DHS invites all interested parties to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this rule. DHS also invites comments relating to the economic, environmental, or federalism effects possibly resulting from this rule. Comments must be submitted in English, or an English translation must be provided. Comments providing the most assistance to USCIS in implementing these changes will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the rule and may not receive a response from DHS.

Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2026-0166 for this rule. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at http://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments received, go to http://www.regulations.gov, referencing DHS Docket No. USCIS-2026-0166. You may also sign up for email alerts on the online docket to be notified when comments or other documents are posted to the docket.

DHS is adding a clarifying provision to 8 CFR 103.2(a)(7) governing the submission of benefit requests to reduce the risks that are presented by invalid signatures identified after a benefit request is accepted. Specifically, DHS is amending regulations to provide that USCIS adjudicators may, in their discretion, reject or deny the request. This amendment applies to requests submitted on or after July 10, 2026. If USCIS decides to deny a request on the basis of an invalid signature, USCIS may retain the associated benefit filing fee and consider the application fully adjudicated and the applicant ineligible for the requested benefit.

Since 2018, USCIS policy has provided that, “[i]f USCIS accepts a request for adjudication and later determines that it has a deficient signature, USCIS will deny the request.”  1 However, as described more fully in this rule, application and implementation of that policy has not resulted in benefit requestors having a clear understanding about how USCIS generally handles requests with questionable or invalid signatures, and USCIS officers have not always understood the scope of their authority when faced with invalid signatures. Indeed, in recent years, USCIS has experienced several instances of questionable and invalid signatures on USCIS immigration benefit requests and inconsistent implementation of policy addressing invalid signatures. Therefore, DHS is issuing this rule to codify the authority for immigration officers to exercise discretion to deny improperly signed requests. USCIS believes this codification will, in turn, better encourage compliance with signature requirements, reduce the number of rejections caused by invalid signatures, protect the integrity of the benefit request adjudication, and allow USCIS to recoup the costs associated with enforcing these requirements.

The general authority for the Secretary of Homeland Security (Secretary) to issue this procedural rule is found in section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws and establish such regulations as the Secretary deems necessary for carrying out such authority. The Secretary's authorities under the INA include the authorities and functions transferred to USCIS under the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135 (codified in part at 6 U.S.C. 101 et seq. ), related to the adjudication of immigration benefits requests, 6 U.S.C. 271(b). See also 6 U.S.C. 112 (vesting all functions of DHS in the Secretary). Accordingly, the Secretary has authority to issue regulations necessary for carrying out USCIS' functions related to the administration and adjudication of immigration benefits under the INA.

In addition, DHS has statutory authority under INA 287(b), 8 U.S.C. 1357(b), to require signatures on immigration benefits requests. Section 287(b) of the INA, 8 U.S.C. 1357(b), provides generally that an officer or employee of DHS may administer oaths and consider evidence concerning a person's privilege to enter or reside in the United States or concerning “any matter that is material and relevant to the enforcement of the [INA] and the administration of [DHS]”, which includes immigration benefits requests. This statute also permits DHS to require a person to provide an unsworn signed declaration or certification, under penalty of perjury, as permitted under 28 U.S.C. 1746, in lieu of providing information under oath. Although DHS has not explicitly codified the adoption of 28 U.S.C. 1746, USCIS has generally followed the requirements of that statute in 8 CFR 103.2(a) by requiring requestors to sign benefits requests and certify through their signature, under penalty of perjury, that the benefit request and all evidence submitted with it is true and correct. 2 By conforming to the requirements of 28 U.S.C. 1746 in its benefit request system, DHS signature declarations empower requestors to attest with full legal authority, from any location without appearance before an immigration officer.

Finally, DHS issues this IFR consistent with INA 286(m), 8 U.S.C. 1356(m), which authorizes DHS to charge fees for adjudication and naturalization services at a level to “ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants.” This rule is consistent with the purpose of INA 286(m), 8 U.S.C. 1356(m), because it codifies USCIS authority to deny a request and retain the fees paid to recover costs that USCIS incurs to process and adjudicate the benefit request before determining the request was not properly signed.

DHS regulations require that a form must be executed in accordance with the form instructions. 8 CFR 103.2(a)(1). In addition, regulations provide that USCIS records the receipt date as of the actual date of physical receipt of a benefit request, a rejected request will not retain a receipt date, and a request will be rejected if not submitted with the correct fee. 8 CFR 103.2(a)(7)(ii)(D). 3 Current DHS regulations at 8 CFR 103.2(a)(2) state that “[a]n applicant or petitioner must sign his or her benefit request.”  4 With respect to the submission of that benefit request, 8 CFR 103.2(a)(7)(ii)(A) states that USCIS will reject the request if not “[s]igned with a valid signature.” Further, “a benefit request which is rejected will not retain a filing date.” 8 CFR 103.2(a)(7)(ii). In addition, 8 CFR 103.2(a)(7)(iii) states that “a rejection of a filing with USCIS may not be appealed.” Finally, 8 CFR 103.2(a)(2) specifies that “an acceptable signature on a benefit request that is being filed with the USCIS is one that is either handwritten or, for benefit requests filed electronically as permitted by the instructions to the form, in electronic format.” As such, a properly filed USCIS benefit request means that the benefit request includes a complete and properly executed form with a valid signature, the correct fees, and the required initial evidence for intake purposes as specified in the form instructions.

USCIS considers a “valid signature” to generally consist of any handwritten mark or sign made by a requestor (or in certain situations a parent or legal guardian) to signify his or her knowledge and approval of the contents of the request and any supporting document(s) and that the information contained therein is true and correct. See 8 CFR 103.2(a)(2). 5 This requirement applies to any request filed by mail (paper) or online through the PDFi upload process. In limited contexts, USCIS considers a valid signature to include an electronic signature. When filing online through guided e-filing or PDFi via myUSCIS, a requestor's valid signature is a secure electronic signature prompted during the e-filing process. In addition, if during certain PDFi upload processes, no handwritten mark or signature is detected on the uploaded form, an individual may be prompted to provide a secure electronic signature. This option only applies to benefit requestor-filed submissions; no electronic signature option is currently available for attorney-filed PDFi submissions. Beyond these processes, an electronic signature is not valid and only a requestor's handwritten signature is valid.

For handwritten signatures, USCIS policies have evolved with the increased use of facsimile machines, scanners, and the internet; and an increasing number of USCIS immigration benefit requests are being e-filed or filed through the PDFi upload process, in accordance with the direction by Congress to eliminate paper filings in program administration to the extent possible. Government Paperwork Elimination Act (GPEA), Public Law 105-277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749 (Oct. 21, 1998) (as codified in 44 U.S.C. 3504 note). 6 To provide flexibility and efficiency, USCIS does not generally require submission of the “original” document with a wet-ink signature. A scanned, copied, or faxed version of the originally signed benefit request, with the wet-ink signature on it, suffices (the regulatory text states “handwritten”, 8 CFR 103.2(a)(2)).

USCIS regulations presently state that a benefit request will be rejected if it is not signed with valid signature. 8 CFR 103.2(a)(7)(ii)(A). Neither the INA nor DHS regulations define the terms “rejected” and “rejection”; however, for the purpose of 8 CFR 103.2(a)(7), USCIS agency practice has long defined the term “rejected” to mean the benefit request and fee payment are returned for failure to comply with all filing requirements without being fully considered, and can be re-filed when properly completed. 7 “Denied,” on the other hand, generally means that the request is fully adjudicated and considered, and the requestor is determined ineligible for the benefit sought. Id. Additionally, when a benefit is denied, USCIS retains the fee. 8 When USCIS denies a benefit request, the USCIS adjudicating officer will issue a decision explaining the denial. See 8 CFR 103.3(a)(1)(i). For certain requests, the requestor can appeal the denial. See 8 CFR 103.3(a)(1)(ii), (iii).

The USCIS Policy Manual provides that once USCIS receives a benefit request, including an appeal or motion, USCIS assesses whether the request meets the minimum requirements for USCIS to accept it. 9 This includes verifying that the request contains a valid signature. This initial intake assessment occurs at the USCIS Lockbox. 10 The USCIS Lockbox either accepts or rejects benefit request packets after applying a set of business rules, accepting the benefit request if it is properly filed or rejecting it if it is not. With respect to signatures, the USCIS Lockbox business rules require that the data entry operator verify if the signature appears to be valid or invalid. Specifically, per USCIS policy, the USCIS Lockbox business rules look for a “valid signature,” or one that is (1) handwritten, (2) on the signature line of the form, (3) a thumbprint in place of a written signature, or (4) an `X'. Under the same business rules, an invalid signature is one that is typewritten or missing. If a requestor uses an “X”, USCIS usually engages in some additional validation to ensure the individual consistently uses an “X.”

If minimum requirements for acceptance are not met ( e.g., a missing signature), the USCIS Lockbox rejects the benefit request for improper filing and returns it to the sender. The Lockbox determines whether each benefit request meets the requirements to be accepted but it does not make adjudicative decisions. USCIS can only begin to adjudicate a benefit request after USCIS accepts the request, processes any required fees, and issues a receipt notice (or date stamp, where applicable), reflecting the date of physical or electronic receipt. USCIS does not consider benefits requests that are rejected to be properly filed. 11 If the benefit request is accepted, USCIS issues a receipt notice to the requestor and forwards the request for processing, including adjudication.

As discussed further below in Section IV.B of this preamble, the Lockbox is not able to identify all benefits requests containing invalid signatures at intake. USCIS has issued various policies over the years addressing how USCIS handles invalid signatures in such circumstances. First, USCIS issued a general signature policy on January 19, 2010, to provide, among other things, that if USCIS identifies an application or petition without the proper signature at the time of receipt, USCIS will reject the application or petition in accordance with 8 CFR 103.2(a)(7)(i) and return the filing fee. The 2010 policy clarified, however, that if USCIS discovers the improper signature after receipting, USCIS may deny the application or petition pursuant to 8 CFR 103.2(b)(8)(ii) for failure to establish eligibility for the benefit sought. 12

USCIS next published an interim policy memorandum (PM)  13 on June 7, 2016. 14 The 2016 p.m. stated, in relevant part, that if USCIS determines the requisite signature on the request is not valid, the request will be deemed to not be signed and, pursuant to 8 CFR 103.2(a)(7), USCIS will reject the request and return it to the party responsible. The 2016 p.m. also provided that if USCIS questions the validity of the signature on a form filed by a parent for their minor child, a legal guardian for a child or incapacitated adult, or an individual on behalf of a corporation of other legal entity, it may send a Request for Evidence or other type of notice to the requestor, requesting evidence of the signatory's authority to sign documents on their behalf, or refer the file or record to the Fraud Detection and National Security Unit where appropriate. The 2016 p.m. did not address whether USCIS may, should, or will deny a request for a deficient signature.

On February 15, 2018, USCIS issued a new PM. 15 The 2018 p.m. provided, in relevant part, that if USCIS determines that the requisite signature on the request is not valid, USCIS will reject the request and return it under 8 CFR 103.2(a)(7), however, if USCIS accepts a request for adjudication and later determines it has a deficient signature, USCIS will deny the request. The 2018 p.m. also provided that USCIS may send either a Request for Evidence or a Notice of Intent to Deny to confirm that signature authority existed at the time the document was submitted, but stated that USCIS will not permit an opportunity to correct or “cure” an invalid signature. The 2018 p.m. was incorporated into the USCIS Policy Manual on March 5, 2020, and remains the operative policy to date. 16 Consistent with the 2018 p.m., USCIS form instructions also provide that if USCIS accepts a request for adjudication and then determines that it has a deficient signature, USCIS may deny the request. 17

On March 20, 2020, USCIS announced that, due to the COVID-19 National Emergency the agency would accept all benefit forms and documents with reproduced original signatures. The announcement stated that individuals or entities that submit documents with electronically reproduced original signature must retain copies of the original documents containing the wet signature because USCIS may, at any time, request the original documents. USCIS defined “reproduced” by stating “a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature.”  18 On July 25, 2022, USCIS announced that the reproduced signature flexibility announced in March, 2020, will become permanent policy. 19 Although individual form instructions could and can still provide more specific requirements, as of July 25, 2022, no USCIS form required an original signature, and a copy of the originally signed form containing the handwritten signature could be submitted as provided in the USCIS Policy Manual.

Through this IFR, DHS is amending 8 CFR 103.2(a)(7)(ii) to codify the authority for USCIS adjudicating officers to either reject or deny the request if USCIS accepts a benefits request and later determines that it contains an invalid signature. DHS is making this change for several reasons.

In recent years, many requestors have been submitting benefit requests to USCIS with invalid signatures. For example, USCIS has seen requests submitted with invalid signatures created by copy-pasting or affixing an image of the same signature on multiple benefit requests in contravention of USCIS policy that allows for photocopied, faxed, or scanned signatures only if the photocopy, fax, or scan is of the original document containing the handwritten wet ink signature. 20 The USCIS Administrative Appeals Office (AAO) has adjudicated 758 appeals of requests that were denied because the signature was copied from another document. In effect, these requestors are pasting a picture of the signature from one signed document onto multiple unsigned documents, which can be done by anyone and not necessarily the signatory. In one case, the authorized signatory signed a blank sheet of paper and had their subordinate copy that signature onto at least 20 Petitions for Nonimmigrant Worker (Form I-129). In another case, a consulting firm completed and filed approximately 3,000 Petitions for Immigrant Worker (Form I-140) where the signature was pasted on the Form I-140. 21

Other types of invalid signatures that USCIS commonly sees are signatures that are stamped, applications that are signed by someone other than the requestor (attorney, preparer, or interpreter), and signatures created by signature software programs. All of these types of invalid signatures raise concerns about the integrity of the request, including falsification, fraud, or the submission of requests on an individual's behalf without their knowledge or consent.

Proper signatures are critical to document that the requestor understood the form he or she signed and all of the evidence submitted with it. See Gui Cun Liu v. Ashcroft, 372 F.3d 529, 534 (3d Cir. 2004) (it is presumed that an asylum applicant's signature on form meant he was aware of contents); see also Matter of Valdez, 27 I&N Dec. 496, 499 (BIA 2018) (“[A]n alien's signature on an immigration application establishes a strong presumption that he or she knows the contents of the application and has assented to them.”). It is critical that the requestor certify that all of the information on a request is true and correct, that he or she is responsible for the information that is binding on him or her, and that the requestor is granting permission for USCIS to investigate his or her background and use the information for processing and adjudication of the request. Ultimately, a signature on a benefit request represents the requestor's authorization for USCIS to investigate and adjudicate the request, and attestation to, and accountability for the contents of the request.

USCIS signature requirements also protect against the falsification of requests and submission of requests on an individual's behalf without their knowledge or consent. See, e.g., United States v. Jimenez, 972 F.3d 1183, 1193 (11th Cir. 2020) (affirming a conviction for immigration fraud where “business owners . . . testified their signatures had been forged on the I-140 petition or the supporting documentation, or both”); U.S. v. Adcock, 447 F.2d 1337 (2d Cir.), cert. den., 404 U.S. 939 (1971) (conviction for making false statements to INS); Abusamhadaneh v. Taylor, 873 F. Supp. 2d 682, 687-88 (E.D. Va. 2012) (reversing USCIS denial of naturalization application where applicant testified that his failure to disclose his relationship with a mosque was attributable to an attorney-preparer who signed the application and erroneously advised him that he was not required to disclose the affiliation).

That the request is properly signed is also a fundamental eligibility criterion for any immigration benefit request. See Savane v. DHS, 164 F.4th 93, 99 (3d Cir. 2026) (holding that 8 CFR 103.2(a)(2) requires the applicant or petitioner to certify under penalty of perjury that the benefit request, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct). Failure to properly sign the request renders the requestor ineligible for the benefit. See id.; see also Injeti v. U.S. Citizenship & Immigr. Servs., 737 F.3d 311, 318 (4th Cir. 2013) (explaining that 8 CFR 103.2(a)(2)'s signature and certification requirement is necessary to “facilitate USCIS' assessment of whether the applicant is eligible for the benefit sought”).

While it is not explicitly stated, the regulations governing USCIS receipt and acceptance of requests at 8 CFR 103.2(a)(7) imply that USCIS will be able to identify and quickly reject benefits requests that do not meet minimum submission requirements, including requests with invalid signatures, at the point of intake. 22 However, USCIS intake procedures can only detect if a handwritten signature exists ( i.e., not missing and not typewritten). For various reasons, those intake procedures cannot identify all invalid signatures, including signatures copied from another document, signatures from someone other than the requestor, and signatures created by a signature software program.

First, USCIS received more than thirteen million benefit requests in FY 2025. 23 As a result of the volume of forms submitted to USCIS, benefit request intake must be automated to the maximum extent possible. 24 USCIS does not currently possess and cannot readily acquire the technology to identify all invalid signatures at intake. USCIS has explored obtaining the technology to identify invalid signatures but has been unable to find a product that is scalable and sufficiently accurate to meet signature requirements, high-volume document workflows, and intake speed.

Further, signature inspection cannot be handled manually at intake with the USCIS document volume, compliance requirements, and the need to ensure timely and efficient processing. The contractors and personnel that perform intake are not trained, or, by their position description, expected to analyze signatures. In many cases, intake contractors do not have access to USCIS systems needed to compare the instant request or document with previous filings by the requestor. Indeed, as discussed above in Section IV.A of this preamble, USCIS has seen an uptick in invalid signatures that are copy-and-pasted from other documents. From an initial review at USCIS intake, it is difficult, if not impossible, to differentiate these sorts of invalid signatures from signatures that are true copies of benefit requests with a valid original signature. In both instances, they present as a copy of a handwritten signature. It is only via comparison between documents and greater scrutiny at the adjudication stage that these sorts of issues are identified and able to be addressed. As a result of these intake screening limitations and challenges, invalid signatures are often only identified by the USCIS adjudicating officer after a benefit request is accepted.

In some cases, these invalid signatures can be identified only after USCIS officers perform a detailed comparison and review of signatures across a benefit requestor's filings. For example, officers may need to compare signatures from various previous requests and use an imaging tool to see if the signatures match. Additionally, signature deficiencies are sometimes only identified after the initial adjudication of filings because comparison of the signatures could only be made after receiving additional filings. When a signature deficiency is discovered after adjudication, USCIS officers must often expend time and resources reopening and re-adjudicating the benefit request, which has a ripple effect on USCIS' ability to timely adjudicate other applications, including those from applicants that have complied with signature requirements. 25

As previously described in Section III.B.3 of this preamble, USCIS signature policies have changed multiple times since 2010. USCIS signature requirements have evolved over time, reflecting changes in technologies and operational practices. This has led to varying approaches regarding whether requests with deficient signatures may or will be denied or if applicants are given an opportunity to correct the deficient signature through a Request for Evidence as provided by 8 CFR 103.2(b)(8). As a result of these shifting approaches and recent incidents that have drawn attention to invalid signatures, DHS believes that addressing how USCIS handles deficient signatures solely through policy guidance has not provided sufficient clarity for requestors and USCIS adjudicating officers, nor has it fully addressed the challenges described in this rule. Thus, DHS is using this rule to codify options for handling deficient signatures and to provide an explanation of the rationale behind this approach.

This rule responds to these problems by codifying the discretionary authority to reject or deny benefit requests that contain invalid signatures. DHS is providing USCIS adjudicators with this discretion because, in some cases, denials may be more appropriate than rejections. As discussed above in Section IV.A of this preamble, in recent years, USCIS has seen an uptick in many invalid signatures that are only able to be identified after a benefits request is accepted, typically by the adjudicating USCIS officer and after the adjudicating officer has expended time, effort, and resources on reviewing the request, including the requestor's compliance with signature requirements. DHS believes that this increase may be because denials are not currently codified and rejection of the request under the existing regulations, 8 CFR 103.2(a)(7)(ii)(A) (2025), is not sufficient to discourage parties from exploiting USCIS limitations on signature validation at intake.

Providing in DHS regulations that USCIS may deny the request and retain the fee will better support USCIS' efforts to enforce signature requirements and protect the integrity of the immigration benefit system by discouraging requestors from engaging in signature practices that clearly contravene USCIS signature requirements. Additionally, as discussed above in Section IV.B of this preamble, USCIS officers must often spend significant time and resources on applications that are not rejected at intake but are ultimately found to contain an invalid signature. A denial allows USCIS to retain the filing fees associated with a denied request to cover the costs associated with processing the request, including adjudication resources and costs.

At the same time, this rule provides USCIS adjudicators with flexibility to simply reject the benefit request, which results in refunding the fee. This may be appropriate if, for example, the officer is able to identify the deficient signature quickly and before spending significant time, resources, and effort on the request. Rejection may also be more appropriate than a denial if the signature defect appears to simply be a product of inadvertent error or omission, rather than reflecting a pattern or practice of failing to comply with USCIS signature requirements.

Finally, this rule does not change the existing regulations or procedures for requests that USCIS identifies as lacking a valid signature at intake. USCIS will continue to reject requests that are identified at intake as lacking a proper signature and return the request and the fee to the sender. At this time, USCIS believes that this is the appropriate policy because requests that are identified at intake as lacking a valid signature ( e.g., missing or typewritten signatures) are able to be quickly identified without significant costs or resource expenditures by USCIS. 26

As an alternative to this rule, USCIS considered addressing the above discussed problems by requiring all adjudicating officers to immediately review each case they are assigned for the adequacy of the signature on the request at the point he or she is assigned to adjudicate the request. This procedure would catch invalid signatures before much time has passed after the request was filed, and result in a rejection before the request has been in the processing queue for some time or the officer has expended effort on preliminary actions such as scheduling biometrics submission. 27

This sort of analysis would be burdensome to perform given the millions of filings that USCIS receives each year. In Fiscal Year (FY) 2025, USCIS processed 11,037,994 requests and 11,651,012 were pending adjudication. 28 DHS believes that requiring an initial triage of each signature on each request by USCIS adjudicating officers would be reversing the burden of properly signing a request from the requestor to the USCIS officer. 29 DHS appreciates that a requestor or a beneficiary whose request is rejected or denied many months after being submitted because of a signature may be frustrated by that rejection or denial when their request was accepted, they received a receipt notice, and they thought their request was being processed. Nevertheless, USCIS should be able to rely on the requestor to sign their request and assume they have properly done so without the need to pause work on others' requests to conduct a preliminary review of each submission to protect the requestor from their own oversight.

USCIS has also considered, but has rejected, adopting a policy of allowing requestors to “cure” any deficient signature that is identified after the request was accepted for adjudication. At the outset it is important to note that this rule does not change the policy and practice of requesting evidence to support the validity of any signature or authority of the signatory, or to request the originally signed benefit request or document when a copy of the request was filed. An officer may use the discretion provided by 8 CFR 103.2(b)(8) to request additional evidence from the requestor if the officer is not certain whether a signature is valid, such as when he or she questions if the individual who signed the request is authorized to commit the requestor or if the signature is that of the printed name above it. Likewise, if a copy of a benefit request was filed, an officer may request the original as provided by 8 CFR 103.2(b)(5) if, for example, the signature appears to be computer-generated or a stamp. If the officer determines after these further inquiries that the signature is valid, the officer will retain the request for adjudication. If the officer determines that the signature is invalid, then the officer can exercise the discretion provided by this rule to reject or deny the request.

However, it is important to distinguish 8 CFR 103.2(b)(8), which involves missing required initial evidence which can be remedied while pending, with 8 CFR 103.2(a)(7)(ii), which addresses failure to meet threshold submission requirements that result in the request not being considered at all. While there is discretion under the regulations to allow submission of required evidence post-submission, USCIS officers have no discretion to “cure” an invalid signature or deficient signature that would have rendered the filing invalid at the time of submission.

Moreover, USCIS does not believe that amending the regulations to cure a deficient signature would be appropriate. Many USCIS benefit requests involve filing deadlines that have major ramifications if missed. 30 When USCIS assigns a receipt date to a deficient filing that is subject to a statutory numerical limit, that deficient filing precludes acceptance of and assignment of a numerically limited visa or status to a valid filing. An ameliorative policy would harm requestors who properly sign their filing because the deficient filing gets in line ahead of others who filed properly, receives an earlier priority date, or is granted access to a cap-subject benefit. 31 As stated previously, USCIS rejecting a request allows for refiling of the benefit request when the error can be corrected. However, where the operative priority date no longer exists or has retrogressed and visa numbers are no longer available, the requestor who used a copied or otherwise invalid signature may cause a properly filed and signed request to be excluded. Individuals who were not allowed to take advantage of an earlier filing or priority date or missed out on a cap subject benefit suffer a concrete injury because another individual, knowingly or otherwise, submitted a deficient filing just to get a foot in the door first. Therefore, DHS is making no changes to current regulations that provide no authority to “cure” a request that should have been rejected in the first instance for lack of a valid signature because the case was never properly before the agency. DHS has determined that rejection and denial are appropriate in these instances.

DHS has also considered other impacts that codifying the discretion for USCIS to issue denials would result in beyond USCIS retaining the fee. DHS has determined that, for all but a very few requests, retention of the fees paid for a denial and the provision of appeal rights for a denial are the only differences between rejection and denial. As stated previously, DHS realizes that many USCIS benefit requests involve filing deadlines that have major ramifications if missed, but the impacts regarding deadlines are generally the same if the request is rejected or denied. If the relevant deadline has not passed, the applicant can correct the deficiencies that resulted in the denial, complete a new request, and submit it. Following rejection, completing a new request may not be required, but the deadline impact remains the same.

DHS acknowledges that certain benefits attend to a pending request, such as eligibility for employment authorization, 32 advance parole, 33 or protection from removal (deferred action for a bona-fide or prima facie determination), 34 and when the request is no longer pending, those benefits are not available. However, absent a passed deadline, lack of a visa, or inability to meet threshold filing requirements, generally (with one exception discussed immediately below) no law or regulation precludes an individual or entity that was previously denied from submitting the same immigration benefit request again. Thus, loss of the fee, gain of an appeal, completion of a new form, and payment of a new fee following the denial are the only differences between rejection and denial.

DHS is making an exception in this rule for the Form N-600, Application for Certificate of Citizenship, and Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322. An applicant seeking a certificate of citizenship may submit only one Form N-600, Application for Certificate of Citizenship, or Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322. If a Form N-600 or N-600K is denied and the appeal period has passed, any subsequent applications are rejected. See 8 CFR 320.5(c), 322.5(c), and 341.5(e). Instead of filing a new application, the applicant is required to file a motion under 8 CFR 103.5. Id. Therefore, because a denial may have more of an impact than a rejection on Forms N-600 and N-600K, DHS is exempting these applications from this rule.

The APA requires DHS to provide public notice and seek public comment on substantive regulations. See 5 U.S.C. 553. The APA, however, provides limited exceptions to this requirement for notice and public comment, including for “rules of agency organization, procedure or practice.” 5 U.S.C. 553(b)(A).

Not all rules that appear procedural are exempt from notice and comment, and the distinction between substantive and procedural rules is not a clear line. JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). However, almost all procedural rules affect substantive rights to some degree and substantive rules are bounded and defined by procedural dictates. Lamoille Valley R. Co. v. ICC, 711 F.2d 295, 328 (D.C. Cir. 1983). A procedural rule cannot alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency. J ames V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000). The determining factor is whether the substantive effect is enough to provide that notice and comment are needed to safeguard the policies underlying the APA. Id.

Applying the exception to this rule, DHS first notes that its current policy states that “[i]f USCIS accepts a request for adjudication and later determines that it has a deficient signature, USCIS denies the request.”  35 With this IFR, DHS is incorporating into its regulations procedures that have been in place since 2018 and that are reflected in most USCIS forms: authority to deny, in appropriate circumstances, benefit requests that contain an invalid signature. Ensuring that DHS regulations are consistent with existing USCIS policy and guidance ensures that the general public has access to these policies through DHS regulations without needing to refer to un-codified policy guidance. Moreover, as explained further below in Section V.E of this preamble, DHS estimates that codifying this long-standing authority in DHS's regulations will result in no additional costs to impacted applicants nor the Federal government. Accordingly, DHS believes that this procedural rule, which codifies USCIS policy, does not impact requestors “to a degree sufficient to implicate the policy interests animating notice-and-comment rulemaking.” See Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 6 (DCCir.2011).

Even absent the existing policy, DHS finds that the policy adopted in this IFR to address deficient signatures, qualifies as procedural because it “does not change the substantive standard by which [the agency] evaluates” immigration benefits requests. JEM Broadcasting, 22 F.3d at 327. Initially, DHS notes that signature requirements, while intertwined with the eligibility requirements for the relevant immigration benefits, are fundamentally procedural because they establish the methods and procedures that USCIS and requestors must follow when seeking a benefit, but they do not govern the substance of the immigration benefit itself. Further, this IFR does not impose any new or additional signature requirements; it merely codifies USCIS discretion to reject or deny a request if USCIS determines that the request contains an invalid signature during the adjudication process. Moreover, as discussed above in Section IV.F of this preamble, with two exceptions noted in this rule, there is no substantive difference between a denial and a rejection on a requestor's future eligibility for the benefit because no law or regulation precludes the requestor from re-applying for the benefit after a denial.

DHS acknowledges that a denial, as compared to a rejection, may impose an additional burden on requestors to complete a new request and pay a new fee to re-apply after a denial. However, DHS finds that these incidental burdens do not otherwise convert this procedural rule into a substantive one for the APA's notice and comment purposes. See Glickman, 229 F.3d at 281 (“[A]n otherwise-procedural rule does not become a substantive one, for notice-and-comment purposes, simply because it imposes a burden on regulated parties.”). Current regulations already provide that “[f]iling fees generally are non-refundable regardless of the outcome of the benefit request, or how much time the adjudication requires, and any decision to refund a fee is at the discretion of USCIS.” 8 CFR 103.2(a)(1). Therefore, requestors have no right to the return of a fee. Moreover, requestors can avoid denial, loss of a fee, and the need to reapply by simply complying with USCIS signature requirements. Additionally, a requestor whose request was denied for an invalid signature may appeal the denial and, if successful, the requestor can avoid having to complete a new request. Finally, as discussed immediately above, a denial does not, itself, impact a requestor's substantive eligibility for the benefit if the requestor submits a new request. 36

For all these reasons, individually and collectively, DHS believes that this rule qualifies as procedural and is therefore exempt from the APA's notice and comment requirements. 5 U.S.C. 553(b)(A). Although this rule is procedural, DHS nevertheless recognizes the value of public input and is publishing this rule as an IFR with request for comments.

The Regulatory Flexibility Act (RFA) mandates that agencies conduct a regulatory flexibility analysis when the agency was required to “publish [a] general notice of proposed rulemaking.” 5 U.S.C. 603(a). DHS has determined that this rule is exempt from the notice-and-comment requirements in 5 U.S.C. 553, and, therefore, a regulatory flexibility analysis is not required.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign-based companies in domestic and export markets. DHS will submit this IFR to both houses of Congress and the Comptroller General before the rule takes effect.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 14192 directs agencies to significantly reduce the private expenditures required to comply with Federal regulations and provides that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations.”

The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it.

This rule is not an Executive Order 14192 regulatory action because it is being issued with respect to an immigration-related function of the United States. The rule's primary direct purpose is to implement or interpret the immigration laws of the United States (as described in INA 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function performed by the U.S. Federal Government with respect to aliens. See OMB Memorandum M-25-20, “Guidance Implementing Section 3 of Executive Order 14192, titled `Unleashing Prosperity Through Deregulation' ” (Mar. 26, 2025).

DHS is pursuing this regulatory action to clarify in its regulations how the agency will process benefit requests submitted without a valid signature. This IFR makes one change and one clarification. First, the regulation codifies the authority for USCIS to either reject or deny a benefit request that does not contain a valid signature, recognizing that not every invalid signature will be identified at intake. Second, the regulation gives USCIS the discretion to determine which result (reject or deny) is appropriate based on the facts and circumstances of each individual filing and situation, allowing the agency the ability to take such facts and circumstances into account. Current regulations do not expressly authorize any form of “cure” for invalid signatures; this change should impose no additional record keeping burden and should not change the outcome of submitting a benefit request without a valid signature from the outcome required by current law. This will not result in any additional costs to USCIS because the costs of denying a benefit request would be similar to the costs for rejecting that same request. Therefore, DHS estimates that this clarification and change will not result in a direct cost to USCIS or to an individual requestor.

USCIS adjudicators already issue denials based on deficient signatures. This IFR will codify existing procedures, providing clarification of this policy. Because USCIS is codifying existing procedures, DHS expects that neither requestors nor USCIS will incur additional costs due to this rule.

DHS assesses the costs and benefits of this rule against a baseline scenario. For this rule, DHS assesses the impacts of the rule against both the current baseline (status quo, or no action), and a pre-policy baseline (the state of the world prior to the change in policy). Under a no-action baseline, there are no expected costs of the IFR because USCIS policy already states the agency may deny a form as a result of deficient signatures; however, there are expected benefits and potential transfers. Benefits of the IFR include improved clarity for requestors regarding the risks of denial associated with deficient signatures. The potential transfers associated with this IFR are possible reductions in the number of forms received by USCIS, though we do not have evidence to suggest any reduction would be significant.

The pre-policy baseline considers the impacts when the policy was enacted and compares the effects of the IFR relative to no denials during adjudication based on deficient signatures. Under the pre-policy baseline, deficient signatures caught during adjudication would result in rejection of the form and the return of fees. In the pre-policy baseline, this results in costs to USCIS associated with adjudication that were not covered by user fees since the fees were returned to the requestor. The IFR would eliminate these costs to the Agency. 37 If a form is rejected, the requestor may be able to re-file the form if the window of opportunity to submit remains open. In the pre-policy baseline, the requestor would incur costs associated with refiling, such as opportunity costs of time to resubmit the form. 38 The requestor would be able to use the returned fee(s) to cover the form fees. However, the requestor would not be able to appeal a rejection. Under this IFR, if a form is denied for deficient signatures, the requestor can appeal the denial and challenge the invalid signature determination. This can be of use in situations where the person's place in line is important.

Because a denial results in the requestor being provided appeal rights, and rejections may not be appealed, additional Forms I-290B, Notice of Appeal or Motion, may be filed than before this rule if more requests are denied, all else staying the same. That may result in some denied requestors incurring costs associated with Form I-290B, while had they been rejected, they would only have to resubmit their rejected request. The fees associated with filing Form I-290B are transfers from the requestor to USCIS to cover the cost of adjudicating the form; the requestor will incur opportunity costs of time associated with the estimated 1.184 hours to submit Form I-290B. 39 However, requestors may also resubmit a denied request and forgo an appeal. 40

Once the form has entered the adjudication process, it is expected that this IFR will not change how long it takes an officer to realize the form has an invalid or deficient signature. Therefore, this IFR is neither expected to affect the timing of whether a form would be denied or rejected for a deficient signature, nor expected to impact the window of opportunity for a requestor to resubmit a form. Since USCIS does not expect this IFR to affect the timing of when a form is rejected or denied for a deficient signature, we do not expect this IFR will affect the period of time a requestor is considered to have a pending request. Therefore, this IFR is not expected to affect the benefits to the requestors that attend from a pending request, such as eligibility for employment authorization, advance parole, or protection from removal.

Table 1 provides a summary of impacts due to this rule (the no action baseline) compared to the impacts of the policy (the pre-policy baseline).

The denials that occur because of the existing procedure codified in this rule will be due to decisions made by an adjudicator that has reviewed a benefit request; and, USCIS fees are designed to cover the costs to the agency of processing benefit requests, including adjudication. Table 2 shows the total number of denials for signature reasons for FY 2021 to FY 2025. As discussed, Table 2 shows that the number of denials based on issues with the signature have increased significantly in recent years. The number of denials for signature reasons in the future are estimated to be around 1,200 applications annually based on historical data.

It is possible that this IFR will result in a decrease in the number of forms filed with a deficient signature. If this is the case, it means either that the agency is receiving fewer forms for adjudication, or that publication of this IFR provided sufficient notice and information about factors USCIS considers concerning signature requirements and the potential consequences of invalid signatures. The former is a reduction in transfers between requestors and USCIS; the latter is an increase in the benefits to requestors. However, the agency does not have evidence to support this hypothesis. Form instructions already include the following:

While requestors are expected to follow the instructions on the forms they file, DHS notes that requestors are informed of the risk of lost fees as a result of deficient signatures. Therefore, we expect the number of forms received will not change in a meaningful way as a result of this rule.

DHS acknowledges that long processing backlogs exist for almost all USCIS benefit requests, and, as a result of such backlogs, an invalid signature may not be detected for months or years after the request was submitted. Such a requestor may not be able to correct his or her signature and resubmit the benefit request because the visa is no longer available, a deadline has passed, or an age parameter has been exceeded. For example, because of annual limits on U nonimmigrant visas, USCIS may not substantively review a filed Form I-918, Petition for U Nonimmigrant Status, for months or years after intake and, if such a petition is rejected and resubmitted, it will be further down the processing queue because of backlogs, based on a deficient signature that was not caught at intake. Nevertheless, a benefit requestor bears the burden of demonstrating eligibility at the time of filing, which includes properly completing the benefit request. 8 CFR 103.2(b)(1). A valid signature has always been required for the proper completion of a benefit request, and that foundational element of eligibility is not changing with this IFR. 8 CFR 103.2(a)(7). Simultaneously, the policy on what is a valid or invalid signature is not changing with this rule.

This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

DHS and its components analyze proposed regulatory actions to determine whether the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, et seq., applies and, if so, what degree of analysis is required. DHS Directive 023-01 Rev. 01 “Implementing the National Environmental Policy Act” (Dir. 023-01 Rev. 01) and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual)  42 establish the policies and procedures that DHS and its components use to comply with NEPA.

NEPA allows Federal agencies to establish, in their NEPA implementing procedures, categories of actions (“categorical exclusions”) that experience has shown do not, individually or cumulatively, have a significant effect on the human environment and, therefore, do not require an environmental assessment or environmental impact statement. 43 The Instruction Manual, Appendix A lists the DHS Categorical Exclusions. 44

Under DHS NEPA implementing procedures, for an action to be categorically excluded, it must satisfy each of the following three conditions: (1) The entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect. 45

This rule is limited to amending existing DHS regulations governing the submission of benefits requests. It provides that USCIS may, in its discretion, reject or deny a request that lacks a valid signature. This rule also standardizes USCIS policy and clarifies USCIS practices relating to the rejection or denial of benefit requests that do not meet regulatory requirements to ensure clarity for stakeholders. DHS has reviewed this rule and finds that no significant impact on the environment, or any change in environmental effect, will result from the amendments being promulgated in this rule.

Accordingly, DHS finds that the promulgation of this rule's amendments to current regulations clearly fits within categorical exclusion A3 established in DHS's NEPA implementing procedures as an administrative change with no change in environmental effect, is not part of a larger Federal action, and does not present extraordinary circumstances that create the potential for a significant environmental effect. Therefore, the proposed regulatory amendments are categorically excluded from further NEPA review.

Under the PRA, 44 U.S.C. chapter 35, all Departments are required to submit to OMB, for review and approval, any reporting requirements inherent in a rule. USCIS anticipates that no collections of information will be directly impacted by this rule. Signatures are currently required for all submitted collections of information and instructions detailing the requirements for valid signatures along with the Agency's remedies for signatures deemed not valid will support the rulemaking. To the extent that form instructions must be revised due to the changes in this rule, while not changing the information collection burden, USCIS will prepare and submit a non-substantive change worksheet for the affected forms to OMB.

Accordingly, DHS is amending part 103 of chapter I of title 8 of the Code of Federal Regulations to read as follows:

I. Discussion

Commission Regulation 2.1(a) provides a description of the Commission's seal. The Commission is revising Regulation 2.1(a) to adopt a new seal. The new seal has a navy background and depicts a stylized white American eagle and a navy and white shield emblazoned with 5 stripes and three stars beneath an arch of nine stars. The eagle is holding in its left talon an olive branch and in its right talon the scale of balanced justice, both in gold. These symbols are enclosed within two golden rings. Between the two rings, spanning the top, the words, in all capitals, “COMMODITY FUTURES TRADING COMMISSION”, and, spanning the bottom, the words, in all capitals, “UNITED STATES OF AMERICA.”

Commission Regulation 2.1(b) provides an illustration of the seal. The Commission is revising Regulation 2.1(b) to adopt a new image of the seal as illustrated below:

The Administrative Procedure Act (“APA”)  1 requires federal agencies to publish a notice of proposed rulemaking and provide an opportunity for public comment before issuing a new rule. Rules are exempt from notice and comment if they are interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. 2 The Commission has determined that this exception applies. These amendments do not have any impact on the public and relate solely to agency organization, procedure and practice. Therefore, the provisions of the Administrative Procedures Act, which generally require notice or proposed rulemaking and provide other opportunities for public participation, are inapplicable.

The Regulatory Flexibility Act (“RFA”) requires federal agencies to consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, to provide a regulatory flexibility analysis regarding the economic impact on those entities. 3 The Commission is obligated to conduct a regulatory flexibility analysis for any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of the Administrative Procedure Act or any other law. 4 This rulemaking is excepted from the public rulemaking provisions of the Administrative Procedure Act. 5 Accordingly, the Commission is not required to conduct a regulatory flexibility analysis for this rulemaking.

The Paperwork Reduction Act (“PRA”) imposes certain requirements on federal agencies in connection with their conducting or sponsoring any collection of information. 6 This rule does not contain a “collection of information,” as defined in the PRA. Accordingly, the requirements imposed by the PRA are not applicable to this rule.

Section 15(a) of the Commodity Exchange Act (“CEA”) provides that, before promulgating a regulation under the CEA or issuing an order, the Commission shall consider the costs and benefits of the action of the Commission. 7 Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of the futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. 8 The proposed revisions relate solely to agency organization, procedure, and practice. Therefore, the Commission finds that the considerations enumerated in section 15(a)(2) of the CEA are not applicable here.

For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 2 as follows:

Electronic Access and Filing

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

FHWA is rescinding portions of the rule issued on October 2, 1987, Required Contract Provisions for Federal-Aid Construction Contracts (Other than Appalachian Contracts), at 52 FR 36920, as amended on February 13, 2004, by 69 FR 7118, amending 23 CFR part 633 subpart A. The rule prescribed the method of inclusion of construction contract provisions required by existing statute and regulations. 23 CFR 633.101. Under the regulation, FHWA required Form FHWA-1273, “Required Contract Provisions, Federal-aid Construction Contracts” be physically incorporated in each Federal-aid highway construction contract, other than Appalachian construction contracts (23 CFR 633.102(b)) and any lower tier subcontracts that may be made (23 CFR 633.102(e)).

On May 30, 2025, at 90 FR 22876, FHWA published an NPRM to rescind the regulation requiring the use of Form FHWA-1273 and sought comments on all aspects of that proposal. FHWA received one comment in support of its proposal and now adopts the proposal without change.

FHWA finds the requirement to include Form FHWA-1273 unnecessary. To the extent provisions under other statutes or regulations currently listed in Form FHWA-1273 are required to be included in a construction contract, those provisions still must be included in the contract. Further, FHWA is not eliminating Form FHWA-1273 and will continue to make updates as necessary due to changes in applicable statutes or regulations. To the extent recipients, subrecipients, and contractors elect to use Form FHWA-1273 to satisfy their obligations, FHWA intends allowing them to continue to do so. FHWA is merely eliminating the requirement that those entities must use Form FHWA-1273 to fulfill these obligations. Those entities may choose other ways, besides incorporating Form FHWA-1273, if they find such alternatives preferrable.

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

This rule removes the requirement that Form FHWA-1273, which itself contains contract provisions required by statute and regulation, be physically incorporated into construction contracts. It does not remove the requirement for contract provisions within Form FHWA-1273 that are required by statute and regulation to be incorporated into construction contracts. As such, while FHWA is removing the requirement to use a single mechanism to ensure compliance, it is not removing the underlying requirements. For that reason, FHWA believes any monetary benefits or costs to this rule would be minimal.

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

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

Under the Regulatory Flexibility Act (RFA) (5 United States Code (U.S.C.) 601-612) (as amended by the Small Business Regulatory Enforcement Fairness Act of 1996; 5 U.S.C. 601 et seq. ), Agencies must prepare and make available for public comment a regulatory flexibility analysis describing the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). No regulatory flexibility analysis is required, however, if the head of an Agency or an appropriate designee certifies the rule will not have a significant economic impact on a substantial number of small entities. FHWA has concluded and hereby certifies this rule would not have a significant economic impact on a substantial number of small entities; therefore, an analysis is not included. This rescission would only rescind the requirement to incorporate Form FHWA-1273 in construction contracts. It does not add or remove any requirements referenced in Form FHWA-1273 that may continue to be applicable.

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

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

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

FHWA has analyzed this rule pursuant to the National Environmental Policy Act (NEPA) and has determined it is categorically excluded under 23 CFR 771.117(c)(2), which applies to the promulgation of rules, regulations, and directives. Categorically excluded actions meet the criteria for categorical exclusions under 23 CFR 771.117(a) and normally do not require any further NEPA approvals by FHWA. This rule removes the requirement to physically incorporate Form FHWA-1273 in construction contracts. It does not affect the requirements referenced in Form FHWA-1273 that may otherwise be applicable. FHWA does not anticipate any adverse environmental impacts from this rule, and no unusual circumstances are present under 23 CFR 771.117(b).

E.O. 13175 requires Federal Agencies to consult and coordinate Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. FHWA has assessed the impact of this rule on Indian tribes and determined this rule would not have tribal implications requiring consultation under E.O. 13175.

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

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

The Coast Guard received notification that persons under the protection of the United States Secret Service will be visiting the city of Cincinnati, OH on May 8, 2026, through May 11, 2026. The Captain of the Port Ohio Valley (COTP) has determined that a security zone on the Ohio River is needed to protect the visiting dignitaries and other persons during this visit. Therefore, the COTP is issuing this rule under the authority in 46 U.S.C. 70051 and 70124, which is needed to provide waterside security and protection of the persons under the protection of the United States Secret Service in the navigable waters within the security zone.

Because of the potential threats associated with this visit, the Coast Guard is issuing this rule without prior notice and comment. As is authorized by 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. Additionally, the Coast Guard was notified of this event on May 5, 2026, but we must establish this security zone by May 8, 2026, to protect personnel, vessels, and the marine environment. Therefore, we do not have enough time to solicit and respond to comments.

For the same reasons, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule establishes a security zone from zone from 12:01 a.m. EDT on May 8, 2026, through 11:59 p.m. on May 11, 2026. The security zone will cover the entire width of the Ohio River, between mile marker (MM) 461 to MM 473. No vessel or person will be permitted to enter the security zone without obtaining permission from the COTP or their designated representative. While this temporary regulation will be effective for four days, the security zone will only be enforced during certain times when visiting dignitaries and security personnel are present within the regulated area. The COTP will issue broadcast notice to mariners to inform the public of the specific enforcement times.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analysis based on a number of these statutes and Executive orders.

The regulatory flexibility analysis provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to rules that are not subject to notice and comment. Because the Coast Guard has, for good cause, waived the notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's flexibility analysis provisions do not apply here.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in that Order.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This rule is a security zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is currently conducting oil spill response actions in the Bancroft Channel between approximate points 30°01′12.67″ N, 093°37′23.07″ W, and 30°01′12.03″ N, 093°36′18.60″ W, LA. The pollution response presents navigational and safety hazards to commercial and recreational traffic over the entire width of the Bancroft Canal in that area. Hazards from this project include but are not limited to onloading of oiled equipment and materials to work barges which will obstruct vessel traffic, and associated activities which create underwater hazards for workers and the public. The Captain of the Port (COTP) Marine Safety Unit Port Arthur has determined that potential hazards associated with the removal are a safety concern for anyone that may transit within the area. Therefore, the COTP is issuing this rule under the authority in 46 U.S.C. 70034, which is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

Because of these potential hazards, the Coast Guard is issuing this rule without prior notice and comment. As is authorized by 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. The need for these Coast Guard response activities was identified on April 20, 2026, and this safety zone must be established by May 6, 2026, to protect personnel, vessels, and the marine environment. Therefore, we do not have enough time to solicit and respond to comments.

For the same reasons, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule establishes a safety zone for 7 days a week between 6:00 a.m. and 6:00 p.m., for the period between May 6, 2026, and June 1, 2026. The safety zone will cover all navigable waters of the Bancroft Canal between points 30°01′12.67″ N, 093°37′23.07″ W, and 30°01′12.03″ N, 093°36′18.60″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the oil spill response operations. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The COTP will issue a Broadcast Notice to Mariners to inform the public of this safety zone and may terminate enforcement of this zone if response operations are completed before June 1, 2026.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analysis based on a number of these statutes and Executive orders.

The regulatory flexibility analysis provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to rules that are not subject to notice and comment. Because the Coast Guard has, for good cause, waived the notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's flexibility analysis provisions do not apply here.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in that Order.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This rule is a safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Section 504 protects individuals with disabilities from disability-based discrimination. 1 The Department's regulations implementing Section 504, found at 45 CFR part 84, apply to programs and activities conducted by recipients of Federal financial assistance. The Department is charged with promulgating regulations implementing section 504 for recipients of Federal financial assistance from the Department. 2

The Department issues tens of thousands of grants each year to a wide range of recipients. Recipients of these grants and other financial assistance from the Department include State and local governments, social service providers, child welfare organizations, public and private post-secondary institutions, and health care providers of all sizes, ranging from large hospital systems to small local clinics. These recipients vary vastly in terms of size, location, resources and technical support, mission, and surrounding population, and it is important that any rulemaking take these variances into account.

On May 9, 2024, the Department published a final rule revising its section 504 regulations titled “Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance.”  3 Subpart I of the 2024 final rule set forth technical requirements for the web content and mobile apps that recipients provide or make available, directly or through contractual, licensing, or other arrangements. 4 In particular, the rule adopted the Web Content Accessibility Guidelines (“WCAG”) version 2.1 Level AA (hereinafter referred to as “WCAG 2.1”) success criteria, published in June 2018, 5 as the technical standard for web content and mobile app accessibility under section 504. 6 The 2024 final rule included provisions describing how WCAG 2.1 applies to recipients' web content and mobile apps, as well as provisions identifying circumstances when certain web content and content in mobile apps may not need to meet the technical standard. 7 The 2024 final rule's effective date was July 8, 2024, 8 but the Rule did not require recipients to immediately comply with the success criteria of WCAG 2.1. Rather, the 2024 final rule provided that recipients with fifteen (15) or more employees must comply with the success criteria of WCAG 2.1 starting on May 11, 2026, 9 and that recipients with fewer than fifteen (15) employees must comply with the success criteria of WCAG 2.1 starting on May 10, 2027. 10

The 2024 final rule was the culmination of a multi-year rulemaking process that began with a September 14, 2023 Notice of Proposed Rulemaking  11 that solicited public comment, received 5,269 public comments, and ultimately resulted in the two (2) and three (3) year implementation dates for complying with the success criteria of WCAG 2.1.

While virtually all commenters agreed that the web content and mobile apps used by recipients should be accessible to people with disabilities and that some standard was needed to measure accessibility, 12 opinions were split on the most appropriate standard and implementation date(s). 13 While many commenters agreed that WCAG 2.1 was the most appropriate standard that would ensure accessibility for people with disabilities without being overly burdensome even for the smallest recipients, some advocates thought that more stringent standards, like WCAG 2.2 or even an evolving standard, would be more appropriate. 14 Others, especially groups representing recipients, advocated for less stringent standards, like WCAG 2.0, or even recommended that the Department merely suggest that recipients follow a specific standard without enforcing compliance. 15 Ultimately, based on the information available to it at the time, the Department concluded that requiring compliance with WCAG 2.1 struck the appropriate balance between ensuring that a significant number of people with disabilities, many of whom have been excluded from recipient web content and mobile apps for years due to their inaccessibility, could access health care and other services while ensuring that recipients were not overly burdened with unclear or unachievable standards. 16

Similarly, the comments signaled disagreement over the implementation date(s) for the requirements of 45 CFR 84.84. 17 Some commenters indicated that two (2) or three (3) years for implementation was far too long, considering that people with disabilities have been ignored by recipients when designing and acquiring web content for decades. 18 Others thought that the time periods should be extended to lessen any potential burden on the smallest providers. 19 Ultimately, based on the information available to it at the time, the Department kept the two (2) and three (3) year implementation periods/dates in the final rule, reasoning that while the accessibility of web content and mobile apps is imperative, recipients would need some time to come into compliance, although extending the compliance further would result in continued unnecessary exclusion. 20

Concerning the costs that recipients would incur for compliance with the web content and mobile app accessibility requirements of the 2024 final rule, some commenters expressed concerns that small recipients might have budgets too small to meet the proposed rule's compliance dates (which were ultimately adopted in the 2024 final rule). 21 Alternatively, other commenters stated that if recipients began planning at the time the 2024 final rule was published, they would be able to ensure compliance within the proposed rule's compliance dates for web content and mobile app accessibility without incurring unreasonable costs. 22 Similarly, most commenters thought that recipients of all sizes should be held to the same accessibility standards, while some commenters thought that smaller recipients should be held to a more lenient standard. 23 Ultimately, the Department decided that holding different recipients to different accessibility standards would be untenable and result in uneven access for people with disabilities. 24 For example, a clinic with 15 employees that requires patients to schedule vaccination appointments online would have to ensure that the web content used for such scheduling conforms with the success criteria of WCAG 2.1 and can be used by a person who is blind and uses a screen reader. Alternatively, a clinic with 14 employees would not have to ensure that its web content used to schedule vaccination appointments conforms with the success criteria of WCAG 2.1, as required by the rule. The difference in time periods for implementation was deemed the appropriate method to assist smaller recipients with their obligations in light of those recipients' more limited resources.

Of note, less than a month prior to the publication of the 2024 section 504 final rule, the Department of Justice (“DOJ”) published its own final rule updating the web content and mobile app requirements for public entities under title II of the Americans with Disabilities Act (“ADA”). 25 That final rule imposed substantially similar requirements for public entities, sometimes referred to as State and local government entities, many of which also receive financial assistance from the Department and are subject to the Department's section 504 regulations. Specifically, the 2024 title II final rule requires compliance with the success criteria of WCAG 2.1, originally set implementation dates of two (2) and three (3) years in the future, and differentiates between small and large covered entities based on population size. 26

The Department now believes that the compliance dates for web content and mobile app accessibility in the 2024 final rule in § 84.84(b) are unlikely to be met by a significant number of recipients, especially local governments and other small and medium size recipients of financial assistance from the Department, for various reasons beyond the Department's and recipients' control.

Recently, one commenter submitted a response to the Office of Management and Budget's (“OMB's”) request for information on potential deregulatory actions  27 that questioned the need for any standards in section 504 to ensure the accessibility of web content and mobile apps. 28 The commenter, a virtual mental health care provider, stated that it will need to engage in “extensive updates” to their “existing patient forms and written communications” and will have to update the “appearance of websites and mobile applications.”  29 The commenter also stated its belief that the 2024 final rule “imposes substantial financial burdens on health care providers without providing any material benefits”  30 and that only the general access requirements of title III of the ADA should apply for people with disabilities, not the specific standards in the 2024 final rule. 31

In addition to the OMB request for information, the Department of Government Efficiency created an opportunity for members of the public to submit deregulatory suggestions. 32 One anonymous commenter stated that the success criteria of WCAG 2.1 “impose[ ] significant burden on innovative startups and put[ ] those who offer services to government funded programs at a disadvantage to those offering cash pay services and create[ ] a disincentive for companies with new technology or services to offer them to CMS [Centers for Medicare & Medicaid Services] participants.”  33 The commenter also stated that the 2024 final rule is “unreasoned and oversteps boundaries as website accessibility is already governed under the Americans with Disabilities Act.”  34

In addition to the comments that the Department received concerning its own 2024 final rule, OMB received comments about DOJ's 2024 final rule adopting web content and mobile application accessibility requirements under title II of the ADA. The DOJ 2024 title II final rule imposed the same accessibility requirements as the Department's 2024 section 504 final rule, but DOJ's rule applied to State and local government entities covered by title II of the ADA, regardless of whether those entities also receive Federal financial assistance. 35 There is significant overlap between covered entities under both rules since some recipients of financial assistance from HHS are also public entities governed by title II of the ADA. Accordingly, comments on DOJ's 2024 title II final rule are also relevant to HHS's 2024 section 504 final rule to the extent that commenters are also subject to the Department's section 504 rules.

One such comment on DOJ's 2024 final rule, came from a group of higher education advocacy associations that requested DOJ either “delay or provide additional information regarding” DOJ's 2024 title II final rule. 36 The group notes that its member institutions are “preparing to comply with these reporting and implementation deadlines, many of which will entail significant commitments of resources and staff time” but that “[g]iven the shifts in administration priorities, as well as the changes to staffing and leadership, that accompany a transition between administration, there is a lack of clarity as to what compliance may necessitate.”  37

Another comment came from the Small Business Administration, which states that it believes DOJ underestimated costs for small governments and townships and requests that public entities with smaller populations be granted a number of exceptions to full compliance in the allotted time. 38

Recently, the Department was also made aware of documents provided to OMB by organizations representing U.S. cities and counties in response to a DOJ rulemaking concerning its own web content and mobile app accessibility requirements under title II of the ADA. On April 20, 2026, DOJ published an IFR delaying the compliance dates included in its 2024 title II final rule by one year. 39 During the rulemaking process leading to DOJ's IFR, the National Association of Counties (“NACo”) provided a document to OMB stating that it conducted a member survey and that based on the 18 responses it received (3 from counties with populations of less than 50,000; 12 from counties with populations of 50,000-500,000; 3 from counties with populations of more than 500,000), it estimated that, while DOJ's assessment of costs for its 2024 title II final rule was either accurate or overestimated costs, those costs still exceed what counties had budgeted for web content remediation. 40 The surveyed counties also stated that while they have made strides toward web content remediation, there remain obstacles, especially time-consuming and costly remediation of PDF documents. 41 Counties also reported difficulty understanding how compliance will be measured while also noting that there may be difficulty ensuring that the third party contractors, on which they rely, make counties' web content conform to the success criteria of WCAG 2.1. 42 Finally, NACo recommended that the compliance date for all entities be extended to July 1, 2027, that counties with populations below 10,000 be exempted from web content accessibility requirements entirely, and that prior to any finding of a violation of web content accessibility, the covered entity in question be provided a set period of time to cure the issue in question. 43

The National League of Cities (“NLC”) similarly provided a document to OMB expressing concern that remediation of websites for cities of all sizes, but particularly smaller cities, will prove costly and constrain the budgets of those cities. 44 NLC did not provide survey results like NACo did, but did note that over 16,000 municipalities in the United States have populations of less than 10,000 and may have budgets of $2 million or less. 45 NLC stated that they have been told that one-time quotes for PDF and website remediation services (without specifying the size or budget of the municipality or city) have ranged from a total of $10,000 to $20,000, with total annual remediation estimates of up to $70,000. 46 NLC also raised concerns of remediation prices for medium to large cities, stating that one city with a population of about 275,000 would need to devote 1,300 staff hours for general training, PDF-specific training, auditing, remediation oversight, and support and enforcement. 47 Similar to NACo, NLC requested that DOJ exempt communities with populations of less than 10,000 entirely, delay the implementation date by at least one year, and allow for a set period of time for covered entities to cure nonconformance before they are found in violation. 48 Additionally, NLC requests that DOJ “make more flexible the categories of exempted content, to reflect the ongoing challenges cities have faced in making content accessible that is hosted on some social media platforms, provided on city websites by third parties such as GIS data services, and that is required to be made available by Federal or State laws.”  49

In addition to this information from cities and counties, the Department received comments from a representative of primary health care associations that support federally qualified health centers (“FQHCs”). 50 Those comments indicated that FQHCs were working towards conformance with the success criteria of WCAG 2.1, but were experiencing difficulties with full conformance. Specifically, the representative indicated that there is a wide range of understanding of, and ability to comply with, the WCAG 2.1 success criteria among FQHCs depending on their size, staff expertise, and operations. Among those who fully understand their obligations and have more resources, there are still issues with remediation of web content and mobile apps for specific success criteria. For example, some FQHCs have experienced issues with making the electronic documents they rely on fully accessible, while others are having difficulty ensuring that their web content can be navigated solely with a keyboard (without a mouse). This means that some FQHCs will have to rely on outside vendors to ensure their websites are compliant, often at higher costs and with indefinite timelines that may make the May 2026 deadline impossible to meet.

Taken together, these documents indicate that FQHCs, cities, and counties, many of which likely receive Federal financial assistance from the Department, are experiencing difficulty ensuring that their web content conforms to the success criteria of WCAG 2.1 as required by the 2024 final rule because of circumstances outside of the Department's and recipient's control. The Department also believes it is likely that many other small and medium sized recipients beyond FQHCs, cities, and counties are experiencing similar difficulties coming into compliance with WCAG 2.1 as required by the 2024 final rule. Many recipients, including local clinics, rural hospitals, and small child welfare entities, have smaller budgets and limited internal ability to remediate inaccessible web content. Those recipients will likely also have to spend significant portions of their operating budgets on outside contractors to remediate inaccessible web content, with little or no guarantee that they will come into conformance within the time frames required by the 2024 final rule.

While it is possible that some cities, counties, FQHCs, and other recipients would be able to meet the necessary success criteria prior to the 2024 final rule's implementation dates, the Department is concerned that noncompliance among a significant portion of those recipients would lead to a significant increase in litigation.

Section 504 is enforceable by a private right of action. 51 It is possible that a court could allow private litigants exercising this right to obtain injunctive relief and attorneys' fees  52 from recipients based on a recipient's noncompliance with the 2024 final rule. The risk recipients face from private lawsuits is heightened for reasons that were not specifically addressed in the 2024 final rule, namely that some recipients may be generating web content that would be covered by the 2024 final rule using generative AI  53 (artificial intelligence) that is potentially inaccessible. 54

In addition, the 2023 section 504 NPRM included proposed exceptions for certain course content used by postsecondary institutions and elementary and secondary schools;  55 however, the Department reconsidered those exceptions in light of significant negative public comments responding to the NPRM and did not include them in the 2024 final rule. 56 The exclusion of those proposed exceptions from the 2024 final rule may have led to confusion, given this change, requiring additional time for recipients to understand their compliance obligations. By extending the compliance dates, this IFR will afford educational institutions time to assess the substance of the 2024 final rule. Additionally, this IFR will afford those educational institutions an opportunity to comment on their experiences complying with the success criteria of WCAG 2.1.

While the Department has not received recent comments from members of the disability community or disability rights organizations concerning the 2024 final rule's web content and mobile app accessibility requirements, we recognize that delaying compliance dates to provide a more feasible timeline for recipients to comply with web accessibility obligations may lead to a corresponding delay in increased access for people with disabilities. We assume that there may be some reliance interests among people with disabilities related to the current implementation dates of May 11, 2026, and May 10, 2027, and that delaying those dates may negatively impact those interests. However, given that (1) recipients are not yet required to conform with the success criteria of WCAG 2.1, the IFR only delays the implementation of those conformance requirements to provide time for additional comments and consideration: and (2) the potential for copious and costly litigation if the implementation dates are not pushed back, the Department believes that the benefits of this IFR outweigh the reliance interests. Moreover, the delay of the compliance dates does not relieve recipients of their other obligations under Section 504, including, for example, under 45 CFR 84.68(b)(7) to make reasonable modifications when necessary to ensure accessibility and avoid discrimination on the basis of disability. For example, if a person with a disability is a student at a college or university that receives Federal financial assistance from HHS and is enrolled in a class for which course materials are posted on the college or university website, the Department expects that the college or university will make those necessary course materials accessible for the student with a disability, so long as it does not impose an undue burden on the college or university or constitute a fundamental alteration of its programs or activities. Similarly, the Department expects that State agencies responsible for enrolling eligible persons in public benefit programs, including Medicaid, and whose websites provide information on, and a means to apply for, such benefits, would make reasonable modifications to ensure that state residents with a disability who would otherwise be eligible for such benefits are able to access the needed information and apply for benefits.

We also recognize that some interested parties may argue that if recipients believe it would either be impossible or highly burdensome to comply with the success criteria of WCAG 2.1 as required by the 2024 final rule by the existing implementation dates, they may argue that taking certain actions required by the 2024 final rule would constitute a fundamental alteration or undue burden. The 2024 final rule does not require recipients to take actions that would result in a fundamental alteration to the nature of a program or activity or in undue financial and administrative burdens. 57 However, the Department does not believe these defenses are sufficient in light of the litigation risks described above. The Department intended the fundamental alteration and undue burden defenses to apply only to rare situations—and, thus, expected that recipients would need to invoke such exceptions only infrequently. Indeed, in the preamble to the 2024 final rule, the Department stated that it believed modifying web content and mobile apps to conform with the success criteria of WCAG 2.1 would not amount to a fundamental alteration for most recipients. 58 However, based on the aforementioned comments received by the Department and OMB, the Department now believes that significant numbers of small State and local governments, FQHCs, and other recipients may persuasively argue that full conformance would amount to a fundamental alteration or undue burden. Widespread invocation of the fundamental alteration and/or undue burden defenses was not expected when the 2024 final rule was published, but the Department now believes such invocation is likely.

The existence of defenses against claims should not guide the Department's decisions in setting the 2024 final rule's compliance deadlines. The 2024 final rule's deadlines were not intended to hinge on the availability of defenses in eventual litigation. If the Department took the contrary view, that would require recipients to engage in litigation because of compliance burdens that are not entirely within their control. Although recipients could prevail on a defense, that does not mitigate the litigation risks described above.

Whether the fundamental alteration or undue burden defenses apply depends on the specific facts and circumstances; the heads of covered entities or their designees must assess the defenses after considering all resources available for use in the funding and operation of a program or activity, and develop a written statement of the reasons for their conclusion that either of the defenses applies. 59 In other words, a significant number, possibly even the majority of recipients would have to devote significant amounts of time and money to first review their operating budgets, consider all available options for compliance, and then ultimately make a determination before responding to either complaint investigations from the Department or lawsuits alleging noncompliance with section 504. The time and costs associated with such review, investigation, and potential litigation were not fully considered in the Regulatory Impact Analysis for the 2024 final rule. Additionally, widespread reliance on fundamental alteration and undue burden defenses would lead to a situation where an unspecified number of recipients do not conform with the success criteria of WCAG 2.1 as required by the 2024 final rule and, at least for some period of time, do not know the extent to which they are required to conform with the success criteria of WCAG 2.1. Such a situation would lead to increased uncertainty among recipients, the exact opposite of the intent of the 2024 final rule.

While this IFR is limited to extending the 2024 final rule's compliance dates at § 84.84(b), the Department plans to engage in future rulemaking related to the substantive requirements of the 2024 final rule. During the extension period, the Department will consider issuing an NPRM providing members of the public with an opportunity to comment on the substance of the 2024 final rule and any changes proposed by the Department, including any changes that would affect the web content and mobile app accessibility requirements. If the Department does not issue such an NPRM and if circumstances suggesting further delays of this deadline do not exist, the Department fully anticipates implementing the regulation at the new deadline. Regardless of the compliance dates, recipients have an ongoing obligation to ensure that their programs and activities offered using web content and mobile apps are accessible to individuals with disabilities in accordance with their other obligations under section 504.

This IFR extends by one year the compliance dates included in § 84.84(b)(1) and (2) of the Department's regulations implementing section 504. As discussed in Sections I and II of this preamble, these regulatory amendments are needed to make sure recipients have sufficient time to achieve compliance with the requirements of the 2024 final rule in light of their reported resource constraints and staffing limitations as the rule's compliance dates approach and for the Department to consider whether some of the regulatory provisions could be made less burdensome. Absent these amendments, recipients would be subject to burdens from rushed compliance efforts in advance of the compliance dates and significant litigation risk after the dates pass. The amendments do not alter any other provisions from the 2024 final rule.

Section 84.84(b) establishes the compliance dates by which recipients must ensure that the web content and mobile applications they provide or make available, directly or through contractual, licensing, or other arrangements, conform with the success criteria of WCAG 2.1. Before this IFR, paragraph (b)(1) required recipients with fifteen (15) or more employees to conform with the success criteria of WCAG 2.1 starting on May 11, 2026. Paragraph (b)(2) required recipients with fewer than fifteen (15) employees to conform with the success criteria of WCAG 2.1 starting on May 10, 2027.

This IFR amends paragraph (b)(1) by extending the compliance date for recipients with fifteen (15) or more employees by one year, from May 11, 2026, to May 11, 2027. It also amends paragraph (b)(2) by extending the compliance date for recipients with fewer than fifteen (15) employees by one year, from May 10, 2027, to May 10, 2028.

The Department's position is that each of the amendments in this IFR serve a vital, related, but distinct purpose. The Department also confirms that each of the amendments is intended to operate independently of each other and that the potential invalidity of one amendment should not affect the other amendments. The Department would adopt any of the amendments independent to, and regardless of, the invalidity of a separate amendment.

As discussed, this rulemaking will amend the 2024 final rule's § 84.84(b) compliance dates so that large recipients would have until May 11, 2027, to comply with the rule and small recipients would have until May 10, 2028, to comply with the same. Each of these extensions are severable.

The Department issues this IFR without prior public notice and comment pursuant to two separate and independent exceptions in the Administrative Procedure Act (“APA”). The first applies to rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” under 5 U.S.C. 553(a)(2). The second, under 5 U.S.C. 553(b)(B), applies when an agency, for good cause, finds that such procedures are impracticable, unnecessary, or contrary to the public interest, and without a delayed effective date pursuant to 5 U.S.C. 553(d)(1).

Section 504 concerns nondiscrimination requirements conditioned on the receipt of Federal financial assistance, and more particularly on the receipt of any Federal “grant,” “cooperative agreement,” “loan,” “contract (other than a direct Federal procurement contract or a contract of insurance or guaranty),” “subgrant,” “contract under a grant” or “any other arrangement by which the Department provides or otherwise makes available assistance.” 45 CFR 84.10; see also 45 CFR 84.5 (requiring funding recipient sign contractual assurance of compliance with the section 504 regulations).

The Department's definition of Federal financial assistance for purposes of section 504 is found at 45 CFR 84.10, which provides that such assistance means “any grant, cooperative agreement, loan, contract (other than a direct Federal procurement contract or a contract of insurance or guaranty), subgrant, contract under a grant or any other arrangement by which the Department provides or otherwise makes available assistance in the form of: (1) Funds; (2) Services of Federal personnel; (3) Real and personal property or any interest in or use of such property, including: (i) Transfers or leases of such property for less than fair market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government; and (4) Any other thing of value by way of grant, loan, contract, or cooperative agreement.” The Department has carefully reviewed the categories of activities listed in the 5 U.S.C. 553(a)(2) exception to notice and comment rulemaking, the definition of Federal financial assistance at 45 CFR 84.10, and the types of Federal financial assistance provided by the Department. Based on this review, the Department has concluded that the categories of exempt activities in section 553(a)(2) encompass everything contained in the Department's definition at 45 CFR 84.10 and all of the types of Federal financial assistance provided by the Department. Thus, the Department can utilize the 5 U.S.C. 553(a)(2) exception to notice and comment for this rulemaking.

First, 45 CFR 84.10's reference to any “grant, cooperative agreement, 60 loan, or contract” is covered by 5 U.S.C. 553(a)(2)'s inclusion of “a matter relating to . . . loans, grants, benefits, or contract” in the exemption from the requirements of Section 553. Second, the inclusion of “subgrant” and “contract under a grant” is similarly covered by that provision. Third, “any other arrangement by which the Department provides or otherwise makes available assistance in the form of . . . [r]eal and personal property or any interest in or use of such property, including: (i) [t]ransfers or leases of such property for less than fair market value or for reduced consideration; and (ii) [p]roceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government” as Federal financial assistance under 45 CFR 84.10 is covered by the exemption in 5 U.S.C. 553(a)(2) for “a matter relating to . . . public property [or] grants.” Fourth, “any other arrangement by which the Department provides or otherwise makes available assistance in the form of . . . services of Federal personnel” under 45 CFR 84.10 is covered by 5 U.S.C. 553(a)(2)'s inclusion of “a matter relating to agency management or personnel”; furthermore, the detailing of Federal personnel occurs within the context of, or in lieu of, monies disbursed under grants, which are explicitly covered in 5 U.S.C. 553(a)(2). Fifth, 45 CFR 84.10's inclusion of “any other arrangement by which the Department provides or otherwise makes available assistance in the form of: (1) [f]unds; . . . [or] (4) [a]ny other thing of value by way of grant loan, contract, or cooperative agreement” as Federal financial assistance falls within and is covered by 5 U.S.C. 553(a)(2)'s exemption for “a matter relating to . . . personnel or to public property, loans, grants, benefits, or contracts.”  61

Further, invoking 5 U.S.C. 553(a)(2) is consistent with the U.S. Office for Management and Budget's (OMB) definition of Federal financial assistance under 2 CFR 200.1, which defines Federal financial assistance with the same categories as the Administrative Procedure Act's exception for rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” 5 U.S.C. 553(a)(2). With potentially limited exceptions not applicable to the Department, all the forms of Federal financial assistance set forth under 2 CFR 200.1 that the Department administers would fall under the “public property, loans, grants, benefits, or contracts” exception under section 553(a)(2) of the Administrative Procedure Act. 62

For these reasons, the Department has authority to issue this final rule without prior public notice and comment, and without a delayed effective date, under 5 U.S.C. 553(a)(2).

Notice and comment rulemaking is also not needed in this case because good cause exists to issue an interim final rule with an immediate effective date. Under 5 U.S.C. 553(b)(B), notice and public procedures are not required when an agency, for good cause, finds that such procedures are “impracticable, unnecessary, or contrary to the public interest,” and the agency incorporates the finding and a brief statement of the reasons therefore in the rulemaking. Here, the compliance dates in the 2024 final rule are quickly approaching, including the immediate first compliance date of May 11, 2026; this IFR is limited to extending the compliance dates. As discussed in Sections I and II of this preamble, circumstances outside of the Department's and recipients' control make these regulatory amendments necessary to ensure recipients have sufficient time to achieve compliance with the requirements of § 84.84(b) of the 2024 final rule. This is in light of the Department's belief that the compliance dates are not achievable in the set time or would result in significant expenses and/or litigation risks for small recipients because of the reported resource constraints facing recipients as those dates imminently approach. Absent these amendments, recipients would be subject to significant litigation risk after the compliance dates passed. Because of the private right of action, and the possibility that a court may consider the Department's 2024 final rule when ruling on a private right of action, the Department does not have the option to take no enforcement action or offer a statement of policy regarding its intent to not enforce the rule pending improvements to the circumstances for covered entities' compliance. Moreover, because the Department does not have time to go through notice-and-comment rulemaking before the effective dates of § 84.84(b) of the 2024 final rule, the only way for the Department to delay the consequences of this rule is to forgo prepublication notice and comment. Notwithstanding the presence of good cause to promulgate this compliance extension without notice and comment, the Department has decided, as a voluntary matter, to promulgate this action as an IFR with a post-promulgation 60-day public comment period.

In addition, the nature of this IFR is to delay restrictions, rather than impose new ones, which alleviates the central concern of the Administrative Procedure Act to create “safeguards . . . against arbitrary official encroachment on private rights.”  63 When an agency does not burden regulated parties “it generally does not exercise its coercive power over” those parties “and thus does not infringe upon areas that courts often are called upon to protect.”  64

Furthermore, as discussed above, DOJ has recently issued an IFR  65 that extends the compliance dates of its web and mobile app accessibility rule under title II of the ADA. This is an added basis to find that notice and comment is impracticable, unnecessary, and/or contrary to the public interest, because the Department's 2024 rule was informed by Congress's intention that title II and section 504 be interpreted consistently. 66 The Department specifically noted that it coordinated with DOJ with respect to technical standards applicable to web content and mobile apps and sought “to eliminate or minimize instances where recipients that are also public entities under title II will be held to different standards,” with the goal of avoiding “unnecessary confusion among recipients.”  67 The Department also responded to commenters seeking different compliance deadlines from those in the NPRM by noting that “changing compliance dates runs the risk of introducing inconsistency with other rulemakings where recipients that are also covered by those rulemakings would be subject to different compliance dates.”  68 Given the short timeframe between DOJ's promulgation of its IFR and the imminent compliance date of the Department's 2024 final rule, there is good cause to dispense with prior notice and comment.

For these reasons, the Department for good cause finds that following pre-publication notice-and-comment procedures for this rulemaking would be impracticable, unnecessary, or contrary to the public interest under 5 U.S.C. 553(b)(B).

In addition, this IFR is effective immediately without a delayed effective date pursuant to 5 U.S.C. 553(d)(1). Under 5 U.S.C. 553(d)(1), there is no requirement for a delayed effective date for substantive rules that “grant[ ] or recognize[ ] an exemption or relieve[ ] a restriction.” This IFR relieves a restriction, in the form of existing dates for compliance with regulatory requirements.

The Office of Management and Budget has determined that this IFR is an economically significant regulatory action under section 3(f)(1) of Executive Order (“E.O.”) 12866. Accordingly, this rule has been submitted to OMB for review.

This IFR has been drafted and reviewed in accordance with section 1(b) of E.O. 12866, 69 and section 1(b) of E.O. 13563, 70 which supplements and reaffirms the principles of E.O. 12866. These orders direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 71 E.O. 13563 also recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify. 72

As explained in Sections I and II of this preamble, the Department has identified recent communications submitted to the Federal government indicating that the Department underestimated burdens to recipients, especially smaller recipients, when setting the compliance dates in the 2024 final rule. There are also reported resource constraints and staffing limitations for recipients as they work towards compliance with the rule. This IFR extends the 2024 final rule's compliance dates for § 84.84(b) in light of these recent communications to make sure recipients have additional time to come into full compliance with the rule.

Data limitations make the costs and benefits of this IFR difficult to quantify. However, the Department assessed the costs and benefits of these one-year longer compliance dates in the Regulatory Impact Analysis (“RIA”) that accompanied the 2024 final rule. 73

We assessed the potential impacts of this IFR by comparing the policy scenario to an analytic baseline scenario of allowing the 2024 final rule to take effect under its initial implementation timeline. In the baseline, recipients incur initial costs (familiarization, testing, and remediation) over the first two or three years: two years for large recipients and three years for small recipients. From year four onward, recipients incur implementation costs which were not estimated to vary from year to year. In the baseline, benefits grow over the first two or three years as recipients complete the initial familiarization, testing, and remediation activities. From year four onward, some benefits remain constant ( e.g., time savings from more accessible websites), while the benefits (higher earnings) from improved education for students with disabilities through accessible classes continue to grow as the number of students completing accessible curricula increases.

By pushing out implementation by one year, this IFR would eliminate both costs and benefits in the first year that were estimated in the RIA while adding another year of costs and benefits in the future. While this will shift any benefits in that first year to a year in the future, resulting in discounted benefits in the future and a lower total benefit for the rulemaking, the IFR will also shift costs to the future. This shift of costs to the future would result in overall discounted costs as they are pushed further into the future.

This IFR does not impose new substantive requirements, and it does not expand the scope of existing obligations. Instead, by extending the compliance deadlines established in § 84.84(b) of the 2024 final rule, the Department expects this IFR better aligns with the current status of compliance. The IFR also mitigates recipients' litigation exposure associated with impending compliance deadlines, and it avoids burdens to recipients from rushed compliance efforts.

Based on the foregoing, the Department believes that this IFR is consistent with the principles of E.O. 12866 and E.O. 13563, including the requirement that, to the extent permitted by law, the Department adopt a regulation only upon a reasoned determination that its benefits justify its costs and select a regulatory approach that maximizes net benefits. 74

As noted above, the costs and benefits for this IFR will result from delaying the implementation dates for full conformance with WCAG 2.1 by one year. In the 2024 final rule, the Department provided a Regulatory Impact Analysis (“RIA”) that estimated yearly annualized costs and benefits of the 2024 final rule web content and mobile accessibility section at $934.7 million and $1,265.6 million, respectively (using a 7% discount rate and reported in constant 2022 dollars). 75 By pushing compliance out by one year, this IFR would lower cost ( i.e., generating cost savings) while also lowering benefits ( i.e., generating offsetting losses in benefits). 76

This rulemaking is promulgated pursuant to the Omnibus Transportation Employee Testing Act of 1991 (OTETA) (Pub. L. 102-143, Tit. V, 105 Stat. 952). DOT requires urine drug testing and authorizes oral fluid drug testing as an alternative methodology for the testing of safety-sensitive transportation industry employees subject to drug testing under 49 CFR part 40. DOT's part 40 regulation is adopted by reference in the drug and alcohol testing requirements of each of its operating administrations. 1

DOT published a final rule amending the procedures for its drug testing program (49 CFR part 40) on May 2, 2023 (88 FR 27596) (May 2023 Final Rule). The May 2023 Final Rule went into effect on June 1, 2023. The May 2023 Final Rule authorized oral fluid drug testing as an additional methodology for employers to use as a means of achieving the safety goals of the program. Because the Department of Health and Human Services (HHS) had determined that oral fluid drug testing, like urine drug testing, is both scientifically accurate and forensically defensible, DOT saw no reason to either eliminate or mandate either methodology. As such, in the vast majority of collection scenarios, oral fluid testing is available to employers as an alternate methodology, not as a replacement for urine drug testing. Importantly, for an employer to implement oral fluid testing, there must be at least two HHS-certified laboratories for oral fluid testing. There must be one HHS-certified laboratory to conduct the screening and confirmation drug testing on the primary specimen. There must be a different HHS-certified laboratory to conduct the split specimen drug testing on the secondary specimen if the employee requests split specimen testing for a Medical Review Officer (MRO) verified positive, adulterated, or substituted result. However, as of the date of the publication of this rule, there are no HHS-certified laboratories to conduct oral fluid testing. 2

DOT regulations at 49 CFR 40.67 require that a collection be observed directly in certain circumstances, e.g., if the original sample was invalid without an adequate medical explanation or the test is for a return to duty. In the May 2023 Final Rule, and in response to comments received to the notice of proposed rulemaking (NPRM) that preceded that rule, the Department added a provision at paragraph 40.67(g)(3) to require a directly observed collection to be an oral fluid test  3 (as opposed to a urine test) in situations where an observer, as required by the regulations, cannot be easily provided, and in certain other situations. These limited situations are the only ones in which part 40 expressly requires an oral fluid test rather than a urine test; in all other situations, an employer may choose whether to conduct a urine or an oral fluid test, including those conducted as directly observed collections.

Because there are no HHS-certified oral fluid laboratories, it is not yet possible to comply with the requirement in paragraph 40.67(g)(3) that requires the directly observed collection to be an oral fluid test in the situations specified in that section. In the interim, to preserve transportation safety and deter illicit drug use, it is necessary to ensure that directly observed collections can still be conducted when required.

To correct the inadvertent factual impossibility created by the fact there are currently no HHS-certified oral fluid laboratories, DOT published an NPRM on December 9, 2024 proposing to amend part 40, for an interim period, to require directly observed urine collections in the situations specified in paragraph 40.67(g)(3) if an oral fluid collection is not yet available (89 FR 97579). The proposed amendment would simply maintain the “status quo” wherein all directly observed collections are currently conducted as urine tests because oral fluid testing is not yet available.

DOT stated that the amendment to require directly observed urine tests in situations where an oral fluid collection is required, but is not yet available, is intended to be a temporary, short-term solution, because there are currently no HHS-certified oral fluid laboratories. DOT proposed that the provision would sunset one year after HHS publishes a Federal Register notice that it certified the second oral fluid drug testing laboratory. To ensure all are aware of the date when this provision will sunset, DOT stated it would publish a Federal Register document specifying the date the second oral fluid laboratory is certified by HHS and the corresponding sunset date. Importantly, DOT was clear that if, during the interim period, a collection site is able to conduct an oral fluid collection (HHS has certified at least two oral fluid drug testing laboratories, and both a qualified oral fluid collector and a conforming oral fluid collection device are available at the collection site), an oral fluid collection would be required to be conducted as specified in paragraph 40.67(g)(3).

On October 1, 2025, DOT published a supplemental notice of proposed rulemaking (SNPRM) (90 FR 47286) proposing to (1) replace the word `gender' with the word `sex' in sections 40.67, 40.69, and 40.145 to be consistent with E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government; (2) add a new paragraph (d) in section 40.65 to remind collectors to check if the employer has a standing order or contact the Designated Employer Representative (DER) to receive instructions on how to proceed in the scenarios in paragraphs 40.65(b)(5) and (c)(1); and (3) amend paragraph 40.67(g)(3) to require an oral fluid collection when a same sex observer cannot be found with a slight modification to paragraph (g)(3)(ii) to say that the DER is to direct the collector to perform an oral fluid test if they have the capability to do so, or send the employee to a collection site acceptable to the employer for the oral fluid test.

For responses to comments on the December 2024 NPRM, please see discussion in the October 2025 SNPRM.

The majority of the commenters responding to the SNPRM supported the proposal to require a directly observed urine collection pursuant to paragraph 40.67(g)(3) until oral fluid testing is available. These commenters said that this approach keeps safety standards in place, is a practical solution that ensures safety and compliance, and does not take away from the original rule's purpose of keeping its deterrent effect in place. These commenters also stated that it seems reasonable and necessary while waiting for oral fluid to become viable and that “. . . DOT should continue to rely on urine drug testing, as it has been deemed effective and does not require any additional certification, until the agency can effectively support oral fluid testing.”

One commentor encouraged DOT to provide guidance on how to determine when oral fluid testing is available at a site. In response to this comment, DOT notes that when a laboratory is HHS-certified to conduct oral fluid drug testing, DOT intends to include that laboratory on its web page, https://www.transportation.gov/odapc/HHS_Certified_Oral_Fluid_Laboratories. Similarly, DOT expects that certified laboratories will let their customers know when they are offering DOT oral fluid drug testing services. Individual collection sites will most likely need to make a business decision on whether they want to provide oral fluid drug testing specimen collection services to DOT-regulated employers. If they choose to provide that service, it would make good business sense to let their DOT-regulated clients know that they are providing oral fluid drug testing specimen collections.

Two commenters urged DOT to work with HHS to advance the availability of oral fluid testing. DOT and HHS continue to work together to support making oral fluid testing available.

Regarding the proposal to add a new paragraph (d) in section 40.65, DOT received general support and no opposition to the proposal. As such, the change is adopted as proposed.

Some commenters expressed concerns related to costs, accuracy of the detection of drugs, and the timeline for staffing facilities, while another commentor requested guidance on conducting direct observation urine collections.

Specifically, one commentor expressed a concern about the impact on small businesses. Given the time and money spent on updating policies, it would result in an administrative burden to revise them again in the interim. This comment is identical to a comment made to the NPRM. See the comment and our response in the SNPRM.

One commentor had concerns that there were no projected costs for the rule and asked about a projected timeline for getting facilities staffed to comply with this rule.

In response to these comments, DOT notes that the requirement of a directly observed urine collection existed before issuance of the May 2023 Final rule. As explained in the SNPRM, this rulemaking would require directly observed urine tests be conducted in those very rare cases where oral fluid was required by the May 2023 final rule. In addition, oral fluid testing has not yet been available as an alternative test method for DOT-regulated employers because there are not yet two HHS-certified laboratories to conduct oral fluid testing. As a result, DOT does not expect an increase in testing costs as a result of this rule. And as explained in the SNPRM, DOT does not expect widespread changes will be needed for company policies to be developed to facilitate the implementation of oral fluid testing. Similarly, regarding the concern about getting facilities staffed to comply with this rule, DOT reiterates that the requirement of a directly observed urine collection existed before the issuance of the May 2023 Final rule. In addition, this rulemaking would require directly observed urine tests to be conducted only in the small number of cases where oral fluid was required by the May 2023 Final Rule, and there is no training requirement to be an observer. As a result, the Department would expect collection sites to be ready to perform this important function without delay.

Three commenters expressed concern over the accuracy of the detection of drugs in oral fluid, given its shorter window of detection. This comment is outside the scope of this rulemaking to ensure that directly observed testing can be conducted when necessary. DOT notes, however, that windows of detection were discussed in both the oral fluid NPRM (87 FR 11156, February 28, 2022) and final rule (88 FR 27596, May 2, 2023). Given the different windows of detection in urine and oral fluid drug testing, DOT left the decision to the employer on which type of specimen the employer wants to use except in the specific circumstances specified in paragraph 40.67(g)(3).

One commentor neither supported nor opposed the proposal to require a directly observed urine collection in paragraph 40.67(g)(3) but suggested that DOT provide guidance to employers and service agents on how to identify the employee's sex for a directly observed urine collection. The Office of Drug and Alcohol Policy and Compliance (ODAPC) will determine whether guidance is necessary and consider developing any guidance separate from this rulemaking.

One commentor, Airlines for America (A4A), thought DOT proposed to delay oral fluid testing for one year until after HHS published in the Federal Register a notification of a second HHS-certified oral fluid laboratory, after which time oral fluid testing requirements would be “reinstated.” To clarify, DOT did not propose to delay oral fluid testing as mentioned by A4A. DOT proposed, in the scenario where a directly observed urine collection is required and the same sex observer was not available, to provide a grace period of up to one year past the HHS Federal Register notice to continue to allow employers to conduct directly observed urine collections in the event the employer was not set up to conduct oral fluid testing as required in paragraph 40.67(g). If during the grace period, the employer is set up to conduct oral fluid testing, the employer must do so. As a reminder, with respect to urine collections that are observed directly, as long as there is a same-sex observer, there is no requirement to conduct an oral fluid collection.

A4A, given their understanding of the delayed testing for one year, suggested that DOT extend the compliance date to 18 months, six months past the `one year delay,' after the HHS Federal Register notification, citing the need to understand the testing technology once oral fluid testing is available, develop and deploy nationwide training throughout the entire air carrier system, and work with suppliers to understand the availability of oral fluid collection supplies. After considering A4A's comment, DOT agrees with extending the `grace period' following the HHS Federal Register notification that there are two HHS-certified oral fluid laboratories. To mitigate A4A's concerns over oral fluid logistics, the Department will permit an 18-month grace period and modify the rule text accordingly.

A4A's comment raises a question unique to FAA-regulated employers. Specifically, FAA's drug and alcohol testing regulation paragraph 120.123(a) states, “[e]xcept for those testing processes applicable to persons testing pursuant to paragraph 120.1(d), no part of the testing process (including specimen collection, laboratory processing, and MRO actions) shall be conducted outside the territory of the United States.” As a result, unless an FAA-regulated employer is subject to the “Drug and Alcohol Testing of Certified Repair Stations Employees Located Outside the United States,” effective January 17, 2025 ( see 89 FR 103499), FAA-regulated employers are not permitted, among other things, to use a laboratory located outside the United States. ODAPC notes that if the first two oral fluid laboratories certified by HHS are based in Canada, FAA-regulated employers not subject to the aforementioned rule could not use the Canadian-based laboratories. ODAPC has determined that in those cases, the 18-month grace period should apply, but only when the two laboratories are based in the United States.

Based on the above and in consideration of the comment from A4A, the Department has modified the proposed rule text in paragraph 40.67(g) by re-writing (3) and (4) and adding a new (5) and (6). Paragraph (g)(3) now authorizes the conduct of a directly observed urine collection when oral fluid is not available, and (g)(4) requires an oral fluid collection (once oral fluid testing is available) when a same sex observer is not available. Paragraph (g)(5) describes what conditions need to be met for an employer to use oral fluid testing, including FAA's part 120.123(a) requirement that both laboratories be based in the United States. Paragraph (g)(6) authorizes the use of directly observed urine collections during an 18-month grace period that employers can use to get set up for oral fluid testing. It also requires that if during the 18-month grace period the employer is ready to conduct oral fluid drug testing, the employer must do so.

Regarding DOT's proposal to replace the word `gender' with the word `sex' in sections 40.67, 40.69, and 40.145 to be consistent with E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, several commenters supported the proposal and three commenters opposed it. DOT appreciates and has considered the comments in developing this final rule. The Department is finalizing these changes as proposed in the SNPRM pursuant to E.O. 14168.

In the May 2023 Final Rule in § 40.67(g)(3), DOT included procedures on what to do when the required “observer” cannot be found but mistakenly used the term “collector” instead of “observer” in the regulatory text of that section. We proposed to correct the error in the NPRM and received no comments on this issue. We have adopted the change as proposed.

One commentor asked DOT and several other Federal departments to prioritize investigations and litigation to enforce violations of civil rights, among other things. This comment is outside the scope of this rulemaking.

This rule is a non-significant rule for purposes of E.O. 12886 and was not reviewed by the Office of Management and Budget (OMB) pursuant to that E.O. The rule will not impose any significant costs or have any significant impacts. Given the uncertainty of testing costs and lack of data on other aspects of testing, DOT did not estimate cost savings or other benefits for the May 2023 Final Rule that permitted oral fluid testing as an alternative to urine testing in most scenarios. In the regulatory analyses for the May 2023 Final Rule, DOT stated that oral fluid testing is optional except in very rare cases. This rule amends the transportation industry drug testing program procedures regulation to comply with E.O. 14168 and requires a directly observed urine collection when an oral fluid test is required but cannot be conducted because there are not yet two HHS-certified oral fluid drug testing laboratories. This rule will not impose any significant costs or have any significant impacts on the DOT testing program because the requirement of a directly observed urine collection existed before issuance of the May 2023 Final Rule. This rule requires direct observation collections only in those very rare cases where oral fluid was required but cannot be conducted, and oral fluid testing has not yet been able to be conducted since the May 2023 Final Rule in the absence of at least two HHS-certified oral fluid laboratories.

This rule is not an E.O. 14192 regulatory action because this rule is not significant under E.O. 12866.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires Federal agencies to consider the effects of their regulatory actions on small businesses and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with a population of less than 50,000. For this rulemaking, potentially affected small entities include drug testing companies (U.S. Small Business Administration (SBA) North American Industry Classification System (NAICS), Sector 54 (Professional, Scientific and Technical Services), Code 541380 (Testing Laboratories and Services), as well as DOT-regulated entities (SBA NAICS Sectors 48-49 (Transportation and Warehousing)).

The Department has concluded that the rule will not have a significant economic impact on a substantial number of small entities. This rule amends the transportation industry drug testing program procedures regulation to revise language consistent with E.O. 14168 and to require the conduct of directly observed urine collection when an oral fluid collection is required but not yet available. The requirement for directly observed urine collections existed before issuance of the May 2023 Final Rule, and regulated entities are therefore familiar with the procedure for directly observed urine collections. In addition, because oral fluid testing is not yet available, regulated entities are also likely to still have the collection devices and personnel to conduct urine testing. In addition, as explained in the SNPRM, this rulemaking would require directly observed urine collections to be conducted in those very rare cases where oral fluid was required by the May 2023 final rule. As noted earlier in this preamble, there is no training requirement to be an observer. Therefore, DOT does not expect an increase in testing or staff costs as a result of this rule. And as explained in the SNPRM, DOT does not expect widespread changes will be needed for company policies developed to facilitate the implementation of oral fluid testing. As a result, the rule will not impose significant costs. For these reasons, I certify that the rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

DOT has examined the impact of this rule under the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4). This rule does not trigger the requirement for a written statement under sec. 202(a) of the UMRA because this rulemaking does not impose a mandate that results in an expenditure of $206 million or more (in $2025) by either State, local, and Tribal governments in the aggregate or by the private sector in any one year.

The Department has analyzed the environmental impacts of this notice of proposed rulemaking pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ). The Department has determined that this rule is categorically excluded pursuant to DOT Order 5610.1D, “DOT's Procedures for Considering Environmental Impacts” (available at https://www.transportation.gov/mission/dots-procedures-considering-environmental-impacts ). Categorical exclusions are categories of actions that the agency has determined normally do not significantly affect the quality of the human environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See DOT Order 5610.1D § 9. In analyzing the applicability of a categorical exclusion (CE), the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. § 9(b). This rulemaking, which amends the transportation industry drug testing program procedures regulation to comply with E.O. 14168 and requires a directly observed urine collection when required by part 40 because oral fluid testing is not yet available, is categorically excluded pursuant to 23 CFR 771.118(c)(4), “[p]lanning and administrative activities that do not involve or lead directly to construction, such as: . . . promulgation of rules, regulations, directives . . .” The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

DOT has analyzed the rule in accordance with E.O. 13132, Federalism. E.O. 13132 requires Federal agencies to examine actions carefully to determine if they contain policies that have federalism implications or that preempt State law. As defined in the order, “policies that have federalism implications” refer to regulations, legislative comments or proposed legislation, and other policy statements or actions that 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.

Most of the regulated parties under the Department's drug testing program are private entities. Some regulated entities are public entities ( e.g., transit authorities and public works departments); however, DOT has determined that this rule, which amends the transportation industry drug testing program procedures regulation to comply with E.O. 14168 and require the conduct of directly observed urine testing where employers are required to conduct an oral fluid test but such testing is not available, does not contain policies that have federalism implications.

E.O. 13175 (65 FR 67249, Nov. 6, 2000) requires Federal agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” as defined in the E.O. 13175 include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule does not have Tribal implications. The rule does not have substantial direct effects on Tribal governments, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified in E.O. 13175.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA) requires that DOT consider the impact of paperwork and other information collection burdens imposed on the public. The information collection for DOT's drug and alcohol testing program is approved under OMB control number 2105-0529. This rule does not require any new collection of information under the PRA. Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a currently valid OMB control number.

Anyone is able to search the electronic form of all comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit https://www.transportation.gov/privacy.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. NHTSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule does not meet the criteria in 5 U.S.C. 804(2) to be considered a major rule.

For the reasons stated in the preamble, DOT amends 49 CFR part 40 as follows:

This final rule announces the 2026 U.S. TAC for Pacific whiting (also called hake), determined under the Agreement Between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting of 2003 (Agreement). This final rule also establishes the 2026 Tribal allocation based on a percentage of the recommended 2026 U.S. TAC of Pacific whiting, a set-aside for research and incidental mortality in non-groundfish fisheries, and the 2026 Harvest Guideline (HG) and sector allocations for the non-Tribal commercial Pacific whiting fishery. NMFS implements these actions under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Pacific Whiting Act of 2006 (Whiting Act), and other applicable laws.

The non-Tribal commercial Pacific whiting fisheries open on May 1 of each year. The Tribal and non-Tribal commercial sector allocations for Pacific whiting, as well as set-asides, are effective until December 31, 2026.

The transboundary stock of Pacific whiting is managed through the Agreement. The Agreement establishes bilateral management bodies to implement the terms of the Agreement. The bilateral bodies include: the Joint Management Committee (JMC), which recommends the annual catch limit for Pacific whiting; the Joint Technical Committee (JTC), which conducts the Pacific whiting stock assessment; the Scientific Review Group (SRG), which reviews the stock assessment; and the Advisory Panel (AP), which provides stakeholder input to the JMC. NMFS issued a proposed rule on March 6, 2026 (91 FR 11022) that further describes the Agreement, the distribution of the Pacific whiting coastwide TAC between the United States (73.88 percent) and Canada (26.12 percent), the bilateral bodies to implement the terms of the Agreement, including the JMC, and the process used to determine the coastwide TAC under the Agreement.

The JMC reviewed the advice of the JTC, the SRG, and the AP, and met from February 24-26, 2026, in Seattle, Washington. The JMC agreed on a recommended adjusted coastwide TAC of 380,000 metric tons (mt) of Pacific whiting, which resulted in an adjusted U.S. TAC of 280,744 mt for 2026. The JMC then transmitted the TAC recommendation to the United States and Canadian Governments.

The Agreement directs the JMC to base the catch limit recommendation on the F-40 default harvest rate, unless scientific evidence demonstrates that a different harvest rate is necessary to sustain the offshore Pacific whiting resource. The F-40 default harvest rate is a fishing mortality rate that would reduce the spawning biomass of Pacific whiting to 40 percent of the estimated unfished level. After consideration of the 2026 stock assessment and other relevant scientific information, the JMC did not use the F-40 default harvest rate. Instead, a more conservative approach was agreed upon.

There were four key reasons for choosing a TAC below the default harvest rate: (1) due to data processing delays resulting from the 2025 government shutdown, the most recent acoustic-trawl survey and fishery age-composition data were not available in time to be incorporated into the assessment model, and as a result the 2026 whiting stock assessment needed to utilize a simplified “catch-only” model, creating additional statistical uncertainty; (2) the biomass estimate from the 2025 acoustic survey is the lowest in the time series, with the prior survey biomass estimate from 2023 being the third lowest; (3) the whiting stock continues to contract further south, but it is unclear whether this shift is because the population is stable in size but shifting south overall, or if the population is shrinking and condensing into a more central location; and (4) the continued lack of whiting available in Canadian waters and northern U.S. waters has led to exceptionally low catch attainment in Canada (3 percent in 2024 and 4 percent in 2025) and by the U.S. Tribal fisheries (6 percent in 2024 and 5 percent in 2025), which is evidence of a possible contraction of the population to a smaller, southern area of the U.S. waters.

The JMC concluded that these factors warranted setting the 2026 coastwide TAC below the 2025 coastwide adjusted TAC of 400,000 metric tons (mt), and lower than the level that would result from application of the F-40 default harvest rate. The JMC decided that an adjusted 2026 TAC of 380,000 mt recognized the increased scientific uncertainty on stock status, while also allowing the potential for economic benefits for coastal communities. This conservative approach is consistent with Article III.1. of the Agreement.

The Agreement allows an adjusted TAC when either country's catch exceeds or is less than its TAC in the prior year. If the catch is in excess of the country's TAC, the amount of the overage is deducted from that country's TAC in the following year. If catch falls short of the country's TAC, a portion of the shortfall is carried over and added to the country's TAC for the following year. Under the Agreement, carryover adjustments cannot exceed 15 percent of a party country's unadjusted TAC for the year in which the shortfall occurred. In 2025, neither country fully attained their respective TACs. The percentage of the U.S. TAC attained for 2025 is detailed in the Final Regulatory Flexibility Analysis (FRFA) (see the ADDRESSES section), which is summarized in the Classification section below.

For the 2026 Pacific whiting fishery, the JMC recommended an unadjusted coastwide TAC of 330,654 mt. Based on Article III.2. of the Agreement, the Canadian share of the unadjusted coastwide TAC is 26.12 percent (86,367 mt) and the U.S. share is 73.88 percent (244,287 mt). Consistent with Article II.5.(b) of the Agreement, an adjustment (carryover from 2025) of 12,889 mt (15 percent of the 2025 unadjusted Canadian TAC of 85,928 mt) is added to the Canadian share, for an adjusted Canadian TAC of 99,256 mt. In the same manner, an adjustment of 36,457 mt (15 percent of the 2025 unadjusted US TAC of 243,045 mt) is added to the United States share, for an adjusted United States TAC of 280,744 mt. This results in a coastwide adjusted TAC of 380,000 mt for 2026.

This recommendation is consistent with the best available scientific information and provisions of the Agreement. The recommendation was transmitted via letter to the United States and Canadian Governments on March 24, 2026. The U.S. Department of State concurred with the TAC recommendation for U.S. fisheries on April 1, 2026. NMFS, under delegation of authority from the Secretary of Commerce (Secretary), approved the TAC recommendation for U.S. fisheries on April 13, 2026.

This final rule announces the adjusted coastwide TAC of 380,000 mt and an adjusted U.S. TAC of 280,744 mt.

This final rule establishes the Tribal allocation of Pacific whiting for 2026. Four Washington coastal treaty Indian Tribes—the Makah Indian Tribe, the Quileute Indian Tribe, the Quinault Indian Nation, and the Hoh Indian Tribe (collectively, the Treaty Tribes)—have treaty rights to participate in the Tribal Pacific whiting fishery. The regulations at 50 CFR 660.50(d) identify the procedures for implementing the treaty rights that Pacific Coast Treaty Tribes have to harvest groundfish in their usual and accustomed fishing areas in U.S. waters, including the process by which Tribes with treaty fishing rights in the area covered by the FMP request allocations, set-asides, or regulations specific to the Treaty Tribes. 50 CFR 660.50(d) provides that the Secretary will develop Tribal allocations and regulations in consultation with the affected Treaty Tribes and, insofar as possible, with Tribal agreement.

NMFS allocates a portion of the U.S. TAC of Pacific whiting to the Tribal fishery following the process established in 50 CFR 660.50(d). The Tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-Tribal sectors.

In its proposed rule issued on March 6, 2026 (91 FR 11022), NMFS described the Tribal allocation as 17.5 percent of the U.S. TAC, and projected a range of potential Tribal allocations for 2026 based on a range of U.S. TACs over the last 10 years (plus or minus 15 percent to capture variability in stock abundance).

The proposed rule used a range of U.S. TACs because the 2026 U.S. TAC was not approved before the proposed rule publication date. As described in the proposed rule, the resulting range of potential Tribal allocations was 43,958 mt and 92,927 mt. Applying the approach described in the proposed rule, NMFS is establishing the 2026 Tribal allocation of 49,130.20 mt in this final rule, which is 17.5 percent of the adjusted U.S. TAC of 280,744 mt.

As with prior Tribal allocations of Pacific whiting, this final rule is not intended to establish a precedent for future Pacific whiting seasons, or for the determination of the total amount of Pacific whiting to which the Tribes are entitled under their treaty rights. In 2009, NMFS, the states of Washington and Oregon, and the coastal Treaty Tribes started a process to determine the long-term Tribal allocation for Pacific whiting; however, no long-term allocation has been determined. The long-term Tribal treaty amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal Treaty Tribes and the states of Washington and Oregon.

The U.S. non-Tribal whiting fishery is managed under the FMP. Under this final rule, NMFS will implement a 750 mt research and incidental mortality set-aside of Pacific whiting for 2026, which is the same amount set from 2021 to 2025. In November 2024, the Council last provided a recommendation for a continued 750 mt set-aside and considered the historical average annual catch of whiting resulting from research activity and incidental catch in non-groundfish pink-shrimp trawl fisheries. The annual average catch was 365 mt for research and 228 mt for incidental catch in the pink shrimp fishery, for an average annual total of 593 mt for 2011 through 2023. Research and incidental catch in this time period ranged from a low total of 22 mt in 2022, and a high total of 883 mt in 2021. The Council determined a set-aside of 750 mt is sufficient to accommodate mortality of Pacific whiting resulting from research and incidental catch in non-groundfish fisheries.

Under this final rule, NMFS will implement a 750 mt set-aside pursuant to section 305(d) of the MSA and regulations at 50 CFR 660.55(j). The regulations at 50 CFR 660.55(j) were implemented under a prior action taken under Section 304(b) of the MSA and authorize NMFS to take this action.

This final rule establishes the fishery HG ( i.e., the non-Tribal allocation) and non-Tribal commercial sector allocations for Pacific whiting for 2026. As explained in the proposed rule, NMFS did not include the non-Tribal HG and sector allocations in the proposed rule due to the timing of the TAC recommendation and approval process under the Agreement and the Whiting Act. The non-Tribal HG and sector allocations could not be determined for the proposed rule because they are based on the U.S. TAC. NMFS, under delegation of authority from the Secretary of Commerce, and with the concurrence of the U.S. Department of State, approved the U.S. TAC for Pacific whiting on April 13, 2026, which was after the publication of the proposed rule. The U.S. Agreement committees and interested parties were notified via direct email when the TAC was approved, and interim sector allocations were issued to the fishery, which opens on May 1.

Each year NMFS establishes the non-Tribal fishery HG for Pacific whiting and distributes it to the non-Tribal sectors according to the commercial allocation structure in the FMP section 6.3.2.2 and regulations at 50 CFR 660.55(i)(2). To determine the 2026 non-Tribal fishery HG, the 2026 Tribal allocation of 49,130.20 mt, and the 750 mt set-aside for research and incidental mortality are deducted from the total adjusted U.S. TAC of 280,744 mt, resulting in a fishery HG of 230,863.80 mt.

The HG is then allocated among the three non-Tribal sectors of the Pacific whiting fishery: the Catcher/Processor (C/P) Co-op Program, the Mothership (MS) Co-op Program, and the Shorebased Individual Fishing Quota (IFQ) Program. The C/P Co-op Program is allocated 34 percent (78,493.69 mt for 2026), the MS Co-op Program is allocated 24 percent (55,407.31 mt for 2026), and the Shorebased IFQ Program is allocated 42 percent (96,962.80 mt for 2026). These commercial sector allocations are summarized in table 1 below. The non-Tribal Pacific whiting fishery south of 42° N lat. may not take more than 4,848.14 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 1, the start of the primary Pacific whiting season north of 42° N lat.

NMFS issued a proposed rule on March 6, 2026 (91 FR 11022). The comment period on the proposed rule closed March 23, 2026. NMFS received 12 comments from three individuals during the comment period. NMFS received one comment from a college student as part of a class assignment expressing support for preventing overfishing, and one anonymous comment expressing personal beliefs opposing the consumption of seafood.

NMFS received ten comments, on various topics, from one member of the public, as set forth below.

Comment 1: The proposed rule would benefit from correcting several numerical elements. The rule states that the U.S. TAC decreased by 28 percent between 2024 and 2025 (461,750 mt to 295,520 mt), but the actual decrease is about 36 percent (166,230/461,750).

Response: The 2023 U.S. TAC was 461,750 mt, the 2024 U.S. TAC was 410,034 mt, and the 2025 U.S. TAC was 295,520 mt. The change in TAC from 2024 to 2025 was 410,034 to 295,520 mt which is a change of 28 percent from 2024 to 2025. The 2023 TAC was the highest in the last 10 years, and the 2025 TAC is the lowest in 10 years. There is a 36 percent decrease between these two TACs. But the difference between the two most recent year TACs (2024 and 2025) is 28 percent. These TAC values are included in Table 1 (U.S. Total Allowable Catch and Annual Tribal Allocation for 2015-2025 (mt)) of the proposed rule. However, NMFs noted two technical errors in a sentence of the economic analysis where a TAC of 461,750 mt was incorrectly used for the years 2024 and 2017, and should be corrected to read as follows: “The maximum change in U.S. TAC in the last 5 years was a 28 percent decrease between 2024 and 2025 (410,034 to 295,520 mt), and a 20 percent increase between the years 2016 and 2017 (402,646 to 441,433 mt).”

Comment 2: The justification for applying a ±15 percent variability range to project the 2026 TAC is unclear, given that the rule itself acknowledges historical variability—such as the recent 36 percent drop—well above 15 percent. A clearer explanation or adjustment of the variability range would strengthen the projection. Additionally, given the increasing climate-driven variability in Pacific whiting recruitment and biomass, it would also be useful for NMFS to explain whether environmental factors were considered when evaluating the TAC volatility and the ±15 percent projection range.

Response: At the time of submission of the proposed rule for publication, the U.S. TAC was not known so NMFS used the U.S. TACs over the last 10 years plus or minus 15 percent change as a plausible range for potential TACs. In the last 10 years, the U.S. TAC has changed by an average of plus or minus 14.2 percent between each year. The 2026 U.S. TAC of 280,744 mt is within the 251,192 to 531,012 mt range used in the proposed rule. Therefore, the range of U.S. TACs over the last 10 years plus or minus 15 percent represents a reasonable range of likely TACs for the purpose of the rulemaking. The U.S. TAC is the decision of the Agreement's JMC & AP and is made through rigorous review of best available scientific information, including consideration of environmental factors provided by the Agreement's JTC and SRG, namely the Annual Status of the Stock of Pacific Whiting, the annual SRG report, as well as other relevant commercial catch data, and acoustic survey results. NMFS agrees that the U.S. TAC has varied over the last 10 years and NMFS may consider using a different range ( e.g., plus or minus 25 percent) to project a range of potential Tribal allocations in future rulemakings.

Comment 3: The proposed rule maintains a 750 mt set-aside for research and incidental mortality. Although U.S. incidental mortality remains relatively constant regardless of total biomass and harvest levels, the TAC has experienced significant downward volatility (36 percent in the most recent cycle). As a result, a fixed set-aside represents an increasing proportional burden on the commercial fishery. NMFS should clarify why a fixed tonnage is preferred over a percentage-based approach, or provide data showing that, under 50 CFR 660.55(i), NMFS may adjust set-asides as needed. Referencing this authority would clarify whether a fixed or Proportional approach is more appropriate. Additionally, given the increasing climate-driven variability in Pacific whiting recruitment and biomass, it would also be useful for NMFS to explain whether environmental factors were considered when evaluating the fixed 750 mt incidental set-aside.

Response: Set asides for research and incidental catch of groundfish, including whiting, are intended to account for projected scientific research catch and estimates of fishing mortality in non-groundfish fisheries (50 CFR 660.55(b)). These set asides are not intended to be set proportional to the TAC or annual catch limit but rather are developed to accommodate the amount of anticipated catch of whiting by research activities or in other fisheries ( e.g., the directed pink shrimp trawl fisheries) during the fishing year. Additionally, the set-aside is not set using an explicit exploration of environmental factors specific to set-asides, but any influence of environmental factors on incidental catch of whiting in other fisheries would be included in determining an appropriate set-aside value. Since 2021, the Council has recommended and NMFS has implemented a fixed 750 mt set-aside. The Council's Groundfish Management Team, and Groundfish Advisory Panel recommended a 750 mt set aside, which was supported by the Scientific, and Statistical Committee because it is consistent with on-going scientific research activity mortality of whiting and with estimates of whiting mortality in non-groundfish fisheries based on historical catch and projected fishing activities. The Council provided its most recent recommendation of 750 mt in November 2024 for the 2025 fishing year. They considered the historical average annual catch of whiting resulting from research activity and incidental catch in non-groundfish pink-shrimp trawl fisheries. The annual average catch was 365 mt for research and 228 mt incidental catch in the pink shrimp fishery, for a total of 593 mt for 2011 through 2023. Research and incidental catch in this time period ranged from a low total of 22 mt in 2022, and a high total of 883 mt in 2021. (Council Briefing Book Agenda Item I.6, Attachment 1, November 2024.). Therefore, NMFS maintains that the recommendation of a fixed amount of 750 mt (rather than a percentage) is the most appropriate approach for determining the annual research and incidental set-aside without burdening the commercial whiting sectors.

Comment 4: The proposed rule notes that the Makah Tribe harvested about 1,082.6 mt of its 51,716 mt allocation in 2025, or roughly 2 percent. While NMFS did perform a reapportionment of unharvested Tribal whiting to non-tribal sectors in late 2025, additional explanation for why the 17.5 percent allocation remains appropriate for 2026—despite significant historical under-harvest and non-participation by the other three Tribes—would strengthen the rationale for maintaining the same percentage.

Response: Four Washington coastal treaty Indian Tribes, the Makah Indian Tribe, the Quileute Indian Tribe, the Quinault Indian Nation, and the Hoh Indian Tribe have treaty rights to harvest groundfish in their usual and accustomed (U&A) fishing areas. In 1994, the United States formally recognized that these four Washington coastal treaty Indian tribes have treaty rights to fish for groundfish, including Pacific whiting, in the Pacific Ocean, and concluded that, in general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes U&A fishing areas. These treaty rights are implemented by the Secretary following the procedures outlined in 50 CFR 660.50. The interim tribal allocation of 17.5 percent is not an allocation based on performance or based on catch history. The purpose of the tribal allocation is to facilitate the Tribes exercising their treaty right to harvest fish in their usual and accustomed fishing areas in U.S. waters. Reducing the Tribal allocation based on previous years' harvest would be inconsistent with the treaty rights of the four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-Tribal citizens ( U.S. v. Washington, 384 F. Supp. 313 (W.D. Wash. 1974)).

Additionally, the 17.5 percent allocation represents a collective allocation of fish for the four Washington coastal treaty Indian Tribes with U&As occurring within the geographic range of the Pacific whiting resource. NMFS supports the ability of all four Tribes to exercise their treaty fishing rights, regardless of whether they choose to do so in a specific calendar year.

Comment 5: Under 50 CFR 660.131(h), NMFS may reapportion unharvested Tribal allocation in-season based on the best available information, including Tribal harvest projections and expected non-Tribal needs. Referencing this process would clarify how NMFS evaluates whether and when reapportionment is warranted. Earlier reapportionment—prior to the September and November timeframes observed in 2025—would allow non-Tribal sectors to utilize the resource more efficiently before winter weather and salmon bycatch constraints become prohibitive.

Response: Timing of reapportionment is coordinated based on communication with Tribes engaged in fishing, requests from non-Tribal commercial sectors, and the regulatory requirement in 50 CFR 660,131(h), including that reapportionment be considered on or about September 15th of each year. Non-Tribal commercial sectors typically contact NMFS in August of each year to communicate their operational needs for the remaining fishing season, which include consideration of salmon bycatch, and quota constraints. NMFS and any participating Tribes discuss the Tribe's fishing plans for the remainder of the year, taking into consideration seasonal migration of fish into Tribal U&As, and the capacity of the Tribal fishery to harvest their remaining allocation. NMFS may reapportion a portion of the Tribal allocation that it determines will not be used by the end of the fishing. Once Tribal allocations are reapportioned to the non-Tribal sectors, the quota cannot be returned to the Tribal fishery, as such, careful consideration of the decision is made. NMFS is aware that the timing and communication of the Tribal reapportionment process is important to the planning and operations of the non-Tribal sectors and is committed to continued dialogue with both Tribal and non-Tribal stakeholders throughout the 2026 season and beyond to allow for efficient consideration of reapportionment.

Comment 6: The proposed rule concludes that the No Action alternative is inconsistent with treaty obligations and therefore receives no further consideration. Providing a more complete description of the expected environmental and socioeconomic effects of the No Action alternative would better align with NEPA requirements and improve the completeness of the environmental analysis.

Response: Expected environment and socioeconomic effects of the groundfish fishery, including the Pacific whiting fishery, are detailed in the Environmental Assessment for 2025-2026 Biennial Harvest Specifications and the 2015-16 Environmental Impact Statement for the West Coast groundfish fishery. The “No Action” discussion in the proposed rule is relative to the requirements of the Regulatory Flexibility Act, which requires agencies to consider whether any significant alternatives to the proposed rule would accomplish the stated objectives of applicable statutes, and which minimize any significant economic impact of the proposed rule on small entities. Under sections 305(d) of the MSA, and groundfish regulations in 50 CFR 660 Subpart C, NMFS implements a Tribal allocation as a deduction off-the-top from the U.S. TAC. Once the U.S. approves the TAC recommendation, per the Pacific Whiting Act of 2006, NMFS must implement the approved TAC recommendation. Under the `No Action' alternative NMFS would not issue a Tribal allocation, would implement the approved U.S. TAC, and allocate the U.S. Harvest Guideline to the non-Tribal commercial sectors without the off-the-top deduction to accommodate the Tribal allocation. As discussed in the proposed rule, the no action alternative would be inconsistent with Tribal treaty rights and applicable statutes and regulations.

Comment 7: Several references appear to use “2025” where “2026” is intended, particularly in the IRFA discussion of the ex-vessel value of the Tribal allocation.

Response: NMFS has noted two typos, in the economic analysis section of the proposed rule where the year “2025” was inadvertently used when “2026” was intended. These references should instead say “2026” rather than “2025” and should read as follows: “At that price, the proposed 2026 Tribal allocation (potentially 43,958.60-92,927 mt) would have an ex-vessel value between $11.24 and $23.77 million.” and “Using the proposed Tribal allocation of 17.5 percent and the potential range of U.S. TACs for 2026 would yield a Tribal allocation of between 43,958 and 92,927 mt.” These sentences pertain to the projection of potential Trial allocations and are not updated for the final rule as the U.S. TAC has now been recommended by the JMC and resulting Tribal allocation for 2026 is known.

Comment 8: It would also be helpful to clarify whether the 17.5 percent allocation is intended to represent all four eligible Tribes or solely the Makah Tribe, given that only the Makah Tribe intends to participate in 2026. This clarification would explain how the allocation percentage is applied relative to the 1996 framework.

Response: The Tribal allocation is for all four Washington coastal treaty Indian Tribes with treaty rights to harvest groundfish, including Pacific whiting, in their U&A fishing areas. Consistent with 50 CFR 660.50(d), Tribal treaty rights for groundfish will be implemented either through an allocation or set-aside of fish that will be managed by the Tribes. Beyond providing an allocation of the whiting TAC every year, NMFS does not further direct the harvest of the Tribal whiting allocation. NMFS supports the ability of all four Tribes to exercise their treaty fishing rights, regardless of whether they choose to do so in a specific calendar year.

Comment 9: The proposed rule explains that a 15-day comment period balances the need for public input with the need for timely implementation. Offering additional detail—such as whether this shortened period has been used in prior whiting rulemakings or whether alternative timelines were considered—would demonstrate that NMFS evaluated the tradeoffs carefully.

Response: In most prior annual whiting harvest specifications, NMFS has provided a public comment period of 15 days due to the timing of the Whiting Agreement process and the start of the commercial fishery. The Whiting Agreement process is constrained on the front end by data processing timelines for the fishery stock assessment and on the back end by the meetings of the AP, and JMC that occur in late winter. This public comment timeframe has been used to ensure the rulemaking can be implemented and the full U.S. TAC is allocated in a timely manner as close as possible to the May 1 start of the commercial whiting fishery. Additionally, due to the public nature of the TAC setting process through the JMC & AP meeting, substantial public input is solicited and provided as part of those public meetings. It would be counter to the public interest to further delay the rulemaking process as it impacts the full implementation of commercial sector allocations.

Comment 10: The rule notes that the process to establish a long-term Tribal allocation began in 2009 but has not yet been completed. Clarifying whether NMFS intends to revisit or finalize that process would reduce uncertainty for both Tribal and non-Tribal sectors. The rule would benefit from a clearer description of how NMFS determines the timing of in-season reapportionment. Understanding what information NMFS relies on, how often Tribal harvest updates are requested, and whether bycatch constraints in non-Tribal sectors are considered would improve transparency and help all sectors plan more effectively during the fishing year.

Response: NMFS acknowledges the implementation of the Tribal allocation percentage on an annual basis may create uncertainty, but it facilitates the Tribes exercising their treaty right to harvest fish in their usual and accustomed fishing areas in U.S. waters. NMFS will continue to take the necessary steps to ensure that this opportunity is available to those Tribes. The long-term Tribal treaty amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal treaty Tribes and the states of Washington and Oregon. With respect to reapportionment, please see the response to comment 5, which describes the reapportionment process.

No substantive changes from the proposed action were made to the final action based on the relevant comments received.

This final rule is implemented under the statutory and regulatory authority of sections 305(d) of the Magnuson-Stevens Act, the Whiting Act, the regulations governing the groundfish fishery at 50 CFR 660.5 through 660.360, and other applicable laws. NMFS will implement this action pursuant to section 305(b) of the MSA and regulations 50 CFR 660.50. The regulations at 50 CFR 660.50 were implemented under a prior action taken under Section 304(b) of the MSA and authorize NMFS to take this action.

The NMFS Assistant Administrator has determined that this final rule is consistent with section 305(d) of the Magnuson-Stevens Act, the Whiting Act, the regulations governing the groundfish fishery at 50 CFR 660.5 through 660.360, and other applicable laws. Additionally, pursuant to Magnuson-Stevens Act section 305(d), this action is necessary to carry out Tribal allocations, set-asides, and regulations pursuant to FMP section 6.2.5 and 50 CFR 660.50(d)(1). This rule will ensure that the fishery is managed in a manner consistent with treaty rights of the four Treaty Tribes to fish in their “usual and accustomed grounds and stations” in common with non-Tribal citizens ( United States v. Washington, 384 F. Supp. 313 (W.D. Wash. 1974)).

Pursuant to Executive Order 13175, this action was developed after meaningful and timely consultation with Tribal officials from the area covered by the FMP. Regulations implementing the FMP establish a procedure by which the Tribes with treaty fishing rights in the area covered by the FMP request allocations or regulations specific to the Tribes, in writing, before the first of the two meetings at which the Council considers groundfish management measures. The regulations at 50 CFR 660.50(d)(2) further state that the Secretary will develop Tribal allocations and regulations under this paragraph in consultation with the affected Tribe(s) and, insofar as possible, with Tribal consensus. NMFS invited consultation on this action through exchanged emails with Tribal officials leading up to the development of the rule, only the Makah Tribe indicated an intent to fish.

Pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in the date of effectiveness for this final rule. Such a delay would be contrary to the public interest because it would create significant operational limitations to the commercial whiting sectors without providing associated benefits to the regulated community or the fishery.

The Pacific whiting fishing season extends from May 1 to December 31. This year's season began on May 1, 2026, under interim allocations (consistent with the procedures laid out at 50 CFR 660.140(d)(1)(ii)(B)( 2 )) based on a proxy coastwide TAC analyzed in the 2026 Pacific whiting stock assessment (see ADDRESSES ), because this rule, establishing final allocations for 2026, had not yet been issued. This proxy coastwide TAC was 350,000 mt, which is approximately 8 percent lower than the 2026 adjusted coastwide TAC of 380,000 mt, resulting in interim allocations that are also 8 percent lower than the allocations issued in this final rule.

Delaying the effective date of the full 2026 season allocations would represent a significant operational limitation to the commercial whiting sectors, because it would decrease their flexibility and opportunity to harvest the optimal yield. This rule increases catch limits for Pacific whiting compared to the restrictive interim allocation the fishery is currently operating under, and delaying the effective date of this rule by 30 days would limit the ability of the Pacific whiting commercial sectors to realize the full level of economic opportunity the final allocations provide. In addition, if the non-Tribal commercial sectors fully harvest their interim allocations during the 30-day period before the final allocations under this rule go into effect, NMFS would be required to close the Pacific whiting fishery, which could have significant negative economic impact. At the same time, one of the general policy purposes for allowing for a 30-day delay is to give the regulated community time to adjust their practices to come into compliance. But a 30-day delay to the effective date would not achieve this policy purpose, because such a delay would provide the Pacific whiting commercial sectors with less operational flexibility, not more. There are no new compliance burdens placed on the fishing community with this rule. In addition, because the total catch limits allocated to each sector for the 2026 season will be the same regardless of whether this rule goes into effect immediately or after 30 days, delaying the effective date of the rule would not provide any additional benefit to the long-term biological or economic sustainability of the fishery. For the foregoing reasons, requiring a 30-day delay in the effective date would be contrary to the public interest, and there is good cause to waive this requirement.

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

This final rule is exempt from the requirements of Executive Order 14192 because it is a routine fishing action.

NMFS issued a proposed rule on March 6, 2026 (91 FR 11022) for the 2026 Pacific whiting Tribal allocation and 2026 incidental set-aside. An Initial Regulatory Flexibility Analysis (IRFA) was prepared and summarized in the Classification section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. A FRFA was prepared and incorporates the IRFA. There was one public comment received on the IRFA. A copy of the FRFA is available from NMFS (see ADDRESSES ). A summary of the FRFA, per the requirements of 5 U.S.C. 604, follows.

Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. For purposes of complying with the RFA, NMFS has established size criteria for entities involved in the fishing industry that qualify as small businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide (80 FR 81194, December 29, 2015, 90 FR 52917, November 24, 2025; 50 CFR part 200). In addition, the SBA has established size criteria for other entities that may be affected by this proposed rule. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide (NAICS code 424460; 13 CFR 121.201). A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 750 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide (NAICS code 311710; 13 CFR 121.201). For purposes of this rulemaking, NMFS is also applying the seafood processor standard to C/Ps because whiting C/Ps earn the majority of the revenue from processed seafood product.

This rule affects how Pacific whiting is allocated to the following sectors/programs: Tribal, Shorebased IFQ Program Trawl Fishery, MS Co-op Program Whiting At-sea Trawl Fishery, and C/P Co-op Program Whiting At-sea Trawl Fishery. The amount of Pacific whiting allocated to these sectors is based on the U.S. TAC, which is developed and approved through the process set out in the Agreement and the Whiting Act.

We expect one Tribal entity, the Makah Tribe, to fish for Pacific whiting in 2026. Tribes are not considered small entities for the purposes of RFA. Impacts to Tribes are nevertheless considered in this analysis.

Although there are three non-Tribal sectors directly affected by this rule (the C/P Co-op Program, the Shorebased IFQ Program, and the MS Co-op Program), many companies participate in two sectors and some participate in all three sectors, as well as other non-whiting groundfish fisheries. For example, some companies may own permits in both the C/P and MS sectors, and own vessels capable of operating as either a C/P or an MS. Depending on the operational needs of the parent company in a given year, a C/P vessel may be assigned a permit to alternatively act as an MS. As part of the permit application processes for the non-Tribal fisheries, NMFS asks permit applicants if they considered themselves a small business based on a review of the Small Business Administration size criteria and asks each permit applicant to provide detailed ownership information. Data on employment worldwide, including affiliates, are not available for these companies, which generally operate in Alaska as well as on the West Coast in non-whiting groundfish fisheries and may have operations in other countries, as well. NMFS requests that limited entry permit holders self-report their size status. There is substantial, but not complete, overlap between permit ownership and vessel ownership, so there may be a small number of additional small entity vessel owners who will be impacted by this rule.

The C/P Co-op Program is composed of ten C/P endorsed permits owned by three companies that have formed a single co-op. This co-op is considered a large entity both because it has participants that are large entities and because it has in total more than 750 employees worldwide including affiliates. For 2026, all three owners of the ten C/P permits reported that they are not small businesses.

As of January 2026, the Shorebased IFQ Program is composed of 158 Quota Share permits/accounts that are eligible to harvest Pacific whiting. 120 of these permits are annually allocated whiting quota pounds based on catch history. There are an additional 38 eligible permits/accounts eligible to harvest whiting that are not allocated whiting quota, but are permitted to buy or trade whiting quota pounds. The Shorebased IFQ sector also includes 39 licensed first receiver sites, of which 7 companies receive and process whiting. Of these companies that receive whiting, six are not considered small entities, we estimate one would be considered a small entity.

Vessels participating in the Shorebased IFQ program may also participate in the MS Co-op Program, which is the limited access program that applies to eligible harvesters and processors in the MS sector of the Pacific whiting at-sea trawl fishery. In 2026 this program consists of six MS processor permits and a catcher vessel fleet currently composed of a single co-op with 33 Mothership/Catcher Vessel endorsed permits (with three permits each having two catch history assignments). For 2026, eight permits in the MS Co-op reported that they are not small businesses, NMFS estimates the remaining 25 permits to be considered small entities.

After accounting for cross-fishery participation, multiple Quota Share account holders, and affiliation through ownership, NMFS estimates based on 2026 permit registration and quota share information that there are 100 non-Tribal entities directly affected by these regulations, 86 of which are considered small entities.

This final rule contains no recordkeeping or information collection requirements.

The criteria are described above. NMFS estimates that there are 100 non-Tribal entities directly affected by these regulations, 86 of which are considered small entities. This is considered a significant number of small entities. This rule is not expected to result in adverse impacts on small entities, as detailed in the following sections of this FRFA.

NMFS considers two criteria in determining the significance of adverse regulatory effects: disproportionality and profitability.

Disproportionality: This criterion compares the effect of the regulatory action between small and large entities. This action will not disproportionally impact small entities more than large entities. These regulations are related to harvest specifications, the proportion of Tribal and non-Tribal sector allocations are not impacted by the annual recommendation of the Pacific Whiting TAC recommendation. Allocation proportions are fixed within the groundfish FMP framework, and regulations governing the Trawl Catch Share Program.

Profitability: There are no major compliance costs to entities associated with this rule anticipated for the 2026 primary whiting season. This action is not expected to significantly impact the profitability of small or large entities; quota of Pacific whiting is allocated according to the regulations governing the Trawl Catch Share Program; unused Tribal quota is reapportioned to the non-Tribal sectors each year to provide additional economic opportunity; Tribal catch may be delivered to both Tribal and non-Tribal processors.

Data used to inform this analysis come primarily from PacFIN, which includes data provided by the states of Oregon, California, and Washington on commercial whiting fishing trips and landings. Other data sources include the West Coast Economic Data Collection Program, the West Coast Region permit database, and the West Coast Region Individual Fishing Quota Account public database. The number of entities predicted to be impacted is generally based on the level of participation in the previous year (2025) and, as noted above, is in some cases likely to be an overestimate of the true number of entities likely to be impacted if current trends continue. However, it is possible that as environmental or management conditions change in other fisheries this will impact the level of participation in the groundfish fishery beyond what is predicted here.

Impacts to the U.S. non-Tribal fishery are measured with an estimate of ex-vessel revenue. Ex-vessel revenue is calculated by multiplying annual landings of Pacific whiting in metric tons by the average ex-vessel price of whiting. The prices for Pacific whiting are largely determined by the world market because most of the Pacific whiting harvested in the United States is exported. The U.S. Pacific whiting TAC is highly variable, as is subsequent attainment of sector allocations, and ex-vessel revenues. For the years 2015 to 2025, the U.S. non-Tribal commercial fishery sectors averaged harvests of approximately 262,861.33 mt, and revenues of $51.39 million annually. The 2025 average ex-vessel price of Pacific whiting was $256 per mt. The 2025 U.S. non-Tribal commercial fishery sectors attained a Pacific whiting catch of approximately 238,435.10 mt out of a U.S. TAC of 295,520 mt (80.9 percent attainment), resulting in a total ex-vessel revenue of $61.04 million.

To estimate the ex-vessel revenue resulting from the 2026 TAC of Pacific whiting, the recommended U.S. TAC is multiplied the most recent ex-vessel price per mt of Pacific whiting, and a range of potential harvests attainment percentages based on average landings for the previous 10 years.

The adjusted coastwide TAC of 380,000 mt results in an adjusted U.S. TAC of 280,744 mt and, after deduction of the Tribal allocation and the incidental catch set-aside, a U.S. non-Tribal HG of 230,863.80 mt. Using the 2025 weighted-average non-Tribal price of $256 per metric ton, the 2026 adjusted U.S. TAC is estimated to result in an ex-vessel revenue of $53.37 million for the U.S. non-Tribal fishing fleet if 100 percent harvested. However, due to operational constraints, the U.S. commercial sectors attained approximately 50 percent and 80 percent of the non-Tribal HG in 2024 and 2025. At this attainment range the 2026 U.S. non-Tribal HG which would result in an estimated total ex-vessel revenue of $29.55 to $47.28 million for entities participating in the Shorebased sector, C/P co-op, and MS co-op. Impacts to Tribal catcher vessels who elect to participate in the Tribal fishery are measured with an estimate of ex-vessel revenue. In lieu of more complete information on Tribal deliveries, total ex-vessel revenue is estimated with the 2025 average ex-vessel price of Pacific whiting, which was $256 per mt. At that price, the 2026 Tribal allocation of 49,130.20 mt would potentially have an ex-vessel value of $12.57 million if fully harvested. Tribal catch is highly variable and dependent on the presence of Pacific whiting migrating within the boundaries of Tribal U&A. In recent years, Tribal catch within the Makah U&A has been constrained by low presence of whiting in the area. From 2024-2025, Tribal catch ranged from 1,541 mt to 526 mt which would range in value from $394,496 to $134,656 in revenue using 2025 ex-vessel price of $256 per mt.

The effect of the Tribal allocation on non-Tribal fisheries will depend on the level of Tribal harvests relative to their allocation and the reapportionment process. For example, in 2025 NMFS reapportioned 41,750 mt of the original 51,716 mt Tribal allocation (Bulletin: Reapportionment of Tribal Pacific Whiting Allocation for 2025, September 23, 2025; Bulletin: Second Reapportionment of Tribal Pacific Whiting Allocation for 2025, November 19, 2025). The revised Pacific whiting allocations for 2025 following the reapportionment were: Tribal 10,000 mt, C/P Co-op 96,821.80 mt; MS Co-op 68,344.80 mt; and Shorebased IFQ Program 119,603.40 mt. Shoreside processors are unlikely to be impacted by allocating U.S, pacific whiting TAC between Tribal and non-Tribal sectors because they can receive and process landings from both Tribal and non-Tribal catcher vessels.

Based on the above analysis this rule would not have a significant economic impact on small entities. This rule is similar to previous rulemakings concerning Pacific whiting. This rule concerns the amount of the U.S. TAC that should be allocated to the Tribal fishery and a set-aside for research and bycatch in non-groundfish fisheries for 2026. The JMC TAC recommendation and resulting Pacific whiting allocations to the non-Tribal sectors are expected to provide additional economic opportunity to the entities considered in this analysis to prosecute a quota species within a multi-species groundfish catch share program. In addition, the reapportioning process allows unharvested Tribal allocations of Pacific whiting, fished by small entities, to be fished by the non-Tribal fleets, potentially providing economic benefits to both large and small entities. NMFS finds that this rule will not adversely affect small entities.

NMFS issued a proposed rule on March 6, 2026 (91 FR 11022). The comment period on the proposed rule closed March 23, 2026. NMFS received one comment on the IRFA and made the corresponding corrections to the FRFA, as described above under Comment 7.

No changes from the proposed action are being considered in the final action.

For the Pacific whiting Tribal allocation, and set-asides for research and incidental mortality NMFS considered two alternatives: the “No Action” alternative and the “Proposed Action” alternative.

NMFS did not consider a broader range of alternatives to the proposed Tribal allocation because the Tribal allocation is a percentage of the U.S. TAC and is based primarily on the requests of the Tribes. These requests reflect the level of participation in the fishery that will allow the Tribes to exercise their treaty right to fish for Pacific whiting which NMFS must legally allow them to harvest. Under the Proposed Action alternative, NMFS would set the Tribal allocation percentage at 17.5 percent, as requested by the Makah Tribe. Using the Tribal allocation of 17.5 percent and the recommended U.S. TACs of 280,744.00 mt for 2026 would yield a Tribal allocation of 49,130.20. Consideration of a percentage lower than the Tribal request of 17.5 percent is not appropriate in this instance. NMFS has historically supported the harvest levels requested by the Tribe. Based on the information available to NMFS, the Tribal request is within their Tribal treaty rights. A higher percentage would arguably also be within the scope of the treaty right. However, a higher percentage would unnecessarily limit the non-Tribal fishery, and the proposed percentage is consistent with the Tribe's request.

Under the No Action alternative, NMFS would not make an allocation to the Tribal sector. This alternative was considered, but the regulatory framework provides for a Tribal allocation on an annual basis only. Therefore, the No Action alternative would result in no allocation of Pacific whiting to the Tribal sector in 2026, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the Tribes' treaty rights. Given that there is a Tribal request for allocation in 2026, this No Action alternative for allocation to the Tribal sector received no further consideration.

For set-asides for research and incidental mortality, the No Action alternative would mean that NMFS would not implement the set-aside amount of 750 mt recommended by the Council. Not implementing set-asides of the US whiting TAC would mean incidental mortality of the fish in research activities and non-groundfish fisheries would not be accommodated. This would be inconsistent with the Council's recommendation, the FMP, the regulations setting the framework governing the groundfish fishery, and NMFS' responsibility to manage the fishery and prevent overfishing. Therefore, the No Action alternative for set-asides received no further consideration.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Stakeholders subscribed to the Groundfish and Whiting listservs will be sent a public notice providing links to the final rule and the small entity compliance guide available from NMFS at the following website: https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/compliance-guides-west-coast-groundfish. Stakeholders will receive the notice without any further action on their end.

This final rule contains no recordkeeping or information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

No Federal rules that duplicate, overlap, or conflict with this action have been identified.

For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows: