rule included several provisions that subsequent developments have shown are unworkable on the original timeframes for compliance in that final rule. The EPA did not anticipate or intend these issues to result from the 2024 final rule, and it is in the public interest and consistent with the purposes of the CAA to provide regulated entities sufficient time to comply with the requirements of the 2024 final rule. Accordingly, in the 2025 IFR, the EPA took the following actions with regard to deadlines in the 2024 final rule:

• Extended the deadline to November 28, 2025, for continuous monitoring of the vent gas net heating value of flares and enclosed combustion control devices.

• Extended the deadline to January 22, 2027, to meet certain requirements related to control devices, equipment leaks, storage vessels, process controllers, and covers/closed vent systems.

• Extended the deadline to January 22, 2027, for States to submit to the EPA plans to address existing oil and natural gas sources pursuant to the 2024 Emission Guidelines (EG).

• Delayed the deadline for future implementation of the SEP program to January 22, 2027, and similarly extended the timing for the EPA to act on requests for approval of methane detection technology for use in the SEP.

As explained in the 2025 IFR, the EPA found that prior notice and comment was impracticable given the applicable compliance deadlines and the timeline involved in completing such procedures. 8 In the 2025 IFR, the EPA made timely, targeted changes to certain compliance and implementation dates that had created unintended compliance difficulties for regulated entities. Through ongoing communications with stakeholders and review of relevant regulatory language, the EPA determined that there were legitimate barriers to compliance and/or questions as to whether certain regulatory provisions were practically and logistically achievable as promulgated in the timeframes allowed by the 2024 final rule. The targeted changes in the 2025 IFR provided the immediate relief needed to avoid unnecessary and problematic situations of owners and operators expending time and resources attempting to comply in short amounts of time with particular regulatory provisions. Notice and comment prior to the regulatory changes would have been impracticable given the purpose of these targeted amendments, which was to immediately provide the time required to address the issues identified in the 2025 IFR, and the limited time in which the Agency had to address the issues identified through ongoing review and stakeholder engagement on the at-issue provisions. 9

Based on information received in petitions for reconsideration and other information discussed in the 2025 IFR, and after considering public comments on the 2025 IFR, the EPA reaffirms in this final action that the targeted revisions to compliance deadlines set forth in the 2025 IFR and summarized below are necessary, appropriate, and consistent with the purposes of the 2024 final rule and the CAA.

Each conclusion and re-affirmation of the relative 2025 IFR change included in this final rule is severable from the other, and each new regulatory change in this final rule is severable from the other regulatory changes in this final rule and from the conclusions and re-affirmations of the changes in the 2025 IFR. First, each of the deadlines amended in the 2025 IFR action is functionally independent from the others— i.e., may operate in practice independently of the other requirements being amended, such that the amendment of a deadline in one set of requirements does not depend on the amendment of a deadline in any other set of requirements. For example, amendments to individual compliance deadlines in NSPS OOOOb function separately from amendments to the State plan submittal deadline in EG OOOOc. Similarly, amendments to the implementation deadline for the SEP and amendments to timing for EPA action on methane detection technology for use in the SEP function separately from amendments to individual compliance deadlines to other aspects of the 2024 final rule. For similar reasons, each of the decisions to reaffirm changes in the 2025 IFR is independent from each of the other decisions to reaffirm, as well as from each of the regulatory changes made in this final rule.

After issuing the July 31, 2025 IFR, the EPA solicited comments until October 3, 2025, and held a public hearing on September 2, 2025. We received comments from regulated industry, environmental groups, State environmental agencies, community groups, Tribes, and others during the comment period. While certain comments are briefly discussed in this preamble, a summary of all public comments received on the 2025 IFR, and the EPA's responses to those comments, is available in the document, “Oil and Natural Gas Sector Climate Review: Extension of Deadlines in Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Response to Public Comments on the July 31, 2025 Interim Final Rule” (“Response to Public Comments document”), which is available in the rulemaking docket. 10

In this final action, the EPA is reaffirming our decisions and revisions in the 2025 IFR that address the Crude Oil and Natural Gas NSPS and EG, is making a change to the compliance deadline for NHV monitoring, and is also providing additional time for the submission of initial annual reports. Specifically, the EPA is providing an additional 180 days from the effective date of this final rule for sources to comply with the NHV monitoring requirements and providing 360 days from the effective date of this final action for owners or operators to submit annual reports. The EPA is taking this final action after consideration of all the comments received by the close of the comment period on October 3, 2025, and is not considering comments received after this date. This final action does not reopen the substance of the 2024 final rule or address the substantive amendments requested in various petitions for reconsideration. 11 In the 2025 IFR, the EPA requested comments only on compliance deadline issues, which was the subject of that rule. Other than the deregulatory impacts of the two additional extensions, the EPA is reaffirming the analysis of the 2025 IFR and asserting that this final rule is anticipated to have minimal economic impacts relative to those of the 2025 IFR. However, because of the substantive comments provided on the 2025 IFR, the EPA has provided a memorandum titled “Affirmation of Economic Impact Analysis for the Interim Final Rule” that is available in the docket that reaffirms the analysis conducted to support the 2025 IFR. 12

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

The source category that is the subject of this action is Integrated Iron and Steel Manufacturing Facilities regulated under 40 CFR part 63, subpart FFFFF.

Table 1 summarizes the 2022 North American Industry Classification System (NAICS) codes for the source category.

The EPA does not intend table 1 of this preamble to be exhaustive. The NAICS code outlines the type of entities this final action likely will affect. To determine whether this NESHAP affects your facility, you should examine the applicability criteria in the NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this action is available on the internet at https://www.epa.gov/stationary-sources-air-pollution/integrated-iron-and-steel-manufacturing-national-emission. Following publication in the Federal Register , the EPA will post the Federal Register version of this action at this same website. In accordance with 5 U.S. Code (U.S.C.) 553(b)(4), a summary of this action may be found at https://www.regulations.gov , Docket ID No. EPA-HQ-OAR-2002-0083. Following publication in the Federal Register , the EPA will post the Federal Register version of this action at this same website.

The same Clean Air Act (CAA) provision that provided authority to issue the regulations that are the subject of this final rule and the July 3, 2025, IFR—CAA section 112—provides the statutory authority to issue this final action.

Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by February 2, 2026. Under CAA section 307(b)(2), a party cannot challenge the requirements established by this final action separately in any civil or criminal proceedings to enforce the requirements.

CAA section 307(d) applies to this final rule. 1 CAA section 307(d)(7)(B) provides a mechanism for the EPA to convene a proceeding for reconsideration “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person listed in the preceding FOR FURTHER INFORMATION CONTACT section and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

In this section, the EPA summarizes relevant history to provide context for this final action. For further discussion of regulatory history for this source category and issues arising after promulgation of the most recent substantive amendments to the NESHAP, please see section II.A. and II.B. of the preamble for the July 3, 2025 IFR. 2

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments. CMS will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. CMS continues to encourage individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments.

In the May 10, 2024 Federal Register (89 FR 40876), the Centers for Medicare & Medicaid Services (CMS), published a final rule titled “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting” (hereinafter referred to as 2024 Minimum Staffing final rule). This rule, among other items, established minimum staffing standards for long-term care facilities participating in Medicare and Medicaid programs. The standards were informed by data and literature available in 2022 and 2023.

On July 4, 2025, Public Law 119-21 was signed into law. Section 71111 of Public Law 119-21 prohibits CMS from implementing, administering, or enforcing the minimum staffing standards set forth in § 483.5, definitions related to staffing requirements, and § 483.35, requirements for a registered nurse (RN) to be onsite 24 hours, 7 days per week and that each facility provides a minimum of 0.55 RN, 2.45 nurse aide (NA), and 3.48 total nurse staffing hours per resident day (HPRD), for a specified time period. This legislative action effectively suspends implementation of these provisions until September 30, 2034.

Section 71111 of Public Law 119-21 precludes CMS from implementing, administering, or enforcing the minimum staffing standards established in the 2024 Minimum Staffing final rule (89 FR 40876) until after September 30, 2034. This prohibition renders portions of §§ 483.5 and 483.35 unenforceable and unimplementable during the period before October 1, 2034. Congress has thus effectively suspended these provisions for that period. We believe that this prohibition warrants restoration of the previous version of the Code of Federal Regulations (CFR). Without such revisions, the regulations would lack nurse staffing standard that implements the minimum requirements for long-term care facilities set forth in sections 1819(b)(4)(C)(i) and 1919(b)(4)(C)(i) of the Act.

HHS and CMS are committed to protecting the health and safety of residents in long-term care facilities. Following the publication of the final rule, interested parties continue to express their concerns over the establishment of the quantitative minimum staffing standards, requiring a RN to be onsite 24 hours, 7 days per week and that each facility provides a minimum of 0.55 RN, 2.45 NA, and 3.48 total nurse staffing HPRD.

LTC facilities, particularly those within rural and tribal communities, raised significant concerns that these standards, even with a comprehensive exemption process in place, could increase the risk of facility closure, thus potentially decreasing access to healthcare. Rural and tribal communities face a specific challenge of geographic isolation, making it difficult to recruit nurses and for patients to access care. 1 LTC facilities continue to note hiring challenges due to the existing labor supply and available resources despite their best efforts to meet these requirements. The National Indian Health Board stated that the 2024 final rule would be catastrophic for keeping facilities open and meeting the trust and treaty obligations in healthcare because of the difficulty of staffing in Indian Country. Further, they noted that LTC facility closures like this in tribal communities do not just remove jobs but break cultural bonds and remove elders from their communities.

Likewise, multiple sources have described the current and projected shortages, including the International Council of Nurses (ICN) report calling for the worldwide shortage of nurses to be treated as a global health emergency. The report, titled Recover to Rebuild: Investing in the Nursing Workforce for Health System Effectiveness , 2 details the impact that the pandemic had on the world's nursing workforce, nurse burnout, and access to care. The National Center for Workforce Analysis (NCHWA)  3 projects nationwide nursing shortages, including a shortage of 295,800 nurses nationwide, with larger shortages of nurses in nonmetropolitan areas including rural and tribal communities. In addition, according to a Health Workforce Analysis published by the Health Resources and Services Administration (HRSA), authorities project just 63,720 people working as full-time RNs in 2030. Lastly, the American Association of Colleges of Nursing predicts that RN shortages will continue over the next decade and beyond, with a 13 percent deficit in the total number of RNs in nonmetropolitan areas predicted to be needed in the United States by 2037, and a 5 percent deficit of RNs predicted for metropolitan areas of the country. 4

Furthermore, two district courts have vacated at the summary judgment stage the minimum staffing provisions related to HPRD and the 24/7 RN requirement as currently drafted and codified at 42 CFR 483.35(b)(1) and (c). First, in the summary judgement for American Health Care Association v. Kennedy (Case Nos. 24-144 and 24-171, 777 F. Supp.3d 691(N.D. Tex. 2025))  5 (appealed June 2, 2025 to the Fifth Circuit), the court relied on the major questions doctrine in its finding that HHS exceeded its statutory authority with the minimum staffing policy changes. Second, in the summary judgement for Kansas v. Kennedy (Case No. C24-110-LTS-KEM,_F. Supp. 3d_(N.D. Iowa, June 18, 2025)  6 Interested parties should refer to the detailed order and judgement for each case for additional information.

HHS no longer believes that the current quantitative minimum staffing standards affected by the moratorium and litigation are appropriate, especially because the minimum staffing standards do not follow from the best interpretation of the relevant statute. The quantitative minimum staffing standards, as currently written, impose one-size-fits-all minimum requirements on all facilities across the country without accounting for differences in local labor supply, overall acuity of the facility's resident population, or available resources. Rural and tribal community facilities currently face significant difficulties in recruiting and retaining staff; the current quantitative minimum staffing standards could put many of these facilities at an increased risk of closure, thus potentially decreasing access to health care in these communities.

Given these policy considerations, HHS has modified its policy views with respect to the quantitative minimum staffing standards.

In view of the policy considerations stated previously, and upon further consultation and review of certain comments, HHS and CMS believe there is an opportunity to further engage with Tribal communities. CMS received correspondence from tribal communities noting that longstanding healthcare workforce shortages across Indian Country make compliance with the LTC staffing rule impossible for many facilities and that the rule would cause closures of many LTC facilities due to limitations present in Health Provider Shortage Areas (HPSA) in rural and remote areas. In addition, the Tribal Technical Advisory Group (TTAG) is in favor of the 10-year moratorium, stating that this “supports the continued operation of rural Tribal LTC facilities”. As noted previously, the minimum staffing standards, if implemented, may impose disproportionate burdens on facilities serving these communities, which face a distinct workforce and resource constraints. Repealing the changes made to minimum staffing standards by the rule provides an opportunity for CMS to reassess these burdens and further engage in additional dialogue with Tribal communities to better understand and address their concerns. We invite and welcome additional consultation with Tribes on the impact of the now-rescinded portions of the final rule and encourage Tribes to submit comments during the comment period for this interim final rule with comment period.

Given the moratorium imposed by Public Law 119-21, the policy considerations discussed previously, and a desire to further engage tribal community concerns, we are repealing certain suspended provisions of §§ 483.5 and 483.35 and restoring the previous language of § 483.35, while soliciting further comment. This repeal ensures that the regulations reflect current legal authority and HHS policy, and allows for future rulemaking that incorporates new, up-to-date evidence and interested party input.

This interim final rule with comment period revises the following sections of 42 CFR 483:

• In § 483.5, we are removing the definition of “hours per resident day” since it is only used in relation to the minimum staffing requirements in this section that this rule repeals; therefore, the definition is no longer relevant.

• In § 483.35, we are making the following changes:

++ Removing the requirements for long term care facilities to have an RN onsite 24 hours, 7 days per week and the minimum requirements for 0.55 RN, 2.45 NA, and 3.48 total nurse staffing HPRD requirements.

++ Reinstating the minimum statutory RN staffing requirement for LTC facilities to use the services of an RN for at least 8 consecutive hours a day, 7 days a week and to designate an RN to serve as the director of nursing on a full-time basis except when waived.

With converting the nurse staffing requirements at § 483.35 back to the requirements finalized in the 2016 “Medicare and Medicaid Programs; Reform of Requirements for Long Term Care Facilities” final rule (81 FR 68688), we are also including technical corrections to several incorrect paragraph citations that were made as part of the updates to § 483.35 in the May 2024 Minimum Staffing final rule (89 FR 40996 through 40998). We are finalizing the corrected citations as part of this interim final rule with comment period to assure accuracy and clarity. Therefore, we are making the following revisions:

++ In the introductory paragraph, we are replacing the reference to § 483.70(e) with a reference to § 483.71, where facility assessment requirements are now located.

-- In paragraph (a)(2), we are changing the cross reference from paragraph (c), Proficiency of nurse aides, to paragraph (e), Nursing facilities: Waiver of requirement to provide licensed nurses on a 24-hour basis. The requirement will now state that, except when waived under paragraph (e), a facility must designate a licensed nurse to serve as a charge nurse on each tour of duty.

-- In paragraph (f)(2), we are changing the cross reference from paragraph (d)(1) to paragraph (f)(1), which allows for the Secretary of the Department of Health and Human Services (Secretary) to waive the requirement that a skilled nursing facility provide the services of an RN for more than 40 hours a week, including a director of nursing specified in paragraph (b) of this section, under certain circumstances. This requirement will now state that a waiver of the RN requirement under paragraph (f)(1) of this section is subject to annual renewal by the Secretary.

-- In paragraph (g)(2)(i), we are changing the cross reference from paragraph (e)(1) to paragraph (g)(1) the facility must post the nurse staffing data on a daily basis. This requirement will now state that the facility must post the nurse staffing data specified in paragraph (g)(1) of this section on a daily basis at the beginning of each shift.

For the reasons described in this section, we have determined that an interim final rule with comment period is the appropriate mechanism to align regulations with current enforceable law. Although this interim final rule with comment period is effective in 60 days, comments are solicited from interested members of the public on all aspects of the interim final rule with comment period. We will consider these comments in deciding the next steps following this interim final rule with comment period.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)) and 42 U.S.C. 1395hh(b)(2), CMS may forgo notice-and-comment rulemaking when it finds, for good cause, that such procedures are impracticable, unnecessary, or contrary to the public interest. We find that there is good cause based on the totality of the circumstances described later in this section.

The current regulations at issue here have not yet been enforced, and section 71111 of Public Law 119-21 precludes CMS from taking any further actions to administer or enforce them until September 30, 2034. Additionally, two Federal district courts have vacated portions of the final rule and there is no current reliance on these provisions by regulated entities or the public. The absence of a comment period before repeal will not cause injury to any interested person.

Moreover, maintaining regulations that are unenforceable and unimplementable for several years in the CFR is confusing and impracticable. The presence of unenforceable and unimplementable provisions during the moratorium could lead to misunderstandings regarding applicable standards, potentially causing confusion among LTC facilities, regulators, and the public. Repealing these specific provisions immediately eliminates this risk and ensures regulatory clarity. Moreover, it is impracticable to maintain these unenforceable regulations because doing so would prolong the period in which there is no specific implementing language for sections 1819(b)(4)(C)(i) and 1919(b)(4)(C)(i) of the Act to specify the level of staffing CMS views as “sufficient” to meet nursing needs of residents and establish consistent nationwide standards of mandatory minimum staffing levels in regulated facilities. While many States have regulations in place for minimum nursing services to LTC facility residents, those regulations vary, and do not assure consistent minimum standards across the country.

We also believe that including a comment period before repealing a regulation that can only be enforced and implemented almost a decade in the future is unnecessary. Further, the inclusion of a comment period would delay the removal of unenforceable regulations and prolong confusion and possible misapplication or misapprehension of standards, which would be contrary to public health interests served by the staffing standards, including setting a national and broadly applicable baseline. We considered delaying the repeal until after a comment period or delaying the effective date to 2034, but given the facts, context, and litigation, we concluded that doing so would perpetuate regulatory uncertainty and is not in the public interest.

While under these specific circumstances we find good cause for issuing this interim final rule with comment period prior to a public comment period, the agency is committed to considering public input. We invite comments on this interim final rule with comment period and future rulemaking. Comments received by the date specified in the DATES section of this interim final rule with comment period will be considered in determining whether further action is warranted.

Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-3520, we are required to provide notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. To fairly evaluate whether an information collection should be approved by OMB, 44 U.S.C. 3506(c)(2)(A) requires that we solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our estimate of the information collection burden.

• The quality, utility, and clarity of the information to be collected.

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

This rule does not impose new information collection requirements. Instead, it revises an information collection requirement established in the 2024 Minimum Staffing final rule (89 FR 40876). In that rule, we estimated that long-term care (LTC) facilities would spend 19 hours annually reviewing and updating policies and procedures related to the nurse staffing requirement at § 483.35(a), which mandated 0.55 hours per resident day (HPRD) for registered nurses (RNs) and 2.45 HPRD for nurse aides (NAs) (89 FR 40937).

To estimate the savings from removing this burden, we apply the same methodology and data sources used in the 2024 rule. Readers can refer to the 2024 final rule's collection of information section for detailed discussion on the data sources and methodology used to estimate costs.

In the 2024 final rule, the annual baseline cost of the requirement at § 483.35(a) was estimated at $24,440,832 (89 FR 40939).

In accordance with OMB guidance document (M-25-20), we are adjusting this estimate to 2024 dollars using the Bureau of Economic Analysis' GDP deflator (National Income and Product Accounts Table 1.1.9). 7 8 We also apply a 2.31 percent annual increase in real wage rates starting in 2025, consistent with the final rule. As shown in Table 1, we estimate that removing this requirement will result in total savings of $315,672,322 over 10 years, or annualized savings of $31,567,232.

This interim final rule with comment period is necessary to align the CFR with the statutory moratorium imposed by section 71111 of Public Law 119-21, which prohibits CMS from implementing, administering, or enforcing the minimum staffing standards currently in place at §§ 483.5 and 483.35 until September 30, 2034. In addition, following the finalization of these staffing standards, interested parties expressed significant concerns about the rule's impact. In particular, LTC facilities within rural and tribal communities indicated that the rule's requirements could increase the risk of facility closure. As such, we are rescinding the requirements that facilities have 24/7 RN coverage and that they provide a minimum of 0.55 RN, 2.45 NA, and 3.48 total nurse HPRD.

We have examined the impacts of this rule as required by Executive Order 12866, “Regulatory Planning and Review”; Executive Order 13132, “Federalism”; Executive Order 13563, “Improving Regulation and Regulatory Review”; Executive Order 14192, “Unleashing Prosperity Through Deregulation”; the Regulatory Flexibility Act (RFA) (Pub. L. 96-354); section 1102(b) of the Act; and section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select those regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, or the President's priorities.

A regulatory impact analysis (RIA) must be prepared for a regulatory action that is significant under section 3(f)(1) of E.O. 12866. This interim final rule with comment period is significant as per section 3(f)(1) as we estimate that it will result in savings of $55,089,104,265 for long-term care facilities, patients and payors over 10 years, and costs of $3,255,827,043 for Medicare over 10 years (analogous effects for other payers were and are unquantified). As such, we have prepared a regulatory impact analysis that analyzes the costs and benefits of this interim final rule with comment period.

We are removing two existing requirements for nursing services for LTC facilities at § 483.35. We are removing the requirement that facilities have RN coverage onsite 24 hours per day, 7 days a week (24/7 RN) and that they provide a minimum of 0.55 RN, 2.45 NA, and 3.48 total nurse staffing HPRD. Although Public Law 119-21 does not allow CMS to enforce the minimum staffing requirements until 2034, we follow guidance provided in OMB Circular A-4 https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf that “In some cases, substantial portions of a rule may simply restate statutory requirements that would be self-implementing, even in the absence of the regulatory action. In these cases, you should use a pre-statute baseline.” As such, we continue to estimate the impact of removing these requirements even during the years when the Public Law 119-21 moratorium is in effect.

To estimate the impact from removing each of these requirements, we use the same methodology and data sources used to estimate the costs for these requirements in the 2024 Minimum Staffing final rule (89 FR 40948). We refer readers to that rule's regulatory impact analysis for a detailed discussion on the data sources and methodology for estimating the savings for removing each requirement as outlined in this section. 9 Since these requirements were phased in over a 5-year period starting in May 2024 and there were different timelines for rural and non-rural facilities to meet the requirements, there is yearly variation in the annual savings from removing each requirement. We note that the 10-year savings from removing these requirements are higher than the 10-year costs as outlined in the 2024 Minimum Staffing final rule (89 FR 40973) since more than a year has passed since the requirements were finalized and the phasing-in of the requirements led costs to be lower during the first 5 years after the effective date (than the eventual ongoing level). In addition, in line with the OMB guidance document M-25-20, we are adjusting all estimates to 2024 dollars using the Bureau of Economic Analysis' GDP deflator (National Income and Product Accounts Table 1.1.9). 10 11

To estimate the savings from removing the 24/7 RN requirement, we first calculated each facility's savings from not needing to have an RN onsite 24 hours a day, 7 days per week. We then aggregated the savings across all facilities for a total savings of $349 million annually for all facilities if these requirements had gone into effect in 2024.

The requirement that nursing homes provide 24/7 RN care included a phased-in implementation that requires non-rural facilities to meet the requirement by May 11, 2026, and rural facilities meeting the requirement by May 10, 2027. We also assumed that facilities would begin hiring RNs to meet this requirement in the year prior to the implementation deadline. As such, we calculated savings separately for rural and non-rural facilities. We estimate savings over 10 years starting in 2025 when this interim final rule with comment period removes the requirement. We include a 2.31 percent annual increase in real wage rates starting in 2025, which is the same wage increase used to estimate the requirement's cost in the 2024 Minimum Staffing final rule (89 FR 40975). As Table 2 shows, we estimate that removing this requirement results in average annual savings of approximately $431 million and $4,307,501,380 over 10 years.

To estimate the savings from removing the 3.48 total nurse staff HPRD requirement, we first calculated each facility's savings from not needing to hire nurse staff to meet the requirement. Then, we aggregated the savings across all facilities for a total savings of approximately $1.37 billion annually for all facilities if these requirements had gone into effect in 2024.

The requirement that nursing homes provide 3.48 total nurse staff HPRD included a phased-in implementation that requires non-rural facilities to meet the requirement by May 11, 2026, and rural facilities meeting the requirement by May 10, 2027. We also assumed that facilities would begin hiring staff to meet this requirement in the year prior to the implementation deadline. As such, we calculated savings separately for rural and non-rural facilities. We estimate savings over 10 years starting in 2025 when this interim final rule with comment period removes the requirement. We include a 2.31 percent annual increase in real wage rates starting in 2025, which is the same wage increase used to estimate the requirement's cost in the 2024 Minimum Staffing final rule (89 FR 40975). As Table 3 shows, we estimate that removing this requirement will result in average annual savings of approximately $1.75 billion and $17,460,934,208 over 10 years.

To estimate the savings from removing the 0.55 RN HPRD requirement and the 2.45 NA HPRD requirement, we first calculated each facility's savings from not needing to hire RNs to meet the RN HPRD requirement and NAs to meet the 2.45 NA HPRD requirement. We then aggregated the savings across all facilities for a total savings of approximately $2.91 billion annually for all facilities if these requirements had gone into effect in 2024.

The requirement that nursing homes provide 0.55 RN HPRD and 2.45 NA HPRD included a phased-in implementation that requires non-rural facilities to meet the requirement by May 10, 2027, and rural facilities meeting the requirement by May 10, 2029. We also assumed that facilities would begin hiring staff to meet this requirement in the year prior to the implementation deadline. As such, we calculated savings separately for rural and non-rural facilities. We estimate savings over 10 years starting in 2025 when this interim final rule with comment period removes the requirement. We include a 2.31 percent annual increase in real wage rates starting in 2025, which is the same wage increase used to estimate the requirement's cost in the 2024 Minimum Staffing final rule (89 FR 40975). As Table 4 shows, we estimate that removing these requirements will result in average annual savings of approximately $3.3 billion and $33,004,996,355 over 10 years.

Table 5 summarizes the total savings from removing the 24/7 RN requirement, as well as the 0.55 RN, 2.45 NA, 3.48 total nurse staffing HPRD requirements, and the information collection costs as outlined in Table 1, but not the regulatory review costs which we discuss in more detail later in this section. Overall, we estimate that rescinding these requirements will result in approximately $5.51 billion in annual savings for nursing home providers with total savings over 10 years estimated at $55,089,104,265.