EPCA, Public Law 94-163, as amended, 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) Title III, Part B of EPCA  2 established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products include MHLFs, the subject of this final determination. (42 U.S.C. 6292(a)(19))

Pursuant to EPCA, DOE is required to review its existing energy conservation standards for covered consumer products no later than 3 years after a determination that standards for the product do not need to be amended. (42 U.S.C. 6295(m)(3)(B)) Pursuant to that statutory provision, DOE must publish either a notice of the determination that standards for the product do not need to be amended, or a notice of proposed rulemaking (“NOPR”) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). ( Id. ) DOE has conducted this review of the energy conservation standards for MHLFs under EPCA's 3-year-lookback authority in EPCA following a determination that standards need not be amended.

For this final determination, DOE analyzed MHLFs subject to energy conservation standards specified in the Code of Federal Regulations (“CFR”) at 10 CFR 431.322. DOE first analyzed the technological feasibility of more energy-efficient MHLFs. For those MHLFs for which DOE determined higher standards to be technologically feasible, DOE evaluated whether higher standards would be cost effective. Based on that evaluation, DOE has determined that the market and technology characteristics of MHLFs are largely similar to those analyzed in the previous energy conservations standards rulemaking for MHLFs, which concluded with the publication of a final rule determining not to amend standards. See 86 FR 58763 (October 25, 2021) (“October 2021 Final Determination”). DOE has determined that the conclusions reached in the October 2021 Final Determination regarding the benefits and burdens of more stringent standards for MHLFs are still relevant to the MHLF market today. Hence, DOE has determined that the amended standards for MHLFs would not be cost effective.

Based on the results of the analyses, summarized in section III of this document, DOE has determined that current standards for MHLFs do not need to be amended and is issuing this final determination accordingly.

The following sections briefly discuss the statutory authority underlying this final determination, as well as some of the historical background relevant to the establishment of energy conservation standards for MHLFs.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) Title III, Part B of EPCA  3 established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include MHLFs, the subject of this document. (42 U.S.C. 6292(a)(19))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6297(d))

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and 42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their product complies with the applicable energy conservation standards and as the basis for any representations regarding the energy use or energy efficiency of the product. (42 U.S.C. 6295(s) and 42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to evaluate whether a basic model complies with the applicable energy conservation standard(s). (42 U.S.C. 6295(s)) The DOE test procedures for MHLFs appear at 10 CFR 431.324.

EPCA prescribed energy conservation standards for MHLFs (42 U.S.C. 6295(hh)(1)) and directed DOE to conduct future rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(hh)(2)(A) and (3)(A)) Not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR proposing amended energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a notice of determination or NOPR is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2))

A determination that amended standards are not needed must be based on consideration of whether amended standards will result in significant conservation of energy, are technologically feasible, and are cost effective. (42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2)) Under 42 U.S.C. 6295(o)(2)(B)(i)(II), an evaluation of cost effectiveness requires DOE to consider savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard. (42 U.S.C. 6295(n)(2); 42 U.S.C. 6295(o)(2)(B)(i)(II))

Finally, pursuant to the amendments to EPCA contained in the Energy Independence and Security Act of 2007, Pub. L. 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures for MHLFs address standby mode energy use. 4 However, DOE has yet to identify a MHLF on the market that uses energy in standby mode. Therefore, in the analysis for this final determination, DOE considered only active mode energy consumption, as standby and off mode energy use are not applicable to MHLFs at this time.

DOE is publishing this final determination pursuant to the 3-year-lookback review requirement in EPCA following a determination that standards need not be amended.

Current standards for MHLFs manufactured on or after February 10, 2017, are set forth in DOE's regulations at 10 CFR 431.326 and are specified in Table II.1. 10 CFR 431.326(c). Additionally, it is specified at 10 CFR 431.326 that MHLFs manufactured on or after February 10, 2017, that operate lamps with rated wattage >500 watts (“W”) to ≤1,000 W must not contain a probe-start metal halide ballast. 10 CFR 431.326(d). The following MHLFs are not subject to these regulations: (1) MHLFs with regulated-lag ballasts; (2) MHLFs that use electronic ballasts that operate at 480 volts; and (3) MHLFs that use high-frequency electronic ballasts. 10 CFR 431.326(e).

As noted in section II.A of this document, EPCA directed DOE to conduct two rulemaking cycles to determine whether to amend standards for MHLFs established by EPCA. (42 U.S.C. 6295(hh)(2)(A) and (3)(A)) Accordingly, DOE published a final rule amending the standards for MHLFs on February 10, 2014 (“February 2014 Final Rule”). 79 FR 7746. These current standards are set forth in DOE's regulations at 10 CFR 431.326 and are specified in Table II.1. DOE completed the second rulemaking by publishing the October 2021 Final Determination.

In support of the present review of the MHLF energy conservation standards, on October 6, 2022, DOE published a request for information (“RFI”), which identified various issues on which DOE sought comment to inform its determination of whether the standards need to be amended. 87 FR 60555. After considering comments in response to the RFI, DOE published a notice of proposed determination (“NOPD”) on October 3, 2023 (“October 2023 NOPD”), which proposed not to amend energy conservation standards for MHLFs as amended standards would not be cost effective. 88 FR 67989.

In the October 2023 NOPD, DOE tentatively determined that, since the October 2021 Final Determination analysis, there has been no substantial change in (1) product offerings of MHLFs to warrant a change in scope of analysis or equipment classes, (2) technologies or design options that could improve the energy efficiency of MHLFs, (3) manufacturers and industry structure, (4) shipments, (5) operating hours, and (6) market and industry trends. Id. at 88 FR 67992. Additionally, DOE noted that it did not receive any comments in response to the RFI indicating technological or market changes for MHLFs. Id. As such, DOE tentatively determined that the analysis conducted for the October 2021 Final Determination and its conclusion that amended energy conservation standards for MHLFs would not be cost effective remained valid. Id.

DOE received two comments in response to the October 2023 NOPD from the interested parties listed in Table II.2.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 5

DOE developed this final determination after a review of the MHLF market and comments in response to the October 2023 NOPD. In this analysis for this final determination, DOE relied on the statutory and regulatory definition for “MHLF,” which is defined as a light fixture for general lighting application designed to be operated with a metal halide lamp and a ballast for a metal halide lamp. (42 U.S.C. 6291(64)); 10 CFR 431.322. Any equipment meeting the definition of MHLF is included in DOE's scope of coverage, though not all products within the scope of coverage are subject to standards.

In the October 2023 NOPD, DOE requested comment on its proposed determination that the existing energy conservation standards for MHLFs do not need to be amended. 88 FR 67989, 67992.

In response to the October 2023 NOPD, NEMA commented that since no substantive changes have occurred in MHLF technology or in the market, the analysis conducted for the October 2021 Final Determination and the conclusion in the October 2021 Final Determination that amended standards for MHLFs would not be cost effective remain valid. NEMA stated that DOE should again determine that more stringent amended standards for MHLFs cannot satisfy the relevant statutory requirements because such standards would not be cost effective, as required under EPCA. (NEMA, No. 5 at p. 1)

In response to the October 2023 NOPD, a private citizen stated DOE should adopt a policy in which products that have declined by more than 50 to 70 percent from peak shipment levels could, after notice and comment rulemaking, be classified as inactive for the purpose of efficiency rulemakings and not be subject to every 3-year review under EPCA. Additionally, the private citizen stated that if product shipments then increase to at least 50 percent of historical peak shipment levels, the product can be reinstated as active and DOE can resume review of efficiency standards. The private citizen stated that, without such a policy, DOE and stakeholders will be wasting time and resources on these reviews every 3 years. (Anonymous, No. 6 at p. 1)

In response, DOE notes that it does not have discretion to set its review schedule as DOE is required to review its existing energy conservation standards for covered consumer products no later than 3 years after a determination that standards for the product do not need to be amended under EPCA. (42 U.S.C. 6295(m)(3)(B)) Pursuant to this statutory provision, DOE is publishing this final determination regarding whether to amend the existing energy conservation standards for MHLFs.

DOE did not receive any other comments in response to the October 2023 NOPD. Based on DOE's analysis and the comments received in response to the October 2023 NOPR, in this final determination, DOE maintains the approach in the October 2023 NOPD and finds that the analysis conducted for the October 2021 Final Determination and its conclusion that amending energy conservation standards for MHLFs are not cost effective remains valid.

After carefully considering the comments on the October 2023 NOPD and the available data and information, DOE has determined that the energy conservation standards for MHLFs do not need to be amended, for the reasons explained below.

As required by EPCA, this final determination analyzes whether amended standards for MHLFs would result in significant conservation of energy, be technologically feasible, and be cost effective. (42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2)) The criteria considered under 42 U.S.C. 6295(m)(1)(A) and the additional analysis are discussed below. Because an analysis of potential cost effectiveness and energy savings first requires an evaluation of the relevant technology, DOE first discusses the technological feasibility of amended standards. DOE then addresses the cost effectiveness and energy savings associated with potential amended standards for MHLFs.

As discussed previously, EPCA mandates that DOE consider whether amended energy conservation standards for MHLFs would be technologically feasible. (42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2)(B)) In the October 2021 Final Determination, DOE concluded that there are technology options that would improve the efficiency of MHLFs. Further, DOE concluded that these technology options are being used in commercially available MHLFs and therefore are technologically feasible. 86 FR 58763, 58791. In the October 2023 NOPD, DOE tentatively determined that its conclusions regarding technological feasibility from that analysis remain valid because there have been no substantive changes in the MHLF market since the October 2021 Final Determination analysis. 88 FR 67989, 67992. DOE received no comments or information to rebut that tentative determination. Hence, DOE has determined that amended energy conservation standards for MHLFs are technologically feasible.

EPCA requires DOE to consider whether energy conservation standards for MHLFs would be cost effective through an evaluation of the savings in operating costs throughout the estimated average life of the covered product compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product which is likely to result from the imposition of an amended standard. (42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2)(C); 42 U.S.C. 6295(o)(2)(B)(i)(II))

In the October 2021 Final Determination, DOE determined that the average customer purchasing a representative MHLF would experience an increase in life-cycle cost (“LCC”) at each evaluated standards case as compared to the no-new-standards case. 86 FR 58763, 58785-58788. The simple payback period (“PBP”) for the average MHLF customer at most efficiency levels (“ELs”) was projected to be generally longer than the mean lifetime of the equipment, which further indicated that the increase in installed cost for more efficient MHLFs is not recouped by their associated operating cost savings. Id. at 86 FR 58788. The analysis determined that the net present value (“NPV”) benefits at the trial standard levels (“TSLs”) were also negative across all equipment classes at 3-percent and 7-percent discount rates. Id. at 86 FR 58790-58791. Hence, in the October 2021 Final Determination, DOE determined that more stringent amended energy conservation standards for MHLFs cannot satisfy the relevant statutory requirements because such standards would not be cost effective as required under EPCA. Id. at 86 FR 58791. (See 42 U.S.C. 6295(n)(2); 42 U.S.C. 6295(o)(2)(B)(II))

In the October 2023 NOPD, DOE stated that because there have been no substantive changes in the MHLF market that would affect the conclusions of the October 2021 Final Determination analysis, DOE tentatively determined that its conclusions regarding the cost effectiveness of more stringent amended energy conservation standards for MHLFs remain valid. 88 FR 67989, 67995. DOE received no comments or information in response to the October 2023 NOPD to show any substantive changes to the MHLF market to alter the LCC, PBP, and NPV analyses from the October 2021 Final Determination. Therefore, DOE has determined that more stringent amended energy conservation standards for MHLFs cannot satisfy the relevant statutory requirements because such standards would not be cost effective as required under EPCA.

EPCA also mandates that DOE consider whether amended energy conservation standards for MHLFs would result in significant conservation of energy. (42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2)(A))

In the October 2021 Final Determination, having determined that amended energy conservation standards for MHLFs would not be cost effective, DOE did not further evaluate the significance of the amount of energy conservation under the considered amended standards, because it had determined that the potential standards would not be cost effective as required under EPCA. 86 FR 58763, 58791. (See 42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2); 42 U.S.C. 6295(o)(2)(B)).

In the October 2023 NOPD, DOE tentatively determined that amended standards would still not be cost effective and did not evaluate the significance of the projected energy savings from an amended standard. 88 FR 67989, 67995.

In examining the current market, DOE has found that there have been no substantive changes in the MHLF market that would affect the tentative determination in the October 2023 NOPD that amended standards would still not be cost effective, so an evaluation of significance of project energy savings is not necessary.

In this final determination, DOE has determined that energy conservation standards for MHLFs do not need to be amended because amended standards would not be cost effective.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. For the reasons stated in the preamble, this final regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget for review. OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f)(1) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis and a final regulatory flexibility analysis (“FRFA”) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website ( www.energy.gov/gc/office-general-counsel ).

DOE reviewed this final determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. Because DOE is not amending standards for MHLFs, the final determination will not amend any energy conservation standards. On the basis of the foregoing, DOE certifies that the final determination will have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an FRFA for this final determination. DOE has transmitted this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This final determination, which concludes that no amended energy conservation standards for MHLFs are needed, imposes no new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. )

In the October 2023 NOPD, DOE analyzed the proposed determination in accordance with the National Environmental Policy Act of 1969 (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021) in effect at the time of the October 2023 NOPD's publication. In the October 2023 NOPD, DOE anticipated that the October 2023 NOPD qualified for a categorical exclusion under appendix A4 to subpart D of part 1021 because the NOPD was an interpretation or ruling with respect to an existing regulation and otherwise met the requirements for application of a categorical exclusion. 88 FR 67989, 67995. In July 2025, DOE revised part 1021 to remove appendix A and, concurrently, DOE issued Implementing Procedures. 6 The actions formally identified in appendix A of subpart D to part 1021 now represent administrative and routine actions that are excepted from NEPA based on the definition of “major Federal action” in section 111(10) of NEPA. DOE's determination that current standards for MHLFs do not need to be amended is administrative and routine; therefore, it is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA and no further environmental review is needed.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final determination and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final determination. States can petition DOE for exemption from such preemption to the extent, and based on criteria set forth in EPCA. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) Therefore, no further action is required by E.O. 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final determination meets the relevant standards of E.O. 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

DOE examined this final determination according to UMRA and its statement of policy and determined that the final determination does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. As a result, the analytical requirements of UMRA do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final determination would not have any financial impact on families nor any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this final determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines, which are available at https://www.energy.gov/cio/department-energy-information-quality-guidelines. DOE has reviewed this final determination under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under E.O. 12866, or any successor E.O.; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This final determination, which does not amend energy conservation standards for MHLFs, is not a significant regulatory action under E.O. 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy, issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” Id. at 70 FR 2667.

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a peer review report pertaining to the energy conservation standards rulemaking analyses. 7 Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. Because available data, models, and technological understanding have changed since 2007, DOE has engaged with the National Academy of Sciences to review DOE's analytical methodologies to ascertain whether modifications are needed to improve the Department's analyses. DOE is in the process of evaluating the resulting report. 8

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final determination prior to its effective date. The report will state that it has been determined that the final determination is not a “major rule” as defined by 5 U.S.C. 804(2).

DOE has examined this final determination and has determined that it is consistent with the policies and directives outlined in E.O. 14154 “Unleashing American Energy,” E.O. 14192, “Unleashing Prosperity Through Deregulation,” and Presidential Memorandum, “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis.” DOE has determined that more stringent MHLFs standards would not be cost-effective, and that standards for MHLFs should not be amended. DOE's final determination effectively preserves consumer choice. DOE's determination also provides manufacturers with regulatory certainty, which may allow for market innovations and a reduction in consumer costs. Accordingly, this final determination is considered an E.O. 14192 deregulatory action.

The Secretary of Energy has approved publication of this notification of final determination.

This document of the Department of Energy was signed on February 5, 2026, by Audrey Robertson, Assistant Secretary (EERE) for Critical Minerals and Energy Innovation, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C of EPCA  2 established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) Such equipment includes small electric motors (“SEMs”), the subject of this final determination.

DOE is issuing this final determination pursuant to the EPCA requirement that not later than 3 years after a determination that standards for the equipment do not need to be amended, DOE must publish either a notification of determination that standards for the equipment do not need to be amended, or a notice of proposed rulemaking (“NOPR”) including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(3)(B)).

For this final determination, DOE analyzed small electric motors subject to standards specified in 10 CFR 431.446. DOE first analyzed the technological feasibility of more energy-efficient SEMs. For those SEMs for which DOE determined higher standards to be technologically feasible, DOE evaluated whether higher standards would be cost-effective by conducting life-cycle cost (“LCC”) and payback period (“PBP”) analyses.

Based on the results of the analyses, summarized in section VII of this document, DOE has determined that current standards for SEMs do not need to be amended and is issuing this final determination accordingly.

The following section briefly discusses the statutory authority underlying this final determination, as well as some of the historical background relevant to the establishment of standards for SEMs.

EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA (42 U.S.C. 6311-6317, as codified), added by Public Law 95-619, Title IV, section 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes SEMs, the subject of this document. (42 U.S.C. 6311(13)(G)) EPCA directed DOE to prescribe initial test procedures and standards for this equipment. (42 U.S.C. 6317(b))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296(a), (b), and (d)).

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy use or efficiency of covered equipment. (42 U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297(b)-(c)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6316(a), applying the preemption waiver provisions of 42 U.S.C. 6297(d))

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered equipment. (42 U.S.C. 6316(a); 42 U.S.C. 6295(o)(3)(A) and 6295(r)) Manufacturers of covered equipment must use the Federal test procedures as the basis for certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)) and when making representations about the energy consumption of that equipment (42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA. (42 U.S.C. 6316(a); 42 U.S.C. 6295(s)) The DOE test procedures for SEMs appear at 10 CFR 431.444.

EPCA requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the equipment do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)) EPCA further provides that, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the equipment do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(2))

A determination that amended standards are not needed must be based on consideration of whether amended standards will result in significant conservation of energy, are technologically feasible, and are cost-effective. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) Under 42 U.S.C. 6295(o)(2)(B)(i)(II), an evaluation of cost-effectiveness requires DOE to consider savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment that are likely to result from the standard. (42 U.S.C. 6316(a); 42 U.S.C. 6295(n)(2) and 42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE is publishing this final determination in satisfaction of the 3-year review requirement in EPCA.

In a final rule published on March 9, 2010, DOE prescribed the current energy conservation standards for SEMs. 75 FR 10873 (“March 2010 Final Rule”). These standards are set forth in DOE's regulations at 10 CFR 431.446 and are shown in Table II-1 and Table II-2. These standards are expressed in terms of average full-load efficiency.

On March 9, 2010, DOE established the current energy conservation standards for small electric motors. 75 FR 10874 (“March 2010 Final Rule”). On January 19, 2021, DOE published a notice of final determination for small electric motors that these standards need not be amended (“January 2021 Final Determination”). 86 FR 4885. In the January 2021 Final Determination, while DOE determined that more stringent standards would be technologically feasible, DOE also determined that more stringent energy conservation standards would not be cost-effective. 86 FR 4885, 4906. Therefore, DOE determined that the current standards for SEMs did not need to be amended. Id.

In support of the present review of the SEM energy conservation standards, DOE published a request for information, which identified various issues on which DOE sought comment to inform its determination of whether the standards need to be amended. 87 FR 23471; April 20, 2022 (“April 2022 RFI”). On May 11, 2022, DOE published a notice that extended the comment period for the April 2022 RFI to no later than June 20, 2022. 87 FR 28782. On February 6, 2023, DOE published a notice of proposed determination (“February 2023 NOPD”) with the tentative determination that energy conservation standards for SEMs do not need to be amended. 88 FR 7629. The comment period for this notice closed on April 7, 2023.

