Prior documents in this proceeding: Notice of Hearing published in the January 12, 2024, issue of the Federal Register (89 FR 2178) and a Recommended Decision and Opportunity to File Written Exceptions published in the September 13, 2024, issue of the Federal Register (89 FR 74851).

This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866 and 13563.

Notice of this rulemaking action was provided to Tribal governments through the Department of Agriculture's (USDA) Office of Tribal Relations.

This decision is issued pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation and amendment of marketing agreements and orders (7 CFR part 900).

The proposed amendments in this decision are based on the record of a public hearing on February 13 and 14, 2024, at the office of the Raisin Administrative Committee, 2445 Capitol Street, Suite 200, Fresno, California 93721. Notice of this hearing was published in the Federal Register on January 12, 2024 (89 FR 2178). The notice of hearing contained four proposals submitted to the Agricultural Marketing Service (AMS) by the Raisin Administrative Committee (Committee). AMS also proposed to make conforming changes as may be necessary to conform to any amendments, and to correct minor inconsistencies and typographical errors. The Recommended Decision notes that the Committee has struggled to fill vacancies and secure member attendance at meetings, largely because the California raisin industry has significantly declined and that volume regulation authority was removed from the Order in 2018. In response to these challenges, the Committee proposed several changes:

Under Proposal No. 1, the Committee membership size would be reduced from 47 to 21 members and alternates. Specifically, Proposal No. 1 would decrease producer member seats (from 35 to 12) and handler member seats (from 10 to 8), eliminate the designated cooperative bargaining association member seat, remove producer district representation, and would add a designated seat for an unaffiliated independent producer member. The quorum requirements would also be reduced from 25 to 14 members.

Additionally, the Committee recommended eliminating separate nomination procedures for small cooperative and independent producers (Proposal No. 2); removing two factors no longer relevant to the development of their annual marketing policy and clarifying language regarding the quality of reconditioned raisins (Proposal No. 3); and adding authority to accept voluntary contributions as well as to develop and use intellectual property (Proposal No. 4).

Witnesses testified on the record that the proposed amendments would help reduce Committee vacancies, improve attendance, generate cost savings, enhance administrative efficiency, ensure fair representation, and align Committee membership with the overall size of the California raisin industry. As outlined in the Recommended Decision, the Committee believes that reducing its size from 47 to 21 members and alternates would make it easier to manage and fill Committee positions, thus improving attendance and lessening the likelihood of prolonged vacancies. This amendment, along with the other amendments under Proposal No. 1, would ensure that the size and composition of the Committee aligns with the size and structure of the industry, and that different stakeholders within the industry have a fair and equitable level of representation on the Committee. Further, with lower quorum requirements, the Committee can make decisions more easily, reduce meeting delays and the number of rescheduled meetings caused by low attendance, improve administrative efficiency and generate a cost savings for the Committee.

Eliminating separate nomination procedures for small cooperative and independent producers under Proposal No. 2, would also enhance administrative efficiency by reducing administrative burden and streamlining the nomination process.

Removing factors for establishing marketing policy under Proposal No. 3 would improve administrative efficiency by removing unnecessary and outdated considerations and allow the Committee to focus on more relevant matters. Further, the amendment to clarify the quality of reconditioned raisins under Proposal No. 3 would dispel negative impressions stemming from misconceptions and clarify the quality of reconditioned fruit, streamlining sales and contribute to improving administrative efficiencies.

Lastly, the addition of voluntary contribution authority and intellectual property language under Proposal No. 4 would generate a costs savings because voluntary contributions and revenue from intellectual property can provide additional funding, aside from assessments, that the Committee may use for other activities approved under the Order, such as research and promotion.

After thorough consideration of the hearing record, USDA has determined that the proposed amendments would tend to effectuate the declared policy of the Act.

Additionally, USDA proposed to make any such changes as may be necessary to the Order to conform to any amendment that may be adopted, or to correct minor inconsistencies and typographical errors. Accordingly, USDA recommended the following change in the Recommended Decision: revise § 989.129 to replace the word “ballot” with “vote.” This conforming change aligns with the Committee's proposal to remove separate nomination procedures, reverting the regulatory text to its original form prior to the 2018 amendment. Witnesses at the hearing testified in support of the removal of separate nominations for small cooperative and independent producers, as separate nomination procedures had been shown to discourage participation and would not be needed with a smaller Committee.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on September 16, 2024, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by October 15, 2024. USDA received three comments opposing the removal of the designated cooperative bargaining association seat from the Committee membership. Accordingly, three exceptions were filed.

All three comments proposed establishing a Committee size of 22 members, instead of the 21-member structure as proposed by the Committee, and retaining the designated cooperative bargaining association seat. The relevant issues raised by commenters suggest that under the structure proposed by the Committee, Sun-Maid Growers (Sun-Maid), a cooperative marketing association, would control 50 percent of the Committee's representation, giving it dominance in decision-making, and that the removal of the cooperative bargaining association seat would disenfranchise workers and weaken the Raisin Bargaining Association (RBA). We address these points, as well as the alternate proposal, below:

USDA considered but rejected the proposal to increase the proposed Committee size to 22 members because record evidence does not support this proposal. Rather, the record evidence shows that the justification for the extra seat no longer applies. Adding the seat to the proposed 21-member Committee structure would give the RBA disproportionate representation, as the extra seat is not allocated on proportional shares and would be unfair to other industry groups, such as independent producers, who do not have a dedicated seat.

Two of the three comments raised concerns about Sun-Maid gaining more influence on the Committee, asserting that it would control 50 percent of the Committee's seats under the proposed structure, which could negatively impact small producers. Under the proposed Committee membership structure, Sun-Maid would hold eight seats—five for producers and three for handlers—representing approximately 38 percent of the Committee, not the 50 percent asserted by the commenters. Further, the number of seats allocated to Sun-Maid aligns with its share of industry volume. While this would give Sun-Maid some level of influence, there would still be 10 seats reserved for independents—five independent producers and five independent handlers—which would help to ensure that no single entity can dominate decisions without the support of other Committee members.

Record evidence shows that the Committee has been considering a reduction in size for many years and has explored various alternatives, ultimately recommending the proposed amendments. The addition of the unaffiliated independent producer member seat would help to reduce the marginalization of small producers. The unaffiliated seat would most likely be filled by a small producer, ensuring representation of producers not affiliated with handlers on the Committee. Furthermore, small independent producers testified in favor of the changes, including the elimination of the designated cooperative bargaining association seat, indicating that they are comfortable with Sun-Maid's level of representation within the proposed Committee structure. Lastly, under the proposed Committee structure, the majority of Committee seats would be allocated to producers ensuring that there would not be disproportionate handler representation and that the Committee is producer-focused.

Commenters also suggested that removing the cooperative bargaining association seat would disenfranchise workers by eliminating a seat designated for industry workers, thereby reducing diversity, and further weakening the RBA, as well as hindering new member recruitment and disrupting the worker/manufacturer relationship. Record evidence shows that the RBA's diminished representation and the Committee's proposal to remove the designated seat are the result of a significant decline in RBA's membership and total raisin acquisitions over time, as well as the removal of volume control authority under the Order.

As noted above in the alternate proposal discussion, if the designated seat were to remain on the Committee, the seat would grant the RBA disproportionate representation on the Committee, which would be unfair to other industry producers. While the designated seat's removal may be perceived to further contribute to the RBA's decline, the sustainability and continuity of such organizations ultimately depends on the evolving needs and preferences of the industry. Therefore, new member recruitment to the RBA and the maintenance of a good working relationship between such workers and manufacturers falls under the RBA's purview, and not the Committee, as the Committee does not have authority over the RBA or any other organization representing industry regarding such matters.

Record evidence further indicates that the RBA's role has changed over time. Historically, the RBA played a vital role in the establishment of volume regulation, which helped to address pricing contracts. However, raisin growers voted through referendum in 2017 to remove volume regulation authority from the Order. Furthermore, the Committee's primary authorities are to recommend regulations related to quality control and research and promotion. Since the Committee no longer has authority to implement volume control, it does not make decisions that directly affect surplus raisins and, consequently, pricing. Therefore, the RBA's function of bargaining for commodity prices falls outside the current scope of the Order. Without this authority, the Committee no longer views the RBA-designated seat as necessary. RBA would still have Committee representation that is proportional to its raisin acquisitions, so if the RBA experiences future growth in acquisitions, its representation on the Committee would change accordingly. The opportunity for RBA members to serve directly on the Committee as producers would remain.

For these reasons, no changes have been made to the amendment under Proposal No. 1 related to the reduction of Committee membership to 21 members or the elimination of the cooperative bargaining association seat.

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

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

According to the hearing transcript, there are approximately 1,500 producers of California raisins. According to the National Agricultural Statistical Service (NASS) data presented at the hearing, the total value of production for the 2022-2023 crop year of raisins was $381,780,000. Taking the total value of production for raisins and dividing it by the total number of raisin producers provides a return per producer of $254,520. Small agricultural producers of raisins are defined by the Small Business Administration (SBA) as those having annual receipts equal to or less than $4.0 million (NAICS code 111332, Grape Vineyards) (13 CFR 121.201). Therefore, a majority of raisin producers would be considered small entities under SBA's standards.

According to the record, there were 17 handlers for the 2022-2023 crop year. Small agricultural service firms are defined as those whose annual receipts are equal to or less than $34.0 million (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201). To make a similar computation for handlers, the first step is to estimate a representative handler price received per pound for packaged raisins. Recent USDA purchases under the Commodity Procurement Program provide such an estimate. For the most recent raisin crop year used by the Committee (August 2022-July 2023), the average price paid for packaged raisins purchased by the USDA for food assistance programs was $1.56 per pound. The annual receipts for handlers can be calculated by taking the USDA average purchase price and multiplying it by the total number of shipments as reported by the Committee for the 2022-2023 crop year ($1.56 × 414,898,000 LB) which equals $647,240,880. Taking the calculation for the annual receipts by handlers and dividing by the number of handlers provides an estimated annual receipt per handler ($647,240,880 divided by 17), which equals $38,072,993. Based on the SBA definition of an agricultural service firm having less than $34 million in annual receipts, there is a mix of both large and small raisin handlers.

The production area regulated under the Order covers the State of California. Acreage devoted to raisin production in the production area has declined in recent years. According to data presented at the hearing, bearing acreage for raisins reached a high of 280,000 acres during the 2000-2001 crop year. Since then, bearing acreage for raisins has decreased almost 53 percent to 133,000 acres in 2021-2022. Total production of raisins reached a high during the 2000-2001 crop year of 2,921,000 tons (green tons) but has decreased 65 percent to a total production of raisins of 1,010,000 tons in 2021-2022.

During the hearing held on February 13 and 14, 2024, interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the Order on small businesses. The evidence presented at the hearing shows that none of the proposed amendments would have any burdensome effects on small agricultural producers or firms.

Proposal No. 1 would remove producer district representation in § 989.26(c) and add an unaffiliated independent producer member seat to § 989.126(a)(1). Corresponding changes would also remove §§ 989.22 and 989.122 and references to producer districts in §§ 989.29(b)(2), 989.126(a), and 989.129. In addition, Proposal No. 1 would eliminate the designated cooperative bargaining association seat in § 989.26. Corresponding changes would also remove the reference to the cooperative bargaining association position in § 989.30. Lastly, Proposal No. 1 would amend § 989.38 by lowering the quorum requirement from 25 to 14.

Most witnesses supported this proposal and stated that reducing the size of the Committee would make conducting business more efficient. These witnesses' statements are supported by the data collected by NASS showing that bearing acreage for raisins has decreased almost 53 percent since the 2000-2001 season.

Currently, the Committee structure consists of 47 members and 47 alternates, where quorum is met when at least 25 members are in attendance. A witness testified that, from April 2019 through June 2023, Committee meeting participation averaged only 33 out of the 47 members in attendance. Further, witnesses testified that the number of raisin producers has declined from approximately 3,500 during the 2000-2001 season to approximately 1,500 during the 2022-2023 season. Reducing the number of members on the Committee would bring representation into balance with the overall size of the industry.

For the reasons described above, it is determined that the proposed amendment would benefit industry participants and improve administration of the Order. The costs of implementing this proposal would be minimal, if any, and may even create efficiencies that would reduce administrative costs.

Proposal No. 2 would amend § 989.29 to eliminate the requirement for separate nominations for independent producers or producers affiliated with small cooperative marketing associations.

Currently, the Committee has difficulty filling Committee seats designated for independent producer members and independent producer alternate members. Independent producer alternate member seats have gone unfilled for several consecutive years.

According to witness testimony, the purpose of the proposal is to eliminate the requirements for separate nominations for independent producers and create greater competition for all Committee positions. When the raisin industry had more producers, the Committee believed designating separate nominations for independent producers ensured that independent producers' concerns were part of Committee discussions. As the raisin industry has evolved, separate nominations for independent producers have resulted in low attendance rates and absenteeism at Committee meetings.

In conclusion, it is determined that the benefits of eliminating the requirements for separate nominations for independent producers would outweigh any costs associated with the implementation of the proposed amendment.

Proposal No. 3 would modify § 989.54(a) by removing factor number 4 “An estimated desirable carryout at the end of the crop year;” and the last part of factor number 5, “, considering the estimated world raisin supply and demand situation”. Proposal No. 3 would also amend §§ 989.24 and 989.58 by adding language to clarify that the quality of reconditioned raisins is the same as other “standard raisins.”

Currently, many customers believe reconditioned raisins differ from raisins that were not reconditioned, even though both raisins have been inspected and met the same quality standard. The Committee believes that there is an impression in the raisin market that the quality level of reconditioned raisins is lower than other standard raisins. Clarifying that “standard raisins” shall be defined as any raisins that have been inspected and meet the Order's minimum requirements, regardless of whether the fruit has been reconditioned or not, would remove the negative quality association customers may have with reconditioned raisins.

According to a witness, the proposed amendment would streamline the sales process and would have a positive impact for raisin handlers and producers. Currently, USDA does not distinguish between reconditioned or standard raisins when purchasing for feeding programs.

It is determined that the benefits gained from implementing this proposal would outweigh additional implementation costs incurred, if any.

Proposal No. 4 would add § 989.63 to establish the authority to accept voluntary contributions; add § 989.64 to establish authority related to ownership of, and rights to, intellectual property; and add authority for the collection of rents/royalties from the same.

The Order does not currently allow for the Committee to accept voluntary contributions or have ownership of, and rights to, intellectual property. This proposal would allow for the Committee to generate additional income outside the collection of handler assessments.

According to a witness, the Committee has been approached recently with the opportunity to generate revenue from “The California Raisins,” the trademarked animated rhythm and blues music group created by the raisin industry. Adding the authority to own, and to exercise the rights of, intellectual property would allow the Committee to receive income from patents, copyrights, trademarks, inventions, publications, or product formulations. Such authority would allow the Committee to collect additional income from “The California Raisins” and any other intellectual property owned or controlled by the Committee. The additional income could benefit the raisin industry by, for instance, supporting future production research as determined by the Committee.

For the reasons described above, it is determined that any additional costs incurred as a result of this proposal would be outweighed by the increased flexibility for the industry to respond to a changing global marketplace.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the Order and to assist in the marketing of California raisins.

Committee meetings regarding these proposals, as well as the hearing date and location, were widely publicized throughout the California raisin industry, and all interested persons were invited to attend the meetings and the hearing to participate in Committee deliberations on all issues. All Committee meetings, and the hearing, were public forums, and all entities, both large and small, were able to express views on these issues.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Current information collection requirements that are part of the Federal marketing order for California raisins (7 CFR part 984) are approved under OMB No. 0581-0178 Vegetables and Specialty Crops. Some changes in those requirements are anticipated as a result of this proceeding. Such changes would be submitted to OMB for approval.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

The amendments to the Order proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under § 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

The findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision and Opportunity to File Written Exceptions set forth in the September 13, 2024, issue of the Federal Register (89 FR 74851), are hereby approved and adopted.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Raisin Produced from Grapes Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions.

It is hereby ordered, that this entire decision be published in the Federal Register .

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400 through 900.407). To determine whether the annexed order amending the order regulating the handling of raisins produced from grapes grown in California is approved or favored by growers, as defined under the terms of the Order, who during the representative period were engaged in the production of raisins produced from grapes in the production area.

The representative period for the conduct of such referendum is hereby determined to be August 1, 2024, through July 31, 2025.

The agents of the Secretary to conduct such referendum are hereby designated to be Peter Sommers, Marketing Specialist, and Abigail Maharaj, Branch Chief, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5905, or Email: peterr.sommers@usda.gov or abigail.maharaj@usda.gov.

The findings and determinations hereinafter set forth are supplementary to the findings and determinations that were previously made in connection with the issuance of the marketing order, and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon proposed further amendment of Marketing Order No. 989, regulating the handling of raisins produced from grapes grown in California.

Upon the basis of the record, it is found that:

(1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

(2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of raisins produced from grapes grown in the production area in the same manner as, and is applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order upon which a hearing has been held;

(3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its application to the smallest regional production area that is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

(4) The marketing order, as amended, and as hereby proposed to be further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of raisin produced from grapes grown in California; and

(5) All handling of raisins produced from grapes grown in the production area, as defined in the marketing order, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, that on and after the effective date hereof, all handling of raisins produced from grapes grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby proposed to be amended as follows:

The provisions of the proposed marketing order amending the Order contained in the Recommended Decision and Opportunity to File Written Exceptions published in the September 13, 2024, issue of the Federal Register (89 FR 74851), and in this Secretary's Decision and Referendum Order, will be and are the terms and provisions of this order amending the Order and are set forth in full herein.

For the reasons set out in the preamble, 7 CFR part 989 is proposed to be amended as follows:

In 2010, the Board comprehensively revised the regulations governing corporate credit unions to provide longer-term structural enhancements to the corporate system in response to the financial crisis of 2007-2009. 1 The provisions of the 2010 rule were intended to stabilize the corporate system and improved corporate credit unions' ability to function and provide services to natural person credit unions without undue risk. Since 2010, and as part of the Board's continuous reevaluation of its regulation of corporate credit unions, the Board has amended part 704 on several occasions. 2

In 2017, the Board amended corporate credit union capital standards to change the calculation of capital after a consolidation and to set a retained earnings ratio target. 3 In October 2020, the Board issued a final rule to amend several provisions relating to corporate credit union investments in credit union service organizations (CUSOs) and other provisions relating to corporate credit union governance. 4 Finally, in 2021, the Board amended part 704 to clarify that corporate credit unions may purchase subordinated debt instruments issued by consumer credit unions. 5

The Board is issuing this proposed rule pursuant to its authority under the Federal Credit Union Act (FCU Act). 6 Under the FCU Act, the NCUA is the chartering and supervisory authority for federal credit unions (FCUs) and the federal supervisory authority for federally insured credit unions (FICUs). The FCU Act grants the NCUA a broad mandate to issue regulations governing both FCUs and FICUs. Section 120 of the FCU Act is a general grant of regulatory authority and authorizes the Board to prescribe regulations for the administration of the FCU Act. 7 Section 209 of the FCU Act is a plenary grant of regulatory authority to the NCUA to issue regulations necessary or appropriate to carry out its role as share insurer for all FICUs. 8 The FCU Act also includes an express grant of authority for the Board to subject federally chartered central, or corporate, credit unions to such rules, regulations, and orders as the Board deems appropriate. 9 Part 704 of the NCUA's regulations implements the requirements of the FCU Act regarding corporate credit unions. 10

Before the financial crisis of 2007-2009, the Board comprehensively revised part 704 (1997 final rule). 11 The 1997 final rule required that corporate credit unions operate according to a written asset and liability management policy. Additionally, the 1997 final rule required that each corporate credit union's ALCO have at least one member who is also a member of the board of directors. The board member requirement has not been amended since 1997.

The Board now proposes to rescind the requirement for each corporate credit union's ALCO to have at least one member who is also a member of the board of directors. After careful review, the Board believes that this prescriptive approach is unnecessary. The Board's primary policy rationale for this proposed elimination is that this requirement is overly prescriptive and inflexible, and corporate credit union boards should have discretion to determine their ALCO membership.

The 1997 final rule also required that a corporate credit union's supervisory committee get an annual opinion audit of the corporate credit union's financial statements. The supervisory committee was required to submit the audit report to the board of directors. In addition, the supervisory committee had to submit a copy of the audit report and copies of all communications provided to the corporate credit union by the external auditor to the NCUA within 30 calendar days after receipt by the board of directors. 12

In 2010, the Board amended corporate credit union audit requirements by adding additional auditing, reporting, and supervisory committee requirements. 13 For consistent application of the requirement, the Board required that a corporate credit union file a copy of its annual report with the NCUA within 180 days following the end of the calendar year. 14 The Board also provided that the NCUA would make a corporate credit union's annual report available for public inspection and that, consistent with good corporate governance, a corporate credit union was required to give the NCUA a copy of any management letter or report issued by its independent public accountant. 15 Finally, the Board required corporate credit unions to notify the NCUA when filing the annual report late. 16

The Board now proposes to remove several of its filing requirements related to a corporate credit union's annual report. The proposed rule would rescind the requirement to file a copy of an annual report and any management letter or other report issued by its independent public accountant with the NCUA within 180 days after the end of the calendar year. The proposed rule would also rescind the requirement for the NCUA to make the annual report available for public inspection. Along with the proposed removal of these filing requirements, the Board would rescind requirements related to untimely filings.

The Board is proposing to eliminate these filing requirements because the section imposes an unnecessary and undue compliance burden on corporate credit unions that is disproportionate to its limited public benefit. The NCUA has access to corporate credit union records and audit reports through its examination authority. 17 The proposed amendments only remove the requirements for the corporate credit union to file the documents with the NCUA and does not limit the NCUA's access to the information. NCUA examiners will continue to review these materials through the examination process. The intended effect of the proposed amendment is to reduce unnecessary regulatory burden without affecting corporate credit union safety and soundness.

The Board notes that other aspects of the NCUA's filing requirements will remain unchanged. Corporate credit unions will continue to be required to notify the NCUA within 15 days of losing an independent public accounting through dismissal or resignation. The proposed rule would remove the requirement to report the engagement of an independent public accountant. The Board is more concerned with prompt notification for the dismissal or resignation of an accountant than about notification of the initial engagement. The NCUA would have access to the engagement letter if necessary and does not need prompt notification. Additionally, a corporate credit union must submit a preliminary annual report to the corporate credit union's membership at its next calendar year's annual meeting.

The Board solicits comments on all aspects of the proposed rule.

The Providing Accountability Through Transparency Act of 2023 (5 U.S.C. 553(b)(4)) (Act) requires that a notice of proposed rulemaking include the internet address of a summary of not more than 100 words in length of a proposed rule, in plain language, that shall be posted on the internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov ).

The Board is proposing to amend its regulations for corporate credit unions by removing the requirement that a corporate credit union's ALCO must have at least one member who is also a member of the corporate credit union's board of directors. The proposed rule would also remove filing requirements related to a corporate credit union's annual report and any management letter or other report issued by its independent public accountant. The intended effect is to reduce unnecessary regulatory burden and provide corporate credit unions with greater flexibility.

The proposal and the required summary can be found at https://www.regulations.gov.

Pursuant to Executive Order 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14215, a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. 18 Executive Order 13563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866. 19 This proposed rule was drafted and reviewed in accordance with Executive Order 12866 and Executive Order 13563. OMB has determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f)(1) of Executive Order 12866. Further, this proposed rule will reduce the burden of filing certain reports with the NCUA and increase flexibility for corporate credit union boards to determine ALCO members and is consistent with Executive Order 13563.

Executive Order 14192 (“Unleashing Prosperity Through Deregulation”) requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. 20 This proposed rule is expected to be a deregulatory action for purposes of Executive Order 14192.

The Regulatory Flexibility Act  21 generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. If the agency makes such a certification, it must publish the certification at the time of publication of either the proposed rule or the final rule, along with a statement providing the factual basis for such certification. 22 For purposes of this analysis, the NCUA considers small credit unions to be those having under $100 million in assets. 23 The Board fully considered the potential economic impacts of the regulatory amendments on small credit unions. There are no corporate credit unions under $100 million in assets. Accordingly, the NCUA certifies the proposed rule would not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) generally provides that an agency may not conduct or sponsor, and not withstanding any other provision of law, a person is not required to respond to, a collection of information, unless it displays a currently valid Office of Management and Budget control number. The PRA applies to rulemakings in which an agency creates a new or amends existing information collection requirements. For purposes of the PRA, an information-collection requirement may take the form of a reporting, recordkeeping, or a third-party disclosure requirement. The NCUA has determined that the changes addressed in this notice do not create a new information collection or revise an existing information collection as defined by the PRA.

Executive Order 13132 encourages certain regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an agency as defined in 44 U.S.C. 3502(5), complies with the executive order to adhere to fundamental federalism principles. This proposed rule would apply to all FICUs, including state-chartered credit unions. The NCUA expects that any effect on states or on the distribution of power and responsibilities among the various levels of government will be minor. The proposed changes would remove existing federal filing requirements for state-chartered corporate credit unions and do not negatively affect the division of responsibilities between the NCUA and state regulatory authorities with oversight of federally insured, state-chartered corporate credit unions. The NCUA welcomes comments on ways to eliminate, or at least minimize, any potential impact in this area.

The NCUA has determined that this proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999. 24 The proposed rescission is exclusively concerned with corporate credit union governance and filing requirements. The proposed rule is intended to reduce regulatory burden while maintaining a strong corporate system to support consumer credit unions in their provision of financial services to members. The potential positive effect on family well-being, including financial well-being is, at most, indirect.

For the reasons stated in the preamble, the NCUA Board proposes to amend 12 CFR part 704 as follows:

The NCUA Board proposes to amend its regulations at 12 CFR part 715, which govern the supervisory committee audit and verification responsibilities for federally insured credit unions (FICUs). The primary purpose of this regulation is to ensure that FICUs meet required financial reporting objectives and establish practices and procedures sufficient to safeguard members' assets from error, conflicts of interest, self-dealing, and fraud.

The current proposal seeks to partially or wholly eliminate several sections of this part. The following is a description of the purpose and function of those sections as they currently exist.

Section 715.2 defines key terms used throughout the part. It establishes the meaning of technical terms such as financial statements , financial statement audit , GAAP, and GAAS. It also defines terms specific to the rule's framework, such as compensated person, which refers to an accounting or auditing professional compensated for performing more than one supervisory committee audit per year, and working papers , which are the records supporting the auditor's findings. This section distinguishes a formal financial statement audit from the broader supervisory committee audit responsibility, which can be fulfilled through several alternative engagements.

Section 715.8 sets forth the requirements for the verification of member accounts. This requirement is derived from 12 U.S.C. 1761d and obligates the supervisory committee to verify members' passbooks and accounts against the credit union's records at least once every two years. The regulation permits several methods for this verification, including a 100 percent controlled verification of all member share and loan accounts, a statistical sampling method, or a non-statistical sampling method consistent with GAAS when performed by a state-licensed independent person.

Section 715.9 governs the engagement of an outside, compensated person to assist the supervisory committee. To ensure auditor independence, the section prohibits such a person from being related by blood or marriage to any management employee or official of the credit union. It also mandates that the engagement be formalized through a written engagement letter contracted directly with the supervisory committee. This letter must specify the terms, conditions, objectives, and compensation for the engagement; identify the basis of accounting to be used; and set a target date for the delivery of the written audit report. The engagement letter must also certify that regulators will be provided unconditional access to the complete set of original working papers and acknowledge that these papers will be retained for at least three years.

Section 715.10 outlines the supervisory committee's responsibilities for the audit report and working papers. Upon receiving a written audit report, the committee must submit it to the board of directors and provide a summary of the audit to the members at the next annual meeting. If a member requests it, the committee must provide access to the full audit report. This section also holds the supervisory committee responsible for maintaining a complete set of original working papers for each audit and for providing the NCUA with unconditional access to these papers upon request.

Section 715.12 provides statutory remedies for the NCUA Board to address non-compliance by a federal credit union (FCU). The Board may compel a credit union to obtain a supervisory committee audit performed by an independent, state-licensed person if the credit union's supervisory committee fails to obtain a required annual audit or obtains one that does not meet the requirements of part 715. The Board may also compel a full financial statement audit if the credit union has experienced “serious and persistent recordkeeping deficiencies.” The rule defines a deficiency as “serious” if financial reporting objectives are not met and member assets are not safeguarded, and “persistent” if it continues beyond a reasonable period.

Section 741.202 applies supervisory committee audit and verification and other requirements of part 715 to all FICUs, which extends coverage to federally insured, state-chartered credit unions.

The reasons for the proposed changes are discussed in the preamble, under the heading “Discussion.”

Sections 115 and 202(a)(6) of the FCU Act set forth provisions addressing auditing and accounting requirements. 1 Section 115 of the FCU Act requires a FCU's supervisory committee to make an annual audit and submit a report of that audit to the FCU's board of directors and a summary of that report to the FCU's members at the next annual meeting. 2 Further, the supervisory committee is required to make supplemental reports as it deems necessary.

Section 202(a)(6)(A) of the FCU Act is a general grant of authority to the Board to prescribe audit standards that require an outside, independent audit by a certified public accountant for any fiscal year for which a FICU has not conducted an annual supervisory committee audit, has not received a complete and satisfactory supervisory committee audit, or during which the FICU has experienced persistent or serious recordkeeping deficiencies. 3

Section 202(a)(6)(C) of the FCU Act generally requires FICUs having assets of $10 million or more to use accounting principles consistent with GAAP in all reports or statements required to be filed with the Board. The Board, and state credit union supervisors under applicable state law, may require credit unions having less than $10 million in assets to follow GAAP.

Section 202(a)(6)(D) of the FCU Act imposes audit requirements for larger FICUs. Specifically, a FICU having assets of $500 million or more is required to obtain an annual independent audit of its financial statements performed in accordance with GAAS, hereafter referred to as a “financial statement audit.” That audit must be performed by an independent certified public accountant or public accountant licensed to do so by an appropriate state or jurisdiction. 4

Additionally, if an FCU having total assets of less than $500 million but more than $10 million elects to obtain a financial statement audit, the audit must be performed consistent with the accountancy laws of the appropriate state or jurisdiction. 5

The Board is proposing several amendments to 12 CFR part 715 to reduce regulatory burden, eliminate unnecessary and redundant provisions, and increase flexibility for FICUs. These changes are consistent with the Board's ongoing efforts to modernize its regulations and ensure they remain effective and efficient without imposing undue burdens. The proposed changes are discussed in detail below.

The Board proposes to eliminate several provisions that are overly prescriptive, unnecessarily rigid, or redundant of existing statutory duties. These changes are intended to provide FICUs with greater flexibility in meeting their audit compliance obligations while maintaining the integrity of the audit and verification process.

The Board is proposing to amend § 715.2(h), which defines “Internal control” for part 715. The current definition defines this term as the process designed by a FICU's board, officers, and employees to provide reasonable assurance of reliable financial reporting and safeguarding of assets against unauthorized acquisition, use, or disposition. The definition also describes internal control components in detail, specifying five components and describing reliable financial reporting. The second sentence of the paragraph, which enumerates the five components of an internal control structure, is overly prescriptive and risks becoming obsolete. This list is derived from a specific framework that may evolve over time. Removing this static definition would make the regulation more durable and allow FICUs and auditors to apply current, industry-accepted frameworks for evaluating internal controls. The third sentence, which defines reliable financial reporting by referencing only the preparation of Call Reports, is unduly narrow and is also proposed for removal to provide a more comprehensive understanding of the term.

The Board is proposing to amend § 715.8(a), which details specific methods for the verification of member accounts. The FCU Act, at 12 U.S.C. 1761d, imposes a clear and self-executing duty on the supervisory committee to verify member accounts at least once every 2 years. The regulation requires members' accounts to be verified against the records of the treasurer of the credit union. The Board proposes to amend this requirement to state more generally that members' accounts must be verified against the credit union's records. The Board notes that the treasurer's records belong to the credit union. Thus, while the treasurer must maintain the records under the FCU Act, the supervisory committee is responsible for checking these records against members' account records.

The Board is proposing to amend § 715.9(b), which provides details on engagement letters with outside, compensated auditors. The current provision requires the scope of work to be documented in an engagement letter contracted with the supervisory committee. The provision also details how the engagement letter must be signed by both parties. The Board finds this additional detail and prescription unnecessary. Without this description, the provision is clear that the supervisory committee must enter into a contract with the outside, compensated auditor. Prescribing this process in greater detail adds to the body of regulations that FICUs must follow without any clear benefit. Therefore, the Board proposes to remove the final sentence of this provision.

The Board is also proposing to amend § 715.10(a) by removing the sentence that requires a supervisory committee to provide the NCUA with a copy of audit reports upon request. This provision is entirely redundant of the Board's existing authority. The Board has broad statutory power under the FCU Act to access all books and records of any FICU during its examination and supervision activities. 6 This inherent authority includes the power to obtain audit reports, which are records of the credit union. Eliminating this duplicative regulatory language streamlines the rule without in any way diminishing the agency's access to information or its oversight capabilities.

Finally, the Board proposes to remove two sentences from § 715.12(b). This provision currently describes the objective of a financial statement audit compelled by the NCUA and states that an “adverse opinion or disclaimer of opinion should be the exception rather than the norm.” This language is unnecessary because GAAS already establishes the objectives of a financial statement audit. This commentary in the regulation is best read as guidance and could cause confusion if auditing standards evolve to provide different objectives or expectations for financial statement audits. Therefore, the Board proposes to remove the final two sentences of this provision to reduce potential confusion.

The Board requests public comment on all of these proposed changes. Commenters are also invited to address whether the removal of prescriptive language in § § 715.9(b) and 715.12(b) achieves the goal of reducing administrative burden without compromising audit integrity.

The Providing Accountability Through Transparency Act of 2023 (5 U.S.C. 553(b)(4)) (Act) requires that a notice of proposed rulemaking include the internet address of a summary of not more than 100 words in length of a proposed rule, in plain language, that shall be posted on the internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov ). The Act, under its terms, applies to notices of proposed rulemaking and does not expressly include other types of documents that the Board publishes voluntarily for public comment, such as notices and interim-final rules that request comment despite invoking “good cause” to forgo such notice and public procedure. The Board, however, has elected to address the Act's requirement in these types of documents in the interests of administrative consistency and transparency.

In summary, the Board is proposing to amend its regulations governing supervisory committee audits to eliminate unnecessary, redundant, and overly prescriptive provisions. This action is necessary to reduce regulatory burden, increase operational flexibility for credit unions, and streamline the rules by removing requirements that are outdated or duplicative of other authorities. The intended effect of this proposal is to simplify compliance for credit unions without compromising the integrity of the audit process.

The proposal and the required summary can be found at https://www.regulations.gov.

Pursuant to Executive Order 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14215, a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. 7 Executive Order 13563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866. 8 This proposed rule was drafted and reviewed in accordance with Executive Order 12866 and Executive Order 13563. OMB has determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f)(1) of Executive Order 12866.

Executive Order 14192 (“Unleashing Prosperity Through Deregulation”) requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. 9 This proposed rule is expected to be a deregulatory action for purposes of Executive Order 14192.

The Regulatory Flexibility Act  10 generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. If the agency makes such a certification, it shall publish the certification at the time of publication of either the proposed rule or the final rule, along with a statement providing the factual basis for such certification. 11 For purposes of this analysis, the NCUA considers small credit unions to be those having under $100 million in assets. 12 The Board fully considered the potential economic impacts of the regulatory amendments on small credit unions.

The proposed changes would reduce burden and confusion by streamlining certain provisions in the NCUA's audit regulations that apply to all FICUs. The changes would not substantially change FICUs' audit obligations or the nature of these audits. Rather, the proposed changes would provide clarity and generally reduce the level of detail in the regulations, which may provide relief to FICUs, but are not likely to have a significant economic impact.

Accordingly, the NCUA certifies the proposed rule would not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) generally provides that an agency may not conduct or sponsor, and not withstanding any other provision of law, a person is not required to respond to, a collection of information, unless it displays a currently valid Office of Management and Budget control number. The PRA applies to rulemakings in which an agency creates a new or amends existing information collection requirements. For purposes of the PRA, an information-collection requirement may take the form of a reporting, recordkeeping, or a third-party disclosure requirement. The NCUA has determined that the changes described in this notice do not create a new information collection or revise an existing information collection as defined by the PRA.

Executive Order 13132 encourages certain regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an agency as defined in 44 U.S.C. 3502(5), complies with the executive order to adhere to fundamental federalism principles. The NCUA's audit regulations apply to all FICUs, including federally insured, state-chartered credit unions. The proposed changes would not change or impose any new burdens on FICUs, including state-chartered credit unions. The proposed changes would streamline and clarify certain provisions without changing FICUs' audit obligations. The rulemaking would therefore not have direct effect on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government.

The NCUA has determined that this proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999. 13 The proposed rule concerns FICUs' audit obligations and procedures. Any effect on members' accounts, and by extension their financial well-being, is likely to be indirect.

For the reasons stated in the preamble, the NCUA Board proposes to amend 12 CFR part 715 as follows:

On May 2, 2005, the Board issued a final rule to revise 12 CFR part 748 to include a requirement that FICUs respond to incidents of unauthorized access to member information. 1 Appendix B, entitled Guidance on Response Programs for Unauthorized Access to Member Information and Member Notice, was included in the final rule to assist FICUs in developing and maintaining their response programs. It was a further interpretation of the Gramm Leach Bliley Act's requirement that NCUA and other regulators adopt standards for safeguarding customer information that financial institutions could adopt. 2

Appendix B notes that each year, millions of Americans throughout the country fall victim to identify theft as a result of the misuse of their personal information obtained by identity thieves from a number of sources, including credit unions. 3 It goes on to state that, as a result, credit unions should take preventative measures to safeguard member information against such attempts, and to do so in a way that is appropriate to the size and complexity of the credit union and the nature and scope of its activities. Thus, Appendix B is designed to be risk-based and to give FICUs discretion in addressing incidents of unauthorized access to or use of member information that could result in substantial harm or inconvenience to a member.

The standards in Appendix B fulfill a requirement in the Gramm-Leach-Bliley Act, through which Congress directed NCUA and other federal regulators to establish standards for financial institutions relating to the safeguarding of customer information. 4 Under the Federal Credit Union Act (FCU Act), NCUA examines all FICUs and is required to ensure that all FICUs operate safely and soundly. In particular, 12 U.S.C. 1786(b) compels the agency to act to correct unsafe or unsound conditions or practices in FICUs. Sections 120 and 209 of the FCU Act are plenary grants of regulatory authority to the Board to examine and require information and reports from credit unions as well as issue the regulations necessary or appropriate to carry out its roles as regulator and share insurer. Section 204 of the FCU Act requires the Board to appoint examiners who shall have the power to thoroughly examine the affairs of (FICUs) and report to the Board. Section 206 of the FCU Act requires the agency to impose corrective measures whenever, in the opinion of the Board, any credit union is engaged in or has engaged in unsafe or unsound practices in conducting its business. Accordingly, the FCU Act grants the Board broad rulemaking authority to protect credit unions, their member owners, and the National Credit Union Share Insurance Fund.

The Board is now issuing this proposed rule to remove Appendix B from the CFR. The Board believes that the information conveyed in Appendix B can be just as easily communicated by a Letter to Credit Unions, which would have the advantage of being better recognized by FICUs as nonbinding guidance. The Board believes that issuing Appendix B alongside part 748 may give the false impression that it is a legally binding rule rather than an aid to credit unions that can help them meet the regulatory requirements of part 748. The Board seeks comments on all aspects of this proposed rule, including any references to Appendix B in other parts of NCUA's regulations that may need to be revised.

The Board considered retaining Appendix B in its current form. The current practice ensures the agency reviews Appendix B once every three years as part of its one third regulatory review process. Maintaining Appendix B as part of NCUA's regulations also guarantees that any changes, whether technical or substantive, are published in the Federal Register typically with an opportunity for public notice and comment (unless an exception under the Administrative Procedure Act applies). Maintaining the current placement would maintain comparability with the FBAs whose guidance is also located in the CFR. However, the Board now believes that streamlining NCUA's regulations and creating a greater separation between binding regulations and nonbinding guidelines outweighs the benefits of the current approach. The Board also believes that the Agency's adoption of separate guidance is appropriate for communicating guidelines such as those in Appendix B. The Board is soliciting feedback on all aspects of this proposed rule, including the option of maintaining the status quo.

The Providing Accountability Through Transparency Act of 2023 (5 U.S.C. 553(b)(4)) requires that a notice of proposed rulemaking include the internet address of a summary of not more than 100 words in length of a proposed rule, in plain language, that shall be posted on the internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov ).

In summary, the Board is proposing to remove Appendix B to part 748, Guidance on Response Programs for Unauthorized Access to Member Information and Member Notice. The Board believes that moving Appendix B to a Letter to Credit Unions is a better vehicle for conveying this information and will help to streamline the NCUA's regulations. The intended effect is to simplify the regulatory text and make it easier to navigate, without altering any substantive compliance obligations.

The proposed rule and the required summary are available at https://www.regulations.gov.

Pursuant to Executive Order 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14215, a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. OMB has determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f)(1) of Executive Order 12866.

Executive Order 13563 (“Improving Regulations and Regulatory Review”) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This proposed rule will streamline the NCUA's regulations by removing nonbinding guidelines. This proposed rule is consistent with Executive Order 13563.

Executive Order 14192 (“Unleashing Prosperity Through Deregulation”) requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. 18 This proposed rule is expected to be a deregulatory action for purposes of Executive Order 14192.

The Regulatory Flexibility Act generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 If the agency makes such a certification, it shall publish the certification at the time of publication of either the proposed rule or the final rule, along with a statement providing the factual basis for such certification. 6 For purposes of this analysis, the NCUA considers small credit unions to be those having under $100 million in assets. 7 The Board fully considered the potential economic impacts of the regulatory amendments on small credit unions. The proposed rule removes nonbinding guidelines but would retain them in another format without substantive change. Accordingly, the NCUA certifies that the proposed rule would not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) generally provides that an agency may not conduct or sponsor, and not withstanding any other provision of law, a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The PRA applies to rulemakings in which an agency creates a new or amends existing information collection requirements. For purposes of the PRA, an information-collection requirement may take the form of a reporting, recordkeeping, or a third-party disclosure requirement. The NCUA has determined that the changes in the proposed rule do not create a new information collection or revise an existing information collection as defined by the PRA.

Executive Order 13132 encourages certain agencies to consider the impact of their actions on state and local interests. The NCUA, an agency as defined in 44 U.S.C. 3502(5), complies with the executive order to adhere to fundamental federalism principles. This proposed rule is intended to remove nonbinding guidelines from the NCUA's regulations. While it does impact provisions that apply to FISCUs, it does not make a substantive change and is not intended to affect the division of responsibilities between the NCUA and state regulatory authorities.

The NCUA has determined that this proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999. The proposed rule removes nonbinding guidelines from the NCUA's regulations, and any effect on family well-being is expected to be indirect.

For the reasons stated in the preamble, the NCUA Board proposes to amend 12 CFR part 748 as follows:

I. Introduction A. Background

In November 1999, Congress passed the Gramm-Leach Bliley Act (GLBA). 1 Section 501 of GLBA, entitled Protection of Nonpublic Personal Information, required the NCUA, the federal banking agencies (FBAs), and other regulators to establish appropriate standards for financial institutions subject to their respective jurisdictions relating to administrative, technical, and physical safeguards for customer records and information. 2 These safeguards are intended to: (1) insure [sic]  3 the security and confidentiality of customer records and information, (2) protect against any anticipated threats or hazards to the security or integrity of such records, and (3) protect against unauthorized access to or use of such records or information that would result in substantial harm or inconvenience to any customer. 4

After passage of GLBA, the Board determined that the standards required by GLBA could be most effectively adopted through an amendment to the NCUA's existing regulation governing security programs in FICUs. 5 This approach is consistent with the FBAs by design: NCUA staff worked with the FBAs to align the agency's guidance with the guidelines approved by the FBAs. 6 Thus, the NCUA adopted the standards required under GLBA as an appendix to part 748. The resulting Appendix A is intended to provide FICUs with guidance in developing the security program required under § 748.0.

Appendix A has been amended over the years to reflect new requirements and maintain consistency with comparable regulations and guidelines issued by the FBAs. In 2004, the agency revised Appendix A to incorporate amendments to the Fair Credit Reporting Act (FCRA) with respect to the proper disposal of consumer information. 7 Section 216 of the Fair and Accurate Credit Transactions Act (FACT Act) added a new section to FCRA that was designed to protect a consumer against the risks associated with unauthorized access to information about the consumer contained in a consumer report. The FACT Act made mandatory the NCUA's practice of maintaining consistency with GLBA through consistency and consultation with the FBAs. The changes to Appendix A were intended to provide guidance to FCUs for compliance with § 717.83 and were done in consultation with the FBAs. 8

In 2012 and 2013, the Board again amended part 748 and Appendix A with technical changes mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and based on the NCUA's rolling, 3-year regulatory review. 9 The Dodd-Frank Act, among other things, transferred rulemaking authority for many consumer protection regulations from the Federal Reserve Board to the Consumer Financial Protection Bureau (CFPB). 10 As a result, the NCUA was required to update certain cross citations within its regulations and rescind part 716 governing the “Privacy of Consumer Financial Information” under GLBA. 11

The Board is issuing this proposed rule pursuant to its authority under the Federal Credit Union Act (FCU Act). 12 Under the FCU Act, the NCUA is the chartering and supervisory authority for federal credit unions (FCUs) and the federal supervisory authority for federally insured credit unions (FICUs). The FCU Act grants the NCUA a broad mandate to issue regulations governing both FCUs and FICUs. Section 120 of the FCU Act is a general grant of regulatory authority and authorizes the Board to prescribe regulations for the administration of the FCU Act. 13 Section 209 of the FCU Act is a plenary grant of regulatory authority to the NCUA to issue regulations necessary or appropriate to carry out its role as share insurer for all FICUs. 14 The FCU Act also includes an express grant of authority for the Board to subject federally chartered central, or corporate, credit unions to such rules, regulations, and orders as the Board deems appropriate. 15

The Board is issuing this proposed rule to remove Appendix A from the CFR. The Board believes that the information conveyed in Appendix A can be provided through Letters to Credit Unions, thereby reinforcing its intended use as nonbinding guidance. The Board believes that issuing Appendix A alongside part 748 may give the false impression that it is a legally binding rule rather than merely an aid to credit unions in satisfying the regulatory requirements of part 748.

The Board seeks comments on all aspects of this proposed rule, including any references to Appendix A in other parts of NCUA's regulations that may need to be revised.

As discussed above, Appendix A was first issued to meet a statutory requirement, and it has been amended several times to reflect new statutory requirements and to remain consistent with guidelines issued by the FBAs. The Board considered retaining Appendix A in its current form for two reasons: first, the current practice ensures the agency reviews Appendix A once every three years as part of its one third regulatory review process. Second, maintaining Appendix A as part of the NCUA's regulations also guarantees that any changes, whether technical or substantive, are published in the Federal Register , typically with an opportunity for public notice and comment (unless an exemption under the Administrative Procedure Act applies).

However, the Board now believes that streamlining the NCUA's regulations and creating a greater separation between binding regulations and nonbinding guidelines outweighs the benefits of the current approach. The Board also believes that the Agency's adoption of Letters to Credit Unions as a communication method is well known to the industry and is appropriate for communicating guidelines such as those in Appendix A. The Board is soliciting feedback on all aspects of this proposed rule, including the option of maintaining the status quo.

The Providing Accountability Through Transparency Act of 2023 (5 U.S.C. 553(b)(4)) (Act) requires that a notice of proposed rulemaking include the internet address of a summary of not more than 100 words in length of a proposed rule, in plain language, that must be posted on the internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov). In summary, the Board is proposing to remove Appendix A to part 748 from the CFR. The Board now believes that the placement of Appendix A in the CFR may be confusing because Appendix A is not a regulation but rather a set of guidelines intended to assist FICUs with their statutory compliance obligations. The Board believes that moving Appendix A to a Letter to Credit Unions is a better vehicle for conveying this information and will help to streamline NCUA's regulations.

The proposal and the required summary can be found at https://www.regulations.gov.

Pursuant to Executive Order 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14215, a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. 16 Executive Order 13563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866. 17 This proposed rule was drafted and reviewed in accordance with Executive Order 12866 and Executive Order 13563. OMB has determined that this proposed rule is not a “significant regulatory action” as defined in section 3(f)(1) of Executive Order 12866. Further, this proposed rule is consistent with Executive Order 13563. This proposed rule will streamline the NCUA's regulations by removing nonbinding guidelines.

Executive Order 14192 (“Unleashing Prosperity Through Deregulation”) requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. 18 This proposed rule is expected to be a deregulatory action for purposes of Executive Order 14192.

The Regulatory Flexibility Act  19 generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. If the agency makes such a certification, it must publish the certification at the time of publication of either the proposed rule or the final rule, along with a statement providing the factual basis for such certification. 20 For purposes of this analysis, the NCUA considers small credit unions to be those having under $100 million in assets. 21 The Board fully considered the potential economic impacts of the regulatory amendments on small credit unions.

The proposed rule removes nonbinding guidelines but would retain them in another format without substantive change. Accordingly, the NCUA certifies the proposed rule would not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) generally provides that an agency may not conduct or sponsor, and not withstanding any other provision of law, a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The PRA applies to rulemakings in which an agency creates a new or amends existing information collection requirements. For purposes of the PRA, an information-collection requirement may take the form of a reporting, recordkeeping, or a third-party disclosure requirement. NCUA has determined that the changes in the proposed rule do not create a new information collection or revise an existing information collection as defined by the PRA.

Executive Order 13132 encourages certain agencies to consider the impact of their actions on state and local interests. The NCUA, an agency as defined in 44 U.S.C. 3502(5), complies with the executive order to adhere to fundamental federalism principles. This proposed rule is intended to remove nonbinding guidelines from the NCUA's regulations. While it does impact provisions that apply to FISCUs, it does not make a substantive change. The rulemaking would therefore not have direct effect on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

The NCUA has determined that this proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999. 22 The proposed rule removes nonbinding guidelines from the NCUA's regulations, and any effect on family well-being is expected to be indirect.

For the reasons stated in the preamble, the Board proposes to revise part 748 as follows:

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

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

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

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

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

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

Class E5 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 proposes to amend the current version of that order, FAA Order JO 7400.11K, dated August 20, 2025 and effective September 15, 2025. These amendments would 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.

The FAA published an NPRM in the Federal Register for FAA 2025-2616 (90 FR 43580; September 10, 2025) to establish Class E airspace at Providence Seaside Hospital, Seaside, Oregon. The extension proposed was to establish Class E airspace extending upward from 700 feet above the surface at Providence Seaside Hospital Heliport, Seaside, OR, that would contain the RNAV (GPS) 17 approach procedure and the CEKOG ONE (RNAV) departure procedure, Subsequent to the publication of the NPRM, the FAA updated the airspace configuration supporting the CEKOG ONE (RNAV) departure procedure to maintain IFR operations within controlled airspace until reaching 1,200 feet above the surface. The FAA discovered that the containment criteria for the CEKOG ONE (RNAV) departure procedure was incorrect and should be changed to contain departing IFR operations until reaching 1,200 feet above the surface. This SNPRM updates the FAA's proposal to correct that error.

The FAA is proposing an amendment to 14 CFR part 71 that would establish Class E airspace extending upward from 700 feet above the surface at Providence Seaside Hospital Heliport, Seaside, OR. The proposed establishment of Class E airspace is due to the development of IFR procedures, which require controlled airspace for containment.

The amendment to the Class E airspace would encompass an area approximately 3.7 by 10.3 miles to contain IFR operations while conducting the RNAV (GPS) 17 approach procedure or the CEKOG ONE (RNAV) departure procedure. The northern boundary would extend 8 miles to accommodate arriving IFR operations below 1,500 feet above the surface. Additionally, the southern boundary would extend 2.3 miles to contain departing IFR operations until reaching 1,200 feet above the surface.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1G, FAA National Environmental Policy Act Implementing Procedures, prior to any FAA final regulatory action.

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On December 28, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). 1 Promulgation of a revised NAAQS triggers a requirement for EPA to designate all areas of the country as nonattainment, attainment, or unclassifiable for the NAAQS. For the ozone NAAQS, this also involves classifying any nonattainment areas at the time of designation. 2 Ozone nonattainment areas are classified based on the severity of their ozone levels as determined based on the area's “design value,” which represents air quality in the area for the most recent 3 years. The classifications for ozone nonattainment areas are Marginal, Moderate, Serious, Severe, and Extreme. 3

Areas that EPA designates nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and the ozone-specific planning requirements of CAA section 182. Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. In EPA's December 6, 2018 (83 FR 62998), rule, “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements,” known as the “SIP Requirements Rule,” EPA set forth nonattainment area requirements for the 2015 ozone NAAQS. These requirements are codified at 40 CFR part 51 subpart CC. For Marginal areas, a State is required to submit a baseline emissions inventory, adopt provisions into the SIP requiring emissions statements from stationary sources, and implement a nonattainment new source review program for the relevant ozone NAAQS. 4 For Moderate areas, a State needs to comply with the Marginal area requirements, plus additional Moderate area requirements, including the requirement to submit a modeled demonstration that the area will attain the NAAQS as expeditiously as practicable but no later than 6 years after designation, the requirement to submit an RFP plan, the requirement to adopt and implement certain emissions controls, such as Reasonably Available Control Technology (RACT) and motor vehicle inspection and maintenance programs, and the requirement for greater emissions offsets for new or modified major stationary sources under the State's nonattainment new source review program. 5

Effective August 3, 2018, EPA designated the Allegan County (partial county), Berrien County, and Muskegon County (partial county) areas as Marginal nonattainment areas for the 2015 ozone NAAQS. 6 The Allegan County area includes Casco Township, Cheshire Township, the City of Douglas, the City of Holland, the City of Saugatuck, Clyde Township, Fillmore Township, Ganges Township, Heath Township, Laketown Township, Lee Township, Manilus Township, Overisel Township, Saugatuck Township, and Valley Township. The Muskegon County area includes Blue Lake Township, the City of Montague, the City of Muskegon, the City of Muskegon Heights, the City of North Muskegon, the City of Roosevelt Park, the City of Whitehall, Dalton Township, (incl. the Village of Lakewood Club), Fruitland Township, Fruitport Township (incl. the Village of Fruitport), Laketon Township, Montague Township, Muskegon Township, Norton Shores Township, White River Township, and Whitehall Township.

On October 7, 2022 (87 FR 60897), pursuant to section 181(b)(2) of the CAA, EPA determined that the Allegan County, Berrien County and Muskegon County areas failed to attain the 2015 ozone NAAQS by the August 3, 2021, Marginal area attainment deadline and thus reclassified the areas from Marginal to Moderate nonattainment. In that action, EPA established January 1, 2023, as the due date for the State to submit all Moderate area nonattainment plan SIP requirements applicable to newly reclassified areas.

The Michigan Department of Environment, Great Lakes, and Energy (EGLE) submitted a SIP revision on October 16, 2023, to address Moderate area requirements for the Allegan County, Berrien County and Muskegon County areas under the 2015 ozone NAAQS. The submittal contained a number of nonattainment plan elements, including an updated 2017 base year emissions inventory for volatile organic compounds (VOC) and oxides of nitrogen (NO X ) and a 15% RFP plan with 2023 VOC and NO X motor vehicle emissions budgets. The submission also included an attainment demonstration, a reasonably available control measures demonstration, and contingency measures, which are not being addressed in this action.

CAA sections 172(c)(3) and 182(a)(1), 42 U.S.C. 7502(c)(3) and 7511a(a)(1), require States to develop and submit, as SIP revisions, comprehensive, accurate, and complete emissions inventories for all areas designated as nonattainment for the ozone NAAQS. This requirement is codified at 40 CFR 51.1315, and the term “base year inventory” is defined at 51.1300(p). For ozone, the base year inventory is an estimation of actual emissions of VOC and NO X from all sources within the boundaries of the nonattainment area.

The regulation at 40 CFR 51.1315(a) requires that the inventory year be selected consistent with the baseline year for the RFP plan as required by 40 CFR 51.1310(b), which states that the baseline emissions inventory shall be the emissions inventory for the most recent calendar year for which a complete triennial inventory is required to be submitted to EPA under the provisions of subpart A of 40 CFR part 51, Air Emissions Reporting Requirements, 40 CFR 51.1 through 50. For areas designated as nonattainment in 2018, the most recent triennial inventory year conducted for the National Emissions Inventory (NEI) pursuant to the Air Emissions Reporting Requirements (AERR) rule is 2017. 7

Further, 40 CFR 51.1315(c) requires emissions values included in the base year inventory to be actual ozone season day emissions as defined by 40 CFR 51.1300(q), which states: Ozone season day emissions means an average day's emissions for a typical ozone season work weekday. The State shall select, subject to EPA approval, the particular month(s) in the ozone season and the day(s) in the work week to be represented, considering the conditions assumed in the development of RFP plans and/or emissions budgets for transportation conformity.

On December 18, 2020, EGLE submitted a SIP revision addressing the emissions inventory requirement of CAA section 182(a)(1). EPA approved Michigan's 2017 base year emissions inventories for the Allegan County, Berrien County, and Muskegon County areas on January 18, 2023 (88 FR 2834).

As part of Michigan's Moderate SIP submission, EGLE updated the 2017 base year emissions inventories to incorporate improved emissions estimates where available. In Michigan's original base year emissions inventory submittal, EGLE used the 2016v1 modeling platform to generate emissions data for the point and nonpoint sectors and MOVES2014 to generate emissions data for the onroad and nonroad sectors. EGLE updated the 2017 base year emissions inventories for the Allegan County, Berrien County, and Muskegon County areas using the 2016v2 modeling platform for point and nonpoint sectors and MOVES3  8 for nonroad and on-road sectors. EGLE did not update biogenic emissions estimates.

EGLE converted annual point and nonpoint values to tons/day following the same procedure as was used when preparing the original 2017 base year emissions inventories. EGLE extracted data from the 2016v2 modeling platform to calculate the ratio of July emissions to total annual emissions for each county by sector. These conversion factors were then divided by 31 days in July to create final daily scaling factors that were applied to the updated annual emissions estimates. 9 The Michigan Department of Transportation (MDOT) used MOVES3 to generate nonroad and on-road July weekday emissions. Non-point and nonroad emissions for Allegan County and Muskegon County were scaled down based on geographic area. Allegan County is 50 percent of full county; Muskegon is 58 percent of full county. On-road data for Allegan County and Muskegon County was apportioned using vehicle miles traveled and vehicle hours traveled ratios.

Table 1, below, shows the updated 2017 ozone season day emissions in tons per ozone season day of NO X and VOC for the Allegan County, Berrien County, and Muskegon County areas.

EPA has reviewed Michigan's 2017 base year emissions inventory for consistency with sections 172(c)(3) and 182(a)(1) of the CAA, and EPA's emission inventory requirements. The selection of 2017 as the base year comports with the RFP baseline year requirements set forth in the SIP Requirements Rule and codified at 40 CFR 51.1310(b).

EGLE documented the procedures used to estimate the emissions for each of the major source types. The documentation of the emission estimation procedures is adequate to determine that Michigan followed acceptable procedures to estimate the emissions. Accordingly, EPA concludes that Michigan has developed inventories of NO X and VOC emissions that are comprehensive and complete.

The CAA requires that States with areas designated as nonattainment for ozone achieve RFP toward attainment of the ozone NAAQS. CAA section 172(c)(2) contains a general requirement that nonattainment plans must provide for emissions reductions that meet RFP. For areas classified Moderate and above, section 182(b)(1) imposes a more specific RFP requirement that a State was required to meet through a 15% reduction in VOC emissions from the baseline anthropogenic emissions within 6 years after November 15, 1990.

The SIP Requirements Rule addressed, among other things, RFP requirements as they apply to areas designated nonattainment and classified as Moderate for the 2015 ozone NAAQS. 10 RFP requirements under the 2015 ozone NAAQS are codified at 40 CFR 51.1310. EPA interprets the 15% VOC emission reduction requirement in CAA section 182(b)(1) such that a State that has already met the 15% requirement for VOC for an area under either the 1-hour ozone NAAQS or a prior 8-hour ozone NAAQS would not have to fulfill that requirement through reductions of VOC again. Instead, EPA interprets CAA section 172(c)(2) to require States with such areas to obtain 15% ozone precursor emission reductions from VOC and/or NO X over the first 6 years after the baseline year for the 2015 ozone NAAQS. Michigan has not met the 15% VOC reduction requirement of CAA section 182(b)(1) for the Allegan County, Berrien County, or Muskegon County areas under previous ozone NAAQS. 11 Therefore, the State must rely upon VOC emissions reductions to meet the RFP requirement for the 2008 ozone NAAQS.

The SIP Requirements Rule specifies that the baseline emissions inventory for RFP plans shall be the most recent calendar year prior to designation for which a complete triennial inventory is required to be submitted to EPA under the provisions of subpart A of 40 CFR part 51, Air Emissions Reporting Requirements, 40 CFR 51.1 through 50. For areas designated as nonattainment in 2018, the most recent triennial inventory year conducted for the NEI pursuant to the AERR rule is 2017. The rule also allows the use of an alternative RFP baseline year that corresponds with the year of the effective date of an area's designation, i.e., 2018 for areas designated nonattainment in 2018. 12

States may not take credit for VOC or NO X reductions occurring from sources outside the nonattainment area for purposes of meeting the 15% RFP requirements of CAA sections 172(c)(2), 182(b)(1) and 182(c)(2)(B). 13

Except as specifically provided in CAA section 182(b)(1)(C) and (D) and CAA section 182(c)(2)(B), all emission reductions from SIP-approved or federally promulgated measures that occur after the baseline emissions inventory year are creditable for purposes of the RFP requirements in this section, provided the reductions meet the requirements for creditability, including the need to be enforceable, permanent, quantifiable, and surplus. 14 Further, the Administrator has determined that the four categories of control measures listed in CAA section 182(b)(1)(D) are no longer required to be calculated for exclusion in RFP analyses because due to the passage of time the effect of these exclusions would be de minimis. 15

On December 14, 2022, VADEQ submitted to the EPA a revision to the Commonwealth's SIP to align the SIP with the state operating permit for Best Available Retrofit Technology (BART permit) and the Title V permit for GP Big Island pulp and paper mill (GP Big Island Mill), located in Bedford County, Virginia. 1 Currently, the Virginia SIP contains an October 5, 2012 amendment to the BART permit. 2 The Commonwealth further amended the BART permit on December 12, 2022 and submitted that newly amended BART permit in its December 14, 2022 SIP revision to the EPA for inclusion in the SIP. Specifically, the December 14, 2022 SIP revision, as reflected in the BART permit amended on December 12, 2022, lowers the permitted emission limits for particulate matter (PM 10 ), sulfur dioxide (SO 2 ), and nitrogen oxides (NO X ) at the Number 5 Power Boiler and removes conditions related to the use of coal. The amendments to the BART permit are a result of the fuel conversion of the facility's Number 5 Power Boiler from coal to natural gas, wood, wood residuals, and old corrugated container reject. 3

The December 14, 2022 proposed SIP revision changes two main aspects of the SIP as reflected in the December 12, 2022 amended BART permit. 4 The first aspect of the proposed SIP revision submitted to the EPA on December 14, 2022 requests the removal of conditions pertaining to controlling sulfur dioxide emissions when coal is used in the Number 5 Power Boiler. Specifically, the December 12, 2022 amended BART permit no longer contains requirements that were in the October 5, 2012 amended BART permit related to limiting sulfur-content and limiting the firing of coal to a maximum percentage of the annual capacity factor when firing coal at the Number 5 Power Boiler.

Currently, the Number 5 Power Boiler no longer fires coal and the coal feed system for this source has been permanently removed. This shutdown was included in a mutual shutdown agreement between GP Big Island Mill and VADEQ, which was finalized on April 24, 2017. 5 VADEQ incorporated the removal of the source in the Title V permit for GP Big Island Mill through an April 13, 2021 permit revision. The Number 5 Power Boiler is now permitted to fire natural gas, wood, wood residuals, and old corrugated container reject. GP Big Island Mill requested an amendment to the coal-burning provision of its BART permit through a revision application received by VADEQ on July 26, 2021. VADEQ approved this amendment to the BART permit on December 12, 2022. Now that coal no longer serves as the fuel source for the Number 5 Power Boiler, this action proposes to align the SIP with the December 12, 2022 amended BART permit's removal of conditions regarding SO 2 control during coal use.

The second aspect of the proposed SIP revision requests approval for the lowering of the permitted emissions limits currently in the SIP for PM 10 , SO 2 , and NO X . The proposed reduced annual limits include lowering PM 10 emissions limits from 103.9 tons per year (TPY) to 88.9 TPY, lowering SO 2 emissions limits from 374 TPY to 104.7 TPY, and lowering NO X emissions limits from 610.1 TPY to 529.9 TPY. The proposed reduced hourly limits include lowering PM 10 emissions limits from 23.7 pounds per hour (lbs/hr) to 20.3 lbs/hr, lowering SO 2 emissions limits from 485.1 lbs/hr to 23.9 lbs/hr, and lowering NO X emissions limits from 139.3 lbs/hr to 121.0 lbs/hr. The current, SIP-approved emission limits for the Number 5 Power Boiler were first established by the BART permit issued by VADEQ on June 12, 2008, for the purpose of complying with the BART requirements for control of visibility-impairing pollutants under 40 CFR 51.308(e) of the EPA's Regional Haze Program. The October 5, 2012 BART permit maintained these limits in the SIP. A Title V permit issued on April 13, 2021, lowered these original emission limits to the limits proposed in this SIP revision, and on July 26, 2021 GP Big Island Mill requested VADEQ amend the BART permit to include these new, lower emission limits to align with the April 13, 2021 Title V permit. VADEQ approved these lower emission limits and issued a new BART permit on December 12, 2022 to replace the pre-existing October 5, 2012 BART permit. This action proposes to align the SIP emission limits with the limits identified in the VADEQ-issued December 12, 2022 amended BART permit by incorporating that BART permit into the SIP. No emissions increases are anticipated as a result of this revision. In fact, this proposed revision to the SIP, if finalized, will lower annual and hourly emissions limits for the GP Big Island Mill compared to what is currently in the SIP.

The EPA is proposing to approve the Virginia SIP revision for GP Big Island Mill, which was submitted on December 14, 2022 by including the December 12, 2022 amended BART permit in the Virginia SIP. Simultaneously—at the request of VADEQ—the EPA is proposing to remove the October 5, 2012 amended BART permit from the Virginia SIP. This previous SIP revision was approved into the Virginia SIP effective June 17, 2014, and the December 14, 2022 proposed SIP revision updates this prior SIP revision. The EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, the EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because the EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, the EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

In this document, the EPA is proposing to include in an EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the state operating permit, i.e., the BART permit, that VADEQ amended December 12, 2022, as described in section II of this document. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866:

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

The CAA establishes a framework for controlling emissions of ozone precursors in areas that do not attain the NAAQS. Section 182 of the CAA (42 U.S.C. 7511a) requires that certain ozone nonattainment areas implement vehicle I/M programs to identify and repair high-emitting vehicles operating in the nonattainment area. Nonattainment areas classified as Moderate must adopt at least a “Basic” I/M program (CAA section 182(b)(4)), and areas classified as Serious or above must adopt an “Enhanced” I/M program (CAA section 182(c)(3)). Pursuant to the CAA and EPA's corresponding implementing regulations at 40 CFR 51 subpart S, both Basic and Enhanced I/M programs are subject to certain performance standards and program administration requirements, including mandatory OBD vehicle inspections, corrective action and retesting for vehicles that fail inspection, and enforceable program mechanisms to ensure compliance.

The Cleveland-Akron-Lorain metropolitan area in northeast Ohio is designated nonattainment for the 2015 ozone NAAQS. The area is classified as a Serious ozone nonattainment area effective January 16, 2025 (89 FR 101901, December 17, 2024). As a result of its classification, Ohio is currently required to implement an Enhanced I/M program meeting all statutory and regulatory requirements for Serious areas.

Ohio implements “E-Check”, its SIP-approved vehicle I/M program, in the Cleveland-Akron-Lorain metropolitan area. 1 E-Check has long been relied upon in Ohio's SIP to provide emission reductions necessary for both reasonable further progress (RFP) and attainment demonstrations for multiple ozone standards. The program consists of a hybrid network that combines state-contracted centralized inspection facilities with a number of decentralized service centers where approximately 880,000 vehicles annually with a gross vehicle weight rating of up to 10,000 pounds undergo OBD-based testing consistent with EPA's I/M regulations at 40 CFR part 51, subpart S. EPA fully approved Ohio's I/M program on April 4, 1995, 60 FR 16989, and approved revisions to the program on January 6, 1997, 62 FR 646.

In March 2025, the Ohio General Assembly enacted the “E-Check Ease Act.” The E-Check Ease Act includes a provision incorporated into Ohio Revised Code (ORC) 3704.14(C)(2) that fundamentally alters the State's I/M framework. The law creates an alternative compliance pathway under which motorists may obtain an “alternative emissions certificate” by signing a self- attestation form declaring, “to the best of their knowledge,” that their vehicle complies with State and Federal emission requirements. Unlike the current E-Check program, this pathway does not involve the direct inspection of the OBD system to check for the proper functioning of the vehicle's emissions control systems and to ensure repairs when needed. It also provides no civil or criminal penalties for submitting a false attestation. The only consequence is rejection of the self-attestation form and a requirement to resubmit it or undergo a standard inspection.

The E-Check Ease Act also provides that the addition of the alternative emissions certification to Ohio's E-Check program is not effective until EPA approves a SIP revision submitted by Ohio EPA incorporating this modification of Ohio's I/M program. If EPA approves the modification of Ohio's I/M program, Ohio EPA would be required to amend their regulations governing the E-Check program contained in Ohio Administrative Code (OAC) 3745-26 to include these provisions and submit the amended regulations to EPA as a revision to Ohio's OAC 3745-26 SIP-approved regulations.

Accordingly, Ohio EPA developed and submitted a SIP revision on July 9, 2025, requesting EPA approval of the self-attestation option as part of the State's federally enforceable I/M program. Ohio's submission included a demonstration under CAA section 110(l), asserting that the revision would not interfere with attainment or reasonable further progress toward the 2015 ozone NAAQS. Ohio's SIP submission and associated supporting documents are available in the docket for this action, at https://www.regulations.gov, Docket ID No. EPA-R05-OAR-2025-1048.

EPA has carefully reviewed Ohio's July 9, 2025, SIP submission requesting approval of an alternative emissions certification process within Ohio's existing I/M program considering the requirements of the CAA, EPA's implementing regulations, and longstanding program guidance. Ohio's July 9, 2025, SIP submission included a copy of the E-Check Ease Act that was signed into law on March 31, 2025. In support of the SIP revision, Ohio also included a demonstration under section 110(l) of the CAA, which prohibits approval of SIP revisions that interfere with attainment or reasonable further progress toward the NAAQS. Ohio's analysis assumed that 100 percent of eligible motorists could use the self-attestation option within one year of implementation.

In addition, Ohio EPA provided public notice and an opportunity to comment on the SIP revision and associated CAA section 110(l) demonstration. The State received over 650 comments. Most commenters requested elimination of the E-Check program altogether, while others either supported the self-attestation option as a modernization or opposed it as ineffective and detrimental to air quality. Ohio EPA responded to comments and submitted the public notice and response to comments as part of the SIP submittal.

Based on our evaluation, EPA proposes to disapprove the revision because it is inconsistent with Enhanced I/M statutory requirements, EPA's I/M regulations at 40 CFR part 51, subpart S, and the anti-backsliding provision of CAA section 110(l).

Section 182(c)(3)(C)(vii) of the CAA explicitly requires Enhanced I/M programs to include “inspection of emission control diagnostic systems.” Similarly, CAA section 202(m)(3) requires I/M program SIPs to “provide for inspection of onboard diagnostic systems.” EPA's I/M regulations at 40 CFR 51.373(g)-(h) further mandate that OBD checks be implemented in all Enhanced I/M areas. The Ohio SIP revision would offer an alternative to OBD inspections with self-attestation by the vehicle owner or lessee, which is not a permissible test method in the CAA or EPA's I/M regulations. The absence of direct inspection of the motor vehicle removes a critical enforcement mechanism, prevents the identification and effectuation of much-needed vehicle emissions control systems repairs that would benefit air quality, and undermines the performance standard for Enhanced I/M required by the CAA and EPA's I/M regulations.

The CAA requires that vehicles failing inspection must demonstrate proof of corrective action prior to retesting (CAA section 182(a)(2)(B)). Under Ohio's proposal, a motorist whose self-attestation is rejected may simply amend and resubmit without providing evidence that repairs were made. This creates a mechanism that is inconsistent with statutory intent and undermines the repair and compliance assurance functions that are fundamental elements of I/M programs.

Effective program administration is a core element of Enhanced I/M. The CAA requires that States employ management and enforcement features necessary to ensure program compliance (CAA section 182(a)(2)(B), 182(c)(3)(B)). EPA regulations require enforceable and meaningful penalties for noncompliance, such as for cases of registration fraud (40 CFR 51.361(a)(10)). However, Ohio's legislation states that no penalty shall apply to a person who the Ohio EPA director has determined to have falsified a self-attestation form, other than the issuance of a notice directing the person to amend and resubmit the attestation. This minimal consequence fails to deter fraud and does not meet statutory and regulatory requirements for effective enforcement.

CAA section 110(l) prohibits EPA from approving SIP revisions that interfere with attainment of or reasonable further progress towards the NAAQS. As mentioned above, Ohio included a section 110(l) analysis as Attachment B in its July 9, 2025, SIP submittal. This analysis shows that in 2023, 880,832 vehicles were tested, with 55,789 (6.6%) failing their initial inspection. Ohio's analysis did not estimate the impact to ozone precursor and other pollutant emissions as the result of modifications to the I/M program.

The purpose of I/M programs is not only to identify high-emitting vehicles, but also to ensure that effective repairs have been made. A self-attestation program does not provide any compliance assurance for repairs on these high-emitting vehicles. If self-attestation were to replace CAA-mandated test methods, high-emitting vehicles such as the approximately 55,000 vehicles that failed initial inspection in 2023 could continue operating unrepaired.

Another significant benefit of an OBD I/M test program is the reduction of emissions as the result of pre-inspection repairs. Since the OBD system allows motorists to see that repairs are necessary via a lit Check Engine light and that their vehicle would fail an OBD test inspection, many motorists will opt to have their vehicles repaired prior to the required periodic inspection to avoid the inconvenience of a failed test and a return trip for a retest. Thus, vehicles that fail an initial I/M test represent a portion of the vehicles that have their emissions reduced as the result of an OBD I/M program that ensures repairs for compliance. However, there is no incentive in a self-attestation program for motorists to get pre-inspection repairs, so a self-attestation program would not be expected to get the emission reduction benefits from pre-inspection repairs.

If Ohio's proposed modification to its E-Check program were to be approved, tens of thousands of vehicles with malfunctioning emission controls could remain in service, increasing ozone precursor emissions and jeopardizing attainment of the 2015 ozone NAAQS in the Cleveland-Akron-Lorain area. This strongly suggests interference with both attainment and reasonable further progress.

While the CAA allows States flexibility in program design ( e.g., frequency of testing, centralized vs. decentralized networks, exemptions for certain newer model years), the CAA and EPA's corresponding implementing I/M regulations require actual inspection methods to identify high-emitting vehicles. EPA has previously approved flexibilities such as remote OBD testing, clean screening using on-road sensing, and kiosks (66 FR 18156, April 5, 2001; 72 FR 14235, March 27, 2007). However, no provision of the CAA authorizes wholesale replacement of inspections with self-attestation. As mentioned above in section II.A., the CAA is explicit that the “inspection of onboard diagnostic systems” is a required element of I/M programs. 2 Thus, Ohio's proposed self-attestation approach is not permissible.

EPA notes that, while the CAA and EPA's I/M regulations require actual inspection of emission control systems, States retain significant flexibility in how these requirements are implemented. For example, Ohio and other States have successfully incorporated options such as:

Where these flexibilities have been incorporated, States have generally found that public perception of I/M programs is more positive, as these approaches are seen as modernized, less burdensome, and less intrusive for motorists while still ensuring compliance with statutory requirements. Importantly, all of these options retain an objective inspection mechanism consistent with Clean Air Act requirements and EPA's implementing regulations. In contrast, Ohio's proposed self-attestation provision would eliminate the core requirement for inspection of OBD systems and therefore cannot be considered a permissible flexibility.

Because the E-Check Ease Act eliminates mandatory OBD testing, fails to require proof of corrective action for failing vehicles, and lacks enforceable penalties for falsification, EPA determines the SIP revision is inconsistent with CAA requirements for Enhanced I/M programs (sections 182(c)(3) and 202(m)(3)), EPA's I/M regulations at 40 CFR part 51, subpart S, and the anti-backsliding provisions of section 110(l). Therefore, EPA is proposing to disapprove Ohio's July 9, 2025, SIP revision. If finalized, Ohio must continue implementing its existing Enhanced I/M program or submit a new SIP revision that complies with CAA and regulatory requirements.

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

This action is not expected to be an Executive Order 14192 regulatory action because this action is not significant under Executive Order 12866;

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This action will not impose any requirements on small entities. This action is disapproving SIP provisions that are inconsistent with CAA requirements for Enhanced I/M programs (sections 182(c)(3) and 202(m)(3)), EPA's I/M regulations at 40 CFR part 51, subpart S, and the anti-backsliding provisions of section 110(l).

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any State, local, or Tribal governments or the private sector.

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

This rule does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments. Thus, Executive Order 13175 does not apply to this rule.

This action is not subject to Executive Order 13045 because it is not 3(f)(1) significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it disapproves revisions to a State program that are inconsistent with statutory and regulatory requirements for vehicle inspection and maintenance programs under the CAA and would interfere with attainment and reasonable further progress toward the 2015 ozone NAAQS.

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

This rulemaking does not involve technical standards.

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

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency and submitted to the EPA by the California Air Resources Board (CARB).

On September 13, 2024, the submittal for SJVAPCD Rules 3172 and 3173 was deemed by operation of law to be complete. We have reviewed the submittal to ensure it meets the completeness criteria in 40 CFR part 51, appendix V.

There are no previous versions of SJVAPCD Rule 3172 or 3173 in the SIP. These rules address the CAA section 185 fee requirement for the 2008 and 2015 ozone NAAQS. SJVAPCD has previously issued a rule addressing the 1-hour ozone NAAQS, Rule 3170 which the EPA has approved into the SIP, 1 and the 1997 8-hour ozone NAAQS, Rule 3171 which the EPA has proposed to approve into the SIP. 2

Under sections 182(d)(3), (e), (f) and 185 of the Act, states with ozone nonattainment areas classified as Severe or Extreme are required to submit a SIP revision that requires major stationary sources of volatile organic compounds (VOC) or oxides of nitrogen (NO X ) emissions in the area to pay a fee if the area fails to attain the standard by the attainment date. The required SIP revision must provide for annual payment of the fees, computed in accordance with CAA section 185(b). SJVAPCD Rule 3172 is intended to satisfy the requirements for the 2008 ozone NAAQS and Rule 3173 is intended to satisfy the requirements for the 2015 ozone NAAQS.

Rules in the SIP must be enforceable (see CAA section 110(a)(2)) and must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)). The EPA is also evaluating the rule for consistency with the statutory requirements of CAA section 185.

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

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

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

This rule meets CAA requirements and is consistent with relevant guidance regarding enforceability and SIP revisions. The rules are also consistent with the requirements of section 185. As required by section 185, these rules apply to all major sources of VOC or NOx, and calculate the fees to be paid as specified in section 185(b). The rules will become applicable if and when the EPA finalizes a finding that the San Joaquin Valley Air Basin has failed to attain either the 2008 ozone NAAQS (for Rule 3172) or the 2015 ozone NAAQS (for Rule 3173) by the applicable attainment date for that NAAQS. The EPA's technical support document for this rulemaking has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, the EPA proposes to approve the submitted rules because they fulfill all relevant requirements. We will accept comments from the public on this proposal until January 12, 2026. If we take final action to approve the submitted rules, our final action will incorporate SJVAPCD Rules 3172 and 3173 into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference SJVAPCD Rule 3172, Federally Mandated Ozone Nonattainment Fee—2008 8-Hour Standards and Rule 3173, Federally Mandated Ozone Nonattainment Fee—2015 8-Hour Standards, both adopted on December 21, 2023, and described in more detail in section I.A. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it proposes to approve a state program;

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Hutchinson Sealing Systems, Inc. (HSS) produces sealing systems, body seals, and soft rubber glass-run channels used in automobiles and various other applications. HSS owns and operates a facility located at 171 Exeter Road in Newfields, New Hampshire. The sealing strips are produced by several complex processes involving metal roll foaming, rubber and plastic extruding, flocking (or the application of a low-friction coating), and curing, followed by certain secondary operations including but not limited to trimming, notching, saw cutting, stretch bending, molding, and assembly.

The New Hampshire Department of Environmental Services (NH DES) submitted Reasonably Available Control Technology (RACT) Order ARD-11-001 to the EPA as a State Implementation Plan (SIP) revision on March 23, 2012. RACT Order ARD-11-001 required HSS to comply with a volatile organic compound (VOC) content limit of 6.3 lb. VOC/gallon of coating as applied (excluding water and exempt VOC compounds) for motor vehicle weatherstrip adhesive coatings, as specified in Env-A 1220.02, Compliance Standards for Miscellaneous Industrial Adhesives . 1 Order ARD-11-001 contained an allowance for alternate compliance to be met by using add-on controls, bubbling, discrete emissions reductions (DERs), emissions reduction credits (ERCs), or any combination of the previous methods to comply with the limit. In addition, Order ARD-11-001 indicated that the company will install and operate a catalytic oxidizer to control VOC emissions from emissions unit Thermoplastics Extrusion Line #9 (TPV Line #9) at the facility. On August 28, 2012, HSS submitted a permit application to NH DES to allow for the modification of Thermoplastics Extrusion Line #6 (TPV Line #6) and the installation of a catalytic oxidizer control device to control HAP emissions. The adhesives used in TPV Line #6 are subject to the VOC content limits in the RACT order.

On November 5, 2012, the EPA approved New Hampshire's March 23, 2012 submittal for a single source order requiring RACT at HSS into the New Hampshire SIP. 2 Subsequently, on December 21, 2012, NH DES issued permit TP-0115 to HSS requiring the use of a catalytic oxidizer to control emissions from TPV Line #6. Although RACT Order ARD-11-001 allows the facility to use an add-on control device as a compliance option for the emission limit, the requirement to use a catalytic oxidizer to control emissions from TPV Line #6 was only included in NH DES's December 21, 2012 permit and was not part of EPA's 2012 approval of RACT Order ARD-11-001 into the SIP.

On April 24, 2023, HSS submitted a request to NH DES for a modification to its State Permit to Operate (SP-0141) to, among other items, remove TPV Line #9 and its associated control device from the permit, since that process no longer emits VOCs. On September 29, 2023, HSS submitted a permit application to NH DES for the renewal of SP-0141, which included a request to remove the required use of the catalytic oxidizer associated with TPV Line #6 since the motor vehicle weatherstrip adhesives used in the process meet the VOC content limit without the need for additional control. The revised RACT Order ARD-11-001, issued on January 24, 2025, by NH DES, maintains the existing RACT requirement for HSS to comply with the VOC limit of 6.3 lb. VOC/gallon for motor vehicle weatherstrip coatings. The Order specifies that HSS shall continue to research and test water-based and/or high solids coatings as new products become available. The Order also outlines the processes through which HSS shall be allowed to use DERs, ERCs, and/or bubbling for the purpose of complying with VOC RACT. 3 Furthermore, the Order removes the alternate compliance option to use an add-on control device as an alternative to meet the VOC limit. In addition, the Order removes the allowance for HSS to generate discrete emission reduction credits due to the removal of the catalytic oxidizer. On April 17, 2025, NH DES submitted a revision to its SIP consisting of the revised RACT Order ARD-11-001, which is intended to limit emissions of VOCs from the facility.

According to Economic Incentive Program Rules (59 FR 16690), the ability of RACT sources to meet RACT requirements through RACT or non-RACT trading shall result in “an exceptional environmental benefit,” which can be demonstrated through “a trading ratio of 1.1 to 1, at a minimum.” This is further clarified in Env-A 3100, Discrete Emissions Reductions Trading Program, which states that users of DERs “shall permanently retire ten percent of all DERs dedicated to that particular use, such that the amount of DERs required to demonstrate compliance shall equal the source's calculated need divided by 0.9.”

HSS was issued an ERC certificate (98VHSS01C) on August 1, 2002, that allows them to generate 22 tons of VOC credits per year from the permanent shutdown of the Body Stock Preparation Process and the Metal Parts Painting Operation (also referred to as the “King-Way Line”). These 22 tons per year are the difference between the baseline before the shutdown of those two processes and the facility-wide emissions after the shutdown. HSS is allowed to use these credits each year, but unused credits do not roll over to succeeding years. Additionally, these credits cannot be sold, transferred, or traded. The use of these credits, ERCs generated by other facilities, or DERs for the purpose of complying with VOC RACT shall comply with recordkeeping and reporting requirements outlined in Env-A 3000, Emissions Reduction Credits Trading Program, and Env-A 3100, Discrete Emissions Reductions Trading Program. HSS is also required to true up the balance of credits required for the previous year (from June 1 to May 31) annually by September 1 and report the balance to NH DES. Additional reporting requirements listed in the Order are detailed in SIP-approved Env-A 900, Owner or Operator Recordkeeping and Reporting Obligations.

Neither Env-A 3000, Emissions Reduction Credits Trading Program, nor Env-A 3100, Discrete Emissions Reductions Trading Program, are in the New Hampshire SIP. Consequently, in order to comply with VOC RACT, approval to generate and use ERCs and DERs must be approved on a facility-by-facility basis. EPA approved into the New Hampshire SIP RACT Order ARD-11-001 in 2012, which contained a VOC content limit of 6.3 lb. VOC/gallon for motor vehicle weatherstrip adhesive coatings at HSS, and an allowance for alternate compliance to be met by using add-on controls, bubbling, DERs, ERCs, or any combination of the previous methods to comply with the limit. HSS is no longer able to meet the facility-wide emission rate of 15% uncontrolled emissions required for DERs generation, as specified in Env-A 3100, due to the removal of the catalytic oxidizer control device on TPV Line #6. Thus, the revised RACT Order ARD-11-001 removes self-generation of DERs and the use of add-on controls as methods of compliance.

The revised RACT Order for HSS maintains the same 6.3 lb. VOC/gallon emissions limit, which is consistent with Env-A 1220, which EPA previously approved as RACT in 2022. EPA also approved New Hampshire's VOC RACT certification for the 2008 and 2015 ozone standards on September 6, 2023 (88 FR 60893). EPA is proposing to approve the revisions to RACT Order ARD-11-001 into the New Hampshire SIP, which do not change the previously approved 6.3 lb. VOC/gallon emissions limit for motor vehicle weatherstrip adhesive coatings at HSS.

EPA is proposing to approve the revised RACT Order ARD-11-001 into the New Hampshire SIP. The Order was issued by the New Hampshire DES to Hutchinson Sealing Systems of Newfields on January 24, 2025, and submitted to EPA as a SIP revision on April 17, 2025. Clean Air Act (CAA) section 110( l ) provides that EPA may approve a SIP revision that removes or modifies control measures in the SIP only if such removal or modification would not interfere with attainment and maintenance of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA. EPA is proposing to determine that the revisions to the RACT order issued to HSS are consistent with CAA section 110( l ) because the removal of the add-on control device as an alternate compliance option will not interfere with any applicable requirement concerning attainment and reasonable further process, or any other applicable requirement of the CAA. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference RACT Order ARD-11-001 dated January 24, 2025, issued by the New Hampshire DES to Hutchinson Sealing Systems, Inc. of Newfields. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993);

• Is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because SIP actions are exempt from review under Executive Order 12866;

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

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

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document might apply to them:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this proposed action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA is proposing several tolerance actions that the Agency previously determined were necessary or appropriate during registration review of the pesticide active ingredients identified in Unit III. The tolerance actions for each pesticide active ingredient are described in Unit III. and may include but are not limited to the following types of actions:

• Revising tolerance expressions;

• Modifying commodity definitions;

• Updating crop groupings;

• Removing expired tolerances;

• Revoking tolerances that are no longer needed; and

• Harmonizing tolerances with the Codex Alimentarius Commission (Codex) Maximum Residue Levels (MRLs).

Although it may not have been identified in the registration review of a particular pesticide, this proposed rule reflects the Agency's 2019 adoption of the Organization of Economic Cooperation and Development (OECD) Rounding Class Practice. More information on the OECD Rounding Class Practice can be found at https://www.oecd.org/en/publications/mrl-calculator-users-guide-and-white-paper_9789264221567-en.html. Where applicable, these adjustments are proposed for specific pesticides as indicated in Unit III.

Section 408(e) of the Federal Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a(e), authorizes EPA to establish, modify, or revoke tolerances or exemptions from the requirement of a tolerance on its own initiative.

Under FIFRA section 3(g), 7 U.S.C. 136a(g), EPA is required to periodically review all registered pesticides and determine if those pesticides continue to meet the standard for registration under FIFRA. As part of the registration review of a pesticide, EPA also evaluates the existing tolerances and any tolerance changes identified as necessary or appropriate during registration review of a pesticide are summarized in the registration review decision documents for each pesticide active ingredient or registration review case ( e.g., in the Proposed Interim Decision (PID), Proposed Final Decision (PFD), Interim Decision (ID) and Final Decision (FD)). These documents can be found in the public docket opened for each pesticide undergoing registration review. Additional information about pesticide registration review is available at https://www.epa.gov/pesticide-reevaluation.

Prior to issuing the final regulation, FFDCA section 408(e)(2) requires EPA to issue a notice of proposed rulemaking for a 60-day public comment period, unless the Administrator for good cause finds that it would be in the public interest to have a shorter period and states the reasons in the proposed rulemaking.

1. Submitting CBI. Do not submit CBI to EPA through email or https://www.regulations.gov. If you wish to include CBI in your comment, please follow the applicable instructions at https://www.epa.gov/dockets/commenting-epa-dockets#rules and clearly mark the information that you claim to be CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.

This proposed rule provides a 60-day public comment period that allows any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives such a comment within the 60-day period, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the Federal Register under FFDCA section 408(f), if needed. If the data are not submitted as required in the order, EPA will take appropriate action under FFDCA.

After considering comments that are received in response to this proposed rule, EPA will issue a final rule. At the time of the final rule, you may file an objection or request a hearing on the action taken in the final rule. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. After the filing deadline specified in the final rule, issues resolved in the final rule cannot be raised again in any subsequent proceedings.

A “tolerance” represents the maximum level for residues of a pesticide chemical legally allowed in or on food, which includes raw agricultural commodities and processed foods and feed for animals. Under the FFDCA, residues of a pesticide chemical that are not covered by a tolerance or exemption from the requirement of a tolerance are considered unsafe. See 21 U.S.C. 346a(a)(1). Foods containing unsafe residues are deemed adulterated and may not be distributed in interstate commerce. See 21 U.S.C. 331(a) and 342(a)(2)(B). Consequently, for a food-use pesticide ( i.e., a pesticide use that is likely to result in residues in or on food) to be sold and distributed in the United States, the pesticide must not only have appropriate tolerances or exemptions under the FFDCA, but also must be registered under FIFRA. Food-use pesticides not registered in the United States must have tolerances or exemptions in order for commodities treated with those pesticides to be imported into the United States. For additional information about tolerances, go to https://www.epa.gov/pesticide-tolerances/about-pesticide-tolerances.

When establishing a tolerance for residues of a pesticide, EPA must determine whether Codex has established a MRL for that pesticide. See 21 U.S.C. 346a(b)(4). Additionally, as part the registration review of a pesticide ( see Unit II.C.), EPA determines whether Codex or other international MRLs exist for commodities and chemicals for which U.S. tolerances have been established. Where appropriate, EPA's intention is to harmonize U.S. tolerances with those international MRLs to facilitate trade. EPA's effort to harmonize with international MRLs is summarized in the tolerance reassessment section of the individual Human Health Draft Risk Assessments that support the pesticide registration review.

Under FIFRA section 3(g), 7 U.S.C. 136a(g), EPA is required to periodically review all registered pesticides and determine if those pesticides continue to meet the standard for registration under FIFRA. See also 40 CFR 155.40(a). The registration review program is intended to make sure that, as the ability to assess risk evolves and as policies and practices change, all registered pesticides can continue to be used without causing unreasonable adverse effects on human health and the environment. As part of the registration review of a pesticide, EPA also evaluates whether existing tolerances are safe, whether any changes to existing tolerances are necessary or appropriate, and whether any new tolerances are necessary to cover residues from registered pesticides. In addition, any tolerance changes identified as necessary or appropriate during registration review of a pesticide are summarized in the registration review decision documents for each pesticide active ingredient or registration review case ( e.g., in the Proposed Interim Decision (PID), Proposed Final Decision (PFD), Interim Decision (ID) and Final Decision (FD)). These documents can be found in the public docket that has been opened for each pesticide, which is available online at https://www.regulations.gov, using the docket ID number listed in Unit III. for each pesticide active ingredient included in this proposed action. Additional information about pesticide registration review is available at https://www.epa.gov/pesticide-reevaluation.

FFDCA section 408(b) authorizes EPA to establish a tolerance, if the Agency determines that a tolerance is safe; FFDCA section 408(c) authorizes EPA to establish an exemption from the requirement of a tolerance if the Agency determines that the exemption is safe. See 21 U.S.C. 346a(b) and (c). If EPA determines that a tolerance or exemption is not safe, EPA must modify or revoke that tolerance or exemption. The FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” 21 U.S.C. 346a(b)(2)(A)(ii), (c)(2)(A)(ii). This includes exposure through drinking water and in residential settings but does not include occupational exposure. FFDCA section 408(b)(2)(C) requires EPA to give special consideration to the exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue[s.]” 21 U.S.C. 346a(b)(2)(C). In addition, FFDCA section 408(b)(2)(D) contains several factors EPA must consider when making determinations about establishing, modifying, or revoking tolerances. 21 U.S.C. 346a(b)(2)(D). FFDCA section 408(c)(2)(B) requires that EPA, when making determinations about exemptions, to take into account, among other things, the considerations set forth in FFDCA section 408(b)(2)(C) and (D). 21 U.S.C. 346a(c)(2)(B).

Furthermore, when establishing tolerances or exemptions from the requirement of a tolerance, FFDCA sections 408(b)(3) and (c)(3) require that there be a practical method for detecting and measuring pesticide chemical residue levels in or on food, unless in the case of exemptions, EPA determines that such method is not needed and states the reasons therefore in the rulemaking. 21 U.S.C. 346a(b) and (c).

Consistent with its obligations under FIFRA section 3(g), 7 U.S.C. 136a(g), and FFDCA section 408, 21 U.S.C. 346a, EPA has reviewed the available scientific data and other relevant information on toxicity and exposure of the individual chemicals represented in this rulemaking. As part of registration review, the Agency has published risk assessments detailing the risks from aggregate exposure, including to infants and children, for each of the pesticides represented herein. The chemical-specific toxicity and exposure analyses, which support the safety determinations contained in Unit III., can be found in the human health risk assessment documents and related registration review decision documents, which are available in the public docket that has been opened for each pesticide, as noted in Unit III.

After considering all available information, EPA has determined it is appropriate based on the underlying safety assessments to take the tolerance actions being proposed in this rulemaking and that adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expressions.

EPA is proposing to take the specific tolerance actions identified in this unit. All tolerance values proposed in the regulatory text of this rule, modified or otherwise, are being proposed to reflect current OECD rounding practices.

EPA is proposing to amend the current tolerances by:

• Revising the tolerance expression in paragraph (a) for atrazine to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of atrazine not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Modifying the tolerance level in paragraph (a) for “Corn, sweet, forage” from 15 ppm to 1.5 ppm, which is supported by the updated pre-harvest interval. The Agency previously reviewed crop field trial data conducted on sweet corn, reflecting maximum use rates of post-emergent applications of atrazine and a 45-day pre-harvest interval for forage. These data indicate that a tolerance level of 1.5 ppm is adequate to cover potential residues of atrazine in/on corn, sweet, forage following post-emergent application at maximum registered use rates and a 45-day pre-harvest interval for forage. Because the proposed action would lower the existing tolerance, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Updating the existing crop group tolerance in paragraph (d) for indirect or inadvertent residues of atrazine from “Vegetable, leafy, except brassica, group 4” to the updated crop groups “Leaf petiole vegetable subgroup 22B” and “Leafy greens subgroup 4-16A” at the same level, 0.25 ppm. The Agency is also proposing to establish tolerances for the following individual commodities, which would otherwise lose coverage under the updated crop groupings: “Arugula”, “Celtuce”, “Fennel, Florence, fresh leaves and stalk”, “Cress, garden”, and “Cress, upland” at 0.25 ppm.

40 CFR 180.40(j) states that “At appropriate times, EPA will amend tolerances for crop groups that have been superseded by revised crop groups to conform the pre-existing crop group to the revised crop group.” EPA has indicated in updates to its crop group rulemakings that registration review is one of those appropriate times. See, e.g., Tolerance Crop Grouping Program V (85 FR 70985) (November 6, 2020).

• Establishing new tolerances in paragraph (d) for indirect or inadvertent residues of atrazine in or on “Vegetable, foliage of legume, group 7” at 0.5 ppm. Rotational crop studies support the establishment of this tolerance.

• Modifying tolerances to reflect current OECD rounding practices.

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the atrazine tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to atrazine residues. Adequate enforcement methodology is available.

This proposed rule only proposes atrazine tolerance actions which EPA previously identified as necessary or appropriate during registration review. It does not serve as a response to the petition that EPA received in February 2025 from the Center for Biological Diversity, A Petition to Make America Healthy Again by Eliminating Extraordinarily Toxic Pesticides From Food (available at https://www.epa.gov/system/files/documents/2025-07/maha_petition.pdf ), which asks, in part, that EPA revoke all tolerances for residues of atrazine. That petition is currently under review by the Agency.

EPA is proposing to amend the current tolerances by:

• Revising the commodity definitions in paragraph (a)(2) from “Vegetable, brassica, leafy, group 5” to “Vegetable, Brassica, leafy, group 5” and “Vegetable, leafy, except brassica, group 4” to “Vegetable, leafy, except Brassica, group 4.” These revisions of commodity definitions would help facilitate efficient commodity searches and would not substantively change the tolerance or, in any way, modify the permissible level of residues in or on the commodity listed in the regulation.

• Updating existing crop group tolerances in paragraph (a)(2) from “Berry group 13” to “Berry and small fruit, group 13-07”, “Cotton, undelinted seed” to “Oilseeds, group 20”, “Fruit, citrus, group 10” to “Fruit, citrus, group 10-10”, “Fruit, pome, group 11” to “Fruit, pome, group 11-10”, “Fruit, stone, group 12” to “Fruit, stone, group 12-12”, and “Nut, tree, group 14” to “Nut, tree, group 14-12”. The Agency also proposes to remove tolerances for the individual commodities “Cranberry”, “Grape”, and “Strawberry”, which would be covered under the updated crop group “Berry and small fruit, group 13-07” at the same level, 0.05 ppm.

40 CFR 180.40(j) states that “At appropriate times, EPA will amend tolerances for crop groups that have been superseded by revised crop groups to conform the pre-existing crop group to the revised crop group.” EPA has indicated in updates to its crop group rulemakings that registration review is one of those appropriate times. See, e.g., Tolerance Crop Grouping Program V (85 FR 70985) (November 6, 2020).

• Revoking the tolerance from paragraph (a)(3) for “Soybean, hulls” at 0.6 ppm, because domestic use of diquat on soybeans was cancelled. Because the proposed action would revoke the existing tolerance, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Establishing a new tolerance in paragraph (a)(1) for “Clover, seed” at 2 ppm. This was recommended in the 2002 Tolerance Reassessment Eligibility Document (TRED) based on the registered use on clover grown for seed.

• Establishing new tolerances in paragraph (a)(2) for “Animal feed, nongrass, group 18, forage”, “Animal feed, nongrass, group 18, hay”, and “Herb and spice, group 19” at 0.2 ppm, and for “Vegetable, bulb, group 3” and “Vegetable, leaves of root and tuber, group 2” at 0.02 ppm. Translation of available commodity data support the establishment of these tolerances.

• Moving the tolerances for “Banana”, and “Coffee, bean, green” from paragraph (a)(3) to paragraph (a)(1), moving the tolerances for “Potato, granules/flakes” and “Potato, chips” from paragraph (a)(4) to paragraph (a)(1), and moving and establishing an expiration date for the tolerance for “Soybean, hulls” from paragraph (a)(3) to paragraph (a)(1).

• Modifying tolerances to reflect current OECD rounding practices.

Where appropriate, it is the Agency's intention is to harmonize U.S. tolerances with international MRLs to facilitate trade. EPA has identified opportunities to harmonize with Codex MRLs for diquat and is proposing to harmonize tolerances for bananas and coffee from 0.05 ppm to 0.02 ppm as there are no U.S. registrations for these crop uses. Tolerances for residues in/on banana and coffee were established at the limit of quantitation, which was 0.05 ppm at the time of the petitions for the tolerances in/on banana and coffee in 1995. The Agency determined that the 0.02 ppm level reflects the limit of quantitation of the current enforcement method. Because the proposed action would lower the existing tolerances, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the diquat tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to diquat residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerances by:

• Revising the tolerance expression in paragraph (a) for MCPB to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of MCPB not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Revising the commodity definition and modifying the tolerance levels in paragraph (a) from “Pea” at 0.1 ppm to “Pea, dry, seed” at 0.03 ppm, “Pea, edible, podded” at 0.02 ppm, and “Pea, succulent, shelled” at 0.02 ppm, which is supported by field trial data. As part of registration review, the Agency reviewed crop field trials conducted on pea, which reflect registered use patterns of MPCB. These data indicate that a tolerance level of 0.03 ppm is adequate to cover potential residues of MCPB in/on pea, dry, seed following application at maximum registered use rates. Additionally, the tolerance level of 0.02 ppm for residues in/on “Pea, edible podded” and “Pea, succulent, shelled” is based on the limit of quantification, as no residues were detected in these commodities in the reviewed field trial data. Because the proposed action would lower the existing tolerance, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Revising the commodity definitions in paragraph (a) from “Peppermint, tops” to “Peppermint, fresh leaves” and “Spearmint, tops” to “Spearmint, fresh leaves”. These revisions of commodity definitions would help facilitate efficient commodity searches and would not substantively change the tolerance or, in any way, modify the permissible level of residues in or on the commodity listed in the regulation.

• Revising the title to “MCPB” in 40 CFR 180.318 to more accurately reflect the chemical covered by the tolerances in that section.

• Modifying tolerances to reflect current OECD rounding practices.

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the MCPB tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to MCPB residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerances by:

• Revising the tolerance expression in paragraph (a) for napropamide to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of napropamide not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Revising the commodity definitions in paragraph (a) from “Spearmint, tops” to “Spearmint, fresh leaves” and “Peppermint, tops” to “Peppermint, fresh leaves”. These revisions of the commodity definitions would help facilitate efficient commodity searches and would not substantively change the tolerances or, in any way, modify the permissible level of residues in or on the commodities listed in the regulation.

• Updating existing crop group tolerances in paragraph (a) from “Vegetable, fruiting, Group 8” and “Nut, tree, Group 14” to the updated crop groups “Vegetable, fruiting, Group 8-10” and “Nut, tree, Group 14-12” at the same level, 0.1 ppm. The Agency also proposes to remove the tolerance for the individual commodity “Almond, hulls”, which would be covered under the updated crop grouping “Nut, tree, Group 14-12” at the same level, 0.1 ppm.

• Updating existing crop group tolerances in paragraph (a) from “Vegetable, Brassica, leafy, group 5” to “Brassica, leafy greens, subgroup 4-16B”, “Vegetable, brassica, head and stem, group 5-16”, and “Stalk and stem vegetable subgroup 22A” at the same level, 0.1 ppm. The Agency also proposes to remove the tolerance for the individual commodity “Asparagus”, which would be covered under the updated crop groupings at the same level, 0.1 ppm.

• Updating existing crop group tolerances in paragraph (a) from “Berry group 13” to “Berry, low growing, subgroup 13-07G”, “Bushberry subgroup 13-07B”, “Caneberry Subgroup 13-07A”, and “Fruit, small, vine climbing, subgroup 13-07D” at the same level, 0.1 ppm. The Agency also proposes to remove the tolerances for the individual commodities “Cranberry”, “Grape”, “Kiwifruit”, and “Strawberry”, which would be covered under the updated crop groupings at the same level, 0.1 ppm.

40 CFR 180.40(j) states that “At appropriate times, EPA will amend tolerances for crop groups that have been superseded by revised crop groups to conform the pre-existing crop group to the revised crop group.” EPA has indicated in updates to its crop group rulemakings that registration review is one of those appropriate times. See, e.g., Tolerance Crop Grouping Program V (85 FR 70985) (November 6, 2020).

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the napropamide tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to napropamide residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerances by:

• Modifying the tolerance levels in paragraph (a) for “Pea, field, hay” from 0.1 ppm to 1.5 ppm and “Pea, field, vines” from 0.1 to 0.6 ppm, based on updated field trial data and OECD calculations.

• Revising the commodity definition in paragraph (a) from “Pea, succulent” to “Pea, succulent shelled”. The revision of commodity definition would help facilitate efficient commodity searches and would not substantively change the tolerance or, in any way, modify the permissible level of residues in or on the commodity listed in the regulation.

• Revising the commodity definition in paragraph (a) from “Pea, dry” to “Pea, dry, seed” and modifying the tolerance level from 0.1 ppm to 0.01 ppm, based on updated field trial data and OECD calculations. As part of registration review, the Agency reviewed crop field trials conducted on dry pea, which reflect registered use patterns of MCPA. These data indicate that a tolerance level of 0.01 ppm is adequate to cover potential residues of MCPA in/on pea, dry, seed following application at maximum registered use rates. The revision of the commodity definition and permissible tolerance level would help facilitate efficient commodity searches as well as harmonize the tolerance level with Codex. Because the proposed action would lower the existing tolerance, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Establishing new crop group tolerances in paragraph (a) for “Grass, forage, fodder, and hay, group 17, forage” at 500 ppm, and “Grass, forage, fodder, and hay, group 17, hay” at 200 ppm, based on updated OECD calculations. The Agency also proposes to remove the tolerances for the individual commodities “Grass, forage” at 300 ppm and “Grass, hay” at 20 ppm, which would be covered under the updated crop grouping. The establishment of the new crop group tolerance for “Grass, forage, fodder, and hay, group 17, forage” at 500 ppm would help facilitate efficient commodity searches as well as harmonize permissible levels with Codex.

40 CFR 180.40(j) states that “At appropriate times, EPA will amend tolerances for crop groups that have been superseded by revised crop groups to conform the pre-existing crop group to the revised crop group.” EPA has indicated in updates to its crop group rulemakings that registration review is one of those appropriate times. See, e.g., Tolerance Crop Grouping Program V (85 FR 70985) (November 6, 2020).

• Revoking the tolerances in paragraph (a) for “Hog, fat”, “Hog, meat”, and “Hog, meat byproducts”. An updated dietary burden calculation showed no reasonable expectation of finite residues in hog commodities (see 40 CFR 180.6(a)(3)). Because the proposed action would revoke the existing tolerances, EPA is proposing to add an expiration date for the existing tolerances of June 9, 2026.

• Modifying tolerances by removing trailing zeros to reflect current OECD rounding practices.

Where appropriate, it is the Agency's intention to harmonize U.S. tolerances with international MRLs to facilitate trade. EPA has identified opportunities to harmonize with Codex MRLs for MCPA and is proposing to modify the following tolerance values in paragraph (a) to do so: “Oat, straw” from 25 ppm to 50 ppm, “Rye, forage” from 20 ppm to 50 ppm, “Rye, straw” from 25 ppm to 50 ppm, “Wheat, forage” from 20 ppm to 50 ppm, and “Wheat, straw” from 25 ppm to 50 ppm.

In addition to harmonizing with Codex, EPA is proposing to modify the following tolerance values based on updated OECD calculations: “Barley, grain” from 1 ppm to 0.2 ppm, “Oat, grain” from 1 ppm to 0.2 ppm, “Oat, hay” from 115 ppm to 50 ppm, “Rye, grain” from 1 ppm to 0.2 ppm, “Wheat, grain” from 1.0 ppm to 0.2 ppm, and “Wheat, hay” from 115 ppm to 50 ppm. As part of registration review, the Agency reviewed crop field trials conducted at an exaggerated application rate on wheat, which reflect registered uses of MCPA. These data indicate that tolerance levels of 0.2 ppm and 50 ppm are adequate to cover potential residues of MCPA in/on wheat, grain and wheat, hay, respectively, following application at maximum registered use rates. These tolerance levels have been translated to other small cereal grains, including barley, oat, and rye. Because the proposed action would lower the existing tolerances, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

In addition to harmonizing with Codex, EPA is proposing to modify the following tolerance values based on an updated dietary burden calculations: “Cattle, fat” from 0.1 ppm to 0.2 ppm, “Cattle, meat byproducts” from 0.1 ppm to 3 ppm, “Goat, fat” from 0.1 ppm to 0.2 ppm, “Goat, meat byproducts” from 0.1 ppm to 3 ppm, “Horse, fat” from 0.1 ppm to 0.2 ppm, “Horse, meat byproducts” from 0.1 ppm to 3 ppm, “Milk” from 0.1 ppm to 0.04 ppm, “Sheep, fat” from 0.1 ppm to 0.2 ppm, and “Sheep, meat byproducts” from 0.1 ppm to 3 ppm. Because the proposed action would lower the existing tolerance for “Milk”, EPA is proposing to establish an expiration date for the existing tolerance of EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register . The updated tolerance level is based on livestock feeding studies and updated dietary burden calculations, which incorporates residues from updated crop field trial data reviewed under registration review.

In addition to harmonizing with Codex, EPA is proposing to modify the tolerance value for “Flax, seed” from 0.1 ppm to 0.01 ppm, based on updated residue data. As part of registration review, the Agency reviewed crop field trials conducted on flax, which reflect registered use patterns of MCPA. These data indicate that a tolerance level of 0.01 ppm is adequate to cover potential residues of MCPA in/on flax, seed following application at maximum registered use rates. Because the proposed action would lower the existing tolerance, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the MCPA tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to MCPA residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerances by:

• Revising the tolerance expression in paragraph (a) for pirimiphos-methyl to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of pirimiphos-methyl not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Modifying tolerances to reflect current OECD rounding practices.

Where appropriate, it is the Agency's intention is to harmonize U.S. tolerances with international MRLs to facilitate trade. EPA has identified opportunities to harmonize with Codex MRLs for pirimiphos-methyl and is proposing to modify tolerance levels for the following commodities to do so: “Cattle, fat” from 0.02 ppm to 0.01 ppm, “Cattle, meat byproducts” from 0.02 ppm to 0.01 ppm, “Corn, field, grain” from 8 ppm to 7 ppm, “Corn, pop, grain” from 8 ppm to 7 ppm, “Goat, fat” from 0.02 ppm to 0.01 ppm, “Goat, meat byproducts” from 0.02 ppm to 0.01 ppm, “Hog, fat” from 0.02 ppm to 0.01 ppm, “Hog, meat byproducts” from 0.02 ppm to 0.01 ppm, “Horse, fat” from 0.02 ppm to 0.01 ppm, “Horse, meat byproducts” from 0.02 ppm to 0.01 ppm, “Poultry, fat” from 0.02 ppm to 0.01 ppm, “Sheep, fat” from 0.02 ppm to 0.01 ppm, “Sheep, meat byproducts” from 0.02 ppm to 0.01 ppm, and “Sorghum, grain, grain” from 8 ppm to 7 ppm. The Agency is proposing the revisions to “Corn, field, grain”, “Corn, pop, grain”, and “Sorghum, grain, grain” based on the maximum application rate of pirimiphos-methyl on corn and sorghum grain and pesticide monitoring data showing little, if any, residues in or on corn and sorghum grain. For the livestock tolerances, the Agency concluded that the decreased tolerance level is sufficient to cover anticipated residues in or on “Cattle, fat”, “Cattle, meat byproducts”, “Goat, fat”, “Goat, meat byproducts”, “Hog, fat”, “Hog, meat byproducts”, “Horse, fat”, “Horse, meat byproducts”, “Poultry, fat”, “Sheep, fat”, and “Sheep, meat byproducts” based on the calculated dietary burden and available residue chemistry data. Because the proposed action would lower the existing tolerances, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

As discussed in Unit II.D, based on the supporting registration review documents, EPA has determined that the proposed amendments to the pirimiphos-methyl tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to pirimiphos-methyl residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerances by:

• Revising the tolerance expressions in paragraphs (a) and (c) for fluazifop-P-butyl to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of fluazifop-P-butyl not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Removing the tolerances from paragraph (a) for “Fruit, citrus, group 10” at 0.03 ppm and “Fruit, stone” at 0.05 ppm. These tolerances were time-limited to allow a reasonable interval for producers to adapt to the requirement when the current crop group tolerances were established and expired on June 26, 2023.

• Removing the tolerance from paragraph (a) for “Citrus, juice” at 0.06 ppm. Based on a new citrus processing study, EPA determined that any residues in this commodity would be covered by the “Fruit, citrus, group 10-10” tolerance of 0.01 ppm. Because the proposed action would lower the tolerance level for this commodity, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Modifying tolerance levels in paragraph (a) for “Citrus, dried pulp” from 0.40 to 0.06 ppm, “Citrus, oil” from 30.0 to 0.05 ppm, and “Soybean, seed” from 2.5 to 4 ppm. While the existing tolerances for these citrus commodities were based on theoretical concentration factors, EPA is proposing to modify the tolerances based on a new citrus processing study. Likewise, EPA is proposing to modify the tolerance for “Soybean, seed” based on new data on soybean residues. Because the proposed action would lower the existing tolerances for the citrus commodities, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Revising the commodity definitions and modifying the tolerance levels in paragraph (a) from “Beans, dry, seed” at 50 ppm to “Bean, dry, seed” at 40 ppm, and from “Pecans” at 0.05 ppm to “Pecan” at 0.01 ppm. For “Bean, dry, seed”, the Agency determined that the U.S. tolerance was determined using the North American Free Trade Agreement (NAFTA) calculator, while the Codex MRL was determined using the Organisation for Economic Co-operation and Development (OECD) calculator. As the Agency currently relies on the OECD calculator and the Codex MRL was determined using the same dataset as the U.S. tolerance, the tolerance should be lowered to harmonize with Codex. For “Pecan”, the Agency determined that the 0.01 ppm level reflects the limit of quantitation of the current enforcement method. This level is appropriate as there are no detects in the field trial data, residue translocation into tree/vine fruit is not expected based on the registered use pattern, and suitably sensitive analytical enforcement methods are available, so the tolerances should be lowered to harmonize with Codex. The revisions of the commodity definitions and permissible tolerance levels would help facilitate efficient commodity searches as well as harmonize the tolerance levels with Codex. Because the proposed action would lower the existing tolerances, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

• Modifying tolerances to reflect current OECD rounding practices.

Where appropriate, it is the Agency's intention to harmonize U.S. tolerances with international MRLs to facilitate trade. EPA has identified opportunities to harmonize with Codex MRLs for fluazifop-P-butyl and is proposing to modify the following tolerance values in paragraphs (a) and (c) to do so: “Beet, sugar, roots” from 0.25 ppm to 0.5 ppm, “Cattle, fat” from 0.05 ppm to 0.09 ppm, “Cattle, meat” from 0.05 ppm to 0.09 ppm, “Cattle, meat byproducts” from 0.05 ppm to 0.2 ppm, “Coffee, bean” from 0.1 ppm to 0.01 ppm, “Cotton, undelinted seed” from 1 ppm to 0.7 ppm, “Egg” from 0.05 ppm to 0.03 ppm, “Goat, fat” from 0.05 ppm to 0.09 ppm, “Goat, meat” from 0.05 ppm to 0.09 ppm, “Goat, meat byproducts” from 0.05 ppm to 0.2 ppm, “Hog, fat” from 0.05 ppm to 0.09 ppm, “Hog, meat” from 0.05 ppm to 0.09 ppm, “Hog, meat byproducts” from 0.05 ppm to 0.2 ppm, “Horse, fat” from 0.05 ppm to 0.09 ppm, “Horse, meat” from 0.05 ppm to 0.09 ppm, “Horse, meat byproducts” from 0.05 ppm to 0.2 ppm, “Milk” from 0.05 ppm to 0.2 ppm, “Poultry, fat” from 0.05 ppm to 0.03 ppm, “Poultry, meat” from 0.05 ppm to 0.03 ppm, “Poultry, meat byproducts” from 0.05 ppm to 0.2 ppm, “Sheep, fat” from 0.05 ppm to 0.09 ppm, “Sheep, meat” from 0.05 ppm to 0.09 ppm, and “Sheep, meat byproducts” from 0.05 ppm to 0.2 ppm. For “Coffee, bean”, the Agency determined that the 0.01 ppm level reflects the limit of quantitation of the current enforcement method. This level is appropriate as there are no detects in the field trial data, residue translocation into tree/vine fruit is not expected based on the registered use pattern, and suitably sensitive analytical enforcement methods are available, so the tolerances should be lowered to harmonize with Codex, For “Cotton, undelinted seed”, the same dataset was used to establish the U.S. tolerance (1.0 ppm) and the Codex MRL (0.7 ppm). The difference in levels appears to result from a difference in the residue value determined from the trial with the highest residue and should be lowered to the same level as the Codex MRL so it is more representative. For “Egg”, “Poultry, fat”, and “Poultry meat”, the U.S. tolerances are currently higher due to differences in the livestock method limit of quantitation (LOQ) when the levels were determined and should be lowered as they now share the same LOQ as the Codex MRLs. Because the proposed action would lower the existing tolerances for “Coffee, bean”, “Cotton, undelinted seed”, “Egg”, “Poultry, fat”, and “Poultry, meat”, EPA is proposing to add an expiration date for the existing tolerance of 180 days after publication of the final rule in the Federal Register .

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the fluazifop tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to fluazifop residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerances by:

• Updating existing individual and crop group tolerances in paragraph (a) from “Flax, seed” at 0.6 ppm and “Rapeseed subgroup 20A, except flax seed” at 0.50 ppm to the crop group “Rapeseed subgroup 20A” at 0.6 ppm. Upon establishment of the new crop group, and to prevent redundancy, the Agency proposes to remove tolerances that will be unnecessary once they are superseded by the tolerances established for the new crop group, including the tolerances for “Flax, seed” and “Rapeseed subgroup 20A, except flax seed” that will now be covered under the updated crop grouping “Rapeseed subgroup 20A.”

• Removing the tolerance from paragraph (a) for “Kohlrabi” at 3 ppm. This tolerance was time-limited to allow a reasonable interval for producers to adapt to the requirement when the current crop group tolerances were established and expired on October 12, 2018.

• Modifying tolerances to reflect current OECD rounding practices.

Where appropriate, it is the Agency's intention to harmonize U.S. tolerances with those international MRLs to facilitate trade. EPA has identified opportunities to harmonize with Codex MRLs for clethodim and is proposing to increase the tolerance for “Peanut” from 3.0 ppm to 5 ppm.

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the clethodim tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to clethodim residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerance by:

• Revising the tolerance expressions in paragraphs (a)(1), (a)(2), and (c) for bifenazate to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of bifenazate not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Revising the commodity definitions in paragraph (a) from “Bean, dry seed” to “Bean, dry, seed”, “Berry, low-growing subgroup 13-07G” to “Berry, low-growing, subgroup 13-07G”, “Black sapote” to “Sapote, black”, “Fruit, small, vine climbing subgroup 13-07F, except fuzzy kiwifruit” to “Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F”, “Herb, subgroup 19A, except chervil and chive” to “Herb subgroup 19A, except chervil and chive”, “Peppermint, tops” to “Peppermint, fresh leaves”, “Soybean, succulent shelled” to “Soybean, vegetable, succulent shelled”, and “Spearmint, tops” to “Spearmint, fresh leaves.” These revisions of commodity definitions would help facilitate efficient commodity searches and would not substantively change the tolerance or, in any way, modify the permissible level of residues in or on the commodity listed in the regulation.

• Removing the tolerances from paragraph (a) for the individual commodities “Grape” at 0.75 ppm and “Okra” at 2 ppm. These commodities are covered by the existing crop group tolerances “Fruit, small, vine climbing subgroup 13-07F, except fuzzy kiwifruit,” at 1.0 ppm and “Vegetable, fruiting, group 8-10” at 4.0 ppm, respectively, and they would continue to be covered under the revisions proposed in this rule.

• Modifying tolerances to reflect current OECD rounding practices.

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the bifenazate tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to bifenazate residues. Adequate enforcement methodology is available.

EPA is proposing to amend the current tolerance by:

• Revising the tolerance expression in newly designated paragraph (a)(1) for etofenprox to describe more clearly the scope or coverage of the tolerances and the method for measuring compliance. Consistent with EPA policy, the revised tolerance expression would clarify that (1) as provided in FFDCA section 408(a)(3), the tolerances cover metabolites and degradates of etofenprox not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring the specific compounds mentioned in the tolerance expression. The revisions to the tolerance expression would not substantively change the tolerances or, in any way, modify the permissible level of residues permitted by the tolerances.

• Establishing a tolerance of 5 ppm under a newly designated paragraph (a)(2) for residues of etofenprox in or on all food/feed items resulting from use of etofenprox as a wide-area mosquito adulticide.

• Modifying tolerances to reflect current OECD rounding practices.

Where appropriate, it is the Agency's intention is to harmonize U.S. tolerances with those international MRLs to facilitate trade. EPA has identified opportunities to harmonize with Codex MRLs for etofenprox and is proposing to harmonize the U.S. tolerances for “Cattle, meat”, “Goat, meat”, “Horse, meat”, and “Sheep, meat”, all from 0.40 ppm to 0.5 ppm and “Hog, meat” from 0.20 ppm to 0.5 ppm.

As discussed in Unit II.D., based on the supporting registration review documents, EPA has determined that the proposed amendments to the etofenprox tolerances would be safe, i.e., there is a reasonable certainty that no harm will result to the general population, or specifically to infants and children, from aggregate exposure to etofenprox residues. Adequate enforcement methodology is available.

EPA is proposing that these tolerance actions would be effective on the date of publication of the final rule in the Federal Register . For actions in the final rule that lower or revoke existing tolerances, EPA is proposing to add an expiration date for the existing tolerance of 180 days (approximately six months) after the date of publication of the final rule in the Federal Register , to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to the requirements.

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

This action is exempt from review under Executive Order 12866 (58 FR 51735, October 4, 1993), because it proposes to establish or modify a pesticide tolerance or a tolerance exemption under FFDCA section 408. This exemption also applies to tolerance revocations for which extraordinary circumstances do not exist. As such, this exemption applies to the tolerance revocations in this proposed rule because the Agency knows of no extraordinary circumstances that warrant reconsideration of this exemption for those proposed tolerance revocations.

Executive Order 14192 (90 FR 9065, February 6, 2025) does not apply because this tolerance action under FFDCA section 408 is exempted from review under Executive Order 12866.

This action does not impose an information collection burden under the PRA 44 U.S.C. 3501 et seq., because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, EPA concludes that the impact of concern for this action is any significant adverse economic impact on small entities and that the Agency is certifying that this action will not have a significant economic impact on a substantial number of small entities because the action has no net burden on small entities subject to this rulemaking. This determination takes into account an EPA analysis for tolerance establishments and modifications that published in the Federal Register of May 4, 1981 (46 FR 24950) (FRL-1809-5) and for tolerance revocations on December 17, 1997 (62 FR 66020) (FRL-5753-1). Additionally, in a 2001 memorandum, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. See Memorandum from Denise Keehner, Division Director, Biological and Economic Analysis Division, Office of Pesticide Programs, entitled “RFA/SBREFA Certification for Import Tolerance Revocation” and dated May 25, 2001, which is available in docket ID No. EPA-HQ-OPP-2005-0322 at https://www.regulations.gov.

Any comments about the Agency's determination for this rulemaking should be submitted to EPA along with comments on the proposed rule and will be addressed in the final rule.

This action does not contain an unfunded mandate of $100 million or more (in 1995 dollars and adjusted annually for inflation) as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any State, local or Tribal governments or the private sector.

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866 (See Unit V.A.), and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. However, EPA's 2021 Policy on Children's Health applies to this action. This rule proposes tolerance actions under the FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” (FFDCA 408(b)(2)(C)). The Agency's consideration is documented in the pesticide-specific registration review documents, located in each chemical docket at https://www.regulations.gov.

This action is not subject to Executive Order 13211 (66 FR 28355) (May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272.

For the reasons set forth in the preamble, EPA is proposing to amend 40 CFR chapter I as follows:

The revisions and additions read as follows:

The revisions read as follows:

The revisions and addition read as follows:

The revisions and additions read as follows:

The revisions and additions read as follows:

EPA has established a docket for this action under Docket ID No. EPA-R06-RCRA-2025-3129. All documents in the docket are listed in the https://www.regulations.gov index.

Submit your comments, identified by Docket ID No. EPA-R06-RCRA-2025-3129, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

Do not submit information that you consider to be CBI electronically through https://www.regulations.gov or email. Send or deliver information identified as CBI to only the following address: RCRA Document Control Officer, La Gayla Johnson, Office of Regional Counsel, EPA Region 6, 1201 Elm Street, Dallas, Texas 75270, Mail Code: R06-ORC-DRCGLCB-FIAB; telephone number: (214) 665-7517; and email: Johnson.lagayla@epa.gov.

Attn: Docket ID No. EPA-R06-RCRA-2025-3129.

Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM to clearly indicate that it does not contain CBI. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) Part 2.

This action applies only to Clean Harbors' Lone Mountain facility (Clean Harbors) located in Waynoka, Oklahoma.

On November 29, 2023, Clean Harbors submitted a no-migration variance (NMV) petition, in accordance with 40 CFR 268.6, seeking an exemption from the Land Disposal Restrictions (LDR) prohibition on land placement of hazardous waste that does not meet the prescribed LDR standards of 40 CFR 268.40 for temporary piles of treated waste, referred to as put piles, placed within the boundary of a RCRA-permitted hazardous waste landfill. Because the petition demonstrated to a reasonable degree of certainty that, for as long as the wastes remain hazardous, there will be no migration of hazardous constituents from the put piles, EPA proposes to grant, with conditions, Clean Harbors' variance from the LDR prohibition for up to a combined 100 put piles at any one time for the nine categories/groups of wastes identified in the Waste Characterization section of this proposal. If granted, the term of this NMV shall be no longer than the term of the RCRA Subtitle C permit for the permitted landfill.

Sections 3004(d) through (g) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6294(d)-(g), prohibit the land disposal of hazardous wastes unless such wastes meet the LDR treatment standards (“treatment standards”) established by EPA (“Agency”).

However, RCRA 3004(d)(1), 1 and its implementing regulations found at 40 CFR 268.6, provide an option for land disposal of hazardous waste that does not meet the applicable treatment standards where EPA has approved an NMV petition. Specifically, 40 CFR 268.6(a) describes the components that a demonstration of no migration must address; 268.6(b) specifies certain criteria that must be satisfied for that demonstration, and 268.6(c) describes the monitoring program that will be used to verify that the conditions of the NMV are being met.

An NMV is a formal decision that can be rendered by the EPA in response to a petition filed with the Agency to allow land disposal within a particular disposal unit of specific prohibited waste when it has been demonstrated, “to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit . . . for as long as the wastes remain hazardous.”  2 It must be demonstrated, to a reasonable degree of certainty, that hazardous constituents will not exceed Agency-approved human health-based levels (or environmentally protective levels, if they are appropriate) beyond the boundary of the disposal unit. 3 In most cases, the disposal unit boundary is defined as the outermost limit of engineered components. 4

Approval of an NMV petition is delegated to the EPA Regional Administrator for the EPA Region in which the waste management unit is located. States are not authorized to implement the NMV authority; however, the EPA consulted with Oklahoma prior to proposing to grant this NMV. The final decision will be published in the Federal Register . If granted, the term of an NMV may be no longer than the term of the existing RCRA Subtitle C permit for the landfill. Any petitions to renew an NMV must undergo notice and comment procedures. An NMV that has been issued can be revoked for cause, including any migration of hazardous constituents.

The regulatory requirements for an NMV under the RCRA LDRs were codified in 40 CFR 268.6 in 1986, 5 and EPA issued guidance on these requirements in 1992. The 1992 guidance is applicable to landfills, surface impoundments, and waste piles. While the 1992 guidance acknowledged temporary placement of waste under an approved NMV, it did not address the issue of temporary placement of treated wastes in put piles while awaiting LDR compliance verification (or retreatment) within the boundary of a RCRA-permitted Subtitle C (hazardous waste) landfill. After a put pile is confirmed to meet the LDR standards, it is moved to the “working face”  6 of the landfill for final disposal; however, if there is an exceedance of an LDR standard, the put pile is returned to the treatment process for further treatment.

Hazardous waste in a put pile either must meet the LDR standards or have an approved NMV. To provide guidance specific to this circumstance, the EPA issued “ Information for Petitioners Seeking a No-Migration Variance Under the RCRA Land Disposal Restrictions for Temporary Placement of Treated Hazardous Waste Within a Permitted Subtitle C Landfill ” (88 FR 10894, February 22, 2023). This information ( i.e., the “2023 Guidance”) is posted online at https://rcrapublic.epa.gov/files/14952.pdf.

The 2023 Guidance acknowledges the need for unique considerations when a no migration demonstration for put piles occurs within a Subtitle C landfill prior to permanent disposal in the landfill. “EPA expects that petitioners will be able to take advantage of existing facility information ( e.g., existing monitoring, inspections, engineered barriers, waste analyses), where appropriate, as part of any demonstration . . . For example, the use of temporary barriers, such as plastic covers above and below the piles; visual monitoring, prompt responses to possible releases, and good housekeeping practices that ensure the treated waste remains in the pile during the temporary storage period would be elements to consider. Attributes of the permitted landfill cell ( e.g., design, existing controls, monitoring) in which the pile or piles are located should also be considered to the extent that they support the demonstration criteria being applied to the piles themselves.”

40 CFR 268.6(e) acknowledges the potential for post-approval changes in conditions at the no migration unit(s) and/or the environment around the no migration unit(s). For the purpose of these put pile variances, all changes that significantly depart from the conditions described in the variances and affect the potential for migration of hazardous constituents from the put piles must be reported to the Region 6 Administrator as follows:

1. If Clean Harbors plans to make changes to the unit(s)' design, construction, or operation, such a change must be proposed, in writing, and include a demonstration to the Region 6 Administrator at least 30 days prior to making the change. The Region 6 Administrator will determine whether the proposed change invalidates the terms of the approved variance and will determine the appropriate response. A proposed change must first be approved by the Region 6 Administrator before taking any action.

2. If Clean Harbors discovers a site condition in the petition that does not occur as modeled or predicted, this change must be reported, in writing, to the Region 6 Administrator within 10 days of discovery. The Region 6 Administrator will determine whether the reported change from the terms of the approved variance requires further action.

On November 29, 2023, Clean Harbors' Lone Mountain facility in Waynoka, Oklahoma, submitted an NMV petition to the EPA seeking an exemption from the LDR prohibition on placing hazardous waste on the ground, if that waste does not meet the prescribed LDR standards of 40 CFR 268.40, by demonstrating that for as long as the waste remains hazardous, there will be no migration of hazardous constituents from the disposal units. Clean Harbors' no migration demonstration applies to nine categories/groups of wastes stored in up to a combined 100 put piles at any one time located within the facility's Subtitle C Landfill cell, known as “Cell 15.” If Clean Harbors anticipates needing to exceed 100 put piles at any one time, it must request approval from EPA Region 6 prior to creating new put piles. Clean Harbors also requested that this variance proactively apply to future put piles of identical waste characteristics that would be staged in a future proposed and permitted Subtitle C landfill cell, known as “Cell 16.”

While this Notice of Proposal to Grant applies only to those put piles placed within existing Landfill Cell 15, upon permit approval of Cell 16, Clean Harbors may submit to the Agency, an addendum to this petition to expand this NMV and all of its conditions and requirements, for the put piles located within the new landfill cell if:

1. Clean Harbors is in compliance with the approved NMV,

2. The new landfill cell uses the same disposal unit engineered controls ( e.g., landfill cell interior berms for run-on and run-off control) as approved in this variance,

3. The duration of temporary placement remains at six (6) months or less and complies with the conditions established herein,

4. The waste categories remain the same, and

5. The monitoring program ( e.g., groundwater monitoring) is expanded to include the new landfill cell.

In response to EPA requests following the original November 2023 submission, Clean Harbors provided supplemental information for the Agency's evaluation of Clean Harbors' no-migration demonstration. The original petition and associated responses to Agency information requests (together referred to as “the petition”) can be found in the docket (EPA-R06-RCRA-2025-3129).

Clean Harbors' petition includes the following components: (a) facility description, (b) site characterization/unit description, (c) identification and characterization of the affected wastes, (d) disposal unit engineered controls, (e) duration of temporary staging, (f) uncertainty analysis, (g) monitoring program, and (h) documented compliance with other laws. These are discussed below.

Clean Harbors' Lone Mountain facility (EPA ID Number: OKD065438376) is located 14 miles southeast of the town of Waynoka. The mean annual precipitation in the region is approximately 28 inches and 11 inches for rain and snow, respectively. The permitted facility, which covers an area of approximately 560 acres, is expected to be in operation for more than ten years from the date of this notice. A RCRA Part B Permit (hazardous waste permit) was issued by the Oklahoma Department of Environmental Quality (ODEQ). The currently approved RCRA permit was signed on April 2, 2011, for a 10-year term, and then administratively continued.

Clean Harbors' hazardous waste permit authorizes the facility to manage liquid, solid, or semisolid hazardous waste and non-hazardous industrial waste. The facility has 15 hazardous waste landfill cells. Waste treatment services provided at the facility include solidification, stabilization, and macro/microencapsulation of hazardous waste. Solid, liquid, and sludge wastes are accepted in containerized or bulk loads ( e.g., roll-off containers); however, the wastes that would be covered under this NMV are generally received as bulk loads.

All put piles are temporarily stored in Landfill Cell 15 until LDR compliance has been confirmed. LDR-compliant piles are then moved to the working face of Landfill Cell 15 after verification of successful treatment. Put piles that fail to meet LDR standards are retreated and subsequently returned as a put pile to landfill Cell 15. This variance, if approved, will apply to put piles of the nine waste categories/groups and not to Landfill Cell 15. As stated in the 2023 guidance, where multiple piles contain the same or similar wastes, the petition can address these units as a group where such piles are effectively being managed as a single unit. As such, the Agency proposes that this NMV apply to the put piles containing the nine categories/groups described in the Waste Characterization section below; however, each put pile within each category/group will be assigned its own unit boundary.

Each put pile measuring approximately 35-cubic yards is placed on a polyethylene barrier sheet (20-millimeter (mil) minimum thickness) within landfill Cell 15. Because wastes are treated and presumed to meet LDR standards prior to placement in Landfill Cell 15, and storage in the petitioned units is temporary, the Agency herein proposes to establish unit boundaries ( i.e., points of compliance for no-migration purposes) for each of the put piles to account for existing landfill controls and appropriate deviations from the waste pile liner design standards of 40 CFR 264.251.

The Agency proposes that each put pile boundary extend vertically one inch below the 20-mil thick polyethylene liner and laterally one foot short of the outermost surface edges of the 20-mil thick polyethylene liner. Air dispersion compliance will be demonstrated at the outer thickness of the Posi-Shell® liner, described in the Covers section, below.

In accordance with 40 CFR 268.6(a)(1), Clean Harbors indicated that the following nine categories/groups of hazardous wastes and their underlying hazardous constituents (UHCs) found at 40 CFR 268.48 could be temporarily placed in the put piles in Landfill Cell 15 after treatment to meet LDR standards: (1) general metals (D001, D002, D004 through D011, K046, F006, F019, F039 and U051); (2) cyanide/sulfide with metals (D001 through D011, F006 through F012, F019, K052 and P106); (3) cyanide/sulfide (D001 through D011, F006 through F012, F019, P106 and U135); (4) high-chromium wastes (D001 through D011, F006 and F019); (5) high arsenic wastes (D004, D005, D006, D008, D009, D010, P011 and P012); (6) oxidizers with metals (D001, D002, D003, D005, D007, D008, D011 and K088); (7) acids with metals (D001, D002, D004 through D011, K061, K062, F006, U204 and U134); (8) bases with metals (D002 through D011, D028, K061, F006 through F008, F019, F035, P106, U144, U151, U188 and U210); and (9) waste certified by generators to meet all or some LDR treatment standards (referenced as CBPR by Clean Harbors; codes vary and include K052, F020 and U210).

Appropriate and adequate sampling and analysis of both incoming hazardous wastes and treated hazardous wastes are essential to precise waste characterization for accurate creation of treatment protocols or “recipes,” and ultimately, confirmation of treatment effectiveness/LDR compliance. These are discussed in Clean Harbors' Waste Analysis Plan (WAP), approved by ODEQ in February 2010, and included in the docket for this notice and available, at the time of this notice, on the ODEQ website at https://oklahoma.gov/deq/divisions/land-protection/waste-management/waste-management-facilities/clean-harbors-lone.html.

The following generalized summary of waste characterization (also referred to as a fingerprint analysis), waste treatment, and verification of effective treatment/LDR compliance is extracted from the Clean Harbors' WAP for incoming bulk loads of hazardous waste. Incoming bulk wastes undergo a fingerprint analysis that includes eight basic screening procedures (physical appearance, pH, specific gravity, reactive cyanides, reactive sulfides, water reactivity, ignitability, and halogen organic compound content) to provide a general waste characterization for appropriate treatment, storage, or disposal. Additional analyses are performed, as appropriate, to ensure adequate waste characterization. After characterization, bulk hazardous wastes are treated in stabilization tanks to reduce the hazardousness of the wastes, make them safter to dispose, and/or reduce the volume of the wastes. Waste treatment processes include stabilization, blending, and the LDR technology standards for chemical oxidation (CHOXD), neutralization (NEUTR), chromium or chemical reduction (CHRED), and deactivation (DEACT). If stabilization is performed, any combination of the following reagents may be used to prevent leaching: cement kiln dust, water, calcium polysulfide, lime, caustic, fly ash, portland cement, clay, ferrous sulfate, sodium hypochlorite, oxidizer soak, and acid.

Post-treatment, samples are collected directly from the stabilization tank and a paint filter test is performed to ensure that all free liquids have chemically reacted, and the mixture is suitable for disposal in the landfill. Treated batches are subsequently sampled and analyzed for LDR compliance pursuant to the WAP. The treated wastes are then moved to a put pile within a temporary staging area in Landfill Cell 15 while curing and awaiting LDR compliance confirmatory sampling. Section 4.2.2 of the WAP defines how sampling of the waste piles for LDR compliance must be performed.

40 CFR 268.6(b)(5) requires the petitioner to include an analysis to identify and quantify any aspects of the demonstration that contribute significantly to uncertainty. The analysis must include an evaluation of the consequences of predictable future events, including, but not limited to, earthquakes, floods, severe storm events, droughts, or other natural phenomena. The Agency accepts Clean Harbors' uncertainty analysis as presented in the petition located in the docket.

The bases for EPA's proposed conclusion that Clean Harbors demonstrated to a reasonable degree of certainty that no hazardous constituents will migrate from the put piles for as long as the wastes remain hazardous are discussed in this section. Although wastes are treated with the intent of meeting the RCRA LDR standards prior to being placed in put piles, the conditions established in this NMV are a safeguard to ensure that if a put pile does not meet LDR standards and must be retreated, hazardous constituents will not migrate beyond the boundary of the put pile. This NMV is conditioned upon the temporary nature of the put piles within Landfill Cell 15 and is intended for situations where the put piles are used as part of an overall strategy to confirm consistent and compliant treatment that meets the applicable LDR treatment standards.

Where reasonable, the Agency took into consideration existing landfill design and operating requirements (40 CFR 264.301) that include run-on and run-off controls to prevent the migration of hazardous constituents beyond the designated unit boundary. Additional information including monitoring data and discussions regarding the temporary nature of these put piles ( i.e., duration of storage), testing for verification of treatment effectiveness, retreatment protocols and engineered controls, as referenced in this section, is available in the petition or supplemental information in the RCRA regulatory docket for this document.

As required by 40 CFR 268.6(a)(2), Clean Harbors characterizes the subject wastes, post-treatment, to determine if LDR standards were met. Specifics on sampling protocols can be found in the WAP. Analytical data were provided in non-sequential order in tables A-2 (inorganic constituents) and A-3 (organic constituents) for January 2022 through October 2023 for each category of hazardous waste identified in the petition in the docket for today's notice. Analyses were performed for compliance with the 40 CFR 268.48 Universal Treatment Standards (UTS) for all UHCs, including antimony (Sb), arsenic (As), barium (Ba), beryllium (Be), cadmium (Cd), chromium (Cr), lead (Pb), nickel (Ni), selenium (Se), silver (Ag), thallium (Tl), vanadium (V), zinc (Zn), mercury (Hg), sulfides (S), and cyanides (CN).

Clean Harbors provided analytical data indicating that approximately 98-99% of all wastes treated met the LDR standards following the first treatment procedure, without the need for additional treatment. They reported that in 2022, of the 770 put piles treated and analyzed, 762 met post-treatment LDR standards, resulting in a net “pass rate” of 98.9%. In 2023, 519 put piles were treated and analyzed and 509 met post-treatment LDR standards (98.1%).

The sampling methodology used by Clean Harbors to verify compliance with LDR standards for the wastes post-treatment was deemed adequate by ODEQ through the issuance of the existing RCRA Part B permit, including the WAP. Clean Harbors' sampling strategy for confirmation of LDR compliance is discussed in Appendix A of Clean Harbors' September 10, 2024, Response to Request for Additional Information included in the docket. Clean Harbors reported in the petition that the current “pass rate” for temporarily staged put piles exceeds 98%, demonstrating that these put piles do not routinely receive treated wastes that do not meet applicable LDR standards, thereby supporting the “temporary” nature of storage for each waste category. The Agency herein relies on ODEQ's approval of the LDR confirmatory sampling methodology in the WAP and Clean Harbors' presentation of historical analytical data to conclude that Clean Harbors has provided sufficient waste characterization information in its petition to support the conclusion of treatment effectiveness.

When the LDR standard for a put pile is confirmed to “pass,” it is moved to the working face of Landfill Cell 15 for final disposal generally within 45 days  7 of initial placement of the put pile in the temporary storage area. LDR verification sampling must conform to the WAP, and a generalized procedure for this verification process is discussed in Appendix A of Clean Harbors' September 10, 2024, Response to Request for Additional Information included in the docket.

The end result of a multi-stage process for sampling and retreating is that a few put piles may remain temporarily staged even after an LDR “fail” if the analytical data indicate additional curing time is appropriate. Clean Harbors requested up to twelve (12) months duration for temporary staging of a put pile to account for the retreatment and curing process; however, in Clean Harbors' August 4, 2025 Response to EPA's May 2025 Review Comments on the Response to Request for Additional Information located in the docket, the state agreed that exceedances of six (6) months of temporary staging have not occurred and are unlikely and as such agreed that six (6) months are a sufficient duration for temporary staging of put piles. The Agency concludes that Clean Harbors has provided sufficient analytical data to justify a six (6)-month duration for storage of a put pile from the time the pile is first staged until final disposal in the working face of the Landfill Cell 15. If an issue arises where greater than 180 days temporary staging of a put pile is necessary, ODEQ may issue such an extension, if warranted.

This section describes existing and proposed put pile liners, put pile covers, and run-off/run-on controls. Man-made barriers or engineered systems ( e.g., liner systems) alone generally will not meet the “no migration” standard. In the case of put piles, however, the containment of hazardous waste within engineered barriers is considered in making the “no migration” demonstration for waste awaiting the results of verification sampling after treatment, provided that wastes are to be removed after a reasonably short storage period that is conservatively projected to be well before the failure of the engineered barrier system. 8 Because Clean Harbors' temporary storage for each put pile must not exceed six (6) months, and the lifespan of the engineered barriers described below extends into multiple decades with appropriate operational controls to prevent rips or tears, excluding the Posi-Shell® system, which has an observed lifespan of up to 2 (two) years, the Agency concurs that Clean Harbors' use of the barriers described below will prevent migration of hazardous constituents via infiltration, lateral migration ( e.g., erosion, surface water interaction or movement of infiltration), and air dispersion/particulate loss.

The put piles will be encapsulated (liner below and Posi-Shell® atop) by the unit-specific engineered barriers discussed below to prevent migration of hazardous constituents beyond the put pile boundary. These unit-specific barriers are distinct from the existing landfill controls for Landfill Cell 15, such as run-on and run-off controls, that were considered in the overall prevention of migration of hazardous constituents.

A liner of at least 20-mil thickness polyethylene geomembrane must be used as a barrier to vertical and lateral migration for the put piles. The liner beneath the pile will provide a barrier for vertical migration. The Agency agrees that a minimum of 20-mil thickness barrier is sufficient for this temporary application that will last six (6) months or less. Because the layout of the put piles is accommodated within the standard width of a prefabricated geomembrane roll, the liner must be one solid piece without the need for welding of seams. The lack of seams lends to additional assurance that hazardous constituents will not migrate through a broken seam. The Agency concludes that a liner of at least 20-mil thickness, in conjunction with the inspection program described in the Compliance Monitoring Program section, is appropriate for use in this temporary disposal scenario; however, there must always be at least 12 inches of the liner visible on all sides of the put pile to prevent potential horizontal migration of the waste from the edge of the liner.

Clean Harbors will use a Posi-Shell® cover to act as a rain and wind barrier for put piles, to ensure no migration of hazardous constituents from the put piles occurs via lateral migration or air pathways. Posi-Shell® is a spray-applied mortar applied as a coating to the surface of the put piles, with a minimum cover thickness of 3/8 -inch. Because Posi-Shell® is a mortar, curing is necessary to allow it to harden. Curing typically occurs within 12-24 hours in dry weather, forming a relatively impermeable thin layer of durable, hardened mortar. However, if moderate to heavy rainfall occurs unexpectedly or is imminent, sustained freezing temperatures are expected for more than one day, or the temperature falls below 30 °F, the Posi-Shell® will not harden sufficiently. During these times of inclement weather, Clean Harbors must temporarily cover the put piles with polyethylene sheeting of at least 20-mil thickness, anchored with sandbags around its edges, until the adverse weather conditions abate, and the Posi-Shell® coating can be applied. Within twenty-four (24) hours of weather conditions amenable to Posi-Shell® application, Clean Harbors must apply the coating.

To ensure Posi-Shell® is appropriate for put pile covering, the Agency reviewed several case studies provided by Clean Harbors where Posi-Shell® was demonstrated to prevent erosion, air dispersion, infiltration of rainwater, and overall migration of wastes. Table 2 in the petition located in the docket summarizes these case studies.

The Agency concludes that Posi-Shell®, or a minimum 20-mil polyethylene sheeting cover under the limited inclement weather circumstances described above, will serve as an appropriate barrier to protect the put pile from wind dispersion, erosion, and rainwater infiltration.

Before placing the put piles in the temporary storage area of Landfill Cell 15, Clean Harbors must grade the temporary storage area where put piles will be located. The grading must be relatively flat but with a slight positive grade to preclude ponding of water on the polyethylene liners. Clean Harbors must construct and/or maintain a diversion berm of sufficient height/width to direct run-on away from the put pile upgradient of the staging area. As Landfill Cell 15 is filled, if the waste grade changes adjacent to the put pile temporary storage area, additional diversion berms must be added, if necessary to divert stormwater run-on and run-off to isolate the staging area on the working face of Landfill Cell 15. To control run-off, in addition to the Posi-shell® coating, Clean Harbors will include, at a minimum, ditches around the inside perimeter of Landfill Cell 15 embankments and will remove ponded stormwater that accumulates on top of the put piles. In combination with General Surrounding Area Engineered Controls described below, these controls must be constructed and operated to contain at least the water volume of a 24-hour, 25-year storm event or greater if required by the permit.

All put piles are temporarily stored in a designated area of Landfill Cell 15 until LDR compliance has been confirmed. The put piles are then moved to the working face of Landfill Cell 15. Landfill Cell 15's existing liner system bolsters prevention of vertical or horizontal migration of hazardous constituents. The liner system consists of: (1) a bottom 60-mil textured high density polyethylene (HDPE) liner atop a 3-foot-thick compacted clay layer with a hydraulic conductivity of less than 1.7 x 10 −7 cm/sec; (2) a double-sided geocomposite leak detection system drainage layer; (3) a top composite liner consisting of geosynthetic clay between two 60-mil textured HDPE liners; (4) a double-sided geocomposite leak collection system; and (5) a 2-foot thick cover layer.

Clean Harbors has a groundwater monitoring well network at the facility that currently includes five (5) upgradient monitoring wells and 39 downgradient monitoring wells. In particular, Landfill Cell 15 has five (5) downgradient monitoring wells in its proximity. The wells are monitored semi-annually under the Groundwater Detection Monitoring program as required by the facility's RCRA Part B permit for the analytes set forth therein. The Groundwater Detection Monitoring program is an attachment to the Part B permit and is located in the docket. Clean Harbors Lone Mountain has two relevant RCRA permits—an Operations Permit for current hazardous waste treatment and disposal activities and a Post-Closure Permit for landfill cell(s) undergoing closure. In the last 10-year monitoring period, no hazardous waste constituents have been reported above their respective health-based levels in groundwater wells that monitor the operating portions of the landfill where the put piles will be staged. The Permit Renewal Application is currently undergoing technical review and pending completion of ongoing Class 3 Tier III Permit Modifications for container management expansion and proposed Landfill Cell 16.

40 CFR 268.6(a)(5) requires that sufficient information exists to assure the Administrator that the owner/operator of an NMV unit will comply with other applicable Federal, State, and local laws. Clean Harbors is in compliance with their state-issued permits, and the Agency concludes that sufficient assurances exist through the RCRA, air, and water permits that govern Clean Harbors' treatment, storage, and disposal operations.

40 CFR 268.6(a)(4) requires a petition to include a monitoring plan to verify continued compliance with the conditions of the NMV. The monitoring plan must be designed to detect migration “at the earliest practicable time.” As stated in the 2023 Guidance, the plan must include frequent visual monitoring and prompt responses to possible releases, and generally good housekeeping practices that ensure the treated waste remains in the pile during the temporary storage period. The monitoring plan must also include a discussion of the sampling and analysis of the treated waste that determines when the put pile will be moved to the working face of the landfill for final disposal.

Clean Harbors must maintain at the facility a put pile monitoring plan that includes, at a minimum, components 1-16 below, many of which were included by Clean Harbors in the petition and the Agency adopts as proposed.

Deficiencies identified during inspection must be remedied/repaired to ensure no migration of hazardous constituents occurs. Deficiencies may include but are not limited to cracking, breakdown, or insufficient application of the Posi-Shell cover; gaps, tears, or holes in plastic sheeting utilized for the management of the unit; presence of stormwater run-on flow and/or ponded water; visibly exposed waste; and poor overall pile condition. Deficiencies must be remedied within one (1) week of discovery, and remedies must be recorded in the facility's operating record.

Deficiencies described by this section must be remedied regardless of whether Clean Harbors determines that a migration of hazardous constituents has occurred or may have occurred if LDR compliance verification of the waste in the unit is not yet available. If Clean Harbors determines that there has been a migration of hazardous constituents from any of the put piles or is unable to remedy any deficiency within one (1) week of discovery, Clean Harbors must immediately suspend receipt of waste at the affected put pile and notify the Region 6 Administrator, in writing, within ten (10) days of the determination that a release has occurred or that a deficiency was unable to be remedied within one (1) week.

1. Review and track LDR standard “pass rates” for put piles to ensure that the put piles are only being “temporarily stored,” as described in the February 2023 guidance. If the failure rate of the initial verification test for treated put piles exceeds 5% in a calendar month, Clean Harbors must conduct a root cause analysis and adjust the treatment protocol for the affected category of waste.

2. Inspection of the temporary staging area for put piles must be performed before installation of the 20-mil polyethylene liner. The underlying area must be free of large, sharp, or rigid objects that may damage the liner.

3. Observing that the liner is not displaced or damaged during placement of the put piles on the liner to confirm the integrity of the liner beneath a put pile. A damaged liner must be replaced with a new liner.

4. Daily inspection of covered put piles to verify integrity of the liner, cover, and overall pile condition. Inspectors must, at a minimum, check for: (1) signs of stormwater run-on flow that has or is migrating towards a put pile or other signs of the potential for put pile erosion, undermining, or washout of the waste encapsulation barriers; (2) damage from strong winds, heavy rain, or other extreme weather events ( e.g., in particular, causing holes, uplift, or other breaches in the Posi-Shell® cover) within 24 hours of such an event; (3) visible exposed waste; (4) releases of waste (washout/undermining, displacement/movement of pile, such as shifting or slumping, windblown waste particles, etc.); (5) other indications of potential for migration or actual observed migration of hazardous constituents from the pile ( e.g., liquid seeps on the put pile slopes or emanating from its base); and (6) cracks in the Posi-Shell®.

5. Appropriate Posi-Shell® application. Adhering to inclement weather application prohibitions as recommended by the manufacturer. If a put pile is unable to be immediately covered with a Posi-Shell® ( e.g., due to moderate to heavy rainfall), the put pile must be temporarily covered with polyethylene liner that is at least 20-mil thick and anchored with sandbags around its edges until the adverse weather conditions abate and the Posi-Shell® coating can then be applied. Posi-Shell® should not be applied when sustained freezing temperatures are expected for more than one day or during temperatures below 30 °F.

6. Verify that 100% coverage of Posi-Shell® is achieved over the entire put pile (no bare or thin spots).

7. Confirm that the minimum 3/8 -in thickness of Posi-Shell® is achieved.

8. Confirm that the Posi-Shell® cover is sufficiently set (hardened) before a moderate to heavy rainfall event.

9. Promptly re-apply Posi-Shell® cover if any deficiencies are identified during application, including but not limited to lack of coverage, thickness, or hardening.

10. Check for loss of 100% coverage of Posi-Shell® or other signs of cover degradation (imminent potential for loss of barrier effectiveness or thickness).

11. Remove ponded water on the landfill surface that could affect the put piles.

12. Modify, as needed, run-on controls to continue to divert surface water around the put pile staging area.

13. Maintain or alter, as appropriate, landfill grading to prevent put pile run-on.

14. Isolate the nine waste categories/groups of put piles from each other to prevent potential commingling.

15. Maintain landfill equipment.

16. Submit a duplicate copy of the RCRA annual report required by 40 CFR 268.6(c)(3). This will include all LDR verification sampling, resampling, and retreatment to EPA Region 6 at: Golam Mustafa, Land, Chemicals and Redevelopment Division, EPA Region 6, 1201 Elm Street, Dallas, Texas 75270, Mail Code: R6LCR-RP.

The Agency proposes that Clean Harbors has successfully demonstrated, to a reasonable degree of certainty, that there will be no migration of hazardous constituents beyond the unit boundary for treated hazardous wastes temporarily stored in put piles within their permitted Subtitle C hazardous waste Landfill Cell 15 while awaiting LDR compliance verification.

Therefore, EPA proposes to grant, with the conditions stated herein, no-migration variances for the nine categories/groups of wastes designated herein, containing up to 100 put piles at any one time at Clean Harbors' Lone Mountain facility.

The FSA (16 U.S.C. 1161-1169b) requires the Secretary of Commerce (Secretary) to administer Federal lands of the Pribilof Islands and ensure that activities on such Federal lands are consistent with the purposes of conserving, managing, and protecting northern fur seals, Callorhinus ursinus, and other wildlife. The Secretary is authorized to promulgate regulations necessary for the administration of the Pribilof Islands (16 U.S.C. 1169), which NMFS, acting pursuant to delegated authority, has promulgated at 50 CFR part 216, subpart G-Pribilof Islands Administration. NMFS manages northern fur seals consistent with both the FSA and MMPA.

The current text of 50 CFR 216.82, “Dogs prohibited,” states: “ In order to prevent molestation of fur seal herds, the landing of any dogs at Pribilof Islands is prohibited.” NMFS has interpreted the molestation of the fur seal herds to include physical disturbance and disease transmission by a dog or its feces.

An invasive rat was reported on St. Paul Island (of the Pribilof Islands) in June 2024. The introduction of an invasive rat (or invasive rodent) could have significant ecological consequences for the indigenous species that live and breed on the islands, including northern fur seals, which have been designated as depleted under the MMPA (53 FR 17888, May 18, 1988).

As such, the Aleut Community of St. Paul Island (ACSPI) and the U.S. Fish and Wildlife Service (USFWS) requested that NMFS consider allowing a rat detection dog to land on St. Paul Island for the purpose of confirming the presence of and locating any rats. NMFS has historically supported Tribal, local, and Federal agency efforts to prevent the introduction of invasive rodents on the Pribilof Islands. Invasive rodents include brown rats or Norway rats, black rats or roof rats, mice, and other less common species. Mice do not pose the same wildlife risk as rats, but have been observed killing seabird chicks, and also have a human health and zoonotic disease risk. Black rats generally avoid water, but have been observed on one of the Aleutian Islands.

NMFS has an MMPA section 119 (16 U.S.C. 1388) cooperative agreement (also referred to herein as a co-management agreement) with the ACSPI to share responsibility for the conservation of northern fur seals (and other marine mammal species) and the management of subsistence use (the agreement can be found at https://www.fisheries.noaa.gov/alaska/marine-mammal-protection/co-management-marine-mammals-alaska#tribal-government-of-st-paul ). The co-management agreement between NMFS and ACSPI includes shared responsibility for management decisions regarding northern fur seal conservation and subsistence use through a co-management council, which is comprised of equal membership between NMFS and ACSPI. The co-management council process includes regular meetings.

The City of St. George, City of Saint Paul (16.10), ACSPI Tribal Code (7.05), and the State of Alaska (5 AAC 92.141) have promulgated regulations preventing rodents. The communities primarily carry the significant burden of preventing rodent invasions on St. Paul and St. George, including implementing increased biosecurity measures when the threat of invasive rodents occurs.

ACSPI has assumed the burden of rodent prevention on St. Paul Island since the late 1990s, after initiation of the program by the USFWS in 1993. Today, the prevention efforts include 75 specialized rodenticide and snap trap stations positioned around the harbor, fish processing plant, warehouses, and docks where rodents might escape from an arriving vessel. From 1995 through 1996, nine rats were found on St. Paul Island and all were dead. In 2018, the first live rat was detected in the fish processing plant and, after 10 months of active trapping and multiple detections, the rat was confirmed dead immediately outside the plant. No subsequent sightings occurred over the next 12 months, and no rats were sighted on St. Paul Island until the June 2024 sighting. St. George Island has never had a rat detection, suggesting that its rat prevention stations established around the harbor and landfill have been effective. St. George did respond to an invasive mouse event within the last decade, and St. Paul has had intermittent mouse detections over the past decade. Dutch Harbor, which has rats, is the closest port to the Pribilof Islands and is often the origin for local and regional cargo vessels and barges. Fishing vessels come to St. Paul and St. George for fuel, resupply, and emergencies, many of which originate from Dutch Harbor. The risk of rodent introductions to the Pribilof Islands is also growing primarily due to increased vessel traffic in the sub-arctic and Arctic for tourism. Vessels are the primary source of introductions of rats to islands worldwide (Drake and Hunt 2008).

In June 2024, the ACSPI and USFWS Alaska Maritime National Wildlife Refuge (USFWS AMNWR) contacted NMFS regarding the report of an invasive rat on St. Paul Island. NMFS staff participated in regular task force meetings between ACSPI, USFWS AMNWR, and U.S. Department of Agriculture to discuss the invasive rat situation. Multiple methods of detection have been implemented around the initial observation site on St. Paul Island, including motion sensing trail cameras, chew blocks, bait stations, and snap traps. No additional detections have been observed, but given the abundance of wild food for rats during the summer and fall, the task force expects that these methods may not yield additional detections of the rat if it is on island. After other methods of detection were unsuccessful and after numerous meetings, the task force determined that a dog specially trained in rat detection was the most likely method to detect any rats on St. Paul Island.

This rule would provide an exception to the current regulatory prohibition by allowing the Regional Administrator to authorize the use of rodent detection dogs to respond to any incidents that could otherwise lead to the establishment of a rodent population on any of the Pribilof Islands. NMFS believes the ecological benefits of successfully detecting and eradicating any invasive rodents on the Pribilof Islands outweigh the manageable risks of molestation of the fur seal herd and disease transmission from dogs or their feces. The potential environmental consequences of dogs on the Pribilof Islands include the exposure of indigenous wildlife to canine diseases transmitted through feces or urine and molestation of indigenous wildlife by an uncontrolled dog. After careful review, NMFS has preliminarily determined (pending consideration of public comments) that the landing of certified and trained rodent detection dogs, subject to certain conditions that would be imposed by NMFS, would not create any significant environmental risk to fur seals or other wildlife populations on the Pribilof Islands. These conditions would include: (1) the only dogs that could be authorized on the Pribilof Islands would be rodent detection dogs certified to have been trained for that purpose; (2) the certified rodent detection dog(s) will undergo any quarantine period required by the State of Alaska; (3) any such dog must have current immunizations and health certifications required by the State of Alaska; (4) any such dog must be under constant control ( i.e., voice, electronic, or leash) by a professional dog handler; and (5) the handler will be responsible for feces management, including collecting all feces, securing all feces from exposure to indigenous wildlife, and disposing of all feces by incineration on the island from which it is collected.

There are certified and trained rodent detection dogs available through the U.S. Department of Agriculture and several private organizations.

The purpose of the current regulation at 50 CFR 216.82 is to prevent molestation of fur seals; NMFS has interpreted “molestation” as including physical disturbance and disease transmission by the dog or its feces. The current regulation allows no exceptions to the prohibition on the landing of dogs on the Pribilof Islands. NMFS is proposing to revise 50 CFR 216.82 to create a limited exception to allow landowners to request the Regional Administrator to authorize the landing of certified and trained rodent detection dogs for up to 180 days for the sole purpose of detecting and eradicating invasive rodents. The regulation would continue to prohibit the landing of dogs on the Pribilof Islands for any other purpose, including as household pets.

There are several potential rodent detection methods, including trail cameras, chew blocks, and baited snap traps. These methods, for example, have been deployed and monitored on St. Paul Island since the first sighting was reported in June 2024 in an attempt to confirm the initial rat sighting. No additional sightings have been made using these methods. These methods will continue to be used by ACSPI and USFWS to detect or capture the rat; however, they are known to be less effective than a trained rodent detection dog.

Since a rodent detection dog is much more effective than other methods, NMFS believes the ecological benefits of detecting and eradicating any invasive rodents through this rule outweigh the manageable risks of molestation of the fur seal herd and disease transmission from dogs or their feces. The dog(s) would be under constant control, so there is very little risk of molestation of the fur seal herd, or other wildlife, as contemplated in the original rulemaking (34 FR 13371, August 19, 1969). In addition, to minimize disease transmission, any dogs must have proof of current immunizations and health certifications required by the State of Alaska, and the handler would be responsible for collecting and disposing of all feces. Finally, the exception is limited to a total of 180 days per incident and is triggered when a dog or dogs are necessary for rodent detection on an island because of an incident that may potentially lead to the establishment of a rodent population on any of the Pribilof Islands. The 180-day limit applies based on the incident triggering the need for a rodent detection dog on that specific island. If two islands have rodent incidents, the dogs deployed to each island will be subject to separate 180-day limits. The 180-day period starts on the date of the dog's arrival on the island and is calculated by the total number of days the dog is present on that island. If for any reason the dog needs to depart prior to the 180-day limit, only those days that a dog was present on that island count toward the limit, and certified and trained rodent detection dog(s) would be allowed to return to the island for the remainder of the 180-day period if necessary for rodent detection. Each 180-day period will apply to the island and circumstances for which it was authorized. If new circumstances emerge after a 180-day period expires, the Regional Administrator would consider whether to authorize a new 180-day period based on the evidence available, including evidence of the presence of any rodents.

This rulemaking is meant to address the need of preventing the establishment of an invasive rodent population and improving the ability to detect invasive rodents on the Pribilof Islands. A single pregnant female rat is capable of breeding with her own male offspring with no negative genetic consequences, resulting in the creation of a viable new population (Costa et al., 2016). Rodents may predate on subsistence resources, such as seabirds, their eggs, and chicks (Angel et al., 2009). Cliff and burrow nesting seabirds on the islands use habitats that limit exposure to arctic fox predation, but those same habitats are particularly vulnerable to rats as cliffs and burrows do not limit their access to nests. In addition, rodents are common carriers of many diseases transmissible to humans, fur seals, and other wildlife, including Leptospirosis (Richardson et al., 2017).

While alternative methods have been deployed to try to locate the rat or signs of its presence without importing a rat detection dog to St. Paul Island, those methods to date have not located the rat. ACSPI and USFWS will continue to deploy and monitor for the presence and signs of a rat in 2025 while NMFS pursues this rulemaking to create a regulatory exception that would apply to all of the Pribilof Islands. While this rulemaking was initiated by the local observation on St. Paul Island in 2024, the risk of invasive rodents being introduced to any of the Pribilof Islands has grown in the past decade due largely to an increase in vessel and cruise ship traffic. As such, this rule would allow a landowner to respond to an incident involving an invasive rodent by requesting NMFS's authorization for an exception to land a rodent detection dog. The exception would remain in effect for up to 180 days from the date of the dog's first landing on the island with the rodent incident, allowing for the logistical challenges involved in arranging for landing an invasive rodent detection dog on the Pribilof Islands, and having adequate time to detect rodents if present on the Pribilof Islands.

This rulemaking is not likely to have adverse economic impacts on small businesses or the economies of St. Paul or St. George Islands. NMFS intends for this action to apply to the Pribilof Islands, not just St. Paul and St. George, because the risk of shipwrecks introducing rodents is also possible on the uninhabited islands. Not taking this action and allowing the invasive rat to persist or allowing an invasive rodent to otherwise become established on St. Paul could result in negative environmental impacts, which could in turn impact the wildlife-viewing tourist economy managed by the Tanadgusix (TDX) Corporation, the local Alaska Native Claims Settlement Act village corporation for St. Paul. There is no similar tourism economy on St. George Island, only the incidental revenue from hotel occupancy operated by the Tanaq Corporation, the local Alaska Native Claims Settlement Act village corporation for St. George. The communities of St. Paul and St. George also rely on marine and terrestrial species breeding on the Pribilof Islands for subsistence purposes and food security that could be affected by an invasive rodent introduction. The TDX Corporation and Tanaq Corporation may be affected as the dog may need to search on their lands. The landowner who requests authorization to land a dog or dogs on island would be responsible for obtaining permission from other landowners before any search occurs on their properties.

In this proposed rule, NMFS would revise the regulations at 50 CFR 216.82 to allow an exception, lasting up to 180 total days a dog (or dogs) is on island, to the regulatory prohibition against landing dogs on the Pribilof Islands in order to land certified and trained rodent detection dogs on the Pribilof Islands to support Tribal, local, and Federal agency efforts to detect, locate, and eradicate any invasive rodents on the Pribilof Islands. This exception would allow certified and trained rodent detection dogs on the Pribilof Islands. This regulatory change would respond to the June 2024 report of an invasive rat on St. Paul Island but also allows flexibility for NMFS to authorize landowners to land certified and trained rodent detection dogs on any of the Pribilof Islands to respond to any future incidents, such as a shipwreck or observations of invasive rodents on the Pribilof Islands.

Rather than proposing a one-time exemption for this current incident on St. Paul Island, NMFS proposes to create an exception to the regulatory prohibition of dogs to last up to 180 days in order to land certified and trained rodent detection dogs on any of the Pribilof Islands as needed to respond to and prevent the introduction of invasive rodents. This would allow a timely response to any incident that may potentially lead to the establishment of a rodent population on any of the Pribilof Islands. The exception would allow for a landowner to request the NMFS Alaska Regional Administrator to authorize the landing of certified and trained rodent detection dogs on any of the Pribilof Islands for 180 days to search for, detect, and eradicate rodents. The implementation of the exception will balance the need to reduce exposure of seasonal wildlife, the availability of human and wild food sources, refuge from the weather, and the urgency of the incident being considered in terms of the likelihood of rodents establishing a population on the Pribilof Islands.

The landowners would be responsible for providing the evidence of the rodent sighting, certification the dog(s) have been trained for rodent detection, immunization and health certification records for the dog(s) to be used to detect rodents, the expected duration and location of the search, any permissions needed for searches on lands owned by others, number of dogs expected to be used, and the feces management plan to NMFS. NMFS will review the information provided and the Regional Administrator may authorize the exception in writing to the landowner within 10 working days of receipt of the completed information package so that, if the request is approved, the certified and trained dog(s) could be secured and transported to the island in a timely manner for rodent detection. When authorizing the use of rodent detection dog(s), the Regional Administrator may impose conditions on their use on the specified Pribilof Island to address and mitigate the potential risks of molestation of the fur seal herd and disease transmission from dogs or their feces. Such conditions could include requirements for the control and handling of the dogs and dog feces by a professional dog handler while the dogs are on the Pribilof Island, compliance with any required quarantine period, and direction for the Pribilof Island landowner to communicate to NMFS when the dog(s) arrive and depart the Island, where the searches occurred, when the searches were completed, and whether any invasive rodents were detected. This action does not create any other exceptions to the existing prohibition on landing dogs on the Pribilof Islands, including household pets.

The Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with the FSA (16 U.S.C. 1161-1169b), the MMPA, and other applicable laws, subject to further consideration after public comment. In the development of this proposed rule, NMFS worked with the ACSPI pursuant to the NMFS and ACSPI's co-management agreement under the MMPA (16 U.S.C. 1388(a)).

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

This proposed rule is not an Executive Order 14192 regulatory action because this rule is not significant under Executive Order 12866.

As noted in the preamble, the ACSPI and USFWS have requested that NMFS implement this rule to revise the FSA regulations to authorize rodent detection dogs to land on the Pribilof Islands. NMFS has worked collaboratively and had frequent communication with the ACSPI as part of a multi-agency invasive rodent task force and pursuant to the NMFS and ACSPI's co-management agreement under the MMPA. NMFS also contacted the local Alaska Native Corporation on St. Paul Island (Tanadgusix Corporation, TDX) about revising the regulations regarding the landing of rodent detection dogs on St. Paul Island. Neither the Alaska Native Tribe on St. Paul Island (ACSPI) nor the TDX Corporation expressed opposition to this rule. Similarly, NMFS contacted the Traditional Council of St. George Island, and their local Native Corporation (Tanaq Corporation) about revising the regulations regarding the landing of certified and trained rodent detection dogs and determined there was no opposition. Given the level of Tribal engagement in the course of responding to this issue and developing this proposed rule, Tribal consultation was not held on the proposed rule.

A Tribal summary impact statement under section (5)(b)(2)(B) and section (5)(c)(2) of E.O. 13175 was not required for this proposed rule because this action does not impose substantial direct compliance costs on Alaska Native Tribal Governments and this action does not preempt Tribal law. A Tribal summary impact statement is not required and has not been prepared.

An RIR was prepared to assess costs and benefits of available regulatory alternatives. A copy of this draft analysis is available from NMFS (see ADDRESSES ).

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.

The current regulation prohibits landing of all dogs on the Pribilof Islands. This proposed rule would create a limited exception for the NMFS Alaska Regional Administrator to authorize the landing of certified and trained rodent detection dogs on the Pribilof Islands for 180 days subject to certain conditions that would be imposed by the Regional Administrator to prevent the molestation of fur seals and other wildlife by such dogs. The statutory authority and the need for this action, as well as expected effects, are described in the preamble above. NMFS also prepared a Regulatory Impact Review that analyzed alternatives, including the status quo. The establishment of invasive rodents on the Pribilof Islands could result in negative environmental and ecological impacts that could in turn impact the wildlife-viewing tourist economy managed by the TDX Corporation and Tanaq Corporation and the communities of St. Paul and St. George that rely on marine and terrestrial species breeding on the Pribilof Islands for subsistence purposes and food security.

Implementing this proposed rule would help prevent the establishment of invasive rodents on the Pribilof Islands, which in turn could provide a means to protect the tourist economy, subsistence resources that contribute to food security and the mixed cash-subsistence economy, and public health costs from rodent-borne diseases. This exception proposed in this action would create the flexibility and opportunity for landowners on the Pribilof Islands to hire and utilize the services of a certified and trained rodent detection dog handler to prevent invasive rodents from establishing a population on the Pribilof Islands. Entities that would be directly regulated by this proposed rule are limited to any Pribilof Islands landowner who requests invasive rodent detection services and the service provider. Landowners on the Pribilof Islands include the Federal government, municipal governments of St. Paul and St. George, and the TDX Corporation and Tanaq Corporation. In addition to private companies, other Federal agencies, such as the U.S. Department of Agriculture, may have rodent detection dogs available.

The use of certified and trained rodent detection dogs will help to successfully locate and remove any invasive rodents from the Pribilof Islands, which will protect sensitive wildlife, subsistence resources necessary to maintain food security, wildlife and communities that may be exposed to invasive rodent-borne diseases, and the small wildlife tourism economy on the Pribilof Islands. Therefore, it is expected that the proposed action could have a beneficial economic effect on any small entities by creating the opportunity to detect invasive rodents on the Pribilof Islands with certified and trained dogs. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995. NOAA is not soliciting the information from the public and therefore is not conducting a collection of information. NOAA will respond to a request from an individual landowner on the Pribilof Islands for assistance in obtaining an exception to use a certified and trained rodent detection dog on the Pribilof Islands.

For the reasons set out in the preamble, 50 CFR part 216 is amended as follows: