The U.S. Nuclear Regulatory Commission (NRC) is proposing the revision of its byproduct material framework at part 30 of title 10 the Code of Federal Regulations (10 CFR), “Rules of General Applicability to Domestic Licensing of Byproduct Material,” for the licensing and oversight of the possession, use, and production of byproduct material associated with fusion machines. The proposed amendments to 10 CFR part 30 are primarily focused on definitions and the content of an application. Proposed amendments to 10 CFR part 20, “Standards for Protection Against Radiation,” are focused on definitions and establishing a waste disposal site intruder assessment requirement, and proposed amendments to 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” are focused on a requirement to submit an environmental report. In addition, the draft proposed rule includes changes to the definition of byproduct material in several other parts of the regulations (10 CFR parts 37, 50, 72, 110, 150, 170, and 171) as required by section 205 of the ADVANCE Act. 1

This rulemaking is separate from NRC's comprehensive review and reform of its regulations, including those governing transportation, in accordance with Executive Order (E.O.) 14300, “Ordering the Reform of the Nuclear Regulatory Commission” (90 FR 22587; May 29, 2025). The rulemakings associated with that effort will comprehensively reexamine NRC requirements, including those in 10 CFR part 30. While there could be additional revisions to 10 CFR part 30 as a result of these future rulemakings, the NRC is moving forward with publication of this proposed rule at this time because it is a deregulatory action of high interest for stakeholders that was in progress before the issuance of E.O. 14300. In this rule, the NRC is proposing to augment the existing byproduct material framework in 10 CFR part 30 to be inclusive of fusion machines. The NRC is proposing requirements that are technology-inclusive to accommodate the wide variety of anticipated fusion machine designs across the National Materials Program.

This proposed rule includes regulatory requirements for the possession, use, and production of byproduct material associated with near-term fusion machines that are consistent with existing requirements, to the extent practicable. The technology-inclusive and risk-informed focus of this rulemaking will ensure applicability for the wide variety of anticipated fusion machine designs while also accounting for the differing quantities of radioactive material that may be used and produced by these machines. In the context of this proposed rulemaking, the focus of licensing and oversight would be on possession, use, and production of radioactive materials associated with fusion machines, as well as activation products.

The major provisions of this proposed rule include—

• Development of a regulatory framework for licensing the possession, use, and production of byproduct material associated with fusion machines under the existing 10 CFR part 30 byproduct material framework. This framework would provide a systematic, risk-informed, performance-based approach to the licensing and oversight of byproduct material associated with fusion machines and their associated radiological hazards.

• Establishment of new proposed definitions, adopted from the Atomic Energy Act (AEA) of 1954, as amended by the ADVANCE Act of 2024, to establish the scope of regulatory requirements for the possession, use, and production of byproduct material associated with fusion machines and technology-inclusive content-of-application requirements supportive of a performance-based approach to regulation.

• Other targeted changes to current regulations that would ensure the applicability of current domestic licensing practices, and other updates necessary for the safe and secure use of radioactive materials associated with fusion machines.

Concurrent with this proposed rule, the NRC is issuing draft NUREG-1556, Volume 22, “Consolidated Guidance About Materials Licenses: Program-Specific Guidance About Fusion Machine Licenses.”

The NRC has prepared a regulatory analysis to determine the expected quantitative costs and benefits of this proposed rule, as well as qualitative factors considered in the NRC's rulemaking decision. The quantitative analyses evaluated four attributes: industry operation, NRC implementation, NRC operation, and other government entities. Qualitative analyses were necessary to assess the attributes of regulatory efficiency and increased public confidence along with augmenting the assessments of the attributes that were quantitatively assessed because monetizing the full impact of each attribute is not possible or practical. Fully monetizing the impact of each attribute would require estimation of factors such as the frequency of security-related events and the consequences of such events.

The analysis concluded that this proposed rule would result in net averted costs to the industry that exceed the net costs to Agreement States and the NRC. The proposed rule would result in total net benefit of approximately $1.38 million, and greater than a 99-percent chance that there would collectively be a positive net benefit. The total cost of the proposed rule reflects the cost impact on fusion machine applicants, the NRC, and Agreement States.

Fusion machine applicants' benefits stem from clarified regulations resulting in lower costs. NRC costs to implement this proposed rule include future rulemaking costs incurred at the final rule phase and costs for the preparation and issuance of final guidance. The benefits to the NRC are avoided cost associated with the application reviews and the oversight of the possession, use, and production of byproduct material associated with fusion machines. The costs to Agreement States are the costs of revising their regulations to be compatible with the proposed rule. The benefits for Agreement States would be reduced efforts in licensing due to improvements in clarity. The regulatory analysis concludes that this proposed rule would result in a total estimated implementation cost of $858,000 at a 7-percent discount rate and $1.26 million at a 3-percent discount rate.

The regulatory analysis results show that this rulemaking is justified because the total estimated quantified benefits, estimated to be $2.24 million at a 7 percent discount rate or $4.50 million at a 3 percent discount rate, exceed the estimated costs of the rule. The regulatory analysis also considered the following qualitative considerations and associated benefits: regulatory efficiency and increased public confidence. Benefits not monetized include reduced need for exemptions and license conditions, and more timely completion of licensing and oversight. Based on the assessment of the costs and benefits of this proposed rule, including those benefits that are unquantified, the NRC has concluded that the proposed rule provisions would be justified to protect public health and safety and security. For more information, please see the regulatory analysis (ADAMS Accession No. ML25168A339).

Please refer to Docket ID NRC-2023-0071 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0071.

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

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

The NRC encourages electronic comment submission through the Federal rulemaking website ( https://www.regulations.gov ). Please include Docket ID NRC-2023-0071 in your comment submission.

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

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

In anticipation of future applications for licenses authorizing the possession, use, and production of byproduct material associated with fusion machines, 2 the Commission stated in 2009 that “the NRC has regulatory jurisdiction over commercial fusion energy devices whenever such devices are of significance to the common defense and security, or could affect the health and safety of the public.”  3 However, the Commission directed the NRC staff to wait until the commercial deployment of fusion technology became more predictable before expending significant resources to develop a regulatory framework.

Since 2009, commercial companies worldwide have continued development of fusion technologies using a variety of designs and fuel cycles. 4 Design proof of concept, including exceeding scientific break-even ( i.e., Q > 1)  5 and net power production, is now targeted for some commercial fusion machine concepts as soon as the mid-to-late 2020s, with commercial deployment projected to follow in the late 2020s and early 2030s.

In 2019, the Nuclear Energy Innovation and Modernization Act (NEIMA) required the NRC to develop the regulatory infrastructure to support the development and commercialization of advanced nuclear reactors, including both nuclear fission reactors and fusion machines. 6 Section 103 of NEIMA requires the NRC to complete a rulemaking to establish a technology-inclusive regulatory framework for optional use by commercial advanced nuclear reactor applicants by December 31, 2027.

In response to NEIMA and due to the continued development of fusion technologies, the Commission in 2020 directed the NRC staff to “consider the appropriate treatment of fusion reactor designs in our regulatory structure by developing options for Commission consideration on licensing and regulating fusion energy systems.”  7 In its November 2, 2020, response to this Commission direction, the NRC staff stated that it would assess the potential risks posed by fusion technologies and explore regulatory approaches separate from the ongoing rulemaking for advanced nuclear fission reactors that would create 10 CFR part 53, “Risk-Informed, Technology-Inclusive Regulatory Frameworks for Commercial Nuclear Plants.”

The NRC staff developed an options paper  8 that included three potential approaches for the regulation of fusion machines: (1) a utilization facility approach, (2) a byproduct material approach, and (3) a hybrid approach. The utilization facility approach would use the part 53 framework and apply the requirements for fission facilities to fusion machines. The byproduct material approach would use the existing 10 CFR part 30 framework, along with a limited-scope rulemaking proposed by the NRC staff. The hybrid approach would have the NRC first regulate fusion machines under the part 30 framework but later develop decision criteria to identify whether a fusion machine design should be regulated under a part 53 framework. The NRC would develop the criteria during a future limited-scope rulemaking.

The Commission directed the NRC staff to proceed with a rulemaking on fusion machines in “Staff Requirements—SECY-23-0001—Options for Licensing and Regulating Fusion Energy Systems,” dated April 13, 2023. 9 The Commission chose the byproduct material approach (Option 2) using the existing 10 CFR part 30 framework. The Commission further stated that this rulemaking should—

• Take into account the existence of fusion machines that already have been licensed and are being regulated by the Agreement States, as well as those that may be licensed prior to the completion of the rulemaking;

• Develop a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” dedicated to fusion machines, so as to provide consistent guidance across the National Materials Program;

• Evaluate whether controls-by-design approaches, export controls, or other controls are necessary for near-term fusion machines; and

• If in the future, the NRC staff, in consultation with the Agreement States, determines that an anticipated fusion design presents hazards sufficiently beyond those of near-term fusion technologies, the NRC staff should notify the Commission and make recommendations for taking appropriate action as needed.

On July 9, 2024, the ADVANCE Act of 2024  10 was signed into law. Section 205 of the ADVANCE Act amended section 11 of the AEA to add the definition of “fusion machine” and amended the definition of “byproduct material” to include fusion machine generated radioactive material in section 11e.(3)(B). The ADVANCE Act thus establishes that, for the purposes of the AEA's definition of byproduct material, fusion machines are a subset of particle accelerators. In addition, the AEA's amended definition creates two criteria for determining whether radioactive material produced through use of a particle accelerator is byproduct material under AEA section 11e.(3)(B): one set of criteria for fusion machines, and another set for particle accelerators that are not fusion machines. 11 These changes are included in this rulemaking.

The ADVANCE Act also amended section 103 of NEIMA to delete “fusion reactor” and replace it with “fusion machine.” Finally, subsection 205(c) of the ADVANCE Act requires the NRC to submit a report to Congress, by July 9, 2025, on design-specific licensing frameworks for “mass-manufactured fusion machines”; and provide an estimated timeframe for the NRC to issue regulations or guidance for licensing mass-manufactured fusion machines. This report is being prepared separately from this rulemaking.

Fusion machines are distinctly different from fission reactors. Fusion is a process in which two or more atomic nuclei are combined to form a heavier element, releasing energy along with charged particles and neutrons. In addition to heat, particles, and electromagnetic radiation, fusion machines can produce tritium, neutrons, and neutron activation products that need to be properly contained to protect public health and safety. The generation of net energy from fusion requires creating conditions, such as in a plasma, 12 that confines the particles and energy for long enough time at high enough density and temperature so that the energy produced by the fusion reactions exceeds the energy used to create and maintain the conditions. Fusion reactions require active control to sustain these specific conditions, such as maintaining confinement of the plasma at fusion conditions, otherwise fusion reactions will cease along with the production of radiation and radioactive material. There can be long-term generation of decay heat in the structures due to the decay of radionuclides made radioactive by neutrons from the fusion reactions, but the level of decay heat generated is not expected to require engineered emergency heat removal systems.

Fission, as seen in nuclear reactors, is the splitting of a heavy atom (usually enriched uranium-235), which releases energy (usually in the form of heat) that can be used to produce electricity. Fission may be spontaneous but is usually caused by the nucleus of an atom becoming unstable after capturing or absorbing a neutron. During fission, the heavy nucleus splits into roughly equal parts, producing radionuclides of at least two lighter elements that can be radioactive. There must be enough neutrons being released from fissions to maintain a self-sustaining fission reaction rate, namely criticality. Unlike fusion reactions, self-sustaining fission reactions require active control to maintain criticality and, when necessary, to cease the fission reactions ( i.e., reach a sub-critical condition). Fission reactors also generate long-term decay heat at a high enough level that they need engineered emergency heat removal systems to ensure that the decay heat is removed from the system.

Byproduct material is regulated under the framework presented in 10 CFR part 30. Byproduct material is currently defined in 10 CFR part 30 as (1) any radioactive material (except special nuclear material) produced or made radioactive by exposure to the radiation incident to the process of producing or using special nuclear material (this includes most of the available inventory of the radionuclide hydrogen-3 also known as tritium); (2) any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or (3) any material that has been made radioactive by use of a particle accelerator and is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity. In addition, the NRC, in consultation with the Environmental Protection Agency (EPA), Department of Energy (DOE), Department of Homeland Security (DHS), and others, can designate as byproduct material any source of naturally occurring radioactive material, other than source material, that the NRC determines would pose a threat to public health and safety or the common defense and security of the United States and has been extracted or converted after extraction for use in a commercial, medical, or research activity.

The NRC currently uses an approach to licensing byproduct material that regulates the potential hazards from a wide spectrum of technologies, from lower risk portable nuclear gauges to higher risk panoramic irradiators and commercial manufacturers of radioactive sources or devices. Byproduct material regulations provide a comprehensive list of technical and regulatory areas that must be addressed in the licensing processes. NUREG-1556, “Consolidated Guidance About Materials Licenses,” provides guidance on meeting those requirements. For larger quantities of byproduct material, such as those that may be present at commercial fusion machine sites, NRC regulations, such as 10 CFR parts 20 and 30, include specific programmatic requirements, such as those related to financial assurance, emergency planning, waste management, and decommissioning.

The types of radioactive materials and hazards associated with a near-term fusion machine are more aligned with those of a byproduct material license holder than those of a nuclear power plant. For example, key areas of focus for protecting public health and safety for byproduct material license holders are confinement of radioactive materials, shielding to protect people from radiation hazards, consideration of potential supporting systems for breeding tritium, and the accountability of tritium or other radionuclides at the site. Potential radiological hazards posed by fusion machines include the following:

• Significant quantities of tritium may be located on the site, including within the vacuum vessel, in processing, in storage, and permeated into structural materials. 13

• During operation, fusion machines represent a large radiation source, including high-energy neutrons and gamma radiation, that requires shielding and containment of activated components.

• Neutron bombardment will activate components, with quantities of activation products increasing over time.

• Energetic plasma-surface interactions with the vacuum vessel interior wall may generate dust containing tritium and activation products.

• Fusion also can directly generate radioactive materials; for example, about 50 percent of the time, when two deuterium atoms are fused together (D-D fusion), the fusion reaction generates a tritium atom (the other direct products are not radioactive).

Fusion machines may use byproduct material as fuel or may produce byproduct material, such as through exposure of nonradioactive material to neutron radiation or from the fusion reactions. The byproduct material framework provides a flexible approach to regulate the anticipated diversity of fusion designs, fuels, and quantities of radioactive materials produced by a fusion machine.

Besides incorporating the statutory changes to the AEA and the NEIMA requirement for the NRC to establish fusion machine (advanced reactor) regulations by December 31, 2027, the NRC also endeavored to provide centralized, predictable, dedicated fusion machine regulations and guidance. Rulemaking would allow for the timely alignment of the licensing and regulation of the possession, use, and production of byproduct material associated with fusion machines across the NRC and the Agreement States, as part of the National Materials Program, to provide near-term regulatory predictability for fusion developers, regulators, and the public. In addition, the participation of the public in the Administrative Procedure Act rulemaking process enables all stakeholders ( e.g., regulators, industry, and the public) to interact, provide feedback, and gain an understanding of the risks, costs, cost savings, and benefits of this new technology.

In this proposed rule, the NRC proposes definitions to establish the scope of regulatory requirements for the possession, use, and production of byproduct material associated with fusion machines and technology-inclusive content-of-application requirements supportive of a performance-based approach to regulation. Other targeted changes to current regulations and guidance would ensure the applicability of current domestic licensing practices, and other updates necessary for the safe and secure use of radioactive materials used in a fusion machine.

The NRC is undertaking a limited-scope rulemaking to license and regulate the possession, use, and production of byproduct material associated with fusion machines. The proposed changes would amend 10 CFR parts 20, 30, 37, 50, 51, 72, 110, 150, 170, and 171, include changes to definitions, content-of-application requirements, recordkeeping and inspection requirements, intruder assessment requirements for waste disposal sites, and environmental report submission requirements. This proposed rule is focused on fusion machines for both commercial and research and development purposes that are currently contemplated for deployment in the near term. At the time of this rule, there are 29 fusion companies  14 based in the United States, including several that are constructing proof-of-concept facilities. The phrase “near-term” for fusion machines was described in SECY-23-0001 and is not used to refer to a particular timeframe; rather, it encompasses certain characteristics associated with all the known approaches to fusion currently being researched or under development. As described in SECY-23-0001, these include—

• No fissile material is present, and criticality (a self-sustaining neutron chain reaction) is not possible.

• Energy and radioactive material production from fusion reactions cease without any intervention in off-normal events or accident scenarios.

• Active post shutdown cooling of the fusion machine's structures containing radioactive material is not necessary to prevent a loss of radiological confinement ( i.e., vessel breach). 15

• Radionuclides present in the fusion machine, in processing or storage, or in activated materials, in any significant mobilizable amount are expected to result in low doses to workers and member of the public during credible accident scenarios ( e.g., less than 1 rem (10 millisievert (mSv)) effective dose equivalent to a person offsite).

• Active engineered features ( e.g., plasma confinement mechanisms, vacuum maintaining systems, fuel injection, external heating) are needed to achieve sustained fusion reaction.

The NRC considered these characteristics and the level of risk associated with the scientific and technical approaches to fusion known to the NRC at the time of this rulemaking. 16 The proposed rule, while technology inclusive, is not intended to address speculative fusion technologies significantly different from those being researched, developed, piloted, and deployed today (for example, today's design types include tokamak, stellarator, z-pinch, field reverse, and configurations with fuels that include deuterium-tritium, deuterium-helium-3, and proton-boron-11). The NRC will continue to monitor the development of fusion technology as it advances towards commercialization.

The proposed rule would add new requirements and modify some existing requirements to license and oversee the possession, use, and production of byproduct material associated with fusion machines under the 10 CFR part 30 byproduct material framework. Agreement States are currently using requirements compatible with 10 CFR part 30 and have safely regulated laboratory-scale fusion research and development systems for over 25 years. The 10 CFR part 30 requirements include safety, security, emergency preparedness, and radiation protection for workers and the public. Each applicant would need to provide specific design information and proposed radiological materials that will be used or generated (quantity and form), which would further shape the NRC's understanding of potential hazards that can impact safety, security, and emergency preparedness. This information may result in the need for specific license conditions. This proposed rulemaking does not amend 10 CFR parts 170 and 171 to add new initial application of annual fee categories for fusion machines. New fees for the possession, use, and production of byproduct material associated with fusion machines will be proposed in the annual fee rule following publication of the final rule for this rulemaking. The NRC uses annual fee rules to make changes to the NRC's fees; therefore, the NRC is not proposing any fee-related amendments for the possession, use, and production of byproduct material associated with fusion machines in this proposed rule.

Informed by stakeholder interactions during the development of this proposed rule, the NRC has concluded that the current requirements for key topics such as emergency preparedness, physical security, radiation protection, and waste disposal (except for a small adjustment to 10 CFR part 20) are adequate for near-term designs. The fusion industry is emerging rapidly, and designs are both diverse and evolving. The NRC, in consultation with the Agreement States, will continue to evaluate the hazards presented by near-term fusion designs as they are developed for deployment. Additionally, the NRC has coordinated with DOE on topics such as tritium handling, training, international cooperation, and public outreach and the NRC will continue to collaborate with Federal partners, as needed.

The NRC, and the Atomic Energy Commission before it, has experience licensing new and rapidly evolving technologies. The NRC has authority under § 30.32(b) to require additional information as necessary to evaluate an application, and under § 30.34(e) to impose any license conditions, orders, or other requirements needed to ensure that fusion machines will be operated safely and securely. As stated in § 30.33(b), the NRC will only grant a license upon a determination that the application meets the requirements of the Atomic Energy Act of 1954, as amended, which includes protection of the public health and safety and promotion of the common defense and security. In the proposed rule, the NRC is specifying the basic regulatory requirements that applicants must meet ( e.g., dose limits) and providing licensing guidance that asks for basic information to ensure a common understanding of the machine such that it will provide adequate public health and safety (such as meeting dose limits and training of radiation safety staff and users). This performance-based approach provides safety and security while providing the applicant or licensee the necessary flexibility to design and innovate its fusion machine design. This paragraph in this proposed rule is intended to explain how the licensing and oversight provisions allow for the use of flexible, technology appropriate safety measures even though these measures are not prescribed in the regulations.

If the NRC receives an application for the possession, use, and production of byproduct material associated with a near-term fusion machine that includes safety and security elements that were not anticipated, the proposed and existing regulations under 10 CFR part 30 afford the NRC adequate authority to impose requirements to carry out that responsibility on a case-by-case basis. In addition, the NRC will continue to work with the Agreement States to ensure that the States have licensing and inspection programs for fusion machines that are compatible and provide consistency across the National Materials Program.

For waste disposal, new proposed rule language would allow fusion-machine-produced byproduct material that was not considered during the development of the existing 10 CFR part 61, “Licensing Requirements for Land Disposal of Radioactive Waste” (47 FR 57463; December 27, 1982), to be disposed at low-level radioactive waste (LLW) disposal facilities. This disposal path for materials used or generated in a fusion machine provides safe disposal at existing LLW disposal facilities.

For emergency preparedness, the NRC would continue to require applicants to determine if the maximum dose to a person offsite could exceed 1 rem (10 mSv), and if so, to provide an emergency plan for offsite protection of the public. The basis for the offsite dose evaluation and the subsequent emergency plan (if needed) would consider the unique characteristics of the radionuclides generated or used by the fusion machine, such as dispersion and radiochemistry. Separately, an onsite emergency plan, or emergency procedures, would be needed based on the potential events and radiological hazards within the site boundary of each fusion machine.

For physical security, the quantities or forms of radioactive material associated with the fusion machine possessed by a licensee may warrant additional protection beyond that required by 10 CFR part 20, and those radionuclides may not be listed in appendix A to 10 CFR part 37, “Physical protection of category 1 and category 2 quantities of radioactive material.” In such cases, the NRC would determine on a case-by-case basis if other additional security requirements are warranted ( e.g., based on the use of structural materials that create new radionuclides of concern through activation).

For radiation protection, the existing 10 CFR part 20 radiation safety requirements apply to all licensees currently regulated by the NRC. Licensees that possess fusion machines would be required to meet these 10 CFR part 20 radiation safety requirements, some of which may or may not apply depending on a licensee's specific radioactive materials and their quantities. Therefore, this proposed rule would require applicants to describe what radionuclides and quantities will be used and produced in their specific fusion designs, which would allow regulators to evaluate how these requirements apply to a fusion machine before a license can be issued.

This proposed rule would revise requirements in several technical areas. The NRC also considered certain additional technical areas ( e.g., export controls, emergency preparedness) to determine if revisions were needed but, as described above, ultimately concluded no new or amended requirements were necessary beyond those described below.

This proposed rule would add a new definition for “fusion machine” in §§ 20.1003 and 30.4 of this chapter; revise the definition of “particle accelerator” in §§ 20.1003, 30.4, and 110.2 of this chapter; and revise the definition of “byproduct material” in §§ 20.1003, 30.4, 37.5, 50.2, 72.3, 110.2, 150.3, 170.3, and 171.5 of this chapter. The NRC has been evaluating the linkage between fusion devices and particle accelerators for several years, and these definitions have been a topic of extensive discussion with stakeholders. Congress clarified this issue with the passage of the ADVANCE Act of 2024. The ADVANCE Act clarified this linkage by clearly defining all fusion-machine-produced radioactive material as falling within the AEA's existing definition for byproduct material. Specifically, the term “fusion machine” was added to section 11 of the AEA and “byproduct material” was amended in section 11e.(3)(B) to include any material that (i) has been made radioactive by use of a particle accelerator, including by use of a fusion machine; and (ii) if made radioactive by use of a particle accelerator that is not a fusion machine, is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity. 17 As explained above, the AEA's amended definition creates two criteria for determining whether radioactive material produced through use of a particle accelerator is byproduct material under AEA section 11e.(3)(B): one set of criteria for fusion machines, and another set for particle accelerators that are not fusion machines.

The ADVANCE Act also amended NEIMA to change “fusion reactor” to “fusion machine” and points to the fusion machine definition under the ADVANCE Act. The definition of fusion machine in the ADVANCE Act and proposed for this rulemaking does not define fusion but focuses on what broadly is the role of the “machine,” i.e., transforming atomic nuclei using fusion processes and capturing and using the resultant products from those processes. Given the diversity of fusion processes and designs currently under consideration, the new definition provides the flexibility to be incorporated into NRC's part 30 framework in a technology-inclusive manner. The proposed regulatory framework would provide a risk-informed approach to protecting workers, the public, and the environment from the possession, use, and production of byproduct material associated with fusion machines.

The NRC's existing regulations and guidance ( i.e., NUREG-1556, Volume 21, “Consolidated Guidance About Materials Licenses: Program-Specific Guidance About Possession Licenses for Production of Radioactive Material Using an Accelerator”) provide for the licensing of particle accelerators. Consistent with the distinction in the AEA between byproduct material produced by fusion machines and other particle accelerators, the NRC's proposed definitions would consider fusion machines as a subset of particle accelerators. This approach would affirmatively establish that existing guidance for particle accelerators would not apply to fusion machines.

In addition, the NRC would revise the part 110.2 definition for “byproduct material” to replace the reference to 10 CFR 20.1003 with the language found in 10 CFR 20.1003. This change would be consistent with the definition language found in the other byproduct material definitions in this chapter.

This proposed rule would add new §§ 30.32(k), 30.33(a)(6), and 51.60(b)(1)(viii) of this chapter. This proposed rule would also amend existing regulations in §§ 20.2008, 30.51(a) introductory text, 30.51(a)(1), and 30.52(a) of this chapter. The proposed new sections §§ 30.32(k) and 30.33(a)(6) are specific to the license application requirements for the possession, use, and production of byproduct material associated with fusion machines. The proposed new paragraph § 51.60(b)(1)(viii) is specific to the submission of an environmental report for the possession, use, and production of byproduct material associated with fusion machines. The proposed new language in paragraph § 20.2008(a) is specific to the disposal requirements for waste from a fusion machine. The remaining proposed changes amending the existing regulations in §§ 30.51(a) introductory text, 30.51(a)(1), and 30.52(a) of this chapter are conforming changes to existing byproduct material requirements to address specific attributes of fusion machines.

This proposed rule would add technology-inclusive, content-of-application requirements supportive of a performance-based approach to regulating the possession, use, and production of byproduct material associated with fusion machines. The content-of-application section would provide the requirements for the licensing of byproduct material associated with a fusion machine which would be supplemented by the current general regulatory requirements and the terms and conditions of licenses already contained in §§ 30.32, 30.33, and 30.34. In addition to the contents of application, other conforming changes would be added specific to fusion machines.

The proposed contents of application section in § 30.32(k) would require that an applicant for a license to possess, use, and produce byproduct material associated with a fusion machine provide several items:

(1) a general description of the fusion machine;

(2) a summary of operating and emergency procedures related to radiation safety;

(3) a description of the radiation safety organizational structure;

(4) a description of the training program for fusions machines and radiation protection;

(5) a description of inspection and maintenance programs; and

(6) a description of the methodology for maintaining a radioactive material inventory.

In the summary of the procedures important to radiation protection, the applicant must provide descriptions of (1) the radiation protection measures to be employed for byproduct material, including all interlocks, access control systems, shielding, and radiation monitors; (2) the byproduct material handling systems procedures and inventory control procedures; and (3) description of any other components or systems used to control radiation and radioactive material.

The proposed contents of application for the possession, use, and production of byproduct material associated with fusion machines also would give an applicant an alternative to providing a description of the fusion machine and operational programs relative to radiation safety as proposed in § 30.32(k)(2)(i)-(iii). The alternative pathway, proposed in § 30.32(k)(2)(iv), would require the applicant to provide a description of any aspects of the fusion machine relevant to radiation safety that differ from the information listed in paragraphs (k)(2)(i) through (iii), an explanation for how those aspects of the application ensure the fusion machine can be operated safely, and any other information requested by the NRC during preapplication communications to enable the NRC to evaluate whether the applicant can safely possess, use, and produce byproduct material associated with a fusion machine. This technology-inclusive approach to licensing recognizes the diversity of fusion machine designs currently being considered and possible in the future while helping to provide early awareness of some information the applicant would need to provide to allow the NRC to determine whether byproduct material associated with a fusion machine can be possessed, used, and produced safely.

A new, proposed paragraph would be added to § 30.33(a)(6) to specifically provide the general requirement for approving an application to license the possession, use, and production of byproduct material associated with a fusion machine.

A new, proposed paragraph would be added to § 51.60(b)(1)(viii) to require that an environmental report be prepared for the construction and operation of a fusion machine unless a categorical exclusion applies. 18 The NRC expects that scope of the environmental report would be discussed during any voluntary preapplication discussions described in § 30.32(k)(2)(iv)(B).

Radioactive material as defined in paragraphs (3) and (4) of the definition of byproduct material in § 20.1003 is not LLW. 19 Given that fusion machines produce radioactive material that meets paragraph (3) of the definition of byproduct material, the NRC is proposing to include new language in paragraph (a) to § 20.2008 that would allow certain licensed waste from fusion machines to be disposed in a LLW disposal facility. The addition would not affect the ability of waste to be disposed of under § 20.2002 ( e.g., in a hazardous waste facility) if it met any other applicable State and Federal requirements. The NRC is not proposing any changes to § 20.2006 or appendix G to 10 CFR part 20 because those requirements are sufficiently general to apply to fusion machine generated waste without modification. The NRC would add § 20.2008 to the list of approved information collections in § 20.1009. 20

The NRC is proposing to amend §§ 30.51(a) and 30.52(a) to include requirements for recordkeeping and to allow inspection of the production of byproduct material. Maintaining records of the total quantity of byproduct material possessed by the licensee is important, including that material produced and used by the fusion machine, for purposes of material control and accountability, maintaining adequate financial assurance, and evaluation of offsite doses from routine and accidental releases. The NRC recognizes that calculating the total quantity of byproduct material may be complex and the uncertainties in those calculations for fusion machines have yet to be determined. The draft NUREG-1556 acknowledges the complexity of accountability and provides flexibility for licensees to use computational methods for this purpose. Additionally, the NRC is supportive of receiving feedback from industry and academia on proposals for byproduct material accountability.

It is expected that some licensees that possess, use, and produce byproduct material associated with a fusion machine would need to meet the existing requirements for financial assurance or a decommissioning funding plan as described in § 30.35. The NRC is not proposing changes to these requirements for decommissioning and financial assurance because the existing regulations already provide the needed flexibility based on the quantity of radioactive material remaining at the facility at the end of life. The current regulations already offer fusion machine applicants a clear pathway to determine the appropriate level of financial assurance for decommissioning their facility and to fund that decommissioning using a financial instrument that aligns with their business model and needs.. For the same reasons, the NRC is not proposing revisions to NUREG-1757, Volumes 1-3, “Consolidated Decommissioning Guidance.”

For an application to possess, use, and produce byproduct material associated with a fusion machine submitted to the NRC, the proposed rule would require the applicant under § 30.32(k)(2) to submit a summary of the radiation safety aspects of the written operating and emergency procedures. Onsite emergency procedures are needed to handle events ranging from a minor spill to a larger incident that could require intervention by outside emergency response personnel. The NRC is issuing draft guidance, Volume 22 of NUREG-1556, “Consolidated Guidance About Materials Licenses: Program-Specific Guidance About Possession Licenses for Fusion Machines,” for public comment with this proposed rule that includes guidance on developing emergency procedures for fusion machines. This draft guidance is similar to the emergency procedure guidance available in other volumes of NUREG-1556 for similar types of 10 CFR part 30 licenses. This draft guidance describes what an applicant should consider regarding response capabilities for protecting onsite personnel, as well as coordination with fire, medical, and local law enforcement agencies, as needed, for an incident at a fusion machine facility.

Potential unsealed sources of radioactive material for fusion machines include tritium for fuel and materials made radioactive by exposure to neutrons from the fusion reactions (activated materials). Activated materials may contribute to offsite doses during an accidental offsite release of radioactive material.

In accordance with the requirements of § 30.32(i), each application to possess radioactive materials in unsealed form in excess of quantities in § 30.72, “Schedule C—Quantities of radioactive materials requiring consideration of the need for an emergency plan for responding to a release,” must contain either an evaluation showing that the maximum dose to a person offsite due to a release of radioactive materials would not exceed 1 rem (10 mSv) effective dose equivalent or 5 rem (50 mSv) to the thyroid, or the application must contain an emergency plan for responding to the release of radioactive material. Draft Volume 22 of NUREG-1556 includes program-specific guidance for how applicants to possess, use, and produce byproduct material associated with a fusion machine can meet the requirements for the dose evaluation to demonstrate that an offsite emergency plan is not needed, and guidance for applicants for the contents of an emergency plan when one may be needed.

Under the proposed § 51.60(b)(1)(viii) the applicant would be required to include an environmental report unless a categorical exclusion applies. Requiring an applicant to develop an environmental report would enable the NRC to fully assess the environmental impacts of these novel and evolving fusion machine designs.

The NRC would review the environmental report with each application pursuant to the regulation in 10 CFR part 51. The NRC can prepare an environmental assessment (EA) under § 51.21 if the NRC expects the findings to not be significant and could reach a finding of no significant impact (FONSI). If an EA cannot reach a FONSI, an environmental impact statement (EIS) under § 51.20 would be prepared. An EIS would not be prepared by default, as is done in other portions of the NRC's regulatory process, but only if the circumstances warrant or the Commission so directs. 21

Although 10 CFR part 51 is not required as a matter of compatibility for Agreement States, several Agreement States have State environmental requirements that are similar to the requirements in the National Environmental Policy Act (NEPA). A fusion machine licensed in an Agreement State would be required to comply with the State's applicable environmental requirements.

An applicant for a license to possess, use, and produce byproduct material associated with a fusion machine may apply the guidance in NUREG-1748, “Environmental Review Guidance for Licensing Actions Associated with NMSS Programs,” in preparing their environmental-related submittals to the NRC whether to support an EIS, EA, or a categorical exclusion. Under § 51.40, a prospective applicant to possess, use, and produce byproduct material associated with a fusion machine is encouraged to confer with the NRC staff to discuss the guidance in NUREG-1748 as early as possible in its planning process before submitting environmental information or filing an environmental report.

This rule does not propose any changes to export controls related to fusion machines because a comprehensive export control framework for fusion machines currently exists, and this framework is consistent with international policy, obligations, and commitments, as well as U.S. law and regulations. Different U.S. Government departments and agencies have export control jurisdiction over nuclear-related technology, equipment, and materials depending on the commodity to be exported. Generally, the NRC controls the export of equipment, components, and material that require the application of safeguards by the International Atomic Energy Agency (IAEA). Nuclear-related items that do not require IAEA safeguards are generally controlled by the Department of Commerce (DOC). Since fusion machines do not use or produce nuclear material, they do not require the application of IAEA safeguards. Accordingly, the DOC, rather than the NRC, currently controls the export of fusion machines. There is precedent for DOC export control over fusion machines as well. As a participant in the International Thermonuclear Experimental Reactor (ITER) fusion project in France, the United States has already exported fusion equipment and components to the ITER facility under DOC export authority.

This export control framework is also consistent with international frameworks and commitments. As a member of the Nuclear Suppliers Group (NSG), the United States has made a commitment to implement the NSG's export control guidelines. Part 1 of the NSG Guidelines (INFCIRC/254/Part 1) contains a list of items that should be controlled for export because they would require IAEA safeguards, and it explicitly excludes “fusion reactors” from the scope of control. The United States also has adopted the “Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards” (INFCIRC/540 (Corrected)), known as the Additional Protocol (AP). Annex II of the AP contains a list of equipment and non-nuclear material that must be reported when exported or imported. This list likewise excludes fusion machines from its scope, since they would not be subject to IAEA safeguards.

The NRC's export control authority is not limited by the NSG Guidelines or the AP. If the NRC were to exert export control over fusion machines, its authority would stem from section 109b of the AEA. However, because section 109b requires that IAEA safeguards be applied to the exported item, exerting NRC export control authority over fusion machines under section 109b would not be consistent with the established international export control and IAEA safeguards framework.

Consideration was also given to export control of non-nuclear materials that could be used or produced by fusion machines. Tritium, which could have end uses related to nuclear weaponization, could reasonably be used and produced in significant quantities by a fusion machine. While tritium is not subject to IAEA safeguards, the NRC controls tritium and other byproduct material for export under its AEA section 82 authority rather than its AEA section 109b authority. Further, the DOC controls export of lithium-6 as well as lithium target assemblies, which could be used to produce tritium. The DOC also controls export of tritium production, recovery, extraction, and handling equipment. Additionally, export of deuterium for nuclear end use is controlled by the NRC, and deuterium for non-nuclear end use is controlled by DOC. In the event that the neutrons produced from a fusion machine are used to irradiate a subcritical assembly or blanket of nuclear material, then such use or production of nuclear material would automatically trigger IAEA safeguards, and the NRC would then control such nuclear material for export.

In summary, the U.S. Government's existing, comprehensive export control framework for fusion machines is consistent with, and based upon, international export control frameworks. If the United States, in conjunction with the international export control community, as well as the IAEA, determine that fusion machines may warrant additional export controls and safeguards, then the U.S. Government can evaluate and adjust its national framework at that time, including whether the NRC should exert export authority over fusion machines.

In accordance with § 20.1801 and § 20.1802, licensees must ensure the security and accountability of licensed material. Therefore, all byproduct material that is used, produced, and stored as part of fusion machine activities must be protected. In addition to the security requirements in 10 CFR part 20, 10 CFR part 37 requires additional security measures for specific types of byproduct material considered to be risk significant and meet the category 1 and category 2 quantity thresholds identified in appendix A to 10 CFR part 37.

Tritium used, produced, and stored as part of fusion machine activities is not considered a risk-significant radionuclide. However, there could be activation products not listed in appendix A to 10 CFR part 37 that are produced from fusion machines that require implementation of additional security measures, beyond those required by 10 CFR part 20. Currently, not enough information is available to determine the activation products that may be produced by near-term fusion machines. For radionuclides not listed in table 1 of appendix A to 10 CFR part 37, the NRC will determine on a case-by-case basis whether additional security requirements are warranted ( e.g., based on the use of structural materials that create new radionuclides of concern through activation). The NRC would address the issue through license conditions or orders.

Guidance regarding security measures that can be used to protect byproduct material that will be produced, used, and stored as part of fusion machine activities is provided in draft Volume 22 of NUREG-1556.

The NRC's regulations governing waste management requirements under 10 CFR part 20 are proposed to be amended to apply specifically to fusion machine facilities and their expected associated radioactive waste. The scope of this discussion includes aspects of 10 CFR part 20 and 10 CFR part 61 related to the handling and disposal of radioactive waste generated by fusion machines. The NRC determined that fusion machine waste is adequately addressed by the existing regulations related to land disposal of radioactive waste ( i.e., 10 CFR part 61) with a proposed change to 10 CFR part 20.

The Energy Policy Act of 2005 adopted on August 8, 2005, expanded NRC jurisdiction to include certain materials made radioactive by a particle accelerator. The NRC's 2007 final rule made conforming changes to § 20.2008(a), providing disposal requirements for byproduct material as defined in sections 11e.(3) and (4) of the AEA. Further, the definition of waste in § 61.2, which excludes material produced by an accelerator, does not prevent disposal of accelerator-produced waste with LLW. The ADVANCE Act of 2024 amended section 11e.(3) of the AEA to ensure all radioactive material generated by fusion machines is defined as byproduct material. Therefore, the NRC determined that the existing NRC regulations under 10 CFR part 61 for land disposal of radioactive waste could apply to waste generated by fusion machines.

Similarly, § 20.2008(b) states that accelerator waste can be disposed of at a Federal or State solid or hazardous waste disposal facility authorized to dispose of such material. In general, the NRC evaluates whether NRC-licensed material can be sent to a solid or hazardous waste disposal facility for disposal on a case-by-case basis under § 20.2002, “Method for obtaining approval of proposed disposal procedures.” For either disposal with LLW or disposal under § 20.2002, existing NRC regulations allow NRC-licensed, accelerator-produced material to be sent for disposal with other types of waste if additional applicable requirements are met. Those requirements may include approvals from State and other Federal agencies.

Several stakeholders have expressed concern that the § 61.55 waste classification tables may fail to address risk-significant radionuclides in fusion machine waste because those tables were based on expected waste streams in the early 1980s. The Advisory Committee on Reactor Safety (ACRS) proposed, in its letter dated October 21, 2022, that the NRC consider revising the § 61.55 waste classification tables to address radionuclides generated by fusion machines. Based on stakeholder feedback, the NRC understands that fusion machines could create significant inventories of activation products  22 that are not included in the waste classification tables ( e.g., see SECY-23-0001). However, this rule does not propose to revise those tables because sufficient information is not yet available to determine which radionuclides will drive the risk significance of fusion machine generated waste. As described by the ACRS, the activation products formed by fusion machines will depend on the structural materials used in the systems and their impurities. Because many of those materials have not yet been selected or developed, the identity, quantities, and concentrations of the potential activation products in those materials are not yet known. In a staff requirements memorandum (SRM) responding to the NRC staff's plan to revise 10 CFR part 61 (SRM-SECY-08-0147), the Commission directed the NRC staff to consider changing the waste classification tables after the completion of the integrated low-level radioactive waste disposal rulemaking for 10 CFR part 61. The NRC staff plans to consider the radionuclides in fusion machine waste during that process. In addition, the NRC is proposing a change to 10 CFR part 20 that would address issues related to the § 61.55 waste classification tables with a requirement for site-specific analyses in some circumstances, as described below.

A key safety concern associated with land disposal of waste from fusion machines is the protection of individuals who might inadvertently intrude into LLW. This protection is typically demonstrated by compliance with technical requirements that are based in part on LLW classification. Therefore, to ensure intruder protection at this time, the NRC proposes to require that licensees with novel wastes or radionuclide concentrations from fusion machines use disposal sites that have completed a site-specific intrusion assessment for such waste material. The NRC proposes to allow disposal of novel waste types without a site-specific intrusion assessment for waste with physical, chemical, and radiological characteristics that can be shown to be consistent with an appropriate waste classification description in § 61.7, “Concepts.”

Specifically, the NRC proposes to amend § 20.2008 to add new language to paragraph (a). The new text would require that fusion machine waste that would be disposed of as low-level waste under 10 CFR part 61 either be accompanied by an analysis showing the waste is manifested and labeled for disposal consistent with the description of the applicable waste class in § 61.7 or be disposed of at a disposal site that has completed a site-specific intrusion assessment. Draft NUREG-1556, Volume 22, includes guidance on waste types and radionuclide concentrations the NRC staff has previously analyzed under the waste classification descriptions in § 61.7. If a site-specific intrusion assessment will be relied on, the assessment should demonstrate the projected dose to an individual who inadvertently intrudes into the waste at the facility will not exceed 0.5 rem (5 mSv) per year. That dose limit is consistent with the dose limit used to develop the LLW classification tables in 10 CFR part 61, which the NRC selected based on safety, costs, disposal efficiency, and the potential for increased disposal of waste containing long-lived radionuclides that could increase the hazard for long time periods (see NUREG-0945).

The NRC is proposing to amend its regulations governing the reporting and recordkeeping requirements under § 30.51 to cover licensees authorized for the possession, use, and production of byproduct material associated with fusion machines by adding “production of” tritium and activation products for the necessary reports, analyses, submittals, inspection documentation, and other required documentation for a fusion machine. The draft guidance in NUREG-1556, Volume 22, provides additional discussion on accountability, including inventory, production, use, decay, and consumption of radioactive material. The draft guidance emphasizes the importance of confirming the accuracy and reliability of the facility's accounting records, particularly for the detection of any unmeasured material losses or diversion or theft of radioactive materials. Licensees are already required to have records for what they possess including what they produce and therefore it is not expected to change the record retention at other stakeholder facilities.

The NRC has developed a new draft volume under the NUREG-1556 series to address possession, use, and production of byproduct material in a fusion machine. NUREG-1556, Volume 22, “Consolidated Guidance About Materials Licenses: Program-Specific Guidance About Possession Licenses for Fusion Machines,” would provide guidance on preparing a license application for the radioactive byproduct materials associated with the use of a fusion machine. This draft guidance document also includes criteria the NRC would use in evaluating license applications for the possession, use, and production of byproduct material associated with fusion machines.

NUREG-1556, Volume 22, would provide guidance related to each of the topics an applicant should address in its materials license application. These topics would include radioactive material that will be used and produced and its purpose; information on individuals responsible for the radiation safety program; training for individuals that will handle radioactive material; description of the facilities and equipment used; and the radiation safety program. This guidance document would be applied to a wide variety of near-term fusion machine design applications and would contain information about how licensees may choose to implement their programs to meet NRC regulatory requirements. The information in this guidance document would not be intended to impose any conditions beyond those required by regulations nor will all items discussed in this guidance document apply to every applicant.

There are some unique aspects of handling radioactive materials involved in or produced by a fusion machine that are discussed in this draft guidance document. For example, there is draft guidance on training and experience for individuals who will handle radioactive material during the maintenance and repair of the fusion machine, draft guidance on security and emergency procedures, and draft guidance on facility design and type of equipment needed to store and handle large quantities and activities of radioactive materials.

On March 7, 2024, the NRC staff issued a preliminary draft of this guidance document and discussed it during a March 18, 2024, public meeting. Information on how to access the meeting summary, preliminary draft guidance document, and the draft guidance are available in the NRC's Agencywide Documents Access and Management System (ADAMS), as provided in the “Availability of Documents” section of this document.

The NRC is seeking advice and recommendations from the public on this proposed rule. We seek comment on all aspects of this proposed rule. NRC requests comment on the assumptions regarding the costs, benefits, and cost savings of this rule. NRC acknowledges that other ongoing rulemaking efforts may impact similar regulated entities and solicits comments on the cumulative regulatory burden of rules affecting these entities. We solicit comments on potential impacts, if any, on U.S. manufacturing and supply chains including the production of advanced nuclear fuel, the current commercial nuclear reactor fleet; national security, critical infrastructure for national defense, nuclear energy dominance, and American competitiveness abroad. We are particularly interested in comments and supporting rationale from the public on the following:

(1) Section 30.55(c) requires licensees who are authorized to possess tritium to report to the NRC any incident in which an attempt has been made or is believed to have been made to commit a theft or unlawful diversion of more than 10 curies of such material at any one time or more than 100 curies of such material in any one calendar year. This requirement was originally promulgated by the Atomic Energy Commission (AEC) in the early 1970s as part of a set of requirements that in the interest of national security, provide the AEC information within reasonable limits and on a current basis as to the flow of tritium into, out of, and within the country, and inventory quantities at various locations (36 FR 16593, August 24, 1971).

In addition to the reporting requirement in § 30.55(c), § 20.2201 requires reports when it becomes known to a licensee that certain quantities of tritium (and other materials listed in appendix C to 10 CFR part 20) have been lost or stolen or are otherwise missing. Under § 20.2201, licensees must immediately report an occurrence of lost, stolen, or missing tritium in aggregate quantities equal to or greater than 1 curie after it becomes known to the licensee and if it appears to the licensee that an exposure to persons in unrestricted areas could occur. Licensees are also required to report if more than 10 millicuries of tritium are still missing within 30 days after an occurrence of lost, stolen, or missing quantities of tritium greater than 10 millicuries becomes known to the licensee. These reporting requirements apply only when a licensee believes or has knowledge that a theft or attempted theft has occurred or that tritium is missing.

Based on information provided by fusion industry stakeholders, including fusion machine developers and the DOE, the quantities of tritium used and produced at near-term commercial fusion machines could exceed 100 grams, which is approximately 1 million curies. Accurately accounting for the location of all tritium in a fusion machine will be difficult due to various factors including absorption of tritium into components, tritium produced in the breeder blankets, losses of tritium during the fusion reaction, and the difficulty in measuring tritium inside the components of a fusion machine.

The NRC recognizes that due to the physical and chemical properties of tritium, there can be difficulties in tracking its location within a fusion machine, and licensees may not be able to rely on tritium inventory monitoring to discover all losses. One Agreement State has issued an exemption to its licensee regarding the State's equivalent of § 20.2201 to raise the tritium threshold due to a licensee's inability to account for tritium at the millicurie and low curie levels.

Specific request for comment: Should the NRC revise § 30.55(c) and § 20.2201 to change the reporting threshold to a higher activity for tritium? If so, what should be the new reporting threshold for tritium? Please provide the basis for your response.

(2) The NRC staff proposes to amend paragraph (a) of 10 CFR 20.2008, “Disposal of certain byproduct material,” to require either (1) an analysis showing that the waste is manifested and labeled for disposal consistent with the description of the applicable waste classification in § 61.7, “Concepts,” based on the physical, chemical, and radiological characteristics of the waste, or (2) that the waste be disposed of in a facility that has completed a site-specific intrusion assessment. The NRC's view is these revisions would allow safe disposal of novel waste types from fusion machines.

Specific request for comment: The NRC is particularly interested in feedback on this proposed approach to amend 10 CFR 20.2008 to provide options for safe waste disposal. Does this approach comprehensively address potential waste generated by fusion machines? Are there other approaches the NRC should consider? If yes, please provide the basis for your response.

(3) In addition, the NRC is interested in the need to develop more specific guidance to address disposal of large volumes of low-activity fusion waste.

Specific request for comment: What would the benefits be of expanding existing guidance for alternative disposal under 10 CFR 20.2002, “Method for obtaining approval of proposed disposal procedures,” to specifically address fusion machine waste? Should the NRC develop guidance focused on reusing or recycling low-activity fusion machine waste? Are there alternative approaches the NRC should consider? Please provide the basis for your response.

(4) This rule does not propose any changes to export controls related to fusion machines because a comprehensive export control framework for fusion machines currently exists, and this framework is consistent with international policy, obligations, and commitments, as well as U.S. law and regulations. However, the NRC is interested in ensuring that the proposed rule provides clarity on the export controls.

Specific request for comment: Should the NRC propose export controls related to fusion machines? Please provide the basis for your response.

(5) The NRC is interested in ensuring that the proposed rule provides clarity on the licensing process for both the applicants and Agreement States.

Specific request for comment: Does the proposed rule provide adequate clarity on the licensing process, including designated Compatibility Categories, and if not, where is additional clarity needed? Please provide the basis for your response.

(6) Lastly, the NRC is interested in the unintended consequences or impacts of changes to the “particle accelerator” definition. Some Agreement States have definitions for particle accelerators that are different from the NRC definition. Agreement States that have licensed existing fusion machines have done so under their particle accelerator regulatory frameworks. The NRC is also interested in the unintended consequences or impacts of the proposed compatibility designations for “byproduct material” and “fusion machine” definitions. The NRC is proposing a compatibility designation of “B” for the “fusion machine” definition and paragraph 3(ii)(A) of the “byproduct material” definition. Currently, the definition for “byproduct material” and “particle accelerator” are compatibility designation health and safety (H&S).

Specific request for comment: Are there unintended consequences or impacts not considered by the NRC by including fusion machines in the definition of “particle accelerator”? Are there unintended consequences or impacts not considered by the NRC with respect to the proposed compatibility designations of the “fusion machine” and paragraph 3(ii)(A) of the “byproduct material” definitions? Please provide a basis for your response.

The following paragraphs describe the specific changes proposed by this rulemaking.

This proposed rule adds a definition for Fusion machine. This proposed rule also revises the definitions for Byproduct material and Particle accelerator.

In § 20.1009, this proposed rule revises paragraph (b) to add § 20.2008 to the list of approved information collection requirements contained in 10 CFR part 20.

This proposed rule adds new requirements to paragraph (a) for disposal of certain fusion machine waste under the regulations of part 61 of this chapter.

This proposed rule adds a definition for Fusion machine. This proposed rule also revises the definitions for Byproduct material and Particle accelerator.

This proposed rule adds new paragraph (k), which describes required content specific to a license application for a possession, use, and production of byproduct material associated with a fusion machine. This new section is not intended to address the licensing of a standard fusion machine design or the approval of mass production of fusion machines.

This proposed rule adds new paragraph (a)(6) for the issuance of a license to possess, use, and produce byproduct material associated with a fusion machine when all requirements for the license in 10 CFR part 30 are met.

This proposed rule amends paragraphs (a) and (a)(1) to include the production of byproduct material.

This proposed rule amends paragraph (a) to include the production of byproduct material.

This proposed rule revises the definition for Byproduct material.

This proposed rule revises the definition for Byproduct material.

This proposed rule adds new paragraph (b)(1)(viii) to require that an environmental report be prepared for the construction and operation of a fusion machine.

This proposed rule revises the definition for Byproduct material.

This proposed rule revises the definitions for Byproduct material and Particle accelerator.

This proposed rule revises the definition for Byproduct material.

This proposed rule revises the definition for Byproduct material.

This proposed rule revises the definition for Byproduct material.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities.

The structure of the industries that would form to use the emerging fusions machine technologies is uncertain. The most significant potential sector that could use fusion machines is the electric power sector. Among electric utilities that might operate a fusion machine, 90 percent have revenues between $7.8 million and $1.2 billion (EIA, 2022). Thus, for 95 percent of electric utilities, the cost impact of the proposed rule would be a benefit of less than 0.6 percent. Note that larger utilities would be more likely to have an economy of scale that could benefit from fusion machines in their power supply mix. An electric utility that might be classified as a small entity would be less likely to be able to afford to invest in fusion technology. Therefore, the NRC estimates that the proposed rulemaking will not have a significant economic impact on a substantial number of small entities.

As for any entity building or operating fusion machines, the proposed rule reduces the regulatory impact of obtaining the materials licenses required for fusion machines, for small entities also, by clarifying the application of existing requirements to fusion machines. This clarity might be more useful to small entities to the extent that the smaller organizations have fewer resources available for interpreting less clear regulatory language.

NRC requests all comments from potentially impacted small entities. Any small entity subject to this regulation that determines, because of its size, it is likely to bear a disproportionate adverse economic impact should notify the Commission of this opinion in a comment that indicates—

(a) The licensee's size and how the proposed regulation would impose a significant economic burden on the licensee as compared to the economic burden on a larger licensee;

(b) How the proposed regulations could be modified to take into account the licensee's differing needs or capabilities;

(c) The benefits that would accrue or the detriments that would be avoided if the proposed regulations were modified as suggested by the licensee;

(d) How the proposed regulation, as modified, would more closely equalize the impact of NRC regulations or create more equal access to the benefits of Federal programs as opposed to providing special advantages to any individual or group; and

(e) How the proposed regulation, as modified, would still adequately protect public health and safety.

Comments should be submitted as indicated under the ADDRESSES caption of this document.

The NRC has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the NRC. The NRC requests public comment on all aspects of the draft regulatory analysis. The regulatory analysis is available as indicated in the “Availability of Documents” section of this document. Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES caption of this document.

The NRC seeks to minimize any potential negative consequences resulting from the cumulative effects of regulation (CER). The CER refers to the challenges that licensees, or other impacted entities such as State partners, may face while implementing new regulatory positions, programs, or requirements ( e.g., rules, generic letters, backfits, inspections). The CER is an organizational effectiveness challenge that may result from a licensee or impacted entity implementing a number of complex regulatory actions, programs, or requirements with limited available resources.

The NRC is following its CER process by engaging with external stakeholders throughout this proposed rule and related regulatory activities. Opportunity for public comment is provided to the public at this proposed rule stage.

To better understand the potential CER implications incurred due to this proposed rule, the NRC is requesting comment on the following questions. Responding to these questions is voluntary, and the NRC will respond to any comments received in the final rule.

1. In light of any current or projected CER challenges, would the proposed effective date of 30 days after the date of publication of a final rule provide sufficient time to implement the new, proposed requirements? Please provide a rationale for your response.

2. If CER challenges currently exist or are expected, what should be done to address them? For example, if more time is required for implementation of the new requirements, what period of time is sufficient? Please provide a rationale for your response.

3. What other (NRC or other agency) regulatory actions ( e.g., orders, generic communications, license amendment requests, inspection findings of a generic nature) influence the implementation of this proposed rule's requirements? Please provide a rationale for your response.

4. What are the unintended consequences, and how should they be addressed? Does this proposed rule create conditions that would be contrary to this proposed rule's purpose and objectives? Please provide a rationale for your response.

5. Please comment on the NRC's cost and benefit estimates in the regulatory analysis that supports this proposed rule.

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

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment, and an EIS is not required. The implementation of the proposed rule requirements would not have a significant impact on the environment. The proposed rule would either have requirements that are administrative in application or matters of procedure. The proposed rule would provide clarity on licensing and regulating the possession, use, and production of byproduct material associated with fusion machines but would not materially change any requirements and would not result in any new or different environmental impacts.

The determination of this draft EA is that there would be no significant effect on the quality of the human environment from this action. Public stakeholders should note, however, that comments on any aspect of this draft EA may be submitted to the NRC as indicated under the ADDRESSES caption. The draft EA is available as indicated under the “Availability of Documents” section of this document.

This proposed rule contains new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). This proposed rule has been submitted to the Office of Management and Budget for review and approval of the information collections.

Type of submission: Revision.

The title of the information collection: Regulatory Framework for Fusion Machines.

The form number if applicable: NRC Form 313.

How often the collection is required or requested: Once per event, on occasion, and annually.

Who will be required or asked to respond: Applicants for a license to possess, use, and produce byproduct material associated with a fusion machine, licensees that possess, use, and produce byproduct material associated with a fusion machine, and low-level waste disposal facility licensees.

An estimate of the number of annual responses: 3 (1 reporting response + 2 recordkeepers).

The estimated number of annual respondents: 3.

An estimate of the total number of hours needed annually to comply with the information collection requirement or request: 607 (600 reporting + 7 recordkeeping).

Abstract: The NRC is proposing to amend its regulations to establish a regulatory framework for the possession, use, and production of byproduct material associated with fusion machines. The proposed rule includes definitions to establish the scope of regulatory requirements for fusion machines and technology-inclusive, content-of-application requirements supportive of a performance-based approach to regulation. The proposed rule includes specific requirements for submitting an application for a license to possess, use, and produce byproduct material associated with a fusion machine. Such applicants may file an application using NRC Form 313, “Applications for Materials License.” The proposed rule would add a requirement for an applicant to submit an environmental report for the construction and operation of a fusion machine unless a categorical exclusion applies. The proposed rule would require applicants or licensees to maintain records of production of tritium and activation products associated with fusion machines. The records and recordkeeping requirements would allow the NRC to determine if the applicant has training, experience, equipment, facilities, and procedures that provide reasonable assurance of adequate protection of public health and safety and the environment. The records and recordkeeping requirements associated with receipt, transfer, production, and disposal of byproduct material would be reviewed by the NRC to determine that licensees have confined their possession and use of byproduct material to the locations, purposes, receipt, and quantities authorized in their licenses.

The proposed rule would require that radioactive waste resulting from fusion machines must either be accompanied by an analysis showing the waste is manifested and labeled for disposal consistent with the description of the applicable waste class in [10 CFR] 61.7 of this chapter, based on the physical, chemical, and radiological characteristics of the waste, or be disposed of in a disposal facility that has completed a site-specific intrusion assessment that demonstrates the projected dose to an individual who inadvertently intrudes into the waste at the facility will not exceed 0.5 rem (5 (mSv)) per year. The information requested would allow the NRC to determine whether the proposed activities can be conducted safely without harming the common defense and security or constituting an unreasonable risk to public health and safety and the environment. The NRC is proposing to amend its regulations to establish a regulatory framework for licensing the possession, use, and production of byproduct material associated with fusion machines. The NRC is also proposing new guidance for the implementation of this proposed rule, entitled NUREG-1556, Volume 22, “Consolidated Guidance About Materials Licenses: Program-Specific Guidance About Fusion Machine Licenses.”

The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility? Please explain your response.

2. Is the estimate of the burden of the proposed information collection accurate? Please explain your response.

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected? Please explain your response.

4. How can the burden of the proposed information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?

A copy of the Office of Management and Budget (OMB) clearance package and proposed rule are available in the “Availability of Documents” section of this document or may be viewed free of charge by contacting the NRC's Public Document Room reference staff at 1-800-397-4209, at 301-415-4737, or by email to PDR.Resource@nrc.gov. You may obtain information and comment on submissions related to the OMB clearance package by searching on https://www.regulations.gov under Docket ID NRC-2023-0071.

You may submit comments on any aspect of these proposed information collection(s), including suggestions for reducing the burden and on the above issues, by the following methods:

• Federal rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0071.

• Mail comments to: FOIA, Library, and Information Collections Branch, Office of the Chief Information Officer, Mail Stop: T-6 A10M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 or to the OMB reviewer at OMB Office of Information and Regulatory Affairs (3150-0014, 3150-0017, 3150-0021, and 3150-0120), Attention: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503.

Submit comments by March 30, 2026. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

The Office of Information and Regulatory Affairs (OIRA) has determined that this proposed rule is a significant regulatory action under E.O. 12866, “Regulatory Planning and Review.” Accordingly, NRC submitted this proposed rule to OIRA for review. NRC is required to conduct an economic analysis in accordance with section 6(a)(3)(B) of E.O. 12866. More can be found in Section VII, of this document, “Regulatory Analysis.”

NRC has examined this proposed rule and has determined that it is consistent with the policies and directives outlined in E.O. 14154, “Unleashing American Energy,” E.O. 14192, “Unleashing Prosperity Through Deregulation,” E.O. 14215 “Ensuring Accountability for All Agencies,” and E.O. 14300, “Ordering the Reform of the Nuclear Regulatory Commission.” This proposed rule is tentatively considered an E.O. 14192 deregulatory action. Details on the estimated costs of this proposed rule can be found in Section VII, of this document, “Regulatory Analysis.”

Executive Order 14270, “Zero-Based Regulatory Budgeting to Unleash American Energy,” requires the NRC to insert a conditional sunset date into all new or amended NRC regulations provided the regulations are (1) promulgated under the Atomic Energy Act of 1954, as amended (AEA), the Energy Reorganization Act of 1974, as amended (ERA), and the Nuclear Waste Policy Act of 1982, as amended (NWPA); (2) not statutorily required; and (3) not part of the NRC's permitting regime. The NRC determined that the regulatory changes proposed in this rule are for augmenting the existing byproduct material framework to be inclusive of fusion machines. Therefore, the NRC views this rulemaking to be outside the scope of Executive Order 14270 and did not insert conditional sunset dates for the regulatory changes in this proposed rule.

Thirty eight of the 39 Agreement States  23 have assumed authority for 11e.(3) byproduct material. Consequently, these 38 Agreement States would have oversight of byproduct material associated with fusion machines licensed in their jurisdiction.

The NRC has coordinated with the Agreement States throughout the development of this proposed rule. Agreement State representatives served on the rulemaking working group that developed this proposed rule and guidance and on the Standing Committee on Compatibility for the review of the rulemaking and the compatibility determinations. In addition, the NRC held a total of six government-to-government meetings with Agreement States during the development of this proposed rule.

The NRC also provided a preliminary draft of this proposed rule and guidance to the Agreement States for formal review. The NRC held one of the government-to-government meetings with Agreement States during this formal review. The NRC received comments on the preliminary draft of the proposed rule from four Agreement States (New Jersey, New York, Tennessee, and Wisconsin) and the Organization of Agreement States Board. Regarding the draft guidance, the NRC received comments from four Agreement States (New Jersey, New York, Tennessee, and Wisconsin) and the Organization of Agreement States Board. The NRC considered these comments in the development of the proposed rule, which covered topics such as definitions, emergency plan, security, waste management, and other more general topics.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register (82 FR 48535; October 18, 2017), NRC program elements (including regulations) required for adequacy and having a particular health and safety component are those that are designated as Categories A, B, C, D, NRC, and H&S: and those required for compatibility include those regulations and other legally binding requirements designated as Compatibility Categories A, B, C, and D. Compatibility Category A are those program elements that include basic radiation protection standards and scientific terms and definitions that are necessary to understand radiation protection concepts. An Agreement State should adopt Category A program elements in an essentially identical manner in order to provide uniformity in the regulation of agreement material on a nationwide basis. Compatibility Category B are those program elements that apply to activities that have direct and significant effects in multiple jurisdictions. Compatibility Category B pertains to a limited number of program elements that cross jurisdictional boundaries and should be addressed to ensure uniformity of regulation on a nationwide basis. The Agreement State program element should be essentially identical to that of NRC. Compatibility Category C are those program elements that do not meet the criteria of Category A or B, but the essential objectives of which an Agreement State should adopt to avoid conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in the regulation of agreement material on a national basis. An Agreement State should adopt the essential objectives of the Category C program elements. Compatibility Category D are those program elements that do not meet any of the criteria of Category A, B, or C, above, and, thus, do not need to be adopted by Agreement States for purposes of compatibility. Compatibility Category NRC are those program elements that address areas of regulation that cannot be relinquished to the Agreement States under the AEA, or provisions of 10 CFR. These program elements should not be adopted by the Agreement States. Category H&S program elements are not required for purposes of compatibility; however, they do have particular health and safety significance. The Agreement State should adopt the essential objectives of such program elements to maintain an adequate program.

This proposed rule is a matter of compatibility between the NRC and the Agreement States. The proposed compatibility categories are designated in the following table:

The Agreement States have licensed fusion research and development facilities operated by academic institutions and commercial companies using their existing authorities. Since the term “fusion machine” is a new definition, staff is proposing that the definition of fusion machine be Compatibility Category B to ensure consistency across the National Materials Programs. Accordingly, the staff is proposing that paragraph 3(ii)(A) of the definition of “Byproduct material,” which refers to “fusion machine,” is also Compatibility Category B. The new section on application for specific licenses is proposed to be Compatibility Category C, based on the need for Agreement States to have the flexibility to include other components that generate non-ionizing radiation or other machine-produced radiation which the Agreement States may already regulate and would be integral parts of a fusion machine.

With the exception of paragraph 3(ii)(A) of the definition of “Byproduct material,” the amended definitions of byproduct material and particle accelerator would continue to be Category H&S. The definition of byproduct material was expanded by the Energy Policy Act of 2005 to incorporate certain discrete sources of radium-226 and certain accelerator-produced radioactive material. NRC amended its regulations in 2007 (72 FR 55864, October 1, 2007) to revise the definition of byproduct material and add the new definitions of discrete source and particle accelerator. All three of these definitions were designed as Category H&S. Particle accelerator was designated as H&S to provide the Agreement States flexibility to meet the essential objectives of the definition since several Agreement States already had regulations in place for particle accelerators and the naturally occurring and accelerator-produced radioactive material (NARM) they produced. Byproduct material was also designated as H&S to provide the Agreement States flexibility to meet the essential objectives of the definition since several Agreement States already incorporated NARM into the statutory definition or radioactive material.

The NRC is issuing new draft guidance, NUREG-1556, Volume 22, “Consolidated Guidance About Materials Licenses: Program-Specific Guidance About Fusion Machine Licenses,” for the implementation of the proposed requirements in this rulemaking for comment. This draft guidance is available in ADAMS under Accession No. ML24092A377. You may obtain information and submit comments related to the draft guidance by searching on https://www.regulations.gov under Docket ID NRC-2023-0071.

Draft NUREG-1556, Volume 22, provides guidance to applicants and licensees for the possession, use, and production of byproduct material associated with fusion machines concerning the contents of a licensing application necessary to comply with the licensing requirements under part 30 of this chapter. You may submit comments on this draft regulatory guidance by the methods outlined in the ADDRESSES section of this document.

The NRC will conduct at least one public meeting on this proposed rule for the purpose of describing this proposed rule to the public and answering questions from the public on this proposed rule.

The NRC will publish a notice of the location, time, and agenda of the meeting(s) in the Federal Register , on Regulations.gov, and on the NRC's public meeting website within at least 10 calendar days before the meeting. Stakeholders should monitor the NRC's public meeting website for information about the public meeting at https://www.nrc.gov/public-involve/public-meetings/index.cfm.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2023-0071. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC-2023-0071); (2) click the “Subscribe” button; and (3) enter an email address and click on the “Subscribe” button.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is proposing to amend 10 CFR parts 20, 30, 37, 50, 51, 72, 110, 150, 170, and 171.

The revisions and addition read as follows:

The revision and addition read as follows:

On January 21, 2026, DOE published a notice of proposed rulemaking (“NOPR”) that would amend its regulations for worker safety and health contained in 10 CFR part 851 (Worker Safety and Health Program). The proposal sought to revise these regulations to enable DOE to expedite the review, approval, and deployment of advanced reactors under DOE's jurisdiction, including qualified test reactors in DOE's reactor pilot program. These actions would be made consistent with Executive Order 14301, Reforming Nuclear Reactor Testing at the Department of Energy, which was issued on May 23, 2025. (90 FR 22591) The NOPR sought comment on the proposal by February 20, 2026

By letter dated February 4, 2026, DOE received a request from the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) seeking a 45-day extension to the comment period. The AFL-CIO asserted that the potential effects of DOE's proposed rulemaking are complex in nature and that additional time is needed for careful review and coordination across the organization's various affiliates to establish thorough and informed comments. 1

DOE has reviewed the request and considered the benefit of allowing interested parties additional time to submit comments regarding the January 2026 NOPR. Accordingly, while DOE is confident that the AFL-CIO and other commenters had sufficient time to provide complete comments by February 20th, DOE is reopening the comment period until March 23, 2026.

This document of the Department of Energy was signed on February 24, 2026, by Chris Wright, 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 .

It is the Board's policy not to encourage or compel Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk. The decision regarding whether or not to make a loan or to open, close, or maintain an account, provide any other financial product or service, or modify the terms of any financial product or service rests with the banking organization, acting in accordance with applicable law.

In addition to the Board's policy, the Board announced in June 2025 that reputation risk will no longer be a component of examination programs in its supervision of banks, and that the Board will train examiners to help ensure this change is implemented consistently across Board-supervised banking organizations. 1 The Board is eliminating references to reputation and reputation risk in its supervisory materials, including examination manuals. 2 The Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), and the National Credit Union Administration (NCUA) also have announced their intention to eliminate references to reputation risk in their examination manuals and other supervisory materials. 3 These agencies recently requested comment on proposals to codify the removal of reputation risk from their supervisory programs. 4

The Board has defined reputation risk as “the potential that negative publicity regarding an institution's business practices, whether true or not, will cause a decline in the customer base, costly litigation, or revenue reductions.”  5 Reputation risk increased in prevalence as a supervisory concept in the 1990s and thereafter; the concept generally was not used in the Board's supervisory programs before that time. 6 In 1995, the Board published guidance that established guidelines for the rating of risk management at state member banks and bank holding companies. 7 The guidelines listed six risk channels, one of which was reputation risk. 8 In subsequent years, reputation risk was included in other supervisory materials. For example, in the case of the Board, this included guidance related to risk-focused safety and soundness examinations and inspections and consumer compliance risk in bank holding companies. 9 Over time, concerns have arisen that reputation risk and other similar supervisory tools have been misused. A recent Executive Order raised concerns regarding debanking based on political or religious beliefs or lawful business activities. 10

The Board is empowered to conduct supervision of various types of banking organizations. 11 It is also empowered to make rules “to enable it to administer and carry out” its supervisory programs. 12 Pursuant to such authority, the Board is proposing to codify the removal of reputation risk from the Board's supervisory programs and to prohibit the Board from encouraging or compelling Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk.

The proposal aims to achieve several objectives. First, by establishing a binding regulation, the Board would further ensure that the actions and decisions of supervisory staff are not based on reputation risk and align with the Board's broader policy. Furthermore, the proposal would reflect experience that reputation risk can be difficult to quantify and communicate, making it challenging for firms to remedy identified concerns. Therefore, this proposal would increase supervisory clarity through the codification of the removal of reputation risk and would facilitate greater precision in supervisory decision making. It also would support the Board's supervisory focus on core financial risks. Procedurally, issuing this proposal for notice and comment allows external stakeholders to provide their views on this issue.

The proposal would not inhibit the efficacy of the Board's supervision and regulation function moving forward. Safety and soundness concerns that motivated the Board's prior inclusion of reputation risk in supervision are adequately addressed through other existing risk types. The Board continues to supervise banking organizations' management of these other risk channels, such as credit risk, market risk, liquidity risk, operational risk, and legal risk, 13 with an emphasis on core, material financial risks. Additionally, the proposal would not alter the Board's expectation that Board-supervised banking organizations maintain strong risk management to promote safety and soundness and compliance with applicable laws and regulations. 14

Furthermore, the proposal is not intended to impact the ability of banking organizations to manage their businesses and make independent decisions regarding their customers. The decision regarding whether or not to make a loan or to open, close, or maintain an account, provide any other financial product or service, or modify the terms of any financial product or service rests with the banking organization, acting in accordance with applicable law.

This proposal would codify the removal of reputation risk from the Board's supervisory programs. The proposal also would explicitly prohibit the Board from encouraging or compelling Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk.

The definition of “banking organization,” for purposes of the proposal, would be a bank holding company, as it is defined at 12 CFR 225.2(c); a savings and loan holding company, as it is defined at 12 CFR 238.2(m); a state member bank, as it is defined at 12 CFR 208.2(g); and the combined U.S. operations of a foreign banking organization, as it is defined at 12 CFR 252.2 and 12 CFR 211.21(o). The combined U.S. operations of a foreign banking organization include the U.S. branches and agencies of the foreign banking organization and all U.S. subsidiaries of the foreign banking organization (such as a U.S. intermediate holding company). “Banking organization” would also include the direct and indirect subsidiaries of a bank holding company, savings and loan holding company, and state member bank.

The proposed rule would state that the Board shall not use reputation risk as a component of its examination programs or in materials used for the supervision of banking organizations. Materials used for the supervision of banking organizations include examination manuals, guidance documents, and examiner training materials. The definition of “reputation risk” would be the potential that negative publicity regarding a banking organization's business practices, whether true or not, will cause a decline in the banking organization's customer base, costly litigation, or revenue reductions, which is the definition previously used by the Board in SR 95-51.

The proposal would also include a general statement of the Board's policy. Specifically, it would state that the Board shall not encourage or compel banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk. Additionally, the statement would indicate that the decision regarding whether or not to make a loan or to open, close, or maintain an account, provide any other financial product or service, or modify the terms of any financial product or service rests with the banking organization, acting in accordance with applicable law. The proposal would not prohibit criticism, supervisory feedback, or other actions to address other risk channels related to safety and soundness or compliance with applicable laws and regulations.

Finally, the proposal would make clear that the Board's authority to implement, administer, and enforce the provisions of applicable law would not be restricted. Applicable law would include, but not be limited to, the Bank Secrecy Act; sanctions programs administered by the Office of Foreign Assets Control; the Federal Reserve Act; the Bank Holding Company Act of 1956; the Home Owners' Loan Act; the Change in Bank Control Act; the International Banking Act of 1978; the Bank Merger Act; the International Lending Supervision Act of 1983; the Federal Deposit Insurance Act; the Equal Credit Opportunity Act; and the Fair Housing Act. The proposed rule would state that the Board would implement, administer, and enforce applicable law consistent with the proposal.

If finalized, the Board would provide training on all aspects of this proposal for supervisory staff to ensure compliance with the proposal. Consistent with standard practice, the Board also would ensure that there are internal management controls to oversee compliance with the proposal.

Question 1: What other references to reputation risk in the Board's regulations or its supervisory programs should be addressed by the proposal? How should the Board address those references?

Question 2: Is the proposal's definition of “reputation risk” appropriate; why or why not? What are the advantages and disadvantages of the definition? How should the definition be broadened or narrowed? What different definition of reputation risk should the Board consider?

Question 3: What changes to the proposal's definition of “banking organization” should the Board consider? Should the Board consider including additional or fewer categories of entities? For example, the Board intends to include “permitted payment stablecoin issuers,” as defined in 12 U.S.C. 5901(23), as a banking organization after the Board completes rulemakings required under 12 U.S.C. 5901 et seq. What are other considerations the Board should consider regarding permitted payment stablecoin issuers in the context of the rulemakings required under 12 U.S.C. 5901 et seq.?

Question 4: Is the proposal's regulatory text that would codify a prohibition on the use of reputation risk clear; why or why not? How could “examination programs” or “materials used for the supervision of banking organizations” be defined further?

Question 5: What, if any, additional provisions of applicable law should the proposal's rule of construction include in its list? Which, if any, provisions of applicable law should be removed? Why would any such addition or removal be appropriate?

Question 6: What, if any, unintended consequences for the Board or Board-supervised banking organizations may result from the proposal, including codifying the removal of reputation risk from the Board's supervisory programs and materials?

Question 7: What, if any, alternatives are there to the proposal that would better achieve the Board's objectives?

Question 8: What, if any, references to concepts related to reputation risk should the Board consider revising in its supervisory materials or regulations?

Question 9: Please describe any costs, benefits, or other effects of the proposal that the Board has not identified.

The Federal Reserve supervises bank holding companies, savings and loan holding companies, state member banks, and foreign banking organizations (FBOs) operating in the United States. These entities vary in asset size and complexity. 15 The previous supervisory framework incorporated reputation risk as one component of a broader risk-assessment framework applied across these entities.

As previously mentioned, the Board announced in June 2025 that reputation risk will no longer be a component of examination programs in its supervision of banks. Since then, the Board has not used reputation risk in its examination programs, and reputation risk is being removed from supervisory materials. As a result, the proposal's benefits and costs since June 2025 are expected to be de minimis, as there has been no further change in policy since that time. The analysis below evaluates the benefits and costs of the proposed rule if the Board had not announced the removal of reputation risk from the Board's supervisory programs in June 2025. Since the June 2025 announcement, some of these benefits and costs may have been realized.

Prior to the Board's June 2025 announcement, the word “reputation” had appeared in a portion of total Matters Requiring Attention (MRAs) and Matters Requiring Immediate Attention (MRIAs) issued by the Federal Reserve System. When broken down by institution type, the word “reputation” was mentioned in approximately 4.6 percent of MRAs/MRIAs for bank holding companies and savings and loan holding companies, 1.5 percent for state member banks, and 2.5 percent for FBOs operating in the United States over the past ten years. To assess historical impacts, the Board conducted an analysis using confidential examination data from a ten-year period through March 2025. The Board identified prior instances by searching MRAs and MRIAs for the word “reputation,” then calculated the percentage of examinations containing at least one such supervisory finding for each year. The Board then summed each yearly percentage for each institution type, which resulted in a total percentage over the ten-year period. These percentages include MRAs and MRIAs in which reputation risk was only one of multiple risk concepts or supervisory issues raised. This historical data helps to demonstrate the extent to which reputation risk considerations may have influenced supervisory outcomes under the previous framework.

The prohibition on using reputation risk in supervision is expected to generate several economic benefits. First, Board-supervised banking organizations would likely experience reduced regulatory burden through streamlined supervisory processes. This effect becomes particularly significant when considering the cumulative impact across the portfolio of Board-supervised banking organizations. The proposal would have notable effects on small institutions. These institutions would likely experience proportionally greater benefits from reduced compliance burden, as smaller institutions typically face higher relative regulatory compliance costs.

Second, the proposal would increase clarity and objectivity in the supervisory process by focusing examinations on other risk categories, such as credit, market, liquidity, and operational risk. These risk categories are objective measures that result in greater consistency in the supervisory process. This consistency would benefit the diverse range of Board-supervised banking organizations and reduce regulatory uncertainty.

Third, removing reputation risk from supervisory considerations could expand market access opportunities for Board-supervised banking organizations. These entities may be able to maintain or establish profitable relationships that may have been previously discouraged due to reputation risk concerns. This could economically benefit affected institutions, with a potential notable aggregate impact across the large number of Board-supervised banking organizations.

Finally, the change would allow for more efficient resource allocation within the Federal Reserve System's supervisory function. Examiners could redirect examination resources toward other risk types, enabling more effective supervision across the diverse portfolio of institutions under Federal Reserve System oversight.

Conversely, the proposed prohibition on using reputation risk in supervision is not without costs. Specifically, the proposal would likely incur transitional implementation costs, including revising examination manuals, retraining examiners, and updating supervisory guidance. Staff resources would be required, reflecting the large number of affected institutions. These resources would also be needed to implement the new approach consistently for different institution types, given the diversity in size and complexity of Board-supervised banking organizations.

Based on the analysis of economic impacts, the Board has determined that the benefits of the proposal are likely to outweigh the costs. The reduced regulatory burden, enhanced supervisory clarity, potential for expanded market opportunities, and more efficient resource allocation provide compelling justification for the proposal. While transitional challenges exist, including implementation costs, these are largely short-term and can be mitigated through appropriate planning. The benefits are expected to accrue across all Board-supervised banking organizations, with particularly meaningful impact for smaller institutions.

In accordance with the Paperwork Reduction Act of 1995 (PRA), 16 the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed the proposal under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA. 17 Accordingly, there is no paperwork burden associated with the rule.

The Board is providing an initial regulatory flexibility analysis with respect to this proposed rule. The Regulatory Flexibility Act (RFA)  18 requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities. 19 In connection with a proposed rule, the RFA requires an agency to prepare and invite public comment on an initial regulatory flexibility analysis describing the impact of the rule on small entities, unless the agency certifies that the proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. An initial regulatory flexibility analysis must contain: (1) a description of the reasons why action by the agency is being considered; (2) a succinct statement of the objectives of, and legal basis for, the proposed rule; (3) a description of, and, where feasible, an estimate of the number of small entities to which the proposed rule will apply; (4) a description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; (5) an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap with, or conflict with the proposed rule; and (6) a description of any significant alternatives to the proposed rule which accomplish its stated objectives and minimize any significant economic impact of the proposed rule on small entities. 20

The Board has considered the potential impact of the proposal on small entities in accordance with the RFA. Based on its analysis and for the reasons stated below, the Board believes that this proposal will not have a significant economic impact on a substantial number of small entities. Nevertheless, the Board is publishing and inviting comment on this initial regulatory flexibility analysis. As discussed in detail above, the proposal would codify the removal of reputation risk from the Board's supervisory programs. Furthermore, the proposal would explicitly prohibit the Board from encouraging or compelling Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk.

As discussed in section I of this SUPPLEMENTARY INFORMATION , the Board is empowered to conduct supervision of various types of banking organizations. 21 It is also empowered to make rules “to enable it to administer and carry out” its supervisory programs. 22 Pursuant to such authority, the Board is proposing to codify the removal of reputation risk from the Board's supervisory programs and to prohibit the Board from encouraging or compelling Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk.

As discussed in section IV of this SUPPLEMENTARY INFORMATION , the Board announced in June 2025 that reputation risk will no longer be a component of examination programs in its supervision of banks. Since then, the Board has not used reputation risk in its examination programs, and reputation risk is being removed from supervisory materials. As a result, the proposal's benefits and costs since June 2025 are expected to be de minimis, as there has been no further change in policy since that time. Additionally, the proposal would not impose mandatory requirements on any small entities, as the proposal would only have the effect of removing reputation risk from the Board's supervisory programs and prohibiting the Board from encouraging or compelling Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk.

Further, as discussed in the Paperwork Reduction Act section, the proposal would not make changes to any projected reporting, recordkeeping, and other compliance requirements. Therefore, there are no reporting, recordkeeping, or other compliance requirements from this proposal that would impose a significant cost on small entities. The Board is aware of no other federal rules that duplicate, overlap, or conflict with the proposal. Accordingly, the Board believes that there are no significant alternatives to the proposal that would accomplish the stated objectives and minimize the economic impact of the proposal on small entities.

Therefore, the Board believes that the proposed rule will not have a significant economic impact on a substantial number of small entities supervised by the Board.

The Board welcomes comment on all aspects of its analysis. In particular, the Board requests that commenters describe the nature of any impact on small entities and provide empirical data to illustrate and support the extent of the impact.

Section 722 of the Gramm-Leach-Bliley Act  23 requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the proposed rule in a simple and straightforward manner and invites comment on the use of plain language. For example:

• Has the Board organized the material to suit your needs? If not, how could the Board present the proposal more clearly?

• Are the requirements in the proposal clearly stated? If not, how could the proposal be more clearly stated?

• Does the proposal contain technical language or jargon that is not clear? If so, which language requires clarification?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the proposal easier to understand? If so, what changes to the format would achieve that?

• Is the section format adequate? If not, which of the sections should be changed and how?

• What other changes could the Board incorporate to make the proposal easier to understand?

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA), 24 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), the Board must consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302(b) of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form, with certain exceptions. 25

The Board notes that comment on these matters has been requested in other sections of this SUPPLEMENTARY INFORMATION , and that the requirements of RCDRIA will be considered as part of the overall rulemaking process. The proposal would only impose obligations on the Board itself; it would not directly apply to other entities. The Board has determined that the proposed rule (1) would not impose any additional reporting, disclosures, or other new requirements on IDIs, and (2) places no new administrative burdens on depository institutions, including small depository institutions, and customers of depository institutions. Therefore, the requirements of RCDRIA do not apply. However, the Board invites comments that will further inform its consideration of RCDRIA.

The Providing Accountability Through Transparency Act of 2023  26 requires that a notice of proposed rulemaking include the internet address of a summary of not more than 100 words in length of a proposed rule, in plain language, that shall be posted on the internet website under section 206(d) of the E-Government Act of 2002. 27

In summary, the Board is proposing to codify the removal of reputation risk from its supervisory programs. The proposal would also prohibit the Board from encouraging or compelling Board-supervised banking organizations to deny or condition the provision of banking or other financial products or services to an individual or business based on their constitutionally protected political or religious beliefs, associations, speech, or conduct, or based on involvement by the individual or business in politically disfavored but lawful business activities perceived to present reputation risk.

The proposal and summary can be found at https://www.regulations.gov and https://www.federalreserve.gov/supervisionreg/reglisting.htm.

For the reasons set forth in the preamble, the Board of Governors of the Federal Reserve System proposes to amend chapter II of title 12 of the Code of Federal Regulations as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2026-2282; Project Identifier MCAI-2025-01149-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Brenda Buitrago Perez, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516-228-7300; email: 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2025-28, dated June 10, 2025 (Transport Canada AD CF-2025-28) (also referred to as the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states that it was reported that inappropriate tooling was used to torque the bolts securing the baggage door stop fittings, which may have resulted in an improper torque condition. The MCAI states that the fitting could migrate slightly during operation if the bolts were under-torqued. Additionally, if the bolts were over-torqued, the bolts could yield and fracture under dynamic loads. Baggage stop door fittings consist of principal structural elements where the structural integrity may be impacted. This condition, if not addressed, could potentially lead to cabin depressurization should a fitting failure occur.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2026-2282.

Transport Canada AD CF-2025-28 specifies procedures for performing a torque check of affected bolts, and re-torquing, re-installing, or replacing affected bolts and nuts as applicable.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in Transport Canada AD CF-2025-28 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate Transport Canada AD CF-2025-28 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with Transport Canada AD CF-2025-28 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Material required by Transport Canada AD CF-2025-28 for compliance will be available at regulations.gov under Docket No. FAA-2026-2282 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 45 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under ADDRESSES . Include “Docket No. FAA-2026-2283; Project Identifier MCAI-2026-00077-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Brenda Buitrago Perez, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2025-0269, dated December 1, 2025 (EASA AD 2025-0269) (also referred to as the MCAI), to correct an unsafe condition on Airbus Helicopters Model H160-B helicopters if modified by EASA STC 10080809 up to Revision 2 (inclusive). The MCAI states there have been reports of various deficiencies involving parts installed on the jettisonable window system, which include difficulty moving the locking fingers from the locking position that could cause the jettison function to fail; missing retaining rings on the jettison window hinge pins; and intermediate covers found partially detached. The FAA is proposing this AD to prevent failure of the jettisoning function of the window. The unsafe condition, if not addressed, could result in the inability to evacuate helicopter occupants during an emergency situation.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2026-2283.

The FAA reviewed EASA AD 2025-0269, which for helicopters that have aesthetic cover installation part number (P/N) 6A6H5600A002001XYZ and electrochromic window installation P/N 6A6H5600A001001XYZ installed, specifies procedures for removing the jettisonable windows and, if applicable, replacing the locking fingers, and inspecting and replacing any missing retaining rings. EASA AD 2025-0269 also specifies procedures for inspecting the LH side and RH side covers and, depending on the inspection results, replacing any covers that have discrepancies with certain part-numbered covers. EASA AD 2025-0269 specifies procedures for, repetitively lubricating the locking fingers and performing an operational test after each lubrication for helicopters that have aesthetic cover installation P/N 6A6H5600A002001XYZ and electrochromic window installation P/N 6A6H5600A001001XYZ installed.

Additionally, EASA AD 2025-0269 specifies procedures for modifying the helicopter by replacing the LH side and RH side covers and prohibits the installation of certain part-numbered aesthetic covers or certain part-numbered electrochromic windows on any helicopter unless certain requirements are met.

The FAA also reviewed MAG Mandatory Service Bulletin No. SB-A6H-015, dated November 19, 2025 (SB-A6H-015), which specifies procedures for inspection, replacement, and lubrication of the locking fingers; inspection for missing retaining rings and installation instructions for any missing retaining rings; inspection and replacement of certain part-numbered covers; and an operational test for the jettisonable windows system.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in EASA AD 2025-0269, and the material described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD. See “Differences Between this Proposed AD and the MCAI” for a discussion of the general differences included in this AD.

The MCAI applies to Airbus Helicopters Model H160-B helicopters modified with EASA STC 10080809, whereas this proposed AD would apply to Airbus Helicopters Model H160-B helicopters modified with FAA STC SR002223IB, dated October 3, 2024.

Where the MCAI specifies contacting MAG for corrective instructions, this proposed AD requires using a method approved by the FAA, or EASA, or Airbus Helicopters' EASA Design Organizational Approval.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some CAA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2025-0269 by reference in this proposed AD. This proposed AD would require compliance with EASA AD 2025-0269 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2025-0269 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this proposed AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2025-0269. Material required by EASA AD 2025-0269 for compliance will be available at regulations.gov under Docket No. FAA-2026-2283 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect eight helicopters of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2026-2278; Project Identifier MCAI-2025-00628-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Fatin Saumik, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516-228-7350; email: 9-AVS-AIR-BACO-COS@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2025-0087, dated April 16, 2025 (EASA AD 2025-0087) (also referred to as the MCAI), to correct an unsafe condition for all ATR—GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes. The MCAI states an occurrence of flap asymmetry detector and flap interconnection shaft having worn splines and not engaging mechanically was reported during maintenance. This condition, if not detected and corrected, could lead to the loss of flap asymmetry monitoring, which, in case of asymmetrical flaps extension or retraction, could possibly result in reduced control of the airplane.

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

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2026-2278.

EASA AD 2025-0087 specifies procedures for an SDI of the affected flap asymmetry detection mechanism for any discrepancy ( i.e., any findings, which includes any flap asymmetry detector that is not mechanically engaged to the flap interconnection shaft and any findings, such as worn parts, corrosion, and cracking, found during the removal of the flap asymmetry detection mechanism) and to contact the manufacturer for approved repair instructions as corrective action when any discrepancy is detected. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in EASA AD 2025-0087 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2025-0087 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2025-0087 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2025-0087 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2025-0087. Material required by EASA AD 2025-0087 for compliance will be available at regulations.gov under Docket No. FAA-2026-2278 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 17 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this proposed AD.

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2026-2279; Project Identifier MCAI-2025-01379-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Amanda F. Pieraccini, Aviation Safety, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: phone: 516-228-7300; email: 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2025-41, dated August 20, 2025 (Transport Canada AD CF-2025-41) (also referred to as the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10, BD-700-1A11, and BD-700-2A12 airplanes. The MCAI states that there were reports that seat frame assemblies have been found to be assembled without applying Loctite in certain locations of concern. Lounge and crew rest seat frame assemblies call for the application of Loctite on non-locking fastener joints in different areas. Two sub-systems considered critical are affected by this escape: seat belt anchor point restraining and back rest locking sub-system. Seat frames assembled without applying Loctite on certain screws may lead to loss of structural joint integrity affecting safety equipment such as lap belt and seat backrest locking mechanisms. The capability of the restraint system to protect the occupant will be reduced. This situation may not be apparent to the occupant during normal operation.

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

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2026-2279.

Transport Canada AD CF-2025-41 specifies procedures for a modification to apply Loctite to the non-locking fastener joints of the seat frame assembly. The modification includes the installation of new hardware ( i.e., screws).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in Transport Canada AD CF-2025-41 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate Transport Canada AD CF-2025-41 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with Transport Canada AD CF-2025-41 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Material required by Transport Canada AD CF-2025-41 for compliance will be available at regulations.gov under Docket No. FAA-2026-2279 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 42 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under ADDRESSES . Include “Docket No. FAA-2026-0025; Project Identifier MCAI-2025-01294-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Steven Warwick, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued an NPRM (91 FR 3081, January 26, 2026), that would apply to all Leonardo S.p.a. Model AB139, AW139, and AW189 helicopters.

The NPRM proposed to require repetitively inspecting the left-hand (LH) and right-hand (RH) tube assemblies for Model AB139 and AW139 helicopters, and the LH and RH pedal shaft assemblies for Model AW189 helicopters, and depending on the results of the inspection, corrective actions. The NPRM also proposed to prohibit installing certain parts unless certain requirements are met. The NPRM was prompted by a report of cracks on the LH and RH tube assemblies installed on the brake pedal assemblies. The FAA is proposing this AD to detect and address cracks on the LH and RH tube assemblies installed on the brake pedal assemblies. This unsafe condition, if not addressed, could lead to structural failure of the brake pedal assembly and result in reduced control of the helicopter around the yaw axis.

The FAA reviewed EASA AD 2025-0163, which specifies procedures for repetitive inspections of certain part-numbered LH and RH tube assemblies (for Models AB139 and AW139) and certain part-numbered LH and RH pedal shaft assemblies (for Model AW189) installed on the brake pedal assemblies. Depending on the inspection results, EASA AD specifies procedures for replacing an affected part with a serviceable part or, for the copilot side only, as an alternative to replacing an affected part, installing a temporary serviceable part for the copilot pedal assembly set, performing repetitive inspections, manufacturing and installing a placard, and revising the limitations section of the rotorcraft flight manual (RFM) for the helicopter. EASA AD 2025-0163 also prohibits installing an affected part on any helicopter unless certain requirements are met.

As published, references to the MCAI specified in the regulatory text of the NPRM are incorrect. Paragraphs (h)(1) through (4) and paragraph (i) of the NPRM, refer to “EASA AD 2024-0228”. The correct reference is “EASA AD 2025-0163”.

No other part of the preamble or regulatory information has been corrected; for clarity the FAA is publishing the entire proposed rule in the Federal Register .

The comment due date of the NPRM remains March 12, 2026.

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

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

The EPA has determined that ground-level ozone is detrimental to human health. On October 1, 2015, the EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 2015). Under the EPA's regulations at 40 CFR part 50, the 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.070 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. See 40 CFR 50.19 and appendix U to 40 CFR part 50.

Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires the EPA to designate as nonattainment any areas that are violating the NAAQS, based on the most recent three years of quality-assured ozone monitoring data. On June 4, 2018 (83 FR 25776), the EPA designated the St. Louis, MO-IL area as Marginal nonattainment for the 2015 ozone NAAQS. On June 14, 2021 (86 FR 31438), the EPA revised the designation by expanding the boundary of the area. The current nonattainment area includes Boles Township of Franklin County, Jefferson County, St. Charles County, St. Louis County, and St. Louis City in Missouri, and Madison County, Monroe County, and St. Clair County in Illinois.

On October 7, 2022 (87 FR 60897), the EPA determined that the St. Louis area did not attain the standards by the Marginal attainment date, and the area was reclassified as Moderate by operation of law. More recently, on November 25, 2024 (89 FR 92816), and December 17, 2024 (89 FR 101901), the EPA determined the Missouri portion of the area and the Illinois portion of the area, respectively, did not attain the standards by the Moderate attainment date, and both portions of the area were reclassified as Serious by operation of law. 1

Congress has recognized that it may not be appropriate for the EPA to use certain monitoring data collected by the ambient air quality monitoring network and maintained in the EPA's Air Quality System (AQS) database in certain regulatory determinations. Thus, in 2005, Congress provided the statutory authority for the exclusion of data influenced by “exceptional events” meeting specific criteria by adding section 319(b) to the CAA. 2

To implement this 2005 CAA amendment, on March 22, 2007 (72 FR 13560), the EPA promulgated the 2007 Exceptional Events Rule. The 2007 Exceptional Events Rule created a regulatory process codified at 40 CFR parts 50 and 51 (sections 50.1, 50.14 and 51.930). These regulatory sections, which superseded the EPA's previous guidance on handling data influenced by events, contain definitions, procedural requirements, requirements for air agency demonstrations, criteria for the EPA's approval of the exclusion of event-affected air quality data from the data set used for regulatory decisions, and requirements for air agencies to take appropriate and reasonable actions to protect public health from exceedances or violations of the NAAQS. On October 3, 2016 (81 FR 68216), the EPA promulgated a comprehensive revision to the 2007 Exceptional Events Rule. The 2016 Exceptional Events Rule revision included the requirement that, if a state demonstrates that emissions from a wildfire smoke event caused a specific air pollution concentration in excess of the NAAQS at a particular air quality monitoring location and otherwise satisfies the requirements of 40 CFR 50.14, the EPA must exclude that data from use in determinations of exceedances and violations. 3

The CAA provides for the exclusion of air quality monitoring data from design value calculations when there are NAAQS exceedances caused by events, such as wildfires, that meet the criteria for an exceptional event identified in the EPA's Exceptional Events Rule at 40 CFR 50.1, 50.14 and 51.930. For the purposes of this proposed action, on December 18, 2025, the Illinois EPA submitted an exceptional events demonstration to show that ozone concentrations recorded at the Alton monitor in Madison County with Site ID 17-119-0120 and the Wood River monitor in Madison County with Site ID 17-119-3007 on June 6, 2023, were influenced by wildfires. The EPA concurred on this request on January 12, 2026.

The EPA found that Illinois' demonstration met the Exceptional Events Rule criteria and determined that these wildfire events had regulatory significance for purposes of calculating the area's most recent design value to demonstrate the area is attaining the standard in order to make a clean data determination for the 2015 ozone NAAQS. For this proposed action, the EPA will rely on the calculated values that exclude the event-influenced data for the purpose of demonstrating attainment of the 2015 ozone NAAQS. Further details on Illinois' analyses and the EPA's concurrence can be found in the docket for this regulatory action.

While the EPA has concurred with Illinois' request to exclude event-influenced air quality monitoring data from regulatory decisions, the EPA is providing an opportunity for public comment on the claimed exceptional events and all supporting data prior to the EPA taking final agency action that relies on the revised data set. This proposed action provides the public with an opportunity to comment on the claimed exceptional events, all supporting documents and the EPA's concurrence with Illinois' request. As such, the EPA proposes to take final regulatory action on the request from Illinois to remove the claimed exceptional events from the data set used for regulatory purposes.

Following enactment of the CAA Amendments of 1990, the EPA discussed its interpretation of the requirements for implementing the NAAQS in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (General Preamble), 57 FR 13498, 13564 (April 16, 1992). On November 29, 2005 (70 FR 71612), the EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS. Under the Clean Data Policy, for a nonattainment area that can demonstrate attainment of the standard before implementing CAA nonattainment measures, the EPA interprets the requirements of the CAA that are specifically designed to help an area achieve attainment, such as the requirements for such area to submit attainment demonstrations and associated RACM, RFP plans, contingency measures for failure to attain or make reasonable progress, and other planning SIPs related to attainment of the ozone NAAQS, to be suspended for as long as air quality continues to meet the standard. Such a determination of attainment under the Clean Data Policy is known informally as a clean data determination. On December 6, 2018 (83 FR 62998), in the final rule updating implementing regulations for the 2015 ozone NAAQS, the EPA codified this policy at 40 CFR 51.1318.

An area is attaining the 2015 ozone NAAQS if it meets the 2015 ozone NAAQS based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. To attain the 2015 ozone NAAQS, the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations (ozone design values) at each monitor must not exceed 0.070 ppm. The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in AQS. Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90 percent of the days within the ozone monitoring seasons, 4 on average, for the 3-year period, with a minimum data completeness of 75 percent during the ozone monitoring season of any year during the 3-year period. See section 4 of appendix U to 40 CFR part 50.

On December 18, 2025, the Illinois EPA sent a clean data determination request to the EPA. The EPA has reviewed the available ozone monitoring data from the Illinois EPA's monitoring sites in the Illinois portion of the St. Louis area for the 2023-2025 period. These data have been quality assured, are recorded in the AQS, and were certified in advance of the EPA's publication of this proposal. These data demonstrate that the Illinois portion of the St. Louis area is attaining the 2015 ozone NAAQS. The annual fourth-highest 8-hour ozone concentrations and the 3-year average of these concentrations (monitoring site ozone design values) for all monitoring sites are summarized in Table 1.

The Illinois portion of the St. Louis area's 3-year ozone design value for 2023-2025 is 0.070 ppm, 5 which meets the 2015 ozone NAAQS. Therefore, in this action, the EPA proposes to find that the Illinois portion of the St. Louis area is attaining the 2015 ozone NAAQS.

The EPA will not take final action to determine that the St. Louis area is attaining the NAAQS if the design value of a monitoring site in the area violates the NAAQS prior to final approval of the clean data determination.

Additionally, the EPA will not take final action to determine that the Illinois portion of the St. Louis area is attaining the NAAQS, absent a final action to determine that the Missouri portion of the St. Louis area is also attaining the NAAQS. Under the EPA's Clean Data Policy, a clean data determination only has meaning and effect when an entire area is attaining the NAAQS. In the instance of a multi-state area like the St. Louis area, this means that all monitors in all states must have attaining data.

Should this action be finalized, the requirements for the Illinois EPA to submit attainment demonstrations and associated RACM, RFP plans, contingency measures for failure to attain or make reasonable progress, and other planning SIPs related to attainment of the 2015 ozone NAAQS for the St. Louis area, would be suspended for as long as the area continues to attain the 2015 ozone NAAQS. 40 CFR 51.1318.

This action does not constitute a determination of attainment by the attainment date under CAA section 181(b)(2). In this action, the EPA is considering the area's design value for the 2023-2025 period, which is not the area's design value as of the applicable attainment date.

This action does not constitute a redesignation of any portion of the area to attainment of the 2015 ozone NAAQS under section 107(d)(3)(E) of the CAA, nor does it constitute approval of a maintenance plan for any portion of the area as required under section 175A of the CAA, nor does it find that any portion of the area has met all other requirements for redesignation. On December 30, 2025, Illinois submitted a request to redesignate the Illinois portion of the area to attainment of the 2015 ozone NAAQS under CAA section 107(d)(3)(E), and EPA will take action on Illinois' request in a separate rulemaking.

The Illinois portion of the St. Louis area will remain designated nonattainment for the 2015 ozone NAAQS until such time as the EPA determines that the Illinois portion of the area meets CAA requirements for redesignation to attainment and takes a separate action to redesignate the Illinois portion of the area.

The EPA is proposing to approve a determination under the CAA that the Illinois portion of the St. Louis area has attained the 2015 ozone NAAQS. This determination is based upon complete, quality-assured, and certified ambient air monitoring data for the 2023-2025 design value period showing that the area achieved attainment of the 2015 ozone NAAQS. The EPA is also proposing to take final agency action on an exceptional events request submitted by the Illinois EPA on December 18, 2025, and concurred on by the EPA on January 12, 2026. In a separate action, the EPA is proposing a similar determination for the Missouri portion of the St. Louis area. If finalized, this determination would suspend the requirements for the area to submit attainment demonstrations and associated RACM, RFP plans, contingency measures for failure to attain or make reasonable progress, and other planning SIPs related to attainment of the 2015 ozone NAAQS, for as long as the area continues to attain the 2015 ozone NAAQS.

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This action proposes to issue a clean data determination for the Illinois portion of the St. Louis area for the 2015 ozone NAAQS.

Executive Order 14192 does not apply because it is not a significant regulatory action and is therefore exempted from review under Executive Order 12866.

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. The proposed clean data determination does not create any new requirements and does not directly regulate any entities.

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

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action proposes a clean data determination for the Illinois portion of the St. Louis area under the CAA.

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

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

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

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

The EPA has determined that ground-level ozone is detrimental to human health. On October 1, 2015, the EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 2015). Under EPA's regulations at 40 CFR part 50, the 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average concentration is equal to or less than 0.070 ppm, when truncated after the thousandth decimal place, at all of the ozone monitoring sites in the area. See 40 CFR 50.19 and appendix U to 40 CFR part 50.

Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires the EPA to designate as nonattainment any areas that are violating the NAAQS. Based on quality-assured ozone monitoring data from 2015-2017, the EPA designated the St. Louis, MO-IL bi-state area as Marginal nonattainment for the 2015 Ozone NAAQS with an effective date of August 3, 2018 (83 FR 25776). At that time, the area included Boles Township of Franklin County, St. Charles County, St. Louis County, and St. Louis City in Missouri, and Madison and St. Clair Counties in Illinois. As part of that same action, the EPA designated Jefferson County and the remaining portion of Franklin County, in Missouri, and Monroe County in Illinois, as attainment/unclassifiable. On July 10, 2020, the U.S. Court of Appeals for the District of Columbia remanded the Jefferson County, Missouri, and Monroe County, Illinois, designations (among other designations) to the EPA. The Court upheld the EPA's designation of Boles Township as nonattainment and the remainder of Franklin County as attainment/unclassifiable. In response to the Court's remand, the EPA revised the Jefferson County, Missouri, and Monroe County, Illinois designation to nonattainment on June 14, 2021 (86 FR 31438). The St. Louis, MO-IL nonattainment area for the 2015 ozone NAAQS consists of Boles Township in Franklin County, Jefferson County, St. Charles County, St. Louis County, and St. Louis City in Missouri; and Madison County, Monroe County, and St. Clair County in Illinois.

On October 7, 2022 (87 FR 60897), the EPA determined that the St. Louis area did not attain the standards by the Marginal attainment date, and the area was reclassified as Moderate by operation of law. More recently, on November 25, 2024 (89 FR 92816), and December 17, 2024 (89 FR 101901), the EPA determined the Missouri portion of the area and the Illinois portion of the area, respectively, did not attain the standards by the Moderate attainment date, and both portions of the area were reclassified as Serious by operation of law. 1

On November 3, 2025, MoDNR submitted an exceptional events (EE) demonstration to show that the ozone concentration at certain Missouri monitors during the 2023 ozone season were influenced by wildfire smoke events originating in Canada. On January 27, 2026, the EPA concurred on a portion of the state's November 3, 2025, EE demonstration. Ambient air monitoring data from 2023 to 2025, which pursuant to the EPA's concurrence on a portion of the Missouri EE demonstration now excludes exceptional event influenced monitor days, indicates that the Missouri portion of the St. Louis Area has attained the 2015 ozone NAAQS. The EPA's Exceptional Events Rule and MoDNR's EE demonstration are discussed in more detail in section II. of this document. The EPA's Technical Support Document (TSD) detailing the EPA's rationale for concurring with a portion of Missouri's EE demonstration is included in the docket for this action.

Congress has recognized that it may not be appropriate for the EPA to use certain monitoring data collected by the ambient air quality monitoring network and maintained in the EPA's Air Quality System (AQS) database in certain regulatory determinations. Thus, in 2005, Congress provided the statutory authority for the exclusion of data influenced by “exceptional events” meeting specific criteria by adding section 319(b) to the CAA and granted the EPA with the authority to propose regulations to review and manage air quality monitoring data influenced by exceptional events. 2

To implement this 2005 CAA amendment, on March 22, 2007, (72 FR 13560), the EPA promulgated the 2007 Exceptional Events Rule. The 2007 Exceptional Events Rule created a regulatory process codified at 40 CFR parts 50 and 51 (§§ 50.1, 50.14, and 51.930). These regulatory sections, which superseded the EPA's previous guidance on handling data influenced by events, contain definitions, procedural requirements, requirements for air agency demonstrations, criteria for the EPA's approval of the exclusion of event-affected air quality data from the data set used for regulatory decisions, and requirements for air agencies to take appropriate and reasonable actions to protect public health from exceedances or violations of the NAAQS. On October 3, 2016, (81 FR 68216), the EPA promulgated a comprehensive revision to the 2007 Exceptional Events Rule. The 2016 Exceptional Events Rule revision included the requirement that, if a state demonstrates that emissions from a wildfire smoke event caused a specific air pollution concentration in excess of the NAAQS at a particular air quality monitoring location and otherwise satisfies the requirements of 40 CFR 50.14, the EPA must exclude that data from use in determinations of exceedances and violations. 3

The CAA provides for the exclusion of air quality monitoring data from design value calculations when there are NAAQS exceedances caused by events, such as wildfires, that meet the criteria for an exceptional event identified in the EPA's Exceptional Events Rule at 40 CFR 50.1, 50.14, and 51.930. For the purposes of this proposed action, on November 3, 2025, MoDNR submitted an exceptional events demonstration to show that ozone concentrations recorded at the West Alton monitor with Site ID 29-183-1002 on May 24, June 3, June 6, June 10, June 17, and June 24, 2023, and the Maryland Heights monitor with Site ID 29-189-0014 on June 6, 2023, were caused by the 2023 Canadian wildfires in the provinces of Alberta, Quebec, Nova Scotia, the Northwest Territories and British Columbia. The EPA concurred on this request on January 27, 2026.

The EPA found that Missouri's demonstration met the Exceptional Events Rule criteria by establishing a clear, causal relationship between these wildfire events and the monitoring data which have regulatory significance for purposes of calculating the area's most recent design value (2023-2025 monitoring data). The removal of this exceptional event-impacted data, consistent with the CAA and the implementing regulations, supports a clean data determination (CDD) for the 2015 ozone NAAQS. As such, the EPA proposes to take final agency action to approve this CDD based on the concurred dates, summarized in table 1 of this document and detailed in the docket, and remove from the data set used for regulatory purposes those monitor days that the EPA concurred on as influenced by an exceptional event consistent with CAA section 319(b) and the implementing regulations. 4

For this proposed action, the EPA will rely on the calculated design values that exclude the concurred dates for the purpose of demonstrating attainment of the 2015 8-hour ozone NAAQS. Further details on Missouri's analyses and the EPA's concurrence can be found in the docket for this regulatory action. While the EPA has concurred on a portion of Missouri's request to exclude exceptional event-influenced air quality monitoring data from regulatory decisions, the EPA must provide an opportunity for public comment on the concurred exceptional events, as noted in table 1, and all supporting data prior to the EPA taking a final clean data determination action which relies on the revised data set. This proposed action provides the public with an opportunity to comment on the exceptional events, all supporting documents, and the EPA's concurrence with Missouri's request for the events listed in table 1.

Following enactment of the CAA Amendments of 1990, the EPA discussed its interpretation of the requirements for implementing the NAAQS in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (General Preamble), 57 FR 13498, 13564 (April 16, 1992). On November 29, 1995, (70 FR 71612), the EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS. Under the Clean Data Policy, for a nonattainment area that can demonstrate attainment of the standard before implementing CAA nonattainment measures, the EPA interprets the requirements of the CAA that are specifically designed to help an area achieve attainment, such as the requirements for such area to submit attainment demonstrations and associated RACM, RFP plans, contingency measures for failure to attain or make reasonable progress, and other planning state implementation plans (SIPs) related to attainment of the ozone NAAQS, to be suspended for as long as air quality continues to meet the standard. Such a determination of attainment under the Clean Data Policy is known informally as a clean data determination. On December 6, 2018, (83 FR 62998), in the final rule updating implementing regulations for the 2015 ozone NAAQS, the EPA codified this policy at 40 CFR 51.1318.

An area is attaining the 2015 ozone NAAQS if it meets the 2015 ozone NAAQS based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. To attain the 2015 ozone NAAQS, the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations (ozone design values) at each monitor must not exceed 0.070 ppm. 5 The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in AQS. Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90% of the days within the ozone monitoring seasons, 6 on average, for the 3-year period, with a minimum data completeness of 75% during the ozone monitoring season of any year during the 3-year period. See section 4 of appendix U to 40 CFR part 50.

On November 3, 2025, the MoDNR sent a clean data determination request to the EPA. 7 The EPA has reviewed the available ozone monitoring data from MoDNR's monitoring sites in the St. Louis area for the 2023-2025 period. These data have been quality assured, are recorded in the AQS, and were certified in advance of the EPA's publication of this proposal. Specifically, Missouri notified the EPA on December 4, 2025, that the 2025 ozone season data for all monitors in the Missouri portion of the St. Louis area had been quality assured and certified in AQS. 8 These data demonstrate that the St. Louis area is attaining the 2015 ozone NAAQS. The annual fourth-highest 8-hour ozone concentrations and the 3-year average of these concentrations (monitoring site ozone design values) for all Missouri monitoring sites are summarized in table 2. As explained in section II. of this action, this data excludes the exceptional event impacted monitoring days.

The Missouri portion of the St. Louis area's 3-year ozone design value for 2023-2025 is 0.070 ppm, 9 which meets the 2015 ozone NAAQS. Therefore, in this action, the EPA proposes to find that the Missouri portion of the St. Louis area is attaining the 2015 ozone NAAQS.

The EPA will not take final action to determine that the St. Louis area is attaining the NAAQS if the design value of a monitoring site in the area violates the NAAQS prior to final approval of the clean data determination. Additionally, the EPA will not take final action to determine that the Missouri portion of the St. Louis area is attaining the NAAQS, absent a final action to determine that the Illinois portion of the St. Louis area is also attaining the NAAQS. Under the EPA's Clean Data Policy, a clean data determination only has meaning and effect when an entire area is attaining the NAAQS. In the instance of a multi-state area like the St. Louis area, this means that all monitors in both states must have attaining data.

Should this action be finalized, the requirements for MoDNR to submit attainment demonstrations and associated RACM, RFP plans, contingency measures for failure to attain or make reasonable further progress, and planning elements related to attainment of the 2015 ozone NAAQS for the Missouri portion of the St. Louis area, would be suspended for as long as the area continues to attain the 2015 ozone NAAQS. 40 CFR 51.1318.

This action does not constitute a determination of attainment by the attainment date under CAA section 181(b)(2). In this action, the EPA is considering the area's design value for the 2023-2025 period, however the 2023-2025 design value does not serve as the area's most recent complete and quality-assured design value available as of the applicable attainment date.

This action does not constitute a redesignation of any portion of the area to attainment of the 2015 ozone NAAQS under section 107(d)(3)(E) of the CAA, nor does it constitute approval of a maintenance plan for any portion of the area as required under section 175A of the CAA, nor does it find that any portion of the area has met all other requirements for redesignation. The Missouri portion of the St. Louis area will remain designated nonattainment for the 2015 ozone NAAQS until such time as the EPA determines that the Missouri portion of the area meets CAA requirements for redesignation to attainment and takes a separate action to redesignate the Missouri portion of the area.

The EPA is proposing to determine that the Missouri portion of the St. Louis area has attained the 2015 ozone NAAQS and meets the requirements under the Clean Data Policy for a CDD. This determination of clean data is based upon complete, quality-assured, and certified ambient air monitoring data for the 2023-2025 design value period showing that the Missouri portion of the area achieved attainment of the 2015 ozone NAAQS. The 2023-2025 design value relies upon EPA concurrence on a portion of the exceptional events request as submitted by the Missouri Department of Natural Resources (MoDNR) on November 3, 2025, and concurred on by the EPA on January 27, 2026. Therefore, the EPA is proposing to approve Missouri's November 3, 2025, CDD request. As provided in 40 CFR 51.1318, if the EPA finalizes this CDD, the requirements for the MoDNR to submit attainment demonstrations and associated RACM, RFP plans, contingency measures for failure to attain or make reasonable further progress, and planning elements related to attainment of the 2015 ozone NAAQS for the Missouri portion of the St. Louis area, are suspended for as long as the Missouri portion of the area continues to attain the 2015 ozone NAAQS. In a separate action, the EPA is proposing a similar determination for the Illinois portion of the St. Louis area.

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This action proposes to issue a clean data determination for the Missouri portion of the St. Louis area for the 2015 ozone NAAQS.

Executive Order 14192 does not apply because it is not a significant regulatory action and is therefore exempted from review under Executive Order 12866.

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. The proposed clean data determination does not create any new requirements and does not directly regulate any entities.

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

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action proposes a clean data determination for the Missouri portion of the St. Louis area under the CAA.

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

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

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

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:

The EPA is proposing to approve the request submitted by MoDNR on behalf of the State of Missouri (hereinafter referred to as the State or Missouri) to delegate a partial RMP for agricultural anhydrous ammonia facilities, as defined in the State's regulations, to the State of Missouri. The EPA would retain authority for the RMP for all other regulated chemicals which may be present at these facilities and any anhydrous ammonia that does not meet the definition of agricultural anhydrous ammonia.

On October 6, 2025, the State submitted a request for delegation of a partial RMP for facilities with an anhydrous ammonia storage capacity of ten thousand pounds or more that is intended to be used as fertilizer or in the manufacturing of a fertilizer (an “agricultural anhydrous ammonia facility”), as stated in 10 Code of State Regulations (CSR) 10-6.255(2)(B). The State's request was supplemented on October 9, 2025, and October 27, 2025. Based on our review of the State's request, which is described in detail in the following sections, the EPA proposes to find that such a delegation is appropriate in that Missouri has satisfied the criteria in 40 CFR 63.91, 63.93, and 63.95. The State's request is included in the docket for this action.

If approval is finalized, Missouri will have the primary authority and responsibility to carry out elements of the partial RMP for agricultural anhydrous ammonia facilities within the State, including onsite inspections, recordkeeping reviews, audits, compliance assistance and outreach, and civil and criminal enforcement. The EPA will retain concurrent authority to implement the RMP for agricultural anhydrous ammonia facilities within the State and will retain sole authority for implementing the RMP for all other chemicals and any anhydrous ammonia that does not meet the definition of agricultural anhydrous ammonia at these facilities, and for the RMP generally in Missouri for all other facilities.

The EPA originally issued the RMP regulations in two stages. The Agency published the list of regulated substances and Threshold Quantities (TQ) in 1994: “List of Regulated Substances and Thresholds for Accidental Release Prevention; Requirements for Petitions Under Section 112(r) of the Clean Air Act as Amended” (59 FR 4478, January 31, 1994), hereinafter referred to as the “list rule.”  1 The Agency published the RMP final regulation, containing risk management requirements for covered sources, in 1996: “Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)” (61 FR 31668, June 20, 1996), hereinafter referred to as the “1996 RMP rule”. 2   3 Subsequent modifications to the list rule and the 1996 RMP rule were made as discussed in the 2017 Amendments rule (“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act” (82 FR 4594, January 13, 2017), the 2019 Reconsideration rule (“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act” (84 FR 69834, December 19, 2019), and the 2024 SCCAP rule (“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention” (89 FR 17622, March 11, 2024).

Prior to development of the EPA's 1996 RMP rule, OSHA published its PSM standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 Clean Air Act Amendments, using its authority under 29 U.S.C. 653. The OSHA PSM standard can be found in 29 CFR 1910.119. Both the OSHA PSM standard and the EPA's 1996 RMP rule aim to prevent or minimize the consequences of accidental chemical releases through implementation of management program elements that integrate technologies, procedures, and management practices. In addition to requiring implementation of management program elements, the 1996 RMP rule requires any covered source to submit to the EPA a document summarizing the source's risk management program—called a risk management plan.

Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to approve State rules and programs to be implemented and enforced in place of certain CAA requirements, including the RMP set forth at 40 CFR part 68. Section 112(l)(5) states that “[n]ot later than 180 days after receiving a program submitted by a State, and after notice and opportunity for public comment, the Administrator shall either approve or disapprove such program.”

The criteria that must be demonstrated by a State to receive approval of the program is set forth in 40 CFR 63.91(a), and a State seeking approval of State rules implementing part 68 must also satisfy requirements under 40 CFR 63.95 to obtain delegation of a section 112 program.

If the State adopts federal rules unchanged, then only the criteria in 40 CFR 63.91(d) are required, except for delegation of the RMP for which the provisions of 40 CFR 63.95 must also be met. When the State adopts federal rules with changes, then the provisions of either 40 CFR 63.92 or 40 CFR 63.93 must also be met. The provisions for 40 CFR 63.92 are followed if the changes are pre-approved, and the provisions of 40 CFR 63.93 are followed if the changes do not qualify for approval under 40 CFR 63.92. See 40 CFR 63.91(a)(2) and (a)(4).

Under 40 CFR 63.91(d), the State may either reference approval of a Title V program or directly satisfy the requirements in (d)(3)(i)-(v). These requirements include:

• A written finding by the State Attorney General that the State has the necessary legal authority to implement and enforce the program and to assure compliance;

• A copy of the State's statutes, regulations, and requirements granting authority to implement and enforce the program;

• A demonstration that the State has adequate resources to implement and enforce the program;

• A schedule demonstrating expeditious implementation of the program; and

• A plan that assures expeditious compliance, including a complete description of the State's compliance tracking and enforcement program.

Section 63.93 pertains to approval of State requirements which differ from a Federal section 112 rule, and the State must meet all of the requirements of 40 CFR 63.93(b). These criteria include:

• A demonstration that applicability criteria are no less stringent than the regulations of 40 CFR part 68;

• Accidental prevention program requirements for each affected source that are no less stringent than would result from the otherwise applicable Federal rule;

• A compliance schedule that requires compliance within a time frame consistent with the deadlines in the regulations of 40 CFR part 68; and

• Documentation of compliance and enforcement measures meeting the minimum provisions described in § 63.95.

Under 40 CFR 63.95(b), the State's part 68 program shall contain the following elements, consistent with the procedures in § 63.91, and where appropriate either § 63.92 or § 63.93, for at least the chemicals listed in 40 CFR part 68, subpart F, that an approvable State Accidental Release Prevention program is regulating:

• A demonstration of the State's authority and resources to implement and enforce regulations that are no less stringent than the regulations of 40 CFR part 68, subparts A through G, and 40 CFR 68.200;

• A requirement that any source subject to the State's part 68 program submit a risk management plan that reports at least the same information in the same format as required under part 68, subpart G;

• Procedures for reviewing risk management plans and providing technical assistance to stationary sources including small businesses; and

• A demonstration of the State's authority to enforce all part 68 requirements must be made, including an auditing strategy that complies with § 68.220.

For a program that covers all of the federally-listed chemicals (a “complete program”) or a program covering less than all of the federally-listed chemicals (a “partial program”), the State must take delegation of the full part 68 program for the federally-listed chemicals it regulates. See 40 CFR 63.95(c).

On October 6, 2025, MoDNR submitted to the EPA a request to receive delegation of authority to implement and enforce a partial RMP for agricultural anhydrous ammonia facilities in Missouri and supplemented this request on October 9, 2025. The EPA responded to MoDNR's request on October 10, 2025, acknowledging the receipt of the request for partial program delegation and describing the steps required to delegate the partial RMP. The EPA reviewed the information provided with the request for partial program delegation and requested further information on October 17, 2025. On October 27, 2025, MoDNR submitted supplemental information for its request. On October 30, 2025, the EPA determined that the delegation package was complete and sent MoDNR a letter stating the delegation request was determined to be complete.

On October 4, 2022, the Missouri General Assembly amended the Missouri Air Conservation Law, Chapter 643 of the Revised Statutes of Missouri (RSMo 643) to give the Missouri Air Conservation Commission the authority to adopt rules necessary to implement and enforce the RMP under 42 U.S.C. 7412(r) for agricultural facilities, effective January 2, 2023. The Missouri Air Conservation Commission adopted the Chemical Accident Prevention for Agricultural Anhydrous Ammonia regulations at 10 CSR 10-6.255, and the rules became effective February 28, 2025.

The regulations at 10 CSR 10-6.255 adopted the requirements of 40 CFR part 68 with changes. Specifically, the State's rules:

1. Replace the term “stationary source” in 40 CFR part 68 with the term “agricultural anhydrous ammonia facility,” which is defined at 10 CSR 10-6.255(2)(C); and

2. Replace the term “recognized and generally accepted good engineering practices” as it appears in 40 CFR 68.48(b), 40 CFR 68.56(d), 40 CFR 68.65(d)(2), and 40 CFR 68.73(d)(2), with the clause “ANSI/CGA G-2.1-2023 Requirements for the Storage and Handling of Anhydrous Ammonia (Seventh Edition).” This references the American National Standards Institute and Compressed Gas Association's industry standards, and the rule permits the use of alternative codes and specifications if demonstrated to be equivalent to or safer than the ANSI/CGA standard and such demonstrations is approved in advance by the MoDNR director.

Based on MoDNR's delegation request for a partial RMP and applicable laws and regulations, the EPA is proposing to approve the request, as MoDNR has satisfied the relevant criteria of 40 CFR 63.91, 63.93, and 63.95. The EPA is treating MoDNR's request as a request for delegation of a partial program with changes to the rule under 40 CFR 63.91(a)(2) and (4), as Missouri's regulations made changes to the RMP in 40 CFR part 68 as described above.

In accordance with 40 CFR 63.91(d)(1), the State's delegation request meets the section 112(l) approval criteria specified in the CAA and in 40 CFR 63.93 and 63.95.

Missouri's request for approval also satisfies the criteria of 40 CFR 63.91(d)(3). MoDNR provided a written finding by the Missouri Attorney General detailing MoDNR's authority to implement and enforce the RMP for agricultural anhydrous ammonia facilities, including:

• The authority to restrain or enjoin any person from engaging in any activity presenting an imminent and substantial endangerment to the public health or the environment; the ability to seek injunctive relief in court to enjoin any violation of any program requirement; and the authority to assess or sue to recover civil penalties and seek criminal remedies, found at section 643.085, RSMo;

• The authority to request information from regulated sources regarding their compliance status, found at section 643.050, RSMo; and

• The authority to inspect sources and any records required to determine a source's compliance status, found at section 643.050, RSMo.

The Attorney General also determined that MoDNR had adequate authorities to assure compliance with the RMP for sources subject to these provisions and inspect sources and records required to determine compliance status, as required by 40 CFR 63.91(d)(3)(i)(B) and (C). As explained above, RSMo sections 643.060 and 643.080 provide MoDNR with authority to request information from and conduct inspections of such sources.

In accordance with 40 CFR 63.91(d)(3)(ii)-(v), MoDNR submitted copies of the appropriate provisions of State statutes and regulations, documentation of adequate resources to implement and enforce the RMP, and a schedule and plan to assure expeditious implementation and compliance by all sources, including a description of the State's compliance tracking, enforcement program, and inspection strategies. With respect to adequate resources and expeditious implementation, MoDNR currently has three employees devoted almost entirely to program implementation.

In September 2025, MoDNR created an inspection targeting list for Federal fiscal year 2026 and began conducting inspections and compliance assistance visits of agricultural anhydrous ammonia facilities. MoDNR has three staff who are trained to conduct inspections to ensure compliance with 10 CSR 10-6.255. There are currently approximately 200 facilities subject to Missouri's regulations, such that MoDNR plans to inspect approximately 40 facilities each year. Therefore, MoDNR's request for approval of a partial RMP comports with the approval criteria set forth in 40 CFR 63.91(d).

MoDNR's request for approval also meets the approval criteria of 40 CFR 63.93(b). We have reviewed the limited changes Missouri made to its regulation and have determined that the applicability criteria and program requirements for each affected source are no less stringent than 40 CFR part 68. As detailed above, one of the requirements of Missouri's rule that differs from 40 CFR part 68 is the replacement of “recognized and generally accepted good engineering practices” with the 2023 ANSI/CGA standard for anhydrous ammonia. However, Missouri's rule also provides for the use of equivalent or safer industry standards. See 10 CSR 10-6.255(3)(A)(2).

The other change made to the rule is the substitution of the term “agricultural anhydrous ammonia facility” for the term “stationary source” anywhere it appears in 40 CFR part 68. Missouri's regulation defines “agricultural anhydrous ammonia facility” as “a stationary source facility that uses, stores, or sells agricultural anhydrous ammonia that meets the threshold quantity of ten thousand (10,000) lbs. as listed in Table 2 of 40 CFR 68.130.” The EPA finds that this change is no less stringent than the applicability criteria of 40 CFR part 68, which states that the owner or operator of a stationary source with a process subject to either Program 1, Program 2, or Program 3 must comply with the applicable requirements. See 40 CFR 68.10(j)-(l); 68.12(b)-(d). The federal rule defines “process” as “any activity involving a regulated substance including any use, storage, manufacturing, handling, or on-site movements of such substances, or combination of these activities.” 40 CFR 68.3. A “covered process” means “a process that has a regulated substance present in more than a threshold quantity as determined under § 68.115.” The definition of “agricultural anhydrous ammonia facility” in Missouri's regulation specifically incorporates the process and covered process for the identified stationary sources because the partial program covers only agricultural anhydrous ammonia. Replacing “stationary source” with “agricultural anhydrous ammonia facility” results in applicability criteria for Missouri's partial program that is no less stringent than 40 CFR part 68.

The approval criteria set forth in § 63.93(b)(3) requires the delegation request to contain a compliance schedule that requires each affected source to be in compliance within a time frame consistent with the deadlines established in the otherwise applicable Federal rule. The RMP establishes compliance deadlines for the owner or operator of a stationary source that has more than a threshold quantity of a regulated substance in a process, as determined under § 68.115, and states the owner or operator shall comply with the requirements of this part no later than the latest of the following dates:

(1) June 21, 1999;

(2) Three years after the date on which a regulated substance is first listed under § 68.130;

(3) The date on which a regulated substance is first present above a threshold quantity in a process; or

(4) For any revisions to this part, the effective date of the final rule that revises this part.

40 CFR 68.10(a).

Missouri's regulation incorporates by reference the provisions of 40 CFR part 68 with two changes, as noted above. Missouri's regulation became effective on February 28, 2025. Therefore, agricultural anhydrous ammonia facilities, as that term is defined in 10 CSR 10-6.255(2)(C), are currently subject to the Missouri regulation and must comply with 10 CSR 10-6.255 and, as incorporated by reference into the regulation, the compliance schedule of 40 CFR 68.10(a).

Therefore, the EPA finds that MoDNR's request for approval of a delegation of a partial RMP meets the criteria of 40 CFR 63.93(b).

Furthermore, pursuant to 40 CFR 63.95(b)(1), the State's request for approval demonstrates that it has the authority and resources to implement and enforce regulations that are no less stringent than the regulations in 40 CFR part 68, subparts A through G, and § 68.200, and a requirement that subject sources submit a risk management plan that reports at least the same information in the same format to the same location as required under 40 CFR part 68, subpart G.

Under 40 CFR 63.95(b)(2), a State's RMP may require reporting of information not required by the Federal program, and these requirements (like any other additional State requirements) will become federally enforceable upon approval. In this case, MoDNR has directly adopted by reference the Federal program in part 68 for the reporting requirements of subpart G.

As required by 40 CFR 63.95(b)(3)-(4), MoDNR submitted documentation that it has adequate procedures for reviewing risk management plans, providing technical assistance to stationary sources, including small businesses, and auditing risk management plans in a manner consistent with 40 CFR 68.220. In particular, MoDNR will review and audit risk management plans as part of the execution of its inspection scheme, by which facilities are inspected, at a minimum, once every five years based on both randomized data and targeted lists of facilities with late filing or non-submittal of risk management plans. MoDNR meets the minimum compliance and enforcement measures described in § 63.95 as discussed above, fulfilling the requirement of 40 CFR 63.91(d)(1).

If this proposal is finalized, MoDNR will have primary authority and responsibility to implement and enforce the RMP for agricultural anhydrous ammonia facilities in Missouri. However, nothing shall preclude, limit, or interfere with the authority of the EPA to exercise its outreach and compliance assistance, enforcement, investigatory, and information gathering authorities concerning this part of the CAA. If the EPA determines that MoDNR's procedures for enforcing or implementing the 40 CFR part 68 requirements are inadequate, or are not being effectively carried out, this delegation may be revoked in whole or in part in accordance with the procedures set forth in 40 CFR 63.96(b).

The EPA proposes to approve MoDNR's request for delegation of authority to implement and enforce a partial RMP for agricultural anhydrous ammonia facilities. MoDNR has incorporated by reference, with changes, the Federal requirements set forth in 40 CFR part 68 at 10 CSR 10-6.255 and regulates agricultural anhydrous ammonia facilities through this authority as well as its authority in RSMo sections 643.050, 643.060, 643.080, and 643.085. This delegation will extend to agricultural anhydrous ammonia facilities, as that term is defined in 10 CSR 10-6.255(2)(C), which are sources subject to the accidental release prevention regulations in 40 CFR part 68.

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to finalize the incorporation by reference of the Missouri rule 10 CSR 10-6.255 discussed in section II. of this preamble and as set forth below in the proposed amendments to 40 CFR part 63. The purpose of this State regulation is to define the Agricultural Anhydrous Ammonia Program and the requirements of the program in the State of Missouri. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Regional Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. Thus, in reviewing delegation requests under 112(l), the EPA's role is to review and approve State program delegation requests, provided that they meet the criteria and objectives of the CAA and the EPA's implementing regulations. Accordingly, this proposed action merely approves the State's request and does not impose additional requirements beyond those imposed by State law. For that reason:

This action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 4, 1993) and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not an Executive Order 14192 regulatory action because this action is not significant 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 certified as not having a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This action merely delegates to the local agency the authority to implement the already applicable requirements of the Federal Rule.

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

This action does not have federalism implications as specified in Executive Order 13131 (64 FR 43255, August 10, 1999). 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. Thus, Executive Order 13175 does not apply to this action.

Executive Order 13045 directs federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action merely delegates to a State agency the authority to administer the already applicable RMP.

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 rulemaking does not involve technical standards. This action merely delegates to a State agency the authority to administer the already applicable RMP.

For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 63 as set forth below:

This is a summary of the Commission's Public Notice, FCC-26-10, adopted February 18, 2026 and released February 19, 2026. The full text of this document is available by downloading the text from the Commission's website at https://docs.fcc.gov/public/attachments/FCC-26-10A1.pdf or by using the search function for MB Docket No. 26-20 on the Commission's ECFS web page at https://www.fcc.gov/ecfs.

Paperwork Reduction Act. This document contains proposed information collections subject to the Paperwork Reduction Act of 1995. The Commission has OMB approval to collect these applications under OMB Control Number 3060-0405.

Providing Accountability Through Transparency Act. Consistent with the Providing Accountability Through Transparency Act, a summary of this document will be available on https://www.fcc.gov/proposed-rulemakings.

1. In this Public Notice, we announce that we are directing the Media Bureau (Bureau) to open the first-ever filing window for applications for new noncommercial educational (NCE) reserved band FM translator station construction permits. The Bureau will issue a subsequent Public Notice to announce the specific dates of the 2026 window. By this Public Notice, we also seek comment on establishing eligibility restrictions and a limit on the number of applications that each applicant may file in the upcoming window.

2. The Commission has employed application caps or eligibility restrictions in prior reserved band full service NCE FM windows and non-reserved band FM translator windows to promote efficiency, curb speculative applications, and expedite the processing of applications and expansion of new service while preserving spectrum and future licensing opportunities. Specifically, in the NCE context, the Commission has established by public notice a limit on the number of NCE applications filed by an applicant in a filing window. In both 2007 and 2021, before the full service NCE FM station filing windows opened, the Commission sought comment on an application cap and subsequently established a limit of ten NCE FM new station applications filed by an applicant during each filing window. In each window, this application limit helped restrict the number of mutually exclusive applications (including “daisy chains” of mutually exclusive applications), and thereby minimized the delay caused by processing complicated application chains. The ten application cap allowed the Commission to expeditiously process and grant thousands of applications to a wide range of local and diverse applicants, therefore promoting the rapid expansion of new NCE FM service throughout the country.

3. The Commission has also imposed eligibility restrictions and limits in prior FM translator filing windows to be consistent with the mandates of Section 5 of the Local Community Radio Act of 2010 (LCRA), which require the Commission to ensure that licensing opportunities are available for all secondary services and that translator licensing procedures do not foreclose or unduly limit future low power FM (LPFM) licensing. For example, in both Auction 99 and Auction 100, the only new FM translator windows since passage of the LCRA, which opened pursuant to the AM Revitalization proceeding, the Commission limited the scope of the window and designed strict eligibility requirements to ensure continuing licensing opportunities for all secondary services. The Commission concluded that “a narrowly tailored filing window for such FM translators . . . could yield significant public interest benefits with little to or no detriment either to the FM translator service or to licensing opportunities for LPFM stations, especially since the filing window proposed will follow the 2013 LPFM filing window.” Similarly, to comport with the LCRA, the Commission implemented remedial processing procedures and restrictions for the then-remaining 2003 Auction 83 FM translator applications. The restrictions and procedures adopted for these prior FM translator filing windows were designed to strike a balance between the stated goals of the specific proceeding and the overall goal of preserving spectrum for secondary services.

4. Given the success of both the October 2007 and November 2021 NCE FM filing windows, as well as the Auction 99 and Auction 100 cross-service FM translator windows, we tentatively conclude that we should establish eligibility restrictions and an application limit in the upcoming NCE reserved band FM translator filing window. We believe eligibility restrictions and an application cap would deter speculative filings, permit the expeditious processing of the applications filed in the window, and provide interested applicants with a meaningful opportunity to file for and obtain new NCE reserved band FM translator station licenses while still preserving spectrum for future secondary services, consistent with the LCRA. In contrast, we tentatively conclude that the failure to establish eligibility restrictions and a limit on the number of new NCE reserved band FM translator applications that an applicant may file in the window could lead to a large number of speculative filings, create the potential for extraordinary procedural delays, and unduly deplete spectrum for future secondary services.

5. Further, in the NCE context, the Commission has stated that application limits should be considered “[i]f the number of mutually exclusive applications received under the new [point] system exceeds our expectations.” Consistent with the Commission's predictions in connection with establishing an application cap before opening the October 2007 and November 2021 NCE FM windows, we expect there will be a large volume of NCE reserved band FM translator applications filed in the forthcoming window that will require establishing an application cap before the window opens. There are several factors that could contribute to a large volume of NCE reserved band FM translator applications in the forthcoming window: (a) there is no application filing fee; (b) there are generally no ownership limits in the reserved band; (c) there has never been a filing window for new NCE reserved band FM translator applications; (d) LPFM station licensees are now permitted to own up to two FM translator stations, and this window marks the first opportunity for such applicants to file for new FM translator station licenses; and (e) the Commission simplified and clarified its rules and procedures for filing applications for new NCE applications and considering competing applications. Accordingly, we tentatively conclude that establishing an application limit before the window opens will provide certainty to potential applicants and allow for expeditious processing of applications. We seek comment on this approach.

6. Accordingly, consistent with our mandate under section 5 of the LCRA and to promote efficiency in this window, we tentatively conclude that a general ten-application cap is a reasonable limit. The Commission has successfully used an identical ten-application cap in previous full service NCE windows to ensure our licensing procedures do not foreclose or unduly limit future licensing and to prevent mass filings by speculators, while still allowing legitimate applicants a meaningful opportunity to obtain new station licenses. We believe that a ten-application limit will permit the efficient and expeditious processing of window-filed applications while at the same time supporting the goals of localism and diversity reflected in the NCE point system and our mandate under Section 5 of the LCRA. As noted above, in previous windows where we have not imposed an application cap, we have experienced extensive delays due to speculative applications. We believe the action we propose herein will avoid those problems in this window. Moreover, in order to further constrain speculative applications and to ensure this window provides additional flexibility to existing broadcasters, we tentatively conclude that imposing a requirement that each applicant be the licensee or permittee of an existing NCE FM or noncommercial AM radio broadcast station or LPFM station (primary station), which the proposed FM translator will rebroadcast, will further these goals. Finally, in accordance with the § 73.860 LPFM cross-ownership restrictions, we tentatively propose to separately impose a four-application cap for Tribal LPFM applicants and a two-application cap for all other LPFM applicants. As such, we propose the following eligibility restriction and application limits:

In the 2026 new NCE reserved band FM translator station construction permit filing window: (1) each applicant must be the licensee or permittee of an existing NCE FM or noncommercial AM radio broadcast station or LPFM station (primary station) that the proposed FM translator station will rebroadcast; (2) each applicant entity may file no more than a total of ten applications nationally, except that (i) each Tribal LPFM applicant entity that is subject to § 73.860(c) may file no more than a total of four applications nationally, and (ii) each other LPFM applicant entity that is subject to § 73.860(b) may file no more than a total of two applications nationally; and (3) a party to an application may hold attributable interests, as defined in § 73.7000, in no more than the maximum applications permitted under this rule. If it is determined that any applicant entity filed more than the maximum applications permitted under this rule, or any party to an application has an attributable interest in more than the maximum permitted, the Media Bureau will retain the applications that were filed first—based on application receipt data—and dismiss all other applications that exceed the limit.

7. We seek comment on this proposed eligibility restriction and application cap. We specifically seek comment on whether the proposed general ten application cap and primary station eligibility restriction are appropriate limits to enable the efficient processing of applications and initiation of new NCE reserved band FM translator service, while still preserving secondary service spectrum, whether different eligibility restrictions or application caps would be more appropriate, or whether we should establish no limit or restrictions at all. In particular, we note that our goal is to give interested parties the opportunity to apply for NCE reserved band FM translator outlets, subject to the apparent need for eligibility restrictions and an application cap for the reasons described above.

8. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this IRFA of the policies and rules proposed in the Public Notice assessing the possible significant economic impact on a substantial number of small entities. The Commission requests written public comments on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments specified on the first page of the Public Notice. The Commission will send a copy of the Public Notice, including this IRFA, to the Chief Counsel for the SBA Office of Advocacy. In addition, the Public Notice and IRFA (or summaries thereof) will be published in the Federal Register .

9. The Commission has determined that, absent eligibility restrictions and a limit on the number of applications that an entity may file in the filing window described in the Public Notice, some applicants may file a large number of speculative applications, including applications that are mutually exclusive with each other. Accordingly, the Commission has tentatively determined that a general limit of ten applications for new NCE reserved band FM translator station construction permits in the filing window, as well as imposing a requirement that each applicant be the licensee or permittee of an existing NCE FM or noncommercial AM radio broadcast station or LPFM station (primary station) that the proposed FM translator will rebroadcast, are appropriate procedural safeguards. We also tentatively propose to separately impose a four-application cap for Tribal LPFM applicants and a two-application cap for all other LPFM applicants. The Commission tentatively concludes that an application limit and eligibility restrictions will deter speculation, permit the expeditious processing of the NCE reserved band FM translator applications filed in the window, and provide interested applicants with a meaningful opportunity to file for and obtain new NCE reserved band FM translator station licenses while still preserving spectrum for future secondary services. The Commission believes that the proposed eligibility restriction and application limit will benefit small entities, as defined below.

10. The proposed action is authorized pursuant to authority set forth in 47 U.S.C. 151, 152(a), 154(i) and (j), 301, 303(g) and (r), 308(b), and 309(j) of the Communications Act of 1934, as amended.

11. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. The SBA establishes small business size standards that agencies are required to use when promulgating regulations relating to small businesses; agencies may establish alternative size standards for use in such programs, but must consult and obtain approval from SBA before doing so.

12. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe three broad groups of small entities that could be directly affected by our actions. In general, a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 34.75 million businesses. Next, “small organizations” are not-for-profit enterprises that are independently owned and operated and not dominant their field. While we do not have data regarding the number of non-profits that meet that criteria, over 99 percent of nonprofits have fewer than 500 employees. Finally, “small governmental jurisdictions” are defined as cities, counties, towns, townships, villages, school districts, or special districts with populations of less than fifty thousand. Based on the 2022 U.S. Census of Governments data, we estimate that at least 48,724 out of 90,835 local government jurisdictions have a population of less than 50,000.

13. The rules proposed in the Public Notice will apply to small entities in the industries identified in the chart below by their six-digit North American Industry Classification System (NAICS) codes and corresponding SBA size standard. Based on currently available U.S. Census data regarding the estimated number of small firms in each identified industry, we conclude that the proposed rules will impact a substantial number of small entities. Where available, we also provide additional information regarding the number of potentially affected entities in the industries identified below.

14. The RFA directs agencies to describe the economic impact of proposed rules on small entities, as well as projected reporting, recordkeeping and other compliance requirements, including an estimate of the classes of small entities which will be subject to the requirements and the type of professional skills necessary for preparation of the report or record.

15. The Public Notice seeks comment on establishing eligibility restrictions and a limit on the number of applications that each applicant may file in the upcoming window. We anticipate that none of the changes adopted as a result of the Public Notice would result in an increase to the reporting and recordkeeping requirements of broadcast stations or applicants for NCE reserved band FM translator authorizations. Small entity applicants would be required to comply with application requirements, including submitting no more than a total of ten applications nationally. Small Tribal LPFM applicants may file no more than four applications nationally, and other LPFM applicants subject to § 73.860(b) of the Commission's rules may file no more than a total of two applications nationally. Applicants may hold attributable interests in no more than the maximum applications permitted as defined in § 73.7000 of the Commission's rules. As noted above, we invite small business entities to comment in response to the Public Notice, and provide specific information pertaining to the costs, benefits, and impacts of any potential reporting, recordkeeping, or compliance requirements we discuss.

16. The RFA directs agencies to provide a description of any significant alternatives to the proposed rules that would accomplish the stated objectives of applicable statutes, and minimize any significant economic impact on small entities. The discussion is required to include alternatives such as: “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

17. We are directed under law to describe any alternatives we consider, including alternatives not explicitly listed above. The Public Notice describes and seeks comment on (1) a proposed limit on the number of new NCE reserved band FM translator applications that may be filed during the filing window described in the Public Notice, and (2) a proposed requirement that each applicant be the licensee or permittee of an existing NCE FM or noncommercial AM radio broadcast station or LPFM station (primary station) that the proposed FM translator will rebroadcast. The proposed limit and eligibility restrictions are intended to benefit all small NCE entities seeking to establish a new NCE reserved band FM translator service by preventing mass filings of speculative applications and preserving spectrum for future secondary services. The proposed limit and eligibility restrictions should benefit applicants by expediting the review and processing of applications filed during the window. The proposed limit does not impose any significant compliance or reporting requirements because it would merely set a limit on the number of applications for new NCE reserved band FM translator authorizations a party could file during the window. Similarly, the proposed requirement that each applicant be the licensee or permittee of an existing NCE FM or noncommercial AM radio broadcast station or LPFM station (primary station) that the proposed FM translator will rebroadcast does not impose any significant compliance or reporting requirements. Accordingly, we are not aware of any alternatives that would benefit small entities. We encourage small entities to comment on the proposed limit described in the Public Notice.

18. None.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 74 as follows:

Why we need to publish a rule. Under the Act, a species warrants delisting if it no longer meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range). Geocarpon minimum is listed as threatened, and we are proposing to delist it. We have determined Geocarpon minimum does not meet the Act's definition of an endangered or threatened species. Delisting a species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This rule proposes to remove Geocarpon minimum from the Federal List of Endangered and Threatened Plants based on its recovery; if we finalize this rule as proposed, the prohibitions and conservation measures provided by the Act, particularly through sections 4 and 7, would no longer apply to Geocarpon minimum.

The basis for our action. Under the Act, we may determine that a species is an endangered species or a threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The determination to delist a species must be based on an analysis of the same factors.

Under the Act, we must review the status of all listed species at least once every five years. We must delist a species if we determine, on the basis of the best scientific and commercial data available, that the species is neither a threatened species nor an endangered species. Our regulations at 50 CFR 424.11(e) identify four reasons why we might determine a species shall be delisted: (1) The species is extinct; (2) the species has recovered to the point at which it no longer meets the definition of an endangered species or a threatened species; (3) new information that has become available since the original listing decision shows the listed entity does not meet the definition of an endangered species or a threatened species; or (4) new information that has become available since the original listing decision shows the listed entity does not meet the definition of a species. Here, we have determined that Geocarpon minimum has recovered to the point at which it no longer meets the definition of an endangered species or a threatened species; therefore, we are proposing to delist it.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.

We particularly seek comments concerning:

(1) Reasons we should or should not remove Geocarpon minimum from the List of Endangered and Threatened Plants;

(2) Relevant data concerning any threats (or lack thereof) to Geocarpon minimum, particularly any data on the possible effects of climate change as it relates to habitat, as well as the extent of State protection and management that would be provided to this plant as a delisted species;

(3) Current or planned activities within the geographic range of Geocarpon minimum that may have either a negative or positive impact on the species, including, but not limited to, planned management, research regarding the role of habitat disturbance, or research regarding seed bank longevity and viability;

(4) New information concerning the historical and current status, range, distribution, management, and population size of Geocarpon minimum, including information on the populations recently discovered since the species status assessment (SSA) report was completed, and information on location of any additional populations of this species; and

(5) Considerations for post-delisting monitoring, including monitoring protocols and length of time monitoring is needed, as well as triggers for reevaluation.

Please include any supplemental information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, do not provide substantial information necessary to support a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered species or a threatened species must be made solely on the basis of the best scientific and commercial data available.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Our final determination may differ from this proposal because we will consider all comments we receive during the comment period as well as any information that may become available after this proposal. For example, based on the new information we receive (and if relevant, any comments on that new information), we may conclude that the species should remain listed as threatened, or we may conclude that the species should be reclassified from threatened to endangered. We will clearly explain our rationale and the basis for our final decision, including why we made changes, if any, that differ from this proposal.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. We may hold the public hearing in person or virtually via webinar. We will announce any public hearing on our website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3).

On June 16, 1987, we listed Geocarpon minimum (no common name) as threatened due to habitat destruction or modification (from pasturing, off-road vehicle use, forestry practices, and succession) and its limited distribution (52 FR 22930). A recovery plan for the species was released on July 26, 1993. We completed 5-year reviews of the species on November 6, 1991; July 1, 2009; and July 20, 2016. None of these 5-year reviews recommended a change in status for the species.

On July 14, 2021, we published a notice (86 FR 37178) announcing that we were conducting 5-year status reviews of 37 endangered and threatened species, including Geocarpon minimum, and requested information on the species' status. This proposed rule constitutes completion of that 5-year status review for Geocarpon minimum.

A species status assessment (SSA) team prepared an SSA report for Geocarpon minimum. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing and recovery actions under the Act ( https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf ), we solicited independent scientific review of the information contained in the Geocarpon minimum SSA report. The Service sent the SSA report to seven independent peer reviewers and received three responses. The peer reviews can be found at https://www.regulations.gov at Docket No. FWS-R4-ES-2024-0043. In preparing this proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which is the foundation for this proposed rule.

As discussed above in Peer Review, we received comments from three peer reviewers on the draft SSA report. We reviewed all comments from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and editorial suggestions. One reviewer suggested that we model extreme climate changes rather than rely on models focused on mean predicted changes. We acknowledged the potential effects of extreme changes but used modeling focused on mean values since expert input showed no confident predictions of how Geocarpon minimum may respond to changes in temperature and precipitation. This reviewer also questioned the use of potential abundance as a current condition metric since monitoring across the species' range is inconsistent. We acknowledged the potential issues with this metric in the SSA report but concluded that using potential abundance is the best information available to compare the condition of populations throughout the species' range. Otherwise, no substantive changes to our analysis and conclusions within the SSA report were deemed necessary, and peer reviewer comments are addressed in the SSA report (Service 2021, entire).

A thorough review of the biological information on Geocarpon minimum, including taxonomy, life history, ecology, and conservation activities, as well as threats facing the species or its habitat is presented in our SSA report (Service 2021, entire), which is available at https://www.regulations.gov in Docket No. FWS-R4-ES-2024-0043. The SSA report documents the results of our comprehensive biological status review for Geocarpon minimum but does not represent any decision by the Service regarding the status of Geocarpon minimum under the Act. It does, however, serve as one of the bases for this proposed rule and our regulatory decision, which involves the further application of standards in the Act and its implementing regulations and policies. In this proposed rule, we present only a summary of the key results and conclusions from the SSA report; the full report is available at https://www.regulations.gov, as referenced above.

Geocarpon minimum is a small winter annual plant in the Caryophyllaceae family and is restricted to sandstone glade and saline prairie or barren habitats. At the time of listing in 1987, the species occurred in 17 populations across two states (Missouri and Arkansas). It is currently known to occur in 46 extant populations in 4 representation units (RUs) across 5 ecoregions (Ozark Highlands, Central Irregular Plains, Arkansas Valley, South Central Plains, and Cross Timbers) in Missouri, Arkansas, Louisiana, Oklahoma, and Texas. Three of the four RUs correspond with their respective ecoregion (Arkansas Valley, South Central Plains, and Cross Timbers) and the fourth RU combines the two ecoregions (Ozark Highlands/Central Irregular Plains). These two ecoregions are considered one RU because a majority of the populations occur within the Ozark Highlands ecoregion and the remaining populations occurring in the Central Irregular Plains are in the transitional zone between ecoregions.

The species occupies discrete microhabitats consisting of highly mineralized soils that are not suitable for most other plants. The species requires these harsh conditions to avoid competition from other plants. Studied Geocarpon minimum populations contain either a single or a few unique homozygous lineages, each commonly occurring at high frequencies, indicating that it is an obligate self-pollinator (Edwards et al. 2019, p. 1444). Seed dispersal appears highly localized and likely occurs by gravity and via water sheet flow or wind (Service 1993, p. 2; NatureServe 2021, unpaginated). The seeds of Geocarpon minimum remain in the seed bank for an indeterminate period with evidence suggesting the likelihood of remaining viable for several years, e.g., potentially for at least 5-10 years (Service 2021, p. 6). Further information on the basic biology and ecology of Geocarpon minimum is summarized in the SSA report (Service 2021, entire).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the Lists of Endangered and Threatened Wildlife and Plants.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species or to delist a species is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may or may not follow all of the guidance provided in a recovery plan.

A recovery plan for Geocarpon minimum was issued in 1993 (Service 1993, entire) with the objective to delist the species. The plan provides three criteria to accomplish this objective. The discussion below provides an assessment of these three delisting criteria as they relate to evaluating the status of the species.

Delisting Criterion 1: A total of 15 viable populations, representing the diversity of habitats and geographic range of the species, are protected as necessary to ensure continued existence.

This criterion has been met. Currently, 28 of the 46 populations (61 percent) occur on lands that are protected or are wholly or partially publicly owned, and thus more likely to be protected for the species. Of these 28 sites, 15 rank as having high resiliency, 7 as having moderate resiliency, 2 as having low resiliency, and 5 recently discovered populations have unknown resiliency. These 15 highly resilient populations represent 33 percent of known populations and are spread throughout 3 of the 4 representation units (Service 2021, pp. 20, 34).

Delisting Criterion 2: Populations include the wide spectrum of current genetic variation found in the species.

Recent studies indicate individual populations of Geocarpon minimum are genetically unique with little interaction due to isolation, self-pollination, and low seed vagility (Edwards et al. 2019, entire). Our future modeling (see Future Condition, below) predicts all populations (and, thus, their associated full spectrum of genetic diversity) will persist in similar condition into the foreseeable future. Additionally, there has been a large increase in the number of known populations since listing thus providing an increase in the known genetic variation. We now have 46 known populations, with over half located on protected sites that provide a wide spectrum of genetic variation across the species' range. Therefore, the intent of this criterion has been met.

Delisting Criterion 3: Population viability is confirmed through periodic monitoring for at least a 15-year period.

The intent of this criterion has been met. Most populations, including 11 of the 15 highly resilient populations, have been periodically monitored for at least a 15-year period. Some populations have documented presence for a period of more than 60 years. Because of the discovery of newer populations, some sites have only been visited once or twice. The mean time between the first observation and last observation for the 15 protected highly resilient populations is 28 years (range = 2-63). When excluding the newly discovered populations, the mean period of monitoring for these populations is 36 years (range = 19-63). Although there is some uncertainty regarding population fluctuations that may have occurred in the interim between the first and last monitoring time, there has been no change in the populations' protection or resiliency over the average time frame of 36 years. These monitoring results provide confidence that the highly resilient condition of these populations is stable. The remaining recently discovered populations may also exhibit long-term viability, given that some showed high resiliency scores during recent observations.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. The determination to delist a species must be based on an analysis of the same five factors.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis which is further described in the 2009 Memorandum Opinion on the foreseeable future from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M- Opinion,” available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf ). The foreseeable future extends as far into the future as the U.S. Fish and Wildlife Service and National Marine Fisheries Service can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. We need not identify the foreseeable future in terms of a specific period of time. We will describe the foreseeable future on a case-by-case basis, using the best scientific and commercial data available and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. In other words, the foreseeable future is the period of time over which we can make reasonably reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data available regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be proposed for delisting. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess Geocarpon minimum viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events); and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogen). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' future condition, including responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best scientific and commercial data available to characterize viability as the ability of a species to sustain populations in the wild over time which we then used to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R4-ES-2024-0043 on https://www.regulations.gov.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. In addition, the SSA Report (Service 2021, entire) documents our comprehensive biological status review for the species, including an assessment of the potential threats to the species.

The following is a summary of this status review and the best scientific and commercial data available gathered since that time that has informed this decision.

Geocarpon minimum is an annual, small succulent-like forb that emerges as early as November in the form of small winter rosettes, with flowering stems emerging from March to mid-April (Morgan 1986, p. 5). The plant has no obvious adaptations such as nectaries or a showy calyx or corolla that might attract pollinators (Edwards et al. 2019, pp. 1438-1439). Further, the species does not have observed pollinators and relatively few unique homozygous lineages, both indicating that it is an obligate self-pollinator (Tucker 1983, p. 18; Edwards et al. 2019, p. 1444). Geocarpon minimum seed dispersal appears highly localized and likely occurs by gravity and via water sheet flow or wind (Service 1993, p. 2; NatureServe 2021, unpaginated). Genetic analysis backs up the low vagility of this species, although there are rare instances where closely related genotypes are present in adjacent or geographically distant populations (Edwards et al. 2019, p. 1444). This indicates that there may be other mechanisms that lead to more extensive dispersal of seeds. Possible means include the intentional or inadvertent movement by of soil by humans or animals and movement of seeds by extreme weather events including major flooding or extreme winds (Edwards et al. 2019, p. 1444; NatureServe 2021, p. 5). The seeds of Geocarpon minimum are present in the seed bank for an indeterminant period, possibly for many years (Service 2021, p. 6).

The flowering and fruiting period when plants are most visible ranges from January to early June, with March and April as the most common survey dates reported throughout the range (Palmer and Steyermark 1950, p. 269; Tucker 1983, p. 5; Bridges 1986, p. 28-29; Baker and Soteropoulos 2021, p. 3). The entire flowering period typically lasts about a month. Local weather patterns impact the success of germination, flowering, and seed production (Bridges 1986, pp. 28-29; Morgan 1986, p. 5; Shepherd 1987, p. 17; Baker and Soteropoulos 2021, p. 3). Some Geocarpon minimum sites may become unsuitable due to water ponding associated with a very wet winter and spring (Baker and Soteropoulos 2021, p. 38). Growth and flowering in the spring is thought to be dictated primarily by temperature (Morgan 1986, p. 5). After flowering, both temperature and soil moisture play a role in the final growth of the plant and ultimately the number of viable seeds. Additionally, late frosts may play a role in the local distribution of annual species that flower in early spring (Tucker 1983, p. 11). It has further been hypothesized that the reduced abundance of Geocarpon minimum and suitable microhabitat observed over the last two decades in some southern Arkansas populations (South Central Plains RU) may also be the result of abnormally wet summer and fall seasons that promote the growth of competing vegetation (Baker 2021b, pers. comm.).

Geocarpon minimum populations occur within five ecoregions in the south central United States (Ozark Highlands, Central Irregular Plains, Arkansas Valley, South Central Plains, and Cross Timbers) (U.S. Environmental Protection Agency (USEPA) 2013, entire). Geocarpon minimum generally occurs in two distinct habitat types rangewide: sandstone glades (Ozark Highlands, Central Irregular Plains, and Cross Timbers) or saline barrens (Arkansas Valley and South Central Plains). In both habitat types, the species occurs exclusively in open habitats, thriving in areas with unobstructed sunlight and lack of competition.

The main threats to Geocarpon minimum at the time of listing were habitat destruction or modification (from pasturing, off-road vehicle use, forestry practices, and succession), as well as the impacts from the species' limited distribution. The species' distribution has increased from 17 known populations in 2 states at the time of listing to 46 currently known populations in 5 states, with new populations continuing to be found. Thus, we no longer consider the species' distribution limited, and thus we do not consider the distribution as a major stressor. In this rule, we discuss the major threats affecting the species now and into the future, which include habitat disturbance, climate change, vegetation encroachment, and development. These threats, their sources, and their effects to Geocarpon minimum are summarized below.

Habitat disturbance can be both a threat and benefit to the species with timing and intensity of the disturbance dictating whether there are negative or positive impacts (see “Habitat Management” below). Geocarpon minimum is likely dependent upon some level of disturbance to maintain suitable microhabitat conditions. The type, frequency, and intensity of required disturbance is unclear, although numerous authors report the role of disturbance in the long-term viability of populations (Rettig 1983, p. 213; Tucker 1983, p. 19; Shephard et al. 1990, p. 6; Logan 1998, p. 1; Smith and Ely 2006, p. 1156; Baker and Soteropoulos 2021, p. 6; Briggler 2021a, pers. comm.).

Light surface disturbance during the summer, fall, or early winter may be beneficial for maintaining suitable microhabitat in the saline prairies of south Arkansas and sandstone glades of Missouri (Baker 2021a, pers. comm.; Briggler 2021a, pers. comm.). This disturbance may have historically occurred due to periodic use as salt licks by large mammals such as deer, elk, or bison (Witsell 2004, p. 5), although off-road vehicle use may replicate this disturbance. Conversely, surface disturbance by off-road vehicle use during the wet periods of winter and spring may negatively affect Geocarpon minimum due to rutting and associated standing water and establishment of perennial vegetation (Bridges 1986, p. 30; Morgan 1986, pp. 6-7). However, soil disturbance by off-road vehicles along with removal of woody vegetation were noted in the creation of additional suitable habitat at one site in Missouri (Missouri Department of Conservation (MDC) 2021, entire).

Although robust germination events have been observed following rooting by feral hogs (Keith 2020, p. 4), the long-term effects may be negative and similar to those of wet season off-road traffic (Baker 2021a, pers. comm.). The effects of cattle grazing have been described variously as potentially beneficial due to heavy grazing of competing grasses or trampling of competitive mosses (Witsell 2003, p. 3; Smith and Ely 2006, p. 1147; MDC 2021, entire) as well as detrimental due to trampling and churning of shallow sands and deposition of organic matter leading to invasion by more competitive species (Morgan 1986, pp. 6-7; MDC 2021, entire).

Similarly, habitat disturbance through fire may be detrimental or beneficial for the species. Fire is effective at reducing competition from lichens, mosses, and woody or other perennial vascular plants, but should be conducted outside the late winter/early-spring vegetative period to avoid direct losses of Geocarpon minimum (Baker 2021a, pers. comm.; Briggler 2021b, pers. comm.). Surface disturbance and fire (either controlled or natural) are likely essential to the long-term maintenance of appropriate habitat for Geocarpon minimum, but also can be threats to the species with the timing and intensity of disturbances dictating the effects to populations.

As mentioned above, habitat disturbance through feral hog damage is a possible threat to Geocarpon minimum at some sites with the potential to extirpate populations (Baker and Soteropoulos 2021, pp. 7, 32; Louisiana Department of Wildlife and Fisheries (LDWF) 2021, entire). Feral hog damage has only been noted in saline prairie habitats and habitats adjacent to sandstone outcrops (Keith 2020, p. 4; Baker 2021c, pers. comm.; LDWF 2021, entire). Observers noted significant hog damage within unoccupied sandstone glades in the Ozarks of Arkansas (Baker 2021c, pers. comm.). If present in adequate densities, feral hogs could eventually affect Geocarpon minimum sites within sandstone glades in Missouri, Texas, and Oklahoma. Intensive rutting during wet periods can alter the microhydrology and thoroughly mix the soil at a site, making it less suitable for Geocarpon minimum and more attractive to competitive species. See “Habitat Management” for information on feral hog removal at Geocarpon minimum sites. It has been noted in Arkansas and Texas that Geocarpon minimum may respond vigorously in the first few years following such disturbance, but the habitat soon becomes unsuitable due to the intrusion of competitive plants (Keith 2020, p. 4; Baker 2021a, pers. comm.).

Associated long-term changes observed as a result of a warming climate include changes in arctic temperatures and ice coverage, changes in precipitation amounts, ocean salinity, wind patterns and extreme weather, including droughts, heavy precipitation events, heat waves, and increased tropical cyclone intensity (Intergovernmental Panel on Climate Change (IPCC) 2014, pp. 70-73). Continued change is likely, but individual models downscaling the rate and magnitude of change within a specific region are less certain. Species dependent upon specialized habitats or climatic conditions, limited in distribution, or occurring at the periphery of their range may be more susceptible to the effects of climate change.

Predicting the potential effects of climate change upon populations of Geocarpon minimum is complicated because the species occupies sites exhibiting a wide range of temperature and precipitation conditions. We used summary projections for the historical simulation (1971-2000) to characterize current climatic conditions for the species (Service 2021, p. 11). Mean winter (December through February) rainfall amounts for populations range from 14.5 centimeters (cm) (5.7 inches (in)) in the Cross Timbers ecoregion to 37.3 cm (14.7 in) in the South Central Plains. Spring (March through May) rainfall amounts range from a mean of 26.2 cm (10.3 in) in the Cross Timbers to 35.6 cm (14.0 in) in the South Central Plains. Mean winter temperatures vary from 1.3 degrees Celsius (°C) (34.3 degrees Fahrenheit (°F)) in the Ozark Highlands/Central Irregular Plains to 8.3 °C (46.9 °F) in the South Central Plains. Mean spring temperatures are lowest in the Ozark Highlands/Central Irregular Plains at 13.4 °C (56.2 °F) and highest in the Cross Timbers at 18.4 °C (65.1 °F).

Timing and intensity of winter and spring temperatures and rainfall are important drivers of annual success for this species (Steyermark 1958, p. 125; Tucker 1983, p. 11; Bridges 1986, pp. 28-29; Morgan 1986, p. 5; Shepherd 1987, p. 17; Logan 1998, pp. 1-2; Baker and Soteropoulos 2021, p. 3). Abnormally dry or cold winter/spring seasons may reduce germination and seed production. Conversely, excessive rain may negatively affect populations within saline prairies due to pooling of water within the microhabitat (Baker and Soteropoulos 2021, p. 38). Many of the sites closely associated with mineral slicks are undergoing slow succession from open slicks with gradations of microhabitats to more homogenous habitats dominated by mosses, dense annual vegetation, or perennial grasses (Baker and Soteropoulos 2021, p. 6). This change may be due to a lack of periodic disturbance. Furthermore, monitoring in Missouri shows more competition from woody vegetation in sandstone glades, which may be related to heavier summer rainfall (Briggler 2021a, pers. comm.).

The resilience of some Geocarpon minimum populations to short-term drought is anecdotally supported by climatic data and population monitoring at the Warren Prairie populations in southern Arkansas. These populations experienced extreme to exceptional drought conditions for a 12-month period from September 2010 to August 2011 (National Integrated Drought Information System (NIDIS), 2021, unpaginated). This drought encompassed the entire life cycle of Geocarpon minimum (late fall/winter germination through late spring seed drop). Slightly dry to normal rainfall patterns returned to the region beginning in September of 2011. Monitoring during spring 2012 revealed the highest number of plants observed at this site over 10 years of monitoring (2012-2021) (Baker 2021c, pers. comm.; Baker and Soteropoulos 2021, pp. 25-26). These data indicate that the species rebounded immediately following a severe drought year. Estimated populations at Warren Prairie fluctuated in the following years but never exceeded the numbers observed in 2012.

Although drought during the late fall/winter/spring seasons may negatively affect Geocarpon minimum success in a given year, seeds likely remain viable for several years and perhaps longer (Service 2021, p. 6). Additionally, drought monitoring data dating back to 1895 indicate that periods of drought are common throughout the range of Geocarpon minimum, although the frequency and duration of events varies (NIDIS 2021, unpaginated). In recent decades, droughts have occurred less frequently (Service 2021, table 1, p. 14).

Climate predictions generally describe future conditions with more extremes (for example, increased drought or heavy rainfall events). The predictive models we used focus on mean values for future temperature and precipitation but lack detailed or long-term predictions for extreme events. Predicted changes in temperature and precipitation vary by RU and season (Service 2021, pp. 58-61). In the future scenario (2070-2099), maximum winter season changes in precipitation range from −1.3 cm (−0.5 in) (South Central Plains) to +1.8 cm (+0.7 in) (Ozark Highlands/Central Irregular Plains) with temperature changes predicted from +4.2 °C (+7.50 °F) (South Central Plains) to +4.9 °C (+8.7 °F) (Ozark Highlands/Central Irregular Plains). Spring changes include less rainfall in the Cross Timbers (1.4 cm (−0.6 in)) and more rainfall in the Ozark Highlands/Central Irregular Plains (+4.0 cm (+1.6 in)), with temperature increases ranging from +4.4 °C (+8.0 °F) (South Central Plains) to +4.7 °C (+8.5 °F) (Cross Timbers). Winter and spring are the most important seasons for Geocarpon minimum germination, growth, and seed production.

Although this plant does not grow in the summer and fall, these seasons may be important in maintaining suitable microhabitats for this species. Predicted summer changes include reductions of rainfall and increases in temperature across all RUs ranging from −2.2 cm (−0.9 in) (Ozark Highlands/Central Irregular Plains) to −5.1 cm (−2.0 in) (South Central Plains) and +5.3 °C (+9.6 °F) (Cross Timbers) to +6.3 °C (+11.3 °F) (Arkansas Valley). Fall predictions range from reductions of rainfall in the Cross Timbers of −0.2 cm (−0.1 in) to increases of rainfall in the Ozark Highlands/Central Irregular Plains of +0.4 cm (+0.1 in). For fall, temperatures are predicted to rise and range from +5.2 °C (+9.4 °F) in the South Central Plains to +5.6 °C (+10.1 °F) in the Ozark Highlands/Central Irregular Plains.

While winter and spring moisture and temperature as drivers of annual Geocarpon minimum success (Steyermark 1958, p. 125; Tucker 1983, p. 11; Bridges 1986, pp. 28-29; Morgan 1986, p. 5; Shepherd 1987, p. 17; Logan 1998, pp. 1-2; Baker and Soteropoulos 2021, p. 3), the best available information does not indicate that Geocarpon minimum will respond negatively to predicted future changes to these variables throughout the range. The forecasted maximum changes in mean precipitation mostly remain within the current range for the species. Although temperatures are predicted to rise in all RUs and seasons, the potential effects of these increases are uncertain. Service and State experts provided wide ranging predictions for how the species may respond to these temperature increases (Service 2021, pp. 14-15). Thus, our future condition did not quantitatively incorporate direct impacts of climate change predictions. However, the land use change model that we chose incorporates projected climate change as one of the variables (Sohl et al. 2014, entire; Sohl et al. 2018, entire).

Vegetation encroachment may threaten the viability of Geocarpon minimum populations and is directly or indirectly related to habitat disturbance, climate change, and land use. Mineral slicks to which Geocarpon minimum is typically closely associated in saline barren habitats in the South Central Plains of southern Arkansas have undergone a slow change from open slicks with graduated microhabitats to more homogenous habitats dominated by mosses, dense annual vegetation, and even perennial grasses (Baker and Soteropoulos 2021, p. 6). These changes are attributable to both a lack of disturbance and a recent trend of abnormally mild and wet summers. Geocarpon minimum appears to compete poorly in areas undergoing this transition, and vegetation encroachment can lead to localized extirpations (Baker and Soteropoulos 2021, p. 6). Although other populations in the South Central Plains are not as well monitored, this likely is an issue throughout the range given the consistently wet years over the last decade.

Monitoring at one of the sites in the Arkansas Valley demonstrated habitually low numbers over the last 10-20 years as contrasted with larger populations observed in the 1990s (Arkansas Natural Heritage Commission (ANHC) 2021, entire). This decline is attributed partially to intensive pasture management (fertilization for grass establishment) (Witsell 2003, p. 2). After unsuccessful attempts at fostering grazing land, the landowner subsequently removed cattle from the site. It is hypothesized that grazing in the 1990s prior to pasture improvement efforts may have contributed to the large numbers observed by reducing competition from other plants, maintaining a suitable microhabitat, or releasing the seed bank (Baker and Soteropoulos 2021, pp. 7-8).

Data from Missouri indicate that some sites have been negatively affected by competition from woody plants, such as red cedar ( Juniperus virginiana ), mosses, lichens, and grasses (Briggler 2021b, pers. comm.; MDC 2021, entire). Regular controlled burns outside Geocarpon minimum' s growing season may be the best tool to maintain glade characteristics and Geocarpon minimum microhabitat at these sites. In the absence of regular burning, mechanical removal of woody vegetation can result in dramatic increases in the number of stems at a site (Briggler 2021b, pers. comm.). Both controlled burns and mechanical removal of woody vegetation occur on public and private conservation lands within sandstone glade habitats in Missouri and Texas. Invasive Japanese honeysuckle ( Lonicera japonica ) has been noted adjacent to some sites in Missouri, but it has not been documented to be in direct competition with Geocarpon minimum.

Vegetation encroachment on prairies and glades at Ft. Wolters within the Cross Timbers of Texas was identified as a natural resource management concern (Texas Military Department (TMD) 2020, p. 26). Both juniper ( Juniperus spp.) and honey mesquite ( Prosopis glandulosa ) are identified as species capable of becoming invasive in the absence of regular fire or management. The TMD funds active natural resource management that includes maintenance (controlled burns) and pre-fire thinning (mechanical removal) of woody stems prior to establishment of a burning rotation.

We define development as any action that results in the permanent conversion of Geocarpon minimum habitat to an unsuitable condition. Examples include urbanization, transportation infrastructure, utility rights-of-way, and reservoir construction. At least two populations of the species have been affected by development, including the construction of a gravel driveway near a population in Missouri and a highway widening project near a separate population, also in Missouri. Additionally, a population in Texas lies within the footprint of a formerly proposed water supply reservoir for the Dallas/Fort Worth metro area. This area was recently acquired by the National Wildlife Refuge System.

We are not aware of any extirpations due to development. While the vast majority of Geocarpon minimum populations are not located near dense human populations, we assume populations closer to urban areas are at greater risk for development, especially on private land. These include populations near Springfield (Missouri), Shreveport (Louisiana), and Longview (Texas). Recent development near Shreveport appears to be moving in the direction of Geocarpon minimum populations (Doffitt 2021, pers. comm.). However, most populations occur in rural areas and are at minimal threat from development.

In three of the five States where it is found (Missouri, Louisiana, and Texas), Geocarpon minimum is currently listed as a State endangered or threatened species. These regulations provide some protections for the species (Service 2021, pp. 18-19). If the protections of the Act were to be removed in the future, the State protections for Geocarpon minimum would likely also be removed in all three States. However, in Missouri, Geocarpon minimum would remain ranked as an S2 species (“Imperiled in the [S]tate because of rarity due to very restricted range, very few populations or occurrences, steep declines, or other factors making it very vulnerable to extirpation from the state.”; MDC 2025, p. 6). While Arkansas does not have State-specific endangered species protections, it does have a law (Arkansas Code section 15-45-301 (2020)) stating that it is the public policy of the State of Arkansas to promote sound management, conservation, and public awareness of its diversity of native plants and nongame animals. Additionally, the State uses its income tax funds for the management of rare species, acquisition of important lands, public education, or other conservation actions. The States' endangered species regulations and other conservation laws may serve to benefit Geocarpon minimum.

Protected lands include sites that are publicly owned (local, State, or Federal) and private lands owned by conservation organizations or otherwise protected (for example, through conservation easements). Of the 46 known Geocarpon minimum populations, 28 (61 percent) are on lands wholly or partially publicly-owned or otherwise protected (Service 2021; table 2, p. 20). These lands may provide a layer of protection from habitat loss or modifications due to development. Historically, management of Geocarpon minimum populations has been more likely to occur on public lands. Management actions like controlled burning, manual vegetation removal, and removal or exclusion of feral hogs require long-term and potentially expensive commitments, which often are more difficult for individual private land managers. However, not all public lands are managed for the exclusive benefit of Geocarpon minimum. Nevertheless, 21 of 28 Geocarpon minimum sites (75 percent) occurring on wholly or partially publicly-owned lands or otherwise protected are known to be managed in a way that is compatible with the species (Service 2021; tables 1 and 2, pp. 14, 20).

Habitat management for Geocarpon minimum is guided primarily by attempts to replicate the natural processes discussed above (see “Habitat Disturbance” and “Vegetation Encroachment”). Most management activities to date have focused on controlled burns or mechanical vegetation removal in the sandstone glade habitats of Missouri and Texas and feral hog control at sites in Arkansas and Texas (TMD 2020, p. M-15; U.S. Army Corps of Engineers 2020, entire; Phillips 2021, pers. comm.; MDC 2021, entire). Controlled burns of sites in Arkansas have occurred as well, but the benefits of such actions in the saline prairie habitats are less certain. Burning during the growing season has been shown to have negative effects on the species (Baker 2021a, pers. comm.), but properly timed burns in these habitats may be beneficial.

In addition to vegetation clearing, intentional soil disturbance may be a beneficial management action. Restoration of former sites may require soil disturbance along with more frequent vegetation removal (mowing) to reduce competition from annual and perennial plants while the soil recovers. Research on the efficacy of soil disturbance is limited. One experiment conducted in plots that represented heavy, moderate, and light soil disturbance revealed that only the heavily disturbed plots remained largely free of overgrowth for 2 years (Baker and Witsell 2015, p. 7).

Despite limited research on the effects of soil disturbance, there is anecdotal evidence that it can be beneficial for Geocarpon minimum if it occurs during the non-growing seasons and is done during dry periods. Examples include the use of sites by cattle (Witsell 2002, p. 4; Baker and Soteropoulos 2021, p. 8; MDC 2021, entire), surface scraping from the use of off-road vehicles dragging trees (MDC 2021, entire), and feral hog rooting (Keith 2020, p. 4). Habitat management mimicking historical disturbance is an important tool for maintaining the viability of populations; however, if intensity, timing, and frequency of disturbances are not managed, they also can have negative effects on Geocarpon minimum populations.

Given the likely negative effects of feral hogs on Geocarpon minimum viability in the long term, attempts have been made by some to control feral hog numbers using trapping or shooting (Hoover 2021, pers. comm.; LDWF 2021, entire; Phillips 2021, pers. comm.; TMD 2020, p. F-14). Although some of these efforts are long-term in nature, others are conducted in response to habitat damage or perceived increases in the hog population. Feral hogs reproduce prolifically and will quickly repopulate an area once control measures cease.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

For Geocarpon minimum to maintain viability, its populations or some proportion thereof must be resilient. Resiliency is assessed at the level of populations and reflects a species' ability to withstand stochastic events (events arising from random factors). Resilient populations are better able to withstand disturbances from demographic stochasticity (random fluctuations in reproductive rates and fecundity) and environmental stochasticity (such as normal variations in rainfall). Factors that have the potential to affect Geocarpon minimum include habitat disturbance, climate change, and vegetation encroachment. Factors influencing the resiliency of the species' populations include abundance, habitat quantity, management, and other elements of Geocarpon minimum ecology that determine whether populations can withstand normal stochastic variation.

Based on recent genetic evidence and expert opinion, we considered patches of Geocarpon minimum that were 0.5 kilometers (km) (0.31 miles (mi)) or more apart as separate populations (Edwards et al. 2019, p. 1446; Baker and Soteropoulos 2021, p. 4; Service 2021, p. 24). Geocarpon minimum is currently known from 46 populations in Missouri, Arkansas, Louisiana, Oklahoma, and Texas. Five of these populations (one in Missouri and four in Oklahoma) have been discovered since the SSA report and analyses. Because of their recent discovery, these sites could not be evaluated for population resiliency, and we have requested more information on the status of these populations (see Information Requested, above).

Based on Geocarpon minimum population needs (undeveloped habitat, management/disturbance) and factors influencing the viability of the species (Service 2021; figure 2, p. 10), we developed a set of metrics for assessing population resilience. These include habitat quantity, abundance, management, and element occurrence (E.O.) rank (State viability ranking) (Service 2021; table 3, p. 27). Overall, of the 41 extant populations that were assessed for all four metrics, 17 (42 percent) rated as having high resiliency, 14 (34 percent) as moderate resiliency, and 10 (24 percent) as low resiliency.

To account for potential differences in the data when assessing population resilience, we weighted each metric using a factor based on data quality and our confidence that the underlying data are reasonably tied to Geocarpon minimum condition and the significance of the metric score to viability (Service 2021, pp. 28-30). The weights were as follows: the “Habitat Quantity” metric had a weighting factor of 0.21 (meaning this metric contributes 21 percent of the overall population condition score); the “Abundance” metric had a weighting factor of 0.17; the “Management” metric had a weighting score of 0.29; and the “E.O. rank” metric had a weighting factor of 0.33. The four weighted metric scores were summed for each population, resulting in an overall population resiliency condition score of low (−1 to −0.333), moderate (−0.332 to 0.332), or high (0.333 to 1). The metrics and the scoring process are discussed below.

We assume that populations occupying larger habitats are more resilient to environmental stochasticity (as well as more resilient to development pressures in the future). We defined small habitats (“low” category) as those occupying under 1 hectare (ha) (2.5 acres (ac)) and medium sites (“moderate” category) as ranging from 1 ha (2.5 ac) to 5 ha (12.4 ac). Large sites (“high” category) are defined as occupying more than 5 ha (12.4 ac). These size ranges refer to the size of the overall sandstone glade or saline prairie habitats rather than to the specific area occupied by Geocarpon minimum as this is rarely documented. The values used for habitat size were obtained from State heritage organizations or from analysis of aerial photography (ANHC 2021, entire; LDWF 2021, entire; MDC 2021, entire; Texas Parks and Wildlife Department 2021, entire).

The quantity of habitat of each population varies from well under 1 ha (2.5 ac) to hundreds of hectares. Nineteen of the measured populations (46 percent) occur within habitats measuring more than 5 ha resulting in a “high” category for habitat quantity. Fourteen populations (34 percent) had habitats measuring between 1 and 5 ha (“moderate” category). The remaining eight populations (20 percent) were found in habitats measuring less than 1 ha (“low” category) (Service 2021, table 5, p. 36). We do not know the habitat quantity at the five newly discovered sites, and thus do not include them in our analysis. We assumed that larger habitats are generally more resilient to threats than smaller habitats.

Of the 41 populations with known abundance at the time of our SSA analyses, 18 (44 percent) were documented to contain more than 1,000 plants at least once in the last 15 years and received a high abundance rank. Seven sites (17 percent) had documented maximum populations of 500-1,000 in the same time frame, and thus were assigned an abundance rank of moderate. The remaining 16 populations (39 percent) either had maximum documented populations of fewer than 500 plants or had not been monitored in more than 15 years. These populations received low abundance ranks. Each of the four newly found populations in Oklahoma were estimated to contain between 50-250 plants, and the newly found population in Missouri was estimated to have 6,000 plants (Briggler 2022, pers. comm; Buthod 2024, pers. comm.)

An important influence on Geocarpon minimum viability is habitat management. Actions such as soil disturbance and controlled burning or mechanical vegetation removal replicate natural processes that historically maintained suitable habitat by exposing favored soil layers and excluding vegetative competition. While management likely contributes to the long-term viability of this species, the specific intensity and timing of required management is not fully understood. This lack of understanding and limited resources may limit management for this species on some public lands. Alternatively, while land management specifically for Geocarpon minimum may be rarer on private lands, some populations occur on lands owned by conservation-oriented private organizations or individuals. These landowners may enroll their properties in conservation easements or agreements regarding management and land use or voluntarily manage habitats for Geocarpon minimum outside the confines of an agreement.

We considered these situations when ranking (high, moderate, or low) populations on the Management metric (Service 2021; table 3, p. 27). Populations received a rank of “high” if they occur either on public lands managed to benefit Geocarpon minimum or on private lands either owned and managed by a conservation organization or by individuals enrolled in a conservation easement or agreement. Populations were ranked “moderate” if they occur on publicly owned lands even if not managed for Geocarpon minimum conservation. Sites on private land that are voluntarily managed to benefit Geocarpon minimum but not enrolled in an easement or agreement also received a “moderate” rank (see “Habitat Management” above for examples of such management). We ranked populations that occur on public lands where management priorities result in negative effects to the species or on privately-owned, unmanaged sites as “low.”

Twenty-one of 41 populations with known management (51 percent) received a high metric rank. These populations occur on public lands with management or private lands with management plans or easements. Two populations (5 percent) occur on public lands that are not managed for the species or on private lands with only voluntary management actions (moderate metric rank). The remaining 18 populations (44 percent) received a low metric rank and occur wholly or mostly on private lands with no management plan or easement for Geocarpon minimum.

Geocarpon minimum is not well-studied, and monitoring efforts are often rudimentary and highly variable in timing and intensity. Demographic or habitat metrics available for describing the viability of this species are limited, and we therefore chose to inform our assessment using State agency E.O. rank. State agencies rank the viability of rare species using an E.O. rank (Hammerson et al. 2020, entire). This system uses a letter rank to assess the current viability of a population and considers population size, occupied area, abiotic and biotic conditions, and landscape context. Primary ranks for extant occurrences are A (excellent viability), B (good viability), C (fair viability), and D (poor viability). There are also intermediate ranks that combine primary ranks (for example, AB or CD). Other ranks include E (verified extant but otherwise unranked), H (historical), F (failed to find), X (extirpated), and U (unrankable due to lack of information). All previously known populations of Geocarpon minimum have current State ranks from A to D, except for one extirpated population and one historical/presumed extirpated population, both in Missouri. We assigned E.O. ranks based on extant occurrence ranks to these populations as follows: A-B=High; BC-C=Moderate; and CD-D=Low. We address the potential correlation between E.O. ranks and our other resiliency metrics in the SSA report (Service 2021, p. 28). The five newly discovered populations (one in Missouri and four in Oklahoma) do not yet have State ranks.

We assume that E.O. rank is among the best indicators of population condition. Of 41 extant and ranked populations, 21 (51 percent) received a high metric rank, 11 populations (27 percent) received a moderate metric rank, and 9 populations (22 percent) received a low metric rank.

Representation reflects a species' adaptive capacity to respond to changing environmental conditions over time and can be characterized by genetic and ecological diversity within and among populations. Because Geocarpon minimum is predominantly self-pollinating and each population represents a unique genetic subset, representation was assessed based on geographic distribution and separation across the species' range. Currently known populations are present in the following U.S. Environmental Protection Agency (USEPA 2013, entire) Level III ecoregions: Ozark Highlands (Missouri); Central Irregular Plains (Missouri); Arkansas Valley (Arkansas); South Central Plains (Arkansas, Louisiana, and Texas); and Cross Timbers (Oklahoma and Texas). We used these five ecoregions to create the four RUs in which to evaluate representation based on expert input (Service 2021, pp. 30-31). We combined the Ozark Highlands and Central Irregular Plains into one RU because there are only a few populations within the Central Irregular Plains, and they occur within the transitional zone between the ecoregions (Service 2021, figure 6, p. 31).

We describe representation for Geocarpon minimum as the extent and variability of environmental conditions within the species' range across the four RUs. Geographic characteristics, soils, and climate (mean seasonal precipitation and temperature) vary throughout all four RUs.

To understand representation, we summarized the number and distribution of Geocarpon minimum populations across the four RUs to assess potential ecoregional differences. Currently, Geocarpon minimum has 46 populations distributed across the RUs, with the Ozark Highlands/Central Irregular Plains RU containing the most populations largely clustered in seven adjacent counties. The Arkansas Valley RU contains two populations occurring within adjacent counties. The South Central Plains RU contains 14 populations spread across eastern Texas, northern Louisiana, and southern Arkansas. Nine populations occur in the Cross Timbers RU, with five populations occupying two adjacent counties in Texas. The remaining four populations are located in one county in Oklahoma.

Redundancy reflects a species' ability to rebound after a catastrophic event and is measured by the number and distribution of resilient populations (high and moderate resiliency populations) both across the species' range and within the RUs. Species that are widely distributed across their historical range relative to potential catastrophic events are considered less susceptible to extinction and more likely to have higher viability than species confined to a small portion of their historical range (Redford et al. 2011, p. 40).

Across the species' range, Geocarpon minimum redundancy has likely been reduced from historical levels due to widespread impacts to habitat and loss of natural disturbance processes. To understand redundancy, we summarized the number and distribution of high and moderate resiliency Geocarpon minimum populations across the RUs (figure 1, below).

Currently, of the 41 extant populations assessed, there are 31 known high or moderate resiliency populations distributed across the RUs. Each RU contains at least one moderately resilient population. The 21 populations located in the Ozark Highlands/Central Irregular Plains RU include 8 high resiliency populations, 5 moderate resiliency populations, 7 low resiliency populations, and 1 population of unknown resiliency. Fourteen populations occur within the South Central Plains RU, including 6 high resiliency and 6 moderate resiliency populations. The remaining two populations have low resiliency. Within the Cross Timbers RU, three populations have high resiliency, while one population has moderate resiliency and one population has low resiliency. The four newly discovered populations within this RU have unknown resiliency. Three of four RUs contain a mix of high, moderate, and low resiliency populations dominated by high and moderate resiliency populations. The Arkansas Valley RU contains one moderate resiliency population and one low resiliency population.

Please refer to the 2022 Species Status Assessment Report (Service 2022, entire) final rule and supporting documents available at https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0015 for more detailed information about the lesser prairie-chicken's life history, habitat, and geographic range and distribution.

The lesser prairie-chicken is a grassland bird found in southeastern Colorado, western Kansas, eastern New Mexico, western Oklahoma, and the Texas Panhandle. The lesser prairie-chicken is a lek breeding species that requires large blocks of unfragmented prairie habitat to fulfill its life history needs. The species occurs in four ecoregions associated with unique environmental conditions based on habitat and climactic variables (the Shinnery Oak Ecoregion, the Sand Sagebrush Ecoregion, the Mixed-Grass Ecoregion, and the Short-Grass Ecoregion).

Please see the 2021 proposed listing rule (86 FR 29432; June 1, 2021) for a complete discussion of previous Federal actions. Further, we published a final rule to list the lesser prairie-chicken as two distinct population segments (DPSs) (the northern DPS as threatened and the southern DPS as endangered) and issued protective regulations under section 4(d) of the Act (a “4(d) rule”) for the northern DPS on November 25, 2022 (87 FR 72674). On March 29, 2025, the U.S. District Court for the Western District of Texas vacated the 4(d) rule for the northern DPS of the lesser prairie-chicken ( Kansas Natural Resource Coalition, et al. v. United States Fish and Wildlife Service, et al., No. 7:23-cv-00159 (W.D. Tex.)). On August 12, 2025, the U.S. District Court for the Western District of Texas issued an order vacating the final listing rule for both the northern and southern DPSs of the lesser prairie-chicken ( State of Texas, et al. v. Department of the Interior, et al., No. 23-cv-00047 (W.D. TX)). The final rule to withdraw the listing of the northern and southern DPSs of the lesser prairie-chicken and the 4(d) rule for the northern DPS in compliance with the court orders is published elsewhere in today's Federal Register . More information on the litigation history for the recent court case is available in that final rule.

As noted in the August 12, 2025, court order, the Service intends to make a new 12-month petition finding on the original 2016 petition that gave rise to the 2022 final listing rule. Thus, we are requesting any new information to inform our new 12-month petition finding.

We are requesting the submission of any information pertaining to the lesser prairie-chicken. We are particularly interested in information that has become available since, or was not considered in, the 2022 final listing rule. If you already submitted comments or information in the previous proposed rulemaking or in other comment periods, there is no need to resubmit them. Any such comments were incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them in the preparation of our subsequent determinations. While we will accept new information on the lesser prairie-chicken at any time, we request that new information be submitted no later than the date specified above under DATES to provide adequate time to incorporate it into our status review. We are particularly interested in the following types of information pertaining to the lesser prairie-chicken:

(1) The species' biology (including genetics), range, and population trends.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing conservation measures and regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

We request that you submit any new information concerning the taxonomy of, biology of, ecology of, status of, or threats to the lesser prairie-chicken, to https://www.regulations.gov before 11:59 p.m. (eastern time) on the date specified in DATES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).