On March 15, 2023, DOE held a public meeting to solicit feedback from stakeholders concerning the February 2023 NOPD.

DOE received three comments from interested parties in response to the February 2023 NOPD. These comments are listed in Table II-3.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 3 To the extent that interested parties have provided written comments that are substantively consistent with any oral comments provided during the March 15, 2023, public meeting, DOE cites the written comments throughout this final determination. There were no oral comments provided during the public meeting that were not substantively addressed by written comments.

DOE developed this final determination after considering oral and written comments, data, and other information submitted by interested parties. This final determination addresses the relevant issues raised in those comments.

This final determination covers SEMs as defined by EPCA and codified by DOE at 10 CFR 431.442. “Small electric motor” is defined as a NEMA general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG1-1987, including IEC metric equivalent motors. 10 CFR 431.442. ( See also 42 U.S.C. 6311(13)(G)) Therefore, the scope of this determination does not include any non-induction electric motors or any other electric motors that do not meet the SEM definition. As a result, comments regarding or implicating electric motors outside the scope of the SEMs definition, were deemed outside the scope of this final determination. 4

In response to the February 2023 NOPD, DOE received several general comments from interested parties regarding support of DOE's final determination.

The CA IOUs commented that they concurred with DOE's proposed determination that more stringent energy conservation standards would not be cost-effective and, therefore, that the current standards for SEMs do not need to be amended. (CA IOUs, No. 18 at p. 1)

AHAM and AHRI commented in support of the notice of proposed determination and agreed with DOE's proposal to maintain the scope of the current energy conservation standards (and test procedure) for SEMs. AHAM and AHRI reiterated their prior comments submitted in response to the April 2022 RFI  5 emphasizing that efficient small electric motors destined for finished products already play a major part of the energy equation when original equipment manufacturers consider what design options to apply to meet new standards. AHAM and AHRI commented that applying separate standards and test procedures to these products adds costs, reduces choice, and does little, if anything, to further energy savings goals. As such, AHAM and AHRI recommended that DOE finalize its proposed determination not to amend standards for SEMs and maintain its decision not to expand the SEM test procedure or coverage to special and definite purpose motors. (AHAM and AHRI, No. 19 at pp. 1-2)

NEMA stated that they agree with the Department of energy's conclusions and that there have been no significant advancements that would justify updating energy conversation standards. (NEMA, No. 20 at p. 1) In addition, NEMA commented that increasing efficiency levels would have substantial downstream market impacts on utility as motors would need to become significantly larger while several essential operating characteristics ( e.g., starting torque) would be compromised, resulting in little (and sometimes negative) energy savings in the end-product. (NEMA, No. 20 at p. 2)

In this final determination, DOE maintains that the current standards for SEMs do not need to be amended.

Pursuant to 42 U.S.C. 6316(a), 6295(m)(1)(A), and 6295(n)(2), DOE's determination regarding amended standards must consider whether such standards are technologically feasible, are cost effective as described in subsection 6295(o)(2)(B)(i)(II) and will result in significant conservation of energy.

In the February 2023 NOPD, DOE evaluated technological feasibility by reviewing the current SEM market, available motor technologies, and the engineering analysis presented in the January 2021 Final Determination. As discussed in that NOPD, DOE tentatively concluded that both the technology options identified and the incremental cost relationships established in the January 2021 analysis remain applicable (88 FR 7629, 7635-7638).

NEMA reaffirmed its agreement with DOE's conclusion that the results of that engineering analysis continue to be valid. (NEMA, No. 20 at p. 2)

DOE also found no significant advancements in induction motor technology that would enable higher efficiency or lower-cost designs relative to those analyzed in the January 2021 Final Determination. As a result, the standards for Capacitor-Star-Induction-Run (“CSIR”) motors already reflect the maximum technologically feasible efficiency and no new viable design options could be identified for this topology. Consistent with the January 2021 Final Determination, DOE was only able to identify technologically feasible options for increasing efficiency for capacitor-start capacitor-run (“CSCR”) motors. 88 FR 7629, 7637. In this final determination, DOE maintains that the technology options identified in February 2023 NOPD. (88 FR 7629, 7635-7638)

A determination that amended standards are not needed must also be based on consideration of whether amended standards would be cost-effective, among other factors. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) In evaluating cost-effectiveness, EPCA requires DOE to consider savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment that are likely to result from the standard. (42 U.S.C. 6316(a); 42 U.S.C. 6295(n)(2) and 42 U.S.C. 6295(o)(2)(B)(i)(II)) To evaluate cost-effectiveness, in the February 2023 NOPD, DOE conducted a review of the inputs to the LCC and PBP analyses (which also included a review of the inputs to the markups and energy use analyses). 88 FR 7629, 7639-7644. In the February 2023 NOPD, DOE tentatively concluded that the inputs for each of these analyses were comparable to the estimates developed for the January 2021 Final Determination. Id. Therefore, in determining cost-effectiveness of amending standards for SEMs, DOE relied on the life-cycle cost (“LCC”) and payback period (“PBP”) analyses conducted for the January 2021 Final Determination that estimate the costs and benefits to users from potential standards. 88 FR 7629, 7645-7646

For this final determination, DOE conducted an updated review of inputs to the markups analysis, energy use analysis, LCC and PBP analyses. Specifically, DOE further assessed the impact of updated energy price and discount rate estimates. For energy prices, DOE performed the same comparison as in the February 2023 NOPD, but with an updated starting year, 6 and used 2023 EEI Typical Bills and Average Rates reports and AEO2023 energy price trends. 7 DOE has determined that, similar to its conclusion in the February 2023 NOPD, the energy prices have not changed significantly from those estimated in the January 2021 Final Determination. To estimate updated average residential, commercial, and industrial discount rates, DOE relied on updated data sources  8 9 and the same methodology as described in the February 2023 NOPD (See 88 FR 7629, 7643). In line with the February 2023 NOPD, DOE determined that the more recent (2024) residential, commercial and industrial discount rates have not changed significantly from those in the January 2021 Final Determination and these minor changes would have no significant impact on the LCC results.

In response to the February 2023 NOPD, NEMA commented that it agreed with DOE's conclusion that the revised market shares by distribution channel and revised markups and sales taxes would still result in SEM consumer costs and LCC savings that are comparable to the estimates developed for the January 2021 Final Determination. NEMA also agreed with DOE's conclusion that the average energy use results for small electric motors are the same as the estimates developed for the January 2021 Final Determination and that SEMs are not typically repaired. NEMA further commented that it supported DOE's conclusion that lifetimes have remained the same as estimated in the January 2021 Final Determination (NEMA, No. 20 at p. 2) Additionally, NEMA agreed with DOE's conclusion to rely on the same no-new-standards case efficiency distributions as in the January 2021 Final Determination. ( Id. at p. 3)

In response to the February 2023 NOPD, NEMA commented that increasing efficiency generally increases installation costs (an input to the LCC calculation). For existing end-user product lines, NEMA commented that the enclosure often needs to increase in size and/or components need to be moved to accommodate a larger motor. NEMA stated that for repair of end products, higher-efficiency motors often will not fit in the existing application or will require significant rework. (NEMA, No. 20 at p. 2)

For space-constrained applications, DOE assumed that the higher levels of efficiency would be reached based on technology options that would not significantly increase the physical footprint of the motor and would not increase the installation costs. 88 FR 7629, 7638. Therefore, DOE maintains its conclusion that installation costs are not impacted by increased efficiency levels. In addition, any increase in installation costs would further substantiate the determination that amended standards would not satisfy the cost-effectiveness criterion as required by EPCA because it would increase the total installed costs of higher efficiency SEMs and, therefore, lower any LCC savings.

In response to the February 2023 NOPD, NEMA commented that the electric motor industry had experienced higher-than-average levels of inflation compared to the overall U.S. economy, which led to smaller discounts and, therefore, higher end prices. (NEMA, No. 20 at p. 3) DOE clarifies that the consumer discount rates applied in the LCC analysis are used to compute the present value of future energy savings accrued by the consumer through purchase of a higher-efficiency model. The consumer discount rates do not relate to the specific conditions of the electric motor manufacturing industry ( i.e., it is not a price discount offered by motor manufacturers or sellers, nor is it a reflection of the electric motor manufacturer's present value of future savings). In addition, DOE notes that higher end prices would further substantiate the determination that amended standards would not satisfy the cost-effectiveness criterion as required by EPCA because it would increase the total installed costs of higher efficiency SEMs and, therefore, lower any LCC savings.

DOE did not receive any other comments specific to these inputs and concluded that the inputs to the markups analysis, energy use analysis, LCC and PBP analyses have not changed significantly. Accordingly in this final determination, DOE maintains that energy prices, discounts rates, and other inputs to the markups analysis, energy use analysis, LCC and PBP analyses have not significantly changed as described in the 2023 NOPD.

In assessing cost effectiveness, DOE also reviewed changes in manufacturer selling prices (MSPs) since the January 2021 Final Determination. DOE determined that manufacturer selling prices (MSPs) for SEMs are likely to increase due to higher component costs; however, such increases would apply uniformly across all efficiency levels. As a result, incremental costs between efficiency levels are not expected to change materially. Any increase in MSPs without corresponding efficiency improvements would further support DOE's determination that amended standards would not be cost-effective.

In line with the tentative conclusions of the February 2023 NOPD, DOE has determined that the inputs used in the markups, energy use, LCC and PBP calculations have not changed significantly since the January 2021 Final Determination.

As required by EPCA, this final determination analyzes whether amended standards for SEMs would result in significant conservation of energy, be technologically feasible, and be cost-effective. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)) The criteria considered under 42 U.S.C. 6295(m)(1)(A) and the additional analysis are discussed in the following sections. Because an analysis of potential cost-effectiveness and energy savings first requires an evaluation of the relevant technology, DOE first discusses the technological feasibility of amended standards. DOE then addresses the cost-effectiveness and energy savings associated with potential amended standards.

EPCA requires DOE to determine whether amended energy conservation standards for SEMs would be technologically feasible. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)(B)) DOE identified several technology options capable of improving the efficiency of polyphase and CSCR SEMs. These technology options are currently implemented in commercially available SEMs and are, therefore, technologically feasible.

Consistent with the conclusions presented in the January 2021 Final Determination, DOE did not consider a CSIR motor as a representative unit. 86 FR 4885, 4895. The minimum energy conservation standards established in the March 2010 Final Rule (which are established in 10 CFR 431.446(a)) reflect the maximum technologically feasible efficiency for CSIR motors, and DOE was unable to identify any additional design options meeting the screening criteria that would indicate a higher efficiency level for CSIR motors is both technologically feasible and commercially viable. Id.

EPCA requires DOE to consider whether energy conservation standards for SEMs would be cost-effective through an evaluation of the savings in operating costs throughout the estimated average life of the covered equipment compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered equipment which are likely to result from the imposition of an amended standard. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A), 42 U.S.C. 6295(n)(2)(C), and 42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducted an LCC analysis in the January 2021 Final Determination to estimate the net costs/benefits to users from increased efficiency in the considered equipment. As described previously, DOE has determined that the results of the LCC analysis in the January 2021 Final Determination are still valid. These results show that the average LCC savings from higher energy conservation standards at the considered ELs would be negative for all equipment classes. 86 FR 4885, 4904-4906 Based on the results from the January 2021 Final Determination, which DOE has concluded are still valid, DOE has determined that none of the considered efficiency levels would be cost-effective.

EPCA also mandates that DOE consider whether amended energy conservation standards for SEMs would result in significant conservation of energy. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)(A)) However, as discussed in the previous section, DOE has determined that amended standards would not satisfy the cost-effectiveness criterion as required by EPCA when determining whether to amend its standards for a given covered product or equipment. (42 U.S.C. 6316(a); 42 U.S.C. 6295(m)(1)(A) and 42 U.S.C. 6295(n)(2)(C)) for the purpose of 42 U.S.C. 6295(n)(2). Therefore, DOE concludes that quantification of energy savings from potential amended standards is not necessary in the case of this final determination.

In this final determination, based on the determination that amended standards would not be cost-effective, DOE has determined that energy conservation standards for SEMs do not need to be amended.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. The Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”), in its guidance, has emphasized that agencies use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible, and identify changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in this preamble, this final regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this final regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (“IRFA”) and a final regulatory flexibility analysis (“FRFA”) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website ( www.energy.gov/gc/office-general-counsel ).

DOE reviewed this final determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. Because DOE is not amending standards for SEMs, the determination will not amend any energy conservation standards. On the basis of the foregoing, DOE certifies that the final determination will have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an FRFA for this final determination. DOE has transmitted this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This final determination, which concludes that no amended energy conservation standards for SEMs are needed, imposes no new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. )

In the February 2023 NOPD, DOE analyzed the proposed determination in accordance with the National Environmental Policy Act of 1969 (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021) in effect at the time of the February 2023 NOPD's publication. In the February 2023 NOPD, DOE anticipated that the February 2023 NOPD qualified for a categorical exclusion under appendix A4 to subpart D of part 1021 because the NOPD was an interpretation or ruling with respect to an existing regulation and otherwise met the requirements for application of a categorical exclusion. 88 FR 67989, 67995. In July 2025, DOE revised part 1021 to remove appendix A and, concurrently, DOE issued Implementing Procedures. 10 The actions formally identified in appendix A of subpart D to part 1021 now represent administrative and routine actions that are excepted from NEPA based on the definition of “major Federal action” in section 111(10) of NEPA. DOE's determination that current standards for SEMs do not need to be amended is administrative and routine under category A4 of the Implementing Procedures; therefore, it is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA and no further environmental review is needed.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735 DOE has examined this final determination and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria set forth in EPCA. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) Therefore, no further action is required by E.O. 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final determination meets the relevant standards of E.O. 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any 1 year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf .

DOE examined this final determination according to UMRA and its statement of policy and determined that the final determination does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any 1 year by State, local, and Tribal governments, in the aggregate, or by the private sector. As a result, the analytical requirements of UMRA do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final determination would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this final determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines, which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20%Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf . DOE has reviewed this final determination under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (“OIRA”) at OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under E.O. 12866, or any successor E.O.; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This final determination, which does not amend energy conservation standards for SEMs, is not a significant regulatory action under E.O. 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

DOE has examined this final determination and has determined that it is consistent with the policies and directives outlined in E.O. 14154 “Unleashing American Energy,” E.O. 14192, “Unleashing Prosperity Through Deregulation,” and Presidential Memorandum, “Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis.” DOE has determined that more stringent SEMs standards would not be cost-effective, and that standards for SEMs should not be amended. DOE's final determination effectively preserves consumer choice, and provides manufacturers with regulatory certainty, which may allow for more market innovations as well as a reduction in consumer costs. Accordingly, DOE considers this final determination to be an E.O. 14192 deregulatory action.

On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” Id. at 70 FR 2667.

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a Peer Review report pertaining to the energy conservation standards rulemaking analyses. 11 Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. Because available data, models, and technological understanding have changed since 2007, DOE has engaged with the National Academy of Sciences to review DOE's analytical methodologies to ascertain whether modifications are needed to improve DOE's analyses. DOE is in the process of evaluating the resulting report. 12

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final determination prior to its effective date. The report will state that it has been determined that this final determination is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this notification of final determination.

This document of the Department of Energy was signed on February 5, 2026, by Audrey Robertson, Assistant Secretary (EERE) for Critical Minerals and Energy Innovation, U.S. Department of Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

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

The FAA published a notice of proposed rulemaking for Docket No. FAA 2025-1183 in the Federal Register (90 FR 57015; December 9, 2025), proposing to amend Class D and Class E airspace for Miami Executive Airport, Miami, FL. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in paragraphs 5000, 6002, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These amendments will be published in the next update to FAA Order JO 7400.11.FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This amendment to 14 CFR part 71 modifies Class D and Class E2 airspace from the surface of the Earth up to and including 2,500 feet MSL within a 4.3-mile radius of the Miami Executive Airport, Miami, FL, and within 1.2 miles each side of the 267° bearing from the airport reference point extending from the 4.3-mile radius to 5.9 miles west of the airport reference point, excluding that airspace within the Miami, FL, Class B airspace area. Also, this action amends the Miami Class E5 airspace, by updating QEZZY Initial Approach Fix (IAF) to LAYDN IAF, extending from the 7-mile radius to 7 miles west of the IAF, and within a 6.5-mile radius of Fort Lauderdale Executive Airport, Pompano Beach Airpark, and North Perry Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. 2025-1183 in the Federal Register (90 FR 57015; December 9, 2025), proposing to amend Class D, E2, and E5 airspace for Miami Executive Airport, in Miami, FL. Subsequent to publication of the NPRM, FAA determined that it needed to include an administrative update to the legal description of the Miami E5 Airspace to incorporate routine coordinate adjustments. This amendment updates the coordinates of LAYDN IAF, Miami, FL, to lat. 25°38′22″ N, long. 80°31′28″ W; the coordinates of Pompano Beach Airpark, Pompano Beach, FL, to lat. 26°14′50″ N, long. 80°06′40″ W; and the coordinates of North Perry Airport, Hollywood, FL, to lat. 26°00′05″ N, long. 80°14′26″ W. The adjustments to the coordinates are nominal and do not result in regulatorily significant changes to airspace boundaries. These changes also impose no additional requirements on users of the airspace. Accordingly, as these are administrative changes only, the FAA finds good cause that recirculating the NPRM for public notice and comment is unnecessary.

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

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

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

Section 3 of the Housing and Urban Development Act of 1968, as amended by the Housing and Community Development Act of 1992 (Section 3) contributes to the establishment of stronger, more sustainable communities by ensuring that employment and other economic opportunities generated by Federal financial assistance for housing and community development programs are, to the greatest extent feasible, directed toward low- and very low-income persons, particularly those who are recipients of government assistance for housing. HUD is statutorily charged with the authority and responsibility to implement and enforce Section 3 through regulation, which HUD has done through the final rule titled “Enhancing and Streamlining the Implementation of Section 3 Requirements for Creating Economic Opportunities for Low- and Very Low-Income Persons and Eligible Businesses,” published on September 29, 2020 in the Federal Register at 85 FR 61524 (“Section 3 final rule”), which amended, among others, 24 CFR part 75.

Applicability is covered in 24 CFR 75.3, where the regulation establishes that Section 3 requirements apply to “public housing financial assistance and Section 3 projects.” Public housing does not have a threshold for financial assistance and any dollar amount of public housing financial assistance provided to grantees will trigger Section 3 compliance requirements. Therefore, this notice does not apply to public housing financial assistance, which is subsequently defined at 24 CFR 75.3(a)(1).

A “Section 3 project” on the other hand is a unique term that is subject to financial assistance thresholds and is defined in 24 CFR 75.3(a)(2)(i) to mean

HUD's Section 3 final rule requires at 24 CFR 75.3(a)(2)(ii) that “[t]he Secretary must update the thresholds provided in paragraph (a)(2)(i) not less than once every 5 years based on a national construction cost inflation factor through Federal Register notice not subject to public comment.”

The final rule indicates that updates to the established financial assistance thresholds for Section 3 projects must be based on a “national construction cost inflation factor.” The determination of how to calculate the national construction cost inflation factor is left to the discretion of HUD as the term is undefined in the final rule and comments.

The current definition of Section 3 projects requires Section 3 compliance if a housing rehabilitation, housing construction, or other public construction project receives more than $200,000 of HUD housing and community development financial assistance or receives more than $100,000 from Lead Hazard Control and Healthy Homes programs. This means that the thresholds that need to be adjusted for construction cost inflation are $200,000 and $100,000 respectively.

The first step in establishing this “national construction cost inflation factor” (hereafter Construction Inflation Factor) is defining “construction.” “Construction” is left undefined in the Section 3 regulations, so analysis requires additional sources. The original drafters of 24 CFR part 75 considered Bureau of Labor Statistics (BLS) publications when first determining the threshold levels for housing and community development projects, so it makes sense to look to the BLS for additional guidance around this analysis.

The North American Industry Classification System (NAICS), originally developed by the Office of Management and Budget (OMB), is the standard used by Federal statistical agencies, including BLS, in classifying businesses for collecting, analyzing, and publishing statistical data related to U.S. businesses. The NACIS uses two- to six-digit codes to classify different sectors and subsectors of the U.S. business economy, and NAICS 23 broadly covers the construction sector. The NAICS defines Sector 23—Construction as comprising “establishments primarily engaged in the construction of buildings or engineering projects.” It also establishes that “Construction work done may include new work, additions, alterations, or maintenance and repairs.” As Section 3 projects are defined as “housing rehabilitation, housing construction, and other public construction projects,”  1 NAICS 23 clearly encompasses the type of work that is performed on Section 3 projects.

With “construction” defined for purposes of this analysis, the next step is to evaluate and determine what data elements should be considered in developing the “Factor.” When initially determining the threshold, HUD looked at BLS data on labor share for construction projects as part of the calculations. While this analysis does not seek to recreate the same formula that was used in that initial determination of the threshold, which also analyzed CDBG, HOME, and lead hazard grant amounts, it will continue the precedent of using BLS data to estimate cost shares as part of the formula. 2

The BLS Office of Productivity and Technology (OPT) defines five different cost shares that represent a portion of and aggregate to the total cost of construction:

Each of these shares are defined by OPT as “the proportion of current-dollar output attributed to the use of [the applicable factor].”  3 The final three shares are identified with an asterisk because the BLS also publishes data on “intermediate inputs,” which is an aggregate data point for all energy, materials, and services that are used in the production of other goods and services for final consumption. So, the data related to energy, materials, and services can be combined and represented in the aggregate as “intermediate inputs,” but, for the purposes of this analysis, these three categories will be discussed independently to illustrate the methodology more clearly. This also allows for a more granular investigation of the changes in construction costs over time. Additionally, OPT publishes their cost shares as fractional shares represented by a decimal to the thousandth place (three decimal places). The published shares are displayed as a percentage to the tenth place (one decimal place) for simplicity, and calculated percentages will be displayed the same way for the sake of consistency. 4

Table 1 below shows the cost shares (as a percentage of the total construction cost) for each of the components in 2017 and 2023 with the percentage changes over that time period indicated. The percentage change for each category is calculated by finding the difference between the 2023 share and the 2017 share and then dividing that difference by the baseline 2017 value. A decrease in a category's share is reflected as a negative percentage change. As illustrated by the data, these five cost share percentages have either increased or decreased by different amounts over the identified period of time, so this analysis will need to consider these changes in calculating the new threshold levels. If these changes in cost shares are not considered, the new thresholds may over- or undervalue certain categories of construction projects and yield a less representative calculation.

Subdividing into those same five categories, BLS also publishes data on construction cost per component of construction:

Each of these costs is defined by OPT as “the payments to purchase [applicable factor] for use in the production of goods and services.”  5 Again, like with component shares, BLS aggregates energy, materials, and services costs into “intermediate input” cost, but this analysis will use each of the individual component costs.

Table 2 below shows the BLS data on costs for each component of construction from both 2017 and 2023 with the percentage changes included for each. The percentage change for each cost category is calculated by finding the difference between the 2023 cost and the 2017 cost and then dividing that difference by the baseline 2017 cost. 6

In order to determine how much the overall cost of construction has increased over the identified time period (2017-2023), calculation is first required to find how much each category individually has contributed to the overall cost change. This can be done by multiplying the category's current cost share percentage by the percentage change in construction which will result in the fractional (or percentage) contribution of that category's cost changes to the overall change in total construction cost.

Variables:

If:

Then the calculation can be written as,

• S x × ΔC x

The result of this formula tells us how much the total construction cost has changed due to the change in a single category's cost, as a percentage of the overall cost (expressed as a decimal). Stated differently, it is the fractional (or percentage) impact on total construction cost due to a single category's cost change. The final equation for impact (represented by I X ) of the construction category can therefore be written as:

To more clearly illustrate this concept, one can plug values into the formula. This example will use the category of labor simply because it is the largest cost share of the five. Calculations for the other categories will follow later in this analysis.

For this example, the subscript X will be replaced with subscript L to represent labor, and thus the equation can be rewritten as . . .

This calculation will give us the fractional (or percentage) impact on total construction cost due to labor cost changes over the given time frame (in this case 2017-2023).

Using the percentages (expressed as decimals) provided in Tables 1 and 2 respectively, the formula becomes:

This means that the overall cost of a construction project went up by 14.3% from 2017 to 2023 as a result of the increase in labor costs over the same period.

As noted, the formula derived above only gives the percentage contribution of a single category to the overall change in total construction cost. To determine the overall percentage increase in total construction cost over time, the contribution of each category's cost increase must be calculated and then combined. This formula will follow the same logic and naming convention as demonstrated in the single category example with labor share.

This calculation can be expressed as five individual formulas (one for the impact of each category), as demonstrated in the labor example above, added together. Thus, the construction inflation factor (CIF) referenced in 24 CFR 75.3(a)(2)(ii) is defined as the total percentage increase in construction cost over a given time period, which can be expressed as:

Or, if the respective equations for impact on overall construction cost are inserted, the equation can be rewritten:

Substituting percentages given in Tables 1 and 2 (expressed as decimals) results in the following calculation:

After solving for each category's contribution to the overall change in construction cost, the formula can be simplified and then solved:

This means that, accounting for the contribution of each of the five categories, total construction cost increased by 49.6% from 2017 to 2023. 7

With the national construction cost inflation factor defined, the formula can be applied to the existing Section 3 project funding thresholds. To determine the change (in dollars) to the threshold, first multiply the construction inflation factor times the current project threshold. In the formula, the construction inflation factor will be represented by CIF and the current threshold will be represented by T C :

However, this result only shows the change in the threshold. In order to find the new threshold, the current threshold total must be added to the above formula, resulting in the equation for the new threshold (represented as T N ):

This equation can also be combined with the above CIF equation to give a single equation to determine the new Section 3 thresholds:

Section 832 of the Housing and Community Development Act of 1992 (Pub. L. 102-550, 106 Stat. 3852, codified at 42 U.S.C. 5318a) established the John Heinz Neighborhood Development Program as a permanent program of the Department. Previously, the program had been authorized and operated as a demonstration program, pursuant to section 123 of the Housing and Urban Rural Recovery Act of 1983 (42 U.S.C. 5318 note). The program's purpose was to assist communities to become more viable, by providing incentive funds to carry out neighborhood development activities that benefit low- and moderate-income families. The program funded eligible neighborhood development activities conducted by neighborhood development organizations, including, among others, creating permanent jobs, establishing or expanding businesses, improvements to housing stock, and promoting delivery mechanisms for essential services. The incentive funds were provided as matching funds with a particular emphasis on collaboration with private neighborhood development funding organizations and were available to neighborhood development organizations operating in neighborhoods that meet requirements under 42 U.S.C. 5318, were in enterprise zones under Federal or state law, or were considered qualified distressed communities under 12 U.S.C. 1834(b)(1). HUD published regulations implementing the program on March 29, 1995 (60 FR 16359).

This rule is removing the John Heinz Neighborhood Development Program regulations from title 24 of the Code of Federal Regulations. HUD is removing these regulations because the John Heinz Neighborhood Development Program has run its course. The program was last funded in 1998 and all of its grants have been closed out as of 2025. As a result, all regulations in part 594 are no longer necessary. Removing these regulations would update HUD's regulations and provide clarity to grantees on what programs are actively being funded.

In accordance with regulations at 24 CFR part 10, it is the practice of the Department to offer interested parties an opportunity to comment on proposed regulations. 24 CFR part 10 provides narrow exceptions to the notice and comment requirements if the Department finds good cause to omit notice and public participation. The good cause requirement under 24 CFR 10.1 may be satisfied when notice and public comment are impracticable, unnecessary, or contrary to the public interest. To publish a rule prior to receiving and responding to public comments, the agency must find that at least one good cause exceptions is applicable.

HUD has determined that good cause exists to promulgate this final rule without prior notice and comment. Specifically, the Department has concluded that it is unnecessary to solicit and respond to public comments on this action because the John Heinz Neighborhood Development Program was last funded in 1998 and all of its grants have been closed out as of 2025. Furthermore, while the statutory authority for the program continues to exist, HUD concludes that regulations are no longer necessary. Accordingly, HUD has concluded there is good cause to publish this rule prior to receiving and responding to public comments.

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This rule eliminates language in 24 CFR part 594 relating to a program which has not been funded since 1998 and which has no open projects or grants. Accordingly, this rule has been determined not to be a “significant regulatory action” as defined in section 3(f) of Executive Order 12866.

Executive Order 14192, entitled “Unleashing Prosperity Through Deregulation,” was issued on January 31, 2025. Section 3(c) of Executive Order 14192 requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. OMB has determined that this final rule does not impose any regulatory costs as the regulations relate to a program which has not been funded since 1998 and which has no open projects or grants and is a repeal of a regulation for purposes of Executive Order 14192.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because HUD has determined that good cause exists to issue this rule without prior public comment, this rule is not subject to the requirement to publish an initial or final regulatory flexibility analysis under the RFA as part of such action.

This rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (i) imposes substantial direct compliance costs on State and local governments and is not required by statute, or (ii) preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq. ) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. This rule does not impose any Federal mandates on any State, local, or Tribal governments or the private sector within the meaning of the UMRA.

Accordingly, for the reasons discussed in the preamble, and pursuant to the Secretary's authority under 42 U.S.C. 3535(d), HUD removes 24 CFR part 594.

Under delegated authority from the Attorney General, EOIR interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings. Two of EOIR's adjudicating components include the Office of the Chief Immigration Judge (OCIJ) and the Board of Immigration Appeals (BIA or Board). OCIJ oversees the administration of the immigration courts nationwide. 8 CFR 1003.9. Immigration judges are responsible for conducting immigration court proceedings. 8 CFR 1003.10. Decisions of immigration judges are subject to review by the BIA in any case in which the BIA has jurisdiction. 8 CFR 1003.10(c). The BIA is the highest administrative body for interpreting and applying immigration laws. 8 CFR 1003.1. The BIA and its appellate immigration judges have nationwide jurisdiction to review certain decisions rendered by immigration judges, Adjudicating Officials in attorney discipline cases, and district directors of the Department of Homeland Security (DHS). 8 CFR 1003.1(b).

Parties to immigration proceedings may file documents with the immigration court or the BIA by mail, hand delivery, or electronically. 8 CFR 1003.2(g), 1003.3(g), 1003.31. The official file containing the documents relating to an individual's immigration case is the Record of Proceeding (ROP), which may be paper or electronic. ROPs generally contain the Notice to Appear (Form I-862), hearing notices, a practitioner of record's entry of appearance form (Forms EOIR-27 or EOIR-28) (if any), any change of address forms (Form EOIR-33), applications for immigration relief, evidence, exhibits, motions, briefs, and all written orders and decisions of the immigration judge or appellate immigration judge(s). See 8 CFR 1240.9. When relevant to the immigration relief sought, parties may also file documents and materials pertaining to an individual's criminal history or terroristic activities, and such materials are incorporated into the ROP. See 8 U.S.C. 1182 (describing grounds for inadmissibility to include criminal- and security-related grounds). Such information may be classified or law enforcement sensitive, filed under seal or per a request for an in camera hearing. Immigration hearings are digitally recorded, and hearings may be transcribed. 8 CFR 1240.9. Transcripts of hearings may also be included in the ROP. 8 CFR 1240.9.

EOIR maintains a system of records used by OCIJ and the BIA to process, track, and adjudicate immigration proceedings. EOIR is modifying the system of records, Adjudication and Appeal Records of the Office of the Chief Immigration Judge and Board of Immigration Appeals, JUSTICE/EOIR-001, to account for changes in the scope, character and format, and routine uses of records in this system that have occurred since EOIR last published a complete system of records notice on May 11, 2004. See Records and Information Management System, JUSTICE/EOIR-001, 68 FR 26179 (May 11, 2004). EOIR is modifying the system of records in the following ways. First, EOIR is expanding the scope of this system of records by consolidating it with another system of records, Decisions of the Board of Immigration Appeals, JUSTICE/BIA-001, 48 FR 5331 (Feb. 4, 1983). The records in both systems serve the same purposes, are authorized by the same legal authorities, and have similar routine uses. EOIR will rename JUSTICE/EOIR-001 from “Records and Management Information System” to “Adjudication and Appeal Records of the Office of the Chief Immigration Judge and Board of Immigration Appeals.” Second, EOIR is modifying this system of records to encompass electronic records used by OCIJ and the BIA to adjudicate immigration proceedings. OCIJ and the BIA have incorporated digital processes producing electronic records that are not currently captured in EOIR's systems of records notices. Third, EOIR is updating some of the routine uses of this system of records to clarify EOIR's current information sharing practices. Because the system of records is being modified, EOIR is updating the Privacy Act exemptions claimed for the system.

The Privacy Act allows Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including those that provide individuals with a right to request access to and amendment of records about the individual, by means of a rulemaking proceeding pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e).

The Department is modifying 28 CFR part 16 to amend the Privacy Act exemptions for the modified system of records, Adjudication and Appeal Records of the Office of the Chief Immigration Judge and Board of Immigration Appeals, JUSTICE/EOIR-001. The regulations at 28 CFR 16.83 codify the exemption of EOIR's Adjudication and Appeal Records of the Office of the Chief Immigration Judge and Board of Immigration Appeals, JUSTICE/EOIR-001, from 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1), and from 5 U.S.C. 552a(d)(2), (3), and (4) pursuant to 5 U.S.C. 552a(k)(2). The regulations at 28 CFR 16.84 codify the exemption of the Board of Immigration Appeals system of records, JUSTICE/BIA-001, from 5 U.S.C. 552a(d)(2), (3), and (4) pursuant to 5 U.S.C. 552a(k).

EOIR is consolidating these two systems of records. As such, the Department proposes to remove and reserve 28 CFR 16.84 and to rename the system as it appears in 28 CFR 16.83 to “Adjudication and Appeal Records of the Office of the Chief Immigration Judge and the Board of Immigration Appeals.” The Department is not proposing any other changes to 28 CFR 16.83 as the exemptions from 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1), and from 5 U.S.C. 552a(d)(2), (3), and (4) pursuant to 5 U.S.C. 552a(k)(2), continue to apply to this consolidated system of records for the reasons provided in the regulations and restated here:

(a) The following system of records is exempt from 5 U.S.C. 552a(d):

(1) The Executive Office for Immigration Review's Records and Management Information System (JUSTICE/EOIR-001).

This exemption applies only to the extent that records in the system are subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and (2).

(b) Exemption from the subsections set forth below is justified for the following reasons:

(1) From subsection (d) because access to information which has been properly classified pursuant to an Executive Order could have an adverse effect on the national security. In addition, from subsection (d) because unauthorized access to certain investigatory material could compromise ongoing or potential investigations; reveal the identity of confidential informants; or constitute unwarranted invasions of the personal privacy of third parties.

(2) From subsection (d) (2), (3), and (4) because the record of proceeding constitutes an official record which includes transcripts of quasi-judicial administrative proceedings, investigatory materials, evidentiary materials such as exhibits, decisional memoranda, and other case-related papers. Administrative due process could not be achieved by the ex parte “correction” of such materials by the individual who is the subject thereof.

28 CFR 16.83. The language in 28 CFR 16.84 with respect to the exemption from 5 U.S.C. 552a(d)(2), (3), and (4) is duplicative of 28 CFR 16.83(b)(2), obviating the need for any modifications to the regulations to account for the consolidation of the two systems.

These exemptions apply only to the extent that records in this system of records are subject to the exemptions in 5 U.S.C. 552a(k)(1) and (k)(2). To the extent that a record pertaining to an individual does not relate to national defense or foreign policy, official Federal investigations, and/or law enforcement matters, the exemption does not apply. In addition, where compliance would not appear to interfere with or adversely affect the overall law or regulatory enforcement process, the applicable exemption may be waived by EOIR.

The Department received one supportive comment from an anonymous submitter in response to the NPRM for JUSTICE/EOIR-001 (90 FR 42148 (Aug. 29, 2925)) and now finalizes this rule without changes.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation, and Executive Order 13563 “Improving Regulation and Regulatory Review” section 1(b), General Principles of Regulation. The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Information and Regulatory Affairs within the Office of Management and Budget pursuant to Executive Order 12866.

This regulation will only impact Privacy Act-protected records, which are personal and generally do not apply to an individual's entrepreneurial capacity, subject to limited exceptions. Accordingly, the Chief Privacy and Civil Liberties Officer, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 801 et seq., requires the Department to comply with small entity requests for information and advice about compliance with statutes and regulations within the Department's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT paragraph, above. Persons can obtain further information regarding SBREFA on the Small Business Administration's web page at https://www.sba.gov/advocacy. This proposed rule is not a major rule as defined by 5 U.S.C. 804 of the Congressional Review Act.

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

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This regulation will have no implications for Indian Tribal governments. More specifically, it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Therefore, the consultation requirements of Executive Order 13175 do not apply.

This regulation will not result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100,000,000, as adjusted for inflation, or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires the Department to consider the impact of paperwork and other information collection burdens imposed on the public. This system of records encompasses the official records of proceedings (ROPs) in immigration cases before EOIR, which are comprised in part by EOIR and DHS forms subject to the Paperwork Reduction Act. A list of active EOIR forms and their OMB Control Numbers can be found on the EOIR website at https://www.justice.gov/eoir/eoir-forms. A list of active DHS forms and their OMB Control Numbers can be found on the DHS website at https://www.dhs.gov/find-dhs-forms.

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated by Attorney General Order 2940-2008, the Department of Justice amends 28 CFR part 16 as follows:

I. Background on the Montana Program II. Submission of the Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Statutory and Executive Order Reviews I. Background on the Montana Program

Subject to OSM'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 Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning the Montana program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

By letter dated July 28, 2021 (FDMS Document ID No. OSM-2021-0006-0001), Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ) that proposed revisions to existing ARM that would satisfy the statutory changes in the MCA, including revisions to 17.24.301 (Definitions), 17.24.302 (Format, Data Collection, and Supplemental Information), 17.24.303 (Legal, Financial, Compliance, and Related Information), 17.24.416 (Permit Renewal), and 17.24.418 (Transfer of Permits). New provisions in the ARM proposed by Montana that would satisfy the statutory changes in the MCA include 17.24.1229 (Criminal Penalties and Civil Actions), 17.24.1264 (Montana Department of Environmental Quality Obligations Regarding the Applicant Violator System), 17.24.1265 (Montana Department of Environmental Quality Eligibility Review), 17.24.1266 (Questions About and Challenges to Ownership or Control Findings), and 17.24.1267 (Information Requirements for Permittees). Montana also proposed minor revisions to the existing ARM that are unrelated to Senate bill 92, at 17.24.304 (Baseline Information: Environmental Resources), 17.24.308 (Operations Plan), 17.24.313 (Reclamation Plan), 17.24.314 (Plan for Protection of the Hydrologic Balance), 17.24.401 (Filing of Application and Notice), 17.24.403 (Informal Conference), 17.24.425 (Administrative Review), and 17.24.1201 (Frequency and Methods of Inspections) that are unrelated to ownership and control.

Montana's submission of Senate bill 92 and proposed changes to the ARM will allow Montana to fulfill the requirements of a letter OSM sent to Montana on October 2, 2009 (hereinafter 732 letter) under the authority of 30 CFR 732.17(d), by promulgating counterpart rules that are no less effective than Federal counterpart regulations. The 732 letter required Montana to submit a State program amendment that pertained to the Applicant Violator System and ownership and control provisions. The Applicant Violator System and challenges to listings in the Applicant Violator System are found in SMCRA's implementing regulations, at 30 CFR 773.25, 773.26, and 773.28.

We announced receipt of the proposed amendment in the January 11, 2022, Federal Register (87 FR 1372). 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. No public hearing was held because no request for a public hearing was received. We received two public comments about the program amendment, and the public comment period ended on February 10, 2022. During our review of the amendment, we identified five concerns with the program amendment as submitted. Our concerns included (1) typographical and grammatical errors, (2) requiring Taxpayer Identification Numbers for the applicant and operator of the pending permit application, (3) requiring “Partner” and “Member” of the applicant and operator to submit information as required by Federal counterpart rules, (4) applying a willful or knowing standard for liability regarding characterizing criminal penalties and civil actions consistent with Federal counterpart rules, and (5) including clarifying language similar to Federal counterpart rules. We notified Montana of these concerns by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). We delayed final rulemaking to afford Montana the opportunity to submit new material to address the deficiencies. Montana responded in a letter dated May 3, 2023, and provided us with a revised program amendment proposal, which addressed all of the concerns identified in our March 30, 2023, letter (Docket ID: OSM-2021-0006-0004). On August 7, 2023, OSM announced receipt of the revised program amendment proposal in the Federal Register (88 FR 52082) (Docket ID: OSM-2021-0006-0005). 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. No public hearing was held because no request for a public hearing was received. No comments were received. The public comment period ended August 22, 2023. Because Montana addressed all our concerns with the initial program amendment submission and we had no additional concerns with the revised program amendment submission, we are proceeding with the final rule notice of approval.

SMCRA sections 503 and 505, and the Federal regulations at 30 CFR 730.5, establish the criteria for approval of State SMCRA programs. A State program must set forth requirements that satisfy the Federal minimum standards and must include provisions that are no less stringent than SMCRA and no less effective than the Federal regulations.

The following is a summary of the proposed statutory and rule changes submitted by Montana, as well as OSM's findings concerning Montana's amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. For the reasons discussed below, we are approving the amendment.

Senate bill 92, passed in the 2013 Montana legislature and as submitted as part of this formal program amendment, contained some provisions that were already reviewed and approved by OSM (84 FR 56689). Those provisions include the changes proposed by Montana in their formal program amendment submittal SATS No. MT-035-FOR and include the changes in MCA 82-4-222(1)(k), MCA 82-4-222 (1)(l), MCA 82-4-222 (1)(r)(2), MCA 82-4-222 (1)(r)(2)(l), MCA 82-4-222 (1)(r)(2)(m), MCA 82-4-222 (1)(r)(2)(n), and MCA 82-4-222 (1)(r)(8).

Senate bill 92, passed in the 2013 Montana legislature and as submitted as part of this formal program amendment, contained provisions that were already reviewed and approved by OSM (84 FR 56689). Those provisions include the changes proposed by Montana in their formal program amendment submittal SATS No. MT-035-FOR and include the changes in MCA 82-4-226(2), (7), MCA 82-4-226 (7)(b)(i), and MCA 82-4-226 (7)(b)(ii).

Senate bill 92, passed in the 2013 Montana legislature and as submitted as part of this formal program amendment, contained provisions that were already reviewed and approved by OSM (84 FR 56689). Those provisions include the changes proposed by Montana in their formal program amendment submittal SATS No. MT-035-FOR and include the changes in MCA 82-4-227(8). Our findings related to the remaining changes in Senate bill 92 follow.

Montana proposes to add language to the MCA 82-4-227 under the Montana Strip and Underground Mine Reclamation Act (MSUMRA). New language in subsection (14) of MCA 82-4-227 allows a person listed in the Applicant Violator System as owning or controlling a strip-mining or underground mining operation to challenge the ownership or control listing. This subsection also outlines the responsibilities of the Montana Department of Environmental Quality (MDEQ), which is the State regulatory authority in Montana, pertaining to a challenge to ownership or control listings as well as hearing rights of the person listed in the Applicant Violator System once receiving a response from the MDEQ on that challenge.

During our review of this provision in Montana's July 28, 2021 amendment submittal, we found that Montana would need to include clarifying language in this proposed statute similar to language found in 30 CFR 773.26(b), which clarifies that the provisions of this section apply only to challenges to ownership or control listings or findings and that these provisions may not be used to challenge liability or responsibility under any other provision of the Act or its implementing regulations. On May 3, 2023, Montana made this required change in their resubmittal of the formal program amendment with this clarifying language.

This provision of Montana's amendment (as submitted on July 28, 2021, and as revised on May 3, 2023) summarizes the Federal counterpart rules which address how to challenge ownership and control findings and listings in the Applicant Violator System, requirements of the applicant and regulatory authority, and clarifying language similar to 30 CFR 733.26(b), and we find these provisions to be no less effective than counterpart Federal regulations. This statutory provision is therefore in accordance with SMCRA and consistent with the Federal regulations, and we are therefore approving the incorporation of MCA § 82-4-227, subsection 14, into the Montana program.

In its program amendment submission, Montana proposes recodifications and other minor wording, editorial, punctuation, grammatical, citation, and cross-reference changes in ARM 17.24.301, which will define terms related to the Applicant Violator System and to also clarify and streamline existing definitions. No substantive changes to the text of these rules were proposed. Because these changes are minor, and, as explained in more detail below, OSM finds that the proposed changes are no less stringent than SMCRA and no less effective than the counterpart Federal regulations. Therefore, we are approving the following proposed rule changes.

• ARM 17.24.301 (13); added new “applicant violator system” definition. ARM 17.24.301 (13) to ARM 17.24.301 (14); recodification and deletion of “approximate original contour” definition; refer reader to definition of “approximate original contour” in MCA 82-4-203. ARM 17.24.301 (14) to ARM 17.24.301 (15); recodify “aquifer” definition. ARM 17.24.301 (15) to ARM 17.24.301 (16); recodify “area of land affected” definition. ARM 17.24.301 (16) to ARM 17.24.301 (17); recodify “arid and semiarid area” definition. ARM 17.24.301 (17) to ARM 17.24.301 (18); recodify “auger mining” definition. ARM 17.24.301 (18) to ARM 17.24.301 (19); recodify “bench” definition. ARM 17.24.301 (19) to ARM 17.24.301 (20); recodify “best technology currently available or BTCA” definition. ARM 17.24.301 (20) to ARM 17.24.301 (21); recodify “cemetery” definition. ARM 17.24.301 (21) to ARM 17.24.301 (22); recodify “coal conservation plan” definition. ARM 17.24.301 (22) to ARM 17.24.301 (23); recodify “coal preparation and coal preparation plant” definition. ARM 17.24.301(23) to ARM 17.24.301 (24); recodify “coal processing waste” definition. ARM 17.24.301(24) to ARM 17.24.301 (25); recodify “collateral bond” definition. ARM 17.24.301(25) to ARM 17.24.301 (26); recodify “combustible material” definition. ARM 17.24.301(26) to ARM 17.24.301 (27); recodify “community or institutional building” definition. ARM 17.24.301(27) to ARM 17.24.301 (28); recodify “contour strip mining” definition. ARM 17.24.307(28) to 17.24.301 (29); added new definition of “control or controller”. ARM 17.24.301 (30); recodify “cover” definition. ARM 17.24.301 (29) to ARM 17.24.301 (31); recodify “cultural resources” definition. ARM 17.24.301 (30) to ARM 17.24.301 (32); recodify “cumulative hydrologic impacts” definition. ARM 17.24.301 (31) to ARM 17.24.301 (33); recodify “cumulative hydrologic impact area” definition. ARM 17.24.301 (32) to ARM 17.24.301 (34); recodify “disturbed area” definition. ARM 17.24.301 (33) to ARM 17.24.301 (35); recodify “diversion” definition. ARM 17.24.301 (34) to ARM 17.24.301 (36); recodify “domestic water supply” definition. ARM 17.24.301 (35) to ARM 17.24.301 (37); recodify “downslope” definition. ARM 17.24.301 (36) to ARM 17.24.301 (38); recodify “dwelling” definition. ARM 17.24.301 (37) to ARM 17.24.301 (39); recodify “embankment” definition. ARM 17.24.301 (38) to ARM 17.24.301 (40); recodify “ephemeral drainageway” definition. ARM 17.24.301 (39) to ARM 17.24.301 (41); recodify “essential hydrologic functions” definition. ARM 17.24.301 (40) to ARM 17.24.301 (42); recodify “excess spoil” definition. ARM 17.24.301 (41) to ARM 17.24.301 (43); recodify “farm” definition. ARM 17.24.301 (42) to ARM 17.24.301 (44); recodify “federal coal regulatory authority” definition. ARM 17.24.301 (43) to ARM 17.24.301 (45); recodify “flood irrigation” definition. ARM 17.24.301 (44) to ARM 17.24.301 (46); recodify “fragile lands” definition. ARM 17.24.301 (45) to ARM 17.24.301 (47); recodify “fugitive dust” definition. ARM 17.24.301 (46) to ARM 17.24.301 (48); recodify “good ecological integrity” definition. ARM 17.24.301 (47) to ARM 17.24.301 (49); recodify “ground water” definition. ARM 17.24.301 (48) to ARM 17.24.301 (50); recodify “habitat or characteristic pattern” definition. ARM 17.24.301 (49) to ARM 17.24.301 (51); recodify “head-of-hollow fill” definition. ARM 17.24.301 (50) to ARM 17.24.301 (52); recodify “higher or better uses” definition. ARM 17.24.301 (51) to ARM 17.24.301 (53); recodify “highwall” definition. ARM 17.24.301 (52) to ARM 17.24.301 (54); recodify “historic lands” definition. ARM 17.24.301 (53) to ARM 17.24.301 (55); recodify “historically used for cropland” definition. ARM 17.24.301 (54) to ARM 17.24.301 (56); recodify and delete “hydrologic balance” definition; refer reader to definition of “hydrologic balance” in MCA 82-4-203. ARM 17.24.301 (55) to ARM 17.24.301 (57); recodify “hydrologic regime” definition. ARM 17.24.301 (56) to ARM 17.24.301 (58); recodify “imminent danger to the health and safety of the public” definition. ARM 17.24.301 (57) to ARM 17.24.301 (59); recodify “impoundment” definition. ARM 17.24.301 (58) to ARM 17.24.301 (60); recodify “inactive mining operation” definition. ARM 17.24.301 (59) to ARM 17.24.301 (61); recodify “incidental boundary revision” definition. ARM 17.24.301 (60) to ARM 17.24.301 (62); recodify “intermittent stream” definition. ARM 17.24.301 (61) to ARM 17.24.301 (63); recodify “in situ processing” definition. ARM 17.24.301 (62) to ARM 17.24.301 (64); recodify “irreparable damage to the environment” definition. ARM 17.24.301 (63) to ARM 17.24.301 (65); recodify “knowingly” definition; remove “an individual” in the definition and replace with “a person”. ARM 17.24.301 (64) to ARM 17.24.301 (66); recodify “land use” definition. ARM 17.24.301 (65) to ARM 17.24.301 (67); recodify “major revision” definition. ARM 17.24.301 (66) to ARM 17.24.301 (68); recodify “material damage” definition as it relates to the ARM subchapter 9 rules (Strip and Underground Mine Reclamation Act: Underground Coal and Uranium Mining). ARM 17.24.301 (67) to ARM 17.24.301 (69); recodify “material damage” definition as defined in MCA 82-4-203. ARM 17.24.301 (68) to ARM 17.24.301 (70); recodify “materially damage the quantity or quality of water” definition. ARM 17.24.301 (69) to ARM 17.24.301 (71); recodify “mine plan area” definition. ARM 17.24.301 (70) to ARM 17.24.301 (72); recodify “mineral” definition. ARM 17.24.301 (71) to ARM 17.24.301 (73); recodify “minor revision” definition. ARM 17.24.301 (72) to ARM 17.24.301 (74); recodify “mulch” definition. ARM 17.24.301 (73) to ARM 17.24.301 (75); recodify “natural hazard lands” definition. ARM 17.24.301 (74) to ARM 17.24.301 (76); recodify “non-commercial building” definition. ARM 17.24.301 (75) to ARM 17.24.301 (77); recodify “noxious plants” definition. ARM 17.24.301 (76) to ARM 17.24.301 (78); recodify “occupied residential dwelling and structures related thereto” definition. ARM 17.24.301 (77) to ARM 17.24.301 (79); recodify “operation” definition. ARM 17.24.301 (78) to ARM 17.24.301 (80); recodify “operator” definition. ARM 17.24.301 (79) to ARM 17.24.301 (81); recodify “other treatment facilities” definition. ARM 17.24.301 (80) to ARM 17.24.301 (82); recodify “outslope” definition. ARM 17.24.301 (81) to ARM 17.24.301 (83); recodify “overburden” definition. ARM 17.24.301 (82) to ARM 17.24.301 (84); reword the definition of “owned, controlled and owns or controls by removing “owned”, “controlled”, and “owns or controls” and adding “own, owner or ownership”; recodify new “own, owner, or ownership” definition. ARM 17.24.301 (83) to ARM 17.24.301 (85); recodify “perennial stream” definition. ARM 17.24.301 (84) to ARM 17.24.301 (86); recodify “permanent diversion” definition. ARM 17.24.301 (85) to ARM 17.24.301 (87); recodify “permanent impoundment” definition. ARM 17.24.301 (86) to ARM 17.24.301 (88); recodify “permit area” definition. ARM 17.24.301 (87) to ARM 17.24.301 (89); recodify “person having an interest which is or may be adversely affected or person with a valid legal interest” definition. ARM 17.24.301 (88) to ARM 17.24.301 (90); recodify “precipitation event” definition. ARM 17.24.301 (89) to ARM 17.24.301 (91); recodify “previously mined area” definition. ARM 17.24.301 (90) to ARM 17.24.301 (92); recodify “prime farmland” definition. ARM 17.24.301 (91) to ARM 17.24.301 (93); recodify “principal shareholder” definition. ARM 17.24.301 (92) to ARM 17.24.301 (94); recodify “probable hydrologic consequences” definition. ARM 17.24.301 (93) to ARM 17.24.301 (95); recodify “productivity” definition. ARM 17.24.301 (94) to ARM 17.24.301 (96); recodify “prospecting” definition. ARM 17.24.301 (95) to ARM 17.24.301 (97); recodify “public building” definition. ARM 17.24.301 (96) to ARM 17.24.301 (98); recodify “public office” definition. ARM 17.24.301 (97) to ARM 17.24.301 (99); recodify “public park” definition. ARM 17.24.301 (98) to ARM 17.24.301 (100); recodify “railroad loop” definition. ARM 17.24.301 (99) to ARM 17.24.301 (101) recodify “rangeland” definition. ARM 17.24.301 (100) to ARM 17.24.301 (102); recodify “recharge capacity” definition. ARM 17.24.301 (101) to ARM 17.24.301 (103); recodify “reclamation” definition. ARM 17.24.301 (102) to ARM 17.24.301 (104); recodify “recurrence interval” definition. ARM 17.24.301 (103) to ARM 17.24.301 (105); recodify “reference area” definition. ARM 17.24.301 (104) to ARM 17.24.301 (106); recodify “remining” definition. ARM 17.24.301 (105) to ARM 17.24.301 (107); recodify “renewable resource lands” definition. ARM 17.24.301 (106) to ARM 17.24.301 (108); recodify “replace adversely affected domestic water supply” definition. ARM 17.24.301 (107) to ARM 17.24.301 (109); recodify “road” definition and add “subcategories of roads are as follows:” clarifying language to the definition. ARM 17.24.301 (108) to ARM 17.24.301 (110); recodify “safety factor” definition. ARM 17.24.301 (109) to ARM 17.24.301 (111); recodify “sediment” definition. ARM 17.24.301 (110) to ARM 17.24.301 (112); recodify “sedimentation pond” definition. ARM 17.24.301 (111) to ARM 17.24.301 (113); recodify “significant, imminent environmental harm to land, air or water resources” definition. ARM 17.24.301 (112) to ARM 17.24.301 (114); recodify “soil” definition. ARM 17.24.301 (113) to ARM 17.24.301 (115); recodify “soil horizon” definition. ARM 17.24.301 (114) to ARM 17.24.301 (116); recodify “soil survey” definition. ARM 17.24.301 (115) to ARM 17.24.301 (117); recodify “spoil” definition. ARM 17.24.301 (116) to ARM 17.24.301 (118); recodify “stabilize” definition. ARM 17.24.301 (117) to ARM 17.24.301 (119); recodify “subirrigation” definition. ARM 17.24.301 (118) to ARM 17.24.301 (120); recodify “subsidence” definition. ARM 17.24.301 (119) to ARM 17.24.301 (121); recodify “substantial legal and financial commitments” definition. ARM 17.24.301 (120) to ARM 17.24.301 (122); recodify and add “of uranium prospecting holes” and “Drilling of coal prospecting holes and installation and use of associated disposal pits or installation of ground water monitoring wells does not constitute substantial disturbance” to the definition of “substantially disturb”. Montana's proposal to add language to this definition in relation to prospecting permits conforms to the changes reviewed and approved by OSM in the Federal Register (84 FR 56689). ARM 17.24.301 (121) to ARM 17.24.301 (123); recodify “successor in interest” definition. ARM 17.24.301 (122) to ARM 17.24.301 (124); recodify “surety bond” definition. ARM 17.24.301 (123) to ARM 17.24.301 (125); recodify “surface water” definition. ARM 17.24.301 (124) to ARM 17.24.301 (126); recodify “suspended solids or nonfilterable residue” definition. ARM 17.24.301 (125) to ARM 17.24.301 (127); recodify “temporary diversion” definition. ARM 17.24.301 (126) to ARM 17.24.301 (128); recodify “temporary impoundment” definition. ARM 17.24.301 (127) to ARM 17.24.301 (129); recodify “test pit” definition. ARM 17.24.301 (128) to ARM 17.24.301 (130); recodify “toxic-forming materials” definition. ARM 17.24.301 (129) to ARM 17.24.301 (131); recodify “toxic mine drainage” definition. ARM 17.24.301 (130) to ARM 17.24.301 (132); recodify and remove “in ownership or other effective control over the right to conduct strip or underground mining operations under a permit issued by the department” and add “of a permittee” to “transfer, assignment, or sale of permit rights” definition. ARM 17.24.301 (131) to ARM 17.24.301 (133); recodify “unconsolidated streamlaid deposits holding streams” definition. ARM 17.24.301 (132) to ARM 17.24.301 (134); recodify “underground development waste” definition. ARM 17.24.301 (133) to ARM 17.24.301 (135); recodify “undeveloped rangeland” definition. ARM 17.24.301 (134) to ARM 17.24.301 (136); recodify “unwarranted failure to comply” definition. ARM 17.24.301 (135) to ARM 17.24.301 (137); recodify “upland areas” definition. ARM 17.24.301 (136) to ARM 17.24.301 (138); recodify “valley fill” definition. ARM 17.24.301 (137) to ARM 17.24.301 (139); recodify “valid existing rights” definition. ARM 17.24.301 (138) to ARM 17.24.301 (140); recodify “violation notice” definition. ARM 17.24.301 (140) to ARM 17.24.301 (142); recodify “waste” definition. ARM 17.24.301 (141) to ARM 17.24.301 (143); recodify “waste disposal structure” definition. ARM 17.24.301 (142) to ARM 17.24.301 (144); recodify “water table” definition. ARM 17.24.301 (143) to ARM 17.24.301 (145); recodify “wildlife habitat enhancement feature” definition. ARM 17.24.301 (144) to ARM 17.24.301 (146); recodify “willful violation” definition. ARM 17.24.301 (145) to ARM 17.24.301 (147); recodify “willfully definition; strike the words “an individual” and add the word “person” to the definition. These changes are no less stringent than SMCRA and no less effective than the requirements found in the counterpart Federal regulations.

• ARM 17.24.302(1)—Montana proposed to add the language “submitted in a format acceptable to the department”. This change is no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 777.11(a)(3).

• ARM 17.24.304(1)(f)(iv)(i) to ARM 17.24.304(1)(g); recodification. ARM 17.24.304(1)(f)(iv)(i)(A) to ARM 17.24.304(1)(g)(i); recodification. ARM 17.24.304(1)(f)(iv)(i)(B) to ARM 17.24.304(1)(g)(ii); recodification. ARM 17.24.304(1)(f)(iv)(i)(C) to ARM 17.24.304(1)(g)(iii); recodification. ARM 17.24.304(1)(f)(iv)(i)(D) to ARM 17.24.304(1)(g)(iv); recodification and rule references from (6) to (1)(f), (7)(a)(ii) and (iii) to (1)(g)(ii) and (iii). ARM 17.24.304(1)(f)(iv)(i)(E) to ARM 17.24.304(1)(g)(v); recodification and punctuation revisions (semi-colon struck and period added). ARM 17.24.304(1)(f)(iv)(ii); recodification to an additional sentence in ARM 17.24.304(1)(g)(v); remove the words “in this regard” and add “conducted under (g)”. ARM 17.24.304(1)(j)(iv); minor grammatical changes; remove “through (h)” and add “and (g)”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR part 779.

• ARM 17.24.308(1)(b)(vii); minor grammatical changes; addition of the word “or”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR part 780.

• ARM 17.24.313(1)(h)(x); addition of the language “pursuant to ARM 17.24.724 and 17.24.726”. ARM 17.24.313(1)(j); minor grammatical changes; remove “(2)” and add “(1)(b)”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR part 780.

• ARM 17.24.314(1)(c); minor grammatical changes; remove “(5)” and add “(1)(e)”; remove “(6)” and add “(f)”. ARM 17.24.314(2)(d); minor grammatical changes; remove “(5)” and add “(1)(e)”; remove “(6)” and add “(f)”; and add a comma after “17.24.645”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR part 780.

• ARM 17.24.401(3)(b)(ii); minor grammatical changes; add the word “and”. ARM 17.24.401(3)(b)(iii); remove “state the names of the US geological survey 7.5 or 15 minute quadrangle maps that contain the area shown or described, if available; and”. ARM 17.24.401(3)(b)(iv); recodification to ARM 17.24.401(3)(b)(iii). These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 779.24 and 30 CFR 779.25.

• ARM 17.24.403(2)(c); remove “mine plan” and add the language “proposed mining”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 773.6.

• ARM 17.24.416(4)(a) to ARM 17.24.416(4); recodification. ARM 17.24.416(4)(a)(i) to ARM 17.24.416(4) (a); recodification. ARM 17.24.416(4)(a)(ii) to ARM 17.24.416(4)(b); recodification. ARM 17.24.416(4)(a)(iii) to ARM 17.24.416(4)(c); recodification. ARM 17.24.416(4)(a)(iv) to ARM 17.24.416(4)(d); recodification. ARM 17.24.416(4)(a)(iv)(A) to ARM 17.24.416(4)(d)(i); recodification. ARM 17.24.416(4)(a)(iv)(B) to ARM 17.24.416(4)(d)(ii); recodification. ARM 17.24.416(4)(a)(v) to ARM 17.24.416(4)(e); recodification. ARM 17.24.416(4)(a)(vi) to ARM 17.24.416(4)(f); recodification. ARM 17.24.416(4)(a)(vii) to ARM 17.24.416(4)(g); recodification. ARM 17.24.416(4)(a)(viii) to ARM 17.24.416(4)(h); recodification. ARM 17.24.416(4)(i); add the language “the department determines following an eligibility review and determination as described in ARM 17.24.1265, that the owner or operator is not eligible for a permit,”. ARM 17.24.416(4)(b) to ARM 17.24.416(5); recodification. ARM 17.24.416(4)(c) to ARM 17.24.416(6); recodification. ARM 17.24.416(4)(d) to ARM 17.24.416(7); recodification. ARM 17.24.416(5) to ARM 17.24.416(8); recodification. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 774.15.

• ARM 17.24.418(1); minor grammatical changes; add “,”, remove “or”, and add “, or sale”. ARM 17.24.418(2); minor grammatical changes; add “,”, remove “or”, add “, or sale”, and add “rights”. ARM 17.24.418(2)(b)(iii); minor grammatical changes; remove “subchapter 3” and add “ARM 17.24.303”. ARM 17.24.418(4); minor grammatical changes; add “assignment, or” and remove “, or assignment”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 774.17.

• ARM 17.24.425(1); minor grammatical changes; remove “sale, or” and add “, or sale” and “permit”. Minor grammatical changes; ARM 17.24.425(3); remove “department” and add “board”. ARM 17.24.425(6); minor grammatical changes; remove “department”, add “board”, remove “department”, and add “board”. These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 775.11.

• ARM 17.24.1201(2); add “Any potential violation observed during an aerial inspection shall be investigated on site within three days, provided that any indication of a violation, condition, or practice that creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant and imminent environmental harm to land, air, or water resources shall be investigated immediately. On-site investigations of potential violations observed during an aerial inspection may not be considered to be an additional partial or complete inspection for the purposes of ARM 17.24.1201.” These changes are no less stringent than SMCRA and no less effective than the requirements found in counterpart Federal regulations at 30 CFR 840.11(d)(2).

ARM 17.24.301(139) to ARM 17.24.301(141); in addition to the recodification of the definition of “violation,” “failure,” or “refusal”, at ARM 17.24.301(139), to ARM 17.24.301(141), Montana proposed to add reference to ARM 17.24.1265 (proposed rule pertaining to the Applicant Violator System and permit eligibility determinations) in their current definition of violation, failure, or refusal.

Montana's proposed change to the definition of violation, failure, or refusal would be for the purposes of ARM 17.24.1217 (individual civil penalties) and their proposed Applicant Violator System rules, at ARM 17.24.1265. The Federal definition of violation, failure, or refusal is for the purposes of individual civil penalties only and not for the Federal rules that pertain to the Applicant Violator System. As proposed, Montana's changes to the definition of violation, failure, or refusal would comply with the Federal program in terms of the definition of violation, failure, or refusal for the purposes of individual civil penalties. The addition of the language that would make the definition of violation, failure, or refusal also apply to the proposed regulation at ARM 17.24.1265 would not render the Montana program less stringent than SMCRA or less effective than the Federal regulations. Montana's current definition of violation, although not as verbose as the Federal definition of violation, still remains all-encompassing and, therefore, at least as effective as the Federal regulations.

Montana's proposed additions to the ARM, at 17.24.301(1)(a) requiring information of the applicant, applicant's resident agent ( i.e., the person who is designated for accepting service of process), and the applicant's operator, if any, are consistent with and as effective as Federal regulations at 30 CFR 778.11. We approve this change. Montana's deletion of the words “the person who will pay the abandoned mine reclamation fee pursuant to 30 U.S.C. 1232;” in ARM 17.24.301(1)(a) does not render their program less stringent than SMCRA or less effective than the Federal regulations at 30 CFR 778.11, and we approve this deletion. However, as proposed, ARM 17.24.303(1)(a) still does not require the applicant, applicant's resident agent and applicant's operator taxpayer identification numbers for the pending permit application. ARM 17.24.303(1)(a) requires employer identification numbers of the applicant, applicant's resident agent, and applicant's operator, but not taxpayer identification numbers. To be consistent with and as effective as Federal regulations at 30 CFR 778.11(a)(2), Montana would need to require taxpayer identification numbers for the applicant and operator in ARM 17.24.303(1)(a). We notified Montana of this concern by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and provided us with a follow-up formal program amendment with these required changes (Docket ID: OSM-2021-0006-0007). Because Montana has submitted changes that would require taxpayer identification numbers for the applicant and operator in ARM 17.24.303(1)(a), we find that these proposed changes with revisions would be no less stringent than SMCRA and no less effective as the Federal regulations at 30 CFR 778.11(a)(2) and approve these changes.

ARM 17.24.303(1)(e)—Montana proposed to delete the language in ARM 17.24.303(1)(e), which required “the names and addresses of any persons who are engaged in strip or underground mining on behalf of the applicant and any person who will conduct such operations should the permit be granted;”. This language is no longer needed as these requirements are now in ARM 17.24.303(1)(a). This proposed deletion of ARM 17.24.303(1)(e) would not render their program less stringent than SMCRA or less effective the Federal regulations at 30 CFR 778.11, and we approve this deletion. Montana also recodified ARM 17.24.303(1)(f) to ARM 17.24.303(1)(e) and added the requirement that in addition to the applicant, the operator also provide business entity information. We approve this recodification.

In new ARM 17.24.303(1)(f), Montana has proposed adding “each business entity in the applicant's an/or operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator, for every such business entity, the applicant must also provide the required information for every president, chief executive officer, and director (or persons in similar positions), and every person who owns, or records, 10 percent or more of the entity;”. This language is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.11, specifically 30 CFR 778.11(c). The terms “partner” and “member” were omitted from the rule that Montana as initially proposed. The Federal regulations at 30 CFR 778.11(c) include these terms, and so Montana would need to include these terms in their proposed rule for their rule to be consistent with the Federal regulations. We notified Montana of this concern by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with these required changes (Docket ID: OSM-2021-0006-0007). Because Montana has now submitted changes that would also require partners and members to provide the required information, we find that these proposed changes with revisions to be no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.11(c), and we approve these changes.

In new ARM 17.24.303(1)(g), Montana proposed to add certain language, but the language initially submitted had numerous typos and grammatical errors that were pointed out by OSM in our concern letter to Montana dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with corrections (Docket ID: OSM-2021-0006-0007). As revised, this rule states: “a list of all names under which the applicant, operator, partners or principal shareholders, and operator's partners or principal shareholders who operate or previously operated a surface coal mine operation in the United States within the five-year period preceding the date of submission of the application.” Because the revised language is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.11, we approve these changes.

In ARM 17.24.303(1)(g)(i)-(iv), Montana proposed minor changes to these rules. As submitted, the changes in ARM 17.24.303(1)(g)(i) contained a minor typographical error. We notified Montana of the typo by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with the necessary correction (Docket ID: OSM-2021-0006-0007). In addition, Montana's revised program amendment also proposed to add the requirement that the person's phone number be included, along with other information for each name on the permit application. These changes are no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.11, and we approve both.

Montana also proposed, and we approve, the following changes:

○ deletion of the requirement that the persons named in the application provide the control relationship to the applicant in ARM 17.24.303(1)(g)(ii),

○ addition of language in ARM 17.24.303(1)(g)(iv) requiring the applicant to submit information related to the regulatory authority with jurisdiction over the permit,

○ deletion of the unneeded owner or controller or previously owned or controlled language in ARM 17.24.303(1)(g)(iv), and;

○ addition of the requirement at ARM 17.24.303(1)(h) that persons on the application provide additional information for persons who operate or previously operated coal mining and reclamation operations in the United States within the five years preceding the date of the application.

Montana's proposed recodification, from ARM 17.24.303(1)(i) to ARM 17.24.303(1)(j), has no substantive effect and is in accordance with SMCRA and consistent with the Federal regulations at 30 CFR 778.11 and 30 CFR 778.13. Thus, we approve these changes.

Montana proposed to recodify ARM 17.24.303(1)(j) to ARM 17.24.303(1)(k), and to keep permit application information confidential, including interests or the holding of lands that share a common border with the permit. We approve these changes as they are no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.13.

Montana's proposed recodification from ARM 17.24.303(1)(k) to ARM 17.24.303(1)(l) has no substantive effect and would not render their program less stringent than SMCRA or less effective than the Federal regulations at 30 CFR 778.11 and 30 CFR 778.13. We approve these changes.

Montana also proposed to recodify ARM 17.24.303(1)(l) to ARM 17.24.303(1)(m) and proposed new language at ARM 17.24.303(1)(m) to require information from the permit applicant related to permit suspensions, revocations, or performance bond forfeiture for a five-year period preceding the date of the application. The facts involved in each case must also be submitted. Montana also proposed new language in ARM 17.24.303(1)(m)(i), which describes what specific information is required to be submitted if a permit suspension, revocation, or performance bond forfeiture has occurred. Finally, Montana proposed to delete the requirement that the permit issuance date be included with the specific information to be submitted in the event a permit suspension, revocation, or performance bond forfeiture had occurred. Montana's recodification and proposed additions and minor deletion to the ARM, at 17.24.303(1)(m), are no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.14. We approve these changes.

Montana proposed to recodify ARM 17.24.303(1)(m) to ARM 17.24.303(1)(n) and to add new language at ARM 17.24.303(1)(n) to require information pertaining to violation notices the applicant or operator has received during the three-year period preceding the date of the permit application as well as current unabated or uncorrected violation notices. Montana has added the requirement that the applicant or operator provide identification numbers of the violation notices mentioned above and removed the requirement that the Mine Safety and Health Administration number of the violation also be included (ARM 17.24.303(1)(n)(i)). Montana has also added the requirement that if applicable, current violation abatement information be included. Montana's recodification and proposed additions and minor deletions to the ARM, at 17.24.303(1)(n), are no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.14. We approve these changes.

Montana's recodifications to the ARM at 17.24.303(1)(o), ARM 17.24.303(1)(p), and ARM 17.24.303(1)(q) have no effect and would not render their program less stringent than SMCRA or less effective than the Federal regulations at 30 CFR 778.14. We approve these changes.

Montana proposed minor changes to the ARM, at 17.24.303(1)(r), about mining within 100 feet of a public road and specifying that the requirements of ARM 17.24.1134, ARM 17.24.1135, and ARM 17.24.1136 would apply. Montana's recodification and proposed additions and deletions to the ARM at 17.24.303(1)(r) are no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.16. In addition, the cross-references in the ARM at 17.24.303(1)(r) are no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.16, which references 30 CFR 761.14 and 761.15. We approve these changes.

Montana proposed to recodify ARM 17.24.303(1)(r) to ARM 17.24.303(1)(s); ARM 17.24.303(1)(s) to ARM 17.24.303(1)(t); ARM 17.24.303(1)(t) to ARM 17.24.303(1)(u); ARM 17.24.303(1)(u) to ARM 17.24.303(1)(v); ARM 17.24.303(1)(v) to ARM 17.24.303(1)(w); ARM 17.24.303(1)(w) to ARM 17.24.303(1)(x); ARM 17.24.303(1)(x) to ARM 17.24.303(1)(y); and ARM 17.24.303(1)(y) to ARM 17.24.303(1)(z). These recodifications have no substantive effect and would be in accordance with SMCRA and consistent with the Federal regulations at 30 CFR part 778. We approve these changes.

Montana is proposing to add a new provision at ARM 17.24.1229(1) that would add alternative enforcement provisions to their existing rules. ARM 17.24.1229(1) directs MDEQ to update the Applicant Violator System when a court enters a judgment against or convicts a person under the MCA for a civil penalty resulting from a violation under Part 1 (82-4-141), permit suspension (82-4-251), or civil penalty resulting from a violation under Part 2 (82-4-254). Montana's proposed new language at ARM 17.24.1229(1) is no less stringent than SMCRA and no less effective the Federal regulations at 30 CFR 847.2(a). We approve these changes.

Montana's proposed new rule at ARM 17.24.1229(2) that specifies that the existence of a performance bond or bond forfeiture could not be the only reason for deciding against using alternative enforcement, is also no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 847.2(b). We approve these changes.

Montana's proposed new rule at ARM 17.24.1229(3) provides that this rule would not preclude the use of other State of Montana or Federal laws about other enforcement or procedures and is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 847.2(d). We approve these changes.

Montana's proposed new rule at ARM, at 17.24.1229(4) states that “MDEQ may request a criminal justice agency to pursue criminal penalties pursuant to 82-4-141(3) or 82-4-251(6) or (7) MCA.” The MCA, at 82-4-141(3), pertains to persons that purposely or knowingly violate any of the provisions of MCA 82-4-141 or order adopted under the same regulation that has become final. The MCA, at 82-4-251(6), pertains to notices (violations) or orders (cessation orders). The MCA, at 82-4-251(7), pertains to attorney fees. The Federal regulations at 30 CFR 847.11 apply a willful or knowing standard before pursuing criminal penalties. The ARM, at 17.24.1229(4), citing MCA 82-4-251(6) does not appear to use the willful or knowing standard before pursuing criminal penalties. To the extent that the willful or knowing standard is not necessary before pursuing criminal penalties in Montana, this provision would be more stringent than SMCRA, and it would be no less effective than the Federal regulations at 30 CFR 847.11.

As proposed, Montana's new language at ARM 17.24.1229(4) appears to cite incorrect references to the MCA. The referenced section, MCA 82-4-251(7), in the proposed rule at ARM 17.24.1229(4) pertains to attorney fees. We notified Montana of this typo by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with the citation corrected (Docket ID: OSM-2021-0006-0007). Montana proposes to now cite MCA 82-4-254(6) or (7) in the ARM 17.24.1229(4) instead of MCA 82-4-251(6) or (7). This correction is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 847.11(c), and we approve this change.

Montana proposed new language at ARM 17.24.1229(5), when applied in conjunction with the referenced MCA provisions at 82.4.254(3)(c) and (4), is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 847.11 and 30 CFR 847.16. We therefore approve these changes.

Montana's proposed new rule at ARM 17.24.1264 outlines the requirements of Montana about data entry into the Applicant Violator System, including permit applicant and operator information, permit history information, unabated or uncorrected violation information, and other information identified in the review of the permit application. Timelines for data entry, preliminary findings of ownership or control, and timeframes for owner or controller challenges to a finding by Montana are also included. Finally, Montana included requirements to include information regarding judgments or convictions, as well as permanent permit ineligibility into the Applicant Violator System. Montana's proposed new language at ARM 17.24.1264 is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.8 and 30 CFR 774.11(c) through (h). In addition, when ARM 17.24.1264 is applied with Montana's new statute, MCA 82-4-227(14), which corresponds to section 510(c) of SMCRA and 30 CFR 774.11(c) through (e) pertaining to permanent permit ineligibility, it is no less stringent than SMCRA and no less effective than the Federal regulations. We, therefore, approve these changes.

Montana has proposed a new rule, at ARM 17.24.1265(1)(a)-(d), which outlines Montana's requirements in making permit eligibility determinations and the information used in making such determinations. The new rule references permit information requirements in ARM 17.24.303, the Applicant Violator System, and other information available to Montana including ownership and control information, permit history, previous mining experience, compliance history with SMCRA and MSUMRA, permits, and air or water quality laws. This new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.9, 30 CFR 773.10, 30 CFR 773.11, and 30 CFR 773.12. Therefore, we approve these changes.

Montana has proposed new language at ARM 17.24.1265(2) giving Montana the authority to conduct additional reviews for an applicant and operator that have no previous mining experience in determining permit eligibility. This provision is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.10. We approve this rule.

Montana has proposed new language at ARM 17.24.1265(3)(a)-(c), which relates to permanent permit ineligibility and the reasons for making a permanent permit ineligibility decision. The new rule references MCA 82-4-227(12), ARM 17.24.405(6)(h), and generally references SMCRA and MSUMRA. After review of this proposed new rule, we notified Montana of two typos by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with these corrections. (Docket ID: OSM-2021-0006-0007). This revised proposed new rule is now no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.12, which references section 510(c) of SMCRA, and 30 CFR 773.9, 773.10, 773.11, 773.13, 773.14, 774.11(c), 773.15, 778.9(d), and 773.19, as well as the general appeal rights in 30 CFR part 775 and 43 CFR 4.1360 through 4.1369. We approve these changes.

Montana has proposed new language at ARM 17.24.1265(4)(a)-(b), which provides for an additional review after permit approval but before permit issuance. This review relies on permit information requirements found in the ARM, at 17.24.303(1)(a), (c), (d), (g), (h), (i), (k), Montana's new Applicant Violator System rules at ARM 17.24.1264(1), and compliance history from the Applicant Violator System. The review must also be conducted within five business days before permit issuance under ARM 17.24.405. After review of this new rule, we notified Montana of one typo by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and Montana resubmitted a revised program amendment with this correction. (Docket ID: OSM-2021-0006-0007). This revised proposed new rule is now no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.9(d), which also references 30 CFR 778.11 through 30 CFR 778.14. We approve these changes.

Montana has proposed new rule at ARM 17.24.1265(5)(a)-(b) that outlines steps to be taken by Montana and the applicant when MDEQ makes a finding that the applicant is ineligible for a permit. When such a finding is made under the proposed new rule, Montana must provide written notification of the decision to the applicant with appeal rights and procedures. The applicant can also challenge a permit ineligibility finding under this new rule as outlined in ARM 17.24.1266(12). This proposed new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 778.9(b) and 30 CFR 773.25, and we approve these changes.

Montana has proposed a new rule, at ARM 17.24.1266(1), that provides procedures for inquiries about owner or controller listings in the Applicant Violator System. This proposed new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.26(e), and we approve this change.

Montana has proposed new language at ARM 17.24.1266(2)(a)-(b) that outlines procedures for challenging owner or controller findings in the Applicant Violator System, as well as the tribunal that would hear such a challenge. This rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.25, and we approve this change.

Montana has proposed new language at ARM 17.24.1266(3)(a)-(b) that provides procedures for challenges to ownership or control listing in the Applicant Violator System that fall under Montana jurisdiction. This new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.26, and we approve this change.

Montana has proposed new language at ARM 17.24.1266(4) that outlines the requirements for challenging ownership and control designations made by another regulatory authority. This rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.26, and we approve this change.

Montana has proposed new language at ARM 17.24.1266(5)(a)-(b) that lists the requirements that must be met to challenge Montana's finding or a listing of ownership and control. This rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.27.

Montana has proposed new language at ARM 17.24.1266(6) that further defines the burden of proof requirements for a person who challenges Montana's finding or listing of ownership and control. This addition is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.27.

Montana has proposed new language at ARM 17.24.1266(7)(a)-(d) that further explains the burden of proof needed in challenges to Montana's finding or listing of ownership and control. After review of this new rule, we notified Montana of one typo by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with this correction. (Docket ID: OSM-2021-0006-0007). With this correction, we have determined that this proposed new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.27, and we approve these changes.

Montana has proposed new language at ARM 17.24.1266(8) that outlines what Montana does when it receives a written challenge to an ownership or control listing. This provision is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.28. We approve this change.

Montana has proposed new language at ARM 17.24.1266(9) that allows MDEQ to consult with other regulatory authorities about challenges to ownership or control listings where a violation is in a different jurisdiction. After review of this new rule, we notified Montana of one typo by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with this correction. (Docket ID: OSM-2021-0006-0007). As revised, this proposed new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.26(c). We approve these changes.

Montana has proposed new language at ARM 17.24.1266(10) that requires Montana to provide all decisions made under this rule to the Applicant Violator System. After review of this new rule, we notified Montana of one suggested edit by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with our suggested edit incorporated into this new rule (Docket ID: OSM-2021-0006-0007). With this revision, this proposed new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.28(d). We approve these changes.

Montana has proposed new language at ARM 17.24.1266(11) that requires Montana, upon completion of a written decision under this rule, to review the information in the Applicant Violator System for accuracy. This new language is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.28(f), and we approve this change.

Montana has proposed new language at ARM 17.24.1266(12) that extends hearing rights to applicants, permittees, or persons that may be adversely affected by a decision from Montana under this new rule. After review of this initial program amendment submission, we notified Montana of two typos by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with corrections (Docket ID: OSM-2021-0006-0007). As revised, this proposed new rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.28(e). We approve these changes.

We note, however, that even with proposed ARM 17.24.1266, additional language similar to 30 CFR 773.26(b), which specifies that applicants can only use the procedures set forth in 30 CFR 773.26 through 773.28 to challenge ownership and control findings and not for any challenge to liability or responsibility under any other provision of the Act or its implementing regulations, should be considered for inclusion in Montana's rule. We notified Montana of this deficiency in a letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3, 2023, and resubmitted a revised program amendment with the addition of ARM 17.24.1266(13), which states: “The provisions of this section apply only to challenges to ownership or control listings or findings. These provisions may not be used to challenge liability or responsibility under any other provision of MSUMRA or its implementing regulations.” (Docket ID: OSM-2021-0006-0007). As revised, this rule is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 773.26(b). We approve this addition.

Montana has proposed new language at ARM 17.24.1267(1)(a)-(g) that would require permittees to update applicant or operator information in the Applicant Violator System after receiving a cessation order. This revision is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 774.12, which require updates to information required under 30 CFR 778.11. Information requirements under 30 CFR 778.11 are found in State counterpart rules at ARM 17.24.303. We approve these changes.

Montana has proposed new language at ARM 17.24.1267(2) that would not require the permittee to provide the updated information required of the ARM 17.24.1267(1) (a)-(g) if a court of competent jurisdiction grants a stay of the cessation order and the stay remains in effect. This proposal is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 774.12(b). We approve this change.

Montana has proposed new language at ARM 17.24.1267(3)(a)-(b) that requires the permittee to update information within 60 days of any addition, departure, or change of any person identified in the ARM 17.24.1267(1)(e). This proposal is no less stringent than SMCRA and no less effective than the Federal regulations at 30 CFR 774.12(c). We approve this change.

We asked for public comments on the amendment and received two general comments about the mining industry and regulation in Montana. These comments do not require a response.

On August 5, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the proposed amendment from various Federal agencies with an actual or potential interest in the Montana program (Administrative Record No. MT-37-06). On August 6, 2021, the U.S. Department of Energy responded that it did not have 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 Montana proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on August 5, 2021, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the proposed amendment (Administrative Record No. MT-37-06). On August 5, 2021, the EPA responded that it did not have any comments.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on proposed amendments that may have an effect on historic properties. On August 5, 2021, we requested comments on the proposed Montana amendment from the SHPO and the ACHP (Administrative Record Numbers MT-37-04 and MT-37-05, respectively). On August 16, 2021, the SHPO responded with no comments.

Based on the above findings, we are approving the submittal that Montana sent to us on July 28, 2021 (Administrative Record No. MT-037-01) as revised by the re-submittal that Montana sent to us on May 3, 2023.

This rule would not affect a taking of private property or otherwise have taking implications that would result in private 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 memorandum M-94-3, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866.

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

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

Montana, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves an amendment to the Montana 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 Tribal right to self-governance and sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175.

We have determined that it has no substantial direct effects on federally recognized Tribes or on the distribution of power and responsibilities between the Federal Government and Tribes. Therefore, consultation under the Department's Tribal consultation policy is not required. The basis for this determination is that our decision is on the Montana State program that does not include the regulation of Indian lands or regulation of activities on Indian lands as that term is defined in 30 U.S.C. 1291(9).

Indian lands are regulated independently under the applicable, approved Federal Indian lands program, with the exception of the Crow Tribe's “Ceded Strip” in Montana. The Ceded Strip is a unique and special situation because, under the terms of the memorandum of understanding, the Department of the Interior and State of Montana agreed to coordinate the administration of applicable surface mining requirements in the Strip. Even though we are approving the amendment and revisions to the original amendment, our action will not have any significant effects on the regulation of surface coal mining operations within the Crow Ceded Strip.

The Departmental Manual, part 512, chapter 4 (“Department of the Interior Policy on Consultation with Indian Tribes”) 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. Our approval of the amendment and revisions to the original amendment is an action without Tribal implications under section 4.3B of 512 Departmental Manual 4.

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 Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

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

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

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

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

For the reasons set out in the preamble, 30 CFR part 926 is amended as set forth below:

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 approved State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior (Secretary) conditionally approved the North Dakota program on December 15, 1980. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval of the North Dakota program in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning the North Dakota program and program amendments at 30 CFR 934.15 and 934.30.

By letter dated December 9, 2022 (Administrative Record No. ND-056-01), North Dakota sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). North Dakota sent the amendment at its own initiative to include changes made to both the North Dakota Century Code (NDCC) and the North Dakota Administrative Code (NDAC). Changes to the NDCC were made by the 67th legislative assembly in response to senate bill no. 2317, which was introduced by the Department of Trust Lands. The new law created chapter 15-72 of the NDCC and established a coal mine reclamation trust. The reclamation trust uses private assets pledged as collateral to fulfill performance bond obligations. The resulting rule changes to the NDAC added a perfected lien or security interest in real property to the definition of collateral bond to NDAC 69-05.2-01-02. The changes also added conditions required for real property to be pledged as collateral bond to NDAC 69-05.2-12-04.

We announced receipt of the proposed amendment in the May 19, 2023, Federal Register (88 FR 32165). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because none was requested. One comment was received on the amendment. The public comment period ended on June 19, 2023.

The following are the findings we made 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.

This amendment adds a perfected lien or security interest in real property to the definition of collateral bond in NDAC 60-05.2-01-02. It also adds the conditions that must be met for real property pledged as collateral bond to NDAC 69-05.2-12-04.

“Collateral bond” in NDAC 69-05.2-01-02(13) is defined as “an indemnity agreement in a sum certain payable to the state of North Dakota executed by the permittee and which is supported by the deposit with the commission of cash, negotiable bonds of the United States or of North Dakota, or negotiable certificate of deposit of any bank authorized to do business in North Dakota or an irrevocable standby letter of credit issued by a federally insured or equivalently protected bank authorized to do business in the United States, payable only to the commission upon presentation, or perfected, first-lien security interest in real property in favor of the commission.”

This amendment adds “or perfected, first-lien security interest in real property in favor of the commission” to the definition of collateral bond found in NDAC 69-05.2-01-02. The Federal regulations include similar language under 30 CFR 800.5(b)(5), which permits a perfected first-lien security interest in real property in favor of the regulatory authority to be used as a supporting factor for an indemnity agreement executed by the permittee as principal. This proposed change, thus, updates State rules to better match its Federal counterpart. Thus, North Dakota's proposed changes to NDAC 69-05.2-01-02 are consistent with and no less effective than the Federal program.

At NDAC 69-05.2-12-04(3)(a)-(c), North Dakota proposes to add three conditions that must be met for real property to be pledged as collateral bond. Those conditions include the following: the first condition at NDAC 69-05.2-12-04(3)(a) provides that “[t]he applicant shall grant the commission first mortgage, first deed of trust or perfected first-lien security interest in real property with the right to sell or otherwise dispose of the property in the event of foreclosure.” The second condition states that “the applicant shall submit a schedule of the real property to be mortgaged or pledged to secure the obligations under the indemnity agreement, with a list to include: a description of the property, the fair market value of the property, as determined by an independent appraisal conducted by a certified appraiser, and proof of possession and title to the real property.” NDAC 69-05.2-12-04(3)(b). The third condition provides that “[t]he real property to be pledged as collateral may include land with is part of a permit area: however, land pledged as collateral for a bond under this section may not be disturbed under any permit while the land is serving as security under this section.” NDAC 69-05.2-12-04(3)(c).

The conditions added to NDAC 69-05.2-12-04(3)(a)(c) mirror the conditions required for real property to be posted as collateral bond described in Federal regulations at 30 CFR 800.21(c).

The changes proposed by this amendment update North Dakota's rules to better match the Federal counterpart regulations. The proposed changes are thus consistent with and no less effective than the Federal regulations.

We are approving North Dakota's proposed changes to its coal regulatory program. As discussed above, North Dakota's proposed changes are nearly identical to the Federal regulations, and, in the case of NDAC 69-05.2-12-04(3)(a)-(c), the changes make the North Dakota program consistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 60-05.2-01 02 and 69-05.2-12-04(3)(a)-(c) are consistent with SMCRA and no less effective than the Federal regulations.

We asked for public comments on the amendment and received a single anonymous comment, suggesting taxpayer dollars should go towards only reclamation work, and any fees collected from fossil fuel industry should go towards environmental cleanup after natural disasters. This comment is outside the scope of this amendment, and we will not respond to it here. We appreciate the commenter's engagement with the rulemaking process.

On December 12, 2022, 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 North Dakota program (Administrative Record No. ND-056-03, and ND-056-04). We did not receive any comments from Federal agencies.

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 North Dakota proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on December 12, 2022, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. ND-056-03). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from SHPO and ACHP on amendments that may have an effect on historic properties. On December 12, 2022, we requested comments on North Dakota amendment (Administrative Record No. ND-056-03). We did not receive comments from SHPO or ACHP.

Based on the above findings, we are approving North Dakota's proposed amendment ND-056-FOR sent to us on December 9, 2022 (Administrative Record No. ND-056-01).

To implement this decision, we are amending the Federal regulations, at 30 CFR part 934, that codify decisions concerning the North Dakota program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rule would not result in a taking of private property or otherwise have taking implications that would result in private 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 (Department) has reviewed this rule as required by section 3 of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of section 3 of Executive Order 12988. Section 3 is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction.

Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive order did not extend to the language of the State regulatory program or to the program amendment that North Dakota 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. North Dakota, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves an amendment to the North Dakota program submitted and drafted by the State and thus is consistent with the direction to provide maximum administrative discretion to States.

The Department strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Tribes or on the distribution of power and responsibilities between the Federal government and Tribes. Therefore, consultation under the Department's Tribal consultation policy is not required. The basis for this determination is that our decision is on the North Dakota State program that does not include the regulation of Indian lands or regulation of activities on Indian lands as that term is defined in 30 U.S.C. 1291(9). Indian lands are regulated independently under the applicable, approved Federal Indian lands program. 512 Departmental Manual 4 (Department of the Interior Policy on Consultation with Indian Tribes) 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. Our approval of the amendment and revisions to the original amendment is an action without Tribal implications under section 4.3B of 512 Departmental Manual 4.

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

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

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

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

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

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

For the reasons set out in the preamble, 30 CFR part 934 is amended as set forth below:

The Coast Guard will enforce the special local regulation in 33 CFR 100.703 for the Bradenton Area River Regatta regulated area identified in Table 1 to § 100.703, item No. 2, from 10 a.m. until 5 p.m. on February 21, 2026. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events, Sector St. Petersburg § 100.703, Item No. 2, specifies the location for the regulated area for the Bradenton Area River Regatta, which encompasses portions of the Manatee River located in Bradenton, FL. Under the provision of § 100.703 all persons and vessels are prohibited from entering the regulated area, except those persons and vessels participating in the event, unless they receive permission to do so from the Coast Guard Patrol Commander, or designated representative.

Spectator vessels may safely transit outside the regulated area, but may not anchor, block, loiter in, impede the transit of festival participants or official patrol vessels or enter the regulated area without approval from the Coast Guard Patrol Commander or a designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation. In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide notice of the regulated area via Local Notice to Mariners, Marine Safety Information Bulletins, Broadcast Notice to Mariners, and on-scene designated representatives.

In an interim final rule (IFR) published in the Federal Register (FR) on June 5, 2020, VA amended its regulations to relax the PCAFC requirement for in-person home visits during the COVID-19 National Emergency. 85 FR 34522 (June 5, 2020). The IFR added § 71.60 to part 71 of title 38 of the Code of Federal Regulations (CFR), to provide flexibility in the modality by which VA conducted PCAFC home visits for the duration of the COVID-19 National Emergency declared by the President on March 13, 2020. Under § 71.60, VA could conduct home visits through means other than in-person visits, including by videoconference or other available telehealth modalities. 85 FR 34523 (June 5, 2020). This change was intended to help reduce the risk of exposure to and transmission of COVID-19 for individuals involved in PCAFC, as well as members of their households and others with whom they came into contact. Id. VA considered the goal of reducing the risk of exposure to and transmission of COVID-19 especially important given the vulnerable population of veterans served by PCAFC. Id.

When VA adopted § 71.60, VA was focused on the COVID-19 National Emergency and explicitly tied the relaxation of PCAFC in-person home visit requirements to the COVID-19 National Emergency declared by the President on March 13, 2020. However, neither the text of the regulation nor the preamble discussion in the IFR specified whether the declaration referred to Proclamation 9994 of March 13, 2020, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (85 FR 15337 (March 18, 2020)), or the President's determination, dated March 13, 2020, pursuant to section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act) (42 U.S.C. 5121-5207), that an emergency exists nationwide. See Letter from President Donald J. Trump on Emergency Determination Under the Stafford Act, available at https://trumpwhitehouse.archives.gov/briefings-statements/letter-president-donald-j-trump-emergency-determination-stafford-act/ (last accessed September 16, 2025). Regardless, both national emergencies have ended. 1

Because the COVID-19 National Emergency has ended, the relaxation of in-person home visits that was adopted under the IFR, and valid only during the COVID-19 National Emergency is no longer applicable. Thus, in this final rule, VA is removing the regulation that was adopted under the IFR at 38 CFR 71.60.

VA provided a 30-day comment period in response to the IFR, which ended on July 6, 2020. VA received twelve comments on the IFR and VA has considered and will address the relevant comments as part of this final rule, as discussed in detail below. Notably, the commenters responded to the IFR to identify concerns with or support for § 71.60. Comments were not solicited to determine whether or when to remove § 71.60 from the regulations and none of the commenters addressed the expiration of the COVID-19 National Emergency.

On December 6, 2024, VA published a proposed rule primarily impacting PCAFC that, among other changes, proposed to add a new § 71.55 to part 71 that would, if adopted in a final rule, provide flexibility to VA to complete home visits under part 71 through telehealth for the duration of and in the locations covered by an emergency declaration. 89 FR 97404, at 97449-50 (December 6, 2024). As proposed, § 71.55 would define “telehealth” by reference to another regulation and explain the meaning of “emergency declaration” for purposes of § 71.55. While related, those proposed changes are outside of the scope of this final rule, which is specific to § 71.60 and the COVID-19 National Emergency, and are not otherwise addressed in this final rule.

VA reviewed and considered all twelve comments received in response to the IFR. VA determined that six of the twelve comments received were outside the scope of the rulemaking, and VA does not address those comments in this final rule or make changes to § 71.60 based on them. However, some of these commenters raised individual matters (for example, struggles they were having) and, to the extent these individuals provided their personal information, VA did attempt to reach out to the commenters to address their individual matters unrelated to this rulemaking.

Of the remaining six comments within the scope of this rulemaking, one commenter was supportive of virtual home visits by their regular care teams and noted that health and safety is first and foremost. As such, VA does not further address this comment in this final rule and makes no changes based on it.

The remaining comments contained concerns or recommendations relating to the IFR and are addressed below. Certain comments are no longer relevant because § 71.60 is not and cannot be applied after the COVID-19 National Emergency ended.

Three commenters raised concerns with VA conducting home visits by modalities other than in-person. One commenter stated that certain aspects of evaluation and care of the veteran cannot be best served via telehealth and suggested that VA consider any valid concerns that the caregiver may bring to light and respond accordingly, so that there is no harm to the veteran's wellbeing and plan for care. Similarly, another commenter stated that in-home visits allow the interviewer to detect stressors, to visualize the living conditions of the veteran, and to check on the caregiver, which can assist the veteran, caregiver, and VA caregiver coordinator. Another commenter disagreed that relaxing the requirement for in-person home visits during the COVID-19 National Emergency was a valid solution to the issue because in-person home visits make the caregiver's and eligible veteran's needs clear. In addition, this commenter asserted that eliminating in-person home visits could lead to falsified records and they alleged that VA staff added a note (presumably in the eligible veteran's health record) regarding a contact or conversation that never took place.

VA agrees that in-person home visits are generally preferable to videoconferences or other available telehealth modalities because in-person home visits allow VA to fully assess the eligible veteran's situation and the needs of the eligible veteran and caregiver. However, VA believes the risks of relaxing the in-person home visit requirements during the COVID-19 National Emergency were outweighed by the need to reduce the risk of exposure to and transmission of COVID-19 to eligible veterans, the eligible veterans' caregivers and family members, and PCAFC staff.

While there are benefits to performing in-person home visits, videoconferences and other telehealth modalities provide an alternative means to assess an eligible veteran's safety and functional needs when in-person visits are not possible or are unsafe. During the COVID-19 National Emergency, VA had to balance what would be gained by conducting in-person home visits versus the risk of spreading an illness that could be particularly harmful and even deadly in vulnerable populations. Because the risk of and harm associated with spreading COVID-19 was so great, VA authorized videoconferencing and other telehealth modalities through the IFR as appropriate means for conducting PCAFC home visits to support the needs of veterans and caregivers applying for or participating in PCAFC while helping to protect their health and that of VA employees.

During the COVID-19 National Emergency, VA continued to assess the situation and needs of eligible veterans and family caregivers during regular monitoring and wellness contacts under § 71.40(b)(2), even when they were not conducted through in-person home visits. During the COVID-19 National Emergency, the IFR provided VA with flexibility to complete monitoring and wellness contacts through videoconference or other available telehealth modalities. See 38 CFR 71.40(b)(2) (2020) and (2021); 38 CFR71.60.

As currently set forth in 38 CFR 71.40(b)(2), each wellness contact consists of a review of the eligible veteran's well-being, adequacy of personal care services being provided by the family caregiver(s), and the well-being of the family caregiver(s). These wellness contacts provide eligible veterans and family caregivers participating in PCAFC an opportunity to share concerns with VA staff and provide VA staff with an opportunity to see how eligible veterans and family caregivers are managing at home. Wellness contacts help VA determine whether any additional instruction, preparation, training, and/or technical support is needed for the eligible veteran's needs to be met by the family caregiver. As a result, facility Caregiver Support Program (CSP) staff may provide instruction or training or ensure appropriate referrals are in place for the family caregiver to obtain this support. In this way, wellness contacts reduce the risk that significant changes in the safety or well-being of PCAFC participants would go undetected.

Further, throughout the COVID-19 National Emergency, VA continued to encourage caregivers and eligible veterans to promptly notify VA staff of any concerns so that appropriate and necessary actions, including in-person home visits, when necessary, could be taken by VA to address such concerns. VA also encouraged and continues to encourage family caregivers and eligible veterans alike to reach out specifically to CSP staff and the Caregiver Support Line as needed, as both resources can assist in mitigating concerns, provide opportunities to raise questions, identify and address stressors, and assess the needs of the family caregiver as well as the needs of the eligible veteran. If CSP staff determined an in-person home visit was necessary during the COVID-19 National Emergency, they were supported in conducting the in-person home visit.

VA disagrees with one commenter's assertion that VA was eliminating in-person home visits and doing so could lead to more falsified records. First, the IFR provided additional flexibility to VA to complete home visits through videoconference or other available telehealth modalities, but it did not eliminate the in-person home visit requirements. The regulation adopted under the IFR states that during the COVID-19 National Emergency, VA may complete visits to the eligible veteran's home under part 71 through videoconference or other available telehealth modalities. Under § 71.60, VA was not prohibited from completing in-person home visits during the COVID-19 National Emergency.

Second, VA does not believe § 71.60 affected the likelihood of records being falsified. Errors or mistakes in records could result from a provider writing inaccurate notes or the veteran or family caregiver providing inaccurate information, but neither of these was likely to increase because of the flexibility provided under § 71.60. Falsified records due to staff error are already minimal, and if identified, there are processes in place for corrections to be made to such records. Additionally, a veteran can review their health record and report anything they believe to be inaccurate. This applies to any information within the record, including but not limited to documentation resulting from both in-person and virtual visits for purposes of PCAFC. VA has resumed in-person home visits and has not identified evidence to suggest the relaxation of in- person home visits under the IFR led to falsification of records.

One commenter applauded VA for exercising flexibility in conducting home visits during the COVID-19 National Emergency, but urged VA to provide necessary education, training, and resources to facilitate remote home visits. In particular, the commenter suggested VA provide education and resources for accessing equipment and internet infrastructure, or the option to use telephones for families lacking reliable internet connectivity and web technologies.

Throughout the COVID-19 National Emergency, VA provided education, training, and resources to assist eligible veterans and their family caregivers with accessing VA services and supports for which they may be eligible, and continues to do so today. For example, CSP staff are trained on how to enter a Digital Divide Consult to assist in connecting eligible veterans and their family caregivers to VA staff who can determine eligibility for VA-provided connected devices, along with the training needed to use such equipment.

That same commenter further urged VA to establish consistency across VA medical facilities in conducting remote visits to safeguard the health of veterans and caregivers, and further encouraged VA to establish standards and training to help VA continue to provide effective support and assessment during remote visits, particularly in instances where individuals may not feel comfortable disclosing abuse virtually or via phone.

VA provides robust and standardized training to CSP staff across the country, including training on the completion of home visits. Following publication of the IFR, this included training related to the relaxation of in-person home visits during the COVID-19 National Emergency. During trainings, VA reiterates that part of the benefit of the home visit is to provide an opportunity to identify additional needs of and/or supports for individuals applying for or participating in PCAFC, whether the visit is in-person or virtual.

VA acknowledges that disclosure of abuse in any circumstance may be difficult. VA conducts wellness contacts and eligibility assessments using standardized processes to enhance consistency in the administration of PCAFC. Whether in-person or virtual, these processes include providing one-on-one opportunities for caregivers and eligible veterans to individually disclose abuse to a VA provider. Additionally, CSP collaborates extensively with the Veterans Health Administration's Intimate Partner Violence Assistance Program to provide staff with consultation, training, and resources on assessing for safety during in-person and virtual visits, including how to recognize non-verbal signs and symptoms of abuse in situations where individuals do not verbally disclose abuse.

One commenter recommended that the relaxation of requirements for in-person home visits become permanent because they are unnecessary, intrusive, and costly. The commenter further stated that the in-person home visit requirement makes veterans residing overseas and in some U.S. territories ineligible for PCAFC. This commenter also stated that they previously asked that telehealth and related technology be utilized for all visit or follow-up requirements for PCAFC.

To the extent that this commenter is asserting that PCAFC should be available to individuals living overseas, VA considers that part of the comment outside the scope of this rulemaking. Pursuant to § 71.10(b), benefits under part 71 are provided only to individuals residing in a State as that term is defined in 38 U.S.C. 101(20). Section 101(20) defines the term State, in part, as each of the several States, Territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. VA discusses this requirement in more detail in the proposed rule published on March 6, 2020 (see 85 FR 13356, at 13358 (March 6, 2020)) and in the final rule published on July 31, 2020 (see 85 FR 46226, at 46226-27 (July 31, 2020)).

Regarding the commenter's suggestion that telehealth and related technology should be utilized for all PCAFC visits and follow ups, VA disagrees. As VA explained in the IFR and previously in this final rule, during the COVID-19 National Emergency, VA believed the risks of exposure to and transmission of COVID-19 necessitated the flexibility allowed by 38 CFR 71.60. See 85 FR 34523 (June 5, 2020). However, VA does not intend to permanently eliminate the requirement for in-person home visits because there are numerous benefits to performing home visits in person when it is safe to do so. In-person home visits are beneficial for assessing and reassessing eligibility for PCAFC and conducting wellness contacts, particularly as eligibility for PCAFC is conditioned upon the eligible veteran receiving care at home. See § 71.20(a)(6). Conducting visits in the eligible veteran's home provides VA with a better opportunity than virtual visits to assess and reassess the eligible veteran's level of need and the caregiver's ability to perform personal care services. To assess the ability of the caregiver to perform personal care services in the eligible veteran's home, it is most ideal for the assessor to be present in the environment in which the care is being performed. While a virtual visit may be appropriate in certain instances, current technology does not allow the assessor full environmental awareness of factors or conditions which may also be present yet not viewable through virtual modalities available today. Further, in-person home visits provide a unique opportunity for VA to conduct more comprehensive and holistic assessments that virtual visits may not afford. In-person home visits also provide a better opportunity than virtual visits for PCAFC participants and VA staff to develop personal and on-going relationships in which eligible veterans and caregivers are comfortable discussing the eligible veteran's needs and health status with VA staff, which may be utilized by VA to provide additional supports and services. Additionally, information about an individual's safety and environment is more easily assessed in person.

In-person home visits are an important component of participation in PCAFC. Pursuant to 38 U.S.C. 1720G(a)(9), VA has an obligation to monitor the well-being of each eligible veteran receiving personal care services under PCAFC, document findings pertinent to the appropriate delivery of personal care services to the eligible veteran under PCAFC, and establish procedures to ensure appropriate follow-up regarding those findings, which may include visiting the eligible veteran's home to review directly the quality of personal care services provided to the eligible veteran. Given their importance, VA budgeted for the expenses associated with conducting in-person home visits as part of the overall operational costs associated with PCAFC.

Thus, VA does not agree with the commenter that the relaxation of in-person home visits should become permanent. As previously explained in this rulemaking, in-person home visits are critically important and are an integral part of PCAFC. In-person home visits provide significant benefits to veterans and caregivers when they can be conducted safely and when the benefits outweigh any risks.

One commenter indicated they became aware of the IFR on the last day to provide comments and expressed concern that many caregivers do not receive timely emails, phone calls, or information from VA. VA provided a 30-day public comment period in response to the IFR, which was available for public viewing at www.regulations.gov. While VA considers this comment outside the scope of this final rule, VA is confirming that CSP does communicate news and updates about PCAFC, including matters related to rulemakings, through a variety of platforms, including, but not limited to, press releases, website updates, and messages via listserv.

VA makes no changes to the final rule in response to the public comments received in response to the IFR. However, as noted earlier in this discussion, VA is removing 38 CFR 71.60 now because the COVID-19 National Emergency is over, and § 71.60 is no longer operable.

VA has considered all relevant input and information contained in the comments submitted in response to the IFR. 85 FR 34522 (June 5, 2020). However, § 71.60, as added by the IFR, was only effective for the duration of the COVID-19 National Emergency, which has ended. VA has decided to remove § 71.60 from VA regulations because it no longer applies.

Although this final rule differs from the IFR, the change is a logical outgrowth of the IFR. Section 71.60 is inherently and explicitly limited to the duration of the COVID-19 National Emergency, such that the duration of its effect was clear. The public could have reasonably anticipated that the IFR would no longer be effective after the COVID-19 National Emergency, and that it would no longer be relevant or needed in part 71 after the COVID-19 National Emergency. Therefore, removing § 71.60 from part 71 is a logical outgrowth of the IFR and does not require further notice and public procedure under 5 U.S.C. 553(b).

Additionally, VA finds there is good cause to publish this final rule with an immediate effective date and forego the 30-day delayed effective date generally required by 5 U.S.C. 553(d). This is because a delayed effective date for this final rule is unnecessary, as it removes a regulatory provision already rendered inoperable due to the end of the COVID-19 National Emergency. As this rule results in no change to existing practice and would have no effect, the Secretary of Veterans Affairs finds that there is good cause under 5 U.S.C. 553(d)(3) to forego the 30-day delay requirement.

VA examined the impact of this rulemaking as required by Executive Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. This final rule is a deregulatory action under Executive Order 14192 because it removes a regulation that no longer has effect.

Economic Impact: There are no transfers, costs, or cost savings associated with this rulemaking.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This certification is based on the fact that this final rule pertains only to how VA previously conducted PCAFC home visits during the COVID-19 National Emergency and has no current or future impact on small businesses. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

This final rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Douglas A. Collins, Secretary of Veterans Affairs, approved this document on 2/10/2026 and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 71 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. 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 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(c)(2)(A)(i) allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” FFDCA section 408(c)(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. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require 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. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider, among other things, “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

Under FFDCA section 408(g), 21 U.S.C. 346a(g), 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 the docket ID number EPA-HQ-OPP-2023-0485 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 April 14, 2026.

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 EPA's regulations require submission via U.S. Mail or hand delivery, EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, 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 October 26, 2023 (88 FR 73571, FRL-10579-09-OCSPP), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11753) by Ramboll US Consulting Inc., on behalf of Ecolab Inc., 1 Ecolab Place, St. Paul, MN 55102. The petition requested that 40 CFR be amended by establishing an exemption from the requirement of a tolerance for residues of sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts (also known as sodium C14-C16 alpha olefin or sodium C14-C16 AOS; CAS Reg. No. 68439-57-6) when used as an inert ingredient (surfactant) in antimicrobial formulations (food-contact surface sanitizing solutions) applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(a), at a maximum concentration of 1% in pesticide formulations. That document referenced a summary of the petition prepared by Ramboll US Consulting Inc., on behalf of Ecolab Inc., the petitioner, which is available in the docket (EPA-HQ-OPP-2023-0485). There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), 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 sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts, including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts follows.

EPA has evaluated the available toxicity data and considered their 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. Specific information on the studies received and the nature of the adverse effects caused by sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

Sodium C14-C16 AOS exhibits low levels of acute toxicity via the oral, dermal, and inhalation routes of exposure. It is moderately irritating to the eyes and skin at concentrations ≤40% but it is not a skin sensitizer.

The repeated-dose toxicity for sodium C14-C16 AOS is low. No adverse effects were reported in subchronic toxicity studies in rats up to the highest dose tested (1000 mg/kg/day) and concern for developmental or reproductive toxicity is low, based on the rapid metabolism and excretion, and lack of accumulation of the chemical. Furthermore, concern for carcinogenicity is low, based on negative results in mutagenicity studies, and the lack of treatment-related effects in an available chronic/carcinogenicity study.

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 (NOAEL) and the lowest dose at which adverse effects of concern are identified (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 EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/overview-risk-assessment-pesticide-program.

The hazard profile of sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts is adequately defined. Overall, sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts are of low acute, subchronic, and developmental toxicity. No systemic toxicity is observed up to 1,000 mg/kg/day, the highest dose tested. Therefore, the highest dose tested was identified as the NOAEL and a LOAEL was not established. Since signs of toxicity were not observed, no toxicological endpoints of concern or PODs were identified. Therefore, a qualitative risk assessment for sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts can be performed.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts in food as follows.

Dietary exposure (food and drinking water) to sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts may occur following ingestion of foods with residues from their use in accordance with this exemption. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts may result in residential exposures as they can be present in pesticide and non-pesticide products that may be used in and around the home. However, a quantitative residential exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

3. Cumulative effects from substances with a common mechanism of toxicity. 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.”

Based on the lack of toxicity in the available database, EPA has not found sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts to share a common mechanism of toxicity with any other substances, and sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance exemption, therefore, EPA has assumed that sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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 Safety Factor. 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.

Based on an assessment of sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children, due to the low toxicity in the available studies. Because there are no threshold effects associated with sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts, EPA conducted a qualitative assessment. As part of that qualitative assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

Because no toxicological endpoints of concern were identified, 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 sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts in or on any food commodities. EPA is establishing a limitation on the amount of sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts that may be used in pesticide formulations applied. This limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 1% sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts in the final pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established for residues of sulfonic acids, C14-16-alkane hydroxy and C14-16-alkene, sodium salts (CAS Reg. No. 68439-57-6) when used as an inert ingredient (surfactant) in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(a) at a maximum concentration of 1% of the pesticide formulation.

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.

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.

This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to the APA but is subject to FFDCA section 408(d), which does not require notice and comment rulemaking to take this action in response to a petition.

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866 (See Unit V.A.), and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

However, EPA's 2021 Policy on Children's Health applies to this action. This rule 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 documented in the pesticide-specific registration review documents, located in the applicable docket at https://www.regulations.gov.

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

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

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 does not meet the criteria set forth in 5 U.S.C. 804(2).

For the reasons stated in the preamble, the EPA amends 40 CFR chapter I 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 might apply to them:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this 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(g), 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 the docket ID number EPA-HQ-OPP-2024-0322 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 April 14, 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 September 5, 2025 (90 FR 42897) (FRL-12474-06-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 4F9135) by Gowan Company, LLC, P.O. Box 5569, Yuma, AZ 85366-5569. The pesticide petition requested that 40 CFR 180.448 be amended by converting the existing regional tolerance for residues of the insecticide hexythiazox and its metabolites in or on the raw agricultural commodities of citrus crop group 10-10 at 0.6 parts per million (ppm) to include a national tolerance for crop subgroup 10-10B lemon/lime at 0.6 ppm, while establishing separate, remaining regional tolerances for grapefruit, subgroup 10-10C (CA, AZ, TX only) at 0.5 ppm and orange, subgroup 10-10A (CA, AZ, TX only) at 0.5 ppm. That document referenced a summary of the petition that was prepared by the petitioner and has been included in the docket. There was one (1) non-substantive comment received on October 6, 2025, in response to the notice of filing.

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, 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 hexythiazox including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with hexythiazox 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 for the new rulemaking.

EPA has previously published tolerance rulemakings for hexythiazox in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to hexythiazox and established tolerances for residues of the chemical. EPA is not reprinting previously published sections from these rulemakings as described further in this rulemaking, as they remain unchanged.

Toxicological profile. For a detailed discussion of the toxicological profile of hexythiazox, see Unit III. of the hexythiazox tolerance rulemaking published in the Federal Register of July 20, 2020 (85 FR 43697) (FRL-10008-84).

Toxicological points of departure/levels of concern. All points of departure (POD), toxicity endpoints, and levels of concern (LOC) for hexythiazox remain unchanged from the previous human health risk assessment (July 8, 2020) which can be found in docket ID EPA-HQ-OPP-20224-0200 at https://wwwregulations.gov. In addition, the hazard characterization also remains unchanged. For a summary of the toxicological points of departure/levels of concern for hexythiazox used for human health risk assessment, see Tables 4.1.1. and 4.1.2. of the document entitled “Hexythiazox: Human Health Risk Assessment for the Section 3 Registration of Hexythiazox on Citrus, Fruit, Subgroup 10-10B (Lemon/Lime).” (Human Health Risk Assessment), dated December 17, 2025, in docket ID EPA-HQ-OPP-2024-0322 at https://www.regulations.gov.

Exposure assessment. An aggregate dietary (food + drinking water) exposure and risk assessment was conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database Version 4.02. This software uses 2005-2010 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America. An acute dietary exposure assessment is not required since no endpoint attributable to a single oral exposure was identified from the available toxicity database. The chronic dietary risk assessment was conducted using tolerance level residues, modeled drinking water estimates, assumed 100% crop treated and used the EPA's default processing factors. The chronic dietary exposure estimate for the most highly exposed population subgroup, children 1-2 years old, was 86% of the chronic population adjusted dose (cPAD).

Drinking water and non-occupational exposures. The most recent estimated drinking water concentrations from the previous human health risk assessment (July 8, 2020) can be found in docket ID EPA-HQ-OPP-2024-0200 at https://www.regulations.gov. This new action would not exceed those calculated in the last hexythiazox drinking water assessment.

There are no new residential uses of hexythiazox at this time; however, all previously registered hexythiazox product labels with residential use sites require that handlers wear specific clothing ( e.g., long-sleeved shirt and long pants) and/or use Personal Protective Equipment (PPE) ( e.g., gloves). Therefore, EPA has made the assumption that these products are not for homeowner use and has not conducted a quantitative residential handler assessment.

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.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to hexythiazox and any other substances, and hexythiazox does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that hexythiazox has a common mechanism of toxicity with other substances.

Safety factor for infants and children. EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor for hexythiazox from 10X to 1X since there is no evidence of increased susceptibility to in utero and/or postnatal exposure to hexythiazox. See Unit III. of the July 20, 2020, rulemaking for a discussion of EPA's rationale for that determination.

Aggregate risks and determination of safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary (food + drinking water) exposure estimates to the acute population-adjusted dose (aPAD) and chronic population-adjusted dose (cPAD). Short- and intermediate-term risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists. There are no new residential uses of hexythiazox proposed at this time, therefore, a residential assessment is not required. However, residential exposures are anticipated from the registered use of hexythiazox and worst-case residential exposures have been carried forward from the 2020 Hexythiazox Human Health Risk Assessment for purpose of aggregate assessment. The short-term and intermediate-term aggregate assessment resulted in no risk estimates of concern when aggregating residential post-application exposures with the updated chronic dietary exposures. MOEs were 1,200 and 1,400 for the short- and intermediate-term aggregate assessments, respectively (LOC = 100).

Hexythiazox is classified as “Likely to be Carcinogenic to Humans” based upon increased incidences of malignant and combined benign/malignant liver tumors in female mice, and benign mammary gland tumors observed in male rats. The evidence was not strong enough to warrant the use of a linear low dose extrapolation model applied to the animal data (Q1*) for a quantitative estimation of human risk. The findings demonstrate that the chronic reference dose (RfD) is protective of the tumors observed at 163 mg/kg/day. EPA concludes that quantification of risk using a non-linear approach; i.e., the chronic RfD, for hexythiazox will adequately account for all chronic toxicity, including carcinogenicity from exposure to hexythiazox. Therefore, a separate cancer assessment was not conducted, and the chronic exposure assessment is considered protective of any cancer exposures.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the U.S. general population, or to infants and children, from aggregate exposure to hexythiazox residues. More detailed information on this action can be found in the Human Health Risk Assessment.

Samples were analyzed for residues of hexythiazox and its metabolite PT-1-3 using a common moiety high-performance liquid chromatography method with tandem mass spectrometry detection, Morse Laboratories Method No. Meth-220. The method provides for conversion of residues determined as PT-1-3 to hexythiazox equivalents using a molecular weight conversion factor of 1.55. The limit of quantitation, determined as the lowest level of method validation, was 0.02 ppm for hexythiazox in/on lemon. Therefore, adequate enforcement methodology is available to enforce the tolerance expressions for hexythiazox in/on lemon.

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 (MRL) 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.

There are Codex MRLs established for residues of hexythiazox in or on citrus fruit (group) at 0.5 ppm. The additional field trial data on lemon, and an updated OECD tolerance calculation supports a national tolerance for hexythiazox on lemon/lime, subgroup 10-10B at 0.6 ppm. Therefore, EPA is establishing a national tolerance for hexythiazox on lemon/lime, subgroup 10-10B at 0.6 ppm and is not harmonizing with Codex.

A regional tolerance (CA, AZ, TX only) will remain for the raw agricultural commodities of orange, subgroup 10-10A and grapefruit, subgroup 10-10C to harmonize with the Codex MRL for Fruit, citrus, group 10-10. The OECD calculations for orange, subgroup 10-10A and grapefruit, subgroup 10-10C were 0.2 ppm and 0.15 ppm and are below the Codex MRL of 0.5 ppm for citrus; therefore, EPA is recommending removing the currently established fruit, citrus, group 10-10 tolerance of 0.6 ppm and establishing regional tolerances for orange, subgroup 10-10A and grapefruit, subgroup 10-10C at 0.5 ppm to harmonize with Codex.

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.

To harmonize with Codex, the Agency is establishing regional tolerances for orange, subgroup 10-10A (CA, AZ, TX only) at 0.5 ppm and grapefruit, subgroup 10-10C (CA, AZ, TX only) at 0.5 ppm. In addition, to reflect the updates to the existing regulations from this pesticide petition, the regional tolerance for fruit, citrus group 10-10 (CA, AZ, TX only) will be removed from the table in Paragraph (c) of 40 CFR 180.448.

Therefore, a tolerance is established for residues of the ovicide/miticide hexythiazox and its metabolites in or on lemon/lime, subgroup 10-10B at 0.6 ppm. Regional tolerances are established for orange, subgroup 10-10A (CA, AZ, TX only) at 0.5 ppm and grapefruit, subgroup 10-10C (CA, AZ, TX only) at 0.5 ppm. The existing regional tolerance for residues of hexythiazox in or on fruit, citrus group 10-10 (CA, AZ, TX only) will be removed from the table in Paragraph (c) of 40 CFR 180.448.

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.

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, EPA is amending 40 CFR chapter I 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 might apply to them:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

If you have any questions regarding the applicability of this 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(g), 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 the docket ID number EPA-HQ-OPP-2024-0509 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 April 14, 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 December 9, 2024 (89 FR 97577) (FRL-11682-10-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 4F9153) by BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709-3528. The pesticide petition requested that 40 CFR 180.700 be amended by increasing the current tolerance for residues of the insecticide afidopyropen in or on the raw agricultural commodity of strawberry at 0.15 ppm to 0.3 ppm. That document referenced a summary of the petition that was prepared by the petitioner and has been included in the docket.

There were no comments received in response to the notice of filing.

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, 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 afidopyropen including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with afidopyropen is summarized in this unit.

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 for the new rulemaking.

EPA has previously published tolerance rulemakings for afidopyropen in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to afidopyropen and established tolerances for residues of the chemical. Most recently, in the Federal Register of July 23, 2025 (90 FR 34602) (FRL-12842-01-OCSPP). As a result, EPA is not incorporating previously published sections from these rulemakings as described further in this rulemaking, as they remain unchanged.

For a detailed discussion of the toxicological profile of afidopyropen, see Section A.2. of the document entitled “Afidopyropen. Human Health Risk Assessment for the Petition for Amendment of Tolerances in/on Field Grown Strawberries.”, dated January 29, 2026, in docket ID EPA-HQ-OPP-2024-0509 at https://www.regulations.gov.

All points of departure (POD), toxicity endpoints, and levels of concern (LOC) for afidopyropen remain unchanged from the previous human health risk assessment in support of the use of afidopyropen on leaf lettuce grown in greenhouses, dated June 24, 2025. In addition, the hazard characterization also remains unchanged. For a summary of the toxicological points of departure/levels of concern for afidopyropen used for human health risk assessment, see Tables 4.5.4.1 and 4.5.4.2. of the document entitled “Afidopyropen. Human Health Risk Assessment for the Petition for Amendment of Tolerances in/on Field Grown Strawberries.”, dated January 29, 2026, in docket ID EPA-HQ-OPP-2024-0509 at https://www.regulations.gov.

An aggregate dietary (food + drinking water) exposure and risk assessment was previously conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database Version 4.02. This software uses 2005-2010 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America. An unrefined acute dietary assessment was conducted in support of the use of afidopyropen on leaf lettuce grown in greenhouses and included the current proposed tolerance of 0.3 ppm for strawberry. The assessment was based on tolerance-level residues and the recommended tolerance for leaf lettuce, 100% crop treated (PCT) assumptions, and default and empirical processing factors. At the 95th percentile of exposure, the estimated risk is 4.2% of the acute population-adjusted dose (aPAD) for females 13-49 years old. Since an acute toxicological endpoint was only identified for the population subgroup females 13-49, an acute dietary exposure assessment was not conducted for any of the other population subgroups. In addition, an unrefined chronic dietary assessment was conducted in support of use of afidopyropen on leaf lettuce grown in greenhouses and included the current proposed tolerance of 0.3 ppm for strawberry. The assessment was based on tolerance-level residues and the recommended tolerance for leaf lettuce, 100 PCT assumptions, and default and empirical processing factors. The estimated risk is 2.7% of the chronic population-adjusted dose (cPAD) for the general U.S. population and the population subgroup with the highest estimated risk is children 1-2 years old at 6.3% of the cPAD.

Drinking water and non-occupational exposures. Strawberry is not a significant feed commodity, and the most recent EDWCs remain unchanged from the most recent risk assessment conducted in support of the use of afidopyropen on leaf lettuce grown in greenhouses, which accounted for afidopyropen residue levels in/on strawberry at 0.3 ppm. As such, these EDWCs remain current and protective of the proposed amended use on field-grown strawberries.

The proposed amended tolerance is not expected to result in residential exposure; therefore, a residential assessment was not conducted. There are existing residential ornamental uses that were assessed previously and were not found to be of concern. The residential risk estimates for use in the aggregate assessment for afidopyropen remain unchanged from the most recent risk assessment conducted in support of the use of afidopyropen on leaf lettuce grown in greenhouses, which can be found in docket ID EPA-HQ-OPP-2024-0020 at https://www.regulations.gov.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency considers “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to afidopyropen and any other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that afidopyropen has a common mechanism of toxicity with other substances. Afidopyropen and another pesticide, aminocyclopyrachlor, both produce the common toxic metabolite cyclopropanecarboxylic acid (CPCA). Drinking water is the only expected exposure pathway for CPCA for either pesticide. The likelihood of having ground water residues of both afidopyropen and aminocyclopyrachlor at the EDWC predicted in the screening ground water modeling in the same location is miniscule for the following reasons: ground water modeling assumes application of a chemical at the maximum rate, and the maximum number of applications, every year for up to 100 years, and because lateral flow of chemicals away from the application site is relatively slow, both chemicals would have to be applied in approximately the same location every year at the maximum application rates and maximum numbers of applications for each, for the exposures to be additive. This is not a feasible scenario.

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.

EPA has determined that reliable data support the reduction of the Food Quality Protection Act (FQPA) safety factor for afidopyropen from 10X to 1X for all exposure scenarios since the toxicology database is complete and exposure analyses are unlikely to underestimate risk of exposure from afidopyropen. Although there is evidence of increased fetal and offspring susceptibility, the effects are well-characterized with clearly established no-observed-adverse-effect level (NOAEL) values and selected endpoints that are protective for the observed effects.

In accordance with the FQPA, HED must consider and aggregate (add) pesticide exposures and risks from three major sources: food, drinking water, and residential exposures. In an aggregate assessment, exposures from relevant sources are added together and compared to quantitative estimates of hazard ( e.g., a NOAEL or PAD), or the risks themselves can be aggregated. When aggregating exposures and risks from various sources, EPA considers both the route and duration of exposure. The acute and chronic aggregate risk assessments include food and drinking water only. There are no acute or chronic aggregate risk estimates of concern for afidopyropen or CPCA. The short-term aggregate risk assessment applies only to residues of afidopyropen and combines residential exposures (contacting previously treated ornamentals) and average dietary (food and drinking water) exposures. The short-term aggregate assessment results in MOEs of 1,900 for adults and 2,100 for children (LOC = 100). There are no short-term aggregate risk estimates of concern for afidopyropen. CPCA is not a residue of concern for residential exposures.

Afidopyropen is classified as “ Suggestive Evidence of Carcinogenic Potential. ” Quantification of risk using a non-linear approach ( i.e., a cPAD) will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to afidopyropen. As a result, a quantitative cancer dietary assessment was not performed.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the U.S. general population, or to infants and children, from aggregate exposure to afidopyropen residues. More detailed information on this action can be found in the document entitled “Afidopyropen. Human Health Risk Assessment for the Petition for Amendment of Tolerances in/on Field Grown Strawberries”, dated January 29, 2026, in docket ID EPA-HQ-OPP-2024-0509 at https://www.regulations.gov.

Adequate enforcement methodology as described in the supporting documents is available to enforce the tolerance expressions.

Residues of afidopyropen can be measured in samples of strawberry using liquid chromatography-tandem mass spectrometry (LC/MS/MS), BASF Method No. D1103/01. This quick, easy, cheap, effective, rugged, and safe (QuEChERS)-based method was previously deemed acceptable for tolerance enforcement. The limit of quantitation (LOQ; determined as the lowest level of method validation) for afidopyropen is 0.01 ppm. Acceptable method validation and concurrent recoveries within the range of 70-120% were obtained from samples of strawberry fruit fortified with afidopyropen at 0.010-1 ppm, thus the method.

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 recommended tolerance for afidopyropen residues in/on strawberry were obtained using the Organization for Economic Co-operation and Development (OECD) maximum residue limit (MRL) calculation procedures. The recommended strawberry tolerance would change the harmonization status with Codex since Codex currently has an MRL for strawberry at the U.S. existing tolerance level of 0.15 ppm.

There are no Canadian MRLs established for residues of afidopyropen in/on strawberry.

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, the existing strawberry tolerance established under 40 CFR 180.700 will be increased from 0.15 ppm to 0.3 ppm. EPA will also remove the existing time-limited tolerance established for residues of afidopyropen in or on strawberry at 0.3 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.I.

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, EPA is amending 40 CFR chapter I 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 FFDCA, 21 U.S.C. 346a. FFDCA section 408(c)(2)(A)(i) allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” FFDCA section 408(c)(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. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require 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 . . . . ” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider, among other things, “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

Under FFDCA section 408(g), 21 U.S.C. 346a(g), 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 the docket ID number EPA-HQ-OPP-2023-0514 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 April 14, 2026.

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 EPA's regulations require submission via U.S. Mail or hand delivery, EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, 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 November 21, 2023 (88 FR 81021, FRL-10579-10-OCSPP), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11778) by Micro Powders, Inc. (EPA Company Number 102655, 580 White Plains Road, Tarrytown, NY 10591 USA). The petition requested that 40 CFR be amended by establishing an exemption from the requirement of a tolerance for residues of rice bran wax (CAS Reg. No. 8016-60-2) when used as an inert ingredient (lubricant) in pesticide formulations applied to growing crops or raw agricultural commodities pre- and post-harvest under 40 CFR 180.910, when applied to animals under 40 CFR 180.930, and when used in antimicrobial formulations (food-contact surface sanitizing solutions) applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(a). That document referenced a summary of the petition prepared by Micro Powders, Inc., the petitioner, which is available in the docket (EPA-HQ-OPP-2023-0514) available online at https://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all substances (or groups of similar substances) that are intentionally included in a pesticide product, other than active ingredients as defined in 40 CFR 153.125. Inert ingredients include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), 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 rice bran wax including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with rice bran wax follows.

EPA has evaluated the available toxicity data and considered their 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. Specific information on the studies received and the nature of the adverse effects caused by rice bran wax as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

The toxicological database of rice bran wax is supported by data regarding surrogates (Carnauba wax, D-002, D-003, γ-Oryzanol, Docosanoic Acid). EPA has determined that it is appropriate to bridge surrogate (Micro Powders, Inc.) data to assess rice bran wax due to similarities in the functional groups/structure (long-chain aliphatic esters, fatty acids, and alcohols), composition (natural plant wax mixtures), and physical/chemical properties (high molecular weight, low water solubility, low vapor pressure), and the available human health toxicity and ecological toxicity data of the five surrogate substances.

Rice bran wax has low acute toxicity via the oral route, and it is anticipated to have low toxicity via the dermal and inhalation routes. Rice bran wax is not an acute eye or dermal irritant, nor a skin sensitizer. Repeated dose toxicity was evaluated comprehensively using surrogate data. Subchronic toxicity studies with D-002 and D-003 in rats (90-day gavage) showed no adverse effects at doses up to 1,500 milligrams per kilogram per day (mg/kg/day). Carnauba wax administered in rat diet at up to 10 percent (approximately 8,800 to 10,200 mg/kg body weight per day) for 13 weeks produced no treatment-related effects. A three-generation reproductive toxicity study with carnauba wax in rats demonstrated no reproductive or developmental toxicity at dietary concentrations up to 1 percent (approximately 10,000 mg/kg/day). Chronic toxicity studies with carnauba wax (28 weeks in dogs) and D-003 (9 months in dogs, 18 months in mice, 24 months in rats) at doses up to 1,500 mg/kg/day showed no treatment-related adverse effects.

Mutagenicity was assessed using an Ames bacterial reverse mutation test with rice bran wax oxidized in Salmonella typhimurium and it showed no evidence of mutagenic activity in any tested strain. Carcinogenicity was evaluated using surrogate data. Two-year dietary carcinogenicity bioassays with γ-oryzanol in Fischer 344 rats and B6C3F1 mice showed no increase in tumor incidence at doses up to 2,000 mg/kg/day. Carcinogenicity studies with D-003 in Sprague-Dawley rats (24 months) and OFI mice (18 months) at doses up to 1,500 mg/kg/day showed no evidence of carcinogenic potential. These data support a determination that rice bran wax is not likely to be carcinogenic to humans.

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 NOAEL dose and the LOAEL dose. 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/overview-risk-assessment-pesticide-program.

The hazard profile of rice bran wax is adequately defined. Overall, rice bran wax is of low acute, subchronic, and developmental toxicity. No systemic toxicity is observed up to 1,000 mg/kg/day. Since signs of toxicity were not observed, no toxicological endpoints of concern or PODs were identified. Therefore, the Agency performed a qualitative risk assessment.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to rice bran wax, EPA considered exposure under the proposed exemption from the requirement of a tolerance. Dietary exposure (food and drinking water) to rice bran wax may occur following ingestion of foods with residues from their use in accordance with this exemption. However, a quantitative dietary exposure assessment is not necessary since a toxicological endpoint for risk assessment was not identified.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Rice bran wax may be present in pesticide and non-pesticide products that may be used in and around the home. However, a quantitative residential exposure assessment is not necessary since a toxicological endpoint for risk assessment was not identified.

3. Cumulative effects from substances with a common mechanism of toxicity. 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.”

Based on the lack of toxicity in the available database, EPA has not found rice bran wax to share a common mechanism of toxicity with any other substances, and rice bran wax does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance exemption, therefore, EPA has assumed that rice bran wax does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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 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.

Based on an assessment of rice bran wax, EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children. Because there are no threshold effects associated with rice bran wax, EPA conducted a qualitative assessment. As part of that assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children.

Because no toxicological endpoints of concern were identified, 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 rice bran wax residues.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption from the requirement of a tolerance is established for residues of rice bran wax (CAS Reg. No. 8016-60-2) when used as an inert ingredient (lubricant) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910; when applied to animals under 40 CFR 180.930; and when used in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(a).

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.

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.

This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to the APA but is subject to FFDCA section 408(d), which does not require notice and comment rulemaking to take this action in response to a petition.

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866 (See Unit V.A.), and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

However, EPA's 2021 Policy on Children's Health applies to this action. This rule 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 documented in the pesticide-specific review documents, located in the applicable docket at https://www.regulations.gov.

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

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

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 does not meet the criteria set forth in 5 U.S.C. 804(2).

For the reasons stated in the preamble, the EPA amends 40 CFR chapter I as follows: