The Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq. ) (CPIA), which implements the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)) (the Convention), allows for the conclusion of an agreement between the United States and another party to the Convention to impose import restrictions on eligible archaeological and ethnological material. Under the CPIA and the applicable U.S. Customs and Border Protection (CBP) regulations, found in § 12.104 of title 19 of the Code of Federal Regulations (19 CFR 12.104), the restrictions are effective for no more than five years beginning on the date on which an agreement enters into force with respect to the United States (19 U.S.C. 2602(b)). This period may be extended for additional periods, each extension not to exceed five years, if it is determined that the factors justifying the initial agreement still pertain and no cause for suspension of the agreement exists (19 U.S.C. 2602(e); 19 CFR 12.104g(a)).

On January 15, 2021, the United States and the Government of the Republic of Costa Rica (Costa Rica) entered into a Memorandum of Understanding entitled “Memorandum of Understanding between the Government of the United States and the Government of the Republic of Costa Rica Concerning the Imposition of Import Restrictions on Categories of Archaeological Material of Costa Rica” (the MOU). The MOU entered into force upon signature on January 15, 2021, and reflects an agreement to impose import restrictions on certain categories of archaeological material representing Costa Rica's cultural heritage ranging in date from approximately 12,000 B.C. to A.D. 1550. On April 1, 2021, CBP published a final rule (CBP Dec. 21-06) in the Federal Register (86 FR 17055), which amended 19 CFR 12.104g(a) to reflect the imposition of these restrictions, including a list designating the types of archaeological material covered by the restrictions.

On April 22, 2025, the United States Department of State proposed in the Federal Register (90 FR 16912) to extend the MOU. On August 7, 2025, after considering the views and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State, made the necessary determinations to extend the MOU for an additional five years. Pursuant to an exchange of diplomatic notes, the United States and Costa Rica have agreed to extend the MOU for an additional five-year period, through January 15, 2031.

Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect the extension of the import restrictions. The restrictions on the importation of archaeological material from Costa Rica will continue in effect through January 15, 2031. Importation of such material from Costa Rica continues to be restricted through that date unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

The Designated List of restricted material from Costa Rica covered by these import restrictions is set forth in CBP Dec. 21-06. The Designated List and additional information may also be found at the following website address: https://www.state.gov/current-agreements-and-import-restrictions by selecting the materials for “Costa Rica.”

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure under 5 U.S.C. 553(a)(1). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 because it pertains to a foreign affairs function of the United States, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

In accordance with Treasury Order 100-20, the Secretary of the Treasury delegated to the Secretary of Homeland Security the authority related to the customs revenue functions vested in the Secretary of the Treasury as set forth in 6 U.S.C. 212 and 215, subject to certain exceptions. This regulation is being issued in accordance with Department of Homeland Security Delegation 07010.3, Revision 03.2, which delegates to the Commissioner of CBP the authority to prescribe and approve regulations related to cultural property import restrictions.

Rodney S. Scott, Commissioner, having reviewed and approved this document, has delegated the authority to electronically sign this document to the Director of the Regulations and Disclosure Law Division of CBP, for purposes of publication in the Federal Register .

For the reasons set forth above, part 12 of title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

The Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq. ) (CPIA), which implements the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)) (the Convention), allows for the conclusion of an agreement between the United States and another party to the Convention to impose import restrictions on eligible archaeological and ethnological material. The Secretary of the Treasury, or the Secretary's delegate, is authorized to, by regulation, promulgate and, when appropriate, revise the list of designated archaeological and/or ethnological materials covered by an agreement between State Parties to the Convention (19 U.S.C. 2604). Under the CPIA and the applicable U.S. Customs and Border Protection (CBP) regulations, found in § 12.104 of title 19 of the Code of Federal Regulations (19 CFR 12.104), the restrictions are effective for no more than five years, beginning on the date on which an agreement enters into force with respect to the United States (19 U.S.C. 2602(b)). This period may be extended for additional periods, each extension not to exceed five years, if it is determined that the factors justifying the initial agreement still pertain and no cause for suspension of the agreement exists (19 U.S.C. 2602(e); 19 CFR 12.104g(a)).

On January 14, 2021, the United States and the Kingdom of Morocco (Morocco) entered into a Memorandum of Understanding entitled, “Memorandum of Understanding between the Government of the United States of America and the Government of the Kingdom of Morocco Concerning the Imposition of Import Restrictions on Categories of Archaeological and Ethnological Material of Morocco” (the MOU). The MOU entered into force upon signature on January 14, 2021, and reflects an agreement to impose import restrictions on certain categories of archaeological material ranging in date from approximately 1 million B.C. to A.D. 1750, as well as certain categories of ethnological material from the Saadian and Alaouite dynasties ranging in date from approximately A.D. 1549 to 1912. On January 22, 2021, CBP published a final rule (CBP Dec. 21-02) in the Federal Register (86 FR 6561), which amended 19 CFR 12.104g(a) to reflect the imposition of these restrictions and included a list designating the types of archaeological and ethnological material covered by the restrictions.

On December 30, 2024, the United States Department of State proposed in the Federal Register (89 FR 106724) to extend the MOU. On August 7, 2025, after considering the views and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State, made the necessary determinations to extend the MOU for an additional five years. Pursuant to an exchange of diplomatic notes, the United States and Morocco have agreed to extend the MOU for an additional five-year period, through January 14, 2031.

Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect the extension of the import restrictions. The designated list is also being revised to clarify that one of the subcategories of ethnological material that comes under “Wood” includes all writing materials. The restrictions on the importation of categories of archaeological and ethnological material from Morocco will continue in effect through January 14, 2031. Importation of such material from Morocco continues to be restricted until that date unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

The Designated List, covering archaeological material from approximately 1 million B.C. to A.D. 1750, and ethnological material from approximately A.D. 1549 to 1912, that are protected pursuant to the existing 2021 agreement, has been revised. One category of ethnological material under the subheading “Wood” is being revised to “writing materials,” rather than only “writing implements,” as it was previously phrased. For clarity, the category is also being revised to include additional specific reference to inscribed wooden tablets in its description.

The Designated List of restricted material and additional information may also be found at the following website address: https://www.state.gov/current-agreements-and-import-restrictions by selecting the material for “Morocco.” For ease of reference, the Designated List that was published in CBP Dec. 21-02, including the revisions mentioned above, is reproduced below:

The Agreement between the United States and Morocco includes the categories of objects described in the Designated List set forth below. Importation of material on this list is restricted unless the material is accompanied by documentation certifying that the material left Morocco legally and not in violation of the export laws of Morocco.

The Designated List includes certain archaeological and ethnological material from the Kingdom of Morocco. The archaeological material in the Designated List includes, but is not limited to, objects made of stone, ceramic, metal, bone, ivory, shell, glass, faience, semi-precious stone, painting, plaster, and textiles ranging in date from approximately 1 million B.C. to A.D. 1750. The ethnological material included in the Designated List contains architectural elements, manuscripts, and ceremonial and ritual objects of the Islamic culture from the Saadian and Alaouite dynasties ranging in date from approximately A.D. 1549 to 1912. This would exclude Jewish ceremonial or ritual objects.

Archaeological material covered by the Agreement includes categories of objects from the Paleolithic, Neolithic, Phoenician, Greek, Mauritanian, Roman, Byzantine, and Islamic (Idrisid, Almoravid, Almohad, Marinid, Saadian, and Alaouite) periods and cultures ranging in date from approximately 1 million B.C. to A.D. 1750.

Approximate chronology of well-known archaeological periods and sites:

1. Architectural Elements—This category includes doors, door frames, window fittings, columns, capitals, bases, lintels, jambs, archways, friezes, pilasters, engaged columns, altars, prayer niches ( mihrabs ), screens, fountains, inlays, and blocks from walls, floors, and ceilings of buildings. Architectural elements may be plain, molded, or carved and are often decorated with motifs and inscriptions. Marble, limestone, sandstone, and gypsum are most commonly used, in addition to porphyry and granite.

2. Mosaics—Floor mosaics are made from stone cut into small bits (tesserae) and laid into a plaster matrix. Wall and ceiling mosaics are made with a similar technique, but may include tesserae of both stone and glass. Subjects can include landscapes; scenes of deities, humans, or animals; religious imagery; and activities, such as hunting or fishing. There may also be vegetative, floral, or geometric motifs and imitations of stone.

3. Architectural and Non-Architectural Relief Sculptures—Types include carved slabs with figural, vegetative, floral, geometric, or other decorative motifs, carved relief vases, steles, palettes, and plaques. All types can sometimes be inscribed in various languages. Sculptures may be used for architectural decoration, including in religious, funerary ( e.g., grave markers), votive, or commemorative monuments. Marble, limestone, and sandstone are most commonly used.

4. Monuments—Types include votive statues, funerary or votive stelae, and bases and base revetments made of marble, limestone, and other kinds of stone. These may be painted, carved with relief sculpture, decorated with moldings, and/or carry dedicatory or funerary inscriptions in various languages.

5. Statuary—Types include large-scale representations of deities, humans, animals, or hybrid figures made of marble, limestone, or sandstone. The most common type of statuary are freestanding life-sized portrait or funerary busts (head and shoulders of an individual) measuring approximately 1 m to 2.5 m (approximately 3 ft to 8 ft) in height. Statuary figures may be painted.

6. Figurines—Figurines are small-scale representations of deities, humans, or animals made of limestone, calcite, marble, or sandstone.

7. Sepulchers—Types of burial containers include sarcophagi, caskets, reliquaries, and chest urns made of marble, limestone, or other kinds of stone. Sepulchers may be plain or have figural, geometric, or floral motifs painted on them. They may be carved in relief, and/or have decorative moldings.

8. Vessels and Containers—These include bowls, cups, jars, jugs, lamps, flasks, and smaller funerary urns. Funerary urns can be egg-shaped vases with button-topped covers. Vessels and containers can be made of marble, limestone, calcite, or other stone.

9. Furniture—Types include thrones, tables, and beds, from funerary or domestic contexts. Furniture may be made from marble or other stone.

10. Tools and Weapons—Chipped stone types include blades, borers, scrapers, sickles, burins, notches, retouched flakes, cores, arrowheads, cleavers, knives, chisels, and microliths (small stone tools). Ground stone types include grinders ( e.g., mortars, pestles, millstones, whetstones, querns), choppers, spherical-shaped hand axes, hammers, mace heads, and weights. The most commonly used stones are flint, chert, obsidian, and other hard stones.

11. Jewelry—Types include seals, beads, finger rings, and other personal adornment made of marble, limestone, or various semi-precious stones, including rock crystal, amethyst, jasper, agate, steatite, and carnelian.

12. Seals and Stamps—These are small devices with at least one side engraved (in intaglio and relief) with a design for stamping or sealing. Stamps and seals can be in the shape of squares, disks, cones, cylinders, or animals.

13. Rock Art—Rock art can be painted and/or incised drawings on natural rock surfaces. Tazina-style art is common from southern Morocco. Common motifs include humans, animals, such as horses, and geometric and/or floral elements.

1. Architectural Elements—These are baked clay (terracotta) elements used to decorate buildings. Examples include acroteria, antefixes, painted and relief plaques, revetments, carved and molded bricks, knobs, plain or glazed roof tiles, and glazed tile wall ornaments and panels.

2. Figurines—These include clay (terracotta) statues and statuettes in the shape of deities, humans, and animals ranging in height from approximately 5 cm to 20 cm (2 in to 8 in). Ceramic figurines may be undecorated or decorated with paint, appliques, or inscribed lines.

3. Vessels and Containers—Types, forms, and decoration vary among archaeological styles and over time. Shapes include jars, jugs, bowls, pitchers, basins, cups, storage and shipping amphorae, cooking pots (such as Roman mortaria ), and large water jugs ( zirs ). Examples may be painted or unpainted, handmade or wheel-made, and may be decorated with burnishes, glazes, or carvings. Roman terra sigillata and other red gloss wares are particularly characteristic. Ceramic vessels can depict imagery of humans, deities, animals, floral decorations, or inscriptions.

4. Lamps—Lamps can be handmade or molded, glazed or unglazed, and may have “saucer,” “slipper,” or other forms; they typically will have rounded bodies with a hole on the top and in the nozzle, handles or lugs, and may be decorated with motifs, such as beading, human faces, and rosettes or other floral elements. Inscriptions may also be found on the body. Later period examples may have straight or round, bulbous bodies with a flared top and several branches.

5. Objects of Daily Use—These include game pieces, loom weights, toys, tobacco pipes, and andirons.

1. Statuary—These are large- and small-scale, including deities, human, and animal figures in bronze, iron, silver, or gold. Common types are large-scale, freestanding statuary ranging in height from approximately 1 m to 2.5 m (approximately 3 ft to 8 ft) and life-size busts (head and shoulders of an individual).

2. Reliefs—These include plaques, appliques, steles, and masks, often in bronze. Reliefs may include inscriptions in various languages.

3. Inscribed or Decorated Sheet Metal—These are engraved inscriptions and thin metal sheets with engraved or impressed designs often used as attachments to furniture or figures. They are primarily made of copper alloy, bronze, or lead.

4. Vessels and Containers—Forms include bowls, cups, plates, jars, jugs, strainers, cauldrons, and boxes, as well as vessels in the shape of an animal or part of an animal. This category also includes scroll and manuscript containers, reliquaries, and incense burners. These vessels and containers are made of bronze, silver, or gold, and may portray deities, humans, or animals, as well as floral motifs in relief. They may include an inscription.

5. Jewelry—Jewelry includes necklaces, chokers, pectorals, finger rings, beads, pendants, bells, belts, buckles, earrings, diadems, straight pins and fibulae, bracelets, anklets, girdles, wreaths and crowns, cosmetic accessories and tools, metal strigils (scrapers), crosses, and lamp holders. Jewelry may be made of iron, bronze, silver, or gold. Metal can be inlaid with items, such as colored stones and glass.

6. Seals and Sealings—Seals are small devices with at least one side engraved with a design for stamping or sealing. Types include finger rings, amulets, and seals with a shank. Seals can be made of lead, tin, copper, bronze, silver, and/or gold. Sealings are lead strips, stamped in Arabic, used for closing bags of coins.

7. Tools—Types include hooks, weights, axes, scrapers, hammerheads, trowels, locks, keys, nails, hinges, tweezers, ingots, mirrors, thimbles, and fibulae (for pinning clothing). Tools may be made of copper, bronze, or iron.

8. Weapons and Armor—This includes body armor, such as helmets, cuirasses, bracers, shin guards, and shields, and horse armor, often decorated with elaborate designs that are engraved, embossed, or perforated. This also includes both launching weapons ( e.g., spears, javelins, arrowheads) and hand-to-hand combat weapons ( e.g., swords, daggers, etc. ) in copper, bronze, and iron.

9. Lamps—Lamps can be open saucer-type or closed, rounded bodies with a hole on the top and in the nozzle, handles, or lugs. They can include decorative designs, such as beading, human faces, animals or animal parts, and rosettes or other floral elements. This category includes handheld lamps, candelabras, braziers, sconces, chandeliers, and lamp stands.

10. Coins—This category includes coins of Numidian, Mauretanian, Greek/Punic, Roman, Byzantine, Islamic, and Medieval Spanish types that circulated primarily in Morocco, ranging in date from the fifth century B.C. to A.D. 1750. Coins were made in copper, bronze, silver, and gold. Examples may be square or round, have writing, and show imagery of animals, buildings, symbols, or royal figures.

1. Small Statuary and Figurines—These include representations of deities, humans, or animals in bone or ivory. These range from approximately 10 cm to 1 m (4 in to 40 in) in height.

2. Reliefs, Plaques, Steles, and Inlays—These are carved and sculpted and may have figurative, floral, and/or geometric motifs.

3. Jewelry—Types include amulets, pendants, combs, pins, spoons, bracelets, buckles, beads, and pectorals. Jewelry can be made of bone, ivory, and spondylus shell.

4. Seals and Stamps—These are small devices with at least one side engraved with a design for stamping or sealing. Seals and stamps can be in the shape of squares, disks, cones, cylinders, or animals.

5. Vessels and Luxury Objects—Ivory, bone, and shell were used either alone or as inlays in luxury objects, including furniture, chests and boxes, writing and painting equipment, musical instruments, games, cosmetic containers, and combs. Objects can include decorated vessels made of ostrich eggshell.

6. Tools—Tools include bone points and awls, burnishers, needles, spatulae, and fish hooks.

7. Manuscripts—Manuscripts can be written or painted on specially prepared animal skins ( e.g., cattle, sheep, goat, camel skins) known as parchment. They may be single leaves, bound as a book or codex, or rolled into a scroll.

8. Human Remains—This includes skeletal remains from the human body, preserved in burials or other contexts.

1. Architectural Elements—These include glass inlay and tesserae pieces from floor and wall mosaics, mirrors, and windowpanes.

2. Vessels and Containers—These can take various shapes, such as jars, bottles, bowls, beakers, goblets, candle holders, perfume jars ( unguentaria ), and flasks. Vessels and containers may have cut, incised, raised, enameled, molded, or painted decoration. Ancient examples may be engraved and/or light blue, blue-green, green, or colorless, while those from later periods may include animal, floral, and/or geometric motifs.

3. Jewelry—Jewelry includes bracelets and rings (often twisted with colored glass), pendants, and beads in various shapes ( e.g., circular, globular), some with relief decoration, including multi-colored “eye” beads.

4. Lamps—Lamps may have a straight or round, bulbous body, some in the form of a goblet, with flared top, and engraved or molded decorations and may have several branches.

1. Wall Painting—Wall painting can include figurative ( i.e., deities, humans, animals), floral, and/or geometric motifs, as well as funerary scenes. These are painted on stone, mud plaster, and lime plaster (wet— buon fresco —and dry— secco fresco ), sometimes to imitate marble.

2. Stucco—This is a fine plaster used for coating wall surfaces, or molding and carving into architectural decorations, such as reliefs, plaques, steles, and inlays.

1. Textiles—These include linen, hemp, and silk cloth used for burial wrapping, shrouds, garments, banners, and sails. These also include linen and wool used for garments and hangings.

2. Basketry—Plant fibers were used to make baskets and containers in a variety of shapes and sizes, as well as sandals and mats.

3. Rope—Rope and string were used for a great variety of purposes, including binding, lifting water for irrigation, fishing nets, measuring, lamp wicks, and stringing beads for jewelry and garments.

Ethnological material covered by the Agreement includes architectural elements, manuscripts, and ceremonial and ritual objects of the Islamic culture from the Saadian and Alaouite dynasties ranging in date from approximately A.D. 1549 to 1912. This would exclude Jewish ceremonial or ritual objects.

1. Architectural Elements—This category includes doors, door frames, window fittings, columns, capitals, plinths, bases, lintels, jambs, archways, friezes, pilasters, engaged columns, altars, prayer niches ( mihrabs ), screens, fountains, inlays, and blocks from walls, floors, and ceilings of buildings. Architectural elements may be plain, molded, or carved and are often decorated with motifs and inscriptions. Marble, limestone, and sandstone are most commonly used.

2. Architectural and Non-Architectural Relief Sculpture—This category includes slabs, plaques, steles, capitals, and plinths carved with religious, figural, floral, or geometric motifs or inscriptions in Arabic. Examples occur primarily in marble, limestone, and sandstone.

3. Memorial Stones and Tombstones—This category includes tombstones, grave markers, and cenotaphs. Examples occur primarily in marble and are engraved with Arabic script.

4. Vessels and Containers—This category includes stone lamps and containers, such as those used in religious services, as well as smaller funerary urns.

1. Architectural Elements—This category includes doors, door fixtures, such as knockers, bolts, and hinges, chandeliers, screens, taps, spigots, fountains, and sheets. Copper, brass, lead, and alloys are most commonly used.

2. Architectural and Non-Architectural Relief Sculpture—This category includes appliques, plaques, and steles, primarily made of bronze and brass. Examples often include religious, figural, floral, or geometric motifs. They may also have inscriptions in Arabic.

3. Lamps—This category includes handheld lamps, candelabras, braziers, sconces, chandeliers, and lamp stands.

4. Vessels and Containers—This category includes containers used for religious services, such as Koran ( Qur'an ) cases and incense burners. Brass, copper, silver, and gold are most commonly used. Containers may be plain, engraved, hammered, or otherwise decorated.

5. Musical Instruments—This category includes instruments used in Islamic/Sufi religious ceremonies or rituals, such as cymbals and trumpets.

This category consists of architectural elements, which include carved and molded brick, and engraved and/or painted and glazed tile wall ornaments and panels, sometimes with Arabic script.

1. Architectural Elements—This category includes doors, door frames and fixtures, windows, window frames, panels, beams, balconies, stages, screens, prayer niches ( mihrabs ), portable mihrabs ( anazas ), minbars, and ceilings. Examples may be decorated with religious, geometric, or floral motifs or inscriptions, and may be either carved or painted.

2. Architectural and Non-Architectural Relief Sculpture—This category includes panels, roofs, beams, balconies, stages, panels, ceilings, and doors. Examples are carved, inlaid, or painted with decorations of religious, floral, or geometric motifs or Arabic inscriptions.

3. Furniture—This category includes furniture, such as minbars, professorial chairs, divans, stools, and tables from Islamic ceremonial or ritual contexts. Examples can be carved, inlaid, or painted, and are made from various types of wood.

4. Vessels and Containers—This category includes containers used for religious purposes, such as Koran ( Qur'an ) cases. Examples may be carved, inlaid, or painted with decorations in religious, floral, or geometric motifs, or Arabic script.

5. Writing Materials—This category includes printing blocks, writing tablets, and Islamic study tablets inscribed in Arabic and used for teaching the Koran ( Qur'an ). Includes wooden tablets used for record-keeping and contracts in Amazigh or Berber tradition, sometimes called alwah or arraten; these are inscribed in ink in Arabic, and range in size from approximately 10 to 50 cm in length.

6. Musical Instruments—This category includes instruments used in Islamic/Sufi religious ceremonies or rituals, such as frame drums ( banadir ).

7. Beads—This category includes Islamic prayer beads ( mas'baha ). Examples may be plain or decorated with carved designs.

1. Architectural Elements—This category includes inlays for religious decorative and architectural elements.

2. Ceremonial Paraphernalia—This category includes boxes, reliquaries (and their contents), plaques, pendants, candelabra, and stamp and seal rings.

1. Architectural Elements—This category includes windowpanes, mosaic elements, inlays, and stained glass.

2. Vessels and Containers—This category includes glass and enamel mosque lamps and ritual vessels.

3. Beads—This category includes Islamic prayer beads ( mas'baha ) in glass or semi-precious stones.

1. Books and Manuscripts—Manuscripts can be written or painted on specially prepared animal skins ( e.g., cattle, sheep, goat, camel skins) known as parchment or paper. They occur as single leaves, bound with leather or wood as a book or codex, or rolled into a scroll. Types include the Koran ( Qur'an ) and other Islamic books and manuscripts, often written in black or brown ink, and sometimes embellished with painted colorful floral or geometric motifs.

2. Vessels and Containers—This category includes containers used for Islamic religious services, such as leather Koran ( Qur'an ) cases or pouches.

3. Musical Instruments—This category includes instruments used in Islamic/Sufi religious ceremonies or rituals, such as leather drums ( banadir ).

This document involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure under 5 U.S.C. 553(a)(1). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 because it pertains to a foreign affairs function of the United States, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

In accordance with Treasury Order 100-20, the Secretary of the Treasury has delegated to the Secretary of Homeland Security the authority related to the customs revenue functions vested in the Secretary of the Treasury as set forth in 6 U.S.C. 212 and 215, subject to certain exceptions. This regulation is being issued in accordance with Department of Homeland Security Delegation 07010.3, Revision 03.2, which delegates to the Commissioner of CBP the authority to prescribe and approve regulations related to cultural property import restrictions.

Rodney S. Scott, the Commissioner of CBP, having reviewed and approved this document, has delegated the authority to electronically sign this document to the Director of the Regulations and Disclosure Law Division of CBP, for purposes of publication in the Federal Register .

For the reasons set forth above, part 12 of title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

The Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq. ) (CPIA), which implements the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)) (the Convention), allows for the conclusion of an agreement between the United States and another party to the Convention to impose import restrictions on eligible archaeological and ethnological material. Under the CPIA and the applicable U.S. Customs and Border Protection (CBP) regulations, found in § 12.104 of title 19 of the Code of Federal Regulations (19 CFR 12.104), the restrictions are effective for no more than five years beginning on the date on which an agreement enters into force with respect to the United States (19 U.S.C. 2602(b)). This period may be extended for additional periods, each extension not to exceed five years, if it is determined that the factors justifying the initial agreement still pertain and no cause for suspension of the agreement exists (19 U.S.C. 2602(e); 19 CFR 12.104g(a)).

On January 19, 2001, the United States and the Italian Republic (Italy) entered into a Memorandum of Understanding entitled, “Memorandum of Understanding Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods in Italy” (the 2001 MOU). The 2001 MOU entered into force upon signature on January 19, 2001, and reflects an agreement to impose import restrictions on certain categories of archaeological material representing the Pre-Classical, Classical, and Imperial Roman Periods. On January 23, 2001, CBP published a final rule (Treasury Decision 01-06) in the Federal Register (66 FR 7399), which amended 19 CFR 12.104g(a) to reflect the imposition of these restrictions, including a list designating the types of archaeological material covered by the restrictions.

The import restrictions have been extended three times pursuant to exchanges of diplomatic notes, as reflected in subsequent final rules. First, on January 19, 2006, CBP published CBP Decision (CBP Dec.) 06-01 in the Federal Register (71 FR 3000), which amended 19 CFR 12.104g(a) to reflect the extension for an additional period of five years. Second, on January 19, 2011, CBP published CBP Dec. 11-03 in the Federal Register (76 FR 3012), to extend the import restrictions for an additional five-year period. CBP Dec. 11-03 also reflects an amendment to the Designated List to include the subcategory “Coins of Italian Types” as part of the category entitled “Metal,” pursuant to 19 U.S.C. 2604. Third, on January 15, 2016, CBP published CBP Dec. 16-02 in the Federal Register (81 FR 2086), to further extend the import restrictions.

On January 12, 2021, CBP published CBP Dec. 21-01 in the Federal Register (86 FR 2255), to further extend the import restrictions, pursuant to the signing of a superseding agreement. CBP Dec. 21-01 also reflects a new Memorandum of Understanding between the United States and Italy, “Memorandum of Understanding between the Government of the United States of America and the Government of the Italian Republic Concerning the Imposition of Import Restrictions on Categories of Archaeological Material of Italy” (the 2021 MOU), which superseded and replaced the 2001 MOU. The 2021 MOU entered into force on January 12, 2021; thus, the extension of the import restrictions was implemented for an additional five-year period ending on January 12, 2026. See 19 CFR 12.104g(a); 86 FR 2255.

On December 30, 2024, the United States Department of State proposed in the Federal Register (89 FR 106723) to extend the 2021 MOU. On August 7, 2025, after considering the views and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State, made the necessary determinations to extend the MOU for an additional five years. Subsequently, the United States entered into a bilateral agreement with Italy to extend the 2021 MOU in a document titled, “Agreement Between the Government of the United States of America and the Government of the Italian Republic To Extend the Memorandum of Understanding Between the Government of the United States of America And the Government of the Italian Republic Concerning the Imposition of Import Restrictions on Categories of Archaeological Material of Italy.” The agreement extends the import restrictions for five years from entry into force on January 12, 2026.

Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect the extension of the import restrictions. The restrictions on the importation of categories of archaeological material of Italy will continue in effect until January 12, 2031. Importation of such material from Italy continues to be restricted until that date unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

The Designated List of pre-Classical, Classical and Imperial Roman period archaeological material from Italy covered by these import restrictions is set forth in CBP Dec. 11-03. The Designated List and additional information may also be found at the following website address: https://www.state.gov/current-agreements-and-import-restrictions by selecting the materials for “Italy.”

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure under 5 U.S.C. 553(a)(1). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 because it pertains to a foreign affairs function of the United States, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

In accordance with Treasury Order 100-20, the Secretary of the Treasury has delegated to the Secretary of Homeland Security the authority related to the customs revenue functions vested in the Secretary of the Treasury as set forth in 6 U.S.C. 212 and 215, subject to certain exceptions. This regulation is being issued in accordance with Department of Homeland Security Delegation 07010.3, Revision 03.2, which delegates to the Commissioner of CBP the authority to prescribe and approve regulations related to cultural property import restrictions.

Rodney S. Scott, Commissioner, having reviewed and approved this document, has delegated the authority to electronically sign this document to the Director of the Regulations and Disclosure Law Division of CBP, for purposes of publication in the Federal Register .

For the reasons set forth above, part 12 of title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

Subject to OSMRE's oversight, section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Texas program in the February 27, 1980, Federal Register (45 FR 12998). You can also find later actions concerning the Texas program amendments at 30 CFR 943.10, 943.15 and 943.16.

By letter dated August 28, 2020 (Administrative Record No. TX-708), Texas sent us a proposed amendment to its program at its own initiative to update, clarify, and correct existing rules. These changes included the use of gender-neutral language, updates to terms for consistency with the relevant Texas licensing boards, and changes that ensure consistency with decision timelines as required by the Texas Administrative Procedure Act (Texas Government Code chapter 2001).

We announced receipt of the proposed amendment in the April 22, 2021, Federal Register (86 FR 21246). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because none were requested. The public comment period ended May 24, 2021.

We made the following findings concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.

The submittal added the wording “or herself” to 16 Texas Administrative Code section (sec.) 12.3 Definitions (89) and (122) in order to make the regulation language gender neutral. In 16 Texas Administrative Code sec. 12.679 Suspension or Revocation of Permits (a)(1) Pattern of violations “him” was replaced with “the permittee”, “his” was replaced with “the” and “he” was replaced with “the Director” also to make the language used gender neutral. These non-substantive changes are in accordance with SMCRA and consistent with the Federal regulations.

Throughout the regulations, the term “registered professional engineer” has been replaced with “professional engineer” and “professional geoscientist” and corresponding definitions for consistency with the relevant Texas licensing boards. These 27 changes can be found at 16 Texas Administrative Code sec. 12.3(132), 12.3(133), 12.137(b), 12.142(3), 12.148(a)(2)(A), 12.148(a)(3)(A), 12.198(b), 12.341(b)(4), 12.344(b)(3), 12.347(a)(11), 12.347(a) and (c)(2), 12.363(b), 2.363(j), 12.363(k), 12.368(c), 12.369(a), 12.369(a)(2)(4), 12.373, 12.401(1), 12.511(b)(4), 12.514(b)(3), 12.517(a)(3), 12.517(a)(11)(B), 12.517(c)(2), 12.535(c), 12.540, and 12.570(1). Although these titles differ from that used in the Federal counterpart regulations, the definition for the “professional engineer” is unchanged, and the corresponding definition of a “professional geoscientist” has been added. Thus, the changes are non-substantive and are no less stringent than SMCRA and no less effective than the corresponding Federal regulations. For example, 30 CFR 780.25 refers to “a qualified, registered, professional engineer, a professional geologist, or in any State which authorizes land surveyors to prepare and certify such plans, a qualified, registered, professional, land surveyor, with assistance from experts in related fields such as landscape architecture[.]” The corresponding Texas definition of “professional engineer” states that it is a “person who is duly licensed by the Texas Board of Professional Engineers and Land Surveyors to engage in the practice of engineering in this state.” 16 Texas Administrative Code sec. 12.3(132).

Texas proposed to revise 16 Texas Administrative Code sec. 12.4 Petitions to Initiate Rulemaking to delete most of the existing language, which mirrors the Federal regulation on petitions to the Director of OSMRE at 30 CFR 700.12 and replace the language with a statement that any petition must be submitted in accordance with 16 Texas Administrative Code sec. 1.301 and the Texas Administrative Procedure Act. The State's proposal is in accordance with SMCRA and consistent with the Federal regulations.

The Texas submittal also added a requirement to notify the commission of the intent to permanently cease and abandon mining operations in 16 Texas Administrative Code sec. 12.100 Responsibilities, sec. 12.398 Cessation of Operations: Permanent and sec. 12.567 Cessation of Operations: Permanent. This requirement is in accordance with SMCRA and consistent with Federal regulations. In sec. 12.106(b)(2), the deadline for the receipt of renewal of a permit has been changed from 180 days to 120 days, aligning it with the Federal counterpart.

The existing language in 16 Texas Administrative Code sec. 12.108(b) Permit Fees sets an annual fee for each acre of land covered by a reclamation bond on December 31 of that year. Texas proposes to revise sec. 12.108(b)(1) to state that the fee is based on the number of acres identified in the permit and approved by the Railroad Commission of Texas, the State regulatory authority. This is consistent with the relevant Federal regulations, which allow a regulatory authority to develop procedures to allow permit fees to be paid over the term of the permit. The Texas amendment adds in 16 Texas Administrative Code sec. 12.121(4) and 12.161(4) the requirement for an applicant to provide the permit expiration date of all other licenses and permits. The requirement for this additional information is in accordance with SMCRA and consistent with Federal regulations.

In 16 Texas Administrative Code sec. 12.126(d) and 12.172(d), Texas updated the reference for the American Public Health Association's Standard Methods for the Examination of Water and Wastewater from the 15th edition to the current 23rd edition. This is in accordance with SMCRA and consistent with Federal regulations.

Within the submittal, at 16 Texas Administrative Code sec. 12.146(a) and (d) and 122.188(a), the original text was broken down into separate sub-paragraphs in order to assist the State staff in their review. This formatting change had no substantial impact on the content contained in the regulation and remains consistent with Federal regulation.

Texas proposed to add 16 Texas Administrative Code sec. 12.146(d)(6) to its regulations. This amendment to the Probable Hydrologic Consequences (PHC) determination is nearly a direct copy of the counterpart Federal regulation at 30 CFR 780.21(b)(3). It is therefore in accordance with SMCRA and consistent with the Federal regulations.

In 16 Texas Administrative Code sec. 12.225(g)(1)(D) the language “and does not continue to be responsible for” has been removed and replaced later in the section with “and the permittee is no longer responsible for the violation, penalty, or fee.” Texas deemed this change necessary to clarify the status of liability due to a transfer of permit. This clarification is in accordance with SMCRA and consistent with the Federal regulations.

Changes in terminology and citations in 16 Texas Administrative Code sec. 12.344(c)(2), 12.347(a), 12.376(d), 12.514(c)(2), 12.517(a), and 12.543(d), to include the replacement of the term “auxiliary” with “emergency”, are due to the revisions of U.S. Department of Agriculture (USDA), Natural Resources Conservation Service Technical Release No. 60 (210-VI-TR60), July 2005. These necessary alterations were required to update the regulation to reflect changes in the cited USDA Technical Release and are in accordance with SMCRA and consistent with the Federal regulations.

As a part of the proposed amendment, Texas submitted several administrative changes to its regulations. Changes in 16 Texas Administrative Code sec. 12.211(c), 12.382, and 12.549 were submitted in order to correct or update references to applicable Texas Administrative Code or statute. In sec. 12.146(e) an acronym was corrected. Sections 12.207(a)(3) and 12.215(g) and (j) were edited to correct internal references within the regulation, and sec. 12.676(c)(1)(a) corrected a grammatical error. The revised language remains in accordance with SMCRA and consistent with the Federal regulations.

We asked for public comments on the amendment, but none were received.

On April 27, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Texas program (Administrative Record No. TX-708). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Texas proposed to make in this amendment pertain to air or water quality standards. However, on April 27, 2021, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. TX-708). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 27, 2021, we requested comments on the Texas amendment (Administrative Record No. TX-708). We did not receive comments from the SHPO or ACHP.

Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards. Based on the above findings, we are approving Texas' submittal sent to us on August 28, 2020 (Administrative Record No. TX-708) because the proposed regulations are in accordance with SMCRA and consistent with the Federal regulations and do not affect the State's ability to carry out the provisions of the Act and meet its purposes. To implement this decision, we are amending the Federal regulations, at 30 CFR part 943, that codify decisions concerning the Texas program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication.

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

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

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

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

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to Tribal self-governance and sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal Government and Tribes. The basis for this determination is that our decision on the Texas program does not include Indian lands as defined by SMCRA or other Tribal lands, and it does not affect the regulation of activities on Indian lands or other Tribal lands. Indian lands under SMCRA are regulated independently under the applicable Federal Indian program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.

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

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

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

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

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

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

For the reasons set out in the preamble, 30 CFR part 943 is amended as set forth below:

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 applies 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 action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA is issuing this rulemaking under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. FFDCA section 408(b)(2)(A)(i) allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” FFDCA section 408(b)(2)(A)(ii) 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.” 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 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 . . .”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. 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. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2024-0239 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 16, 2026.

The EPA's Office of Administrative Law Judges (OALJ), in which the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Revised Order Urging Electronic Filing and Service,” dated June 22, 2023, which can be found at https://www.epa.gov/system/files/documents/2023-06/2023-06-22%20-%20revised%20order%20urging%20electronic%20filing%20and%20service.pdf. Although the EPA's regulations require submission via U.S. Mail or hand delivery, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/oa/eab/eab-alj_upload.nsf.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket at https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute. If you wish to include CBI in your request, 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 not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice.

In the Federal Register of March 11, 2025, (90 FR 11688) (FRL-11682-12-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 4F9115 and 4F9119) by ISK Biosciences Corporation, 7470 Auburn Road, Suite A, Concord, Ohio 44077.

The petition 4F9115 requested to establish a tolerance in 40 CFR 180.660 for residues of the fungicide pyriofenone (5-chloro-2-methoxy-4-methyl-3-pyridinyl)(2,3,4-trimethoxy-6-methylphenyl)methanone, including its metabolites and degradates in or on apple at 0.30 parts per million (ppm); apple, wet pomace at 0.69 ppm; and cherry subgroup 12-12A at 1.50 ppm.

The petition 4F9119 requested to modify the existing tolerance in 40 CFR 180.660 for residues of pyriofenone, including its metabolites and degradates, in or on berry, low growing, subgroup 13-07G (except cranberry) at 2.0 ppm.

The March 11, 2025, Federal Register notice, (90 FR 11688) (FRL-11682-12-OCSPP), referenced a summary of the petitions submitted by ISK Biosciences Corporation, the registrant of all currently registered pyriofenone pesticide products, which is available in docket EPA-HQ-OPP-2024-0239 at https://www.regulations.gov.

Eight comments were received in response to the March 11, 2025, notice of filing. The Northwest Horticultural Council and a student from Utah State University (USU) commented in support of the registration of additional uses on and establishment of tolerances for apple and cherry. Northwest Horticultural Council acknowledged the effect fungal diseases have on apple and cherry and expressed the need for management. They acknowledged that registering pyriofenone on apples and cherries will help prevent fungicide resistance amongst fungicides with differing Fungicide Resistance Action Committee (FRAC) groups. The student from USU commented that pyriofenone, as regulated by the Agency, will be a boon rather than a threat.

Other comments from the general public expressed concern over the excessive use of pesticides on crops, persistence of the chemical in the environment, the long-term health effects to vulnerable populations, and the impact on non-target species. Several commenters requested that EPA conduct more-detailed environmental risk assessments and other research before setting the requested tolerances.

Although the Agency recognizes that some individuals believe pesticides should be banned on agricultural crops, the existing legal framework provided by Section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data, as well as other factors required by the FFDCA, EPA has determined that these pyriofenone tolerances are safe. The commenters provided no information demonstrating that pyriofenone tolerances are not safe at the levels set by EPA, nor did the commenters provide any basis for concluding that the tolerances would have a disproportionate effect on any population.

Based upon review of the data supporting the petition, EPA is establishing certain requested tolerances at different levels than what were proposed. The reasons for these changes are explained in Unit IV.D.

1. EPA's Safety Determination. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for pyriofenone including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with pyriofenone follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for pyriofenone in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to pyriofenone and established tolerances for residues of that chemical (84 FR 24983) (FRL-9993-11). EPA is incorporating previously published sections from these rulemakings as described further in this rulemaking, as they remain unchanged.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. For a discussion of the Toxicological Profile of pyriofenone, see Unit III.A. of the May 30, 2019, rulemaking (84 FR 24983) (FRL-9993-11).

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/human-health-risk-pesticides.

For a discussion of the Toxicological PODs/Levels of Concern for pyriofenone, see Unit III.B. of the May 30, 2019, rulemaking. A summary of the toxicological endpoints for pyriofenone used for human risk assessment of the instant petitions can be found at http://www.regulations.gov in the document “ Pyriofenone. Human Health Risk Assessment for the Petition of New Uses on Cherry Crop Subgroup 12-12A and Apple; and Petition to Amend Tolerance on Berry, Low Growing, Subgroup 13-07G, Except Cranberry” on pages 19-20 in Docket ID number EPA-HQ-OPP-2024-0239. The PODs and LOCs for pyriofenone remain unchanged since the May 30, 2019, rulemaking.

EPA's dietary exposure assessments have been updated to include the additional exposure from the new uses of pyriofenone on apple and cherry subgroup 12-12A and berry, low growing, subgroup 13-07G (except cranberry). An acute dietary exposure assessment was not performed as there are no appropriate toxicological effects attributable to a single exposure (dose). A conservative chronic dietary exposure assessment was performed for pyriofenone, assuming 100 percent crop treated (PCT), tolerance-level residues, and default processing factors or empirical processing factors, where available. The chronic dietary exposure assessment was conducted using the updated Dietary Exposure Evaluation Model that incorporates the What We Eat in America consumption data from 2005-2010. The chronic estimated drinking water concentration (EDWC) of 3.9 parts per billion (ppb) is unchanged from Unit III.C.2. of the May 30, 2019, rulemaking (84 FR 24983) (FRL-9993-11) and was directly incorporated into the chronic assessment. A cancer dietary assessment was not conducted because pyriofenone is classified as “not likely to be carcinogenic to humans.” Because there are no existing or proposed residential uses associated with pyriofenone, there is not expected to be any residential handler exposure or post-application exposures.

Cumulative effects from substances with a common mechanism of toxicity for pyriofenone is outlined in Unit III.C.4. of the May 30, 2019, rulemaking (84 FR 24983) (FRL-9993-11). There have been no other changes.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

1. In general. FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Conclusion. EPA continues to conclude that there are reliable data to support the reduction of the FQPA safety factor from 10X to 1X. See Unit III.D. of the May 30, 2019, rulemaking (84 FR 24983) (FRL-9993-11) for a discussion of the Agency's rationale for that determination.

For a discussion of the aggregate risks and determination of safety of pyriofenone, see Unit III.E. of the May 30, 2019, rulemaking (84 FR 24983) (FRL-9993-11). There have been no additional changes for this final rule.

1. Acute risk. No adverse effect resulting from a single oral exposure was identified, and no acute dietary endpoint was selected. Therefore, pyriofenone is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in Unit III.E. of the May 30, 2019, final rule for chronic exposure (84 FR 24983) (FRL-9993-11), updated with the new uses assessed for the instant petitions, EPA has concluded that chronic exposure to pyriofenone from food and water will utilize 9.2% of the cPAD for children 1-2 years old, the population group with the highest exposure. Chronic aggregate risk is equivalent to chronic dietary risk, which is not of concern.

3. Short- and intermediate- term risk. There are no residential uses for pyriofenone; therefore, short- and intermediate-term residential exposure is not expected.

4. Aggregate cancer risk for U.S. population. Pyriofenone is classified as “Not Likely to Be Carcinogenic to Humans;” therefore, EPA does not expect pyriofenone exposures to pose an aggregate cancer risk.

5. Determination of safety. Therefore, based on these risk assessments and information described above, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to pyriofenone residues. More information on this action can be found in the document titled “ Pyriofenone. Human Health Risk Assessment for the Petition of New Uses on Cherry Crop Subgroup 12-12A and Apple; and Petition to Amend Tolerance on Berry, Low Growing, Subgroup 13-07G, Except Cranberry” in Docket ID number EPA-HQ-OPP-2024-0239.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the May 30, 2019, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for pyriofenone on apple or cherry, subgroup 12-12A. However, the Codex has established MRLs for pyriofenone in or on berry, low growing, subgroup 13-07G at 1.5 ppm for bush berries and 0.5 ppm for low growing berries. These MRLs are different than the tolerances proposed for pyriofenone in the United States by the petition. The petitioner requested the change in tolerance to align with the Japanese MRL. This requested change was prompted by the Japanese Ministry of Agriculture, Forestry and Fisheries to assist Japanese growers in their efforts to export strawberries into the United States.

The Agency is removing the trailing zeros for the cherry subgroup 12-12A and apple proposed tolerances to be consistent with OECD rounding classes and agency standards, as well as making a non-substantive change to remove the parentheses from Berry, Low Growing, Subgroup 13-07G, except cranberry. Based on the apple highest average field trial residue in combination with the empirical processing factor for wet apple pomace, EPA is establishing a lower-than-requested tolerance of 0.5 ppm for wet apple pomace.

In general, a tolerance action is 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 will set an expiration date for the existing tolerance of six months after the date of publication of the final rule in the Federal Register , in order 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.

Therefore, tolerances are established for residues of pyriofenone, (5-chloro-2-methoxy-4-methyl-3-pyridinyl)(2,3,4-trimethoxy-6-methylphenyl)methanone, including its metabolites and degradates, in or on apple at 0.3 ppm; apple, wet pomace at 0.5 ppm; modifying the tolerance for berry, low growing, subgroup 13-07G (except cranberry) at 2 ppm.

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

This action is exempt from review under Executive Order 12866 (58 FR 51735, October 4, 1993), because it establishes or modifies a pesticide tolerance or a tolerance exemption under FFDCA section 408 in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866.

Executive Order 14192 (90 FR 9065, February 6, 2025) does not apply because actions that establish a tolerance under FFDCA section 408 are 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.

Since tolerance actions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the RFA, 5 U.S.C. 601 et seq., do not apply to this action.

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 on 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 tolerance actions like this one are exempt from review under Executive Order 12866. However, EPA's 2021 Policy on Children's Health applies to this action. This rule finalizes 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 summarized in Unit III.E.

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.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, 40 CFR chapter I is amended as follows:

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 applies to them. Potentially affected entities may include:

• 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 issuing this rulemaking under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. FFDCA section 408(b)(2)(A)(i) allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” FFDCA section 408(b)(2)(A)(ii) 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.” 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 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 . . .”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2024-0201 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before March 16, 2026.

The EPA's Office of Administrative Law Judges (OALJ), in which the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Revised Order Urging Electronic Filing and Service,” dated June 22, 2023, which can be found at https://www.epa.gov/system/files/documents/2023-06/2023-06-22%20-%20revised%20order%20urging%20electronic%20filing%20and%20service.pdf. Although the EPA's regulations require submission via U.S. Mail or hand delivery, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/oa/eab/eab-alj_upload.nsf.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket at https://www.regulations.gov. Follow the online instruction for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute. If you wish to include CBI in your request, 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 not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice.

In the Federal Register of November 1, 2024 (89 FR 87321 (FRL-11682-08-OCSPP)), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E9106) by the Interregional Research Project No. 4 (IR-4), IR-4 Project Headquarters, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requests to amend 40 CFR 180.378 by establishing a tolerance for residues of the insecticide permethrin, cis - and trans -permethrin isomers [ cis -(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [ trans -(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate], in or on the raw agricultural commodities: arugula at 50 parts per million (ppm); cress, garden at 50 ppm; cress, upland at 50 ppm; dragon fruit (pitaya) at 1.5 ppm; field corn subgroup 15-22C at 0.05 ppm; leafy greens subgroup 4-16A at 50 ppm; and sweet corn subgroup 15-22D at 0.1 ppm). Additionally, the petition requests, upon approval of the above tolerance, to remove the existing tolerances in 40 CFR 180.378 in or on the following agricultural commodities: corn, field, grain at 0.05 ppm; corn, pop, grain at 0.05 ppm; leafy green subgroup 4A at 20 ppm; lettuce, head at 20 ppm; spinach at 20 ppm; and corn, sweet, kernel plus cob with husks removed at 0.10 ppm. That document referenced a summary of the petition prepared by IR-4, the petitioner, which is available in the docket (ID number EPA-HQ-OPP-2024-0201) at http://www.regulations.gov. There was one comment received in response to the notice of filing. The comment stated that the commentor is in support of the guidelines.

In the Federal Register of January 13, 2025 (90 FR 2661 (FRL-11682-11-OCSPP)), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E9106) by the Interregional Research Project No. 4 (IR-4), IR-4 Project Headquarters, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requests to amend 40 CFR 180.378 by removing established tolerances for residues of the insecticide permethrin, cis - and trans -permethrin isomers [ cis -(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate] and [ trans -(3-phenoxyphenyl)methyl 3-(2,2-dichloroethenyl)-2,2-dimethylcyclopropane carboxylate], in or on the raw agricultural commodities: corn, field, grain at 0.05 ppm; corn, pop, grain at 0.05 ppm; corn, sweet, kernel plus cob with husks removed at 0.10 ppm; leafy greens subgroup 4A at 20 ppm; lettuce, head at 20 ppm; and spinach at 20 ppm. There were four comments received in response to the notice of filing. Three of the comments were in support of the rule. The fourth comment stated that “there are options for organic pesticides that have both long term economic[al] and ecological benefits despite upfront costs.” Although the Agency recognizes that some individuals believe that organic pesticides should be used on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerances are safe. Upon consideration of the validity, completeness, and reliability of the available data, as well as other factors the FFDCA requires EPA to consider, EPA has determined that the permethrin tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is establishing a tolerance that varies from what was requested. The reason for this change is explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of 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.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA 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 . . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for permethrin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with permethrin follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings for the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination of the new rulemaking.

EPA has previously published a number of tolerance rulemakings for permethrin in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to permethrin and established a tolerance for residues of that chemical. EPA is incorporating previously published sections from those rulemakings as described further in this rulemaking, as they remain unchanged.

For a discussion of the Toxicological Profile of permethrin, see Unit III A. of the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45).

For a summary of the Toxicological Points of Departure/Levels of Concern for permethrin used for human health risk assessment, see Unit III.B. of the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45).

Much of the exposure assessment remains the same, although updates have occurred to accommodate exposures from the petitioned-for tolerance. These updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, see Unit III.C. of the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45).

EPA's dietary exposure assessments have been updated to include the additional exposure from the new use of permethrin on dragon fruit and do not change the prior exposure estimates. This assessment was conducted with Dietary Exposure Evaluation Model software using the Food Commodity Intake Database (DEEM-FCID; Version 4.02), which uses the 2005-2010 food consumption data from the United States Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America. The assessment used the same assumptions as the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45).

1. Drinking water exposure. The new use does not result in an increase in the estimated residue levels in drinking water, so EPA used the same estimated drinking water concentrations in the acute and chronic dietary exposure assessments as identified in Unit III.C.2. of the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45). Permethrin is classified as “suggestive evidence of carcinogenic potential” based upon the lung adenomas in female mice. The Agency has determined that quantification of risk using a non-linear approach ( i.e., reference dose (RfD)) will adequately account for all toxicity, including carcinogenicity, that could result from exposure to permethrin. Additionally, there is no concern for mutagenicity based on the findings from the genotoxicity battery of studies.

2. Non-occupational exposure. The new uses do not impact residential/bystander exposures and thus the residential exposures have not changed since the last assessment described in the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45).

3. Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” The Agency has determined that the pyrethroids and pyrethrins share a common mechanism of toxicity ( http://www.regulations.gov; EPA-HQ-OPP-2008-0489-0006).In 2011, after establishing a common mechanism grouping for the pyrethroids and pyrethrins, the Agency conducted a cumulative risk assessment (CRA) which is available at http://www.regulations.gov; EPA-HQ-OPP-2011-0746.In that document, the Agency concluded that cumulative exposures to pyrethroids (based on pesticidal uses registered at the time the assessment was conducted) did not present risks of concern. For the proposed new use of permethrin on dragon fruit, crop group expansions to field corn subgroup 15-22C and sweet corn subgroup 15-22D, and crop group conversions to leafy greens subgroup 4-16A, including tolerances for arugula, garden cress, and upland cress. The proposed new use will not impact the results of the 2011 CRA. Therefore, the results of the 2011 CRA are still valid and there are no cumulative risks of concern for the pyrethroids/pyrethrins.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. EPA continues to conclude that there is reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor from 10X to 1X. See Unit III.D. of the July 28, 2020, rulemaking for a discussion of the Agency's rationale for that determination.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). Short-,intermediate-, and chronic-term risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate points of departure (PODs) to ensure that an adequate margin of exposure (MOE) exists.

Acute dietary risks are below the Agency's level of concern of 100% of the aPAD. They are 4.3% of the aPAD for children 3 to 5 years old, the population subgroup with the highest exposure estimate. A chronic dietary endpoint has not been selected for permethrin because repeated exposure does not result in a point of departure lower than that resulting from acute exposure. Therefore, the acute dietary risk assessment is protective of chronic dietary risk. However, since there are residential uses of permethrin, a highly refined chronic dietary (food and drinking water) exposure assessment was conducted to calculate chronic dietary exposure estimates to support the permethrin aggregate risk assessment.

The short-term aggregate risk assessment combines exposures to permethrin from the registered residential uses and the dietary (food and drinking water) risk assessment. An aggregate risk index (ARI) approach was used for the short-term aggregate risk assessment since the oral and inhalation endpoints have different level of concerns. ARIs that are greater than or equal to 1 and are not of concern. The short-term aggregate assessment for children 1 to less than 2 years old was conducted using the ARI approach for consistency purposes, even though only oral post-application exposures are anticipated for the selected residential scenario. The short-term aggregate assessment for adults resulted in an ARI of 76 and, for children 1 to less than 2 years old, the result is an ARI of 3.0. Since the ARIs are greater than 1, there are no short-term aggregate risks of concern for permethrin.

Residential exposures are not expected to occur from the newly proposed uses since none are residential use sites. For more details on residential exposure, see III.C.3 of the July 28, 2020, rulemaking (85 FR 45329) (FRL-10009-45).

Permethrin is classified as showing “suggestive evidence of carcinogenic potential” based upon the lung adenomas in female mice. The Agency has determined that quantification of risk using a non-linear approach ( i.e., reference dose (RfD)) will adequately account for all toxicity, including carcinogenicity, that could result from exposure to permethrin. Additionally, there is no concern for mutagenicity based on the findings from the genotoxicity battery of studies.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to permethrin residues. More detailed information about the Agency's analysis can be found at https://www.regulations.gov in the document titled “Permethrin. Human Health Risk Assessment for Proposed Usage on Dragon Fruit, Crop Group Expansions to Field Corn Subgroup 15-22C and Sweet Corn Subgroup 15-22D, and Crop Group Conversions to Leafy Greens Subgroup 4-16A, Including Tolerances for Orphan Crops Arugula, Garden Cress, and Upland Cress” in docket ID number EPA-HQ-OPP-2024-0201.

For a discussion of the available analytical enforcement method, see Unit IV.A of the July 28, 2020 rulemaking (85 FR 45329) (FRL-10009-45).

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

The Canadian and Codex MRLs are expressed in terms of total permethrin. The U.S. residue definition is harmonized with Canada and Codex. Mexico adopts U.S. tolerances. When the U.S. tolerance is higher, harmonization is not feasible because the tolerances are based on field trial data that resulted in residues that necessitated the higher limit. For some cases, such as corn grain, EPA establishes a different U.S. tolerance (0.05 ppm) than the Codex tolerance (2 ppm) due to differences in use patterns.

A tolerance of 3 ppm is being established for dragon fruit rather than 1.5 ppm as requested. The petitioner reported the proposed tolerance based on the average cis - and trans -permethrin residue ( cis - and trans -permethrin residues were not combined). EPA is establishing a tolerance for residues of permethrin cis- and trans- isomers in/on dragon fruit, based on the per-trial average total cis - and trans -permethrin residue, derived using the Organization for Economic Cooperation and Development (OECD) MRL calculation procedures. The OECD tolerance calculation when using the per-trial average is 3 ppm for dragon fruit. Also, tolerances are currently established for residues in leafy greens subgroup 4A at 20 ppm. A tolerance of 50 ppm is being established for residues in leafy greens subgroup 4-16A commodities as part of the crop group conversion. The increased tolerance level is due to data that were received in response to the data requests in the permethrin data call-in (GDCI-109701-26467). Additionally, as part of the crop group conversion, arugula, garden cress, and upland cress have moved to crop group 4-16B. EPA is establishing individual tolerances for residues in these commodities at 50 ppm to ensure that previously established tolerances associated with phase four revisions are not inadvertently lost during crop group conversion requests.

Therefore, tolerances are established for residues of permethrin in or on arugula at 50 ppm; cress, garden at 50 ppm; cress, upland at 50 ppm; dragon fruit at 3 ppm; field corn subgroup 15-22C at 0.05 ppm; leafy greens subgroup 4-16A at 50 ppm; and sweet corn subgroup 15-22D at 0.1 ppm. In addition, the rule removes the established tolerances for residues of permethrin in or on corn, field, grain at 0.05 ppm; corn, pop, grain at 0.05 ppm; leafy greens subgroup 4A at 20 ppm; lettuce, head at 20 ppm; spinach at 20 ppm; and corn, sweet, kernel plus cob with husks at 0.10 ppm.

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

This action is exempt from review under Executive Order 12866 (58 FR 51735, October 4, 1993), because it establishes or modifies a pesticide tolerance or a tolerance exemption under FFDCA section 408 in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866.

Executive Order 14192 (90 FR 9065, February 6, 2025) does not apply because actions that establish a tolerance under FFDCA section 408 are 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.

Since tolerance actions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the RFA, 5 U.S.C. 601 et seq., do not apply to this action.

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 on 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 tolerance actions like this one are exempt from review under Executive Order 12866. However, EPA's 2021 Policy on Children's Health applies to this action. This rule finalizes 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 summarized in Unit III.E.

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.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

This is a summary of the Commission's Direct Final Rule, GN Docket No. 25-133, FCC 25-80, adopted on November 20, 2025 and released on November 24, 2025. The full text of this document is available for public inspection and can be downloaded at https://www.fcc.gov/document/fcc-deletes-outdated-public-safety-rules. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).

Comment Period and Filing Procedures. Interested parties may file comments on or before the dates provided in the DATES section of this document. Comments must be filed in GN Docket No. 25-133. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.

Paperwork Reduction Act of 1995 Analysis: This document does not contain new or modified information collections subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501-3521. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, 44 U.S.C. 3506(c)(4).

Congressional Review Act: The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Direct Final Rule to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

This Direct Final Rule continues our efforts to modernize our regulatory framework by rescinding facially obsolete public safety and homeland security rules and requirements in parts 0, 4, 9, 10, 11, and 90 of our rules. In this proceeding, we have undertaken a sweeping review eventually aimed at eliminating outdated rules, reducing unnecessary regulatory burdens, accelerating infrastructure deployment, promoting network modernization, and spurring innovation. Our objective is to streamline, simplify, and smartly deregulate across multiple fronts simultaneously to better serve the public and support technological progress.

In initiating this proceeding, we generally sought to identify rules that are outdated, obsolete, unlawful, anticompetitive, or otherwise no longer in the public interest. In today's item, we specifically focus on the repeal of certain public safety and homeland security rules in various parts for which prior notice and comment are unnecessary, but for which we elect to provide an opportunity for input on that assessment. Absent any significant adverse comments in response to this Direct Final Rule, these rules will be repealed.

Good Cause to Forgo Notice and Comment. Under the Administrative Procedure Act (APA), when an agency for good cause finds that notice and public comment “are impracticable, unnecessary, or contrary to the public interest,” it need not follow notice and comment procedures before modifying or repealing rules. Prior notice and comment are “unnecessary” when ` “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.' ”

We have identified approximately 21 rule provisions and rule parts, totaling 2,927 words and covering approximately 7 pages in the Code of Federal Regulations, that plainly no longer serve the public interest. One such rule provision, 47 CFR 9.20, has sunset by operation of law and ceased to be effective on September 1, 2025.

We have also found rule provisions that no longer serve the public interest because they govern expired events. Section 4.17(e) sets the compliance deadline for the Mandatory Disaster Response Initiative as May 1, 2024, a date that has passed. Section 9.11(a) regulates fixed VoIP services prior to 2021 and non-fixed VoIP services prior to 2022, dates which have passed and, in any case, specifies regulations that have been superseded by subsection 9.11(b). Section 9.19(d)(1) sets the deadline for initial 911 reliability certifications as October 15, 2014, a date which has passed. Section 10.11 establishes implementation timelines for Wireless Emergency Alerts (WEA) and the change of “Presidential Alert” to “National Alert,” which have passed. Section 10.230 establishes election procedures related to an initial compliance deadline that has since been deleted from the rules. Section 10.260 establishes compliance deadlines for requirements to notify subscribers of non-participation in WEA, which have passed. Section 11.31(d)(2) establishes a compliance deadline for discontinuing use of the National Information Center EAS originator code, which has since passed. Section 11.34(g) establishes a compliance deadline for EAS equipment acceptability, which has since passed. Section 11.21(d)-(f) establishes one-time reporting obligations for participants in the Emergency Alert System (EAS) and State Emergency Communications Committees (SECCs) about making EAS content available in languages other than English, the deadlines for which have passed, and an ongoing requirement to report updates on these efforts, which have never been triggered. Section 11.31(d)(2) establishes a compliance deadline for discontinuing use of the National Information Center EAS originator code, which has since passed. Section 11.34(g) establishes a compliance deadline for EAS equipment acceptability, which has since passed.

Other sections no longer serve the public interest because they regulate obsolete technology. Section 9.10(n) allows CMRS providers who offer dispatch service to meet the basic 911 requirements and Phase I and II requirements of section 9.10 either by complying with the requirements or by routing the customer's emergency calls through a dispatcher, but the Commission does not believe there are any CMRS providers who currently offer dispatch service that would be subject to this rule. Section 11.16 describes obsolete procedures for priority-based processing of national, state, and local alerts that are no longer followed, as reflected by the deletion of the Emergency Alert Termination (EAT) alert code in 2012. Section 90.20(d)(28) denotes frequencies unavailable for assignment in Puerto Rico or the Virgin Islands to protect an air-to-ground radio service that no longer exists.

We also identified rule sections that govern technology that is no longer used in practice by the FCC or licensees. Section 11.11(e) describes procedures for voluntary participation in EAS that need not be reflected in regulations as they do not create binding obligations for any entity. Section 11.21(b) describes Local Area EAS Plans without creating binding obligations for any entity and that, if created, would exist as part of the State EAS Plan, which is subject to separate requirements. Section 11.21(c) describes an “FCC Mapbook” document that has never been developed. Section 11.43 describes procedures to allow entities to voluntarily participate in EAS that need not be codified and that are not used in practice. Section 11.47 specifies that entities may contact the FCC for guidance on EAS participation, which does not need to be codified, and authorizes broadcast stations to transmit EAS alerts using subcarriers, which is not used in practice.

Finally, we identified sections that are otherwise duplicative, outdated, or unnecessary. Section 0.181(d) references the Joint Telecommunications Resources Board (JTRB), which no longer exists as of 2012. Sections 0.191(q) and 0.192 provide for creation of the Emergency Response Interoperability Center (ERIC), which was rendered unnecessary in light of the formation of First Responder Network Authority in 2012. Section 4.1(b) directs providers subject to the rule to use the definitions section of part 4 to determine whether they are subject to the rules, which is self-evident and unnecessary to codify. Section 10.450(c) is unnecessary given provisions in 47 CFR 10.430. Applying the “good cause” standard discussed above, we conclude that prior notice and comment are unnecessary before repealing the rules identified in the Appendix.

Direct Final Rule Process. In this Direct Final Rule, we follow the processes previously outlined by the Commission regarding direct final rules, which we briefly summarize here. At times when the Commission has found prior notice and comment unnecessary before modifying or repealing rules, it simply adopted the relevant rule change without any additional process. Although we reserve the right to proceed in that manner, we elect in this decision to proceed using what is known as a “direct final rule” process. By proceeding through a direct final rule, the Commission chooses to provide expanded opportunities for public comment when it is not legally required to do so under the “good cause” standard. Although the Commission has adopted specific rules codified in the Code of Federal Regulations related to notice-and-comment rulemaking procedures under 47 CFR part. 1, subpart. C, there is no legal requirement that we adopt rules before employing processes permitted by the APA and the Communications Act. For example, 47 U.S.C. 154(j) says that absent previously specified procedural obligations to the contrary, “[t]he Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” Under a direct final rule process, rule changes are adopted without prior notice and comment, but accompanied by an opportunity for the public to file comments—and if we conclude that significant adverse comments have been filed, the relevant rule changes would not take effect until after a full notice and comment process.

In particular, we will publish this item adopting direct final rules in the Federal Register , and allow for comment from interested parties within 20 days of Federal Register publication. Until 20 days after Federal Register publication, this shall be a “permit-but-disclose” proceeding for purposes of our ex parte rules. Because this comment process is directed toward the discrete objective of the direct final rule process, and to avoid unwarranted delay in that process, we prohibit filings addressing the rule changes contemplated in this Direct Final Rule more than 20 days after Federal Register publication, absent further direction from the Commission published in the Federal Register . Up until that date, we find it in the public interest to continue to operate under permit-but-disclosure procedures in this regard, consistent with the status of the In Re: Delete, Delete, Delete proceeding more generally. This both accords with the purpose of the comment process for direct final rules, and is similar (though not identical) to actions the Commission has taken in other contexts to provide a defined end-point for public filings to enable the Commission to focus its attention on the submissions already before it. In the event that a petition for reconsideration of this action is filed, we will subsequently specifically address any comment process associated with such a petition in light of the prohibition on filings addressing the rule changes more than 30 days after Federal Register publication.

The direct final rules will be effective 60 days after Federal Register publication. To the extent that the Commission receives comments on these direct final rules, we will evaluate whether they are significant adverse comments that warrant further procedures before changing the rules. In our assessment, we plan to be guided by the Public Engagement and Good Cause Recommendation of the Administrative Conference of the United States (ACUS) at 89 FR at 106409 that “[a]n agency should consider any comment received during direct final rulemaking to be a significant adverse comment if the comment explains why: a. The [direct final] rule would be inappropriate, including challenges to the rule's underlying premise or approach; or b. The [direct final] rule would be ineffective or unacceptable without a change.” The touchstone for this analysis is whether a comment materially calls into question the conclusion that prior notice and comment is unnecessary under the APA, which is the predicate for use of direct final rule procedures. While we expect the formulation provided by ACUS to be a useful guide for conducting that analysis, our statutory determination of “good cause” to forgo notice and comment ultimately represents the critical issue, rather than the particular language used by ACUS.

In the event that we conclude that significant adverse comments have been filed, the Public Safety and Homeland Security Bureau (the Bureau) will publish a timely withdrawal in the Federal Register so that this Direct Final Rule does not become effective until any appropriate additional procedures have been followed. If significant adverse comments are filed only with respect to a subset of the rule revisions addressed by this Direct Final Rule, the Bureau will withdraw the portions of the Direct Final Rule that were subject to significant adverse comments. For example, if a significant adverse comment is filed regarding a single rule within a direct final rule addressing multiple rules, we will publish a withdrawal addressing only that rule.

In the event that no comments are filed in response to this Direct Final Rule, we do not anticipate publishing a confirmation of the effective date in the Federal Register , but simply will allow the rule changes to take effect as originally specified. Where comments are filed, but none of the comments are significant adverse comments, where warranted by the record the Bureau will issue a Public Notice that will briefly explain why any comments filed were not determined to be significant adverse comments. Although the Public Notice is a document in a non-notice and comment rulemaking proceeding, nothing in that document is required to be published in the Federal Register by the APA given that the Public Notice is not itself adopting new or modified rules. As a result, the Bureau also need not publish the Public Notice in the Federal Register to establish the date of “public notice” for the Public Notice under § 1.4(b)(1) of the rules—which is limited to documents in rulemaking proceedings “required by the Administrative Procedure Act to be published in the Federal Register ”—and instead the date of the Public Notice will be the release date per § 1.4(b)(4).

Accordingly, it is ordered that, pursuant to sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), (j), 303(r), this Direct Final Rule is adopted. Except as specified in the Direct Final Rule process summarized above, this Direct Final Rule shall be effective upon Federal Register publication of the rule changes set forth in the Appendix, which also shall serve as the date of public notice of that action.

It is further ordered that the amendments of the Commission's rules as set forth in the Appendix shall be effective 60 days after Federal Register publication. In the event that significant adverse comments are filed, the Public Safety and Homeland Security Bureau shall publish a timely document in the Federal Register withdrawing the rule so that the rule change does not become effective until any additional procedures have been followed. In the event that significant adverse comments are filed with respect to only a subset of the rule revisions, we direct the Public Safety and Homeland Security Bureau to publish a timely document in the Federal Register withdrawing only such rule so that the rule change does not become effective until any additional procedures have been followed.

It is further ordered that the Office of the Managing Director, Performance Program Management, shall send a copy of this Direct Final Rule in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends parts 0, 4, 9, 11, and 90 of Title 47 of the Code of Federal Regulations as follows:

This is a summary of the Commission's Report and Order, in ET Docket No. 23-120, RM-11785, FCC 25-60, adopted on September 23, 2025, and released on December 9, 2025. The full text of this document is available for public inspection and can be downloaded at https://docs.fcc.gov/public/attachments/FCC-25-60A1.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the Report and Order on small entities. The FRFA is set forth in Appendix B, https://www.fcc.gov/document/fcc-adopts-final-rules-implementing-wrc-15.

Paperwork Reduction Act. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

Congressional Review Act. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this this rule is “major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the Third Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

By this document the Commission amends the United States Table of Frequency Allocations (U.S. Table) in the Commission's rules to implement certain radiofrequency (RF) allocation decisions in the Final Acts of the International Telecommunication Union (ITU) World Radiocommunication Conference 2015 ( WRC-15 Final Acts ), make other allocation changes in the U.S. Table that are not related to WRC-15 Final Acts implementation, and revise parts 2, 25, 74, 78, 87, 90, 97, and 101 of the rules to reflect the allocation changes.

In this document, the Commission implements certain spectrum allocation decisions from the WRC-15 Final Acts, which were proposed in the WRC-15 Notice, including those for amateur radio, satellite services, and for aural broadcast auxiliary and television broadcast auxiliary stations. The Commission's decisions are generally divided into space and terrestrial issues, along with other matters, as follows.

• Provide satellite-based search and rescue systems operating in the 406-406.1 MHz band with protection from out-of-band emissions from operations in adjacent bands by adding footnote US265 to the U.S. Table and revising section 90.265 to, inter alia, prohibit new fixed and mobile service frequency assignments in the adjacent 100 kilohertz bands at 405.9-406.0 MHz and 406.1-406.2 MHz. Revise footnote US13 and section 90.265 to prohibit new assignments for the frequencies 406.1250 and 406.1750 MHz, following the effective date of the rules in this proceeding.

• Allocate the 410-420 MHz band to the space research service (space-to-space) on a secondary basis for non-Federal use, limited to communications links with an orbiting, manned space vehicle and require compliance with a power flux-density limit at the Earth's surface to protect existing and future licensees.

• Provide for Global Flight Tracking by allocating the 1087.7-1092.3 MHz sub-band to the aeronautical mobile-satellite (route) service (Earth-to-space) on a primary basis for Federal and non-Federal use, limited to space station reception of existing automatic dependent surveillance broadcast (ADS-B) emissions from aircraft and addition of paragraph (a)(13) to section 25.202 of the Commission's rules to permit the licensing of space stations that can receive ADS-B emissions from aircraft.

• Add footnote US78 to the 960-1164 MHz band in the Federal Table and non-Federal Table portions of the U.S. Table to recognize federal use by military systems for Identification Friend or Foe operations on center frequencies 1030 MHz (for interrogators) and 1090 MHz (for transponders).

• Revise footnote US224 to require federal systems that utilize spread spectrum techniques for terrestrial communication, navigation, and identification in the 960-1215 MHz band be authorized on the condition that harmful interference not be caused to aeronautical mobile, aeronautical radionavigation, military identification friend or foe operations, aeronautical mobile satellite, and radionavigation satellites.

• Defer consideration of providing spectrum on a secondary basis for non-Federal Earth-to-space operations in the Earth exploration-satellite service in the 7190-7250 MHz band and the space research service in the 7190-7235 MHz band.

• Allocate the 9.2-9.3 GHz band and the 9.9-10.4 GHz band to the Earth exploration-satellite service (active) on a primary basis for Federal use and on a secondary basis for non-Federal use.

• Revise footnote US128 to support the Department of Defense's development of pulsed emissions systems in the 10-10.5 GHz band for the military services.

• Revise the rules for the 18.142-19.3 GHz, 28.5-29.1 GHz, and 29.25-29.5 GHz bands as follows. Update footnote US139 and the related service rules to reflect that incumbent fixed stations in the 18.3-19.3 GHz band no longer have primary status. Raise the secondary non-Federal fixed-satellite service (space-to-Earth) allocation in the 18.142-18.3 GHz band to co-primary status with the fixed service. Amend footnote US139 to allow certain fixed stations to continue to operate indefinitely under existing conditions; revise footnote NG62 to permit grandfathered fixed stations in the 28.5-29.1 GHz and 29.25-29.5 GHz bands to operate on a secondary basis to prioritize fixed-satellite services operating in the band.

• Delete the primary radionavigation-satellite service allocation from the 149.9-150.05 MHz and 399.9-400.05 MHz bands.

• Allocate the 5351.5-5366.5 kHz (60-meter) band to the amateur service on a secondary basis; continue to make available on a secondary basis the four existing channels outside of the 5351.5-5366.5 kHz band; and establish other operating guidelines for amateur use of the band.

• Update the coordination and contact information in US270 for amateur stations operating in previously defined areas of the 420-450 MHz (70 centimeter) band.

• Delete the broadcasting service allocation in the 700 MHz band.

• Delete footnote NG155 from section 2.106 as unnecessary and inapplicable under the Commission's current rules.

• Decline the addition of a new paragraph within section 2.102 of the Commission's rules to address certain space research service (deep space) allocations.

• Amend section 2.1(c) of the rules to add or revise definitions in accordance with those adopted at WRC-15. Revise the radiosonde definition in section 2.1(c) to correct a typographical error ( i.e., correct “ballon” to read “balloon”).

• Amend section 2.105(d) of the rules to clarify how the footnote references which appear in the U.S. Table are applicable to the allocated services in the U.S. Table.

The International Telecommunications Union (ITU) convenes a World Radiocommunication Conference (WRC) typically every three to four years to address international spectrum use. Specifically, the WRC allocates frequency bands to various radio services generally on either a worldwide or regional basis and enters these radio services in the ITU's Table of Frequency Allocations (which is reflected in section 2.106 of the Commission's rules as the International Table of Frequency Allocations) as part of the Radio Regulations. WRC-15 was held in Geneva, Switzerland from November 2 to November 27, 2015, with more than 40 topics addressed related to frequency allocation and sharing for spectrum and orbital resources, with the decisions ultimately published by the ITU as the WRC-15 Final Acts. On September 10, 2018, the National Telecommunications and Information Administration (NTIA) submitted its recommendations for national implementation of the WRC-15 Final Acts to the Commission. This was followed by the Commission's WRC-15 Administrative Order, which reflected the WRC-15 changes to the International Table and made other non-substantive, editorial changes to the Commission's rules, including revisions to the Federal Table that did not require notice and comment.

The actions taken herein reflect the Notice of Proposed Rulemaking ( WRC-15 Notice ), released on April 21, 2023, in which the Commission proposed to amend the Commission's rules to implement certain of the remaining allocation decisions from the ITU's WRC-15 Final Acts concerning portions of the radio spectrum between 5330.5 kHz and 29.5 GHz, make other allocation changes that are not related to WRC-15 Final Acts implementation, and update the Commission's service rules to reflect the allocation changes. As of November 28, 2023, the date that the reply comment period ended in this docket, the Commission received 3,457 filings. Implementation decisions regarding WRC-15 allocations have also been made in other Commission proceedings.

The Commission's rules currently authorize Emergency-Position Indicating Radio Beacon, Emergency Locator Transmitter, and Personal Locator Beacon transmissions in the 406-406.1 MHz band to Federal government satellites that carry Search and Rescue Satellite (SARSAT) receivers. The National Oceanic and Atmospheric Administration (NOAA) operates polar orbiting and geostationary satellites that carry payloads providing distress alert and location information to appropriate public safety rescue authorities for maritime, aviation, and land users in distress.

The Commission adopts proposals addressing concerns that aggregate levels of electromagnetic interference, including interference from transmissions in adjacent frequency bands, are adversely affecting the operations of SARSAT receivers operating in the 406-406.1 MHz band. These proposals received no comment. First, the Commission adopts the Commission's proposal for a new footnote US265 in the U.S. Table (Federal and non-Federal portions) in section 2.106(a) for the 403-410 MHz band to prohibit new frequency assignments within the 405.9-406.0 MHz and 406.1-406.2 MHz bands under the fixed and mobile services allocations in the 403-406 MHz and 406.1-410 MHz bands. The Commission adopts its tentative conclusion that medical device radiocommunication service (MedRadio) operations currently allowed by footnote US64 will not interfere with SARSAT operations due to their ultra-low power generation. No commenter disagreed with this tentative conclusion. Accordingly, the Commission concludes that MedRadio devices can operate consistent with US265 and their secondary status within the band and the Commission does not believe that US265's prohibition of new frequency assignments within the 405.9-406.0 MHz and 406.1-406.2 MHz bands requires us to restrict MedRadio's continued use and growth within the 401-406 MHz band. The Commission also adopts its proposal which states that, in order to protect SARSAT devices, any radiosonde applicants seeking to operate in the band would need to take into account frequency drift characteristics when selecting operating frequencies above 405 MHz to avoid transmitting in the 406-406.1 MHz band and to take all practical steps to avoid the operating frequency drifting close to 406 MHz.

The Commission also adopts related proposals regarding fixed and mobile services in the adjacent 403-406 MHz and 406.1-410 MHz bands. These proposals also received no comment. First, in the WRC-15 Notice, the Commission proposed to revise footnote US13 and section 90.265 to state that, after the effective date of the final rules in this proceeding, no assignments for the frequencies 406.1250 MHz and 406.1750 MHz would be made, and that existing stations could continue to operate indefinitely on these frequencies as they are currently licensed. The Commission received no comment on this proposal and therefore revise footnote US13 and section 90.265 as proposed. The Commission believes that this action will ensure consistency with US265 and help protect SARSAT systems operating in the adjacent 406-406.1 MHz band from out-of-band emissions (OOBE) originating on the frequencies 406.1250 MHz and 406.1750 MHz. The Commission also adopts the Commission's proposal to update footnote US117 to reflect that non-federal use of the 406.1-410 MHz band is limited to the radio astronomy service and as provided by footnotes US13 and US55.

Current use of the 410-420 MHz band is limited to the fixed, mobile, and space research (space-to-space) services on a primary basis for Federal use, with non-Federal use limited to MedRadio operations in the 413-419 MHz segment of the band. As proposed in the WRC-15 Notice, the Commission allocates the 410-420 MHz band to the space research service (space-to-space) on a secondary basis for non-Federal use. The Commission also adopts footnote 5.268 in the non-Federal portion of the U.S. Table in the 410-420 MHz band. Footnote 5.268 limits the use of the space research service to space-to-space communication links with an orbiting, manned space vehicle, and requires compliance with a power flux density (PFD) limit at the Earth's surface of -153 to -148 dBw/m 2 in a 4-kilohertz bandwidth, depending on the angle of arrival of the radio-frequency wave, to protect existing and future fixed and mobile services operations from harmful interference.

These proposals received no comment and the Commission concludes that allocating the 410-420 MHz band to the space research service (space-to-space) on a secondary basis for non-Federal use will support both increased commercial exploration of the deep space environment and protect primary Federal operations in this band. Additionally, the adoption of footnote 5.268 restricts the use of this band to communications links with an orbiting, manned space vehicle and limits the PFD at Earth's surface, which will protect stations of the primary fixed and mobile services bands from harmful interference.

The Commission adopts proposals intended to enhance global flight tracking capabilities. First the Commission adopts its proposal to allocate the 1087.7-1092.3 MHz band to the aeronautical mobile-satellite (route) service (Earth-to-space) on a primary basis for Federal and non-Federal use, limited to space station reception of automatic dependent surveillance-broadcast (ADS-B) emissions from aircraft by referencing footnote 5.328AA in the 960-1164 MHz band within the U.S. Table. ADS-B is a service that automatically broadcasts GPS-derived data on the location, velocity, altitude, heading, and other performance metrics, of an ADS-B-equipped aircraft to other ADS-B-equipped aircraft and ground stations for distribution to air traffic control systems. Pursuant to Federal Aviation Administration regulations, after January 1, 2020, virtually all aircraft must be able to transmit ADS-B information (ADS-B Out) to fly in most controlled airspace. For aircraft that operate above 18,000 feet or need to comply with ADS-B requirements outside the United States, the equipment must operate on the frequency 1090 MHz using what are often referred to as 1090ES transponders. All other aircraft may carry equipment operating either on frequency 978 MHz or frequency 1090 MHz. In 2006, the Commission adopted technical and operational rules for ADS-B transmissions on 978 MHz using Universal Access Transceiver (UAT) technology. While the Commission authorized the use of the frequency 1090 MHz by aeronautical utility mobile stations used for airport surface detection in 2013, it has not adopted technical and operational rules specifically for airborne ADS-B transmissions on 1090 MHz. However, part 87 accommodates the use of 1090 MHz aeronautical utility mobile stations as airborne electronic aids to navigation in the 960-1215 MHz band.

The Commission adopts the proposed implementation of the primary aeronautical mobile-satellite (route) service allocation, limited to space station reception of automatic dependent surveillance-broadcast (ADS-B) emissions from aircraft, by referencing footnote 5.328AA in the 960-1164 MHz band within the U.S. Table (Federal and non-Federal Tables). Under section 87.5 in the Commission's aviation service rules, ADS-B is currently defined as broadcast transmissions from aircraft, supporting aircraft-to-aircraft or aircraft-to-ground surveillance applications, including position reports, velocity vector, intent and other relevant information about the aircraft. To reflect this enhanced ADS-B capability in the aviation service rules, the Commission modifies the definition of ADS-B in section 87.5 to include space station reception of automatic dependent surveillance-broadcast (ADS-B) emissions from aircraft in the 1087.7-1092.3 MHz band. Additionally, the Commission adds paragraph (a)(13) to section 25.202 of the Commission's rules to permit the licensing of space stations that can receive ADS-B emissions in the 1087.7-1092.3 MHz band from aircraft. The new primary aeronautical mobile-satellite (route) service (Earth-to-space) allocation that the Commission adds in section 2.106(a) will extend reception of ADS-B signals beyond terrestrial line-of-sight to facilitate reporting the position of aircraft located anywhere in the world. As aircraft travel over land, there are generally terrestrial networks capable of forwarding this information to flight control centers. When travelling over an ocean or other remote regions, however, space stations can provide an alternative ADS-B point of reception.

Iridium, in its comments, supports the Commission's proposal to create a primary allocation in the band for Earth-to-space ADS-B transmissions from aircraft. Further, Iridium suggests that the Commission should automatically upgrade to primary status existing Earth-to-space authorizations in the band, such as those in its second-generation satellite authorization. No commenter opposed this proposal.

The Commission agrees with Iridium and conclude that providing a primary allocation for satellite reception of ADS-B signals from aircraft-in-flight would ensure the efficient management of air traffic in oceanic, polar, and remote airspace. The use of ADS-B directly influences many factors, such as the minimum separation distances between aircraft, resulting in the efficient use of airspace, optimization of air routes, and altitude availability due to events such as changes in weather conditions. Regarding Iridium's request that existing Earth-to-space operations in this band, such as those in Iridium's second-generation satellite authorization, automatically be upgraded to primary status, the Commission directs Iridium to the terms of its waiver grant. Specifically, the Commission stated as a condition of licensing Iridium's second-generation satellites that “[o]perations in the 156.0125-162.0375 MHz and 1087.7- 1092.3 MHz bands must be in accordance with any Commission rulemakings subsequent to the release of this Order and Authorization that implement any new domestic allocations or service rules for these bands.” As the Commission's rule today allocates the 1087.7-1092.3 MHz band to the aeronautical mobile-satellite (route) service (Earth-to-space) on a primary basis for Federal and non-Federal use, Iridium's existing ADS-B satellite operations in this band would, under the terms of the waiver, also attain primary status within this band.

As proposed, the Commission also adds new footnote US78 to the 960-1164 MHz band in the U.S. Table in section 2.106(a) to recognize Federal use by military systems for Identification Friend or Foe (IFF) operations on center frequencies 1030 MHz (for interrogators) and 1090 MHz (for transponders). This proposal, suggested by NTIA, did not result in any comments. This use will be subject to the condition that harmful interference not be caused to the aeronautical radionavigation service or the aeronautical mobile (R) service. The Commission believes that this use will enhance the ability of military aircraft to determine whether other aircraft are friendly in nature.

Lastly, as proposed, the Commission revises footnote US224 to require Federal systems that utilize spectrum spread techniques for terrestrial communication, navigation, and identification in the 960-1215 MHz band be authorized on the condition that harmful interference not be caused to the aeronautical mobile (route) and aeronautical radionavigation services in the 960-1164 MHz band, Federal IFF systems on center frequencies 1030/1090 MHz, aeronautical mobile-satellite (route) service (Earth-to-space) in the 1087.7-1092.3 MHz band, and the aeronautical radionavigation and radionavigation-satellite (space-to-Earth) (space-to-space) services in the 1164-1215 MHz band. The Commission believes that this footnote revision is necessary to protect the increased number of services operating in the aforementioned bands. Although updates to its part 87 rules were not specifically proposed in the WRC-15 Notice' s rule parts list, the Commission did request comment on whether modifications to its part 87 rules were necessary to implement any of the proposed changes. The Commission received no comment but conclude that, in order to fully implement its decision, the Commission must revise section 87.479 of the Commission's rules to reflect the additional aviation services that will now be entitled to protection that footnote US224 provides to part 87 radionavigation services in the 960-1215 MHz band.

In the WRC-15 Notice, as recommended by NTIA, the Commission sought comment on whether it should provide spectrum on a secondary basis for non-Federal Earth-to-space operations for the Earth exploration-satellite service in the 7190-7250 MHz band and the space research service in the 7190-7235 MHz band. In the U.S. Table, the 7190-7235 MHz band is allocated to the Earth exploration-satellite (Earth-to-space) and fixed services, both on a primary basis and exclusively for Federal use. The 7190-7235 MHz portion of the band is also allocated on a primary basis to the space research services (Earth-to-space) exclusively for Federal use. For the reasons discussed below, the Commission declines to address these spectrum bands herein and are deferring a decision for future Commission action.

The Commission specifically sought comment on making these Federal uplink bands available for non-Federal use on a secondary basis for Earth-to-space operations in the Earth exploration-satellite and space research services by adding footnotes US460 and US460A to the 7190-7235 MHz band and footnote US460A to the 7235-7250 MHz band. Footnote US460 would provide a secondary non-Federal allocation in the 7190-7235 MHz band for the space research service (Earth-to-space) and would prohibit emissions from such systems intended for deep space. Footnote US460A would allocate the 7190-7250 MHz band to the Earth exploration-satellite service (Earth-to-space) on a secondary basis for non-Federal use, limited to tracking, telemetry, and command (TT&C) for the operation of spacecraft. Commenters express concern with these proposals. NCTA, in its comments, states that “[t]he circumstances of the 7/8 GHz range have changed significantly since the Commission issued the NPRM in April 2023 and even more since NTIA made its original recommendation to the Commission in 2018. Qualcomm states that moving now to allocate these sub-bands “would further complicate the spectral landscape that has been earmarked for domestic study and potentially international studies under the ITU-R working groups.”

Multiple commenters cite the National Spectrum Strategy (NSS) to assert that additional allocations in the 7/8 GHz band could complicate future allocation decisions. One of the spectrum bands identified is the 7125-8400 MHz band, which the NSS states “will be studied for wireless broadband use” (on a licensed and/or unlicensed basis), though, as NTIA states in the strategy, “some sub-bands eventually may be studied for other uses.” It goes on to state that there are a variety of mission-critical Federal operations in this band (including Fixed, Fixed Satellite, Mobile, Mobile-Satellite, Space Research, Earth Exploration-Satellite, and Meteorological-Satellite Services) that would make it challenging to repurpose portions of the band while protecting incumbents from harmful interference.

CTIA states that any proposal to allocate the “7190-7235 MHz band to the Space Research Service and the 7190-7235 MHz band to the Earth Exploration Satellite-Service on a secondary basis for non-Federal use has been overcome by the NSS and a series of additional events since WRC-15's conclusion and NTIA's submission to the Commission of its WRC-15 Final Acts implementation recommendations.” CTIA goes on to state that the 7/8 GHz spectrum range is vital “to the 7-16 GHz band that Chairwoman Rosenworcel has identified for 6G and that the ITU is expected to explore this spectrum range for next-generation wireless deployments.” T-Mobile states that the Commission should refrain from taking any action that would “limit its options regarding the use of these bands for future wireless services.”

Lockheed Martin, however, states in its comments that “implementing only a secondary non-Federal allocation domestically [in support of deep-space operations] poses the risk of rendering the band unusable for future non-Federal operations absent adequate protections.” Lockheed encourages the Commission to instead make the allocation on a primary basis in the Table of Allocations.

In light of ongoing governmental workstreams reviewing the band, changes in the spectral environment, and opposition from stakeholders across multiple sectors, the Commission finds it premature to reach a decision at this time on additional allocations in this band. The Senate Commerce Committee's budget reconciliation bill proposes that the NTIA conduct a timely spectrum analysis of the 7.25-7.4 GHz band in support of the House's budget reconciliation bill which outlines the Administration's effort to identify and auction 600 megahertz of spectrum for advanced mobile and fixed broadband services. Lawmakers have identified the 7/8 GHz band in particular as warranting consideration for future spectrum auctions. While the Commission recognizes the importance of the space exploration mission being undertaken by NASA and its commercial partners, the information received in the record indicates that moving ahead with allocations in these bands at this time could complicate studies of the bands for advanced wireless uses.

The Commission adopts its proposals to allocate the 9.2-9.3 GHz and 9.9-10.4 GHz bands to the Earth exploration-satellite service (active) on a primary basis for Federal use and on a secondary basis for non-Federal use, subject to four footnotes: 5.474A, 5.474B, 5.474C, and US474D. These proposals would implement WRC-15's expansion of the current worldwide Earth exploration-satellite service (active) allocation in the 9.3-9.9 GHz band by allocating an additional 600 megahertz of spectrum in the adjacent bands to this service and support the growing demand for greater image resolution to satisfy global environmental monitoring requirements while protecting adjacent-bands services from any interference issues this increase in usage may cause. Spaceborne radars operating in this band support a large number of scientific and geoinformation applications, such as disaster relief and humanitarian aid, land use, and large area coastal surveillance.

In the WRC-15 Notice, the Commission sought comment on whether to allocate the 9.2-9.3 GHz and 9.9-10.4 GHz bands to the Earth exploration-satellite service (active) on a primary basis for Federal use and on a secondary basis for non-Federal use, subject to the conditions of four footnotes added to the 9.2-9.3 GHz and 9.9-10.4 GHz bands (5.474A, 5.474B, 5.474C, and US474D). Footnote 5.474A limits the use of the 9.2-9.3 GHz and 9.9-10.4 GHz bands to systems in the Earth exploration satellite service (active) requiring a necessary bandwidth greater than 600 megahertz that cannot be fully accommodated within the 9.3-9.9 GHz band. Footnote 5.474B states that stations in the Earth exploration-satellite service (active) shall comply with Recommendation ITU-R RS.2066-0 (WRC-15), which provides an operational procedure to avoid main-beam to main-beam coupling between Earth exploration-satellite service systems when transmitting near 9.6 GHz and radio astronomy service stations performing observations in the 10.6-10.7 GHz band. Footnote 5.474C states that stations operating in the Earth exploration-satellite (active) service shall comply with Recommendation ITU-R RS.2065-0 (WRC-15), which provides mitigation techniques that can reduce the unwanted emissions of Earth exploration-satellite service (active) systems to avoid interference with space research service (space-to-Earth) links in the 8.40-8.45 GHz and 8.45-8.50 GHz bands. Lastly, footnote US474D (based partially on footnote 5.474D) would require that stations in the Earth exploration-satellite service (active) not cause harmful interference to, or claim protection from, the maritime radionavigation service in the 9.2-9.3 GHz band and the radiolocation service in the 9.9-10.4 GHz band. The Commission also sought comment on whether the 9.2-9.8 GHz and 9.9-10.4 GHz bands should be allocated to the Earth exploration satellite-service (active) on a primary basis for non-Federal use, so that the status of those non-Federal allocations would mirror the status of the Federal Earth exploration satellite-services (active) in those bands. The Commission received no comment on these proposals.

The Commission adopts the proposal to allocate the 9.2-9.3 GHz and 9.9-10.4 GHz bands to the Earth exploration satellite-service (active) on a primary basis for Federal use and on a secondary basis for non-Federal use, subject to the four aforementioned footnotes (5.474A, 5.474B, 5.474C, US474D). The Commission believes that this allocation will support the growing demand for scientific and geoinformation applications for both the Federal and non-Federal operations. Further, the application of the four footnotes to these bands will protect adjacent services from any interference issues this increase in usage may cause. Lastly, the Commission declines to adopt its proposal to allocate the 9.2-9.8 GHz and the 9.9-10.4 GHz bands to the Earth exploration satellite-service (active) on a primary basis for non-Federal use so the status of these allocations would mirror the status of the primary Federal Earth exploration satellite-service (active) allocations in these bands, as the Commission believes that the non-Federal secondary allocation the Commission adopts today in the 9.2-9.3 GHz and 9.9-10.4 GHz bands will provide non-Federal users with sufficient bandwidth for their operations. Declining to raise the status of the secondary non-Federal Earth exploration satellite-service (active) allocations in these bands to primary status will also help protect adjacent-band operations from harmful interference, as the proposed non-Federal primary allocation was not subject to footnotes 5.474A, 5.474B, 5.474C, and US474D, which the WRC-15 Final Acts prescribed to protect adjacent services from increased EESS usage in the 9.2-9.3 GHz and 9.9-10.4 GHz bands.

The Commission also proposed to revise footnote US128 to support the Department of Defense's (DOD) development of pulsed emissions systems for the military services in the 10-10.5 GHz band. The 10-10.5 GHz band is currently allocated to the radiolocation service on a primary basis for Federal use; the 10-10.45 GHz band is allocated to the amateur and radiolocation services on a secondary basis for non-Federal use; the 10.45-10.5 GHz band is allocated to the amateur, amateur-satellite, and radiolocation services on a secondary basis for non-Federal use; and the 9.975-10.025 GHz band is allocated to the meteorological-satellite service on a secondary basis for use by weather radars for Federal and non-Federal use. US128 currently prohibits pulsed emissions in the 10-10.5 GHz band, except for weather radars onboard meteorological satellites in the 10-10.025 GHz sub-band. The Commission received no comments on this proposal and revise footnote US128 to permit DOD's development of pulsed emissions systems for the military services in the 10-10.5 GHz band to help meet future system needs.

The Commission sought comment in the WRC-15 Notice on revising footnote NG62 to permit grandfathered fixed stations in the 28.5-29.1 GHz and 29.25-29.5 GHz bands to operate on a secondary basis; updating footnote US139 and the related service rules to reflect that incumbent fixed stations in the 18.3-19.3 GHz band no longer have primary status; raising the secondary non-Federal fixed-satellite service (space-to-Earth) allocation in the 18.142-18.3 GHz band to co-primary status with the fixed service; and amending US139 to allow certain fixed stations to continue to operate indefinitely under existing conditions.

First, the Commission revises footnote NG62 to permit grandfathered fixed stations to operate on a secondary basis in the 28.5-29.1 GHz and 29.25-29.5 GHz bands, which prioritizes fixed-satellite services operating in the band. Footnote NG62 currently states that, in the 28.5-29.1 GHz and 29.25-29.5 GHz bands, stations in the fixed-satellite service shall not cause harmful interference to, or claim protection from, stations in the fixed service operating under 18 listed call signs. The Commission proposed to amend footnote NG62 to permit fixed stations authorized pursuant to the 10 listed call signs that currently operate in these bands to continue to operate indefinitely on a secondary basis. The Commission adopted NG62 when it deleted the primary fixed and mobile service allocations from the 28.35-29.1 GHz and 29.25-29.5 GHz bands in the non-Federal Table of Frequency Allocations. The Commission additionally notes that the Commission's rules permit earth stations in motion (ESIMs) to operate in these frequency bands. The proposed secondary status of these fixed stations would recognize that ESIMs, which may operate anywhere without coordination with the fixed stations, may cause intermittent interference to these fixed stations. Only one commenter, Iridium, addresses this proposal. Iridium contends that when the Commission adopted its Ka-band (29.1-29.5 GHz) plan in 2017, it plainly intended for the band to be used primarily for satellite feeder links. Iridium further states that the proposal would clearly establish the status of the grandfathered terrestrial stations by stating that they are secondary to satellite operations in the 29.1-29.5 GHz band. Given the fact that only 10 of the 18 legacy fixed stations continue to operate in the band, amending NG62 to prioritize satellite operations ultimately rationalizes the relative priorities for services in the 28.5-29.1 GHz and 29.25-29.5 GHz bands.

As proposed, the Commission amends footnote US139 to state that, in the 18.3-19.3 GHz band, earth station licensees in the fixed-satellite service (space-to-earth) may require that licensees of grandfathered stations in the fixed service cease operations, consistent with the provisions in section 101.95 of the Commission's rules. The Commission made this proposal because, in the 18.3-19.3 GHz band, there is no fixed service allocation and there are no longer any primary grandfathered fixed stations. The Commission also proposed to revise sections 74.502(c), 74.602(g), 78.18(a)(4), and 101.147(r) of the rules in order to update the introductory text and the frequencies that are available to applicants of aural broadcast auxiliary stations, television broadcast auxiliary stations, cable television relay service, and fixed microwave services, respectively. While most of the proposed changes would remove channels that are no longer allocated to the fixed service, in one instance the Commission proposed to add replacement channels, i.e., the Commission proposed replacing the 12 frequency pairs in section 74.502(c)(1)(i) of the rules with the 5-megahertz channels from section 101.147(r)(5). The Commission also proposed to update sections 101.95(a) and 101.147(a) to remove expired text and to remove sections 101.83 through 101.91 and 101.97, which concern expired policies governing fixed service relocation from the 18.3-19.3 GHz band. The Commission received no comment on these proposals and, due to the absence of both a fixed allocation and the lack of any primary grandfathered fixed stations operating in the band, the Commission amends its rules to update the 18.3-18.9 GHz band as proposed. The Commission will also revise sections 74.502(c), 74.602(g), 78.18(a)(4), and 101.147(r) of the rules in order to update the introductory text and the frequencies that are available to applicants of aural broadcast auxiliary stations, television broadcast auxiliary stations, cable television relay service, and fixed microwave services. Lastly, the Commission will adopt its proposal to replace the 12 frequency pairs in section 74.502(c)(1)(i) of the rules with 5-megahertz channels from section 101.147(r)(5), as well as make the aforementioned updates to section 101.91 and 101.97 to remove expired language.

The Commission also adopts its proposal to raise the non-Federal, secondary fixed-satellite service (space-to-Earth) allocation in the 18.142-18.3 GHz band to co-primary status (co-equal with the non-Federal fixed service allocation in the band). This upgrade in allocation status provides receiving earth stations with interference protection from later-licensed fixed stations used for part 74 and part 101 Multichannel Video Programming Distributor (MVPD) and part 78 cable television relay service (CARS) operations that operate in accordance with the proposed rules in this section. The Commission received no comment on this proposal and adopt it based on its conclusion that this upgrade in allocation status will result in earth station's using this band more intensely and enhanced spectrum efficiency. This action to raise the non-Federal secondary FSS (space-to-Earth) allocation in the 18.142-18.3 GHz band to primary status also aligns with NTIA's recommendation in the 18 GHz Band Report, which identified the 18 GHz band for expanded Federal and non-Federal satellite operations, consistent with the U.S. position at WRC-23.

Lastly, the Commission sought comment on whether it should allow continued operation of existing CARS licenses that authorize operation in the 18.3-18.304 GHz and 18.3-18.334 GHz bands in Puu Nianiau, Hawaii, and Placerville, California, respectively, and to revise footnote US139 to codify that these fixed stations may continue to operate indefinitely under existing conditions. Again, the Commission received no comment on these proposals and thereby allow continued operation of the aforementioned fixed stations and codify footnote US139, allowing continued, indefinite operation of these stations under existing conditions.

Consistent with the WRC-15 Final Acts and as proposed in the WRC-15 Notice, the Commission remove the radionavigation-satellite service allocation in the 149.9-150.05 MHz and 399.9-400.05 MHz bands from the Federal and non-Federal portions of the U.S. Table. These two bands are allocated to the mobile-satellite service (Earth-to-space) and the radionavigation-satellite service, both on a primary basis, for Federal and non-Federal use. The WRC-15 Final Acts deleted the radionavigation-satellite service allocations from the International Table in these bands because they expired on January 15, 2015, pursuant to footnote 5.224B. The Commission received no comment on this proposal. A search of the Commission's International Communications Filing System (ICFS) database revealed that that there are no RNSS licensees in the two bands. Thus, the Commission deletes the radionavigation-satellite service allocation from the two bands and retain the existing primary allocations to the mobile-satellite service (Earth-to-space) in the two bands on an exclusive basis, consistent with the WRC-15 Final Acts.

In this section, the Commission makes allocation decisions regarding amateur use of the 5351.5-5366.5 kHz band and the four discrete channels at 5332, 5348, 5373, and 5405 kHz that are outside of the band, as well as the technical and operational characteristics amateurs must adhere to when utilizing the band and the four discrete channels. The WRC-15 Final Acts allocated the 5351.5-5366.5 kHz band to the amateur service on a secondary basis in all ITU regions and generally set a maximum radiated power at 15 watts equivalent isotropically radiated power (EIRP), equivalent to 9.15 watts effective radiated power (ERP). In the WRC-15 Notice, the Commission sought comment on a number of proposals affecting amateur use of this band, including whether to allocate the 5351.5-5366.5 kHz band to the Amateur Radio Service on a secondary basis, whether the amateur service should keep the existing four channels at 5332, 5348, 5373, and 5405 kHz they use that are outside of the new allocation (known by amateurs as the 60-meter band), whether use and power limitations should be applied to the band, and the appropriate station class for use of the band, among others.

Under current Commission rules, the 5275-5450 kHz band is allocated for Federal/non-Federal shared use to the fixed service on a primary basis and the mobile except aeronautical mobile service on a secondary basis. Footnote US23 provides the amateur service with a secondary allocation on five discrete channels—each with a maximum bandwidth of 2.8 kilohertz and centered on frequencies 5332, 5348, 5358.5, 5373, and 5405 kHz. Current Commission rules also allow stations in the amateur service to transmit on these frequencies with a maximum ERP of 100 W peak envelope power (PEP)—over ten times more powerful than WRC-15's EIRP limit.

In 2017, the American Radio Relay League (ARRL), filed a Petition for Rulemaking asking the Commission to implement the amateur allocations provided for in the WRC-15 Final Acts, to retain the four amateur service channels outside of the band, to authorize amateurs General Class or above to use the contiguous band, and to retain the maximum ERP limit of 100 W PEP for use in the new band. NTIA recommends that the Commission conforms footnote US23 to the WRC-15 Final Acts by allocating the 5351.5-5366.5 kHz band to the amateur service on a secondary basis, removing the four existing amateur channels outside of this proposed new amateur band, and restricting the maximum radiated power of amateur operations in the band to 15 W EIRP (9.15 W ERP).

Allocation. For the reasons stated below, the Commission modifies footnote US23 and part 97 of the Commission's rules to implement the new international allocation at 5351.5-5366.5 kHz, retain the existing four channels at 5332, 5348, 5373, and 5405 kHz that are outside of the new allocation, and do not restrict the existing secondary allocation for the existing four channels to disaster response operations. The Commission first sought comment on the proposal to modify footnote US23 and part 97 of the Commission's rules to implement the new international allocation at 5351.5-5366.5 kHz and whether to retain the existing four channels at 5332, 5348, 5373, and 5405 kHz that are outside of the new allocation. While commenters support the new international allocation, they are generally opposed to the removal of the four discrete channels outside of the new allocation. A commenter states that the “propagation characteristics of the 60-meter band allow for more reliable communications over medium distances than other amateur bands such as the 80-meter or 40-meter bands.” Another commenter states that the “60-meter band has proven to be immensely valuable in facilitating public service initiatives. Its strategic positioning between the 80-meter and 40-meter amateur bands ensures reliable signal propagation to specific geographic areas, particularly during temporal and solar cycle fluctuations.” Commenters generally aver that the amateur radio community requires access to a range of frequencies in order to achieve long-distance propagation by refracting high frequency communications off of the ionosphere. Commenters additionally note that, depending on atmospheric conditions, signals transmitting at lower frequencies, such as the 3500-4000 kHz band, can be absorbed by the ionosphere. Conversely, there are atmospheric conditions such that operation at higher frequencies, for example the 7000-7300 kHz range, could result in signals that pass through the ionosphere completely, avoiding the desired refraction necessary for long distance reception. Multiple commenters thus took issue with the Commission's statement in the WRC-15 Notice, which characterized the internationally harmonized spectrum options at 3 and 7 MHz as being sufficient for amateur operations, with most commenters reiterating the different propagation characteristics of the bands.

In 2003, when the Commission originally granted amateurs a secondary allocation in the 5250-5400 kHz range, the Commission stated its belief that frequencies within that range might be useful for completing disaster communications links at times when the 3 and 7 MHz bands were not available due to ionospheric conditions. The Commission continues to hold that opinion and thus allocate the 5351.5-5366.5 kHz band to the amateur radio service by modifying footnote US23 and part 97 of the Commission's rules. Additionally, the Commission retains the existing four channels at 5332, 5348, 5373, and 5405 kHz that are outside of the new allocation for continued amateur use.

The Commission also sought comment on whether it should alternatively only allow amateur access to the four discrete channels at 5332, 5348, 5373, and 5405 kHz in response to disasters. Amateurs participating in the Military Auxiliary Radio System (MARS) or SHAred RESources (SHARES) High Frequency (HF) Radio programs during disasters or the Amateur Radio Emergency Service (ARES) or the Radio Amateur Civil Emergency Service (RACES) emergency communications programs were invited to share their proposals for whether the existing channels should continue to be used and under what conditions. One commenter states that utilization of the 60-meter band channels allows the amateur community to receive up to date emergency communications from MARS stations. On the other hand, another commenter states that use of the 60-meter band should be conditioned upon use for practice drills in MARS, SHARES, ARES, and RACES and that non-emergency use should not be allowed. However, most commenters on this issue do not support restricting the band to emergency use and some state that, while emergency use of the band by qualified amateurs remains important, non-emergency use gives amateurs an important frequency band for continued communications. The Commission finds that restricting the existing allocation to disaster response would deprive the amateur community of an important means of communication, especially in instances where ionospheric propagation characteristics at alternative high frequency bands render them potentially unusable.

Channelization and Permitted Uses. Consistent with its proposal in the WRC-15 Notice, the Commission does not require the use of channelization or sub-bands in the new internationally harmonized amateur allocation. In the WRC-15 Notice, the Commission stated that, due to the wide variety of potential applications and the need to protect other communications, dividing the band into channels or sub-bands would lead to inefficient spectrum use. The Commission also proposed that, due to the propensity of some wideband digital emissions creating spectrum sharing problems, a maximum emission bandwidth of 2.8 kilohertz should be imposed on amateur operations in the band. The Commission asked commenters whether there were any other limits or technical rule changes necessary to ensure reliable and efficient use of the band.

Most commenters support the Commission's proposal not to channelize the new international allocation, with one stating that channelization in the amateur radio service is limiting due to the varying nature of emissions depending on type ( e.g., continuous wave, phone, or digital). Another commenter, however, supports the notion of channelization, stating that the new 15 kilohertz band can be neatly channelized into five, 3-kilohertz channels, which would help to maintain order by letting users know where transmissions must occur. Regarding other technical proposals for the band, another commenter argues against the use of continuous wave (CW) transmissions, stating that they are obsolete and have not been used for primary communications in other radio services for years. On the other hand, another commenter argues that the new 15 kilohertz band should not be channelized and should be restricted to narrow modes only, such as CW and digital, with no phone mode allowed on the new band. One commenter expresses support for the Commission's proposal not to channelize the new 15 kilohertz band and states that any unencrypted digital operation should be allowed as long as its emission bandwidth does not exceed 2.8 kilohertz, which the commenter maintains is necessary to preserve spectrum in this narrow band. Other commenters also support the Commission proposal to limit emission bandwidth to 2.8 kilohertz within the new band.

Due to the limited contiguous allocation of 15 kilohertz, the Commission recognizes that amateur radio operators will need flexibility to utilize the new allocation. Thus, the Commission does not require the use of channelization or sub-bands in the new allocation at 5351.5-5366.5 kHz. The Commission also carries forward the requirement of section 97.303(h) of the Commission's rules, currently applicable to the discrete channels at 5332, 5348, 5373, and 5405 kHz, which stipulates that amateur operators shall ensure that emission bandwidth not exceed 2.8 kilohertz, which the Commission also agrees will preserve access to the limited spectrum in this secondary allocation. Amateurs utilizing the discrete channels located at 5332, 5348, 5373, and 5405 kHz should already be familiar with these requirements and they have been quite successful in the mitigation of interference to primary users. The Commission found the comments that favored channelization to be unpersuasive, due to both the record reflecting substantial opposition to channelization and the fact that narrow band modes of operation allow a multitude of signals to transmit on a single 2.8 kilohertz channel.

Station Class. The Commission limits use of the existing amateur allocations at 5332, 5348, 5373, and 5405 kHz and the new amateur allocation at 5351.5-5366.5 kHz to amateur radio operators holding a General Class license or higher. The Commission proposed in the WRC-15 Notice that utilization of the new international allocation at 5351.5-5366.5 kHz should be limited to amateurs holding a General Class license or higher. The Commission also sought comment on its proposal that if it maintains the four discrete channels at 5332, 5348, 5373, and 5405 kHz outside of the international allocation, should they too be limited to General Class licensees or higher. Commenters support the Commission's proposal to limit use of the new 15 kilohertz band to General Class licensees or above, with one stating that it is necessary “due to the narrowness of the band, the need to calculate radiated power limits for the antenna configuration, and the need to understand the requirements ensuring that primary users are protected from harmful interference.” ARRL also suggests that use of the new international allocation and the four channels outside of that allocation should be limited to General Class licensees or higher, as “[e]ntry-level radio amateurs may not have the requisite experience to operate in accordance with the interference avoidance protocols with which much more experienced licensees will be proficient.”

The Commission agrees with commenters that utilization of the new international allocation at 5351.5-5366.5 kHz should be limited to those holding a General Class license or above. The Commission believes that the need to protect the important Federal operations in this band requires a higher level understanding of power limitations, radiocommunications technology, operating practices, and applicable regulations. Those holding General Class licenses or above will have a better understanding of these requirements. Further, this logic extends to the four discrete channels that are outside of the 5351.5-5366.5 kHz band, and the Commission limits utilization of these frequencies to those holding a General Class license or higher.

Power. For the reasons stated below, the Commission does not allow the amateur community to utilize the new international allocation at 5351.5-5366.5 kHz at the requested 100 W ERP limit and adopt NTIA's proposal to limit usage of this band to 15 W EIRP, or 9.15 W ERP. Operating on a secondary basis, the amateur community must protect Federal operations in this band, and the Commission does not believe that the increased potential for harmful interference at this power limit has been fully considered at this time. Amateur access to the four discrete channels at 5332, 5348, 5373, and 5405 kHz will however, continue at the same 100 W ERP limit. In the WRC-15 Notice, the Commission tentatively concluded that NTIA's recommended 15 W EIRP limit would reduce the potential of harmful interference to incumbent primary operations and that the long-range propagation capabilities of the frequencies in question would likely allow efficient communications at low-power levels. The Commission did, however, concede that there may be instances where more power is needed to deal with propagation challenges. The Commission asked commenters seeking a power limit above the proposed 15 W EIRP to explain the appropriate power limit for the 60-meter band, if higher power levels should only be maintained during emergency drills/response, how the power limit should be defined in the Commission's rules (EIRP, ERP, or transmitter output power), and whether antenna limitations were necessary.

In line with ARRL's Petition for Rulemaking and proposed retention of the 100 W ERP limit for both the 15 kilohertz band at 5351.5-5366.5 kHz and the four discrete channels at 5332, 5348, 5373, and 5405 kHz outside of the new allocation, most commenters argue against the proposed power reduction. Many point out that Canada has already enacted the proposals ARRL has put forth in this proceeding, namely retention of the 100 W ERP limit for the 60-meter band, and that identical allocations and power limits would facilitate harmonious communications throughout most of North America. Commenters argue that the 100 W ERP limit currently in place for the 60-meter band is necessary to maintain reliable communications, while others state that the current power limit is necessary for emergency communications when propagation on other bands is limited by solar and earth conditions. Others argue for an even larger power increase, asking the Commission to consider a 500 W ERP limit, “since lower frequencies are more susceptible to D-layer absorption and emergency communications will still need to be heard, especially in high latitude locations like Alaska.” Consistent with most commenters, however, is the contention that the current use of the 100 W ERP limit on the 60-meter band has not been shown to cause harmful interference to the primary users of the band, both in assigned channels and through spurious emissions outside of the allocation. Some commenters argue that, due to the use of newer and more efficient digital modes, weak signals are not an impediment to sending information and the 15 W EIRP limit proposed by the NTIA is sufficient. Others, however, state that amateur, non-emergency operations conducted in the four discrete channels outside of the new allocation should be restricted to the 15 W EIRP limit and that, aside from practices and drills, these channelized frequencies should not be used by the amateur community unless an actual emergency exists, at which point the 100 W ERP limit would be appropriate. Another commenter states that stipulating power levels based on scenario (emergency/non-emergency, drills, etc . . .) would overcomplicate the issue. Lastly, many commenters oppose the Commission's proposal to define the power limit in terms of EIRP to be consistent with the WRC-15 recommendation, with one commenter stating that EIRP measurements are applicable to important communication links and multi-node networks—not amateur radio. Another commenter further states that the measuring standard should remain as ERP, instead of EIRP, as the ERP standard is widely used and understood in the amateur radio service. One commenter argues that if an appropriate power standard such as EIRP or ERP is used, then no antenna limitations are necessary.

The Commission agrees with those commenters that support the proposed 15 W EIRP (9.15 W ERP) for the new international allocation at 5351.5-5366.5 kHz, in line with the WRC-15 Final Acts and the Commission's tentative conclusion in the WRC-15 Notice. However, for consistency in part 97 and the power specification for the discrete channels the Commission is leaving in place, the Commission specifies the power limit as 9.15 W ERP, which is equivalent to 15 W EIRP. Additionally, as stated above, allowing amateur operations in this band while fully protecting incumbent primary Federal operations is the Commission's priority, and even intermittent interference in this band could jeopardize important Federal operations. Also, the long range propagation characteristics of this band should allow for efficient communications even at low-power levels. Given, however, that ARRL's Petition for Rulemaking remains open at this time, the Commission expects the Commission may address any necessary power adjustments for the new 15 kilohertz international allocation in that proceeding. The Commission also allows continued amateur access to the four discrete channels at 5332, 5348, 5373, and 5405 kHz at the prevailing 100 W ERP, which was supported by the majority of commenters and which has not posed any interference issues. Further, the Commission does not stipulate power levels based on scenario (emergency/non-emergency), as this would add unnecessary regulatory complexity. The Commission also continues to use ERP as the measuring standard—as most amateurs are familiar with this standard—and the Commission does not adopt antenna limitations, as the Commission believe that a radiated power limit would ensure that excess power is not used.

The Commission's next proposal, based on a request from the NTIA, was to update the coordination and contact information in footnote US270 for the areas where the peak envelope power of an amateur station operating in the 420-450 MHz (70 cm) band is generally limited to 50 watts, and to revise the cross reference to this footnote in section 97.313(f) of the rules.

The Commission received no comment on this proposal and implement the NTIA recommendation, which will clarify compliance with its rules, by updating footnote US270 and revising the cross reference to this footnote in section 97.313(f) of the rules.

The Commission adopts its proposal to delete the broadcasting service allocations in the 698-758 MHz, 775-788 MHz, and 805-806 MHz bands from the non-Federal Table and to revise footnote NG159 by removing the reference to part 74, subpart G. Comments received on this topic support the Commission's proposal to delete the broadcasting service allocations. These actions are appropriate given that the transition of television broadcasting from the 698-806 MHz (700 MHz) band concluded in 2010 and the remaining primary fixed and mobile service allocations in the bands effectively gives the licensees in those bands the flexibility to provide broadcasting services. The Commission also asked whether it should modify the part 27 service rules to reflect the deletion of the broadcasting service allocation in the 700 MHz band. Commenters, while expressing general support, did not specifically indicate which rules should be modified. The Commission concludes that modifications to its part 27 rules to reflect the deletion of the broadcasting service allocation in the 700 MHz band are unnecessary to reflect the changes made in this Order.

The Commission's final proposal in the Terrestrial component of the WRC-15 Notice, concerned the removal of footnote NG155 from the 157.45-161.575 MHz band in the U.S. Table in section 2.106(a) and from section 2.106(d)(155) of the rules because the frequencies and frequency bands to which it applies are not currently authorized in part 80 of the Commission's rules. As the International Table of Frequency Allocations has already identified frequencies for worldwide intership communications, the Commission concludes that there is no need to specify any other frequencies for intership use. For these reasons, and the lack of any comment on the proposal, the Commission removes footnote NG155 from section 2.106 of the rules.

The WRC-15 Final Acts also added a provision in Article 4 of the Radio Regulations (No. 4.24) to describe the use of space research service (deep space) allocations. Accordingly, in the WRC-15 Notice, the Commission proposed to add a new paragraph to section 2.102 of the Commission's rules to clarify that: “Space research systems intended to operate in deep space may also use the space research service (deep space) allocations, with the same status as those allocations, when the spacecraft is near the Earth, such as during launch, early orbit, flying by the Earth, and returning to the Earth.”

Commenters within the wireless industry voice concern that adding this language to section 2.102 of the Commission's rules would affect spectrum bands (Table 3 below) targeted for future wireless use by both the Commission and the NTIA's National Spectrum Strategy. CTIA and T-Mobile both comment that multiple frequency bands which an updated section 2.102 would affect, such as the 2110-2120 MHz band, the 7145-7190 MHz band, the 8400-8500 MHz band, and the 12.7-13.25 GHz band, have already been allocated for wireless services 2110-2120 MHz, for example, has been allocated for advanced wireless service (AWS) use) or are being targeted for future wireless use. Both T-Mobile and Verizon ask the Commission to fully consider how the expansion of the space research (deep space) allocation would impact broader agency and U.S. priorities, including the need for additional terrestrial wireless capacity. At the same time, T-Mobile does concede that an evaluation of this allocation is particularly important, as the proposed near-earth operations include mission critical launch and return to earth functions.

Given shifting spectrum priorities since the completion of the WRC-15 Final Acts, along with a record reflecting majority opposition to the proposals outlined in the WRC-15 Notice, the Commission will not adopt the proposed expansion of the space research (deep space) allocation.

The Commission next sought comment on a proposal to amend section 2.1(c) of the rules to add or revise the definitions for the terms “meteorological aids land station,” “meteorological aids mobile station,” and “coordinated universal time” in accordance with the WRC-15 adopted definitions. The Commission received no comment on these proposals and adopt the definitions for the terms “meteorological aids land station,” “meteorological aids mobile station,” and “coordinated universal time” in accordance with the WRC-15 adopted definitions. The Commission also corrects a typographical error in the definition of “radiosonde” in section 2.1(c) ( i.e., “ballon” should be balloon).

The Commission next sought comment on a proposal to amend section 2.105(d) of the rules by stating that the footnote references which appear in the U.S. table below the name(s) of the allocated service or services apply to more than one of the allocated services, or to the whole of the allocation concerned, and that the footnote references which appear to the right of the name of the allocated service are applicable to only that particular service. The Commission received no comment on this clarifying proposal and amend section 2.105(d) accordingly.

Finally, in the WRC-15 Notice, the NTIA recommended that the Commission add a subset of international footnotes that identify specific spectrum bands for International Mobile Telecommunications (IMT) to the non-Federal table. No comments were received on this subject. The Commission does not generally specify the technology that licensees must use in a particular frequency band. Identifying particular bands for IMT use in the non-Federal table would contradict this general policy. NTIA's recommended subset of international footnotes identifies specific frequency bands for IMT use but does not preclude use of the bands for other purposes or establish any priority for IMT use of the bands. Because the footnotes are merely advisory, their absence from the non-Federal table will not impact the use of these bands.

It is ordered that, pursuant to sections 1, 4(i), 4(j), 7, 301, 303(c), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157, 301, 303(c), 303(f), and 303(r), the Order is adopted.

It is further ordered that the amendments of parts 2, 25, 74, 78, 87, 90, 97 and 101 of the Commission's rules, as set forth in Appendix A, are adopted, effective thirty (30) days after publication in the Federal Register .

It is further ordered that the Commission's Office of the Secretary, shall send a copy of the Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

It is further ordered that the Commission shall send a copy of the Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2, 25, 74, 78, 87, 90, 97, and 101 as follows:

PHMSA is adopting several amendments proposed in the HM-265 notice of proposed rulemaking (NPRM) titled Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation. 1 These amendments will reduce costs and eliminate unnecessary regulatory burdens on the transportation of hazardous materials, including energy products, while maintaining the current level of safety provided by the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The amendments adopted in this final rule are:

• In part 107, subpart F, revise the cargo tank facility registration requirements to allow for electronic submission procedures.

• In section 171.7, replace the current incorporation by reference of Chlorine Institute (CI) drawings in paragraphs (l)(3) and (l)(4) with the entire CI Pamphlet 49, Recommended Practices for Handling Chlorine Bulk Highway Transports, which provides guidelines for the safe transportation of chlorine by highway. The updated incorporation by reference includes the use of the Midland Type pressure relief device (PRD) for cargo tanks transporting chlorine as referenced in updated section 173.315.

• In section 172.336, revise the marking requirements for multiple petroleum distillate fuels to allow the marking of the identification number of the fuel with the lowest flash point transported in the same or previous business day.

• In section 172.704, include hazmat employees who only manufacture packagings within the scope of the existing exception from safety training. Further, remove the security awareness training requirement for any hazmat employees who only perform hazmat activities related to packagings ( e.g., employees who manufacture, repair, modify, recondition, or test packagings, and do not offer for transportation or transport hazardous materials in commerce).

• In section 178.337-1(d), allow the use of external coverings other than paint that meet reflectivity requirements for Cargo Tank Motor Vehicles (CTMVs).

• In section 180.407(a)(7), allow the use of video cameras or video optics equipment for cargo tank inspections or tests.

PHMSA included several other proposals in the NPRM that are not being advanced in this final rule. The proposals included, among other things, amendments to the HMR to address 2017 Rail Safety Advisory Committee (RSAC) consensus recommendations; the Association of American Railroads' (AAR) delegated authority to approve tank car designs and tank car facility quality assurance programs; revisions to the construction and qualification of highway CTMVs; revisions to improve the safe transport of hazardous materials by vessel; and other multi-modal provisions. PHMSA is continuing to evaluate the merits of these proposals and may publish another final rule at a later date. 2

The amendments adopted in this final rule provide substantial cost savings by reducing unnecessary burdens on the transportation of petroleum distillate fuels, such as gasoline and diesel fuel, by motor carriers. This final rule also provides cost savings to the hazardous materials packaging industry by removing an unnecessary training requirement and adopting measures allowing the use of technologies that introduce efficiencies for cargo tank tests and inspections. Together, the amendments adopted in this final rule provide a quantified cost savings of approximately $145.3 million per year, while also providing qualitative benefits to energy transportation through greater regulatory flexibility for cargo tank owners and cargo tank facility operators.

PHMSA currently incorporates by reference into the HMR all or parts of numerous standards and specifications developed and published by standards development organizations (SDO). In general, SDOs accredited as voluntary consensus standards bodies develop, establish, or coordinate technical standards using agreed-upon procedures and update and revise their published standards every two to five years to reflect modern technology and best technical practices. The National Technology Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs Federal agencies to use standards developed by voluntary consensus standards bodies in lieu of government-written standards whenever possible. The Office of Management and Budget (OMB) issued Circular A-119, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, 3 to implement section 12(d) of the NTTAA relative to the utilization of consensus technical standards by Federal agencies. This circular provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in the NTTAA.

PHMSA is responsible for determining which standards currently referenced in the HMR should be updated, revised, or removed, and which standards should be added to the HMR, under the NTTAA and OMB Circular A-119. Revisions to materials incorporated by reference in the HMR are handled via the rulemaking process, which allows for the public and regulated entities to provide input. During the rulemaking process, PHMSA must also obtain approval from the Office of the Federal Register to incorporate by reference any new materials. The Office of the Federal Register issued a rulemaking  4 that revised 1 CFR 51.5 to require that an agency detail in the preamble of a rulemaking the ways the materials it proposes to incorporate by reference are reasonably available to interested parties, or how the agency worked to make those materials reasonably available to interested parties. Changes to the material incorporated by reference in the HMR are detailed in the section 171.7 discussion in “Section V. Section-by-Section Review of Amendments.”

In this final rule, PHMSA incorporates by reference the CI Pamphlet 49 in its entirety, rather than incorporating individual valve design drawings from the document as was done in the past. This authorizes an additional pressure relief valve design for cargo tanks in chlorine service. PHMSA has reviewed Pamphlet 49, including the valve design drawing mentioned, and found this new valve meets PHMSA's safety standards, and that incorporating this document by reference into the HMR will not reduce safety but instead will allow more flexibility for CTMV owners and operators.

The Chlorine institute sells their standards one their website. The edition of the Pamphlet 49 incorporated by reference in this final rule can be obtained by contacting the Chlorine Institute bookstore by phone at (703) 894-4140, by email at pubs@CL2.com, or at their contact page at https://www.chlorineinstitute.org/contact-us.

The HMR require bulk packages containing hazardous materials to be marked with the identification number assigned to the hazardous material contained in the package— see section 172.302. This requirement is often met by displaying the required identification number inside the hazard class placard that is also displayed on the bulk package— see section 172.332(c) and (d). The requirement to mark the identification number on a cargo tank may also be met by using an orange panel or white square-on-point— see sections 172.328, 172.332(b), and 172.336(b), respectively.

The Hazardous Materials Table (HMT) in section 172.101 contains hundreds of identification numbers for flammable liquids. Flammable liquids, also known as Class 3 materials, are defined as liquids that have a flash point less than or equal to 60 °C (140 °F)— see section 173.120(a). Flash point means the minimum temperature at which a liquid gives off vapor within a test vessel in sufficient concentration to form an ignitable mixture with air near the surface of the liquid— see section 173.120(c). Generally, liquids with a lower flash point present a greater relative hazard than those with higher flash points because they can ignite at lower temperatures.

Many of the fuels Americans rely on to power their cars, trucks, and boats, and to heat their homes are flammable liquids derived from the distillation of crude oil. 5 These fuels, which include gasoline (UN1203), kerosene (UN1223), diesel fuel (NA1993/UN1202), and fuel oil (NA1993), are commonly referred to as “petroleum distillate fuels.” Gasoline has a flash point of −45 °C (−49 °F)  6 compared to 52 °C (126 °F) for diesel fuel, 7 37.8 °C (100 °F) for kerosene, and 38 °C (100.4 °F)  8 to 58 °C (136 °F)  9 for fuel oil. It is not uncommon for a CTMV in fuel delivery service to deliver multiple types of fuel requiring different identification numbers in a single day's operation—for instance, delivering gasoline on one trip, and diesel fuel on the next.

PHMSA's Emergency Response Guidebook (ERG) provides the same initial emergency response instructions for all petroleum distillate fuels- see Guide 128. 10 Because the initial emergency response instructions are the same, PHMSA proposed allowing cargo tanks to display the identification number of the petroleum distillate fuel with the lowest flash point transported in the cargo tank in the HM-265 NPRM. As discussed in more detail below, this proposal is aligned with regulatory history and the original intent of the provisions when they were first added to the HMR.

In the HM-118 final rule  11 titled Identification Numbers, Hazardous Wastes, Hazardous Substances, International Descriptions, Improved Descriptions, Forbidden Materials, and Organic Peroxides, the Research and Special Programs Administration (RSPA)—PHMSA's predecessor agency—amended the requirements in section 172.336 to allow the identification number of the lowest flash point fuel transported in a cargo tank to be displayed during shipment. RSPA adopted this amendment in section 172.336(c)(5) “to eliminate the need for continuous changes in identification numbers in many operations where gasoline and fuel oil are transported in the same cargo tank on different trips during the same day.”  12 This amendment remained in place for more than 30 years until PHMSA inadvertently eliminated the provision in a subsequent final rule.

In 2013, PHMSA published another final rule titled Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR) (HM-219). 13 In HM-219, PHMSA replaced sections 172.336(c)(1)-(6) with a table to “more clearly indicate hazard communication requirements.”  14 In the new table, PHMSA added paragraphs (c)(1)-(3) and (c)(6) as individual entries but consolidated the language in paragraphs (c)(4) and (5) into a single entry. PHMSA did not intend to change the original intent of paragraphs (c)(4) and (5) in consolidating these provisions, but the language used in the new table had that effect.

In 2016, Congress passed a statute addressing the identification number marking requirements for petroleum distillate fuels. Specifically, in the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (2016 PIPES Act), 15 Congress included a mandate stating that, “[n]ot later than 90 days after the date of enactment of this Act, the Secretary of Transportation shall issue an [ANPRM] to take public comment on the petition for rulemaking dated October 28, 2015, titled `Corrections to Title 49 CFR 172.336 Identification numbers; special provisions' (P-1667).” The rulemaking petition referenced in the mandate (P-1667  16 )—and an additional petition (P-1668  17 )—had been filed after PHMSA inadvertently altered the identification number marking requirements for petroleum distillate fuels in HM-219.

Shortly after the passage of the 2016 PIPES Act, PHMSA published the advance notice of proposed rulemaking (ANPRM) titled Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel (HM -213E). 18 The central issue addressed in the HM-213E ANPRM was whether a CTMV transporting different types of petroleum distillate fuels ( e.g., gasoline, diesel fuel, kerosene, and fuel oil) over the course of multiple trips should be permitted to display the identification number of the fuel with the lowest flash point previously transported, even when that fuel is not currently contained in the cargo tank ( e.g., display “1203”—the identification number for gasoline—when the cargo tank contains only diesel fuel on that trip). 19

PHMSA received 14 sets of comments to the HM-213E ANPRM, split between those supporting the provisions allowing the display of the identification number of the fuel with the lowest flash point previously transported, and those opposed. PHMSA received no specific information describing actual instances in which the marking exception led to increased risks in transportation. 20

After publishing the HM-213E ANPRM, PHMSA issued Department of Transportation (DOT) Special Permit (SP) 21104  21 on November 11, 2020. DOT-SP 21104, as further modified on February 26, 2021, allows for the transportation of gasoline, diesel fuel, kerosene, and fuel oil in a CTMV marked with the identification number “1203” provided gasoline, which has the lowest flash point of the fuels listed, had been transported in the cargo tank during the previous or current business day. DOT-SP 21104 has been in place for almost five years, and PHMSA is not aware of any safety issues associated with its use.

Consistent with the rulemaking history and requirements in DOT-SP 21104, PHMSA proposed to reinstate the original exception to the identification number marking requirements for petroleum distillate fuels in HM-265. PHMSA estimated that this amendment would generate cost savings of $145.3 million per year in 2024 dollars, primarily in time savings for petroleum distillate fuel carriers who would no longer be required to change the identification number displayed on their vehicle as frequently. Note that gasoline and ethanol blends that contain more than 10 percent ethanol have different physical properties and may require the application of different types of fire suppression foam. Therefore, these fuels, including “UN3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10% ethanol, 3, PGII” and “UN1987, Alcohols, n.o.s., 3, PG I, II or III” are not included in this marking provision. The ID numbers “UN3475” and “UN1987” must be displayed if those products are contained in the packaging and may not be displayed if the products are not contained in the packaging.

PHMSA is adopting the amendments as proposed.

PHMSA received nine sets of comments addressing the proposal to authorize cargo tanks and tank cars to display the identification number of the petroleum distillate fuel with the lowest flash point transported on that day or the previous business day. The following table identifies each of these commenters and the unique docket identifier for their comment.

PHMSA received supportive comments from United States Representative Pete Stauber, EMA, Dow Chemical Company, and DGAC. PHMSA received opposing comments from the IAFF, IAFC, CVSA, PVA, and KHP. Both sets of comments are summarized and addressed below.

PHMSA received supportive comments from Representative Pete Stauber, EMA, Dow Chemical Company, and DGAC. Dow Chemical Company and DGAC expressed general support for proposed markings for petroleum distillate fuels changes, while Rep. Pete Stauber and EMA provided more detailed comments.

Specifically, Rep. Pete Stauber accurately noted that the proposed amendment restores a previously authorized exception in the HMR. Shippers that transported diesel fuel, heating oil, and gasoline in separate loads were allowed to affix permanent placards with the “UN1203” marking to their CTMVs rather than changing the placard with each subsequent load of a different material. Rep. Pete Stauber also presented information from his constituents indicating that the cost of complying with the current marking requirements is up to $800 per truck. 22 Rep. Pete Stauber presented information from local fire chiefs as well, most of whom provided feedback agreeing that in their firefighting operations they respond the same way with the same type of foam, regardless of whether the placard is marked as 1203 or 1993.

EMA supported the proposed change to section 172.336(c), stating that removing the requirement to change identification numbers with each load when hauling multiple fuels of differing flashpoints in alternating trips provides meaningful economic benefits without reducing the margin of safety. Similar to other commenters, EMA noted that the proposed practice of marking the lowest flashpoint materials transported on a CTMV was previously allowed. Industry consistently used the identification number with the lowest flash point (typically gasoline) for alternating straight loads involving diesel fuel. EMA added that there were no recorded safety concerns with this practice. Since the removal of the prior identification number marking exception, energy marketers have had to implement inefficient workarounds, such as load sequencing or running diesel shipments with one empty compartment containing gasoline residue. EMA noted that these practices are burdensome, inefficient, and costly, and eliminating such inefficiencies, as proposed in the NPRM, will produce tangible cost savings across thousands of cargo tank operations. 23

PHMSA received several comments indicating concern with the proposed changes regarding the marking of CTMVs containing petroleum distillate fuels, including comments from IAFF, IAFC, CVSA, PVA, and KHP. In its comments, IAFF stated that PHMSA's proposal would intentionally create discrepancies between a vehicle's placarding and the contents of the cargo tank. In addition, IAFF stated that failure to disclose all hazardous contents will result in firefighters and other responders following incorrect emergency response procedures. IAFF provided hypothetical operational examples, including a situation where a cargo tank marked “UN1203” (gasoline) is involved in a fire or spill, noting that it could cause firefighters to assume they are dealing with gasoline, which has a low flash point and can ignite easily. According to IAFF, if the tank instead contains diesel (UN1202 or NA1993), which requires higher temperatures for ignition, firefighters may misinterpret the absence of fire as an indication of safety. IAFF further stated that this false sense of security could delay deploying suppression agents tailored specifically for diesel. IAFF also described a scenario with multi-compartmented cargo tanks transporting multiple fuels on separate trips, suggesting that relying on the identification number of the lowest flash point fuel—without clarity on the actual contents at the time of the incident—could lead to confusion among emergency responders. According to IAFF, this confusion could delay critical containment actions and increase the risk of errors in evacuation and decontamination procedures. Lastly, IAFF claimed that using water-based agents, which are effective for gasoline fires, but not for diesel spills, could exacerbate emergency incidents.

In its comments, KHP shared views similar to IAFF, stating that while UN1203 and NA1993 direct emergency responders to the same ERG response procedure, it is important to remember that the ERG is for use by first responders during the initial phase of a transportation incident involving hazardous materials.

The IAFC comments also shared concerns about emergency responders, stating that PHMSA's proposal aims to simplify processes for shippers but overlooks bill of lading requirements ( i.e., shipping paper requirements). IAFC maintained that the different information provided on the shipping paper and the vehicle marking creates confusion for first responders. As described above, IAFC stated that correct markings are necessary when formulating a proper emergency response action plan and, in their view, the rule would have an overall negative impact on first responders.

Finally, PVA echoed IAFF's concerns, stating that vessel operators transporting fuels via tank truck or trailer must be able to identify quickly the contents to respond effectively to an onboard emergency. PVA was concerned this proposal could impede crew members' ability to serve as first responders when a shipment is underway or at the dock.

PHMSA acknowledges the commenters' concerns regarding markings for petroleum distillate fuels and the importance of those markings to emergency responders. As noted in the NPRM, for NA1993, UN1202, UN1203, UN1223, and other petroleum distillate fuels, the ERG directs the reader to the same guide page for initial emergency response instructions. The ERG is designed to aid emergency responders in their initial response to transportation incidents involving hazardous materials and groups materials with similar hazards and properties into specific “guides.” In the case of petroleum distillate fuels, all relevant UN numbers direct the reader to Guide 128, meaning that all petroleum distillate fuels have identical initial response procedures.

As mentioned by some commentors, marking and placarding of the transport vehicle is not the only form of hazardous materials communications that first responders have available to rely on. The HMR also require carriers to maintain a shipping paper onboard the vehicle which provides the proper shipping name, identification number, and hazard class, among other information, of the materials onboard the vehicle. First responders will, in most cases, refer to that document to confirm the specific material involved.

PHMSA is unaware of any fire suppression foams that are specifically tailored for diesel fuel rather than gasoline. For example, readily available literature from a trade association  24 that represents manufacturers of fire suppression equipment, and the State of Tennessee, 25 indicates that Class B foam—both polar and non-polar formulations—is effective in fighting fires caused by non-polar hydrocarbon fuels, like gasoline and diesel fuel. Using this type of foam, or a similar one, could address any concerns emergency responders might have about the exact contents of the tank. In contrast, there are foams specifically tailored for high-ethanol content gasoline—gasoline with more than 10 percent ethanol. However, PHMSA has specifically excluded “UN3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture, with more than 10 percent ethanol, 3, PGII” from this marking exception because of the different fire suppression media required for this type of material. PHMSA believes that any risks and burdens to emergency responders raised by the commenters' hypothetical scenarios are minimal and can be mitigated—if not completely eliminated—by responding to incidents involving petroleum distillate fuels as highly flammable materials.

As previously discussed in the NPRM, the flexibility allowed for markings for petroleum distillate fuels was previously permissible under the HMR. For approximately 33 years, from the publication of HM-118  26 in 1980 until the publication of HM-219  27 in 2013, the HMR allowed a cargo tank transporting more than one petroleum distillate fuel in different trips to display the identification number for the petroleum distillate fuel with the lowest flash point. In that time frame, PHMSA is unaware of any increase in the number of hazardous materials incidents involving petroleum distillate fuels and resulting in injuries to first responders. Similarly, since the unintentional removal of the exception in the HM-219 final rule, PHMSA is unaware of any decrease in hazardous materials incidents involving petroleum distillate fuels and resulting in injuries to first responders.

The comments from the KHP expressed opposition to the proposed change to section 172.336 for petroleum distillate fuels from a law enforcement perspective. The KHP stated that the new marking provision will create unnecessary burdens on law enforcement by requiring law enforcement to decipher what the tank was hauling on the previous business day, which, depending on the day of the week, could have been several days prior. The KHP went on to provide an example of an extended holiday weekend where the previous business day was four days prior. According to the KHP, it is typical for a truck driver not to know the previous contents of the tank for various reasons, such as the vehicle was driven by someone else on the previous business day or the driver just picked up the tank as a contracted carrier.

The KHP further stated that this uncertainty by the driver would lead to increased roadside inspection times and significantly hinder the officer from performing his or her duty because commercial vehicle inspectors must be certain of violations before recording them on an inspection report. The KHP continued that if the inspector is wrong in writing up the carrier, it may result in the carrier being erroneously taken out of service, in addition to the costs associated with reversing the citation, including personnel time to remove violations, dismiss citations, or even refund civil penalties.

Finally, the KHP pointed to a potential conflict with CVSA's out of service criteria, which direct law enforcement to take a vehicle marked with identification number(s) for material(s) that are not present on the vehicle out of service. The commenter notes that CVSA inspection bulletin #2022-06  28 states placards must accurately communicate the hazardous materials transported on the vehicle.

CVSA, the organization that KHP referenced in its comment, also submitted comments on the topic of enforcement. CVSA stated that both industry and enforcement personnel have adapted to the current marking requirements in place and a change at this point would be costly to implement, as both enforcement and industry personnel would have to be retrained. CVSA did not support making the proposed change at this time given what it perceives as the potential risk to first responders associated with the change and the fact that industry has largely adjusted to the status quo of often-frequent placard changes.

As PHMSA stated in the NPRM, law enforcement personnel may use shipping paper records to determine whether a cargo tank was used to transport petroleum distillate fuel with a lower flashpoint than the fuel currently onboard the previous business day. And while there may be scenarios where this change could impose an additional burden on law enforcement personnel, PHMSA is confident that petroleum distillate fuel transporters will have access to the information necessary to assist investigators in making appropriate determinations of compliance.

In response to the KHP's concerns regarding extended roadside inspection times and potential for incorrect citations, PHMSA expects investigators and law enforcement officers to familiarize themselves promptly with the identification number marking requirements for petroleum distillate fuels. As PHMSA expressed in the NPRM, and elsewhere in this rulemaking, the initial emergency response instructions for petroleum distillate fuels are the same, should an incident occur.

The KHP stated that from an instructor's standpoint it is much easier to explain to students that the operator of a CTMV must display identification numbers for the material currently onboard. The KHP further stated that it is difficult for a new student to understand how a CTMV can display an identification number for a material that is not present on the vehicle and will be particularly difficult for students to grasp after listening to instructors spend considerable time in the classroom emphasizing that a vehicle must not display an identification number for a material it is not carrying.

PHMSA appreciates the comments regarding training challenges for inspectors and law enforcement, but notes that this concern is not unique as PHMSA continuously updates the HMR with new rules on a regular basis. While the HMR generally states that no one may represent through hazard communication that a hazardous material is present in the package, motor vehicle, freight container, or other packaging if the hazardous material is not present, it is not uncommon for PHMSA to provide exceptions from general requirements if economic benefits can be produced while minimizing or limiting any potential negative safety impact. For example, a hazardous material that meets the general classification criteria for a flammable liquid may be reclassed and transported as a combustible liquid under certain conditions. In this specific case, the costs of constantly changing the identification number marking for each different petroleum distillate fuel having the same hazard and requiring the same response in case of emergency substantially outweighs the benefit of maintaining each marking and can be done while maintaining safety. Any change PHMSA makes requires shippers, offerors, first responders, and others in the hazardous materials industry to stay up-to-date with the latest regulations, including updating any trainings that may no longer be accurate.

The IAFF comments also address concerns about potential exposure issues, having claimed that firefighters adjust their personal protection equipment (PPE) based on the anticipated hazards of the material involved in a given incident. The IAFF claimed that incorrect identification of the specific hazardous material involved in an incident can result in insufficient PPE, increasing the risk of chemical exposure, thermal burns, or inhalation of toxic fumes if the substances differ significantly from the identification number indicated on the vehicle. For instance, the IAFF asserted that diesel (UN1202) presents different exposure risks compared to gasoline, but that both might be marked as “UN1203” under the proposed rule, which could lead to inadequate protective measures.

While PHMSA does not regulate the uses of or specifications for PPE, PHMSA is unaware of any meaningful differences in PPE requirements for incidents involving the various petroleum distillate fuels. In reviewing several publicly available safety data sheets for various petroleum distillate fuels, PHMSA has found no meaningful variation between the different materials in terms of recommended PPE. While safety data sheets for the same identification numbers can vary depending on the manufacturer, the safety data sheets reviewed by PHMSA, such as those for Marathon Petroleum Corporation, for diesel and gasoline produced by the same company generally included identical PPE recommendations. Furthermore, as previously discussed in this final rule, PHMSA's ERG provides the same initial emergency response instructions for all petroleum distillate fuels, including recommended protective clothing—see Guide 128. 29 The ERG instructs that regardless of the type of petroleum distillate fuel involved, first responders should equip themselves with: (1) a positive pressure self-contained breathing apparatus (SCBA); and (2) structural firefighters' protective clothing that provides thermal protection. Provided that emergency responders are prepared for an incident involving a petroleum distillate fuel, the initial emergency response instructions for the marked material should be effective and have no detrimental safety impact until the actual material is determined.

PHMSA received limited comments on the other topics addressed in this final rule. These comments are addressed in this section.

PHMSA proposed to revise paragraph section 107.502(d) to include a reference to the electronic method for submitting registration statements. One commenter noted that allowing electronic submission of cargo tank registration statements could pose cybersecurity risks due to the data being collected via an online portal as opposed to physical media. 30 PHMSA appreciates the comment and notes that the Federal Motor Carrier Safety Administration (FMCSA) already has security measures in place to store electronic data safely on more than 750,000 active motor carriers and millions of drivers. The same security measures cover the electronic acceptance and storage of cargo tank facility registration statements. PHMSA is not aware of any instances where FMCSA's data security protection measures have failed. Having received no other comments, PHMSA is adopting this change as proposed.

PHMSA proposed to revise section 171.7 to replace the current incorporation by reference of CI drawings for PRDs found in section 171.7(l)(3) and (l)(4) with the entire CI Pamphlet 49 titled, Recommended Practices for Handling Chlorine Bulk Highway Transports in section 171.7(l)(3). CI Pamphlet 49 includes the use of the Midland Type PRD for chlorine cargo tanks in addition to those already permitted in section 173.315. CI provided comments in support of PHMSA's proposal to adopt CI Pamphlet 49 and reference the standard in section 173.315(i)(13). 31 PHMSA did not receive any other comments on this proposal.

Updating the incorporation by reference of Pamphlet 49 to the 2022 version is beyond the scope of this rulemaking. CI may submit a petition for rulemaking to further update the incorporation by reference of Pamphlet 49. Therefore, PHMSA is adopting the revision to incorporate by reference the 2016 version of Pamphlet 49 as proposed.

PHMSA proposed to revise section 172.704(a)(4) to include hazmat employees who only manufacture packagings in the current exception from safety training. Further, PHMSA proposed to except any hazmat employees who only perform hazmat activities related to packagings ( e.g., employees who manufacture, repair, modify, recondition, or test packagings, and do not offer for transportation or transport hazardous materials in commerce) from security awareness training as long as they do not perform any other HMR function. PHMSA received no comments on this proposal and is adopting the change as proposed. For more information on this change please see the section-by-section review discussion elsewhere in this document.

PHMSA proposed to modify the requirement in section 178.337-1(d) for uninsulated cargo tanks to be painted, which would allow for the use of alternative means of providing reflectivity such as a wrap or cover. PHMSA received no comments on this proposal and is adopting the change as proposed. For more information on this change please see the section-by-section review discussion elsewhere in this document.

PHMSA proposed to allow for the use of video cameras or video optics equipment for any cargo tank inspection or test. PHMSA received no comments on this proposal and is adopting the change as proposed, except that the provision is provided in paragraph (a)(7) rather than (a)(8). For more information on this change please see the section-by-section review discussion elsewhere in this document.

Section 107.502 contains the general registration requirements for persons who engage in the manufacture, assembly, certification, inspection, or repair of a cargo tank or CTMV manufactured under the terms of a DOT specification or a special permit. PHMSA proposed to revise paragraph (d) to clarify that persons registering with the Department may submit their registration electronically through FMCSA's existing online portal ( https://portal.fmcsa.dot.gov/UrsRegistrationWizard/ ) or continue to mail a hard copy of their registration statement to FMCSA. In this final rule, PHMSA is adopting this revision as proposed.

Section 171.7 contains the list of material incorporated by reference into the HMR. PHMSA proposed to revise paragraphs (l)(3) and (4) by incorporating by reference CI Pamphlet 49 (Edition 10 (2016)) in its entirety, rather than incorporating by reference individual PRD design drawings from the document. This has the effect of authorizing the Midland Type A-14227-ML PRD design for cargo tanks used in chlorine service. In this final rule, PHMSA is adopting the revision as proposed.

Section 172.303 contains prohibitions on the display of markings that indicate that a specific hazardous material is present when that material is not present in transportation. In response to comments, PHMSA is adding an exception in (b)(4) to this general prohibition for CTMVs that are marked in accordance with the petroleum distillate fuel marking requirements adopted in section 172.336 in this rulemaking. This amendment is a conforming amendment to the section 172.336 marking exception that allows CTMVs to display the identification number of the lowest flash point petroleum distillate fuel transported in the tank on that day or the previous business day. This makes it clear to both motor carriers and enforcement agencies that a CTMV is allowed to display the identification number of the petroleum distillate fuel with the lowest flash point transported in the current or previous business day. In this final rule, PHMSA is adopting the revision as proposed.

Section 172.336 outlines special provisions for the display of identification numbers. PHMSA proposed to revise the section 172.336(c) table, which provides scenarios where identification numbers are either not required or an exception applies. The proposal added a sixth row to Table 1 to Paragraph (c)—Identification Numbers Are Not Required, to authorize the display of the identification number representing the petroleum distillate fuel with the lowest flash point that is transported in a cargo tank in different trips on the previous or current business day. However, due to different emergency response procedures, PHMSA also proposed the exception would not be applicable when the cargo tank transported gasoline and alcohol fuel blends consisting of more than 10 percent ethanol. This is consistent with the current requirements in the fifth row of the table. Specifically, PHMSA proposed that in this circumstance, the identification numbers “3475” or “1987” must also be displayed, as appropriate, and the cargo tank may only display “3475” or “1987” when the material is in the cargo tank. Therefore, if the liquid petroleum distillate fuel with the lowest flash point transported in the cargo tank in different trips on the previous or current business day was a gasoline and alcohol fuel blend consisting of more than 10 percent ethanol, and it is not being transported in the cargo tank currently, “3475” or “1987” may not be displayed on the cargo tank. In this scenario, the cargo tank should display either the identification number of the liquid petroleum distillate fuel with the next lowest flash point transported in different trips on the previous or current business day or the liquid petroleum distillate fuel that is currently being transported.

PHMSA also proposed to specify that the exception in the fifth row only applies to compartmented cargo tanks and compartmented tank cars. This will distinguish clearly the fifth and sixth row exceptions. The fifth row authorizes the display of the identification number of the petroleum distillate fuel with the lowest flash point when the cargo tank or tank car contains more than one petroleum distillate fuel. The fifth-row exception is only possible when the cargo tank or the tank car is compartmented— i.e., it has multiple compartments each with a different petroleum distillate fuel. Therefore, PHMSA proposed to remove the term “cargo tank” to indicate clearly the exception only applies to “compartmented cargo tanks or compartmented tank cars.” In this final rule, PHMSA is adopting the revisions to section 172.336 as proposed. Refer to Section III. “Identification Number Markings for Petroleum Distillate Fuels” for further discussion on this issue.

Section 172.704 contains the training requirements for hazmat employees. Currently, paragraph (e)(1) excepts from safety training hazmat employees who only repair, modify, recondition, or test packagings and who do not perform any other function in the HMR. PHMSA proposed to also include hazmat employees who only manufacture packagings. Further, PHMSA proposed to except these hazmat employees from security awareness training. Security awareness training imposed on hazmat employees who only manufacture, repair, modify, recondition, or test packagings, and do not perform any other function subject to the HMR, does not present the same security benefit as for those hazmat employees who offer for transportation, transport, or handle hazardous materials. In this final rule, PHMSA is adopting the revisions to section 172.704(e)(1) as proposed.

Section 173.315 describes the requirements for the transportation of compressed gases in cargo tanks and portable tanks. Paragraph (i) provides cargo tank and portable tank requirements for pressure relief devices, with paragraph (i)(13) detailing the specifications for safety relief valves on chlorine cargo tanks. PHMSA is revising section 173.315(i)(13) to replace the reference to specific PRD drawings with a general reference to CI Pamphlet 49 for authorized safety relief valves. This allows the use of the Midland PRD in addition to the Crosby PRD on cargo tanks transporting inhalation hazards to provide additional regulatory flexibility without reducing safety. In this final rule, PHMSA is adopting the revision to section 173.315 as proposed.

Section 178.337-1 contains the general requirements applicable to constructing an MC-331 cargo tank designed to transport compressed gases. Paragraph (d) addresses the requirement for uninsulated tanks to have a reflective metal surface or a reflecting color to limit heat transfer to the contents in the tank. PHMSA proposed to remove the requirement that the tank be “painted” to allow for the use of reflective vinyl wraps or other innovative reflective coatings. In this final rule, PHMSA is adopting the revision to section 178.337-1(d) as proposed.

Section 180.407 contains requirements for the periodic inspection of CTMVs to qualify them for continued hazardous materials service. PHMSA proposed to authorize, in a new paragraph (a)(7), the use of video cameras and fiber optics equipment for any visual inspection required for CTMVs in part 180, subpart E. In this final rule, PHMSA is adopting the revision to section 180.407 as proposed. This revision allows video cameras or fiber optics equipment to be used for visual inspections, provided that all of the required areas and elements that need to be tested or inspected can be viewed and evaluated in accordance with part 180, subpart E.

This final rule is published under the authority of Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101-5127). Section 5103(b) of the HMTA authorizes the Secretary of Transportation to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.” The Secretary has delegated his authority as granted in the HMTA to the PHMSA Administrator in 49 CFR 1.97(b).

Executive Order (E.O.) 12866 ( Regulatory Planning and Review ), as implemented by DOT Order 2100.6B ( Policies and Procedures for Rulemaking ), requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”  32 DOT Order 2100.6B specifies that regulations should generally “not be issued unless their benefits are expected to exceed their costs.” In arriving at those conclusions, E.O. 12866 requires that agencies should consider “both quantifiable measures . . . and qualitative measures of costs and benefits that are difficult to quantify” and “maximize net benefits . . . unless a statute requires another regulatory approach.” E.O. 12866 also requires that “agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.” DOT Order 2100.6B directs that PHMSA and other Operating Administrations must generally choose the “least costly regulatory alternative that achieves the relevant objectives” unless required by law or compelling safety need.

E.O. 12866 and DOT Order 2100.6B also require that PHMSA submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President's Office of Management and Budget (OMB) for review. This action is a significant regulatory action that was submitted to OIRA and OMB for review. Any changes made during E.O. 12866 review have been documented in the docket. PHMSA prepared an analysis of the potential costs and benefits associated with this action. This analysis, Regulatory Impact Analysis for Hazardous Materials: Eliminating Unnecessary Regulatory Burdens on Fuel Transportation (the “RIA”) is available in the docket.

This final rule is an E.O. 14192 deregulatory action. 33 PHMSA has determined the total costs of the rule to the regulated community will be less than zero and estimates annualized net benefits at a seven percent discount rate of approximately $145.3 million per year. Details on the costs, cost savings, and benefits of this rulemaking can be found in the RIA, which is available in the public docket.

Overall, the revisions adopted in this rulemaking promote the continued safe transportation of hazardous materials while producing a net cost savings. Cost savings are derived from allowing the continued display of the identification number of the lowest flash point fuel transported in a cargo tank motor vehicle in the same or previous business day. In addition, PHMSA finds this final rule does not implicate any of the factors identified in section 2(a) of E.O. 14219 indicative of a regulation that is “unlawful . . . [or] that undermine[s] the national interest.”  34

PHMSA analyzed this rulemaking in accordance with E.O. 13132 ( Federalism )  35 and the Presidential Memorandum ( Preemption ) that was published in the Federal Register on May 22, 2009. 36 E.O. 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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 rulemaking may preempt State, local, and Native American tribe requirements, but does not propose any regulation that has substantial direct effects 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 Federal Hazmat Law contains an express preemption provision, 49 U.S.C. 5125(b), that preempts State, local, and Tribal requirements on certain covered subjects, unless the non-Federal requirements are “substantively the same” as the Federal requirements, including:

(1) Designation, description, and classification of hazardous materials;

(2) Packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(3) Preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(4) Written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and

(5) Design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This rule addresses subject items (2) and (5) above, which are covered subjects, and, therefore, non-Federal requirements that fail to meet the “substantively the same” standard are vulnerable to preemption under the Federal Hazmat Law. Moreover, PHMSA will continue to make preemption determinations applicable to specific non-Federal requirements on a case-by-case basis, using the obstacle, dual compliance, and covered subjects tests provided in Federal Hazmat Law.

This document was analyzed in accordance with the principles and criteria contained in E.O. 13175 ( Consultation and Coordination with Indian Tribal Governments ) and DOT Order 5301.1A ( Department of Transportation Tribal Consultation Policies and Procedures ). Because none of the changes in this final rule have Tribal implications or impose substantial direct compliance costs on Indian Tribal governments, the funding and consultation requirements of E.O. 13175 do not apply. In addition, PHMSA notes that it received no comments from Native American tribes.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires agencies to consider whether a rulemaking would have a “significant economic impact on a substantial number of small entities” to include small businesses, small not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and small governmental jurisdictions with populations under 50,000 people. The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where possible to do so and still meet the objectives of applicable regulatory statutes. E.O. 13272 ( Proper Consideration of Small Entities in Agency Rulemaking )  37 requires agencies to establish procedures and policies to promote compliance with the Regulatory Flexibility Act and to “thoroughly review draft rules to assess and take appropriate account of the potential impact” of the rules on small businesses, governmental jurisdictions, and small organizations. The DOT posts its implementing guidance on a dedicated web page. 38

This rulemaking has been developed in accordance with E.O. 13272 and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. PHMSA has developed a final regulatory flexibility analysis (RFA), which is included in the docket. As detailed in the RFA, based on a query of FMCSA data and Census Bureau data, trucking companies that haul hazardous materials possess an average of 3.3 CTMVs. Assuming 85,658 CTMVs will be affected by the placarding exemption (see Section 3.1.2 for data and calculations), then a figure of 3.3 CTMVs per firm implies that 25,957 trucking companies will be impacted. Further, assuming the industry structure of trucking companies hauling petroleum distillates mirrors that of the trucking industry overall, we can conclude that 23,101 companies ( i.e., 89 percent of 25,957) qualify as small businesses affected by the placarding exemption. This final rule facilitates more efficient movement of hazardous materials by highway and inspection of hazardous materials packagings, while ensuring that safety is maintained or enhanced. It applies to shippers and carriers of hazardous materials as well as entities that inspect hazardous materials packaging, some of whom are small entities. The changes affected by this rule would relieve the regulatory burdens of U.S. companies, including small entities, by removing costly requirements that do not contribute to safety. Based on this information, PHMSA expects to affect 25,957 small business with annualized cost savings per small business of $5,603. As described in the FRFA section of the accompanying RIA document (Section 4), PHMSA has assessed this cost against average industry revenue for small trucking entities and concluded that it amounts to 1.22-1.27 percent of average small entity annual revenues. There is no set threshold for determining what constitutes a significant impact, but a rule of thumb used by many Agencies is impacts that are over 3 percent of annual revenue are likely to be significant. Those above 1 percent may be significant in certain instances but may not amount to a significant impact. In this case impacts are close enough to the lower bound that impacts on small entities are unlikely to be significant. The changes are generally intended to provide regulatory flexibility and cost savings to industry members, while increasing safety. The FRFA asks Agencies to describe actions taken to minimize impacts on small entities but in the context of deregulatory cost savings such a mandate would tend to disadvantage small entities relative to large and implies that beneficial impacts can be considered to be non-significant within the context of the RFA. PHMSA did not receive comments on the anticipated economic impacts to small entities and the RFA.

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), no person is required to respond to any information collection unless it has been approved by OMB and displays a valid OMB control number. Pursuant to 44 U.S.C § 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests.

PHMSA has analyzed this final rule in accordance with the Paperwork Reduction Act. PHMSA did not receive any comments regarding information collections associated with the changes adopted in this final rule. In addition, some information collections proposed in the NPRM were not adopted in this final rule and are therefore excluded.

Requests for a copy of this information collection should be directed to Steven Andrews, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, 202-366-8553.

The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et seq. ) requires agencies to assess the effects of Federal regulatory action on State, local, or Tribal governments, and the private sector. For any NPRM or final rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, or by the private sector of $100 million or more in 1996 dollars in any given year, an agency must prepare, amongst other things, a written statement that qualitatively and quantitatively assesses the costs and benefits of the Federal mandate.

This rulemaking does not impose unfunded mandates under UMRA. As explained in the RIA, it is not expected to result in costs of $100 million or more in 1996 dollars on either State, local, or Tribal governments, in the aggregate, or to the private sector in any one year. This is the least burdensome alternative that achieves the objective of the rule.

The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ), requires Federal agencies to assess and consider the impacts on the human and natural environment of their proposed actions. Unless a categorical exclusion applies, when a proposed action does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown, Federal agencies are required to prepare an environmental assessment. If, based on the finding of the environmental review, the agency determines not to prepare an environmental impact statement (EIS) because the proposed action will not have significant effects on the human or natural environment, the agency can conclude the NEPA process with a finding of no significant impact (FONSI) (42 U.S.C. 4336(b)(2)). PHMSA did not consider a categorical exclusion because at the time of the NPRM issuance, no categorical exclusion applied. PHMSA is finalizing the action based on a completed 2025 Environmental Assessment and subsequent Finding of No Significant Impact.

The purpose of this final rule is to provide greater clarity and regulatory flexibility in the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). This final rule reduces unnecessary burdens associated with safe transportation of hazardous materials, including energy products, in commerce. It revises provisions specific to the highway transportation of hazardous materials. The amendments will reduce costs on hazardous materials transporters and packaging manufacturers while maintaining the high level of safety provided in the HMR.

If PHMSA were to select the No Action Alternative, current regulations would remain in place, and no new provisions would be amended or added. This alternative does not provide the necessary amendments to provide greater clarity and regulatory flexibility, nor does it address the PIPES Act of 2016 and petitions for rulemaking. Thus, the no action alternative does not meet the purpose and need of this action.

PHMSA is adopting several amendments originally proposed in the Notice of Proposed Rulemaking (NPRM) version of this rule. 39 The amendments chosen for adoption are summarized below and more fully discussed in the preamble and regulatory text sections of this Final Rule.

PHMSA assessed an alternative that would have finalized the requirements as proposed in the NPRM. This alternative includes adoption of the 2017 RSAC proposals for rail transportation; revision to the approval process for tank car designs and Quality Assurance Programs (QAPs); miscellaneous amendments to highway cargo tank specification and requalification requirements; and an amendment to cargo tank marking requirements for the transportation of petroleum distillate fuels. This alternative applies to the transportation of hazardous materials by highway, rail, and vessel. The potential environmental effects of the NPRM as proposed are described in detail in the Draft Environmental Assessment (DEA), which is incorporated here by reference. 40

PHMSA is no longer considering this alternative and instead is moving forward with the six amendments specifically identified in the final rule. These amendments were selected because they align with the Administration's priorities of unleashing American energy and reducing other unnecessary regulatory burdens constraining interstate commerce. PHMSA will continue to evaluate the other provisions included in the NPRM and may choose to address them at a later date.

The final rule amends certain provisions of the HMR to increase regulatory clarity and consistency; to update requirements to reflect changing conditions and trends; and to improve the safe transportation of hazardous materials. The final rule would apply to the transport of hazardous materials by various transportation modes that occur nationwide.

The No Action Alternative would not adopt enhanced and clarified regulatory requirements expected to maintain the high level of safety in transportation of hazardous materials provided by the HMR. If PHMSA were to select the No Action Alternative, the HMR would remain unchanged, and no new provisions would be amended or added. There would be no new environmental impacts from adopting the No Action Alternative, and any additional regulatory clarity and flexibility, their associated efficiencies, and economic benefits gained through these amendments would not be realized.

The changes under the Proposed Action Alternative will maintain the high safety standards currently achieved under the HMR. The reasonably foreseeable environmental impacts are described by section below.

PHMSA is revising the identification number marking requirements for cargo tanks transporting multiple petroleum distillate fuels in the current or previous business day, which is defined as a day that the operator of the cargo tank motor vehicle is open and operating in commerce. This amendment authorizes a carrier to display the marking of the identification number for the petroleum distillate fuel with the lowest flashpoint transported in that cargo tank during the current or previous business day. For example, a cargo tank used to transport gasoline on Day 1, and diesel fuel only on Day 2, may display “1203” on Day 2, because gasoline has a lower flash point than diesel fuel.

This change to markings for petroleum distillate fuels was previously permissible under the HMR and HM-118  41 from 1980 until the publication of HM-219  42 in 2013. The HMR allowed a cargo tank transporting more than one petroleum distillate fuel in different trips to display the identification number for the petroleum distillate fuel with the lowest flash point. PHMSA's removal of this exception in HM-219 was unintentional, as discussed in section III.A of the Final Rule. PHMSA requested comments related to safety and environmental impacts of this amendment in the DEA and received no incident data in the time frame the exception was allowed. PHMSA is unaware of any significant increase in hazardous materials incidents involving petroleum distillate fuels resulting in injuries to first responders in that time frame. Similarly, PHMSA is unaware of any decrease in hazardous materials incidents involving petroleum distillate fuels resulting in injuries to first responders. In addition, PHMSA's Emergency Response Guidebook (ERG) provides the same initial emergency response instructions for all petroleum distillate fuels (Guide 128). 43 This amendment is discussed in full detail in section III of the Final Rule.

There is no evidence of an increase in the risk of an incident nor a delay in emergency response to incidents as a result of this amendment. This amendment would improve efficiency during fuel deliveries, as operators would no longer be required to change the identification number displayed inside the placard. Thus, there are no reasonably foreseeable impacts to the human or natural environment.

PHMSA is amending part 107 subpart F of the HMR to allow for electronic submission procedures under the cargo tank facility registration requirements. This would be in addition to the existing procedure of mailing a hard copy of the registration statement to FMCSA. This amendment provides flexibility, has no impact on the high level of safety provided in the HMR, and has no reasonably foreseeable impacts to the human or natural environment.

PHMSA is amending section 171.7 to replace the current incorporation by reference of CI drawings with the entire CI Pamphlet 49, which would include the use of Midland Type PRD for chlorine cargo tanks in section 173.315, as Midland manufacturing entered the market after the requirements of section 173.315(i) were established. This amendment does not delete the specific limitations of the type of PRD authorized, and PHMSA will continue to work with CI to develop generally applicable specifications for PRDs used on cargo tanks transporting inhalation hazards. Thus, this amendment provides regulatory flexibility, maintains the current level of safety, and has no reasonably foreseeable impacts to the human or natural environment.

PHMSA is amending section 172.704(a)(4) to remove security awareness training for hazmat employees who perform hazmat activities related only to packagings. These employees are responsible for manufacturing, repairing, modifying, reconditioning, or testing packagings and do not offer or transport hazardous materials. PHMSA is also expanding the eligibility of hazmat employees excepted from safety and security trainings to include package “manufacturers.” Though these changes broaden the population of persons excepted from safety and security awareness training, the primary focus of the training is related to the offering or transportation of hazardous materials. This amendment will maintain the current level of safety of the HMR and has no reasonably foreseeable impacts to the human or natural environment.

PHMSA is amending section 173.315(i)(13) to conform with the changes made in Section 171.7. This change replaces the reference to specific PRD drawings with a general reference to CI Pamphlet 49 for authorized safety release valves. Similarly to the section 171.7 amendment, this amendment does not delete the specific limitations of the type of PRD authorized. PHMSA will continue to work with CI to develop generally applicable specifications for PRDs used on cargo tanks transporting inhalation hazards. Thus, this amendment provides regulatory flexibility, maintains the current level of safety, and has no reasonably foreseeable impacts to the human or natural environment.

PHMSA is amending section 178.337-1(d) to allow the use of other external coverings besides paint, such as reflective vinyl wraps, to meet reflectivity requirements. Uninsulated tanks are required to have a reflective metal surface or a reflecting color to limit heat transfer to the contents of the tank. This amendment would still require uninsulated MC-311 tanks to be a white, aluminum, or similar reflecting color on the upper two-thirds area of the cargo tank. Thus, this amendment will provide regulatory flexibility, maintain the current level of safety of the HMR, and has no reasonably foreseeable impacts to the human or natural environment.

PHMSA is amending section 180.407(a)(7) to allow for the use of video cameras or video optics equipment for cargo tank inspections or tests provided that all of the required areas and elements that need to be tested or inspected can be viewed and evaluated in accordance with part 180 subpart E. Under current regulations, a human must enter a cargo tank to inspect the interior visually. There are risks associated with the current practice, such as injury from slipping and falling and exposure to residual fumes or hazardous materials. This amendment allows operators to avoid these risks, while still performing the inspections to an equal standard. Thus, this amendment will provide regulatory flexibility, maintain the current level of safety of the HMR, and has no reasonably foreseeable impacts to the human or natural environment.

PHMSA issued a DEA with the NPRM on October 28, 2024, which proposed to revise the HMR to adopt several modal-specific amendments to enhance safe transportation of materials in commerce. 44 These include RSAC proposals for rail transportation; revisions to the approval process for tank car designs and QAPs; miscellaneous amendments to highway cargo tank specification and requalification requirements; and an amendment to cargo tank marking requirements for the transportation of petroleum distillate fuels.

The comment period for the NPRM and DEA closed on April 28, 2025. PHMSA received 37 sets of comments, of which nine are relevant to the issues addressed in this final rule. Three comments received discussed general environmental concepts, none of which are covered by the scope of this final rule. No comments were related to the environmental effects analysis of the NPRM as described in the DEA. All relevant comments are discussed in detail in Section III.C and Section IV of this final rule.

PHMSA has coordinated with FAA, FMCSA, FRA, and the United States Coast Guard in the development of this rulemaking. The NPRM was also made available to other Federal agencies within the interagency review process contemplated under E.O. 12866. No E.O. 12866 meetings were requested.

Based on the analysis summarized in this EA, RIA, and the accompanying final rule, PHMSA finds that the Selected Alternative (final rule) will not have a significant impact on the human or natural environment. A majority of the amendments are administrative in nature and allow for greater regulatory flexibility in the HMR. They will reduce unnecessary burdens associated with the safe transportation of hazardous materials, including energy products, in commerce and will maintain the high level of safety required by the HMR.

Preparers: Lydia Wang, PHMSA.

Reviewers: Travis Mast, USDOT Volpe Center, Carolyn Nelson, P.E., PHMSA.

PHMSA Finding of No Significant Impact Approval:

In accordance with 5 U.S.C. 553(c), PHMSA solicits comments from the public to inform its rulemaking process. PHMSA 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 http://www.dot.gov/privacy. The complete Privacy Act Statement in the Federal Register published on April 11, 2000, 45 or on DOT's website at http://www.dot.gov/privacy.

E.O. 13609 ( Promoting International Regulatory Cooperation )  46 requires that agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to the Trade Agreements Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

PHMSA participates in the establishment of international standards in order to protect the safety of the American public. PHMSA has assessed the effects of this rulemaking to ensure that it does not cause unnecessary obstacles to foreign trade. While the rulemaking would clarify and elaborate on existing PHMSA regulations, PHMSA expects the rulemaking will result in cost savings and greater regulatory flexibility for entities engaged in international commerce. Accordingly, this rulemaking is consistent with E.O. 13609 and PHMSA's obligations under the Trade Agreement Act, as amended.

The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs Federal agencies to use voluntary consensus standards in their regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specification of materials, test methods, or performance requirements) that are developed or adopted by voluntary consensus standard bodies. This rulemaking adopts one voluntary consensus standard published by CI that is discussed in the discussion on § 171.7. See “Section IV. Section-by-Section Review; Section 171.7” for further details.

E.O. 13211 ( Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use )  47 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” E.O. 13211 defines a “significant energy action” as any action by an agency (normally published in the Federal Register ) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation that (1)(i) is a significant regulatory action under E.O. 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy (including a shortfall in supply, price increases, and increased use of foreign supplies); or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs (OIRA) as a significant energy action.

This final rule is not a “significant energy action” under E.O. 13211 because it is not likely to have a significant adverse effect on supply, distribution, or energy use. In addition, because this is not a “significant energy action” under E.O. 13211, it is therefore not necessary to consider the requirements of E.O. 14154 ( Unleashing American Energy )  48 and E.O. 14156 ( Declaring a National Energy Emergency ). 49 For additional discussion of the anticipated economic impact of this rulemaking, please review the RIA in the rulemaking docket.

E.O. 14028 ( Improving the Nation's Cybersecurity )  50 expressed the Administration policy that “the prevention, detection, assessment, and remediation of cyber incidents is a top priority and essential to national and economic security.” E.O. 14028 directed the Federal Government to improve its efforts to identify, deter, and respond to “persistent and increasingly sophisticated malicious cyber campaigns.” PHMSA has considered the effects of the final rule and has determined that its proposed regulatory amendments would not materially affect the cybersecurity risk profile for transportation of hazardous materials.

The purpose of this final rule is to operate holistically in addressing different issues related to safety and environmental hazards associated with the transportation of hazardous materials. However, PHMSA recognizes that certain provisions focus on unique topics. Therefore, PHMSA finds that the various provisions of this rule are severable and able to function independently if severed from each other. Thus, in the event a court were to invalidate one or more of this final rule's unique provisions, the remaining provisions stand and continue in effect.

In consideration of the foregoing, PHMSA amends 49 CFR chapter I as follows:

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), enacted as part of the Bipartisan Budget Act of 2015, Public Law 114-74, 701, 129 Stat. 584, 599-601, requires agencies to adjust their civil penalties for inflation annually, beginning on July 1, 2016, and no later than January 15 of every year thereafter. In accordance with the 2015 Act, annual inflation adjustments are to be based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for October of the previous year and the October CPI-U of the year before that. Penalty level adjustments should be rounded to the nearest dollar. Due to the lapse in Federal government appropriations from October 1, 2025, through November 12, 2025, the Bureau of Labor Statistics, which is responsible for production of the CPI-U, did not release a CPI-U for October 2025. Therefore, the Board is basing its annual inflation adjustment for 2026 on the percent change between the CPI-U for November 2025 and the CPI-U for November 2024. Should additional guidance or data relevant to this calculation be released following the issuance of this decision, the Board will issue an amended decision, as appropriate.

The statutory definition of civil monetary penalty covers various civil penalty provisions under the Rail (Part A); Motor Carriers, Water Carriers, Brokers, and Freight Forwarders (Part B); and Pipeline Carriers (Part C) provisions of the Interstate Commerce Act, as amended. The Board's civil (and criminal) penalty authority related to rail transportation is codified at 49 U.S.C. 11901-11908. The Board's penalty authority related to motor carriers, water carriers, brokers, and freight forwarders appears at 49 U.S.C. 14901-14916. The Board's penalty authority related to pipeline carriers is codified at 49 U.S.C. 16101-16106. 1 The Board has regulations at 49 CFR part 1022 that codify the method set forth in the 2015 Act for annually adjusting for inflation the civil monetary penalties within the Board's jurisdiction.

As set forth in this final rule, the Board is amending 49 CFR part 1022 to make an annual inflation adjustment to the civil monetary penalties in conformance with the requirements of the 2015 Act. The adjusted penalties set forth in the rule will apply only to violations that occur after the effective date of this regulation.

The annual adjustment adopted here is calculated by multiplying each current penalty by a cost-of-living adjustment factor of 1.02735, which reflects the percentage change between the November 2025 CPI-U (324.122) and the November 2024 CPI-U (315.493). The table at the end of this decision shows the statutory citation for each civil penalty, a description of the provision, the adjusted statutory civil penalty level for 2025, and the adjusted statutory civil penalty level for 2026.

The final rule set forth at the end of this decision is being issued without notice and comment pursuant to the rulemaking provision of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), which does not require that process “when the agency for good cause finds” that public notice and comment are “unnecessary.” Here, Congress has mandated that the agency make an annual inflation adjustment to its civil monetary penalties. The Board has no discretion to set alternative levels of adjusted civil monetary penalties because the amount of the inflation adjustment must be calculated in accordance with the statutory formula. 2 Given the absence of discretion, the Board has determined that there is good cause to promulgate this rule without soliciting public comment and to make this regulation effective immediately upon publication.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, generally requires an agency to prepare 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. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.

Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, the Office of Information and Regulatory Affairs has designated this rule as a non-major rule, as defined by 5 U.S.C. 804(2).

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

It is ordered:

1. The Board amends its rules as set forth in this decision. Notice of the final rule will be published in the Federal Register .

2. This decision is effective on its date of publication in the Federal Register .

Decided: January 9, 2026.

By the Board, Board Members Fuchs, Hedlund, and Schultz.

For the reasons set forth in the preamble, part 1022 of title 49, chapter X, of the Code of Federal Regulations is amended as follows:

Background

On August 1, 2022, we received a petition from The Conservation Angler and Wild Fish Conservancy (hereafter, the Petitioners) to list the OP steelhead ( Oncorhynchus mykiss ) DPS as a threatened or endangered species under the ESA. On February 10, 2023, we published a positive 90-day finding (88 FR 8774) announcing that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted. We also announced the initiation of a status review of the species, as required by section 4(b)(3)(A) of the ESA, and requested information to inform the agency's decision on whether this species warrants listing as threatened or endangered.

To make a determination whether a species is threatened or endangered under the ESA, we first consider whether it constitutes a “species” as defined under section 3 of the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). On February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS) adopted a joint policy for recognizing DPSs under the ESA (DPS Policy; 61 FR 4722). The DPS Policy adopted criteria similar to those in the evolutionarily significant unit (ESU) policy (ESU Policy; 56 FR 58612, November 20, 1991) for determining when a group of vertebrates constitutes a DPS: the group must be discrete from other populations, and it must be significant to its taxon (species or subspecies). A group of organisms is discrete if it is “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, and behavioral factors.” Significance is measured with respect to the taxon. Considerations for significance include but do not necessarily require the following:

1. Persistence of the DPS in an ecological setting unusual or unique for the taxon,

2. Evidence that loss of the DPS would result in a significant gap in the range of a taxon,

3. Evidence that the DPS represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or

4. Evidence that the DPS differs markedly from other populations of the species in its genetic characteristics.

In 2006, NMFS changed its previous practice of applying the ESU Policy to delineate species of O. mykiss and instead applied the joint DPS Policy (71 FR 834, January 5, 2006). NMFS determined that the use of the ESU Policy—originally intended for Pacific salmon—should not continue to be extended to O. mykiss, a type of salmonid with characteristics not typically exhibited by Pacific salmon. A court ruling in 2001 ( Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)) determined that listing only a subset of a species or ESU/DPS, such as the anadromous portion of O. mykiss, was not allowed under the ESA. Because of this court ruling, NMFS conducted updated status reviews for ESA-listed west coast steelhead ESUs that took into account those non-anadromous populations below dams and other major migration barriers that were considered to be part of the steelhead ESUs (Good et al., 2005). Subsequently, NMFS used the joint USFWS-NMFS DPS Policy to delineate steelhead-only DPSs rather than ESUs that included both steelhead and the related non-anadromous forms (71 FR 833, January 5, 2006). OP steelhead (the petitioned entity) were not addressed in the 2005 status review (Good et al., 2005) nor in subsequent listings (71 FR 833, January 5, 2006).

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, in the context of the ESA, we interpret an endangered species to be one that is presently in danger of extinction, while a threatened species is not currently in danger of extinction but is likely to become so in the foreseeable future. The primary statutory difference between a threatened and endangered species is the timing of when a species is in danger of extinction, either presently (endangered) or not presently but within the foreseeable future (threatened).

When we consider whether a species qualifies as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” This is described in 50 CFR 42.11(d) as follows: “In determining whether a species is a threatened species, the Services must analyze whether the species is likely to become an endangered species within the foreseeable future. The foreseeable future extends as far into the future as the Services can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time.”

Section 4(a)(1) of the ESA requires us to determine whether a species is endangered or threatened as a result of any one, or a combination of, the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts, if any, being made by any state or foreign nation (or subdivision thereof) to protect the species (16 U.S.C. 1533(b)(1)(A)).

Steelhead is the name commonly applied to the anadromous form of the biological species O. mykiss. The present distribution of steelhead extends from Kamchatka in Asia, east to Alaska, and down to the U.S.-Mexico border (Busby et al., 1996; 67 FR 21586, May 1, 2002). O. mykiss exhibit perhaps the most complex suite of life history traits of any species of Pacific salmonid. They can be anadromous (steelhead) or freshwater residents (rainbow or redband trout) and, under some circumstances, yield offspring of the alternative life-history form. Those that are anadromous can spend up to 7 years in freshwater prior to smoltification (the physiological and behavioral changes required for the transition to salt water) and then spend up to 3 years in salt water prior to first spawning. O. mykiss is also iteroparous, meaning individuals may spawn more than once (steelhead that survive spawning and return to the ocean are known as kelts), whereas other Pacific salmonid species are principally semelparous (meaning individuals predominately spawn once and die).

Within the range of west coast steelhead, spawning migrations occur throughout the year, with seasonal peaks of activity. In a given river basin, there may be one or more peaks in migration activity known as “runs,” which are usually named for the season in which the peak occurs. Rivers can contain one or more runs of winter-, spring-, summer-, or fall-run steelhead. In basins with both summer-run and winter-run steelhead, the summer run generally occurs where habitat is not fully utilized by the winter run or where a temporal hydrologic barrier, such as a waterfall, separates them. Summer-run steelhead usually spawn farther upstream than winter-run steelhead (Withler 1966; Roelofs 1983; Behnke 1992; Myers et al., 2015).

In 1996, NMFS completed a comprehensive status review of coastal and inland steelhead populations in Washington, Oregon, Idaho, and California (Busby et al., 1996). As part of this review, which was prior to the practice of using the DPS Policy to delineate steelhead populations, NMFS identified an OP steelhead ESU comprised of populations that occupy “river basins of the Olympic Peninsula, Washington, west of the Elwha River and south to, but not including, the rivers that flow into Grays Harbor on the Washington coast.” The OP steelhead ESU was primarily made up of winter-run steelhead but also included several summer-run steelhead populations (Busby et al., 1996). At the time, NMFS included the resident O. mykiss below long-standing natural barriers in the ESU because of the opportunity for residents to interbreed with anadromous life history forms. In determining OP steelhead as an ESU, Busby et al. (1996) stated:

Genetic data collected by Washington Department of Fish and Wildlife support the hypothesis that, as a group, steelhead populations from the Olympic Peninsula are substantially isolated from those in other regions of western Washington. The Olympic Peninsula ESU is further characterized by habitat, climatic, and zoogeographical differences between it and adjacent ESUs. The Olympic Peninsula includes coastal basins that receive more precipitation than any other area in the range of west coast steelhead. Topography on the Olympic Peninsula is characterized by much greater relief than that to the south (Willapa Hills); the Olympic Mountains range from 1,200 to 2,400 meters above sea level. This affects precipitation quantity and river-basin hydrography. The result is “copious amounts of rain and over 100 inches of snow during the winter months” as well as substantial summer precipitation (Jackson 1993, p. 50-51) [Figure 3, Figure 4]. One manifestation of the ecological difference between Puget Sound and the Olympic Peninsula is the shift in vegetation zone, respectively, from western hemlock ( Tsuga heterophylla ) to Sitka spruce ( Picea sitchensis ) (Frenkel 1993).

NMFS concluded that the OP steelhead ESU was not in danger of extinction or likely to become endangered in the foreseeable future (Busby et al., 1996). However, NMFS was concerned about the overall health of the ESU and specific populations. Although the majority of abundance trends for winter-run OP steelhead were positive at the time of the 1996 review, including for three of the four largest populations, several other populations had downward trends, and for three populations this decline was statistically significant. NMFS noted concerns that hatchery fish were widespread, and interbreeding between natural and hatchery fish could reduce the genetic diversity of natural-origin OP steelhead . NMFS also stated that there was a great deal of uncertainty about the overall health of the ESU because little information exists about the summer-run steelhead stocks, including run size trends in the Olympic Peninsula and the amount of interaction between hatchery and natural stocks. Informed by the status review (Busby et al., 1996), NMFS concluded that the OP steelhead ESU did not warrant listing under the ESA (61 FR 41541, August 9, 1996).

To ensure that our review was based on the best available and most recent scientific information, we solicited information during a 60-day public comment period regarding the DPS structure and extinction risk of, and efforts being made to protect, OP steelhead (88 FR 8774, February 10, 2023). We also convened a status review team (SRT) to review the best available scientific and commercial information regarding the DPS structure and extinction risk of steelhead in the areas previously identified as the range of OP steelhead and consistent with the scope of the listing petition. Specifically, the SRT addressed (1) if the population fits the definition of a DPS and whether the geographic boundaries previously identified in the past NMFS review (Busby et al., 1996) warrant re-delineation or refinement, (2) the relation of hatchery programs propagating steelhead to the defined DPS, (3) current threats faced by the DPS, and (4) the level of extinction risk of the DPS throughout all or a significant portion of its range. The status review presents the SRT's professional judgment of the extinction risk facing OP steelhead but makes no recommendation as to the listing status of the species. The status review (OP Steelhead SRT 2024) is available electronically (see ADDRESSES ).

The status review was subject to independent peer review pursuant to the Office of Management and Budget Final Information Quality Bulletin for Peer Review (M-05-03; December 16, 2004). The status review was peer-reviewed by two independent scientists selected from the academic and scientific community with expertise in salmonid biology, conservation, and management, and specific knowledge of steelhead. Guidance suggests three reviewers (59 FR 34270; July 1, 1994), and we contacted multiple other experts in the field, but all were not available. The peer reviewers were asked to evaluate the adequacy, appropriateness, and application of data used in the status review, as well as the findings made in the “Risk Assessment” section of the report. Peer reviewer comments were addressed prior to finalizing the status review.

We subsequently reviewed the status review, its cited references, and peer review comments, and concluded that the status review upon which this determination is based, with additions from more recent publications and updated data (including a recent report completed by Tribal and State co-managers), provides the best available scientific and commercial information on OP steelhead. Much of the information discussed below on the DPS configuration, demographics, threats, and extinction risk is attributable to the status review (OP Steelhead SRT 2024). We have applied the statutory provisions of the ESA, including evaluation of the factors set forth in section 4(a)(1)(A)-(E), our regulations regarding listing determinations, and relevant policies identified herein in making the listing determination. In the sections below, we provide information from the report (supplemented with updates since the publication of the status review) regarding threats to and the status of OP steelhead.

Steelhead in the Olympic Peninsula exhibit two distinct anadromous life history strategies: summer-run (stream maturing) and winter-run migrations, in addition to estuarine and freshwater resident life histories (Kendall et al., 2015). We relied upon the Salmon and Steelhead Stock Inventory (Washington Department of Fisheries et al., 1993), Busby et al. (1996), and information from State and Tribal co-managers (COPSWG 2023) to provide a provisional list of winter-run and summer-run populations for analysis. The SRT identified 11 summer-run populations and 30 winter-run steelhead populations in the previously defined range of OP steelhead (see table 2 in OP Steelhead SRT 2024). Winter-run steelhead are found throughout the OP in smaller independent streams that drain directly into the Strait of Juan de Fuca and in larger rivers and their tributaries that drain into the Pacific Ocean (including Queets, Hoh, Quinault, and Quillayute). In the Olympic Peninsula, winter-run steelhead predominate. Summer-run steelhead are currently reported for portions of the largest four river systems draining into the Pacific Ocean: Quinault (East Fork, North Fork, and main stem), Queets (mainstem, Clearwater), Hoh (South Fork Hoh), and Quillayute (Bogachiel, Sol Duc, Sitkum, and Calawah) (Cram et al., 2018). Summer-run steelhead are not currently reported for rivers along the Strait of Juan de Fuca. Historically there was a population reported in the Lyre River (McHenry et al., 1996; Goin 2009).

The SRT concluded that the best available scientific information did not warrant a reconsideration of the previously described geographic boundaries for OP steelhead. Busby et al. (1996) defined OP steelhead to include watersheds to the west of the Elwha River and north of Grays Harbor. The data contributing to the findings evaluating the genetic diversity in O. mykiss in Busby et al. (1996) were from a combination of studies that used genetic variation to delineate patterns of diversity and differentiation among O. mykiss from California to British Columbia, including both inland and coastal collections. A number of studies have been published since that time (Phelps et al., 1997; Kassler et al., 2010, 2011), and by request from the SRT, WDFW and the Northwest Indian Fisheries Commission (NWIFC) embarked on an updated analysis of all genetic data that have been collected to date on O. mykiss in the range of OP steelhead (Seamons and Spidle 2023). Samples analyzed by Seamons and Spidle (2023) ranged from collections taken from 1994 through 2021 and included both hatchery and natural-origin steelhead, and many collections that had been previously analyzed (Kassler et al., 2010, 2011; Phelps et al., 1997). Though the major coastal streams in the range of OP steelhead are represented in the data, many of the collections used for analyses are decades old, and some of the smaller streams located on the coast and in the Strait of Juan de Fuca, as well as most of the summer-run steelhead-occupied streams, are not represented.

Seamons and Spidle (2023) evaluated the genetic relationships between O. mykiss populations on the Olympic Peninsula and surrounding regions. Generally, the natural-origin OP steelhead genetic collections from streams sampled show very little genetic differentiation from one another. The major coastal streams along the Pacific coast, which have the best coverage of samples, particularly show little to no significant genetic differentiation. This finding supports the idea that there is a genetic exchange between populations on the coast and is consistent with results from other studies (Kassler et al., 2010 and 2011; Phelps et al., 1997; Reisenbechler and Phelps 1985). Based on genetic data, the southern boundary of OP steelhead, north of Grays Harbor (previously defined by Busby et al., 1996), is supported by genetic differentiation from populations in southwest Washington. Very few samples from within the range of OP steelhead have been collected from the small streams draining into the Strait of Juan de Fuca; only the Pysht and Lyre River collections from the 1990s have been used for genetic analyses. Though there is clear genetic differentiation between OP steelhead and the Puget Sound steelhead DPS overall, more recent collections would be needed to get a definitive understanding of the genetic differentiation among steelhead populations on the Olympic Peninsula and, in particular, the genetic differentiation in the Strait of Juan de Fuca between the streams to the west of the Elwha River and the Elwha River and east (in the Puget Sound DPS). Therefore, we have no new genetic information that would indicate that the current boundaries for OP steelhead should be modified from those determined by Busby et al. (1996). A resident population of O. mykiss exists in Lake Crescent, isolated by a series of impassable cascades, and is notably genetically different from all other O. mykiss sampled. This endemic local form of resident rainbow trout, known as the Beardslee trout (see Brenkman et al., 2014 for a review), was not considered by the SRT as part of the OP steelhead populations.

Findings from the SRT (OP Steelhead SRT 2024) and from Busby et al. (1996) directly inform our species delineation under the joint DPS Policy. First, Busby et al. (1996) found that the OP is characterized by habitat, climatic, and zoogeographical differences between it and the adjacent regions of western Washington and that genetic data collected supported the hypothesis that, as a group, steelhead populations from the OP are substantially isolated from populations in other regions. More recent genetic information reviewed by the SRT (OP Steelhead SRT 2024) continues to indicate that OP steelhead are isolated from other regions (as discussed above). These observations regarding separation/isolation similarly satisfy the discreteness criterion under the joint DPS Policy, as OP steelhead are markedly separated from other such populations of O. mykiss due to physical and ecological factors.

Similar factors also satisfy the significance criterion of the DPS Policy. As stated above, Busby et al. (1996) described the unique ecological region occupied by OP steelhead, including that the Olympic Peninsula receives more precipitation than any other area in the range of west coast steelhead. Occupation of a unique ecological region satisfies a DPS criterion for significance. Loss of steelhead from the OP region would also represent a significant gap in the range of the species. Finally, as discussed above, OP steelhead are genetically distinct from the steelhead found in neighboring regions in Southwest Washington and the Puget Sound. Therefore, the loss of OP steelhead would be a significant loss to the genetic diversity of the taxon.

Based on the SRT's findings on new genetic information summarized above, the previous considerations of OP steelhead as an ESU, and our considerations under the joint DPS Policy, we conclude that OP steelhead meet the significance and discreteness criteria and warrant delineation as a DPS. Consistent with previous findings under the ESU policy, the geographic boundaries of the OP steelhead DPS continue to include winter- and summer-run steelhead runs occupying river basins of the Olympic Peninsula, Washington, west of the Elwha River (excluded) and south to Grays Harbor (excluded) on the Washington coast.

The SRT concluded that the contribution of resident (non-migratory) O. mykiss to the productivity and genetic diversity in anadromous O. mykiss is currently unknown for OP steelhead, and there is no existing information on the genetic diversity and differentiation of resident versus migratory O. mykiss in OP steelhead range. Studies of O. mykiss in the southern portion of the species' range have identified a major genome region associated with migration and residency in O. mykiss (Nichols et al., 2008; Hale et al., 2014; Pearse et al., 2019), but later research on O. mykiss in the Elwha River contradicted these earlier studies, finding no association between genetic variation at this region and migration or residency (Fraik et al., 2021). Diversity in this region of the genome has not been examined in OP steelhead. The association of this part of the genome with migration and residency is not consistent across the range northward and inland, where the resident DNA variant for this genome region increases in frequency in both anadromous (migratory) and resident O. mykiss (Pearse et al., 2019; Weinstein et al., 2019). However, there is additional evidence for genetic differences between resident and anadromous O. mykiss related to smolt transformation (Nichols et al., 2008), metabolism (Sloat and Reeves 2014), and growth (Kelson et al., 2020), and further evidence for genetic divergence between the two life history forms (Narum et al., 2004).

Resident and anadromous forms can interbreed, but the extent to which this occurs in the Olympic Peninsula is unknown. It has been demonstrated that below long-standing barriers, resident fish can contribute to the anadromous population, and the resident form can be derived from the anadromous form (Zimmerman and Reeves 2000; Pascual et al., 2011; Thrower et al., 2004, Kendall et al., 2015). Resident fish are known to be present in the watersheds of the Olympic Peninsula, but there have been limited efforts to quantify their abundance and demographic relationship with the anadromous form across the OP region. Notably, the DPS Policy says, “the standard adopted [for discreteness] does not require absolute separation of a DPS from other members of its species, because this can rarely be demonstrated in nature for any population of organisms. . . . [T]he standard adopted allows for some limited interchange among population segments considered to be discrete, so that loss of an interstitial population could well have consequences for gene flow and demographic stability of a species as a whole” (61 FR 4722, 4724; February 7, 1996).

Physical, physiological, ecological, and behavioral differences between resident and anadromous life forms continue to be apparent, as similarly detailed in previous steelhead listings. The 2006 listing of multiple steelhead DPSs (71 FR 834; January 5, 2006) detailed fundamental biological differences between resident and anadromous forms of steelhead, including differences in prey, predators, size (anadromous are larger), fecundity (anadromous produce more eggs), smoltification process, and migratory strategy. A primary difference between the two life forms is that the resident fish complete their life cycle solely in freshwater while the anadromous fish migrate to the ocean. Additionally, work in a limited number of rivers in the Olympic Peninsula found that the two life history forms varied in their arrival timing in spawning reaches, with anadromous males primarily entering in late winter/early spring and resident males in late spring/early summer (McMillan et al., 2007). Resident males were more common than anadromous males in upper reaches (though both overlapped in time and space with anadromous females), and the two life forms showed differences in mating behavior tactics. Also, the genetic differences related to growth and metabolism result in physical and physiological differences (larger size at a younger age in resident fish, higher metabolic costs in anadromous fish; see review by Kendall et al., 2015).

Based on the best available information, the SRT found, and we agree, that the resident and anadromous forms are markedly separate in physical, physiological, and ecological factors. There is some evidence of genetic differences between anadromous and resident populations, though this has not been studied specifically in the range of OP steelhead. Additionally, though there can be physical overlap between the two forms, and interbreeding and gene flow can occur, discreteness under the DPS Policy does not require no overlap whatsoever. Therefore, under the DPS Policy, the resident form is discrete from the anadromous form and is not part of the OP steelhead DPS.

On July 28, 2005, NMFS released a policy on the inclusion of hatchery-origin fish in the ESA listing determinations for Pacific salmon and steelhead ESUs [or DPS in the case of steelhead but not specified] (70 FR 37204). This policy states that “[i]n delineating an ESU [or DPS] to be considered for listing, NMFS will identify all components of the ESU, including populations of natural fish (natural populations) and hatchery stocks that are part of the ESU. Hatchery stocks with a level of genetic divergence relative to the local natural population(s) that is no more than what occurs within the ESU: (a) are considered part of the ESU; (b) will be considered in determining whether an ESU should be listed under the ESA; and (c) will be included in any listing of the ESU.”

The SRT summarized what is currently known about the genetic distinction between natural-origin and hatchery-origin steelhead in the Olympic Peninsula. Few studies have been undertaken to specifically evaluate the influence of hatchery stocks on natural-origin steelhead in the Olympic Peninsula. Kassler et al. (2010, 2011) used DNA sequences in an evaluation of the genetic diversity among natural- and hatchery-origin steelhead from coastal collections of OP steelhead, including the Hoh, South Fork Hoh, Sol Duc, Calawah, and Bogachiel Rivers, as well as hatchery-origin steelhead from four Olympic Peninsula hatcheries. For the most part, Kassler et al. (2010, 2011) failed to find significant introgression (transfer of genetic material from one population to another) of hatchery steelhead with natural-origin OP steelhead, except in the 2008 South Fork Hoh River winter collection, which shows evidence of interbreeding with the Cook Creek hatchery collection. This same finding was reported by Seamons and Spidle (2023) in a reanalysis of the samples with newer data (but note some of these data are outdated and not comprehensive for the entire DPS). Furthermore, samples were taken from sites with minimal hatchery influence to be more representative of natural populations. In the 2009 and 2010 Hoh River winter collections, these steelhead were more similar to other OP natural-origin steelhead collections (see Seamons and Spidle 2023). Also, DNA analyses (Kassler et al., 2010, 2011; Seamons et al., 2017) showed presumed natural-origin population samples with mixed ancestry (that includes genetic information from non-native early-winter and early-summer run steelhead) however, natural-origin fish were still overall genetically distinct from hatchery broodstock.

Seamons and Spidle (2023), in their more recent genetic analysis, included three hatchery stocks that currently propagate and release juvenile steelhead in Olympic Peninsula streams: Chambers Creek early winter steelhead (Puget Sound origin), Skamania early hatchery summer steelhead (Lower Columbia River origin), and Cook Creek early winter steelhead (putatively Olympic Peninsula origin). The majority (9 of 11) of hatcheries are operated as segregated programs, so they should retain their own genetic identity. While the early winter Chamber Creek Hatchery and early summer Skamania Hatchery stocks are derived from out-of-DPS sources and are therefore genetically distinct and not considered part of the DPS, the origin of the Cook Creek/Quinault National Fish Hatchery stock is unclear. There are limited data on if Cook Creek stock is similar to natural stocks. Furthermore, although current sampling for genetic analysis provides limited coverage of the DPS, there is some indication that hatchery stocks in the Queets and Quinault Rivers are not representative of the natural populations in those watersheds (HSRG 2004; Kassler et al., 2012; Seamons et al., 2017). For the two integrated programs (Quinault Lake and Salmon River), the broodstocks were founded by Quinault Lake winter-run steelhead, but with uncertainty about origin (see OP Steelhead SRT 2024; Marston and Huff 2022). In Seamons and Spidle (2023), none of the hatchery stock samples grouped with samples taken from presumptive natural-origin OP steelhead in a cluster analysis (statistical analysis where samples are grouped based on genetic similarity). This analysis also showed some evidence of hatchery influence on the natural-origin steelhead in OP streams in historical collections. Individuals collected from the Lyre and Pysht Rivers (in 1995 and 1994, respectively) in the Strait of Juan de Fuca are similar to Chambers Creek hatchery winter steelhead, and individuals collected from the Hoh River in 2008 appear to have been influenced by Skamania summer steelhead hatchery individuals (Seamons and Spidle 2023). Newer collections would be needed to assess the influence of past and extant hatchery releases on the genetic diversity and provenance of natural-origin O. mykiss, particularly since the termination of or modification of hatchery programs and releases that occurred relatively recently. Finally, out-of-DPS hatchery stocks were possibly selected by local resource managers because of differences in the run and spawn timing between the hatchery broodstocks and the native populations; therefore, the hatchery-origin steelhead exhibit a unique life history compared to the natural-origin steelhead.

Based on the SRT's conclusions, we conclude that where genetic information is available, hatchery steelhead stocks are genetically distinct from co-occurring natural-origin steelhead populations, indicating a level of genetic divergence relative to local natural populations greater than what occurs within the OP steelhead DPS. The SRT also found that the best available information suggests the hatchery stocks were founded with out-of-DPS stocks and/or out-of-DPS stocks were incorporated later, and, therefore, we conclude that the hatchery stocks are not included as part of the DPS.

Based on the best available information, we find that natural-origin steelhead (anadromous life history) occupying river basins of the Olympic Peninsula, Washington, west of the Elwha River (excluded) and south to Grays Harbor (excluded) on the Washington coast, are a DPS and constitute a species under the ESA. Furthermore, we find that none of the steelhead hatchery stocks within the geographic range of OP steelhead meets the criteria to be considered part of the OP steelhead DPS.

The SRT synthesized the best scientific and commercial data available regarding the DPS's status, which includes its life history, demographic trends, and susceptibility to threats, and evaluated the extinction risk of the DPS. The SRT included in its assessment an evaluation of the likely effects of hatchery-origin fish on the viability of the DPS. Additionally, the SRT assessed demographic components and threats that contribute to the uncertainty of the status of OP steelhead. Here we summarize information of status and threats, identifying uncertainties throughout. Following publication of the Status Review report (OP Steelhead SRT 2024), the Tribal and State co-managers provided a review of the SRT report, highlighting additional uncertainties in the status and threats related to OP steelhead.

The SRT identified 11 summer-run populations and 30 winter-run populations in the DPS (see table 2 in OP Steelhead SRT 2024). Steelhead on the Olympic Peninsula are most abundant in the major Pacific coastal basins of the Quinault, Quillayute, Queets, and Hoh Rivers (collectively, the “four major basins”), and less abundant in rivers along the Strait of Juan de Fuca. Winter-run steelhead, presently and historically, are more abundant in the smaller drainages and are distributed more ubiquitously throughout the Olympic Peninsula than summer-run steelhead (Houston and Contour 1983; Scott and Gill 2008; Cram et al., 2018).

The SRT, utilizing data previously provided by Washington State and Tribal co-managers (collectively, “co-managers”), estimated that total run size (abundance) for winter-run in the four major basins has decreased by 42 percent, from 32,556 (1991-1995) to 18,821 (2018-2022). Using combined escapement estimates as additional information on abundance, escapement in the four major basins has decreased by 16 percent from 18,597 (1991-1995) (Busby et al., 1996) to a current level of 15,653 (2018-2022). Adequate escapement data ( i.e., more than a few years of dispersed data) were not available to complete trend analysis for all winter-run populations. Of the 14 populations for which adequate escapement data were available for trend analysis (of 30 total winter-run populations), 1 had a stable trend and 13 were negative (10 significantly negatively different from 0). Analysis of the four major basins by WDFW indicated that total run size had nearly halved in size from the late 1970s and 1980s to 2022, while the trend in escapements was slightly declining or stable (Harbison et al., 2022). Notably, adequate information was not available for 16 of 30 winter-run populations.

The most recent 15-year spawner abundance trend estimates (2008-2022) indicate that 5 of the 15 populations that we have 15-year trend estimates for across the entire range had negative trends, mainly for the larger rivers that account for the largest proportion of the DPS. Of those negative trends, 4 were significantly different from 0, including the larger Queets River and Bogachiel River (part of the Quillayute River system) winter-run populations. Positive recent 15-year trends were observed in 8 of the 15 populations. The positive trends in two of the populations were significant, specifically the trends for the smaller Pysht River and East Twin River winter-run populations along the Strait of Juan de Fuca. Under dramatically reduced harvest conditions experienced in the last 3 years for winter-run populations in the four major basins, total run size appears to have stabilized or increased slightly. Though recent years may exhibit some stabilization in the 15-year spawner abundance estimates, the long-term trends still suggest long-term decline.

Factors related to how these abundances are estimated lead to biases and uncertainty in the estimates. Escapement abundance was estimated using redd (salmon nests) counts from after March 15 only, assuming that redds after March 15 are produced by natural-origin, not hatchery-origin, fish. However, steelhead spawn prior to March 15, and evidence suggests that both natural-origin (unmarked) and hatchery-origin steelhead contribute to this pre-cutoff date production (Marston and Huff 2022). Overall, from an abundance perspective, current estimates of escapement may underestimate natural production, and early natural-origin spawners may represent an additional 10 percent increase in overall abundance (Marston and Huff 2022). The relative contribution of hatchery-origin versus natural-origin spawners prior to March 15 varies with changes in harvest effort and timing and the intensity, location, and timing of hatchery releases, creating variable bias in abundance estimates depending on the year and/or river basin. Further, there is uncertainty in the use of redd counts to derive spawner abundances, specifically regarding assumptions of redd-to-adult ratios and the accuracy of redd observations, which can bias estimates either high or low (see Gallagher et al., 2007, 2010; Dauphin et al., 2010; Murdoch et al., 2018). The WDFW coastal steelhead proviso plan (Harbison et al., 2022) also points out other information about redd spawning surveys that could over- or under-estimate spawner abundances.

There was less data available for summer-run steelhead in the OP steelhead DPS. Information was limited to past and present harvests (based on run timing, we assumed that steelhead caught between April and October were summer-run steelhead) and intermittent snorkel surveys carried out in the last two decades. It is possible that some of the fish caught in the spring are winter-run kelts (repeat spawners). Likewise, fish caught in October could be very early returning winter-run fish. Summer-run steelhead are currently present in the Quillayute (Sol Duc, Calawah, and Bogachiel Rivers), Hoh, Queets, and Quinault Rivers. Based on historical summer-run harvest data, it appears that, prior to the releases of hatchery-origin summer-run fish, many of the rivers supported runs of several hundred natural-origin summer-run fish. Further, it is unclear if a remnant summer-run population still exists in the Lyre River (McHenry et al., 1996; Goin 2009).

Based on snorkel surveys, recent summer-run steelhead abundances in individual rivers likely range from less than a hundred to a few hundred adults, though potentially into the thousands for Sol Duc River and Quinault River, with considerable uncertainty in these estimates. Based on riverscape surveys, the average estimated abundance across rivers was 66 breeding fish per year, or roughly a breeding population size of approximately 260 per river, assuming a 4-year generation time. The co-managers also developed abundance estimates for summer steelhead populations in the Hoh, Quillayute, and Quinault River systems and estimated summer-run median abundance at 90 to over 550 individuals per river but with ranges extending from low hundreds to approximately 1,350 depending on the river (Co-Manager OP Steelhead Working Group [COPSWG] 2023; and see table 8 in the status review). Therefore, there is substantial uncertainty in the current abundances of summer-run populations, but they are likely at low abundance.

Few measures of productivity are available for natural populations. Modeling conducted by the SRT indicates that in most years fishing mortality in the four major basins was greater than the intrinsic growth rate (natural population growth based on births minus natural deaths), which will result in declining populations. Only a small minority of years in each population were judged to have population growth greater than zero. Estimates of population growth rate for the smaller populations along the Strait also indicate that, on average, past harvest was depressing growth rates. However, the effect of past harvest was more subtle than in the four major basins on the coast; these Strait populations have not rebounded in the 10 or so years since harvest was terminated. The four major basins (Queets, Hoh, Quinault, and Quillayute), which contain the majority of the DPS abundance, exhibited diminished productivity as indicated by below-replacement population growth rates in most years and declining short- and long-term trends in natural-origin escapement and total run size.

Smolt survival (both natural and hatchery) has decreased since the 1980s (Harbison et al., 2022). Certain analyses point to correlations with oceanographic processes and other environmental factors (COPSWG 2023; Ohlberger et al., 2025), but those correlations were studied only in the four major basins within the DPS range. Similarly, the survival of kelts in the four major basins has declined by nearly half since the 1980s, with some evidence pointing to similar factors as with the smolt declines (COPSWG 2023).

OP steelhead currently occupy nearly their entire historical range because they lie in a region of the west coast that is not impacted by dams or other major artificial passage blockages, though there are multiple smaller culverts and barriers. State, county, and forest road stream crossings may block or impair passage at culverts, which may reduce spatial structure. However, in general, road culverts block tributary access to relatively small areas of spawning and rearing habitats, and collectively they do not appear to be a major limitation on habitat. Impassable culverts on state roads are required to be upgraded under the 2013 U.S. District Court Injunction ( U.S. v. WA Culvert Case ), whereas forestry road culverts are covered under the Road Maintenance and Abandonment Plan (RMAP). Considerable progress has been made in replacing culverts in the past decade, especially under the RMAP process where over 80 percent of culverts are now fish-passable. Still, some additional culverts exist that are not included within the RMAP (NWIFC 2020). Consequently, the SRT generally viewed current population connectivity as good; i.e., no barriers that prevent access to significant juvenile rearing or adult spawning habitat.

The potential exists for future restrictions in spatial structure with present and future environmental variability due to low summer flows that may limit passage to headwater areas. Future projections for flow and temperature into the foreseeable future suggest that low-flow or high water-temperature barriers may develop and create temporal passage blockages, which would disproportionately affect spatial extent for summer-run steelhead. Changes in summer flows, with some reaches going dry, directly affect summer-run steelhead in their ability to reach their headwater spawning reaches. The upstream spatial extent of the DPS is influenced by the presence of summer-run populations in the larger river systems. Generally, but not necessarily, summer-run steelhead return-timing is coordinated with river flow patterns and temporal flow windows that allow access to headwater spawning areas; thus, summer-run steelhead access some spawning and rearing habitat that is unavailable to winter-run steelhead. However, over 99.3 percent of summer-run habitat is also winter-run habitat. In other words, of the habitat utilized by summer-run, only about 0.7 percent is summer-run only. Given the generally good connectivity and lack of anthropogenic barriers overall, as well as that summer-run spatial extent largely overlaps with winter-run, the SRT concluded the risk to the viability of OP steelhead from reduced spatial structure ranges from very low to low.

Available historical harvest information reviewed by the SRT indicated that the winter-run steelhead return timing was historically earlier than is currently expressed. McLachlan (1994) found a contraction in run timing in the Quillayute River, with a decrease in the proportion of the run return before January 1 from 35 percent of the run to 20 percent of the run. McMillan et al. (2022) estimated that peak run-timing has shifted 1 to 2 months later for winter-run steelhead in the Hoh and Quillayute, and run timing is up to 26 days shorter for some populations. Large numbers of winter-run steelhead were harvested from November to January (in some years fish were harvested in October, although these numbers may include summer-run steelhead) prior to and following the initiation of hatchery programs in the range of the OP steelhead DPS. With the beginning of hatchery programs in the DPS utilizing early-returning winter-run steelhead ( i.e., Chambers Creek Hatchery Stock from south Puget Sound), there was a directed harvest of the early-returning portion of the run targeting hatchery fish. As a consequence of this continued harvest, it is likely that a proportion of the early-returning (November-January) natural-origin winter-run steelhead were and continue to be harvested, even if incidentally (OP Steelhead SRT 2024).

Hatcheries in the region utilize out-of-DPS stocks, and there is concern about the potential impacts on natural-origin steelhead genetic diversity from the use of out-of-DPS broodstock in most hatcheries (namely, Chambers Creek and Skamania origin). Though the use of out-of-DPS stocks prevents natural-origin runs from being taken for broodstock, there can be negative impacts if non-native hatchery steelhead interbreed with natural-origin steelhead. Non-native broodstocks are presumed to be more adapted to the ecology of their watershed of origin and, therefore, express life history traits that are not necessarily adapted to the watershed to which they are transferred. If non-native hatchery-origin steelhead are present on native spawning grounds, maladaptive genotypes (because the out-of-DPS stocks are not adapted to this environment) may be integrated into the naturally spawning native population through interbreeding with hatchery fish (known as introgression).

Information on the amount of interbreeding between hatchery-origin and natural-origin steelhead is limited. Some genetic data show the likely influence of non-native stocks on natural-origin OP steelhead, but in the absence of systematic genetic sampling and spawner surveys, it was not possible for the SRT to quantitatively assess this risk. DNA analyses (Kassler et al., 2010, 2011; Seamons et al., 2017) show presumed Olympic Peninsula natural-origin population samples with mixed ancestry that includes genetics from non-native early-winter steelhead and early-summer steelhead, though natural-origin fish were still overall distinct from hatchery broodstock. Also, while early-winter run hatchery steelhead females may generally spawn earlier than the natural-origin females, there is a tendency for hatchery-origin males to remain on the spawning grounds for extended periods, increasing the likelihood of hybridizing with natural-origin female steelhead (though hatcheries select for different spawn timing compared to natural-origin to help reduce spawning overlap).

There are limited releases of summer-run hatchery steelhead in the range of OP steelhead DPS and releases have been eliminated in many tributaries on the Strait. Even with limited releases, snorkel surveys for summer-run steelhead observed that natural-origin and hatchery-origin fish often co-occurred within the same kilometer of river channel in the Hoh, Bogachiel, and Sol Duc Rivers. Natural populations along the Strait and Cape Flattery are at relatively low abundances and, although hatchery releases in many tributaries draining to the Strait were eliminated almost a decade ago, past and continuing releases are more likely to have a significant effect on abundance and genetic composition because of their small population size.

There are circumstances that also help limit interactions and limit genetic impacts from hatchery-origin steelhead. There have been changes in hatchery operations to reduce off-station releases in order to increase the proportion of fish returning to the hatchery and decrease the number of hatchery-origin fish straying and spawning naturally (including eliminated off-station release in the Hoh River). Co-managers have made changes to reduce negative effects; for example, releases of winter-run and summer-run fish have been eliminated from the Clallam River, Goodman Creek, Lyre River, Pysht River, and Sol Duc River (COPSWG 2023). Also, larger rivers draining to the Pacific Ocean have larger natural populations and greater spatial structure; thus, despite the large size of many of the corresponding hatchery programs, it is possible that there is somewhat limited interaction and introgression between the hatchery- and natural-origin populations. Resident O. mykiss, multiple spawner ages, and repeat spawners all contribute to bolstering the number of effective spawners and provide some buffering against inbreeding. Additionally, the relative nearness of the populations within the DPS to each other allows for the continued exchange of individuals between populations, and helps maintain genetic diversity.

As described above, section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424.11(c)) state that we must determine whether a species is endangered or threatened because of any one or a combination of the 4(a)(1) factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence (16 U.S.C. 1533(a)(1)). We evaluated whether and the extent to which each of the foregoing factors contributes to the overall extinction risk of the DPS, identifying uncertainties throughout.

Related to listing factor (A), while cumulative impacts of land-use practices have been large over space and time, the four major basins still exhibit fundamental natural watershed processes and associated habitat characteristics. These include a large, forested floodplain, relative to other watersheds, which is still intact and functioning. The SRT noted moderate-to-good conditions in river and riparian habitat, large percentages of forest cover, and declines in timber harvest activity (see NWIFC 2020), especially those rivers with substantial portions being located within Olympic National Park (ONP) or headwaters in the ONP (mainly the four major basins). OP steelhead currently occupy nearly all of their historical range because they lie in a region of the West Coast that is not impacted by dams or other major in-stream artificial passage blockages. For steelhead watersheds outside the ONP the majority of land use is for timber harvest and despite recent habitat improvement efforts, the legacy of past industrial logging practices will continue to negatively affect steelhead productivity in a number of rivers for the foreseeable future. Still, several restoration programs to retire forest roads, repair culverts, and supplement woody debris, amongst other things, were also seen as having improved habitat. Generally, habitat in many of the rivers has improved since the review by Busby et al. (1996), although it was recognized that the natural recovery from past timber harvest events and stream “clearing” practices takes decades. Despite some legacy effects of forestry and land use practices, habitat quality and connectivity are generally good within the DPS due to declining timber harvest activity, especially within the ONP, and the absence of dams or other major artificial passage blockages in the region.

For listing factor (B), utilization in the form of harvest of OP steelhead has declined within the last decade (particularly the last few years) and varies greatly by region (Strait vs. the four major basins). Annual harvest rates of OP steelhead in the four major basins have declined in most recent years (2021-2024). Estimates of harvest rate for the DPS and the four major basins average across population prior to 2014 were 25.6 percent and 36.5 percent, respectively (Cram et al., 2018). Based on data from the co-managers, between 2014 and 2020, rates averaged across years for each of the four major basins ranged from 21 percent to 41 percent. Most recently (2021-2024), based on data including co-manager provided data since publication of the status review, harvest rate estimates for the four major basins have ranged from 7 percent to 25 percent. While harvest rates have declined recently, as stated above, modeling by the SRT with data through 2022 indicates that in most past years fishing mortality in the four major basins was greater than intrinsic natural growth, resulting in continued declines in populations (a small minority of years had growth above zero) (OP Steelhead SRT 2024). Population estimates associated with the most recent harvest rates have yet to be determined since the progeny of those brood years have not yet fully returned to spawn. Increases in abundance in the last couple of years in certain basins are promising, and it will take several years to detect a response signal from such recent actions.

For most rivers along the Strait, harvest was terminated in various years between 2005 and 2020 (see OP Steelhead SRT 2024). Population growth rate patterns considered by the SRT appear very similar among streams, including in streams where fishing continues. Therefore, it appears that other non-harvest factors (such as freshwater and/or ocean conditions) may also be influencing trends in Strait populations.

Multiple factors lead to uncertainty in harvest rates, which leads to difficulty in determining the level of threat under factor (B). Rivers within the OP steelhead range with recreational fishing have been catch and release since 2016, and the state assumes a 10 percent hooking mortality for all state-wide steelhead sport fisheries. Certain commenters on the 90-day Petition finding questioned this estimate and believe the hooking mortality rate to be lower, citing research from river systems not in the Olympic Peninsula, and there are no known data to precisely calculate hooking mortality rates for rivers within the OP DPS range. For the harvest estimates presented above, a hooking mortality estimate is included for only the Hoh River sport fishery harvest rate; therefore, rates for other basins are likely higher if incorporating catch and release mortality. Additionally, evidence suggests a sport angler encounter rate of 1.14 for natural-origin steelhead, implying some steelhead are caught and released more than once (Bently 2017; Harbison et al., 2022). Estimates of the effect of multiple captures on hooking mortality are not available, but, presumably, multiple captures would increase hooking mortality. Winter-run harvest rates include all steelhead caught between management week 45 (approximately November 1) and week 18 (April) no matter the target fishery, but not any steelhead caught outside that time period (pers. comm. Jim Scott on behalf of co-managers, July 17, 2024), leading to additional uncertainty in harvest rates if any late returning fish are caught after week 18. Finally, harvest typically occurs from November to May, while escapement is calculated from counts of redds created after March 15 when it is assumed that all the fish present are natural-origin steelhead, resulting in a potential underestimate of run sizes and an overestimate of harvest rate. All in all, there are factors that both underestimate and overestimate harvest rates/mortality.

For summer-run steelhead, since 1992, catch-and-release regulations have been in place in state waters and the ONP. Fisheries data show low, limited harvest (and/or catch and release mortality) of summer-run steelhead in recent years (see OP Steelhead SRT 2024, including appendix B). It is difficult to interpret an impact of catch given the level of uncertainty associated with summer-run abundance, but available information suggests that the directed harvest of natural-origin summer-run steelhead has declined since the 1996 status review. Contributing further to the uncertainty, data on indirect harvest of summer-run steelhead in fisheries targeting other Pacific salmon were not available for review.

For listing factor (C), as detailed in the status review, most of all known disease cases are in hatchery fish populations, and little information exists on the impacts to natural-origin steelhead in the Olympic Peninsula as natural-origin steelhead are less commonly sampled (Breyta et al., 2013; data from Tony Capps, WDFW). To accurately assess the potential threat of disease in this population, we would need annual pathology reports from each hatchery to effectively assess the presence/prevalence of pathogens, viruses, and bacteria. Because most known disease outbreaks have been in hatchery-origin steelhead, most hatcheries are segregated from natural-origin, and hatchery fish are not part of the DPS, the status review team considered disease to be a very low-risk threat for natural-origin OP steelhead.

Though the consumption of salmonids by predators, especially marine mammals, has increased, we have little information on the consumption of OP steelhead. Recent research suggests that predation pressure on salmon and steelhead from marine mammals has been increasing in the northeastern Pacific over the past few decades (Chasco et al., 2017 a, b; Couture et al., 2024; Rub et al., 2018), but this work mainly focused on predation on Chinook salmon (Couture et al. (2024) also discuss other salmonids but there is limited mention of steelhead). Also, predation from marine mammals likely is not a primary cause of the lack of salmonid population recovery in Washington state (WSAS 2022). Studies have found that pinnipeds can have a significant predation impact on outmigrating juvenile steelhead in Puget Sound (Moore et al., 2021, 2024; Moore and Berejikian 2022), winter adult steelhead at the Ballard Locks in Lake Washington (NMFS 1995), and other adult salmonids (see Rub et al., 2018). Scordino et al. (2022) found consumption of multiple sizes of steelhead in coastal Washington by Steller and California sea lions based on scat samples (though most consumption was on Coho salmon [ O. kisutch ]). Seabirds are present in the Olympic Peninsula watersheds and consume juvenile salmonids, but we are unaware of any unusual or excessive predation events by seabirds or hotspots of seabird predation (based on pers. Comm. with Thomas Good, 15 October 2023, NMFS NWFSC). Invasions of non-native fish species pose threats to native fish fauna, but little is known about the extent or effects on OP steelhead.

Anthropogenic habitat alterations, including dams, irrigation diversions, fish ladders, and human-created islands, have the potential to create sites that may increase predation opportunities on adult and juvenile salmonids (Antolos et al., 2005; Evans et al., 2012; Hostetter et al., 2012; Moore & Berejikian 2022; Collins et al., 1976). However, there are no large dams or barriers in the OP steelhead range. While increases in predation associated with increases in pinniped populations along the West Coast are possible, we have no specific information to indicate that predation has increased for OP steelhead and no quantitative information on predation over time. Also, less is known about predation of steelhead in the marine environment. Tribal managers in the area have voiced concern about pinniped predation on these populations, but we lack quantitative data about the level of threat or if predation is a factor limiting the viability of OP steelhead specifically. Therefore, the SRT concluded that predation was a low risk.

Related to listing factor (D), various Federal and State protection measures exist across the Olympic Peninsula and the state of Washington to protect forests and salmonid habitat. Many provide protection to the species and its habitat. These include the Northwest Forest Plan (NWFP) and the associated Aquatic Conservation Strategy, the General Management Plan for the ONP, the Washington Forest Practices Act, the Washington State Forest Practices Rules, the DNR Habitat Conservation Plan, and state legislation to remove fish passage barriers. Additionally, multiple rivers and streams where OP steelhead occur have been designated as bull trout ( Salvelinus confluentus ) critical habitat (75 FR 63875-63978, October 18, 2010) and other ESA-listed species like Lake Ozette sockeye salmon ( Oncorhynchus nerka ), marbled murrelet ( Brachyramphus marmoratus ), and Northern spotted owl ( Strix occidentalis caurina ) occur on the peninsula. NMFS and USFWS have conducted biological opinions under section 7 of ESA for Federal actions in this region, including for the forest management activities in the Olympic National Forest, that lead to the prevention of activities that may jeopardize listed species and/or adversely modify their critical habitat. However, it is difficult to assess if these actions are adequate to conserve OP steelhead. Progress towards habitat protection is hard to measure since any ongoing efforts related to habitat restoration may take decades (if not longer) to show an effect. There is a spectrum of regulatory mechanisms protecting and restoring habitat, and the degree of protection depends on the entity with regulatory authority and the specific land activities in each area.

Regulations related to harvest and hatcheries within Washington State also affect OP steelhead. OP steelhead fisheries are collectively managed by WDFW (State waters outside of the ONP) and Treaty Tribes (in their usual and accustomed fishing areas) and also by the ONP (in the park). The Treaty Tribes regulate commercial and subsistence fisheries and on-reservation sport and tribal-guided fisheries. Martin (2023) notes that sustainable harvest management is a core principle of traditional resource management and is embedded into the tribes' societal roles. Salmon and steelhead have been managed since time immemorial during a time when steelhead thrived (including their habitat), and this management included both traditional hatchery practices and harvest practices. Strategies have been implemented since the 1990s to support sustainable fishing including: prohibiting retention of natural-origin winter-run steelhead for recreational fisheries in state waters (since 2016, recreational fishing on certain tribal lands allows for retention of natural-origin), harvest restrictions (such as bag limits), shorter seasons, and gear restrictions (limits on hooks, prohibiting bait, prohibiting fishing from boats in certain rivers) in the face of declining natural-origin steelhead populations (Harbison et al., 2022). In recent years, recreational fisheries have been closed inside and outside of the ONP for certain rivers due to low returns. As noted above, reductions in harvest rates, with large reductions in tribal harvest rates, have occurred in recent years (2021, 2022, and 2023-2024 season). For most rivers along the Strait, steelhead-directed harvest has been prohibited since between 2005 and 2020 (depending on the river).

The state of Washington has proposed, but not yet implemented, the 2022 WDFW Coastal Steelhead Proviso Implementation Plan (“Proviso”) (Harbison et al., 2022) and has begun the process for updating state harvest regulations ( https://wdfw.wa.gov/fishing/management/steelhead/coastal ). The Proviso outlines management strategies for the future of OP steelhead and other coastal steelhead populations. The Proviso Plan is based on existing state policies and does not represent a change in policy. It was developed as a response to recent declines in coastal steelhead and the need for adaptive management strategies to address these declines. There are additional plans by the State to update coastal steelhead management, though there are limited details on the plan at this time ( https://wdfw.wa.gov/fishing/management/steelhead/coastal ). Finally, as noted throughout, the Tribal and State co-managers actively monitor and have a policy of protectively managing the species. The co-managers have also committed to changes to hatchery and harvest regulations (see Co-manager Olympic Steelhead Working Group 2025), most notably efforts to mark all hatchery fish, testing of natural-derived broodstock in the Quillayute, evaluation of the March 15 management cut-off date, updating catch-and-release mortality, and expanding methods for abundance estimation. NMFS will continue to work with the co-managers to evaluate the effectiveness of the existing regulatory mechanisms and the future impact of these commitments on the species' status.

WDFW operation of hatcheries is currently subject to the Statewide Steelhead Management Plan and the Anadromous Salmon and Steelhead Hatchery Policy C-3624 (2021), superseding the policy from 2009 (Hatchery and Fishery Reform Policy C-3619). This policy provides general guidelines and notes that Hatchery Monitoring Plans (HMPs) will be developed for all state hatcheries. We did not find any evidence of completed HMPs at this point. This policy applies to state hatcheries and not to Federal or Tribal facilities. The C-3624 policy is not an enforceable regulation, but a guiding policy. However, the co-managers are currently working to develop hatchery management plans for hatchery facilities within the Olympic Peninsula (Harbison et al., 2022).

Extensive hatchery programs have been implemented throughout the range of west coast steelhead. While some programs may have succeeded in providing harvest opportunities and increasing the total number of naturally spawning fish, the programs have also likely increased risks to natural populations, though this can depend on specific management and if measures are taken to reduce impacts to native runs. Hatchery operations, especially those utilizing non-native broodstocks, could introduce maladapted life history traits through interbreeding between natural-origin and hatchery-origin fish (introgression). We cannot currently quantitatively estimate the level of reproductive exchange between natural-origin and hatchery-origin steelhead in the Olympic Peninsula. Estimates of the proportion of hatchery-origin spawners (pHOS) and genetic data give some insight into the level of possible introgression but were only available for a limited proportion of the DPS, and many were not from recent years. Available information suggests some introgression, and the continued use of non-native broodstocks presents ecological and genetic risks, though this risk varies with the specifics of the particular hatchery program and natural population. There have been changes in hatchery operations to reduce straying. NMFS will continue to work with the co-managers to evaluate the impacts of hatchery operations and the effectiveness of efforts to reduce risks to OP steelhead.

Finally, for listing factor (E) scientists predict the rising temperatures and associated ecosystem changes caused by environmental variation to impact Pacific salmon by a variety of mechanisms throughout their life cycle (Crozier et al., 2008, 2019, Isaak et al., 2022, Crozier and Siegel 2023). These impacts are complex and vary among species, DPSs, and habitats. For U.S. West Coast salmon and steelhead, expected changes to freshwater habitats include increased air and stream temperatures and changes in seasonal (but not necessarily annual mean) rainfall patterns, with larger and more extreme storms and droughts. These increased temperatures will result in more winter precipitation falling as rain than snow at intermediate elevations, which alters both seasonal streamflow and water temperatures.

Many changes in temperature and stream flow have already been observed in the Olympic Peninsula watersheds (see OP Steelhead SRT 2024). Additionally, multiple papers have already documented extensive glacier losses in the Olympic Mountains; between 1980 and 2015, 35 glaciers and an additional 16 perennial snowfields disappeared from the Olympic Mountains (Fountain et al., 2022; Riedel et al., 2015; NWIFC 2020). Increases in summer stream temperatures especially pose risks to steelhead due to extended freshwater rearing; i.e., juvenile steelhead that spend up to 2 or 3 years in freshwater (Halofsky et al., 2011; Climate Impacts Group 2009). Winter-run steelhead predominate in the Olympic Peninsula and are expected to be somewhat less susceptible to risks from changing stream temperatures than summer-run steelhead. Low summer stream flows can affect summer-run steelhead migration by dewatering stream reaches or limiting the accessibility of waterfalls or cascades (Halofsky et al., 2011). Future increases in flows at other times of year can displace juvenile fish and/or reduce the availability of suitable slow-water habitats for young fish. However, winter-run steelhead generally spawn after peak flow events and are less susceptible to redds being scoured (Halofsky et al., 2011). Still, future increases in streamflow can increase the magnitude and frequency of streambed mobilization and scour, impacting eggs and embryos, while warmer temperatures may result in more rapid incubation leading to earlier timed and smaller individuals at emergence (Dalton et al., 2016).

Environmental variability now and into the future will also likely impact steelhead in the marine environment. Modeling analysis predicted an 8 to 43 percent contraction of steelhead species' marine habitat due to changing thermal conditions between the 2020s and 2080s, depending on time period (Abdul-Aziz et al., 2011). The assessment by the co-managers (COPSWG 2023) and subsequent publication (Ohlberger et al., 2025) suggested that interannual variation in recruitment and kelt survival were both partially explained by summer sea surface temperatures (SST) with lower recruitment and kelt survival with warmer summer SST. Models showed that pink salmon abundance as well as North Pacific Gyre Oscillation (NGPO) also influence recruitment (Ohlbergur et al., 2025). There is uncertainty in how smolt survival and recruitment and kelt survival will change over time, but kelt survival has already declined since the 1980s.

There may be positive impacts from environmental variability, particularly temperature, such as possible longer rearing seasons due to temperature increases at certain times of the year, increased productivity within the food web, and more rapid growth at certain times and life stages (Halofsky et al., 2011; Dalton 2016). Warmer conditions in summer would likely reduce growth, but warmer temperatures at other times of the year could increase growth rates (Dalton et al., 2016) and improve rearing conditions for juveniles, especially in the lower river reaches. However, warmer temperatures also potentially increase susceptibility to disease and increase competition with other species or predation, through the increased presence of non-native piscivorous species.

At the population level, the ability of organisms to genetically adapt to environmental variability depends on how selection on multiple traits interact and whether those traits are linked genetically. Factors that affect genetic diversity can limit the ability of a population to adapt to variability in environmental conditions. These factors include, but are not limited to, small population size, domestication in hatchery environments, and/or introgression by introduced non-native stocks. Also, future environmental changes are likely to happen much faster than normal adaptation processes can respond.

The SRT's determination of rangewide extinction risk to the OP steelhead DPS used the categories of high, moderate, or low risk of extinction. The risk levels are defined as:

(1) High risk: A species or ESU with a high risk of extinction is at or near a level of abundance, productivity, diversity, and/or spatial structure that places its continued existence in question. The demographics of a species or ESU at such a high level of risk may be highly uncertain and strongly influenced by stochastic and/or depensatory processes. Similarly, a species or ESU may be at high risk of extinction if it faces clear and present threats ( e.g., confinement to a small geographic area; imminent destruction, modification, or curtailment of its habitat; disease epidemic) that are likely to create such imminent demographic risks.

(2) Moderate risk: A species or ESU is at moderate risk of extinction if it exhibits a trajectory indicating that it is more likely than not to reach a high level of extinction risk in the foreseeable future. A species or ESU may be at moderate risk of extinction due to projected threats and/or declining trends in abundance, productivity, spatial structure, or diversity. The appropriate time horizon for evaluating whether a species or DPS is more likely than not to become at high risk in the future depends on various case- and species-specific factors. For example, the time horizon may reflect certain life-history characteristics ( e.g., long generation time or late age-at-maturity) and may also reflect the timeframe or rate over which identified threats are likely to impact the biological status of the species or ESU ( e.g., rate of disease spread). The appropriate time horizon is not limited to the period that status can be quantitatively modeled or predicted within predetermined limits of statistical confidence.

(3) Low risk: A species or ESU is at low risk if it is not at moderate or high risk of extinction.

The SRT considered the “foreseeable future” to be a time period of approximately 40 to 60 years. Following Stout et al. (2012), the shorter end of this timeframe corresponds to roughly 10 steelhead generations, which the SRT concluded was a reasonable value over which to consider current demographic trends. The longer end of this timeframe corresponds to a timeframe over which scientific studies of the impacts of environmental variability on salmonid freshwater and ocean habitat are available. For example, the SRT utilized analyses of predicted future stream temperatures and stream flow in the years 2040 and 2080 and marine studies for O. mykiss that center on the 2040s and 2080s (Abdul-Aziz et al., 2011).

The SRT used a likelihood point method to account for uncertainty in the overall extinction risk by allocating ten risk points across the low, moderate, and high-risk categories. In their overall evaluation of the DPS status, the majority of the SRT members put the majority of their 10 allocated risk likelihood points in the moderate extinction risk category leading to an average of 5.5 in moderate, 4 in low, and 0.5 in high. A minority of members ( 2/8 ) put either equal points between low and moderate extinction risk or the majority of points in low extinction risk category (six points in low, four in moderate). SRT members with the majority of points in low extinction risk concluded that the overall DPS abundance was still relatively moderate compared to other steelhead DPSs and that the major threats, other than environmental variability, could be addressed directly through management actions. Therefore, there was uncertainty across the members about the level of risk facing OP steelhead (not unanimous).

In consideration of the factors identified in 4(a)(1) of the ESA and our analysis of the viability of the DPS, including any uncertainties, we are unable to find the DPS faces a high or moderate risk of extinction now or in the foreseeable future. Despite some legacy effects of forestry and land use practices, habitat quality and connectivity are generally good within the DPS due to declining timber harvest activity, especially within the ONP, and the absence of dams or other major artificial passage blockages in the region. OP steelhead habitat has also benefitted from several restoration programs including efforts to repair culverts, retire forest service roads, and supplement woody debris. Additionally, under existing regulatory mechanisms, the co-managers have implemented improved harvest management strategies and harvest of OP steelhead has declined within the last decade, particularly the last few years. There have also been changes in hatchery operations to reduce straying. Abundance trends suggest populations have declined over the long-term; however, increases in abundance in the last couple of years in certain basins are promising, and overall DPS abundance is still relatively moderate compared to other steelhead DPSs. The co-managers and NMFS will continue monitoring populations for response signals from recent and future conservation management actions. While information is limited, disease risk to natural-original OP steelhead is considered very low risk. Some evidence suggests introgression between hatchery-origin and native fish, though data regarding the current levels of genetic mixing are limited. The extent to which predation may be limiting the viability of OP steelhead is uncertain, although pinniped predation is not considered a primary threat to steelhead in these ecosystems. Predicted variation in stream temperatures and flows, changes to the marine environment, and alterations in seasonal rainfall patterns are likely to negatively impact the DPS in the foreseeable future; however, some beneficial impacts are also possible, and there remains considerable uncertainty about the localized effects of environmental variation to OP steelhead populations. Based on the foregoing, we have determined the DPS is not at a high risk of extinction or near a level of abundance, productivity, diversity, and/or spatial structure that places its continued existence in question; nor does the DPS exhibit a trajectory indicating that it is more likely than not to reach a high level of extinction risk in the foreseeable future.

As noted in the introduction above, the definitions in section 3 of the ESA of both “threatened species” and “endangered species” contain the term “significant portion of its range” (SPR), which we interpret to refer to an area smaller than the entire range of the species. As indicated by these definitions, we can list a species based on their status in all of their range or based on their status in a SPR. The range of a species is considered to be the general geographical area within which that species can be found at the time NMFS or USFWS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly ( e.g., seasonal habitats). (79 FR 37578, 37583, July 1, 2014).

In construing the statutory definitions of threatened species and endangered species, we are thus required to give some independent meaning to the SPR phrase to avoid rendering it superfluous to the “throughout all” language (See Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001)). Under the 2014 policy regarding the interpretation of the phrase “significant portion of its range” (SPR Policy), which was issued jointly by NMFS and USFWS, first we evaluate the status of the species throughout its range and, unless we find the species is endangered based on the rangewide analysis, we must go on to consider whether the species may have a higher risk of extinction in an SPR (79 FR 37578, July 1, 2014). The assessment consisted of identifying and evaluating portions of the DPS that are potentially at high risk of extinction and are important to the overall DPS's long-term viability, yet not so important as to be determinative of its current or foreseeable status. In other words, the goal of the SPR analysis was to determine if there are biologically important portions of the DPS that are currently at higher risk than the DPS rangewide but that are not so important that their status would lead to the entire DPS being currently at higher risk.

Because a species' range can theoretically be divided into an infinite number of portions, the SRT first discussed and identified several sub-DPS portions that had a reasonable likelihood of being at higher risk of extinction than the DPS rangewide and a reasonable likelihood of being biologically significant to the species. Unless a portion meets both conditions, they will not be further considered in the SPR analysis (as they could not form the basis for a proposed listing). In evaluating whether a portion was biologically significant, the SRT considered whether the species within that portion was important to the DPS's long-term viability but not so important that their status would drive current or foreseeable DPS-wide extinction risk. After considering multiple possibilities, the SRT settled on a more detailed evaluation of two types of strata based on geography or adult run-timing.

In this case, the geographic units considered include steelhead populations in rivers that drain to the Strait and steelhead populations in rivers that drain to the Pacific Ocean. These two regions were identified as potential portions due to the hydrological and geographic distinctiveness of the rivers supporting Strait populations and coastal populations. The majority of the SRT members assigned a majority of their 10 allocated points in the not biologically significant category for populations in rivers draining to the Strait. The SRT concluded that populations in the Strait portion may express distinct life-history strategies, however, there are coastal populations in streams ecologically similar to those in the Strait, and over the long term it is likely that the rivers on the Strait could be recolonized by coastal OP steelhead runs. So, though these runs are important to diversity and spatial structure, they are not so important as to be biologically significant relative to the overall long-term viability of the species. Because the SRT determined that the Strait populations did not meet the agency's criteria for significance, the Strait portion of the range is not considered to be an SPR. Coastal populations are the most numerous and widespread portion of the DPS. The status of the coastal component is determinative of the rangewide status of the DPS and is therefore not a valid SPR.

The team also considered whether the variation in adult run-timing might form the basis for identifying alternative portions. In general, summer- and winter-run steelhead utilize spatially different freshwater habitats, particularly during the adult freshwater migration and spawning portions of the life cycle. Generally, summer-run steelhead tend to spawn in the upper portions of river systems. Sometimes these areas are above temporal flow barriers that are only accessible during high spring flows (Withler 1966; Myers et al., 2015; Waples et al., 2022), thus not utilized by winter-run and leading to a different geographic extent for summer-run.

However, we have determined the summer-run stratum does not qualify as a valid portion of the OP steelhead range because, consistent with the ESA and the 2014 SPR Policy (79 FR at 37583), the selection of portions for consideration should be premised at least in part on a geographically oriented rationale. Here, the summer-run component lacks sufficient spatial segregation from the winter-run to be considered a valid portion of the DPS's range for the purposes of SPR analysis under the ESA. A review of spawning and rearing habitat utilized by summer-run steelhead, found only 0.7 percent of the habitat was used solely by summer-run steelhead. In other words, >99.3 percent of summer-run geography is shared with winter-run fish. Therefore, the summer-run component does not qualify as a valid portion of the OP steelhead range.

Additionally, the SRT concluded that the summer-run portion did not meet the criteria to be considered biologically significant to the DPS's long-term viability. The SRT concluded that summer-run populations contribute to genetic diversity and spatial structure diversity of the DPS. However, the SRT ultimately concluded the summer-run fish to be not significant because summer-run steelhead currently are not and historically were not a major contributor to overall DPS abundance, winter-run and summer-run populations in the same watershed are not reproductively isolated and have generally been found to be genetically very similar (thus there is some possibility for reestablishment if a summer-run population is lost), and summer-run specific habitat (predominantly just for spawning) represents a minor fraction of the total accessible spatial structure. Summer-run steelhead was voted to have a higher risk than the DPS range-wide, but given that summer-run steelhead did not meet the agency's criteria to be considered significant and a valid portion, this grouping is not considered an SPR.

Finally, winter-run populations are the most numerous and widespread portion of the DPS. The status of the winter-run component is determinative of the rangewide status of the DPS and is therefore not a valid SPR. We conclude that there are no portions of the DPS's range that are both significant and at higher risk of extinction than the DPS as a whole.

Section 4(b)(1) of the ESA requires that we make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any State or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information, including references cited in the petition, public comments submitted on the 90-day finding (88 FR 8774; February 10, 2023), the status review report, and information provided by co-managers, and we have consulted with species experts and individuals familiar with steelhead.

Based on the foregoing information, we determine OP steelhead do not warrant listing at this time. Primary factors leading to this conclusion include: habitat quality and connectivity are generally good within the DPS and are benefitting from ongoing restoration efforts; spatial distribution is good; State and Tribal co-managers have implemented improved harvest and hatchery practices and reduced harvest significantly in recent years; abundance trends suggest declining populations, but the response to recent management actions has yet to be seen; and while environmental variation is expected to have some negative impacts on the DPS, there could also be positive impacts while the precise localized effects are unclear. Additionally, we did not identify any portions of the DPS that were both significant and facing a higher level of extinction risk than the DPS rangewide. Therefore, we determine listing is not warranted. NMFS intends to continue to monitor the status of the OP steelhead DPS and work closely with the State and Tribal co-managers.

A complete list of all references cited herein is available upon request (See FOR FURTHER INFORMATION CONTACT ).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

Atlantic BFT fisheries are managed under the 2006 Consolidated Highly Migratory Species Fishery Management Plan (HMS FMP) and its amendments, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) and consistent with the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ). ATCA is the implementing statute for binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The HMS FMP and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27(a) divides the U.S. BFT quota, established by ICCAT and as implemented by the United States among the various domestic fishing categories, per the allocations established in the HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act at 16 U.S.C. 1854(g)(1)(D) to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

Under § 635.28(a)(1), NMFS files a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on and after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the subsequent quota period or until such date as specified.

Every year, the BFT fishing year starts on January 1 and ends on December 31. The Angling category opens on January 1 and continues through December 31 or until the applicable quota or subquota is reached or projected to be reached, whichever comes first. As described in § 635.27(a), the current baseline U.S. BFT quota is 1,316.14 metric tons (mt) (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area per § 635.27(a)(3)). The Angling category baseline quota is 297.4 mt, of which 9.2 mt (3.1 percent of the annual Angling category quota) is sub-allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 2.3 mt (25 percent of the annual large medium and giant BFT Angling category quota) allocated for each of the following areas: north of 42° N latitude (lat.) (the Gulf of Maine area); south of 42° N lat. and north of 39°18′ N lat. (the southern New England area); south of 39°18′ N lat. and outside of the Gulf of America (the southern area); and the Gulf of America region. Trophy BFT measure 73 inches (185 cm) curved fork length or greater. This closure action applies to the southern area.

Separate from this action, NMFS is working on a rulemaking that would implement the 2025 ICCAT recommendation (Recommendation 25-05) regarding western BFT management. Consistent with that recommendation, the separate rulemaking action would consider increasing the baseline U.S. BFT quota from 1,316.14 mt to 1,509.98 mt and adjusting any subquotas as needed accordingly. In the next few months, NMFS expects to issue a proposed rule regarding the overall quota increase and resulting subquota calculations. Any final rule implementing ICCAT Recommendation 25-05 would likely be effective in mid-2026 or later.

Based on landings data from the NMFS Automated Catch Reporting System, as well as average catch rates and anticipated fishing conditions, NMFS has determined the Angling category southern area trophy BFT subquota has been reached and exceeded. Therefore, retaining, possessing, or landing large medium or giant ( i.e., measuring 73 inches (185 cm) curved fork length or greater) BFT south of 39°18′ N lat. and outside of the Gulf of America by persons aboard HMS Angling and HMS Charter/Headboat permitted vessels (when fishing recreationally) must cease at 11:30 p.m. local time on January 13, 2026. This closure will remain effective through December 31, 2026. This action applies to HMS Angling and HMS Charter/Headboat permitted vessels when fishing recreationally for BFT, and is taken consistent with the regulations at § 635.28(a)(1). This action is intended to prevent further overharvest of the Angling category southern area trophy BFT subquota. The Angling category BFT trophy fisheries for the Gulf of America, Southern New England, and Gulf of Maine areas remain open.

If needed to ensure available quotas or subquotas are not exceeded or to enhance fishing opportunities, subsequent Angling category adjustments or closures will be published in the Federal Register per § 635.27(a)(7) and § 635.28(a)(1). Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches (185 cm), and any further Angling category adjustments, is available at https://hmspermits.noaa.gov. During a closure, fishermen aboard HMS Angling and HMS Charter/Headboat permitted vessels when fishing recreationally may continue to catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

NMFS will continue to monitor the BFT fisheries closely. Per § 635.5(c)(1), HMS Angling and HMS Charter/Headboat permitted vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing https://hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)) and regulations at 50 CFR part 635, and this action is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice of, and an opportunity for public comment on, this action because it is impracticable and contrary to the public interest for the following reasons. Specifically, the regulations implementing the HMS FMP and its amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing for prior notice and opportunity to comment is impracticable and contrary to the public interest as this fishery is currently underway and, based on the most recent landings information, the Angling category southern area trophy BFT fishery subquota has been reached and exceeded. Delaying this action could result in further excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the southern area trophy BFT fishery before additional landings of these sizes of BFT occur. Taking this action does not raise conservation and management concerns, and would support effective management of the BFT fishery. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.

For all of the above reasons, the AA also finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effectiveness.