On April 9, 2025, President Donald J. Trump issued Executive Order (E.O.) 14270, Zero-Based Regulatory Budgeting to Unleash American Energy. 90 FR 15643. In E.O. 14270, the President directed the Department of Energy (DOE), among other agencies, to “the extent consistent with applicable law” to “issue a sunset rule, effective not later than September 30, 2025” to insert a conditional sunset date into regulations promulgated under a variety of energy-related statutes. Id., section4(a). E.O.14270 identified five statutes relevant to DOE: the Atomic Energy Act of 1954; the National Appliance Energy Conservation Act of 1987; the Energy Policy Act of 1992; the Energy Policy Act of 2005; and the Energy Independence and Security Act of 2007. Id., section 3(b). E.O. 14270 directed DOE to issue its sunset rule with an effective date “not later than September 30, 2025.” Id., section 4(a).

E.O. 14270 ordered that the “sunset rule shall provide” that each regulation issued pursuant to the identified statutes and their amendments, “in effect on the date of this order,” shall have a conditional sunset date “1 year after the effective date of the sunset rule.” Id., section 4(b). Under the sunset provision, each regulation expires on the conditional sunset date unless DOE “finds an extension is warranted” and extends the sunset date of the regulation. Id., section 4(d). Regulations that expire will cease to be effective and, to the maximum extent permitted by law, shall be removed from the Code of Federal Regulations. Id., section 4(b).

E.O. 14270 also directed DOE to insert a sunset provision into each regulation promulgated under the same five statutes, going forward. E.O. 14270 directed DOE to insert a conditional sunset date for future covered regulations “not more than 5 years in the future” following the effective date of a particular regulation. 1 E.O. 14270 exempted permitting regimes authorized by statute. Id., section 5(c).

As stated previously, E.O. 14270 directed DOE to issue a rule that inserts conditional sunset dates into each of the covered regulations, which are defined as “regulation[s] issued in whole or in part pursuant to a statutory authority listed in sections 3(b)-(j) of this order.” Id., sections 2(c), 4(a). For DOE, the identified statutes are the Atomic Energy Act of 1954; the National Appliance Energy Conservation Act of 1987; the Energy Policy Act of 1992; the Energy Policy Act of 2005; and the Energy Independence and Security Act of 2007. Id., section 3(b). The Atomic Energy Act of 1954 governs the development and use of nuclear energy. Public Law 83-703 (1954). The National Appliance Energy Conservation Act of 1987 established energy efficiency standards for appliances. The Energy Policy Act of 1992 amended the Energy Policy and Conservation Act (EPCA) to further increase energy efficiency in the United States. The Energy Policy Act of 2005 addressed energy production in the United States. The Energy Independence and Security Act of 2007 aimed to increase the energy independence of the nation.

DOE regulations promulgated under the authority of these statutes and for which it would be consistent with applicable law to include a conditional sunset date are codified in 10 CFR parts 300, 602, 605, 706, 708, 712, 719, 725, 727, 733, 760, 766, 782, 783, 784, 824, 840, 860, 861, 862, 950, 960, 963, 1009, 1015, 1016, 1045, and 1046. These regulations may be issued pursuant to multiple statutes, including statutes not listed in E.O. 14270. The CFR parts listed previously include regulations where DOE relied on one of the five statutes identified in E.O. 14270, or their amendments, for any section in that part, and where it would be consistent with applicable law to sunset.

There are several regulations codified in 10 CFR that are promulgated under the authority of these statutes but are not included in this rulemaking. E.O. 14270 directs DOE to issue a sunset rule “to the extent consistent with applicable law.” E.O. 14270, section 4. Thus, this rulemaking does not include regulations that could not be sunset “consistent with applicable law.” Specifically, there are several regulations that are required by Congress or are required to fulfill DOE's statutory duties, and conditional sunset dates for these provisions may have a chilling effect on the market. For example, 10 CFR parts 820, 830, and 835 either directly or indirectly serve as underlying nuclear safety requirements for Price Anderson Amendments Act (PAAA) indemnification, which provides a system of financial protection for persons (including DOE contractors) who may be liable and persons who may be injured by a nuclear incident. The potential for these regulations to sunset would be inconsistent with the requirements of PAAA and because this indemnification is a critical element of obtaining contractors to perform work for the Department, the potential for these regulations to sunset could negatively affect DOE's ability to secure contracts necessary for it to perform its statutory duties. For these reasons, regulations that are required by Congress or are required to fulfill DOE's statutory duties and would have a chilling effect on the market if DOE inserted a conditional sunset are excluded from the rulemaking.

The direct final rule (DFR) inserts a sunset provision into its regulations codified in each of the parts previously listed. This DFR amends the identified parts of title 10 of the Code of Federal Regulations to add a sunset provision to the end of the identified parts. The sunset provision added to parts 300, 602, 605, 706, 708, 719, 727, 733, 760, 766, 782, 783, 784, 824, 840, 861, 950, 960, 963, 1009, and 1015 state the identified part will automatically expire one year from the effective date unless the part expires earlier, is rescinded, or the sunset provision is extended pursuant to 10 CFR 1061.101.

For sunset provisions added to parts 712, 725, 860, 862, 1016, 1045, and 1046, the DFR sets a conditional sunset date of five years from the effective date. These parts govern access to classified information/classified programs, administer the Human Reliability Program, protect worker health and safety, and establish processes to govern the production of nuclear material for the nuclear couriers and Security personnel at DOE and National Nuclear Security Administration (NNSA) facilities. The identified parts implicate DOE and NNSA abilities to protect DOE and NNSA personnel, facilities, materials, and information. Thus, the Secretary has determined that an extension of the conditional sunset date for these parts for a period of five years is warranted. Accordingly, instead of a conditional sunset date of one year from the effective date, the DFR sets a conditional sunset date that is 5 years from the effective date for these provisions.

The direct final rule also adds part 1061 to Chapter X of title 10 of the Code of Federal Regulations, which outlines how these sunset provisions are applied to covered regulations. The general sunset provisions reiterates that sections to which the sunset provisions apply would “automatically expire and cease to be effective on the identified conditional sunset date unless the section expires, is rescinded, or is extended prior to that date.”

The general sunset provisions extend the conditional sunset date upon a written determination by the Secretary of Energy or his designee that “an extension of the section is warranted[.]” The written determination may extend the conditional sunset date for period not to exceed five years. Additionally, 10 CFR 1061.101 requires DOE to publish in the Federal Register a written determination in which DOE extends the conditional sunset date of a covered regulation. Consistent with the E.O. 14270, the direct final rule states that “Amendments to an existing regulation shall not extend its sunset date[,]” and provides that “that DOE will give the public an opportunity to comment on the costs and benefits of extending any regulations covered by a sunset provision, through a request for information, before allowing any regulation to expire.” See E.O. 14270, section 4(d).

Through publication of this direct final rule, DOE is also providing a comment period until June 29, 2026. If significant adverse comments are received, a timely withdrawal of this rule will be published in the Federal Register and DOE will address the comments received in a subsequent final rule as a response to the companion proposed rule published in this issue of the Federal Register or take other action, as appropriate.

E.O. 14270, Zero-Based Regulatory Budgeting to Unleash American Energy, states “each of the Covered Agencies shall issue a sunset rule,” and further specifies the general terms of those rules. E.O. 14270, section4(a). Consistent with this direction, DOE issues this direct final rule. The President's directive provides an independent and sufficient justification for this rulemaking. E.O. 14270 does not direct the Secretary to rescind or reissue any particular regulation. The Secretary retains his full authority to issue and repeal regulations under the five relevant statutes and their amendments. The President has directed only the manner in which the Secretary is to review and extend the conditional sunset dates for covered regulations, as defined in E.O. 14270.

Independent of E.O. 14270, DOE separately determines that it is good public policy to routinely review agency regulations and that this sunset rule is an appropriate mechanism to compel that review. Energy markets and needs are constantly changing. So is new energy technology. DOE's regulations must adapt to this changing landscape to foster innovation and growth. Having regulations expire unless extended would ensure DOE's regulations are programmatically reviewed. Simply promising to review rules is insufficient because it fails to provide the agency with an adequate incentive to periodically review its regulations.

E.O. 14270 covers a diversity of statutes, which all involve energy-production issues wherein science and technology are constantly evolving, and wherein regulations must adapt to the current energy needs of the country. For example, the Atomic Energy Act of 1954 is designed to “encourage scientific and industrial progress,” a goal that requires that the regulatory structure keep up with the rapid pace of scientific and industrial innovation. 42 U.S.C. 2013(b).

The sunset provisions do not force the expiration or the extension of any particular regulation. The decision whether to extend a conditional sunset date will come later, as DOE reviews the various covered regulations, as defined by E.O. 14270. DOE will consider the ongoing need for each individual regulation at that time, along with the particular statutory authorities for each regulation.

DOE is not the first governmental entity to consider a sunset rule—it is not even the first Federal agency to adopt one. On January 19, 2021, Health and Human Services adopted a sunset rule, 86 FR 5694, although it was later withdrawn, 87 FR 32246. Beyond that, many states have automatic sunset provisions. In New Jersey, for example, regulations automatically expire after seven years unless extended by the agency. N.J. Stat. Ann. sec. 52:14B-5.1(b). Indiana likewise has a seven-year sunset rule. Ind. Code sec. 4-22-2.5-2. And in 2019, the state of Idaho underwent a sunset review process for its entire regulatory code—ultimately rescinding more than 19,000 regulatory restrictions as part of the process. Office of Gov. Brad Little, Idaho's Historic Regulatory Cuts (July 2019). Other countries have also imposed sunset provisions, including South Korea. OECD Reviews of Regulatory Reform, Regulatory Policy in Korea, Toward Better Regulation, at 86 (2017), https://publicadministration.un.org/unpsa/Portals/0/UNPSA_Submitted_Docs/2019/4cd3e219-c819-40f3-8246-7a024d9a82a9/2020%20UNPSA_the%20Regulatory %20Reform%20Sinmungo_Evaluation%20Report_27112019_032807_e4d166a9-f6ef-4a6c-9aaf-99748fa94284.pdf?ver=2019-11-27-032807-637.

Previous administrations have also recommended sunset provisions. An Obama administration report from the Council of Economic Advisors explained that sunset provisions could be useful in the context of occupational licensing “because, even if licensing was justified when first introduced, technological and economic changes may have rendered it unnecessary or overly restrictive.”  Occupational Licensing: A Framework for Policymakers, The White House, at 48-50 (July 2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf.

Overall, a sunset rule is one of the most important tools a government can use to reduce regulatory costs. Russell S. Sobel & John A. Dove, State Regulatory Review: A 50 State Analysis of Effectiveness 36 (Mercatus Ctr., Working Paper No. 12-18, 2012), https://www.mercatus.org/system/files/State-Regulatory-Review-50-State-Analysis-Effectiveness.pdf. This is consistent with the Secretary's policy of deregulation. The agency is committed to repealing outdated and unnecessary regulations as a pathway to maximize human freedom, stimulate economic growth, and promote innovation. Unless a regulation is statutorily required or critical to the public interest, the agency's general policy view is that it should be withdrawn and removed as expeditiously as possible. The sunset rule is the best way to achieve the Secretary's policy.

The Secretary's general authority to issue a sunset rule comes from DOE's general “housekeeping” authority, see 5 U.S.C. 301, as well as the same regulatory authority used to initially issue the regulations under the relevant statutes. Furthermore, “[t]he Secretary is authorized to prescribe such procedural and administrative rules and regulations as he may deem necessary or appropriate to administer and manage the functions” vested in DOE. 42 U.S.C. 7254.

E.O. 12866, “Regulatory Planning and Review” requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits; (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. For the reasons stated in the preamble, this DFR is consistent with these principles. Although the agency remains free to extend the sunset date on any particular regulation, the sunset rule is expected to generally result in decreased regulatory burdens and to ensure that regulations remain up to date in light of changing circumstances.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) for review. OIRA has determined that this regulatory action is a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was subject to review under that Executive Order by OIRA.

A direct final rule is a regulatory document that is used for non-controversial regulatory amendments. 2 The direct final rule process allows an agency to issue a rule without having to go through the review process twice ( i.e., at the proposed and final rule stages), while at the same time offering the public the opportunity to challenge the agency's view that the rule is non-controversial. Consistent with E.O. 14270, this rulemaking would add a conditional sunset date to covered regulations, as defined by E.O. 14270. As previously explained, adding these conditional sunset dates does not require DOE to rescind or extend a regulation. Therefore, because DOE does not anticipate significant public comments on this rulemaking and considers it to be non-controversial, DOE is using the “direct final rule procedure” for this rule. The amendments are effective on July 13, 2026. However, if DOE receives significant adverse comments on any part of this direct final rule by June 29, 2026, then DOE will publish a document that withdraws any such part of this action and will address the comments received in a subsequent final rule as a response to the companion notice of proposed rulemaking published in this issue of the Federal Register or take other action as appropriate.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires that an agency prepare an initial regulatory flexibility analysis whenever an agency is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule. DOE is not obligated to prepare a regulatory flexibility analysis for this rulemaking because there is not a requirement to publish a general notice of proposed rulemaking under the Administrative Procedure Act. See 5 U.S.C. 601(2), 603(a). DOE notes that the companion proposed rule addresses whether the preparation of an initial regulatory analysis is warranted.

This direct final rule imposes no new information or record-keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. 44 U.S.C. 3501 et seq.

DOE has considered this DFR in accordance with NEPA, as amended, DOE's NEPA implementing regulations, set forth in 10 CFR part 1021, and DOE's NEPA implementing procedures published outside the Code of Federal Regulations on June 30, 2025. DOE has determined that NEPA does not apply to this action as this DFR is an administrative and routine action excepted from NEPA review necessary to add sunset provisions to certain DOE's regulations consistent with E.O. 14270. DOE has determined that this rulemaking is a Federal action, but it is not “major” and therefore not subject to NEPA. This action is one in which NEPA does not apply because it does not fall within the definition of “major Federal action” in section 110(10) of NEPA, 42 U.S.C. 4336e(10). For more information, please see appendix A of 10 CFR part 1021 (“A6, Procedural rulemakings”) and appendix A of DOE's NEPA implementing procedures, A6, Procedural rulemakings (June 30, 2025). Furthermore, before allowing specific regulations to expire, DOE will determine whether NEPA applies and, as appropriate, determine the level of NEPA review required in accordance with DOE's NEPA implementing procedures (Sections 2.1 and 2.2).

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, Civil Justice Reform, imposes on Executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General.

Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this procedural rulemaking meets the relevant standards of E.O. 12988.

E.O. 13132, Federalism, imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. 64 FR 43255 (Aug. 10, 1999), E.O. 13132 requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The E.O. also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735.

DOE has examined this DFR and has determined that it will not preempt State law and will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The DFR does not directly affect any substantive DOE regulation that might implicate federalism because it is a procedural rule. Accordingly, no further action is required by E.O. 13132.

Under E.O. 13175, Consultation and Coordination With Indian Tribal Governments, DOE may not issue a discretionary rule that has Tribal implications and imposes substantial direct compliance costs on Indian Tribal governments. 65 FR 67249, (Nov. 9, 2000). DOE has determined that this DFR will not have such effects and has concluded that E.O. 13175 does not apply to this DFR.

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

DOE examined this DFR according to UMRA and its statement of policy and determined that adding the sunset provisions does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. As stated previously, adding the sunset provision does not direct the Secretary to rescind or reissue any particular regulation, but rather the provisions require the Secretary to review whether extending the regulations is warranted. As a result, the analytical requirements of UMRA do not apply.

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

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

DOE has reviewed this direct final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

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

This regulatory action will not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

DOE has examined this direct final rule and has determined that it is consistent with the policies and directives outlined in E.O. 14154 Unleashing American Energy; E.O. 14192, Unleashing Prosperity Through Deregulation; and Presidential Memorandum, Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis. This DFR is not subject to E.O. 14192, Unleashing Prosperity Through Deregulation, 90 FR 9065 (February 6, 2025). As stated previously, adding a sunset provision to covered regulations does not rescind or extend any particular regulation. Thus, this action is neither regulatory nor deregulatory under E.O. 14192. Moreover, E.O. 14270 explicitly states that “[n]either a determination to extend the conditional sunset date of a particular regulation, nor a regulation that expires as a result of [E.O. 14270], shall count towards the ten-for-one regulatory requirement in Executive Order 14192[.]” E.O. 14270, section 5(a).

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2). The DFR does not rescind or reissue any particular regulation but rather the DFR requires the Secretary to review whether extending the regulations is warranted.

The Secretary of Energy has approved publication of this direct final rule and request for comments.

This document of the Department of Energy was signed on May13, 2026, by Chris Wright, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set forth in the preamble, DOE amends chapters II, III, and X of title 10 of the Code of Federal Regulations, as set forth below.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-200, -200 Freighter, -300, -800, and -900 series airplanes. The NPRM was published in the Federal Register on November 17, 2025 (90 FR 51222). The NPRM was prompted by AD 2025-0071, dated March 31, 2025 (EASA AD 2025-0071) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states an incorrect shot peening application was implemented in production and the fatigue life of affected central windshield frames could consequently be lower than the certified value. This condition, if not addressed, could adversely affect the structural integrity of the airplane.

In the NPRM, the FAA proposed to require repetitive SDIs of affected central windshield frames and applicable corrective actions, as specified in EASA AD 2025-0071. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2025-3988.

The FAA received a comment from Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

The FAA received additional comments from the Citizens Rulemaking Alliance. The following presents the comments received on the NPRM and the FAA's response to each comment.

The Citizens Rulemaking Alliance requested that the FAA either provide its justification for finding good cause to bypass notice and comment procedures, or convert this action to an NPRM to extend the comment period at least 60 days. The commenter asserted the FAA has not adequately justified use of the good cause exemption.

The FAA notes the comment was submitted in response to an NPRM for which the FAA provided a 45-day comment period. This final rule is effective 35 days after its publication in the Federal Register . Therefore, no change to this AD is necessary.

The Citizens Rulemaking Alliance requested that the FAA revise the AD to comply with the PRA if reporting is required or remove any reporting provisions until PRA requirements are satisfied. If reporting is not required, the commenter requested the FAA clarify that in the AD.

The FAA notes paragraph (i) of this AD specifies that reporting is not required. If an AD were to require reporting, the preamble of the AD would include a paragraph titled “Paperwork Reduction Act” that would provide the applicable OMB control number, required PRA statements, and the estimated time to collect the required information (burden). Any costs associated with the reporting requirement would be included in the Costs of Compliance section in the preamble of the AD. Therefore, the FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA either provide the factual basis for its Regulatory Flexibility Act (RFA) certification that the AD will not have a significant economic impact on a substantial number of small entities, or prepare an initial regulatory flexibility analysis.

The FAA provides the following clarification. The RFA of 1980 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 111-240), requires Federal agencies to consider the effects of the regulatory action on small business 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 populations of less than 50,000.

This AD will affect 11 domestic entities, of which three are small entities. The table below displays the industries of the small entities, their average annual revenue, and the AD's estimated cost burden relative to average annual revenue.

While the FAA has determined that this AD affects a number of small entities, the compliance cost of the AD relative to each small entity's annual revenue is minimal. The FAA estimates the total cost per affected airplane to be $340 (4 work-hours × $85 per work-hour). The total cost burden is less than 1 percent of average annual revenue for all small entities. Therefore, as provided in section 605(b), the FAA certifies this AD will not result in a significant economic impact on a substantial number of small entities. The FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA add to the AD docket the methodology and assumptions supporting the estimated cost of the proposed AD and reopen the comment period for public input on the additional cost information. The commenter stated that the FAA should also provide the fleet size, per airplane labor and parts cost, any assumed downtime or out-of-service impacts, aggregate costs, and any assumption that the manufacturer would provide parts free of charge.

In the Costs of Compliance section of the proposed AD, the FAA disclosed the number of airplanes affected on the U.S. registry, estimated number of work hours provided by the manufacturer, and the aggregate costs. The FAA did not disclose an estimated parts cost since this AD does not require any parts. Additionally, the FAA considered the impact that this AD will have on affected operators and determined this AD will not trigger any downtime costs because the requirements of this AD can be performed during regularly scheduled maintenance. Since the FAA has assessed and disclosed the total known costs of the AD requirements in the Costs of Compliance section of the proposed AD, and the commenter did not provide additional cost data for the FAA to consider in its cost analysis, it is not necessary to reopen the comment period or provide additional information in the AD docket. The FAA did not change this AD as a result of this comment.

These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2025-0071 specifies procedures for repetitive SDIs ( i.e., high frequency eddy current inspections) for cracking of the windshield central lower framing fillet radius on the left-hand and right-hand sides and applicable corrective actions. Corrective actions include repair.

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

The FAA estimates that this AD affects 85 airplanes of U.S. registry. The FAA estimates the following total costs to comply with this AD:

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

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318-111, -112, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -215, -216, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes. The NPRM was published in the Federal Register on September 15, 2025 (90 FR 44350). The NPRM was prompted by AD 2025-0078, dated April 9, 2025 (EASA AD 2025-0078) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that a deviation from the manufacturing process was detected during a review of the cold working process in the assembly line, which could adversely affect the fatigue life of the affected areas (forward pressure bulkhead connection to frame (FR) 35 for Airbus A319 and A320 airplanes and FR35.8 for Airbus A321 airplanes, between stringer (STR) 28 and STR 31, both left-hand (LH) and right-hand (RH) sides; and fuselage skin at FR35 for Airbus A318, A319 and A320 airplanes and FR35.8 for Airbus A321 airplanes, at STR30, both LH and RH sides). This condition, if not detected and corrected, could lead to crack initiation and propagation, possibly resulting in reduced structural integrity of the airplane.

In the NPRM, the FAA proposed to require repetitive SDIs around the fastener holes at FR35, STR 28 to STR 31 to check if the fasteners and fastener holes are in nominal design condition, repetitive rototest or HFEC and rototest inspections around the fasteners and fastener holes for cracks, and applicable corrective actions, as specified in EASA AD 2025-0078. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2025-2544.

The FAA received comments from three commenters, including American Airlines (American), the Citizens Rulemaking Alliance, and JetBlue. The following presents the comments received on the NPRM and the FAA's response to each comment.

American requested that the FAA correct a typographical error in Airbus Service Bulletin A320-53-1520, dated November 18, 2024. American noted the instructions in that material, for Option 2, Configuration 002, specify to remove 12 fasteners whereas only 9 fasteners are shown in the corresponding figure. American stated Airbus confirmed via Repair and Design Approval Form (RDAF) 81664262/004/2025#A that only 9 fasteners are to be removed.

The FAA agrees and has added a new exception to paragraph (h)(4) of this AD, accordingly.

JetBlue requested that the FAA allow removal of the fasteners and inspection of all affected fasteners holes at the same time with any applicable repair to follow, instead of removal of one fastener at a time followed by inspection and repair of one fastener hole at a time, as specified in paragraph C(4)(b) of Airbus Service Bulletin A320-53-1519, dated November 18, 2024, and Airbus Service Bulletin A320-53-1520 dated November 18, 2024. JetBlue stated that Airbus confirmed via Tech Request 8159376 that 100% of the fasteners can be removed from the affected holes prior to performing non-destructive tests and corrective actions, if needed. JetBlue also stated this approach is intended to prevent work stoppages and improve efficiency during the inspection process.

The FAA agrees and has added a new exception to paragraph (h)(5) of this AD, accordingly.

The Citizens Rulemaking Alliance requested that the FAA either provide its justification for finding good cause to bypass notice and comment procedures, or convert this action to an NPRM to extend the comment period and delay compliance enforcement. The commenter also requested that the FAA add to the AD docket the chronology of the underlying events and the quantitative risk assessment that justifies use of the good cause exemption.

The FAA notes the comment was submitted in response to an NPRM for which the FAA provided a 45-day comment period. This final rule is effective 35 days after its publication in the Federal Register . Therefore, no change to this AD is necessary.

The Citizens Rulemaking Alliance requested that the FAA make IBR material available and free to the public during the comment period. The commenter asserted that this AD incorporates by reference manufacturer service information.

The FAA notes that this AD incorporates by reference EASA AD 2025-0078, not the manufacturer service information referenced in that EASA AD. The FAA posted EASA AD 2025-0078 to the AD docket when the NPRM was published in the Federal Register . The material referenced in EASA AD 2025-0078 may only be posted before the final rule's publication if it is already publicly available or if there is written consent from the owner of that material. Additionally, the FAA provided notice in the NPRM that the material referenced in EASA AD 2025-0078 will be available in the AD docket after this AD is published. Therefore, the FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA revise the AD to comply with the PRA if reporting is required or remove any reporting provisions until PRA requirements are satisfied. If reporting is not required, the commenter requested the FAA clarify that in the AD.

The FAA notes paragraph (i) of this AD specifies that reporting is not required. If an AD were to require reporting, the preamble of the AD would include a paragraph titled “Paperwork Reduction Act” that would provide the applicable OMB control number, required PRA statements, and the estimated time to collect the required information (burden). Any costs associated with the reporting requirement would be included in the Costs of Compliance section in the preamble of the AD. Therefore, the FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA either provide the factual basis for its Regulatory Flexibility Act (RFA) certification that the AD will not have a significant economic impact on a substantial number of small entities, including the number of small entities operating affected airplanes, or prepare an initial regulatory flexibility analysis that identifies alternatives to minimize impact if the cost analysis shows the impact on small entities is not de minimis.

The FAA provides the following clarification. The RFA of 1980 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 111-240), requires Federal agencies to consider the effects of the regulatory action on small business 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 populations of less than 50,000.

This AD will affect 23 domestic entities, of which 8 are small entities. The table below displays the industries of the small entities, their average annual revenue, and the AD's estimated cost burden relative to average annual revenue.

While the FAA has determined that this AD affects a substantial number of small entities, the compliance cost of the AD relative to small entities' annual revenue is minimal. The estimated cost per affected airplane is $5,355 (63 work-hours × $85 per work-hour). Based on the number of airplanes per small entity, the total cost burden is less than 3 percent of average annual revenue for all but one small entity. Therefore, as provided in section 605(b), the FAA certifies this AD will not result in a significant economic impact on a substantial number of small entities. The FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA add to the AD docket the cost per small entity, including downtime and recordkeeping.

The FAA recognizes that, in doing the actions required by an AD, operators might incur indirect costs (such as loss of revenue due to airplane downtime, recordkeeping to document AD compliance, etc.) in addition to the direct costs. The cost analysis in an AD typically describes only the direct costs of the specific actions required by an AD, which does not include indirect costs, since the FAA lacks data on those costs and they may vary significantly among operators. However, the FAA considered the impact that this AD will have on affected operators and determined this AD will not trigger any downtime costs because the requirements of this AD can be performed during regularly scheduled maintenance.

In the Costs of Compliance section of the proposed AD, the FAA disclosed the estimated cost per airplane on the U.S. registry. Since the FAA has assessed and disclosed the total known costs of the AD requirements in the Costs of Compliance section of the proposed AD, and the commenter did not provide additional cost data for the FAA to consider in its cost analysis, it is not necessary to provide additional information in the AD docket. The FAA did not change this AD as a result of this comment.

These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2025-0078 specifies procedures for repetitive SDIs around the fastener holes at FR35, STR 28 to STR 31 to check if the fasteners and fastener holes are in nominal design condition, repetitive rototest or HFEC and rototest inspections around the fasteners and fastener holes for cracks, and applicable corrective actions. Corrective actions include repair.

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

The FAA estimates that this AD affects 1,474 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to The Boeing Company Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, -400F, 747SP, and 747SR series airplanes. The NPRM was published in the Federal Register on September 30, 2025 (90 FR 46771). The NPRM was prompted by reports of corrosion damage found on a certain SATCOM high gain antenna adapter plate. In the NPRM, the FAA proposed to require repetitive DETs of the SATCOM high gain antenna adapter plate for corrosion and applicable on-condition actions. The FAA is issuing this AD to prevent corrosion damage of the SATCOM high gain antenna adapter plates. The unsafe condition, if not addressed, could result in the SATCOM high gain antenna system parts departing and impacting the airplane, which can cause damage that results in loss of continued safe flight and landing.

The FAA received comments from the Air Line Pilots Association, International, (ALPA), Boeing, and a commenter who supported the NPRM without change.

The FAA received additional comments from Cathay Pacific Airways Limited (Cathay) and the Citizens Rulemaking Alliance. The following presents the comments received on the NPRM and the FAA's response to each comment.

Cathay requested that the FAA revise the applicability of the proposed AD to exclude airplanes that have been modified in accordance with a certain supplemental type certificate (STC) to remove the Inmarsat Antenna and the related adapter plates (part numbers (P/Ns) 100-602074-000 and 100-602549-000).

The FAA disagrees. The FAA does not have sufficient information regarding that STC to determine if the modification removes all components associated with the unsafe condition. Operators may request approval of an alternative method of compliance (AMOC) under the provisions of paragraph (i) of this AD for airplanes that have been modified in accordance with the STC. The FAA has not revised this AD in response to this comment.

The Citizens Rulemaking Alliance requested that the FAA either provide its justification for finding good cause to bypass notice, if invoked, or reopen the comment period for the non-immediate actions. The commenter asserted the FAA's use of the good cause exemption appears overbroad given the compliance is 1 month instead of before further flight.

The FAA notes the comment was submitted in response to an NPRM for which the FAA provided a 45-day comment period. This final rule is effective 35 days after its publication in the Federal Register . Therefore, no change to this AD is necessary.

The Citizens Rulemaking Alliance requested that the FAA add to the AD docket all materials incorporated by reference and extend the comment period by at least 45 days after adding the material to the docket. The commenter stated that the FAA's current practices for IBR frequently fail to meet the legal and regulatory standards for reasonable availability.

The FAA disagrees with extending the comment period. In the preamble of the NPRM, the FAA notified the public that the IBR material would be available for review at regulations.gov under Docket No. FAA-2025-3422. This material was posted to the AD docket on October 1, 2025. Therefore, no change to this AD is necessary.

The Citizens Rulemaking Alliance requested that the FAA revise the AD to comply with the PRA if reporting is required. If reporting is not required, the commenter requested the FAA clarify that in the AD.

The FAA notes this AD does not require reporting. If an AD were to require reporting, the preamble of the AD would include a paragraph titled “Paperwork Reduction Act” that would provide the applicable OMB control number, required PRA statements, and the estimated time to collect the required information (burden). Any costs associated with the reporting requirement would be included in the Costs of Compliance section in the preamble of the AD. Therefore, the FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA either prepare an initial regulatory flexibility analysis, or provide the factual basis for its Regulatory Flexibility Act (RFA) certification that the AD will not have a significant economic impact on a substantial number of small entities including significant alternatives considered to minimize the burden on small operators without compromising safety.

The FAA provides the following clarification. The RFA of 1980 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 111-240), requires Federal agencies to consider the effects of the regulatory action on small business 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 populations of less than 50,000.

This AD will affect 11 domestic entities, of which eight are small entities. The table below displays the industries of the small entities, their average annual revenue, and the AD's estimated cost burden relative to average annual revenue.

While the FAA has determined that this AD affects a substantial number of small entities, the compliance cost of the AD relative to each small entity's annual revenue is minimal. The FAA estimates the total cost per affected airplane to be $935 (11 work-hours × $85 per work-hour). There is one small business operator whose revenue impact exceeds 3% based on the number of affected airplanes in their fleet, however, seven small business entities have impacts that are below 1% of the average small entity's annual revenue. Therefore, as provided in section 605(b), the FAA certifies this AD will not result in a significant economic impact on a substantial number of small entities. The FAA did not change this AD as a result of this comment.

The Citizens Rulemaking Alliance requested that the FAA provide an explicit Unfunded Mandates Reform Act (UMRA) determination and a more complete cost analysis. The commenter stated that, in addition to estimated costs provided in the proposed AD, the FAA should also consider airplane downtime, scheduling disruptions, ferry flight and maintenance positioning, cost of special tools, pricing of scarce parts, engineering and planning time for unique configurations, and the ongoing cost of repetitive inspections.

The FAA notes that in the preamble of the proposed AD, the FAA certified that this regulation is not a “significant regulatory action” under Executive Order 12866 and will not have an annual effect on the economy of $100 million or more. Further, in the Costs of Compliance section of the proposed AD, the FAA disclosed the number of affected airplanes on the U.S. registry and the number of work hours per affected airplane to estimate the cost of the AD on all U.S.-operators per inspection cycle. The inspection must be repeated every 48 or 96 months, depending on findings. The FAA did not disclose an estimated parts cost since this AD does not require any parts.

Additionally, the FAA considered the impact that this AD will have on affected operators and determined this AD will not trigger any downtime costs or scheduling disruptions because the requirements of this AD can be performed during regularly scheduled maintenance. Since the FAA has assessed and disclosed the total known costs of the AD requirements in the Costs of Compliance section of the proposed AD, and the commenter did not provide additional cost data for the FAA to consider in its cost analysis, it is not necessary to provide additional information in the AD docket. The FAA did not change this AD as a result of this comment.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 747-23A2628 RB, dated April 18, 2025. This material specifies procedures for repetitive DETs of the SATCOM high gain antenna adapter plates for corrosion and applicable on-condition actions. On-condition actions include repairing the SATCOM high gain antenna adapter plate or replacing it with a new or serviceable SATCOM high gain antenna adapter plate if any corrosion found is less than or equal to 0.005 inch in depth; and replacing the SATCOM high gain antenna adapter plate with a new or serviceable SATCOM high gain antenna adapter plate if any corrosion found is greater than 0.005 inch in depth. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 115 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary repairs or replacements that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these repairs or replacements:

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM was published in the Federal Register on March 10, 2026 (91 FR 11478). The NPRM was prompted by EASA AD 2025-0207R1, dated October 30, 2025 (EASA AD 2025-0207R1) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states reports were received of broken bolts in the seat rail connections in the area of frame (FR) 47 (for Model A320 and A321 series airplanes), FR47/51 (for Model A319 series airplanes), FR47/54 (for Model A318 series airplanes), FR35 (for Model A318, A319, and A320 series airplanes), and FR35.8 (for A321 series airplanes), as applicable. This condition, if not corrected, could lead to seat detachment and passenger injuries under emergency landing loads.

In the NPRM, the FAA proposed to require replacement of the nylon bushes with bronze bushes in the affected areas and to prohibit the installation of affected parts in those areas, as specified in EASA AD 2025-0207R1. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2026-2286.

The FAA received a comment from the Airline Pilots Association, International (ALPA) who supported the NPRM without change.

These products have been approved by the civil aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, that authority has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2025-0207R1 specifies procedures for replacement of the nylon bushes with bronze bushes in the affected areas. The replacement includes doing a rotating probe inspection of the fastener holes for cracking, checking the hole diameter of the bracket assemblies, seat track, and long beam, as applicable, to determine if it is within tolerance, checking the inner diameter of the bushing to determine if it is within tolerance, and contacting the manufacturer for repair instructions and doing the repair. EASA AD 2025-0207R1 also prohibits the installation of affected parts in those areas. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 1,404 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2026-4645; Project Identifier MCAI-2026-00451-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Frank Carreras, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3539; email: frank.carreras@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2026-0083, dated April 22, 2026 (EASA AD 2026-0083) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A319 series airplanes; Model A320 series airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes. Model A320-215 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. The MCAI states that aeroelastic stability assessments indicate that reduced stability margins may exist due to accumulation of additional mass from rudder repainting or repairs. This condition, if not addressed, could, in combination with a rudder actuator disconnection, result in potential risk of flutter, possibly leading to reduced control of the airplane.

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

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2026-4645.

EASA AD 2026-0083 specifies procedures for accomplishing airframe vibration troubleshooting after an airframe vibration event, reporting results, and applicable on-condition actions. On-condition actions include the following:

• Operational test of the rudder servo controls with individual hydraulic system.

• Contacting Airbus for further instructions and doing the instructions.

• Contacting Airbus to define the source of the vibration.

• Rudder servo control and hinge bearings freeplay check.

• Rudder weight assessment.

• Rudder weighing.

• Rudder replacement.

• Maintenance record check.

• Rudder paint thickness measurement.

• Paint removal and restoration.

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

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

This AD requires accomplishing the actions specified in EASA AD 2026-0083 described previously, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2026-0083 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2026-0083 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2026-0083 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2026-0083. Material required by EASA AD 2026-0083 for compliance will be available at regulations.gov under Docket No. FAA-2026-4645 after this AD is published.

Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because recent aeroelastic stability assessments conducted on the Airbus SAS Model A319 series airplanes; Model A320 series airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes, indicate that reduced stability margins may exist due to accumulation of additional mass from rudder repainting or repairs done during in-service operation. This condition, if not addressed, could, in combination with a rudder actuator disconnection, result in potential risk of flutter, possibly leading to reduced control of the airplane. Additionally, the compliance time in this AD is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 1,996 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Goodrich cabin attendant seats installed on Airbus SAS Model A330-200 series, A330-200 Freighter series, A330-300 series, A330-841, A330-941, A340-200 series, A340-300 series, A340-541, and A340-642 airplanes. The NPRM was published in the Federal Register on July 11, 2025 (90 FR 30829). The NPRM was prompted by a report that track attachments used on certain part-numbered seats are non-compliant. In the NPRM, the FAA proposed to require replacing all seat track attachments and hardware and re-identifying the seat with a new part number. The FAA is issuing this AD to address cabin attendant seats that might detach from the airplane due to non-compliance with the seat requirement to withstand certain forces. This condition, if not addressed, could result in injury to the occupant or a blocked exit during an emergency evacuation.

The FAA received comments from three commenters, including Aviation Insight Pte Ltd, an individual, and an anonymous commenter, who supported the NPRM without change.

The FAA also received comments from Airbus, Collins Aerospace, and Delta Air Lines (Delta). The following presents these comments and the FAA's response.

Two commenters requested that the FAA revise the referenced service information to refer to the most recent service information. Collins Aerospace requested that the FAA update the references in the proposed AD for “Goodrich Service Bulletin 2057-25-071, Revision A, dated November 27, 2017” to “Goodrich Service Bulletin 2057-25-075, Revision A, dated September 26, 2019.”

Delta noted that updated revisions of Goodrich Service Bulletin 2157-25-092, Revision C, dated May 18, 2022, exist and requested that Goodrich Service Bulletin 2157-25-092, Revision D, dated April 4, 2024, be referenced. Delta also requested that credit be given for Goodrich Service Bulletin 2157-25-092, Revision A, dated September 13, 2016. Delta stated that across all revisions of Goodrich Service Bulletin 2157-25-092, the primary change pertains to warranty considerations, the modification involving the seats has remained largely consistent throughout, and the re-identification of the seat remained the same throughout all the revisions. Delta also requested that a note be added to specify that if the service bulletin label installed from previous accomplishment is worn out, it is allowed to re-install the SB label showing the revision to which the original work was done.

The FAA partially agrees with the request to update service information references for “Goodrich Service Bulletin 2057-25-071, Revision A, dated November 27, 2017” to “Goodrich Service Bulletin 2057-25-075, Revision A, dated September 26, 2019.” The FAA notes that Goodrich Service Bulletin 2057-25-075 supersedes, i.e., replaces Goodrich Service Bulletin 2057-25-071. In addition, the FAA has reviewed Goodrich Service Bulletin 2057-25-075, Revision C, dated June 20, 2025, which is the newest revision of the service information. Revision C of Goodrich Service Bulletin 2057-25-075, does not add any new actions to the Accomplishment Instructions. Therefore, the FAA has revised this final rule to refer to Goodrich Service Bulletin 2057-25-075, Revision C, dated June 20, 2025. The FAA has also added Goodrich Service Bulletin 2057-25-071, Revision A, dated November 27, 2017; Revision B, dated September 24, 2018; and Revision C, dated October 21, 2019; and Goodrich Service Bulletin 2057-25-075, Revision NC, dated September 13, 2019; Revision A, dated September 26, 2019; and Revision B, dated April 4, 2024, as credit service information to paragraph (h) of this AD.

The FAA agrees with Delta's request to use updated revisions of Goodrich Service Bulletin 2157-25-092 and allow credit for the previous revisions. The FAA has reviewed Goodrich Service Bulletin 2157-25-092, Revision E, dated June 20, 2025, which is the newest revision of the service information and which does not add any new actions to the Accomplishment Instructions. Therefore, the FAA has revised this final rule to refer to Goodrich Service Bulletin 2157-25-092, Revision E, dated June 20, 2025. The FAA has also added Goodrich Service Bulletin 2157-25-092, Revision A, dated September 13, 2016; Goodrich Service Bulletin 2157-25-092, Revision C, dated May 18, 2022; and Goodrich Service Bulletin 2157-25-092, Revision D, dated April 4, 2024, as credit service information to paragraph (h) of this AD.

Regarding Delta's request to add a note to the credit paragraph to allow re-installing labels, the FAA does not agree as it is not necessary. Operators may re-install service bulletin labels provided it can be conclusively determined from a records review which revision was done.

Additionally, the other service information referenced in the NPRM has been updated in this AD to refer to the newest revision of that service information; the requirements of this service information have not changed, and therefore, will not change the requirements of this AD. The changed references can be found in this AD in the Additional Changes section of this final rule.

Airbus stated that for the Goodrich A330/A340 Cabin Attendant Seats (CAS) Models 2157, 2071, and 2201 installed under Airbus Design Organization Approval (DOA), the certification is covered by Airbus's Modifications (MOD) and Goodrich Declaration of Design and Performance. Airbus noted that in 2016, the Goodrich A330/A340 CAS Models 2157, 2071 and 2201 (track mounted variants only) had been modified by MOD introducing a new track stud option. Airbus added this change requested by the supplier Goodrich based on an obsolescence of the original stud design (stud part number 2D1125-7).

Airbus stated the root cause of the Goodrich-declared obsolescence is based on a failed Goodrich internal test campaign using the original stud part number in a different context, without Airbus or the European Union Aviation Safety Agency (EASA) involvement. Airbus explained the test had been performed on a modified CAS part number not used and not controlled by Airbus and that the original CAS certification of the Airbus CAS part numbers covered by declaration of design and performance (DDP) passed all requirements and tests successfully. Airbus further stated there is no change to the Airbus CAS part numbers other than documented by the DDP and associated documentation.

Airbus concluded that the CAS as installed under Airbus DOA are in compliance with Joint Aviation Requirements (JAR)/Federal Aviation Regulation (FAR) 25.562 and that there is no design deficiency identified so far. Airbus also concluded that since Airbus certifies all affected CAS independently of Technical Standard Order (TSO) approval, this non-compliance does not affect Airbus aircraft as all certification tests have been successfully completed. The FAA infers that Airbus is requesting that the applicability of the proposed AD be revised to exclude Airbus Model A330 and A340 airplanes with CAS installed under the Airbus DOA.

The FAA disagrees with Airbus's request. Initial certification of the 2157, 2071, and 2201 seat models was completed under the Airbus DOA. Per Goodrich, the suspect track attachment 2D1125-7 was introduced via a minor change in 2005 at Airbus's request and was substantiated without testing. The 2D1125-7 cast track attachment was introduced and implemented on models delivered to Airbus under the Airbus DOA. Later testing on the cast track attachment showed the 2D1125-7 cast track attachment does not meet 14 CFR 25.562 and, therefore, the seat models are applicable. The FAA has not revised the applicability of this AD.

This final rule has also been updated with revised service information as follows:

• Goodrich Service Bulletin 2071-25-046, Revision C, dated January 14, 2020, has been changed to Goodrich Service Bulletin 2071-25-046, Revision G, dated August 22, 2025; and

• Goodrich Service Bulletin 2201-25-013, Revision E, dated May 20, 2024, has been changed to Goodrich Service Bulletin 2201-25-013, Revision F, dated June 20, 2025.

Additionally, the FAA has also added Goodrich Service Bulletin 2071-25-046, Revision C, dated January 14, 2020; Revision D, dated April 4, 2024; Revision E, dated May 23, 2025; and Revision F, dated June 20, 2025; and Goodrich Service Bulletin 2201-25-013, Revision E, dated May 20, 2024, as credit service information to paragraph (h) of this AD.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

Although Model A330-743L, A340-542, and A340-641 airplanes are not on the U.S. registry, the affected seats could be installed on the A330 and A340 variants that are not on the U.S. type certificate data sheet (TCDS). Therefore, the FAA has included Model A330-743L, A340-542, and A340-641 airplanes in the applicability.

The FAA reviewed the following material:

• Goodrich Service Bulletin 2057-25-075, Revision C, dated June 20, 2025;

• Goodrich Service Bulletin 2071-25-046, Revision G, dated August 22, 2025;

• Goodrich Service Bulletin 2157-25-092, Revision E, dated June 20, 2025; and

• Goodrich Service Bulletin 2201-25-013, Revision F, dated June 20, 2025.

This material specifies procedures for replacing all seat track attachments and hardware and then re-identifying the seat with a new part number. These documents apply to different airplane configurations. This service information is also identified as the property of UTC Aerospace Systems and Collins Aerospace.

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

The FAA estimates that this AD affects 59 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

Upon request, FDA (the Agency or we) has classified the transcutaneous electrical nerve stimulator to treat fibromyalgia symptoms into class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness of the device. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified into, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (see also part 860, subpart D (21 CFR part 860, subpart D)). Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo classification process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a premarket notification (510(k)) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.

On October 5, 2021, FDA received NeuroMetrix, Inc.'s request for De Novo classification of the Quell-FM device. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness of the device, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see section 513(a)(1)(B) of the FD&C Act). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on May 18, 2022, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 882.5888. 1 We have named the generic type of device “transcutaneous electrical nerve stimulator to treat fibromyalgia symptoms,” and it is identified as a prescription device that transcutaneously stimulates a patient's sensory nerves through electrodes placed on the skin to treat fibromyalgia symptoms.

FDA has identified the risks to health associated with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness of the device. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this final order.

At the time of classification, transcutaneous electrical nerve stimulators to treat fibromyalgia symptoms are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met.

Under the FD&C Act, submission of a premarket notification under section 510(k) is required to reasonably assure the safety and effectiveness of class II devices unless FDA determines that the device type should be exempt under section 510(m) of the FD&C Act. At this time FDA has not made this determination for transcutaneous electrical nerve stimulators to treat fibromyalgia symptoms. This device is therefore subject to premarket notification requirements under section 510(k) of the FD&C Act.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not normally have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in part 860, subpart D, regarding De Novo classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820 regarding quality management system regulation have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801 regarding labeling have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 882 is amended as follows:

I. Background on the Montana Program II. Submission of the Amendment III. OSM's Findings A. Montana Code Annotated (MCA) 82-4-203(35)(a) B. MCA 82-4-203(35)(b) C. MCA 82-4-203(35)(c) D. MCA 82-4-222(1)(m) E. Sections 3, 4, 5, and 6 of HB 587 IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Montana Program

Section 503(a) of SMCRA permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with SMCRA and consistent with the Federal implementing regulations. See 30 U.S.C. 1253(a)(1) and (7); 30 CFR 730.5 and 732.15(a). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning the Montana program and program amendments at 30 CFR 926.15.

By letter dated May 15, 2025 (Administrative Record No. MT-048-01), Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). We found Montana's proposed amendment to be administratively complete on May 15, 2025. Montana submitted the proposed amendment to us, on its own volition, after the Montana legislature passed HB 587 during the 2025 legislative session. HB 587 amends the Montana Strip and Underground Mine Reclamation Act (MSUMRA) as well as sections 82-4-203 and 222 of the MCA.

Specifically, Montana proposes changes to its definition of “Material damage,” at 82-4-203(35) of the MCA. Montana proposes to remove the previous definition and create three sub-definitions. The first, paragraph (a), defines “Material damage . . . with respect to the hydrologic balance outside the permit area,” as a quantifiable adverse impact from coal mining and reclamation operations on the quality and quantity of surface or groundwater. The adverse impact must preclude any existing or reasonably foreseeable use of water outside the permit area. It further defines a “quantifiable adverse impact” as an effect that can be quantified and measured to a significant degree of confidence. Last, it states that “existing or reasonably foreseeable uses of water” are those beneficial uses recognized in title 75, chapter 5, part 3 of the MCA.

Next, in paragraph (b), Montana defines “Material damage . . . with respect to an alluvial valley floor” as degradation or reduction by coal mining and reclamation operations to water quality or quantity supplied to the alluvial valley floor that significantly decreases its ability to support agricultural activities.

And in paragraph (c), Montana defines “Material damage . . . with respect to subsidence caused by underground mining” as a functional impairment to surface lands, features, structures, or facilities; a physical change that has significant adverse impact on an affected land's ability to support any current or reasonably foreseeable uses or causes significant loss to production or income; or a significant change in the condition, appearance, or utility of a structure or facility.

In addition to the changes to “Material damage,” Montana proposes changes to its permit application requirements in 82-4-222(1)(m) of the MCA. Currently, an operator can receive necessary hydrologic and geologic information from an appropriate Federal or State agency to determine probable hydrologic consequences. Under Montana's proposal, an operator may use information collected on their own when the necessary information is not available from a Federal or State agency.

Last, HB 587 adds four contingencies to the proposed changes of §§ 82-4-203 and 222 that are not codified into the MCA but apply to the sections amended by the legislation. These provisions cover severability, contingent voidness, effective date, and retroactive applicability.

We announced receipt of the proposed amendment in the August 4, 2025, Federal Register (90 FR 36407). We received 373 written comments on the proposed rule.

OSM reviewed Montana's submittal according to the requirements of SMCRA and the Federal regulations at 30 CFR 730.5, 732.15, and 732.17. As described below, we are approving Montana's submittal.

For section 82-4-203(35)(a), Montana proposes to replace its definition of “Material damage” as it relates to impacts to the hydrologic balance from surface and underground coal mining operations. Current section 82-4-203(35) of the MCA defines “material damage” with respect to protection of the hydrologic balance as the “degradation or reduction by coal mining and reclamation operations of the quality or quantity of water outside of the permit area in a manner or to an extent that land uses or beneficial uses of water are adversely affected, water quality standards are violated, or water rights are impacted. Violation of a water quality standard, whether or not an existing water use is affected, is material damage.” This definition was previously determined by OSM to be in accordance with SMCRA and consistent with the Federal implementing regulations when OSM conditionally approved Montana's Permanent coal program. 45 FR 21560 (Apr. 1, 1980).

Montana's proposed revision would define “Material damage . . . with respect to the hydrologic balance outside the permit area” as: “a quantifiable adverse impact from surface coal mining and reclamation operations on the quality or quantity of surface water or ground water that precludes an existing or reasonably foreseeable use of surface water or ground water outside the permit area. A quantifiable adverse impact is an effect that can be quantified and measured to a significant degree of confidence. Existing or reasonably foreseeable uses of surface water or ground water are those beneficial uses recognized in the classification of State waters pursuant to Title 75, chapter 5, part 3.”

The phrase “material damage to the hydrologic balance outside the permit area” appears in SMCRA and within the Federal regulations (30 CFR 816.41), and these references, and other elements of SMCRA and the Federal regulations, provide parameters for interpreting this phase. As a threshold matter, SMCRA's performance standards require that all surface coal mining and reclamation operations “minimize the disturbances to the prevailing hydrologic balance at the mine-site and in associated offsite areas and to the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations and during reclamation.” 30 U.S.C. 1265(b)(10). This standard is accomplished by avoiding acid forming materials, preventing “to the extent possible using the best technology currently available” contributions of material to streams but under no circumstances allowing violations of any State or Federal water quality laws, and other practices designed to protect the existing hydrologic systems. Id. Similarly, SMCRA requires that underground coal mining operations “minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated offsite areas and to the quantity of water in surface ground water systems both during and after surface coal mining operations and during reclamation.” 30 U.S.C. 1266(b)(9).

Section 510(b)(3) of SMCRA also states that no application for surface coal mining operations can be approved unless the application affirmatively demonstrates, and the regulatory authority finds in writing based on the application and available information, that “the assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance specified in Section 507(b) has been made by the regulatory authority and the proposed operation thereof has been designed to prevent material damage to the hydrologic balance outside the permit area.” 30 U.S.C. 1260(b)(3). Section 507(b)(11) requires that an applicant submit “a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems including the dissolved and suspended solids under seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the regulatory authority of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area and particularly upon water availability.” 30 U.S.C. 1257(b)(11).

In addition to the statutory standards, the Federal regulations add additional contours to the meaning of “material damage to the hydrologic balance outside the permit area.” First, the regulations at 30 CFR 773.15(e) require the regulatory authority to perform an assessment to determine if “the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.” Second, the regulations at 30 CFR 780.21(g) and 784.14(f) require a finding that the Cumulative Hydrologic Impact Assessment (CHIA) is “sufficient to determine, for the purposes of permit approval, whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.” Third, the regulations at 30 CFR 780.21(h) and 784.14(g) require a permit applicant to provide a Hydrologic Reclamation Plan. These sections state, in relevant part, that the plan must “contain the steps to be taken during mining and reclamation through bond release to minimize disturbance to the hydrologic balance within the permit and adjacent areas; to prevent material damage outside the permit area; [and] to meet applicable Federal and State water quality laws and regulations.” Id. The fact that the Hydrologic Reclamation Plan must outline how an operation will (1) minimize disturbance to the hydrologic balance within the permit area and the adjacent areas, (2) prevent material damage outside the permit area, and (3) meet all applicable Federal and State water quality laws indicates that each element provides a distinct protective benefit and that merely satisfying one element is not sufficient. Fourth, the regulations at 30 CFR 816.41(a) and 817.41(a) require that all surface and underground mining and reclamation activities must be conducted “to minimize disturbance to the hydrologic balance within the permit and adjacent areas [and] . . . prevent material damage to the hydrologic balance outside the permit area,” and that the “regulatory authority may require additional preventative, remedial or monitoring measures to assure that material damage to the hydrologic balance outside the permit area is prevented.” Last, the regulations at 30 CFR 816.41(c) and (e), as well as section 817.41(c) and (e), authorize the regulatory authority to modify the monitoring requirements, including parameters and frequency, if the monitoring data demonstrate that the operation has “minimized disturbance to the hydrologic balance in the permit and adjacent area and prevented material damage to the hydrologic balance outside the permit area.”

While neither SMCRA nor the current Federal regulations define “material damage to the hydrologic balance outside a permit area,” for the Federal and Indian lands programs, OSM has defined the phrase, as recently as 2024 in various CHIAs as meaning “any quantifiable adverse impact from surface coal mining and reclamation operations on the quality or quantity of surface water or groundwater that would preclude any existing or reasonably foreseeable use of surface water or groundwater outside the permit area.” See Cumulative Hydrologic Impact Assessment for the Pacific Coast Coal Company John Henry No. 1 Mine, p. 2 (Jan. 2014); Cumulative Hydrologic Impact Assessment of the Navajo Mine and Pinabete Permit Areas, p. 14 (Mar. 2015); Cumulative Hydrologic Impact Assessment of the Peabody Western Coal Company Kayenta Mine Complex, App. A (Sept. 2016); Review and Analysis of Navajo Aquifer Material Damage Criteria for Peabody Western Coal Company's Kayenta Mine Complex, p. 14 (Aug. 2024). These documents recognize that surface coal mining operations will cause hydrologic impacts but indicate OSM's interpretation that disturbances to the hydrologic balance within the permit area should be minimized and material damage outside the permit area should be prevented. Id. The CHIAs also direct that material damage criteria for both groundwater and surface water quality should be related to existing standards that generally are based on the maintenance and protection of specified water uses such as public and domestic water supply, agriculture, industry, aquatic life, recreation, and other parameters of local significance to water use. OSM also provided a definition of material damage to the hydrologic balance in a 2016 rule (81 FR 93066); however, that rule was disapproved under the Congressional Review Act in 2017 and is no longer in effect.

Taken all together, SMCRA and the Federal program, thus, require that: (1) the regulatory authority must make a written finding that the operation is designed to prevent material damage to the hydrologic balance outside the permit area before the permit can be issued; (2) a permit application must include a plan that shows the operation has been designed to prevent such damage; (3) the operation must be conducted in a manner to prevent such damage; (4) the water monitoring requirements can be modified if warranted to determine whether or not such damage is occurring; and (5) applicable Federal and State water quality laws and regulations must be followed.

With this background in mind, we have evaluated the proposed amendment to the Montana program in relation to Federal statutory and regulatory requirements for preventing “material damage to the hydrologic balance outside the permit area” and determined that Montana's proposed changes to section 82-4-203(35)(a) are in accordance with SMCRA and consistent with the Federal regulations.

First, Montana's adoption of OSM's Federal and Indian Lands program definition in its proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area,” is in accordance with SMCRA and consistent with the Federal regulations. Montana proposes to define Material damage as “any quantifiable adverse impact from surface coal mining and reclamation operations on the quality or quantity of surface water or groundwater that would preclude any existing or reasonably foreseeable use of surface water or groundwater outside the permit area.” This is the exact definition that OSM uses for its Federal and Indian lands programs in Cumulative Hydrologic Impact Assessments (CHIAs). While this is not a definition a State must adopt, as it only applies within the Federal and Indian Land Programs, it is a definition that matches SMCRA and Federal regulations guidelines for “material damage to the hydrologic balance outside the permit area.” Thus, Montana's proposed adoption of OSM's Federal and Indian Lands program definition of material damage with respect to the hydrologic balance outside the permit area is in accordance with SMCRA and consistent with the Federal regulations.

Second, Montana's proposed definition of “quantifiable adverse impact” is in accordance with SMCRA and consistent with the Federal regulations. Montana defines “quantifiable adverse impact” as “an effect that can be quantified and measured to a significant degree of confidence.” OSM's Federal and Indian Lands program does not further define “quantifiable adverse impact,” but we can assess from the plain text of the definition that a relevant party must prove with scientific data, as opposed to anecdotal evidence, that adverse impact has or has not occurred

As discussed above, Montana's definition of “Material damage” must be in accordance with State and Federal water quality standards (WQS) including those set by the EPA under the Clean Water Act, and Montana has created a WQS program that is in accordance with and approved by the EPA. Under this program amendment, any effect that can be quantified and measured to a significant degree of confidence would be material damage to the hydrologic balance outside the permit area. How MDEQ chooses to interpret how the effect is “measured to a significant degree of confidence” is up to that agency. Simply defining “quantifiable adverse impact” as “an effect that can be quantified and measured to a significant degree of confidence,” is in accordance with SMCRA and consistent with the Federal regulations.

Third, Montana's proposed definition of “existing and reasonably foreseeable uses” is in accordance with SMCRA and consistent with the Federal regulations. Montana defines “existing and reasonably foreseeable uses” as “those beneficial uses recognized in the classification of state waters pursuant to Title 75, chapter 5, part 3” of the MCA. The definition used by OSM's Federal and Indian Lands program does not further define “existing and reasonably foreseeable uses,” but State Representative Parry explained in his September 3, 2025 letter that the proposed definition of “existing or reasonably foreseeable uses” within the definition of “Material damage to the hydrologic balance” was derived from a Montana regulation, 75-5-301(1) MCA, which states: “Consistent with the provisions of 80-15-201 and this chapter, the department shall: (1) establish the classification of all state waters in accordance with their present and future most beneficial uses.” He continued and stated that the Montana Department of Environmental Quality (MDEQ) had already established these classifications in its Administrative Rules: ARM 17.30.607 and 17.30.616. State Representative Parry noted that designating the uses of waters is wholly within MDEQ's authority pursuant to the Federal Clean Water Act, as MDEQ is responsible for reviewing, establishing, and revising water quality standards under 40 CFR 131.4(a), and these standards, including uses, are reviewed and approved by the EPA. Through this definition of “existing or reasonably foreseeable uses,” Montana is integrating its coal program, approved by OSM, with its Clean Water Act program, approved by the EPA. And as established by OSM in the September 26, 1983 preamble promulgating hydrologic balance rules, OSM intentionally established basic permitting and performance standards so that State and Tribal programs have the opportunity to customize their rules to their particular mining situations. 48 FR 43956 (Sept. 26, 1983). Montana has met the basic Federal standards, and incorporating its state water rules into its definition of “material damage to the hydrologic balance” is well within the State's powers as they do not conflict with the Federal regulations. Thus, Montana's proposed definition of “existing and reasonably foreseeable uses” is in accordance with SMCRA and consistent with the Federal regulations.

Montana's proposed changes to section 82-4-203(32)(b) of the MCA are in accordance with SMCRA and consistent with the Federal regulations. Section 82-4-203(32)(b) proposed to define “material damage” with respect to alluvial valley floors as “degradation or reduction by coal mining and reclamation operations of the water quality or quantity supplied to the alluvial valley floor that significantly decreases the capability of the alluvial valley floor to support agricultural activities[.]” Montana previously proposed these exact changes in its June 1, 2023, amendment submission. OSM approved Montana's changes to this section but denied other areas of the proposed amendment. See 90 FR 3673, 3687 (January 15, 2025). Because Montana is proposing the same changes that were previously approved January 15, 2025, we find the changes are in accordance with SMCRA and consistent with the Federal regulations, and we are approving the changes again, with the same reasoning as is detailed at 90 FR 3673, 3677 (Jan. 15, 2025).

Montana's proposed changes to section 82-4-203(33)(c) of the MCA are in accordance with SMCRA and consistent with the Federal regulations. Montana proposes a definition for what would be considered material damage with respect to subsidence. This includes “(i) a functional impairment of surface lands, features, structures, or facilities; (ii) a physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or (iii) a significant change in the condition, appearance, or utility of a structure or facility from its presubsidence condition.” This is nearly identical to the Federal definition of “material damage” for subsidence at 30 CFR 701.5, and it has no substantive differences from the Federal definitions. Thus, Montana's proposed changes to MCA section 82-4-203(33)(c) are in accordance with SMCRA and consistent with the Federal regulations.

Montana's proposed changes to MCA section 82-4-222(1)(m) are in accordance with SMCRA and consistent with the Federal regulations. Montana proposes that for hydrologic information needed to determine an applicant's Probable Hydrologic Consequences (PHC), Montana may use data collected by the operator to make the PHC determination in the event the appropriate Federal or State agency does not have that information available. In its current form, Montana may only use hydrologic information from an appropriate Federal or State agency to make its PHC determination for an applicant; there are no exceptions. By comparison, the Federal regulations at 30 CFR 780.21(c)(2) allows the regulatory authority to use information submitted by the applicant in its PHC determination, if that information is not available from an appropriate State or Federal agency. Because the proposed Montana regulation is nearly identical with and has no substantive differences to the Federal regulations at 30 CFR 780.21(c)(2), we find that proposed changes to section 82-4-222(1)(m) are consistent with SMCRA and the Federal regulations.

HB 587 also added contingencies that are not codified into the MCA but that affect the amended parts of the MCA.

Section 3 of HB 587 states that if any part of HB 587 is found invalid, the remainder of the bill that is found valid will be severable from the invalid part and remain in effect. While this is legislative language and not part of Montana's surface mining program, we note that the Federal regulation at 30 CFR 732.17(h)(7) requires the Director to consider all relevant information, using the criteria set forth in 30 CFR 732.15, to approve or disapprove the amendment. The Director may approve all or parts of an amendment that are in accordance with SMCRA and consistent with the Federal regulations.

Section 4 of HB 587 states that if the Secretary of the Interior disapproves of any provision of HB 587 under 30 CFR part 732, then that portion of the bill is void. Furthermore, MDEQ is required to notify the code commissioner of a disapproval within 15 days of the effective date of disapproval. Notwithstanding HB 587, the Federal regulation gives the Director the authority to approve or disapprove all or part of a proposed amendment to a State program. 30 CFR 732.17(h)(7). Any program amendment or part of a program amendment disapproved by the Director would be void and would not become part of Montana's approved program.

Section 5 of HB 587 states that its provisions are “effective on passage and approval.” Section 5 of HB 587 does not specify who is providing the “approval” that triggers the effective date. SMCRA and the Federal regulations state that no change to law or programs can take effect for purposes of a State program until the amendment is approved by the Director. 30 CFR 732.17(g). The Federal regulations further specify that all decisions approving or not approving a State program amendment must be published in the Federal Register and will be effective upon publication unless the notice specifies otherwise. 30 CFR 732.17(h)(12).

By looking at the text of HB 587 preceding Section 5, OSM interprets the term “approval” to mean approval by the OSM Director. Section 3 speaks to the need for Secretarial approval but provides that if a provision is disapproved, that portion of the HB 587 is severed from the approved portions of the bill. In Section 4, HB 587 states that any provision of HB 587 that the Secretary of the Interior “disapprov[es]” shall be void. Taken together, it is appropriate to read “approval” as used in Section 5 of HB 587 as referring to action taken consistent with the regulatory review and approval process by the Secretary of the Interior, as delegated to the OSM Director. This interpretation is also consistent with 30 CFR 732.17(g), which refers to approval by the Director of OSM and states that “[n]o such change to [State] laws or regulations shall take effect for purposes of a State program until approved as an amendment.” Thus, OSM interprets Section 5 in a way that is both supported by the surrounding statutory text of HB 587, and leads to consistency with SMCRA.

Notwithstanding OSM's interpretation, should the drafters or implementers of HB 587 interpret Section 5 as becoming effective upon approval by an entity other than the OSM Director, that interpretation would conflict with SMCRA and the Federal regulations. No change to State programs can be implemented or become effective prior to approval by the Director. 30 CFR 732.17(g). Thus, the effective date of HB 587 is June 29, 2026.

Section 6 of HB 587 states that amendments to the MCA apply retroactively to actions for judicial review, amendment, license, arbitration, action, certificate, or inspection that are pending but not yet decided on or after the effective date of HB 587. Section 6 of HB 587 attempts to make the proposed changes to sections 82-4-203(35) and 82-4-222(1)(m) apply retroactively to pending issues that have not been decided on or after the effective date of HB 587. As with the attempt to make changes to HB 587 effective immediately, this section is contrary to SMCRA and the Federal regulations. Specifically, the Federal regulations at 30 CFR 732.17(g), which mandate that no changes to laws will take effect until OSM approves the amendment, and section 723.17(i)(12), which states that all decisions of the Secretary to approve or disapprove program amendments must be published in the Federal Register . The Administrative Procedure Act (APA) generally requires a 30-day delay before a rule becomes effective. 5 U.S.C. 553(d).

Furthermore, under section 405(a) of SMCRA, “[n]o State law or regulation in effect on the date of the enactment of [SMCRA], or which may become effective thereafter, shall be superseded by any provision of [SMCRA] or any regulation pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of [SMCRA].” 30 U.S.C. 1255(a) (emphasis added). Montana declares that HB 587 applies retroactively within the meaning of 1-2-109 of the MCA, which states “[n]o law contained in any of the statutes of Montana is retroactive unless expressly so declared.” Despite Montana declaring that the amendments to 82-4-203(35) and 82-4-222(m)(1) apply retroactively to select proceedings, as discussed above, retroactive application is contrary to SMCRA and the Federal regulations. Thus, SMCRA and the Federal regulation supersede 1-2-109 of the MCA in this instance, and the amendments to 82-4-203(35) and 83-4-222(m)(1) cannot be applied retroactively.

OSM asked for initial public comments on the amendment during a public comment period that ended on September 3, 2025. OSM received 373 written comments during the comment period. (Administrative Record No. MT-048-08 through MT-048-20).

Due to the large number of comments, substantially similar comments and points have been consolidated to avoid redundancy. Comments expressing generalized support for or opposition to the proposed amendment, generalized concerns about environmental impacts from mining operations, concerns about the mining industry, fossil fuel use, and a transition to renewable energy, general statements about the Montana Constitution, general statements about OSM's previous denial of HB 576 and prior legislative efforts, general statements about the public's opposition to HB 587, and other non-responsive comments are beyond the scope of this amendment and no response is necessary. To view comments in full, visit https://www.regulations.gov/.

Comment: A large group of 300+ commenters opined that the proposed definition of “Material damage to the hydrologic balance” undermines SMCRA at 30 U.S.C. 1202(b) and its goal to ensure mining, agriculture, and landowners can coexist, as it would give mining companies more leeway to damage the hydrologic balance for neighboring property owners, which would strip property right protections from those landowners.

OSM Response: OSM disagrees with the commenters; Montana's proposed definition for “Material damage to the hydrologic balance” is in accordance with SMCRA and consistent with the Federal regulations. 30 U.S.C. 1202(b) states that part of SMCRA's purpose is to “assure that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from such operations[.]” Montana is required to prevent “Material damage . . . with respect to the hydrologic balance outside the permit area.” The proposed definition recognizes the beneficial water uses of neighboring water users, including surface landowners and other persons with a legal interest, and would find material damage if those uses were precluded by pollution caused by coal mine operations. Please see our full discussion on this topic in section III(A).

Comment: Multiple commenters stated that Montana's proposed removal of language that recognizes exceedances of water quality standards as “Material damage to the hydrologic balance” violates SMCRA and is less protective than the Federal regulations. The commenter points to SMCRA at 30 U.S.C. 1265(b)(10)(B)(i), which prohibits mine drainage in excess of requirements set by applicable State or Federal law, as well as OSM's statement in our January 15, 2025, denial of a prior Montana amendment where OSM states “[a] violation of a State or Federal WQS as a result of a surface coal mining and reclamation operation is not allowed under SMCRA and would constitute material damage to the hydrologic balance. . . .” And also “Because a violation of a WQS is an established criterion for determining if “Material damage . . . with respect to the hydrologic balance outside the permit area” has occurred, any regulation proposed by Montana must be in accordance with and consistent with this Federal standard.” 90 FR 3673, 3676 (Jan. 15, 2025).

OSM Response: OSM disagrees with the commenters that Montana's proposed definition removes the requirement that an exceedance of a WQS be considered “Material damage . . . with respect to the hydrologic balance outside the permit area.” Under Montana's proposed definition, material damage will be found where there is a quantifiable adverse impact that precludes an existing or reasonably foreseeable water use. Montana further defines an “[e]xisting or reasonably foreseeable uses” of water as “those beneficial uses recognized in the classification of state waters pursuant to Title 75, chapter 5, part 3 [of the MCA].” As discussed further in section III(A), Title 75, Chapter 5 of the MCA contains the Montana Water Quality Act, and Montana's classification of State waters in Title 75, chapter 5, part 3 includes WQS that are set in line with this EPA approved program. If a WQS is exceeded under these rules, a beneficial use would no longer be available, an existing or reasonably foreseeable use of State waters would be precluded, and “Material damage to the hydrologic damage” would occur. Thus, Montana's proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” recognizes that an exceedance of a WQS is Material damage.

Comment: A commenter stated that the proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” is contrary to SMCRA because it omits any protection of water rights. They specified that 30 U.S.C. 1258(a)(13)(B) requires an assessment of water rights in the permitting process, and Montana's proposed removal of water rights from its definition removes any means for regulators to ensure protection of water rights at the permitting stage.

OSM Response: OSM disagrees with the commenter that the proposed definition's lack of reference to water rights makes the Montana program inconsistent with SMCRA and the Federal regulations. While Montana is removing the term “water rights” in this definition, another area of the Montana program fulfills SMCRA's requirement to consider “water rights.” 30 U.S.C. 1258(a)(13)(B) requires that each reclamation plan submitted as part of a permit application must include a detailed description of measures to be taken to “assure the rights of present users to such water.” Montana's counterpart regulations for protecting the “rights of present user to such water” are contained within section 82-4-222 of the MCA. Section 82-4-222(1)(m) of the MCA requires an applicant to conduct a determination of the PHC that considers the impact the operation will have on beneficial uses of water in and adjacent to the permit area, and section 82-4-222(1)(n) requires an applicant to plan for monitoring groundwater and surface water for protection of the hydrologic balance. While Montana does not use the term “water rights” in its regulations, “beneficial uses of water” is a reference to water rights. At section 85-2-102(5)(a), Montana defines “Beneficials use” as “a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal power, and recreational uses.” (Emphasis added). At section 85-2-102(2), “Appropriation right” is defined as “[having] the same meaning as 'water right . . . .' ” Montana requiring an applicant to plan for an operation's effects on “beneficial uses” is requiring an applicant to consider the beneficial uses of any potentially affected water rights holder, which is equivalent to the SMCRA requirement that an applicant consider water rights. Thus, Montana removing reference to “water rights” from its definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” is in accordance with SMCRA and consistent with the Federal regulations.

Comment: A couple of commenters stated that the proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” is in accordance with SMCRA and its allowance to “develop a definition based on regional environmental and regulatory conditions” (quoting OSM, Cumulative Hydrologic Impact Assessment of the Pacific Coast Coal Company, John Henry No. 1 Mine, p. 2 (January 2014)). They opined that the proposed definition was created to address the specific needs of Montana while balancing protection of the environment and agricultural productivity with the Nation's need for coal as an essential energy source.

OSM Response: OSM is approving the amendment and agrees with the commenters that Montana has created a definition that is tailored to support its local hydrologic needs. Please see OSM's full discussion of this topic in section III(A).

Comment: A few commenters opined that Montana's definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” should be approved because its nearly identical to the definition OSM has been using internally since at least 2014.

OSM Response: OSM has approved the amendment and agrees with the commenters that Montana's proposed a definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” is substantially similar to the definition used in our CHIAs for Federal and Indian lands. While there is no codified Federal definition for “Material damage to the hydrologic balance,” Montana's proposed definition is consistent with SMCRA and the Federal regulations. Please see OSM's full discussion of this topic in section III(A).

Comment: A large group of 300+ commenters opposed the requirement that a beneficial use of water must be precluded to be considered “Material damage . . . with respect to the hydrologic balance outside the permit area.” They stated that the preclusion requirement would violate SMCRA and the Federal regulations, in particular 30 CFR 816.41. They opined that Montana's proposed definition would be a loophole that would allow a mining operation to contaminate water resources without consequence so long as minimal water use remains, and one of these commenters was concerned that because all the receiving waters for Montana's coal mines are already listed as impaired water bodies, a water use would not be deemed precluded until the stream can no longer support aquatic life.

OSM Response: OSM disagrees with these commenters that Montana's proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” is a loophole for water pollution so long as minimal beneficial use remains. As proposed, Montana's definition would find material damage where an existing or reasonably foreseeable use of water is precluded. Montana further defines “existing or reasonably foreseeable uses” as those beneficial uses recognized under Title 75, chapter 5, part 3 of the MCA. In the Administrative Rules of Montana (ARM) at Title 17, chapter 30, sub-chapters 6 and 10, MDEQ lists the water-use classifications and their standards. Every body of water within Montana's jurisdiction is assigned a classification based on the water body's characteristics. There are 16 classifications of surface waters and 4 classifications of groundwaters, and each classification lists the types of beneficial uses that must be supported and the water quality standards that must be followed. Beneficial uses like stock-watering, which would fall under “agriculture” or “drinking water for livestock and wildlife” in the rules is protected within 14 of the surface water classifications and 3 of the groundwater classifications. It appears the commenters are concerned that their ability to use water for stock-watering must be completely prevented in any way to be considered precluded, but Montana's proposed definition for “Material damage . . . with respect to the hydrologic balance outside the permit area” in context with the MCA and ARM show that the use must only be precluded within its classification. For example, if a neighboring rancher used water for stock watering classified under Class I groundwater, and coal mining pollution violated water quality standards for Class I groundwater, then any of the beneficial uses listed for a Class I groundwater would be prevented, resulting in material damage. Thus, under Montana's proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area,” a water use would not need to be precluded to the point of not supporting aquatic life for material damage to be found.

Comment: The same group of 300+ commenters stated that the preclusion requirement would put the economic burden on taxpayers and local governments, including farmers, ranchers, and tourism services who are highly dependent on clean water for their livelihoods, and who would bear the brunt of the water degradation. One of these commenters gave the example that, for ranchers and farmers, while water polluted by neighboring coal mine operations may still be “beneficial” enough to be used to keep their cattle and crops alive, the degradation in quality may cause health issues that will in turn impact quality and profit margins.

OSM Response: OSM disagrees with the commenters that Montana's proposed definition of material damage to the hydrologic balance outside the permit area would put an economic burden on taxpayers and local governments. The requirement for MDEQ and coal operators to prevent “Material damage . . . with respect to the hydrologic balance outside the permit area” still exists in the Montana Code, and, as discussed above, degradation of water quality to the point of not meeting the classification requirements, as contained in Title 17, chapter 30, sub-chapter 6 of ARM, is considered preclusion of a beneficial use. Stock-watering would not need to be prevented all together to be considered preclusion of a beneficial use, which is included in Montana's definition of material damage to the hydrologic balance outside the permit area. Instead, in this example the beneficial use would need only to be precluded within its classification.

Comment: Multiple commenters who were opposed to Montana's proposed amendment stated that the proposed changes rely on a system with complex calculations and statistical analysis that would make coal operators and State regulators less accountable and less transparent. One of these commenters stated that because Montana's proposed use of a “quantifiable adverse impacts” standard does not specify the degree of confidence needed, it could require the public to demonstrate a preponderance of evidence standard (50.1%) or it could require a virtual certainty standard (99%) that material damage had occurred to enforce the material damage standard. They stated that this gives the regulators unlimited discretion to decide the level of confidence required, and if the regulators implemented the 99% confidence standard, then it would be virtually impossible to prove material damage.

OSM Response: OSM disagrees with the commenters that the proposed changes rely on complex statistical analysis that favors coal operators and State regulators. The bill does not propose, and we are not approving, any particular method to determine whether an effect that can be “quantified and measured to a significant degree of confidence.” As noted in a comment by State Representative Parry, the sponsor of the bill, one way MDEQ may apply this definition is to use the publicly available EPA guidance for “statistical significance,” which is what he stated he intended. (Administrative record no. MT-048-17, citing “Basic Principles & Issues: Additional Information on Interpreting Statistics,” EPA, https://www.epa.gov/caddis/basic-principles-issues-2, last visited May 11, 2026).

However, because this standard was not incorporated into the statute, it is not controlling, although it is worth noting that the author of the proposed changes intended for the statistical analysis to be consistent with EPA guidance for “Confidence Intervals.” (Administrative record no. MT-048-17). The EPA guidance for “Confidence Intervals” (Administrative record no. MT-048-17) currently uses a 95% standard where “(1) There is a 95% chance of the true value of the parameter falling within the interval; (2) Values outside the interval can be rejected on the basis of a two-sided statistical test with alpha 5%.” In this scenario, a 95% confidence interval would not be the regulators determining that they are 95% confident material damage has occurred, instead it would give a range of numbers that would, if repeated with multiple data samplings, are 95% likely to contain the true value of the desired statistical parameter, such as a population mean.

Furthermore, it should be noted, if adopted by MDEQ, this standard would apply equally to operators when they are presenting evidence in their permit application that their operation will not cause material damage to the hydrologic balance outside the permit area. MCA section 82-4-227(3)(a).

Comment: One commenter stated that Montana's proposed definition would remove current language with clear standards for measuring impacts to the hydrologic balance and replacing them with unreasonable and unspecified metrics. The commenter opined that the proposed requirement that “Material damage . . . with respect to the hydrologic balance outside the permit area” must be proven through “quantifiable adverse impact. . . . an effect that can be quantified and measured to a significant degree of confidence” is inconsistent with SMCRA and the Federal regulations. The commenter stated that this standard “provides excessive subjective discretion and established a standard that would be onerous to prove.” The commenter citied to Ohio River Valley Env't Coal., Inc. v. Norton, No. CIV.A. 3:04-0084, 2005 WL 2428159, at *3 (S.D.W. Va. Sept. 30, 2005), aff'd sub nom. Ohio River Valley Env't Coal., Inc. v. Kempthorne, 473 F.3d 94 (4th Cir. 2006), a case where a West Virginia definition of “Material damage to the hydrologic balance” was invalidated by the court for having vague and overly subjective criteria. The commenter stated that Montana's proposed definition is also vague and subjective, as “significant degree of confidence” does not have a definition, and the degree of statistical confidence can be easily manipulated.

OSM Response: OSM disagrees with the commenter that there are not clear standards for measuring hydrologic balance impacts. As discussed above, the plain language in Montana's statute indicates that scientific data is required, as opposed to anecdotal evidence, that an adverse impact has or has not occurred. Further, State Representative Parry asserted in this comment that he developed the definition for “quantifiable adverse impacts” so that a methodology such as the EPA guidance for “Confidence Intervals.” (Administrative Record No. MT-048-17) could be used. If MDEQ chooses to adopt them, they would be clear and accessible standards. Furthermore, OSM disagrees that the finding in Ohio River Valley Env't Coal., Inc. v. Norton applies in this situation. As is inherent in the name of the term, “quantifiable adverse impact” requires MDEQ to use objective criteria, and the definition of that term elaborates that the quantified impact must be able to be measured to a significant degree of confidence. While that gives MDEQ some appropriate level of discretion to determine if it has a significant degree of confidence, it is clear that they must have a higher level of confidence than reasonable probable or another known standard that is typically applied. Moreover, MDEQ could use the guidelines for statistical analysis suggested by State Representative Parry. That EPA guidance offers techniques to prevent data manipulation in the statistical analysis process. (EPA, https://www.epa.gov/caddis/basic-principles-issues-2, last visited December 17, 2025). Thus the proposed definition of “quantifiable adverse impact” is not overly vague or prone to abuse.

Comment: One commenter stated that the “quantifiable adverse impacts” standard would put the burden of proof on the public, directly conflicting with 30 U.S.C. 1260(b) of SMCRA which requires the permittee to affirmatively demonstrate that material damage will not occur.

OSM Response: OSM disagrees with the commenter; Montana's proposed definition does not shift the burden of proving no material damage will occur from the permittee to the public. Per section 82-4-227(3)(a) of the MCA, operators are required to provide an assessment of probable cumulative impact and must show that the mining operation has been designed to prevent material damage to the hydrologic balance outside the permit area. Montana's proposed rule still puts the burden of proof on the operator for permit applications, as the operator must be the one to show that there will be no “quantifiable adverse impacts.”

Comment: A commenter questioned the “significant degree of confidence standard” and how MDEQ's current sampling practices would affect material damage findings in Montana. The commenter opined that MDEQ would need to require significant and repeated sampling to meet this new standard, and MDEQ's current quarterly sampling is insufficient to detect to a degree of statistical significance for large pollution increases. Furthermore, under the proposed standard a single measurement of extremely high pollution levels could be statistically erased as an outlier by being deemed “not statistically significant.” The commenter stated that this defeats the purpose of sampling, which is to ensure compliance. They opined that under the proposed rule a single sampling or even multiple sampling events identifying violations of water quality standards might not be deemed statistically significant, which is contrary to the Federal requirement that water quality standards serve as material damage criteria.

OSM Response: OSM disagrees with the commenter. MDEQ's sampling techniques are consistent with the Federal regulations. MDEQ requires monitoring and sampling of groundwater and surface water (ARM sections 17.24.645 and 17.24.646, respectively) and must sample the water to such a frequency as is necessary to adequately identify changes in water quality and quantity from mining operations. If it is demonstrated that a site needs more frequent water monitoring, including sampling, MDEQ can adjust accordingly. Furthermore, a WQS violation is still considered material damage under Montana's rule, as it under the regulations, but proving WQS violation still requires procedures and analysis. For example, the EPA sets “Guidelines Establishing Test Procedures for the Analysis of Pollutants” at 40 CFR part 136 and devised a “Stressor Identification Guidance Document,” US EPA, December 2000, ( https://www.epa.gov/sites/default/files/2018-10/documents/stressor-identification-guidance-document.pdf, last visited May 11, 2026), which gives guidance for properly identifying WQS violations. The EPA created the “Casual Analysis/Diagnosis Decision Information System” or CADDIS using the framework from this document. CADDIS is often used by States, Tribes, and others as guidance for sampling and analysis procedures. In his comment, State Representative Parry stated that he created the definition for “quantifiable adverse impact” in line with CADDIS guidance for confidence intervals. (Administrative record no. MT-048-17, citing “Basic Principles & Issues: Additional Information on Interpreting Statistics,” EPA, https://www.epa.gov/caddis/basic-principles-issues-2, last visited May 11, 2026). Thus, Montana's proposed requirement of statistical significance to prove a “quantifiable adverse impact,” including a WQS violation, is in line with the Federal regulations.

Comment: In a September 3, 2025 letter commenting on this proposed program amendment, the author of Montana's definition, Montana House Representative Parry, explained that his intent for including “quantifiable adverse impact” within the definition of “Material damage to the hydrologic balance” was to follow EPA guidance that “Confidence intervals, . . . , can be used to analyze data without assumptions about the relative burden of proof for different outcomes.” State Representative Parry credited the EPA Casual Analysis/Diagnosis Decision Information System (CADDIS) website for guiding his creation of the “quantifiable adverse impacts” definition. (Administrative record no. MT-048-17, referencing “Basic Principles & Issues: Additional Information on Interpreting Statistics,” EPA, https://www.epa.gov/caddis/basic-principles-issues-2, last visited May 11, 2026). CADDIS was created by the EPA to support State, Tribal, and other water programs in sampling and analyzing water quality data.

OSM Response: OSM appreciates State Representative Parry's insights and background on the program amendment. While we understand the intent of this State Representative may have been to follow the EPA guidance, the EPA guidance is not incorporated by reference into the statute and is not part of the proposed amendment that we are reviewing.

Comment: A few commenters, including U.S. Senator Daines of Montana, opined that the proposed amendment clarifies the coal mining permitting and operational process by requiring the material damage determination to be based on demonstratable, measurable impacts. One of those commenters specified further that Montana's proposed definition of “quantifiable adverse impact” is appropriate to be defined as “an effect that can be quantified and measured to a significant degree of confidence” because (1) hydrologic impacts involve numerous and variable factors and (2) a finding of material damage carries serious consequences, potentially including denial of a permit or cessation of mining operations. They stated that by requiring material damage to be found through demonstratable, tangible, and measurable facts, MDEQ is able to ensure environmental protection and regulatory certainty when making its findings.

OSM Response: OSM agrees with the commenters that Montana's proposed definition requires material damage to be assessed on demonstratable and measurable impacts. Please see further discussion of this topic in section III(A).

Comment: Multiple commenters stated that Montana's proposed limitation of adverse impacts to “existing or reasonably foreseeable use of surface water or ground water” is inconsistent with SMCRA, and they claimed that OSM had previously rejected a similar provision to the Montana program. The commenters cited OSM's discussion at 70 FR 8002, 8004 (Feb. 16, 2005) where OSM found Montana's 2003 proposed definition of “hydrologic balance” would only consider dynamic hydrologic relationships to the extent they relate to uses of the land and water, which would result in components of the hydrologic regime not being identified, protected, or monitored unless those components relate to postmining uses of land and water. The commenters stated there is a parallel between the rejected 2003 definition and Montana's proposed definition here, as Montana's limiting of material damage to “existing or reasonably foreseeable uses[s]” fails to protect the hydrologic balance as a “natural resource.” One of these commenters opined further that Montana's designated beneficial uses are independent of existing or reasonably foreseeable uses, thus the inconsistency makes the proposed definition inconsistent with SMCRA.

OSM Response: OSM disagrees with the commenters that our denial of Montana's 2003 proposed definition of “hydrologic balance” requires us to deny Montana's 2025 proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area.” Unlike the 2003 definition of “hydrologic balance,” Montana's proposed definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” is not related to or reliant on postmining land use. “[E]xisting or reasonably foreseeable uses of water” is related to Montana's classification of beneficial uses, not how the water will be used for postmining land use.

Furthermore, OSM disagrees with the commenter that the definition separates Montana's designated beneficial uses from its proposed definition of “existing or reasonably foreseeable uses.” As State Representative Parry explained in his comment, the definition was designed to ensure consistency between the Montana Surface and Underground Mining Reclamation Act and Montana Water Quality Act and clarified that the classification of State waters mentioned in the proposed definition reference the water classifications in ARM sections 17.30.607 and 17.30.617. (Administrative Record No. Mt-048-17).

Comment: One commenter opposed the proposed definition because it did not consider the “beneficial” water quality standards that local landowners valued and enjoyed prior to the life of the coal mine, which punishes the landowners instead of the polluting coal mine operators.

OSM Response: OSM disagrees with the commenter. As discussed further in section III(A), Montana is proposing to incorporate established State water law standards into its definition of “Material damage . . . with respect to the hydrologic balance outside the permit area,” and these State water law standards use the term “Beneficial use.” At section 85-2-102(5)(a), Montana defines “Beneficial use” as “a use of water for the benefit of the appropriator, other persons, or the public, including but not limited to agricultural, stock water, domestic, fish and wildlife, industrial, irrigation, mining, municipal power, and recreational uses.” Montana water law, and thus the Montana coal program through this amendment, recognizes a wide variety of “beneficial uses” and does not limit these uses by whether they were in place before or after the life of coal mines.

Comment: A couple of commenters stated they support the amendment, and that material damage assessments will consider beneficial uses, which the commenter opined will protect the farmers, ranchers, businesses, and families who put Montana's waters to beneficial use. Furthermore, they stated that the proposed adoption of Montana's classifications and beneficial uses of water into the definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” will provide regulators, operators, and the public with a clear and predictable basis for evaluating material damage. And this would reduce the risk of arbitrary or inconsistent outcomes while ensuring assessments remain accurate and reliable.

OSM Response: OSM agrees with the commenters that Montana's proposed adoption of classification and beneficial uses of water into its definition of “Material damage . . . with respect to the hydrologic balance outside the permit area” will provide a predictable basis for evaluating material damage, while also protecting the users of Montana's waters. Please see our full discussion of this topic in section III(A).

Comment: One commenter opined that OSM should approve Montana's proposed definition of “Material damage . . . with respect to alluvial valley floors” because OSM previously approved an identical definition in 90 FR 3673, 3677 (Jan. 15, 2025).

OSM Response: OSM agrees with the commenter, OSM had previously approved this section in our January 15, 2025 decision, and as proposed now, Montana's definition of “Material damage . . . with respect to alluvial valley floors” is consistent with the Federal regulations. Please see section III(B) for our discussion on this topic.

Comment: One commenter opined that OSM should approve Montana's proposed definition of “Material damage . . . with respect to subsidence” because Montana incorporated OSM's feedback from our prior denial of the definition in MT-042-FOR. 90 FR 3673, 3677 (Jan. 15, 2025).

OSM Response: OSM agrees with the commenter, OSM had previously denied this section in our January 15, 2025 decision, but Montana has incorporated our feedback and as proposed now Montana's definition of “Material damage . . . with respect to subsidence” is consistent with the Federal regulations. Please see section III(C) for our discussion on this topic.

Comment: One commenter stated that Montana's proposed rule allowing operators to submit their own hydrologic and geologic information in the absence of State or Federal information creates a conflict of interest and undermines the public's trust in regulatory authorities.

OSM Response: OSM disagrees with the commenter. The Federal regulations at 30 CFR 780.21 allows an operator to submit their own hydrologic and geologic information when it cannot be sourced by a relevant Federal or State agency. Montana's proposed changes are consistent with the Federal regulations, and, thus, OSM is approving them. Please see section III(D) for our discussion on this topic.

Comment: One commenter stated that OSM should approve Montana's proposed changes to requirements for hydrologic information because the language was drawn directly from the Federal regulations at 30 CFR 780.21(c).

OSM Response: OSM agrees with the commenter as Montana's proposed changes to its hydrologic information requirements are consistent with the Federal regulations. Please see section III(D) for our discussion on this topic.

Comment: In a comment, the sponsor of HB 587, State Representative Parry, stated that the proposed changes to requirements for submitting hydrologic information were made because the current rule, which only allows information from a State or Federal agency, is inadequate, and that in practice this information is best sourced from the operator themselves. State Representative Parry stated that to correct this, he changed the language under the proposed rule so that operators may provide this information if it is not available from the appropriate Federal and State agencies, and that MDEQ retains sole authority over determination of compliance.

OSM Response: The Federal regulations prefer that the hydrologic information is sourced by a relevant Federal or State agency, but when those agencies cannot provide that information, the regulations allow the hydrologic information to be sourced by the operator. OSM is approving Montana's proposed changes to these requirements because they were consistent with the Federal regulations. Please see section III(D) for our discussion on this topic.

Comment: Several commenters opined that the immediate effectiveness and retroactivity provisions of HB 587 violate SMCRA. Multiple commenters cited OSM's previous denial of identical provisions in HB 576, which found those provisions to violate 30 CFR 732.17(g), and stated that OSM should similarly deny the similar provisions in HB 587.

OSM Response: As discussed in section III(E), OSM agrees that the effective date of HB 587 is June 29, 2026. In addition, the U.S. District Court for the District of Montana recently held that “the `immediately effective' provisions of [HB] 576 and [SB] 392 conflict with the federal review process required by the SMCRA” and entered a consent decree, agreed to by MDEQ, that stated that MDEQ would not “apply, effectuate, or enforce any provision of HB 576 or SB 392 unless and until it is reviewed and approved by the Director of OSM, pursuant to the provisions of 30 CFR 732.17 and the Montana cooperative agreement.” Mont. Env't Ctr. v. Mont. Dep't of Env't Quality, 2025 U.S. Dist. LEXIS 11470, *3-*5 (D. Mont. Jan. 22, 2025). While this case applies only to HB 576 and SB 392, the precedent from this case would likely invalidate the “immediately effective” provision in HB 587 as well.

Comment: A few commenters stated that OSM must assure that State programs are in compliance with SMCRA, and OSM must review and deny any changes to State standards that do not comply with the minimum Federal standards under SMCRA and the Federal regulations.

OSM Response: OSM agrees with the commenters, as directed by SMCRA and the Federal regulations at 30 CFR 730.11 and 732.17, OSM is required to assess whether a State program is in accordance with SMCRA and consistent with the Federal regulations, and, if there is a deficiency in a State's proposed amendment to its program, OSM must deny those defective aspects.

Comment: One commenter stated that OSM should only evaluate whether the current bill, HB 587, is consistent with SMCRA and the Federal regulations, and previous versions of MSURMA, other States' requirements, or other programs and desired outcomes are beyond the scope of OSM's duties and not authorized by SMCRA.

OSM Response: OSM disagrees with the commenter that SMCRA and the Federal regulations prevent us from considering information outside of the amendment when making our decision. OSM assesses State program amendments as required by SMCRA and the Federal regulations, and 30 CFR 732.17(h)(7) requires that the Director “considers all relevant information, including any information obtained from public hearing and comments . . . .” While OSM mainly reviews text of the proposed amendment compared to SMCRA and the Federal regulations, OSM must consider all relevant information in our assessment as to whether a proposed amendment is consistent with SMCRA and the Federal regulations, which can include how OSM has treated similar amendments in other States.

Comment: A few commenters, including U.S. Senator Daines of Montana, commented that Montana's amendment is consistent with the following Federal Executive Orders: Unleashing American Energy (Jan. 20, 2025), Immediate Measures to Increase American Mineral Production (Mar. 20, 2025), and Reinvigorating America's Beautiful Clean Coal Industry (Apr. 8, 2025).

OSM Response: OSM agrees that the Montana amendment is consistent with those Executive Orders. OSM is approving this amendment, though OSM's approval of any State program amendment is dependent on the procedures and requirements as dictated by SMCRA and the Federal regulations at 30 CFR 732.17.

On September 10, 2025, pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies that have an actual or potential interest in the Montana program (Administrative Record No. MT-048-04). These agencies did not provide comments on this amendment.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the CWA (33 U.S.C. 1251 et seq. ) or the Clean Air Act (43 U.S.C. 7401 et seq. ). This amendment does not relate to air or water quality standards and thus does not require a written concurrence from the EPA. Even so, on September 10, 2025, under 30 CFR 732.17(h)(11)(i), we sent a letter requesting comments from the EPA on the amendment (Administrative Record No. MT-048-04). The EPA did not provide any comments for this amendment.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On September 10, 2025, we requested comments on the amendment (Administrative Record No. MT-048-04). Montana SHPO and the ACHP did not provide a comment.

Based on the above findings, we are approving Montana's proposed amendment (MT-048-FOR) sent to us on June 22, 2023 (Administrative Record No. MT-048-01). To implement this decision, we are amending the Federal regulations, at 30 CFR part 926, that codify decisions concerning the Montana program. In accordance with the APA, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires that a State program must have rules and regulations that are in accordance with SMCRA and consistent with Federal regulations.

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

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

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

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

The Department of the Interior strives to strengthen its government-to government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria of Executive Order 13175 and have determined that, although no Indian lands, as defined under SMCRA, are implicated by this rule, this State program amendment may have substantial direct effects on 20 Federally recognized Tribes because of the potential implications for the Tribe or Tribal members, Tribal treaty rights, reserved rights, trust resources, or ancestral lands. Therefore, on August 4, 2025, we sent invitation letters to consult to these 20 Tribes (Administrative Record No. MT-048-07).

In response to our invitation, we received a written comment from the Northern Cheyenne Tribe (NCT) on September 3, 2025. (Administrative record no. MT-048-13) NCT urged OSM to deny HB 587 because it is inconsistent with SMCRA and the Federal regulations. The NCT stated that clean water is spiritually and practically vital to its members way of life, and that OSM (as well as other Federal agencies) have fiduciary obligations to consider and protect the Tribe's best interests and natural resources. The NCT stated that HB 587 removes protections for water rights and rolls back legal protection of water resources when the receiving waters for all of Montana's coal mines are impaired and neighboring tribal members are seeing once reliable water sources disappear or polluted beyond use. The NCT also stated that HB 587 allows coal operators to violate WQS and reduce water quantity to a degree that hurts wildlife, stock-watering, irrigation, and domestic use. And that HB 587 would diminish the public oversight role by requiring locals affected by water quality and quantity changes to take on extra burdens to prove their claims, like hiring a statistician to prove significant water pollution. Lastly, the NCT stated that OSM should reject the bill because it repeats provisions that OSM have rejected on multiple occasions.

OSM Response: OSM appreciates the Tribes comments and agrees that OSM, along with other Federal agencies, has responsibility for Federal activities that can have Tribal implications. OSM disagrees that Montana's proposed definition of material damage would allow Montana coal mines to violate WQS, reduce water quality, or diminish public oversight. Please see our full discussion of this topic in section III(A) and in the comment section.

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

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), a State program amendment is a not major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (43 U.S.C. 4332(2)(C).

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

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

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

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

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

An organization notified the Coast Guard that from 7 a.m. through 4 p.m. on June 27, 2026, they will sponsor a rowing regatta. The Coast Guard received a request under 33 CFR 100.15 from the Wyandotte Boat Club for a Marine Event Permit to host a rowing regatta race from Point Hennepin to the Grosse Ile toll bridge in the Detroit River. The rowing event will include approximately 400 participants.

The Captain of the Port Detroit (COTP) is issuing this special local regulation (SLR) under the authority in 46 U.S.C. 70041. The COTP has determined that potential hazards associated with the rowing regatta include increased vessel congestion due to the number of participants, tipping hazards of the rowing shells, and recovery of persons in cold-water temperatures. The purpose of this rulemaking is to protect event participants, non-participants, and transiting vessels before, during, and after the scheduled event.

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. We must establish this SLR by June 27, 2026, to protect personnel and vessels. Therefore, we do not have enough time to solicit and respond to comments.

For the same reason, 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 temporary SLR from 7 a.m. through 4 p.m. on June 27, 2026. The special local regulation will cover all navigable waters of the Detroit River, Trenton Channel, from Point Hennepin to the Grosse Ile toll bridge. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or their designated representative.

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 special local regulation. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

An organization notified the Coast Guard that from 5:30 p.m. until 8 p.m. on June 11, 2026, June 24, 2026, July 15, 2026, and August 5, 2026, they will sponsor a paddle event. The Coast Guard received a request under 33 CFR 100.15 from the Black Swamp Conservancy for a Marine Event Permit. The paddle event will include approximately 150 participants and 130 spectator craft.

The Captain of the Port Detroit (COTP) is issuing this special local regulation (SLR) under the authority in 46 U.S.C. 70041. The COTP has determined that potential hazards associated with the paddle event include increased vessel congestion due to the number of participants, and transiting in the pathway of commercial traffic. The purpose of this rulemaking is to protect event participants, non-participants, and transiting vessels before, during, and after the scheduled event.

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. We must establish this SLR by June 24, 2026, to protect personnel and vessels. Therefore, we do not have enough time to solicit and respond to comments.

For the same reason, 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 temporary SLR from 5:30 p.m. until 8 p.m. on June 11, 2026, June 24, 2026, July 15, 2026, and August 5, 2026. The special local regulation will cover all navigable waters of the Maumee River from riverbank to riverbank and extending from the Robert Craig Memorial Bridge to the Glass City River Wall. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or their designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses 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 special local regulation. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard received notification that fireworks will be launched from a barge on the St. Clair River, Marine City, MI as part of the Maritime Days festival. The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks are a safety concern for anyone within a 200-yard radius of the fireworks display. 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. The Coast Guard was notified of this event on April 29, 2026, but we must establish this safety zone by June 19, 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 reason, 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 from 7:30 p.m. through 10:30 p.m. on June 19, 2026, and in the case of inclement weather from 7:30 p.m. through 10:30 p.m. on June 20, 2026. The day and time of enforcement will depend on the weather conditions and will be announced to the public in advance. The safety zone will cover all navigable waters in the St. Clair River within a 200-yard radius of the launch position at 42°43.15′ N, 082°29.2′ W. Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the COTP.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses 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 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:

The Coast Guard received notification that the US Army will be conducting Airborne search and rescue drills with local waterborne units from a staging point on Hamburg Town Beach to a designated drop zone (DZ) offshore. The Captain of the Port (COTP) Eastern Great Lakes has determined that potential hazards associated with military operations are a safety concern for anyone within the DZ. 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. The Coast Guard was notified of this event on April 26, 2026, but we must establish this safety zone by June 3, 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 reason, 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 from 8:30 a.m. to 6:30 p.m. on both June 3, 2026, and June 4, 2026. The day and time of enforcement will depend on the weather conditions and will be announced to the public in advance. The safety zone will cover a 1 nautical mile radius from a central point at 42°46′20.6″ N, 78°52′42.5″ W. Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the Captain of the Port.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses 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 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:

This CDD is based upon quality-assured, quality-controlled, and certified ambient air monitoring data from 2022-2024 available in the EPA's Air Quality System (AQS) database. This CDD does not redesignate the Baltimore Area to attainment for the 2015 ozone NAAQS. The Baltimore Area remains designated nonattainment until such time as MD submits a request for redesignation pursuant to CAA section 107(d)(3) and the EPA determines that the Baltimore Area meets the CAA requirements for redesignation to attainment and takes action to redesignate the Baltimore Area.

On October 26, 2015, the EPA promulgated a revised primary and secondary ozone NAAQS to provide requisite increased protection of public health and welfare, respectively. 1 In that action, the EPA strengthened both standards from 0.075 parts per million (ppm) to 0.070 ppm and retained the indicator (ozone), averaging time (8-hour), and form (annual fourth-highest daily maximum, averaged over three years) of the existing standards. Effective August 3, 2018, the EPA designated 51 areas throughout the country as nonattainment for the 2015 ozone NAAQS, including the Baltimore Area, which was classified as a Marginal nonattainment area. 2 This designation was based on quality-assured, quality-controlled, and certified air quality monitoring data from calendar years 2014-2016. The EPA established the attainment date for Marginal 2015 ozone NAAQS nonattainment areas as three years from the effective date of the final designations, meaning the Baltimore Area had an attainment date of August 3, 2021. 3

Effective November 7, 2022, the EPA determined that 22 Marginal areas or portions of areas failed to attain the standard by August 3, 2021, the applicable Marginal attainment date, including the Baltimore Area. 4 As a result of the EPA's November 2022 finding, the Baltimore Area was reclassified by operation of law to Moderate nonattainment for the 2015 ozone NAAQS. That finding was based on quality-assured, quality-controlled, and certified ambient air monitoring data from calendar years 2018-2020. The Moderate area attainment date was August 3, 2024. 5

On July 18, 2024, MD requested voluntary reclassification under CAA section 181(b)(3) for the Baltimore Area from Moderate to Serious. On August 1, 2024, the EPA approved MD's reclassification request from Moderate to Serious. 6 The 2015 ozone Serious area attainment date is August 3, 2027.

On February 2, 2024, MDE, on behalf of MD, submitted three EE demonstrations to show that the ozone concentration at certain MD monitors on June 2, June 29-30, and July 17-18, 2023 were influenced by wildfire smoke events originating in Canada and/or the United States. On May 6, 2025, MDE provided additional information for the June 2, 2023 demonstration. On November 12, 2025, the EPA concurred on portions of the June 2, June 29-30, and July 17-18, 2023 EE demonstrations.

On January 23, 2026, the EPA published a notice of proposed rulemaking (NPRM), which proposed to determine that the Baltimore Area has attained the 2015 ozone NAAQS, based upon quality-assured, quality-controlled and certified ambient air monitoring data for the 2022-2024 DV period, which pursuant to the EPA's concurrence on portions of the three MDE EE demonstrations now excludes exceptional event-influenced monitor days. 7 Such a determination, based upon the EPA's Clean Data Policy and 40 CFR 51.1318, is known informally as a CDD (for Clean Data Determination). In that action, the EPA noted that, if the CDD is finalized, the requirements for the Baltimore Area to submit an attainment demonstration, associated RACM, RFP plan, contingency measures, and any other SIP revisions related to the attainment of the 2015 ozone NAAQS, would be suspended for so long as the Baltimore Area continues to attain the 2015 ozone NAAQS. The EPA also explained that the CDD does not constitute a redesignation to attainment, and that the Baltimore Area will remain designated nonattainment for the 2015 ozone NAAQS until such time as MD submits a request for redesignation pursuant to CAA section 107(d)(3) and the EPA determines that the Baltimore Area meets the CAA requirements for redesignation to attainment and takes action to redesignate the Baltimore Area.

The EPA's proposed CDD relied upon the EPA's concurrence on portions of the EE demonstrations submitted by MDE on February 2, 2024. In the January 23, 2026 NPRM, the EPA also proposed to take final agency action on the exceptional events concurrences, which removed the event-influenced data from the DV. The NPRM opened an opportunity for public comment on the EPA's concurrences.

As detailed in the NPRM, the EPA has reviewed the 2022-2024 quality-assured, quality-controlled, and certified ambient air quality monitoring data for ozone for the Baltimore Area, which as noted, excludes exceptional event-influenced monitor days. 8 Preliminary data for 2025, that has now since been certified by Maryland and concurred on by the EPA, was also reviewed. As detailed in the NPRM, the DVs for each monitor within the Baltimore Area are less than or equal to 0.070 ppm, which is the 2015 ozone NAAQS. 9 All monitors, with the exception of two circumstances described in the NPRM, meet the data completeness requirements. 10 Based on this 2022-2024 data from the EPA's AQS database and consistent with the requirements contained in 40 CFR part 50, the EPA has concluded that the Baltimore Area attained the 2015 ozone NAAQS. Additionally, the now certified 2025 data indicates that the Baltimore Area continues to attain the standard based on the 2023-2025 DV. Other specific requirements of the CDD and the rationale for the EPA's actions, including the EPA's concurrence on portions of the exceptional events demonstrations, were explained in the NPRM and associated technical support documents (TSDs) included in the docket for this action, and will not be restated here.

The EPA's January 23, 2026 NPRM opened a 30-day public comment period, which closed on February 23, 2026. 11 The EPA received one comment. That comment and the EPA's response are discussed below. The comment received and any submitted attachments are included in the docket for this rule, available at, www.regulations.gov, Docket ID Number EPA-R03-OAR-2025-2532.

Comment: The commenter acknowledges that the exclusion of monitoring data impacted by wildfire smoke allows the Baltimore Area to attain the 2015 ozone NAAQS but disagrees that this is the correct approach. The commenter states that it is increasingly evident that wildfires are a more ever-present part of the world climate landscape and argues that by excluding exceptional events-impacted monitoring days to issue a CDD, the proposed action “disregard[s] a critical facet of our changing planet affecting our current air quality. . . .” Instead, the commenter urges the EPA to revise the NAAQS to account for extraneous circumstances such as wildfires. The commenter also states that the current rule proposing a CDD should be avoided because localities will be absolved of critical climate initiatives. The commenter argues that CDDs reduce accountability of states to submit implementation plans and “weaken the environmentally conscious posture of state governments.”

Response: The EPA disagrees with the commenter that the exclusion of monitoring data impacted by wildfire smoke to support the issuance of a CDD is not the proper approach. Similarly, the EPA disagrees with the commenter that a CDD should not be issued in this instance. Rather, this action is consistent with statutory authority delineated by Congress, the relevant implementing regulations, and long-established agency policy.

As discussed in detail in the NPRM, in 2005, Congress provided the statutory authority for the exclusion of data influenced by “exceptional events” meeting specific criteria by adding section 319(b) to the CAA and granting the EPA with the authority to propose regulations to review and manage air quality monitoring data influenced by exceptional events, as defined by the CAA. On March 22, 2007, the EPA promulgated the 2007 Exceptional Events Rule in order to implement this 2005 CAA amendment. 12 On October 3, 2016, the EPA promulgated a comprehensive revision to the 2007 Exceptional Events Rule. 13 The 2016 Exceptional Events Rule revision included the requirement that if a state demonstrates to the Administrator's satisfaction that emissions from a wildfire smoke event caused a specific air pollution concentration in excess of the NAAQS at a particular air quality monitoring location and otherwise satisfies the requirements of 40 CFR 50.14, the EPA must exclude that data from use in determinations of exceedances and violations. 14

Accordingly, the CAA provides for the exclusion of air quality monitoring data from DV calculations when there are NAAQS exceedances caused by events, such as wildfires, that meet the criteria for an exceptional event identified in CAA section 319(b) and in the EPA's Exceptional Events Rule at 40 CFR 50.1, 50.14, and 51.930. As explained in detail in the NPRM and the three TSDs included in the docket for this action, the EPA found that portions of MDE's June 2, June 29-30, and July 17-18, 2023 demonstrations met the Exceptional Events Rule criteria and determined that monitoring data impacted by wildfire smoke had regulatory significance for purposes of calculating the Baltimore Area's most recent DV (2022-2024 monitoring data). 15 The removal of this exceptional event-impacted data is consistent with the CAA and implementing regulations and provides for a DV that meets the NAAQS. 16

Following enactment of the CAA Amendments of 1990, the EPA promulgated its interpretation of the requirements for implementing the NAAQS in the general preamble for the implementation of Title I of the CAA Amendments of 1990 (General Preamble). 17 In 1995, based on the interpretation of CAA sections 171, 172, and 182 in the General Preamble, the EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS in a memorandum issued by John S. Seitz (Seitz Memorandum). 18 The Seitz Memorandum provided that requirements to submit SIP revisions addressing RFP, an attainment demonstration, and other related requirements such as contingency measures and other specific ozone-related requirements in CAA section 182 would be suspended for as long as the nonattainment area continued to monitor attainment of the NAAQS. The approach set forth in the memorandum was subsequently codified for the 1997, 2008, and 2015 ozone NAAQS. 19 The EPA's longstanding Clean Data Policy has been upheld by the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) and all other courts that have considered it. The D.C. Circuit upheld the EPA's rule embodying the Clean Data Policy for the 1997 8-hour ozone standard in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). Other courts have reviewed and considered rulemakings applying the EPA's Clean Data Policy and have consistently upheld them. 20

Thus, the CAA and implementing regulations provide for the exclusion of air quality monitoring data from DV calculations when there are NAAQS exceedances caused by events, such as wildfires, that meet the criteria for an exceptional event identified in the CAA and the associated regulations. Here, the state has submitted, and the EPA has concurred on, EE demonstrations that show certain monitoring data in the Baltimore Area during the 2022-2024 DV period were influenced by an exceptional event as defined by statute and regulation. As a result, the EPA has appropriately excluded that data in its calculation of the 2022-2024 ozone DV. The calculated 2022-2024 DV for each monitor within the Baltimore Area meets the NAAQS, and each monitor has valid data and meets the data completeness requirements (except for two monitors in Anne Arundel County). 21 Pursuant to regulation and longstanding agency policy that has been consistently upheld in Federal court, a CDD is appropriate in this instance. In addition, as discussed in the NPRM, preliminary data for 2025, that has since been certified by MD and concurred on by the EPA, indicates that the Baltimore Area continues to attain the standard.

Lastly, the EPA disagrees with the commenter that CDDs reduce accountability of states to submit implementation plans and weaken the “environmentally conscious posture of state governments.” This action implements longstanding agency policy based on the air quality measurements for ground level ozone in the Baltimore Area. Due to the implementation of pollution reduction programs, such air quality measurements have improved significantly over time to meet health-based air quality standards. If the Baltimore Area falls back into nonattainment, those suspended attainment planning SIPs become immediately due upon a determination by the EPA that the Baltimore Area is no longer attaining the NAAQS. Moreover, MD may still submit SIPs in anticipation of this event, and the EPA will be required to act on those SIPs in accordance with CAA section 110(k)(2) and (3). The Clean Data Policy embodies the EPA's longstanding interpretation that certain planning requirements in the CAA no longer have meaning for areas that are attaining the standard because the purpose of these provisions is to help a nonattainment area reach attainment, a goal which will already have been achieved.

The commenter's suggestion that the EPA should revise the NAAQS to better reflect extraneous circumstances such as wildfires is beyond the scope of this action, which is limited to the determination that the Baltimore Area has attained the 2015 ozone NAAQS and a CDD is appropriate, consistent with the CAA, implementing regulations, and agency policy, as described previously.

For the reasons discussed in detail in the NPRM and summarized herein, the EPA is taking final action to determine that the Baltimore Area has clean data for the 2015 ozone NAAQS based upon quality-assured, quality-controlled and certified ambient air monitoring data for the 2022-2024 DV period. The EPA is also taking final action on portions of three EE requests submitted by MDE on February 2, 2024, and concurred on by the EPA on November 12, 2025. As a result of the CDD, the EPA is suspending the requirements for the Baltimore Area to submit attainment demonstrations and associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 2015 ozone NAAQS, for as long as the Baltimore Area continues to attain the 2015 ozone NAAQS.

This action does not constitute a redesignation of the Baltimore Area to attainment of the 2015 ozone NAAQS under CAA section 107(d)(3). This action also does not involve approving any maintenance plan for the Baltimore Area and does not determine that the Baltimore Area has met all the requirements for redesignation under the CAA, including that the attainment be due to permanent and enforceable measures. Therefore, the designation status of the Baltimore Area will remain nonattainment for the 2015 ozone NAAQS until such time as MD submits a request for redesignation pursuant to CAA section 107(d)(3), the EPA determines that the Baltimore Area meets the CAA requirements for redesignation to attainment, and the EPA takes action to redesignate the Baltimore Area.

This rule makes an attainment determination based on ambient air quality data and will result in the suspension of certain Federal requirements and will not impose any additional requirements. For that reason, this action:

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

• Is not an Executive Order 14192 (90 FR 9065, February 6, 2025) regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not a significant regulatory action under Executive Order 12866;

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

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

On May 3, 2024, (89 FR 36729), the EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation. Our proposed action also proposed to approve California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 10 Climate Change, Article 4 Subarticle 13: Greenhouse Gas Emission Standards for Crude Oil and Natural Gas Facilities (“CARB Oil and Gas Rule”) as well as the Reasonably Available Control Technology (RACT) requirement for the 2008 and 2015 ozone NAAQS for sources covered by the EPA's 2016 Control Techniques Guidelines for the Oil and Natural Gas Industry (“2016 Oil and Gas CTG”). We plan to finalize action on these components in a separate final rulemaking.

The EPA's proposed action provided a 30-day public comment period. During the comment period we received two comment letters. The first comment letter was submitted by Voices in Solidarity Against Oil in Neighborhoods, Central California Environmental Justice Network, FracTracker Alliance, the Center for Biological Diversity, and Earthjustice. The second comment letter was submitted by Earthjustice, Physicians for Social Responsibility Los Angeles, Center for Biological Diversity, San Francisco Bay Physicians for Social Responsibility, FracTracker Alliance, Voices in Solidarity Against Oil in Neighborhoods, SanDiego350—Climate Change Action, Friends of the Earth US, Central California Environmental Justice Network, The Climate Center, Oil and Gas Action Network, and Labor Network for Sustainability. Both letters provide comments on the CARB Oil and Gas Rule and RACT determination, but no comments pertain specifically to the local air district rules. Nothing in the submitted comments suggests that the rules are not SIP strengthening and should not be approved into the California SIP. All comments received will be addressed when we finalize action on the CARB Oil and Gas Rule and the accompanying RACT determinations for the 2016 Oil and Gas CTG.

No comments were submitted that change our assessment of the approvability of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving these rules into the California SIP. The EPA is not at this time determining whether the rules, combined with the CARB Oil and Gas Rule, meet the RACT requirement for covered sources. The newly submitted versions of the six local air district rules will replace the previously approved versions of rules in the SIP. We previously approved earlier versions of the six local air rules as follows: SJVUAPCD Rule 4409 on March 23, 2006 (71 FR 14652), SJVUAPCD Rule 4623 on September 13, 2005 (70 FR 53936), SJVUAPCD Rule 4401 on November 16, 2011 (76 FR 70886), VCAPCD Rule 71.1 on August 4, 1994 (59 FR 39690), SCAQMD Rule 463 on March 28, 2013 (78 FR 18853), and SCAQMD Rule 1178 on August 28, 2007 (72 FR 49196).

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of SJVUAPCD Rule 4409, “Components at Light Crude Oil Production Facilities, Natural Gas Production Facilities, and Natural Gas Processing Facilities” (amended June 15, 2023); SJVUAPCD Rule 4623, “Storage of Organic Liquids” (amended June 15, 2023); and SJVUAPCD Rule 4401, “Steam-Enhanced Crude Oil Production Wells” (amended June 15, 2023). The EPA is also incorporating by reference VCAPCD Rule 71.1, “Crude Oil Production and Separation” (revised July 11, 2023); SCAQMD Rule 463, “Organic Liquid Storage” (amended May 5, 2023); and SCAQMD Rule 1178, “Further Reductions of VOC Emissions from Storage Tanks at Petroleum Facilities” (amended September 1, 2023). These rules regulate VOC emissions from crude oil and natural gas facilities. The EPA has made, and will continue to make, these documents available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

On February 6, 2026 (91 FR 5398), the EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, the EPA proposed approval of a revision to the Pennsylvania SIP to amend source-specific RACT requirements for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) for a source in Philadelphia. As discussed in more detail in section II of this preamble, the revision updates the RACT requirements for the Philadelphia Gas Works, Richmond Plant (PGW Richmond) by removing a condition from the RACT Plan Approval that was previously incorporated into Pennsylvania's SIP. The proposed revision results in no change of emission allowances under RACT. The formal SIP revision was submitted by the Pennsylvania Department of Environmental Protection (PADEP), on behalf of the City of Philadelphia, Department of Public Health, Air Management Services (AMS), on September 7, 2023.

For additional background information on this action, please refer to the NPRM.

On October 7, 2016 (81 FR 69687), the EPA took final action to approve SIP revisions that were submitted by PADEP on behalf of AMS in order to satisfy RACT requirements of the 1997 ozone NAAQS applicable to sources located in Philadelphia. Included in that approval were source-specific requirements applicable to three 295 horsepower Caterpillar engines located at PGW Richmond. Specifically, Condition 1(B)(2) of AMS' July 9, 2015 RACT Plan Approval required that the timing of the engines be set and maintained at four degrees retarded relative to the standard timing.

On September 7, 2023, PADEP submitted to the EPA for approval, a SIP package that contains a revision to Pennsylvania's SIP to amend the source-specific RACT requirements for PGW Richmond by removing condition 1(B)(2). In this submittal, PADEP indicated that Condition 1(B)(2) was mistakenly included in the RACT Plan Approval for PGW Richmond. 25 Pennsylvania Code (Pa. Code) 129.93(c) contains a list of source types that are required to meet RACT through the “. . . installation, maintenance and operation of the source in accordance with manufacturers specifications.” Condition 1(B)(2) appears to have been included in order to constrain the engines in such a way that they would be subject to the presumptive RACT requirements of 25 Pa. Code 129.93(c). However, the engines as installed did not have timing as described in 25 Pa. Code 129.93(c)(3). Modifying the timing to four degrees retarded relative to standard timing would damage the engines and would be contrary to the presumptive RACT requirement the condition was intended to meet ( i.e. installation in accordance with manufacturers specifications). Furthermore, based on the permitted use of the three Caterpillar Engines 135GU 295 horsepower Units at PGW Richmond, AMS determined that the three emission units meet the criteria of 25 Pa. Code 129.93(c)(5), and are therefore still subject to the presumptive RACT requirement to install, maintain and operate the engines in accordance with manufacturer's specifications.

Removing Condition 1(B)(2) from the PGW Richmond RACT Plan Approval results in no change of emission allowances under RACT because the RACT requirement of 25 Pa. Code section 129.93(c) is the same for source categories listed in 25 Pa. Code section129.93(c)(3) and (c)(5). Updating this source type will remove the source as a case-by-case RACT requirement from the Pennsylvania SIP.

The EPA received one comment in response to the NPRM. The comment was outside the scope of the rulemaking. As such, the comment does not require a response by the EPA.

The EPA is approving the revision to Philadelphia Gas Works, Richmond Plant Reasonably Available Control Technology Plan Under the 1997 8-Hour Ozone National Ambient Air Quality Standards as a revision to the Pennsylvania SIP.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the revised RACT Plan Approval for PGW Richmond, as described in section II in this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

• Is not an Executive Order 14192 (90 FR 9065, February 6, 2025) regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

This rule is exempt from the Congressional Review Act because it is a rule of particular applicability.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

On November 28, 2025 (90 FR 54607), the EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the NPRM, the EPA proposed to repeal Article 11, Emission Standards for Petroleum Refinery Operations (9VAC5-40-1340 through 5-40-1510), and Article 26, Emissions Standards for Large Appliance Coating Application Systems (9VAC5-40-3560 through 5-40-3700), from the Virginia SIP. Revision B23 was published in the Virginia Register of Regulations on February 26, 2024, and became effective on April 11, 2024. The formal SIP revision was submitted by Virginia through the Virginia Department of Environmental Quality (VADEQ) on December 20, 2024. For additional background information on this action, please refer to the NPRM.

In this action, the EPA is approving the repeal of Article 11, Emission Standards for Petroleum Refinery Operations (9VAC5-40-1340 through 5-40-1510), and Article 26, Emissions Standards for Large Appliance Coating Application Systems (9VAC5-40-3560 through 5-40-3700), from the Virginia SIP because there are no remaining petroleum refinery operations or large appliance coating application systems in Virginia. As more fully described in the NPRM and section III in this preamble, the repeal of these articles is in accordance with CAA section 110(l).

The rationale for the EPA's now final action is explained in the NPRM and will not be restated here. A summary of the comments received, as well as the EPA's response, are in section III of this preamble.

The EPA's November 28, 2025 NPRM (90 FR 54607) opened a comment period which closed on December 29, 2025. The EPA received comments from one commenter. All comments received have been placed in the docket for this action.

A summary of the relevant comments and the EPA's response thereto are listed below.

Comment 1: The commenter asks the EPA to deny approval of the repeal of Articles 11 and 26 in 9VAC5-40, or at minimum require Virginia to provide a complete technical support package, including transparent assumptions, sensitivity runs, and an enforceability analysis that is specific enough to demonstrate CAA section 110(l) noninterference.

Response 1: The EPA disagrees with the commenter that further analysis of CAA section 110(l) is necessary in this instance. The EPA acknowledges the importance of a CAA section 110(l) noninterference demonstration. As stated in section II of the NPRM, the removal of Articles 11 and 26 in 9VAC5-40 from the Virginia SIP is in accordance with section 110(l) of the CAA. Virginia demonstrated noninterference through a review of 9VAC5-40 and VADEQ's Comprehensive Environmental Data System database, indicating that there are no longer any facilities subject to the articles proposed for removal. Additionally, the EPA confirmed that there are neither petroleum refineries nor large appliance coating application systems remaining in Virginia through the analysis of the most recently available emissions data. 1 Moreover, Virginia's Existing Stationary Source Regulations only apply to stationary sources constructed, modified, or relocated before March 17, 1972, and stationary sources reconstructed before December 10, 1976. As there are no petroleum refinery operations or large appliance coating application systems remaining in Virginia, the repeal of Articles 11 and 26 in 9VAC5-40 will have no impact on RFP, the NAAQS, or any other CAA requirement. Any future facilities would need to assess applicability to Federal and State regulations, such as New Source Review and 9VAC5-50 New and Modified Stationary Sources.

Comment 2: The EPA must evaluate the environmental justice implications of the repeal of Articles 11 and 26 in 9VAC5-40.

Response 2: This action is consistent with Executive Order 14173 of January 21, 2025 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) which rescinded Executive Order 12898 on environmental justice, and Executive Order 14148 of January 20, 2025 (Initial Rescissions of Harmful Executive Orders and Actions) which rescinded Executive Order 14096 “Revitalizing Our Nation's Commitment to Environmental Justice for All”.

The EPA is approving Revision B23, submitted on December 20, 2024 by VADEQ, as a revision to the Virginia SIP, because the submission meets the requirements of CAA section 110. Revision B23 repeals Article 11, Emission Standards for Petroleum Refinery Operations (9VAC5-40-1340 through 5-40-1510), and Article 26, Emissions Standards for Large Appliance Coating Application Systems (9VAC5-40-3560 through 5-40-3700), from the Virginia SIP.

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

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

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

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

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is removing the incorporation by reference of the amendments to Virginia Administrative Code 9VAC5-40 Existing Stationary Sources, repealing 9VAC5-40-1340 through 9VAC5-40-1510, and 9VAC5-40-3560 through 9VAC5-40-3700, as discussed in sections II and III of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• Is not an Executive Order 14192 (90 FR 9065, February 6, 2025) regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

On November 17, 2025 (90 FR 51263), the EPA published a notice of proposed rulemaking for the SSSIP revision submitted by the State of New York on June 9, 2023 proposing to determine that the emission limit of 0.15 lb/MMBtu per hour for each of the Facility's Boilers when firing natural gas, and 0.25 lb/MMBtu per hour when firing distillate oil (emissions not to exceed 24 tpy on a rolling 12-month basis) implements RACT. The 6 New York Codes, Rules and Regulations (NYCRR) subpart 227-2 presumptive NO X limit for the Boilers of 0.08 lbs/MMBtu is not economically and technologically feasible for this source, and no additional control technologies beyond what are currently used at the Boilers are technically and economically feasible. The emission limit also has associated monitoring and reporting requirements. The State's June 9, 2023 SIP submittal consists of the SSSIP Revision for the Facility, the NO X RACT evaluation from January 2022, and the public notice in the Environmental Notice Bulletin on March 22, 2023.

The Facility supplies electricity to JFK and the Consolidated Edison Power Distribution Grid. The Facility also supplies steam to JFK's central heating and refrigeration plant. The Facility's Boilers are used intermittently to supplement hot water generation at the airport when the combustion turbine-based cogeneration units are unavailable or cannot meet demand.

The New York State Department of Environmental Conservation (NYSDEC) RACT regulations establish RACT requirements for this category of sources in 6 NYCRR subpart 227-2, “Reasonably Available Control Technology (RACT) For Major Facilities of Oxides of Nitrogen (NO X ),” last approved into New York's SIP by the EPA on July 12, 2013 (78 FR 41846). However, the NYSDEC RACT regulations allow source-specific RACT determinations (or variances) if the presumptive RACT requirements are not technologically or economically feasible; such source-specific determinations must be submitted to the EPA as a SSSIP. See 6 NYCRR subpart 227-2.5(c).

This SSSIP was submitted to EPA by NYSDEC on June 9, 2023. The EPA has reviewed the RACT determination in this SSSIP submittal for consistency with the CAA and EPA regulations, as interpreted through EPA actions and guidance. The intended effect of this source-specific SIP revision is to establish an emission limit for the process specific control measure for the Boilers.

The EPA is determining through this approval action that the NO X RACT emission limit for the Boilers submitted by the State in this SSSIP submittal is the lowest emission limit with the application of control technology that is reasonably available given technological and economic feasibility considerations. The NO X RACT emission limit is contained in the Facility's air permit, Title V operating permit, 2-6308-00096/00009 under conditions 56, 57, 58, emission unit B-OILRS issued by the State on June 28, 2022, and expires on June 27, 2027. EPA is approving the incorporation of permit conditions 56, 57, and 58 into the SIP. These conditions include monitoring, reporting, and recordkeeping requirements for the Boilers further described in the EPA RACT analysis below.

The Facility submitted a RACT demonstration, dated January 2022, to NYSDEC for the emission limit requirements, and NYSDEC reviewed and approved the emission limit as adequately implementing RACT for the source. NYSDEC then submitted the source-specific SIP revision package at issue in this action for the EPA approval. In this action, the EPA is determining the emission limit implements RACT for this source. The RACT variance emission limit for the Facility becomes part of the federally enforceable SIP upon the EPA's final approval of this SSSIP.

The EPA has determined that the emission limit of 0.15 lb/MMBtu per hour for each of the Boilers when firing natural gas, and 0.25 lb/MMBtu per hour when firing distillate oil (emissions not to exceed 24 tpy on a rolling 12-month basis) implements RACT because: (1) the 6 NYCRR subpart 227-2 presumptive NO X limit for the Boilers of 0.08 lbs/MMBtu is not economically and technologically feasible for this source; (2) no additional control technologies beyond what are currently used at the Boilers are technically and economically feasible; and (3) the SIP revision contains monitoring and reporting requirements.

The specific details of New York's SIP submittals and the rationale for the EPA's approval action are explained in the EPA's proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's November 17, 2025 proposed rulemaking (90 FR 51263). Within this final rulemaking, the EPA is approving conditions 56, 57, and 58 from Permit ID No. 2-6308-00096/00009 for incorporation by reference into New York's SIP.

The EPA provided a 30-day review and comment period for the November 17, 2025 proposed rule (90 FR 51263). The comment period ended on December 17, 2025. During the 30-day public comment period, the EPA received four comments in response to the EPA's November 17, 2025 proposed rulemaking on New York's SIP revision submittal (90 FR 51263). After reviewing the comments, the EPA has determined that one commenter provided feedback that is outside the scope of our proposed rule or fails to identify any material issue necessitating a response. More specifically, this comment did not raise issues relevant to the EPA's proposed rule, and, therefore, the EPA will not provide a specific response to this comment. The EPA received comments from three commenters that are relevant and significant to the EPA's proposed rule, warranting a response from the EPA. The relevant comments are summarized below and followed by an EPA response. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2025-0290 on the https://regulations.gov website.

One commenter identifies procedural and analytical deficiencies under the incorporation by reference requirements of 1 CFR part 51, the Paperwork Reduction Act (PRA), and the Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA). The comment also requested that the EPA include brief determinations that the rule will not trigger the Unfunded Mandates Reform Act (UMRA) and that the action is not significant under E.O. 12866. The comment also asked if EPA relied on the “good-cause” exemption of the Administrative Procedure Act (APA).

The EPA acknowledges the commenter's petition. The incorporation-by-reference requirements are already addressed in this action, and the APA “good-cause” exemption was not used for this action. With regard to the UMRA, the EPA has complied by making its own determination that this rule will not result in expenditures of $100 million or more, and therefore the Agency does not need to complete a statement under 2 U.S.C. 1532. The RFA and SBREFA are inapplicable to this rule because the EPA has certified that this rule will not have a significant economic impact on a substantial number of small entities. The regulatory analysis provisions of the RFA are only triggered by a threshold determination by the Agency that this rule will have a significant economic impact on a substantial number of small entities. Because the Agency has certified this rule will not have a significant economic impact, section 603 and 604 of the RFA do not apply to this rule. See 5 U.S.C. 605(b). The EPA has complied with the PRA by certifying in the rule that the PRA does not apply because the action does not involve an information collection burden as defined by the Act. See 44 U.S.C. 3502(2). Lastly, the Agency has complied with E.O. 12866 by determining that this rule is not a significant regulatory action as defined in E.O. 12866.

One comment was submitted by James McGuire from Metuchen, New Jersey. The comment states that “[NYSDEC] applied a rigid standard to reject potential alternatives and did not thoroughly analyze all potential emission reduction alternatives; thus, the EPA should not approve the NYSDEC's [SSSIP] controls for the [Boilers] and require the NYSDEC to re-analyze potential alternatives. The EPA has found that New York (and the [Facility]) is an Ozone Transport Region (OTR) and is in non-attainment with the National Ambient Air Quality Standards (NAAQS) for ozone. 42 U.S. Code 7511c. To reduce ozone emissions in this area, the CAA requires emitters to install [RACT] on all ozone-emitting sources. 42 U.S.C. 7511c. To comply with the CAA, the NYSDEC created presumptive RACT requirements that impose emission limits and specific control technologies on ozone emitters. See 6 NYCRR subpart 227-2.4. However, a source can request a source-specific RACT with a higher emission limit if it demonstrates that the presumptive control measures are not technically or economically feasible. See 6 NYCRR subpart 227-2.5(c). NYSDEC's RACT analysis was insufficient and does not justify permitting this source to emit above the presumptive limits because it applied a rigid cost-effective test and did not fully consider all available emission control systems. NYSDEC analyzed three potential emission control options—fuel switching, low-NO X burners, and flue gas recirculation—and found these methods technically feasible, but not economically feasible because each method went above New York's cost reduction threshold. EPA Technical Support Document (TSD) Docket (EPA-R02-OAR-2025-0290) (pages 17 through 19). This analysis, however, does not adequately balance this cost against the environmental harm. Congress designed RACT to require sources to weigh economic feasibility against environmental benefits, not a rigid cost reduction threshold. Given that this facility is in a non-attainment zone for ozone and currently has no emission controls at all, the NYSDEC should have investigated the potential health effects of this source more thoroughly and weighed those costs to the public against the economic costs to the source. Additionally, NYSDEC approved the facility's RACT plan even though the facility did not fully analyze all reasonably available alternatives. According to the Reasonably Available Control Technology, Best Available Control Technology, Lowest Achievable Emission Rate Clearinghouse (RBLC), which lists existing control measures for specific sources, there is an additional emissions control measure, selective catalytic reduction (SCR), which the facility did not discuss in its plan. The NYSDEC excused this, stating that this method was not common and not cost effective. EPA TSD Docket (EPA-R02-OAR-2025-0290) (page 26). This excuse does not hold up, given that Congress sought to require sources to consider all reasonably available emissions controls, not just the most common. 42 U.S.C. 7511a(b)(2). Given that another source successfully implemented this SCR emissions control at the Lackawanna Energy Center in Pennsylvania and recorded their work in the RBLC, it seems that this strategy is reasonably available, although still uncommon. Additionally, it is unclear how the NYSDEC determined that SCR controls are not cost-effective when the facility performed no comparative analysis of this emission control. Thus, the NYSDEC and the facility did not properly analyze all possible alternatives. Because the NYSDEC and the facility did not perform an adequate analysis of the possible alternatives to justify a source specific implementation plan the EPA should not approve this plan and require the NYSDEC and facility to complete a proper comparative analysis. This will ensure that New York continues to reduce their pollution and achieve compliance with the NAAQs to achieve the CAA's statutory goals.”

The EPA acknowledges the commenter's concerns about alternative RACT controls such as SCR. However, NYSDEC confirmed that the size of the boilers (mid-size) was enough to dismiss the evaluation of SCR. SNCR and SCR are only considered for large size boilers. According to the Alternative Control Techniques (ACT) Document—NO X Emissions from Industrial/Commercial/Institutional (ICI) Boilers, “SNCR and SCR controls have been applied primarily to larger boilers or new packaged boilers because these applications offer better control of temperature window and steady load demands.”  1 The Facility analyzed technologically feasible emission control options and determined that none were also economically feasible. The ACT document also states that low-NO X burners (LNB) are the most cost-effective control for single burner water tube boilers, but the Facility's analysis found LNB to be over the State's cost threshold. Therefore, because SCR is less cost-effective than LNB, SCR will also be, by definition, over the State's cost threshold, according to Table 2-7 of the ACT document. Under the State's regulation (DAR-20), NYSDEC established the cost threshold to define economic feasibility (based on 1994 dollars, then adjusted for inflation).

One comment was submitted by Shea Centore that states, “I do not support making an exception and believe they should revise.”

EPA thanks the commenter for their input but without any substantial evidence supporting otherwise, this action will proceed for the reasons set forth above.

The EPA is approving the Facility's SSSIP revision submittal dated June 9, 2023 because the limits included in the SSSIP are demonstrated to implement RACT for emission unit B-OILRS, which represents the Boilers. Based on information provided by NYSDEC, a thorough RBLC review of similar sources and EPA's ACT and Control Techniques Guidelines (CTG), and an analysis of this SSSIP revision, the EPA has determined the Facility's operation under the NYSDEC approved NO X emission limits for the Facility's Boilers implements RACT.

Specifically, the EPA has determined the following limits and associated requirements as implementing RACT. The Facility must: (1) have a maximum total emissions of 24 tons/yr of NO X from the Boilers, on a rolling 12-month basis, with the total monthly NO X emissions for each boiler calculated on a monthly basis; (2) maintain records of monthly NO X emissions in a permanently bound log or in electronic format with reporting requirements annually and reports due 30 days after the reporting period; (3) have a maximum NO X emission rate of 0.15 lb/MMBtu per hour for each of the Boilers when firing natural gas, and 0.25 lb/MMBtu per hour when firing distillate oil; and (4) conduct NO X emission testing once every five years to verify that the actual NO X emissions from a particular boiler are less than the maximum limits per hour when firing low sulfur distillate oil or natural gas.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference revisions to the Facility's Title V operating permit conditions 56, 57, 58 as described in section I and II of this preamble. These documents are available in the docket of this rule through https://www.regulations.gov. Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

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

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

• Is not an Executive Order 14192 (90 FR 9065, February 6, 2025) regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

This rule is exempt from the Congressional Review Act because it is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

For the reasons set forth in the preamble, EPA amends 40 CFR part 52 as follows:

For additional information on regulatory background and the EPA's technical findings relating to RACT for the Facility, the reader can refer to the Technical Support Document (TSD) that is contained in the EPA docket assigned to this Federal Register document.

I. Background

Each State has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each State must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to the EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally approved SIP and are identified in part 52, “Approval and Promulgation of Implementation Plans,” of title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the State regulation approved by the EPA is not reproduced in its entirety in 40 CFR part 52 but is “incorporated by reference.” This means that the EPA has approved a given State regulation or specified changes to the given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows the EPA and the public to monitor the extent to which a State implements a SIP to attain and maintain the NAAQS and to take enforcement action for violations of the SIP.

The SIP is a living document which the State can revise as necessary to address the unique air pollution problems in the State. Therefore, the EPA from time to time must take action on proposed revisions containing new or revised State regulations. A submission from a State can revise one or more rules in their entirety, or portions of rules. The State indicates the changes in the submission (such as by using redline/strikethrough text) and the EPA then takes action on the requested changes. The EPA establishes a docket for its actions using a unique Docket Identification Number, which is listed in each action. These dockets and the complete submission are available for viewing on www.regulations.gov.

On May 22, 1997 (62 FR 27968), the EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by the EPA into each SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing the EPA approval of revisions to a SIP, and streamlined the mechanisms for the EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for the EPA to maintain “SIP Compilations” that contain the federally approved regulations and source-specific permits submitted by each State agency.

The EPA generally updates these SIP Compilations every few years. Under the revised procedures, the EPA must periodically publish an informational document in the rules section of the Federal Register notifying the public that updates have been made to a SIP Compilation for a particular state. The EPA began applying the revised IBR procedures to the Idaho SIP on January 25, 2005 (70 FR 3479) and subsequently published updates to the IBR materials in the Idaho SIP on December 28, 2012 (77 FR 76417), April 1, 2015 (80 FR 17333), July 24, 2020 (85 FR 44741), November 18, 2024 (89 FR 90592), and June 27, 2025 (90 FR 27470).

In this action, the EPA is providing notification of an update to the materials incorporated by reference into the Idaho SIP as of January 6, 2026, and identified in 40 CFR 52.670(c) and (d). This update includes SIP materials submitted by Idaho and approved by the EPA since the last IBR update. See 90 FR 27470 (June 27, 2025). This action also corrects a minor typographical error from a previous EPA approval for the P4 Production LLC, Soda Springs, Idaho facility in which we inadvertently cited the nonexistent permit condition “13.33” instead of the correct citation “13.23.” See 90 FR 42821 (September 5, 2025).

The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs and makes a correction a table in the CFR. Under section 553 of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and corrections) only reflect existing law. Immediate notice of this action in the Federal Register benefits the public by providing the public notification of the updated Idaho SIP Compilation and notification of corrections to the Idaho “Identification of Plan” portion of the CFR. Further, pursuant to section 553(d)(3), making this action immediately effective benefits the public by immediately updating both the SIP Compilation and the CFR “Identification of plan” section (which includes table entry corrections).

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of regulations promulgated by Idaho previously approved by the EPA and federally effective before January 6, 2026, contained in 40 CFR 52.670(c) and (d) as described in section I of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• Is not an Executive Order 14192 (90 FR 9065, February 6, 2025) regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

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

The EPA also believes that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the Idaho SIP Compilation previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, the EPA believes judicial review of this action under section 307(b)(1) is not available.

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

On February 27, 2026 (91 FR 9798), the EPA proposed to approve a revision to Indiana's VOC SIP for Keystone. The company requested that it be permitted to use an oil cover as an equivalent control device for its cold cleaner degreaser, as provided in 326 IAC 8-1-5 and 326 IAC 8-3-2. The oil cover, Aquastrip Fume Seal, is a layer of mineral oil at least one-inch thick floating over the cleaning solvent in a dip tank. The solvent is a mixture of two water miscible compounds, n-Methyl Pyrrolidone and monoethanolamine. The oil cover controls VOC emissions from the dip tank by reducing solvent evaporation. An explanation of the Clean Air Act (CAA) requirements, a detailed analysis of the revisions, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for this proposed rule ended on March 30, 2026. The EPA received no comments on the proposal.

The EPA is approving revisions to VOC emissions regulations for the Keystone aluminum alloy wheel refurbishing and distribution facility in Huntington County, Indiana. More specifically, the EPA is approving Commissioner's Order 2025-Air-01, signed February 19, 2025, into the Indiana SIP. The revision provides for the use of an oil cover as an equivalent VOC emission control system under 326 IAC 8-1-5 and 326 IAC 8-3-2 for its cold cleaner degreaser.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Indiana Commissioner's Order 2025-Air-01 described in section II of this preamble and set forth in the amendments to 40 CFR part 52 below. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

• Is not an Executive Order 14192 (90 FR 9065, February 6, 2025) regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

This rule is exempt from the Congressional Review Act because it is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)

For the reasons stated in the preamble, title 40 CFR part 52 is amended as follows:

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

On August 12, 2022, the Hawaii Department of Health (HDOH) submitted a revision to its SIP, titled “Hawaii State Department of Health Regional Haze State Implementation Plan, Second Planning Period” to address regional haze for the second implementation period. 1 Then, on August 2, 2024, HDOH withdrew its original SIP submission and simultaneously submitted a revised regional haze SIP submission, titled “Hawaii State Department of Health Regional Haze State Implementation Plan, Revision 1, Second Planning Period” (the “2024 Hawaii Regional Haze Plan” or “the Plan”) for the second implementation period. 2 HDOH made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308.

On February 17, 2026, the EPA proposed to partially approve and partially disapprove the 2024 Hawaii Regional Haze Plan. 3 Specifically, we proposed to approve the elements of the 2024 Hawaii Regional Haze Plan related to requirements contained in 40 CFR 51.308(f)(1), (f)(4) through (6), and (g)(1) through (5) and to disapprove the elements of the 2024 Hawaii Regional Haze Plan related to requirements contained in 40 CFR 51.308(f)(2), (f)(3), and (i)(2) through (4). In particular, the EPA noted that Hawaii's long-term strategy included the enforceable shutdown of six boiler units at the Kanoelehua-Hill and Kahului Generating Stations, on the islands of Hawaii and Maui, respectively, and the option to shut down several diesel engine generators at the Maalaea Generating Station on the island of Maui. However, the owner of these units, Hawaiian Electric Company (“Hawaiian Electric” or the “Company”), 4 no longer consents to these shutdowns due to concerns that they would result in potential energy reserve shortfalls which would endanger grid reliability. We proposed to find that approval by the EPA of source closures that are now opposed by the sources' owner (hereinafter “forced” or “unconsented” closures) without just compensation, could violate the Takings Clause of the U.S. Constitution and possibly comparable provisions of State law, and that Hawaii has not provided the necessary assurances that such violations would not occur as required by CAA section 110(a)(2)(E)(i). Therefore, the EPA proposed to find that the long-term strategy did not meet the requirements of CAA 110(a)(2)(E)(i) and therefore did not meet the requirements of 40 CFR 51.308(f)(2). We also noted that, in the absence of an approved long-term strategy, we could not approve the associated reasonable progress goals (RPGs) under 40 CFR 51.308(f)(3) or the FLM consultation requirements under 40 CFR 51.308(i)(2) through (4).

During the public comment period, the EPA received 13 unique comment submissions on the proposed rule. The full text of comments received is included in the publicly posted docket associated with this rulemaking at https://www.regulations.gov. Below we provide brief summaries of some of the significant comments received and our responses. Our response to comments (RTC) document, which is included in the docket for this rule, provides detailed responses to all significant comments received and is a part of the administrative record for this action.

Four commenters expressed overall support for our proposed action. One of these commenter's primary concern is that the unit retirement dates in the SIP may not allow for enough time to successfully procure and place in service replacement projects needed to maintain grid reliability and integrity. Referencing the significant challenges that have arisen for numerous projects on which Hawaiian Electric was relying to replace generation scheduled to retire, Hawaiian Electric urged the EPA to finalize the partial disapproval. Hawaiian Electric, additionally provided information regarding grid reliability and the cost of controls and stated that it “agrees with EPA's additional bases for disapproval.” Another commenter expressed support for the proposed rule because it shows the need to balance State flexibility with Federal oversight, and that States should be able to create plans that fit their own situations, but there also has to be accountability. That commenter supported the EPA's decision to “disapprove the parts of the SIP about the long term strategy and extra emission controls.” A different commenter supported the EPA's proposal because while shutting down electrical facilities “may produce the desired affect [sic],” overall the decision will have backlash and we cannot get rid of one problem by creating another, especially for a State as small as Hawaii.

Other commenters opposed the EPA's proposed partial disapproval. We briefly summarize and respond to these comments below.

The EPA received comments regarding the proposed finding that Hawaii failed to provide necessary assurances that unconsented enforceable source closures would not be prohibited by State or Federal law, as required by CAA section 110(a)(2)(E). The EPA proposed that the unconsented closure of operating sources, without just compensation, could violate the Takings Clause of the U.S. Constitution and possibly comparable provisions of State law, and that Hawaii has not provided necessary assurances that such violations would not occur. Some commenters opposing our proposed partial disapproval of the 2024 Hawaii Regional Haze Plan asserted that partially disapproving a SIP based on lack of necessary assurances under CAA section 110(a)(2)(E) would be unlawful, speculative, arbitrary, and capricious. Those commenters stated that a disapproval based on CAA section 110(a)(2)(E)(i) would be arbitrary and capricious because, among other reasons, Hawaii has a reliance interest in the RHR and the 2019 Guidance that commenters understood as supporting the ability of a State to include enforceable source closure deadlines as part of its long-term strategy for regional haze SIPs. Additionally, commenters emphasized that when a State includes “voluntary” requirements in a SIP, it is unreasonable for States to consider a potential violation of the Takings Clause. Those commenters represented that the necessary assurances argument mischaracterizes closure deadlines as forced or unconsented, and thus that the EPA failed to provide a legal rationale for requiring Hawaii to provide necessary assurances that a “voluntary” closure deadline would not violate the Takings Clause.

On the takings argument, specifically, some commenters argued that “voluntary” closure deadlines do not constitute takings under the Supreme Court's analysis in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) or Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The commenters asserted that our reliance at proposal on per se takings case law is misplaced because the closures are not permanent physical intrusions and do not deprive owners of their properties' complete economic value. As for regulatory takings, commenters stated that we failed in the proposed rulemaking to consider the Penn Central factors. 5

Some commenters also challenged the EPA's authority to decide constitutional questions.

We disagree with the comments questioning the EPA's authority to consider issues involving the Takings Clause under CAA section 110(a)(2)(E)(i). CAA section 110(a)(2)(E)(i) provides that State plans must provide “necessary assurances” that the State “is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof.” The best reading of this provision is that the EPA may not approve a SIP revision that risks violating Federal or State law in the course of implementation and for which the State has not provided necessary assurances that there will be no such violation. The Takings Clause of the Fifth Amendment, applicable to the States via the Fourteenth Amendment, provides that the government shall not take private property for public use without just compensation. Under the CAA's cooperative-federalism framework, States can determine what emission limits and other measures to include in their SIPs as long as they meet the requirements of the Act. 6 However, those state-selected measures must observe statutory and constitutional limits, as contemplated by the text of CAA section 110(a)(2)(E). Thus, in this case, while a constitutional issue is implicated, the fundamental issue is that the SIP lacks necessary assurances under CAA section 110(a)(2)(E)(i). In this context, the EPA disagrees with comments stating that ensuring the requirements of the CAA are satisfied, including the requirement that State plans are supported by necessary assurances regarding compliance with the law, is not within or relevant to the EPA's authority. We are not adjudicating constitutional claims in this final rule. Rather, we are ensuring that our exercise of authority to approve or disapprove the SIP revision before us, thereby making it enforceable as a matter of Federal law, is consistent with applicable requirements and limitations on the EPA's authority.

The EPA disagrees with comments alleging that we improperly characterized the enforceable closure of six boiler units at the Kanoelehua-Hill and Kahului Generating Stations as unconsented closures and thus that we failed to provide a proper legal rationale requiring Hawaii to provide necessary assurances that such “voluntary” closure deadlines would not violate the Takings Clause. 7 According to these commenters, Hawaiian Electric voluntarily decided to close specific units and Hawaii relied on the utilities' decisions when it incorporated enforceable closure provisions into State permits. Therefore, commenters opine that, at the time, Hawaii would not have known to provide necessary assurances that an unconsented source closure would not amount to a taking without just compensation. However, after Hawaii submitted the Plan to the EPA and prior to us acting on it, Hawaiian Electric retracted its decision to voluntarily close the affected units. Specifically, in a letter to the EPA dated August 29, 2025, Hawaiian Electric stated that:

The Company then explained that 115 MW of planned generation had been cancelled on the island of Hawaii, meaning that “grid reliability will be at risk in 2029 following the retirement of the Kanoelehua-Hill boilers.”  9 The Company similarly noted that 20 MW of planned generation had been cancelled for Maui, and thus “a delay to the shutdown of the Kahului boilers and Maalaea generating units would reduce reliability risks,” if there were delays with additional replacement generation projects on Maui. 10 Citing Adequacy of Supply Reports dated January 30, 2025, for Hawaiian Electric Light Company and Maui Electric Company, the Company stated that “retirement of the generating units as required by the SIP deadlines will create higher probability of energy reserve margin shortfalls that increase risk to reliability on both islands.”  11 The Company also emphasized that “each island must be entirely self-sufficient and cannot rely on power by wire transmission from other jurisdictions as is common in the continental United States to address reliability emergencies.”  12

Once the EPA and Hawaii received notification that Hawaiian Electric withdrew its consent for the enforceable closure provisions contained in the long-term strategy, the EPA and Hawaii were on notice that approving the long-term strategy with the inclusion of unconsented closure deadlines for the Kanoelehua-Hill and Kahului Generating Stations into the SIP could result in violation of a Federal requirement and it became incumbent upon Hawaii to provide the necessary assurances that EPA approval of these unconsented source closure would not amount to a taking without just compensation. 13 Without any representations from Hawaii to the contrary in the Plan, it is not possible for the EPA to approve the long-term strategy as meeting all applicable requirements of the Act because the submission does not contain necessary assurances that Hawaii “is not prohibited by any provision of Federal . . . law” from executing the unconsented source closures at the Kanoelehua-Hill and Kahului Generating Stations with the imprimatur of Federal approval. The long-term strategy in the 2024 Hawaii Regional Haze Plan is not compliant with all applicable requirements of the CAA and, because of that defect, also does not meet the requirements of 40 CFR 51.308(f)(2). As a result, the EPA is disapproving the long-term strategy and associated elements of the Plan.

Moreover, the EPA disagrees with commenters' representations that the lack of the necessary assurances required by the CAA is not a lawful basis to disapprove the unconsented source closures at the Kanoelehua-Hill and Kahului Generating Stations on the ground that the disapproval would conflict with the RHR and 2019 Guidance document. 14 Specifically, commenters state that the RHR provides for the consideration of additional factors, including source retirement and replacement schedules. 15 Similarly, the comments note that the 2019 Guidance indicates that a State can shorten the remaining useful life of a source for purposes of a control analysis to account for an announced retirement but only if the State makes the retirement federally enforceable. However, neither the RHR nor the CAA's regional haze provisions reference or contemplate forced closures. Moreover, the 2019 Guidance document referenced by commenters does not address the situation here. Rather, the 2019 Guidance states that “ [i]f a source is expected to close by December 31, 2028, under an enforceable requirement, a State may consider that to be sufficient reason” not to select the source for a four-factor analysis. 16 The 2019 Guidance also states that, “[i]n the situation of an enforceable requirement for the source to cease operation before the end of the useful life of the controls under consideration, a State may use the enforceable shutdown date as the end of the remaining useful life.”  17 Nothing in the 2019 Guidance suggests that States may force unconsented closures as part of a regional haze plan. We therefore do not agree with comments suggesting that disapproval of the unconsented closures at the Kanoelehua-Hill and Kahului Generating Stations reflects a change in the EPA's position with respect to such closures. Circumstances change, and insisting on the unconsented plant closures at the Kanoelehua-Hill and Kahului Generating Stations under these circumstances threatens violations of Federal law, including additional CAA provisions instructing states and the EPA to account for the consequences of requirements adopted to promote regional haze goals.

Even if Hawaii had a legitimate reliance interest in the RHR and the 2019 Guidance document and shortened the remaining useful life of a source in its control analysis accordingly, the commenters fail to address that a SIP containing a forced shortened remaining useful life for a source does not meet all the requirements of the CAA, including ensuring that a SIP or SIP revision includes necessary assurances consistent with CAA section 110(a)(2)(E)(i). The EPA can only approve a SIP revision if it meets all the requirements of the CAA. 18 This includes ensuring that the SIP contains the necessary assurances under CAA section 110(a)(2)(E)(i) that the implementation of the SIP is not prohibited by Federal or State law, including here, prohibitions on uncompensated takings of property interests without consent. Without these assurances, the EPA lacks authority to approve the long-term strategy containing unconsented closure provisions for the Kanoelehua-Hill and Kahului Generating Stations.

Finally, some commenters assert that the EPA inappropriately relied on Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) and Horne v. Department of Agriculture, 576 U.S. 351 (2015), which involved physical per se takings, to argue that a taking cannot occur when a source voluntarily agrees to a closure and that the cases are inapplicable to the circumstances in Hawaii, positing that there is not a physical or per se taking. For the reasons described elsewhere in this document and the RTC, we do not agree that the closures in the Plan are voluntary. Moreover, commenters misunderstand these cases. Cedar Point Nursery, for example, established that a per se taking may occur when the government deprives property owners of exclusive rights to even a portion of their property, in that case, by forcing owners to allow union organizers onto the property for relatively brief periods. Commenters do not explain or point to necessary assurances provided by Hawaii in the Plan that approving unconsented closure of units at the Kanoelehua-Hill and Kahului Generating Stations would not similarly involve or amount to any form of per se taking.

Some commenters cited to Lucas v. South Carolina Coastal Council in support of their assessment that because approval of the closure deadline into Federal law would not deprive the utility of “all economically beneficial or productive use of land,” compensation would not be required under the Federal Takings Clause. 19 But Lucas applies only to instances of total deprivation of use, and it relied on “background principles of State's law of property and nuisance,” which are not the issues in this action. 20 An unconsented deadline to close electric generating units reasonably appears to be the equivalent to a per se taking, permanently restricting Hawaiian Electric's right over its property. Critically, the EPA is not adjudicating constitutional claims in this final rule. Rather, we are finding that Hawaii failed to provide necessary assurances that the unconsented closure permit provisions for the Kanoelehua-Hill and Kahului Generating Stations are not unlawful.

We recognize the U.S. Supreme Court has explained in several cases that there are two categories of action that can result in a per se taking: (1) where the government requires an owner to suffer a permanent physical invasion of property; and (2) when regulations completely deprive an owner of “all economically beneficial us[e]” of property. 21 In this case, we disagree with commenters that because Horne and Cedar Point involve physical takings, they are inapplicable. Under the Court's jurisprudence, a physical taking occurs when the government physically appropriates or occupies private property for public use. As explained below, the Court in Horne and Cedar Point addressed questions that are pertinent to the facts at issue in the Hawaii action.

According to commenters, closure deadlines are not a physical appropriation of property for various reasons. In Cedar Point, a government regulation restricted an owner's “right to exclude” from the owner's property. 22 The Court emphasized the importance of this right, and how the appropriation of the right to physically invade private property requires compensation. 23 Because incorporating the unconsented closures at the Kanoelehua-Hill and Kahului Generating Stations into the SIP would make the unconsented closures federally enforceable, this could cause the permit provisions to appropriate the Company's right to control the operation of its facilities. The CAA and RHR do not require sources to close to meet reasonable progress. Hawaii did not provide necessary assurances in the Plan that the enforceable closures at the Kanoelehua-Hill and Kahului Generating Stations would not involve the type of property right deprivation at issue in Cedar Point.

In Horne, the Court determined that whenever there is a physical appropriation, it is not right to question whether the appropriation deprives the owner of all economically valuable use of the item taken. 24 This question was also addressed in Tahoe, where the Court determined that if the government takes possession of an interest in property for public purpose, “it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.”  25 Similarly, the unconsented closure of Hawaiian Electric's units would force the utility to change the use of its property—which would be comparable to the government deciding how to dispose of the goods set aside in Horne —even though a source closure is not a statutory or regulatory requirement under CAA section 169A and 40 CFR 51.308(f). Thus, the EPA disagrees with commenters' proposition that Cedar Point and Horne are inapplicable to the unconsented closures at the Kanoelehua-Hill and Kahului Generating Stations in the 2024 Hawaii Regional Haze Plan.

As already discussed, it is reasonable to conclude that the facts at issue involve a per se taking. Therefore, the framework of Penn Central, 26 which governs regulatory takings, is likely not directly relevant to this final action, as “[i]t is `inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a “regulatory taking,” and vice versa.' ”  27 Nonetheless, for completeness, we also consider whether the unconsented closure of the Kanoelehua-Hill and Kahului units, absent necessary assurances under CAA section 110(a)(2)(E)(i), could constitute a regulatory taking.

Without necessary assurances under CAA section 110(a)(2)(E)(i), there is no demonstration that neither a total nor partial regulatory taking will occur from implementation of the unconsented closure provisions for Kanoelehua-Hill and Kahului Generating Stations contained in the 2024 Hawaii Regional Haze Plan. A total regulatory taking would occur if the closure would fully deprive the source owner of all economic use of the land under the standard described in Lucas. 28 “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”  29 The U.S. Supreme Court has defined “a regulation which `denies all economically beneficial or productive use of land' will require compensation under the Takings Clause” and is a “regulation that goes too far.”  30 Without necessary assurances under CAA section 110(a)(2)(E)(i), it is not possible for the EPA to ensure that approval of the unconsented closures at the Kanoelehua-Hill and Kahului Generating Stations will not constitute a regulatory taking under the U.S. Constitution, given the administrative record. For this reason, the EPA is authorized under the CAA to disapprove Hawaii's long-term strategy to avoid a takings situation. The effect of such a taking could result in permanent deprivation of property and would be a textbook example of a “regulation going too far.”  31

A partial regulatory taking results when a regulation hinders the use of property but does not deprive the owner of all economically beneficial use. Here, the analysis involves considering whether approving the closures in the long-term strategy into the SIP results in (1) a significant economic impact on the claimants; (2) interference with distinct investment-backed expectations; and (3) shares characteristics with similar governmental actions considered takings. 32 Without necessary assurances to the contrary in the Plan, it is not possible for the EPA to ensure that approval of the long-term strategy containing unconsented closure provisions will not constitute a partial regulatory taking under the U.S. Constitution, given the administrative record.

Additionally, building on the analysis earlier in this section, the EPA disagrees with commenters' conclusion that the Penn Central test does not support a determination that a partial regulatory taking would result if the EPA codified Hawaii's unconsented closure provisions for the Kanoelehua-Hill and Kahului Generating Stations. A use restriction may constitute a taking if not reasonably necessary to the effectuation of a substantial public purpose or if it has an unduly harsh impact upon the owner's use of the property. 33 First, contrary to commenters` statements, the purpose of the CAA's regional haze provisions is to address visibility impairment in Class I areas, not to address public health. Moreover, the unconsented closure of units at the Kanoelehua-Hill and Kahului Generating Stations could threaten grid reliability on the islands of Hawaii and Maui. 34

Second, the economic impact of the government regulation “is determined by comparing the total value of the affected property before and after the government action.”  35 Here, if the EPA approves unconsented closure requirements for the Kanoelehua-Hill and Kahului units into the SIP, they would be federally enforceable, and would diminish the units' economically beneficial use and value. Thus, after considering the Penn Central factors in relation to the unconsented closures of the Kanoelehua-Hill and Kahului Generating units, it is not possible for the EPA to ensure that approval of these unconsented closures will not constitute a partial regulatory taking under the U.S. Constitution. An uncompensated partial regulatory taking violates Federal law and without the CAA section 110(a)(2)(E)(i) necessary assurances to the contrary, the EPA does not have the authority to approve these uncompensated unconsented closures into the SIP.

The EPA shall approve a SIP revision as a whole only if it meets all applicable CAA requirements. 36 Given the necessary assurances requirement in CAA section 110(a)(2)(E)(i) and the withdrawal of consent from Hawaiian Electric for closure of its units, Hawaii is required to provide necessary assurances to the EPA to ensure that approval of the unconsented closure provisions at the Kanoelehua-Hill and Kahului units is not prohibited by Federal law including the Takings Clause of the U.S. Constitution. However, Hawaii did not provide as part of the Plan the necessary assurances required by CAA section 110(a)(2)(E)(i) that approval of the long-term strategy containing these unconsented closure provisions will not violate Federal law by effecting uncompensated takings per se or a partial or full regulatory takings. Because the unconsented closures at the Kanoelehua-Hill and Kahului Generating Stations are not approvable under CAA section 110(a)(2)(E)(i), we are disapproving Hawaii's long-term strategy and related elements of the Plan.

Commenters asserted that grid reliability is not a relevant consideration for regional haze plans and that Hawaiian Electric had not adequately substantiated its concerns regarding grid reliability. As noted in the proposal, the EPA's partial disapproval of the 2024 Hawaii Regional Haze Plan is not based on Hawaii's consideration of the energy impacts associated with the source closures. 37 Nonetheless, we maintain that Hawaii did not independently assess the source closures under the “energy and non-air quality environmental impacts of compliance” statutory factor, including impacts on maintaining grid reliability and Hawaiian Electric's ability to meet energy demand.

Despite the shortcomings in Hawaii's analysis of grid reliability concerns, and the significant concerns related to grid reliability if the contested closure is enacted, the EPA recognizes that our prior statements may have generated a reliance interest that led to how Hawaii developed the Plan. 38 For example, the EPA's 2019 Guidance provided a limited scope of considerations generally involved under the “energy and non-air quality factor” and it was reasonable for Hawaii to rely on the interpretation provided in that guidance-although the 2019 Guidance did not prohibit the consideration of grid reliability.

One commenter opposed our proposed finding that the best reading of the phrase “control measures” in CAA section 110(a)(2)(A) and 169A(b)(2) does not encompass the authority to force a source to close, or to close on timeframe not agreed to by the owner/operator. Following our careful consideration of these comments, the EPA is no longer relying on the rationale that forced source closures contained in the 2024 Hawaii Regional Haze Plan are inconsistent with “control measures” in CAA sections 110 and 169A and that rationale is not an independent basis for our final disapproval of the 2024 Hawaii Regional Haze Plan. However, the EPA is not taking the position in this rule that forced source closures are allowed under the CAA. We note that the use of unconsented closure deadlines is different in kind from the practice of recognizing consensual, certain closures in the near future as a basis for limiting the analysis of a source to a shorter period of remaining useful life. Instead, as explained in this document and the RTC, the use of forced closures to satisfy regional haze requirements is, at minimum, legally suspect under the CAA and other applicable sources of Federal law.

For the reasons stated in the proposal, the RTC document and in this document, we are partially approving and partially disapproving the 2024 Hawaii Regional Haze Plan. Specifically, we are approving the elements of the 2024 Hawaii Regional Haze Plan related to requirements contained in 40 CFR 51.308(f)(1), (f)(4) through (6), and (g)(1) through (5) and disapproving the elements of the 2024 Hawaii Regional Haze Plan related to requirements contained in 40 CFR 51.308(f)(2), (3), and (i)(2) through (4). A FIP or an approved SIP revision will be required to satisfy these outstanding regional haze rule requirements. 39

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

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

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

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by State law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by State law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by State law. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, will result from this action.

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

This action does not have Tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction, and will not impose substantial direct costs on Tribal governments or preempt Tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it merely partially approves and partially disapproves State law as meeting Federal requirements. Furthermore, the EPA's Policy on Children's Health does not apply to this action.

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

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026 Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

For the reasons stated in the preamble, the EPA amends chapter I, title 40 of the Code of Federal Regulations as follows:

On November 20, 2025, 90 FR 52313, the EPA published a notice of proposed rulemaking (NPRM). In the NPRM, EPA proposed approval of the negative declarations submitted by District of Columbia Department of Energy and Environment (DCDOEE). The negative declarations certify that there are no existing large municipal waste combustors (LMWC), crude oil and natural gas facilities (ONG), or electric utility generating units (EGU) subject to sections 111(d) and 129 of the CAA within the jurisdiction of the District of Columbia.

The CAA requires State regulatory agencies to implement emission guidelines and associated compliance times using a State plan developed under sections 111(d) and 129 of the CAA. Section 111(d) of the CAA establishes standards of performance for certain existing sources. Air pollutants included under this section are those which have not already been established as air quality criteria pollutants via 42 U.S.C. 7408(a) or hazardous air pollutants via 42 U.S.C. 7412. Section 111(d)(1) of the CAA requires States to submit to the EPA for approval a plan that establishes standards of performance. The plan must provide that the State will implement and enforce the standards of performance.

Section 129 of the CAA requires emission guidelines to be promulgated for solid waste incineration units, including LMWCs. Section 129 of the CAA mandates that all plan requirements be at least as protective as the promulgated emission guidelines, including fixed final compliance dates, fixed compliance schedules, and title V permitting requirements for all affected sources. Section 129 of the CAA also requires the States to submit plans to the EPA within one year after promulgation of the emission guidelines and compliance times.

The EPA prescribes a Federal plan if a State does not submit a State-specific plan or the submitted plan is disapproved. If a State has no designated facilities for a standards of performance source category, it may submit a negative declaration in lieu of a State plan for that source category in accordance with 40 Code of Federal Regulations (CFR) 60.23(b), 60.23a(b) and 62.06.

The DCDOEE submitted negative declarations to the EPA on July 19, 2024, and August 28, 2024, certifying that there are no existing large municipal waste combustors, crude oil and natural gas facilities, or electric utility generating units in its jurisdiction that are subject to the requirements of 40 CFR part 60 subpart Cb, subpart OOOOc, and subpart UUUUb, respectively. For additional background information on DCDOEE's negative declaration, see the documents that are available at Regulations.gov, Docket ID No. EPA-R03-OAR-2025-1746.

The EPA received one set of comments on the November 20, 2025, NPRM. See 90 FR 52312. A summary of the comments and the EPA's responses are included in this section. A copy of the set of comments can be found in the docket for the rulemaking action.

Comment 1: The comment suggested that the EPA invoked the “good cause” exception under 5 U.S.C. 553(b)(B) to forgo notice and comment and publish this action as a direct final rule. The comment urged EPA to withdraw its action, republish the action as a proposal, and provide “the APA's ordinary process.”

Response 1: The EPA disagrees with this comment. This action was published as a notice of proposed rulemaking, 90 FR 52312, November 20, 2025, and did not include or otherwise mention the “good cause” exception under 5 U.S.C. 553(b)(B). The comment period for this NPRM was open from November 20, 2025 to December 22, 2025, as stated in the DATES section of the NPRM. The EPA is now finalizing that proposed rulemaking.

Comment 2: The comment stated that the record for this action is incomplete and that EPA did not “provide a reasoned basis for approving each negative declaration.” The comment further asserted that the docket for this action should include: DCDOEE's signed negative declaration letters, with dates and specific identification of the relevant emission guidelines; the inventory or survey EPA used to conclude that no designated facilities exist within DCDOEE's jurisdiction; a clarification of applicability determinations; and any “data checks against national datasets.” The comment requests that EPA supplement the docket with the complete State submissions and corroborating review materials.

Response 2: The EPA disagrees that the record for this action is incomplete. The EPA included DCDOEE's dated negative declaration letters in the docket for this action, EPA-R03-OAR-2025-1746. The NPRM for this action detailed the relevant emissions guidelines corresponding to each negative declaration submitted by DCDOEE: (1) 40 CFR part 60, subpart OOOOc for Existing Crude Oil and Natural Gas Facilities; (2) 40 CFR part 60, subpart UUUUb for Electric Utility Generating Units; and (3) 40 CFR part 60, subpart Cb for Large Municipal Waste Combustors That are Constructed on or Before September 20, 1994. There were no applicability determinations submitted by DCDOEE in its negative declaration letters, nor did the EPA receive any other requests for an applicability determination related to this matter. 1 The regulations at 40 CFR part 60, subpart B (Subpart B), contain general provisions applicable to the adoption and submittal of State plans for controlling designated pollutants. Additionally, 40 CFR part 62, subpart A, provides the procedural framework by which the EPA will approve or disapprove such plans submitted by a State. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the State may submit a letter of certification to that effect ( i.e., a negative declaration) in lieu of a plan. The negative declaration exempts the State from the requirements of subpart B that require the submittal of a CAA section 111(d)/129 plan. Accordingly, the EPA did not utilize any additional surveys, inventories, or national dataset checks to verify DCDOEE's assertion that there are no affected or designated facilities in its jurisdiction.

Comment 3: The comment stated that EPA must either prepare an Initial Regulatory Flexibility Analysis (RFA) or certify that the rule will have no significant economic impact on a substantial number of small entities and provide a “statement providing the factual basis for such certification.” The comment also stated that EPA should explain which categories of small entities it considered in its determination, and why “codifying negative declarations has no foreseeable economic impacts.”

Response 3: The EPA is certifying that this action will not have a significant economic impact on a substantial number of small entities. See 90 FR 52312, November 20, 2025. Because the EPA has certified that this action will not have a significant economic impact, Sections 603 and 604 of the RFA do not apply. 5 U.S.C. 605(b). The EPA provided DCDOEE's negative declaration letters in the docket for this action, EPA-R03-OAE-2025-1746. These letters certify that no affected facilities are located within DCDOEE's jurisdiction. If such facilities were found to be within DCDOEE's jurisdiction, they would be subject to the applicable rules and requirements. Codifying a negative declaration merely memorializes the EPA's receipt of a negative declaration letter.

Comment 4: The comment requested that EPA clarify the applicability of the Paperwork Reduction Act, UMRA, and Executive Order 12866. The comment requests that EPA also clarify whether any ongoing inventory or verification activities are assumed at the State or local level as a condition of maintaining an accurate negative declaration and confirm that no reporting or recordkeeping is required by this approval. The comment also states, “If EPA concluded UMRA does not apply because the action does not impose enforceable duties or costs of $100 million or more, it should expressly state that determination and its rationale under 2 U.S.C. 1532.” The comment also requests, in relation to Executive Order 12866, that “EPA should, at minimum, identify whether OIRA was consulted and confirm that no significance criterion is triggered.”

Response 4: Section 129 of the CAA requires the EPA to promulgate performance standards and emission guidelines pursuant to CAA section 111(d) for all categories of existing solid waste incineration units to control certain pollutants. State regulatory agencies implement the emission guidelines and compliance times using a State plan developed under sections 111(d) and 129 of the CAA. Section 111(d) of the CAA establishes general requirements and procedures on State plan submittals for the control of designated pollutants. 40 CFR part 60, subparts B and Ba set forth the procedures for adoption and submittal of the State plan. Section 129(b)(2) of the CAA mandates that all State plan requirements be at least as protective as the promulgated emission guidelines. Section 129(b)(2) of the CAA also requires that state plans be submitted to the EPA within one year after the EPA's promulgation of the emission guidelines and compliance times. Under CAA section 129(b)(3), if a State does not submit an approvable State plan within two years after the promulgation of the emission guidelines, the Federal plan applies in that State until the State has an approved State plan. A State may submit a negative declaration in lieu of a State plan if there are no sources in the State subject to the promulgated rule. Because emissions guidelines set the standards for existing sources, once a State has determined that there are no existing sources, the only way for there to be existing sources is if they are unknown to the State. In such cases, these discovered sources will be subject to the Federal plan until the State submits an approvable State plan.

While DCDOEE may maintain inventories for emission sources subject to these rules, the approval of this negative declaration does not impose any additional reporting or recordkeeping requirements. The Paperwork Reduction Act (PRA) does not apply because this action does not involve an information collection burden as defined by the PRA.

With regard to UMRA, UMRA does not apply because this action does not impose any enforceable duties or costs greater than $100 million.

With regard to Executive Order 12866, the EPA has determined that this rule is not a significant regulatory action as defined in Executive Order 12866. It was therefore not submitted to the Office of Management and Budget (OMB) for review.

In this action, the EPA is approving the negative declarations submitted by DCDOEE in lieu of its CAA (129)/111(d) State plans for the LMWC, ONG, and EGU Emission Guidelines to satisfy the requirements of 40 CFR 60.23(b), 60.23a(b), and 62.06. The Code of Federal Regulations is being amended at 40 CFR part 62 subpart J to reflect this approval.

Under the CAA, the EPA has the authority to approve a 129/111(d) negative declaration in lieu of a State plan that complies with the provisions of the CAA and applicable Federal regulations. See 40 CFR 62.06. In reviewing CAA section 129/111(d) negative declaration letters, EPA's role is to approve State choices, provided that they meet the criteria of the CAA and of EPA's implementing regulations. Accordingly, this action merely notifies the public of the EPA's receipt of DCDOEE's negative declarations for large municipal waste combustors, crude oil and natural gas facilities, and electric utility generating units and does not impose additional requirements. For that reason, this action:

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

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

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

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

This action does not contain any unfunded mandate, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and does not significantly or uniquely affect small governments.

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

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

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

This action does not involve technical standards. This action is not subject to the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.

This action does not have Tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

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. The EPA will submit a report containing this action 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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2)).

For the reasons set forth in the preamble, EPA amends 40 CFR part 62 as follows:

Section 129 of the Clean Air Act (CAA or the Act) directs the Administrator to develop regulations under that section and section 111(d) of the Act to limit emissions of nine air pollutants (particulate matter, carbon monoxide, dioxins/furans, sulfur dioxide, nitrogen oxides, hydrogen chloride, lead, mercury, and cadmium) from four categories of solid waste incineration units: municipal solid waste incinerators; hospital, medical, and infectious solid waste incinerators; commercial and industrial solid waste incinerators; and other solid waste incinerators.

On December 1, 2000, EPA promulgated new source performance standards (NSPS) and EG to reduce air pollution from CISWI units, which are codified at 40 CFR part 60, subparts CCCC and DDDD, respectively. See 65 FR 75338. EPA revised the NSPS and EG for CISWI units on March 21, 2011. See 76 FR 15704. Following promulgation of the 2011 CISWI rule, EPA received petitions requesting that it reconsider numerous provisions in the rule. EPA granted reconsideration on certain issues and, subsequently, on February 7, 2013, it promulgated a CISWI reconsideration rule. See 78 FR 9112. Subsequently, EPA received petitions to reconsider certain provisions of the NSPS and EG for CISWI units. On January 21, 2015, EPA granted reconsideration on four specific issues and subsequently, on June 23, 2016, it finalized reconsideration of the CISWI NSPS and EG. See 81 FR 40956.

Following promulgation of the June 23, 2016, final action, EPA received requests from industry stakeholders and implementing agencies to clarify various issues with implementation of the standards. In addition, EPA identified certain procedural issues, including testing and monitoring issues and inconsistencies within the rules, that required further clarification or correction. To address the issues, EPA proposed amendments on June 15, 2018, to several provisions of the 2016 CISWI NSPS and EG. See 83 FR 28068. On April 16, 2019, EPA finalized technical amendments to the June 15, 2018, proposal by promulgating clarifying changes and corrections to the 2016 CISWI rule. See 84 FR 15846.

Section 129(b)(2) of the CAA requires states to submit to EPA for approval state plans and revisions that implement and enforce the EG—in this case, 40 CFR part 60, subpart DDDD. State plans and revisions must be at least as protective as the EG and become federally enforceable upon approval by EPA. The procedures for submittal and adoption of state plans and revisions are codified in 40 CFR part 60, subpart B.

South Carolina submitted a State plan to implement and enforce the EG for existing CISWI units in the State on December 19, 2014, with a subsequent supplemental revision on September 17, 2018, an addendum on June 19, 2019, and a final updated State plan on November 5, 2019. 1 In a notice of proposed rulemaking published on April 26, 2024 ( See 89 FR 32387), EPA proposed to approve South Carolina's State plan. Additional information concerning South Carolina's State plan submission and the rationale for EPA's actions for this final rule are explained in the April 26, 2024, proposed rulemaking. Comments on the proposed rulemaking were due on or before May 28, 2024. EPA received no comments on the proposed action.

EPA is finalizing approval of South Carolina's section 129 State plan for CISWI units in the State, as submitted on December 19, 2014, and supplemented on September 17, 2018, June 19, 2019, and November 5, 2019. The State plan was submitted in full compliance with the requirements of sections 111(d) and 129 of the CAA, and 40 CFR part 60, subparts B and DDDD. This approval is based on the rationale provided in the NPRM associated with this rulemaking. EPA's approval is in accordance with the general provisions of plan approval found in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A, and is pursuant to the Agency's role under 42 U.S.C. 7411(d) and 7429(b). EPA's approval of South Carolina's State plan is limited to those CISWI units that meet the criteria established in 40 CFR part 60, subpart DDDD, and grants the State authority to implement and enforce the performance standards and source requirements of the EG, except in those cases where authorities are specifically reserved for the EPA Administrator or his designee. Authorities retained by the EPA Administrator are those listed in 40 CFR 60.2542.

In accordance with requirements of 1 CFR 51.5, EPA is finalizing regulatory text that includes incorporation by reference of South Carolina Code of Regulations (S.C. Code Regs.) ch. 61-62.60, Subpart DDDD, which became effective in the State of South Carolina on August 23, 2019. This incorporation establishes emission standards and compliance times for the control of air pollutants from certain CISWI units that commenced construction on or before June 4, 2010, or commenced modification or reconstruction after June 4, 2010, but no later than August 7, 2013. S.C. Code Regs. ch. 61-62.60, Subpart DDDD provides details regarding South Carolina's adoption of the applicability provisions, compliance times, emission guidelines, operational standards, test methods, compliance provisions, monitoring requirements, reporting guidelines, recordkeeping guidelines, and definitions contained in EPA's emission guidelines for existing CISWI units (40 CFR part 60, subpart DDDD). The emissions standards and compliance times established within the South Carolina State plan are at least as stringent as those required by the EG for existing CISWI units subject to Subpart DDDD. EPA has made, and will continue to make, these materials generally available through the docket for this action, EPA-R04-OAR-2021-0258, at https://www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). This incorporation by reference has been approved by the Office of the Federal Register as of June 29, 2026, and the plan is federally enforceable under the CAA as of the effective date of this final rulemaking.

Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the CAA and applicable Federal regulations. In reviewing 111(d)/129 plan submissions, EPA's role is to approve State choices, provided they meet the criteria of the CAA and EPA's implementing regulations. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

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

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

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

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

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

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

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

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

Because the South Carolina State plan for existing CISWI units is not approved to apply and does not impose additional requirements beyond those imposed by state law, this action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons stated in the preamble, EPA amends 40 CFR part 62 as follows:

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

The EPA designated the Detroit, Michigan area (Detroit area) as Marginal nonattainment for the 2015 ozone NAAQS on June 4, 2018 (83 FR 25776) (effective August 3, 2018). The Detroit area includes Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties. On February 1, 2023 (88 FR 6633), the EPA determined that the Detroit area failed to attain the 2015 ozone NAAQS by its Marginal attainment date of August 3, 2021, based on the area's design value as of the attainment date ( i.e., monitoring data from 2018-2020). As a result of that determination, the area was reclassified by operation of law to Moderate nonattainment. On January 3, 2022, the Michigan Department of Environment, Great Lakes, and Energy submitted a request to redesignate the Detroit area to attainment of the 2015 ozone NAAQS based on monitored attainment of the NAAQS for the 2019-2021 time period. On May 19, 2023 (88 FR 32594), the EPA finalized redesignation of the Detroit area to attainment of the 2015 ozone NAAQS.

On July 17, 2023, Sierra Club petitioned the United States Court of Appeals for the Sixth Circuit (Court) for review of this action. On December 5, 2025, the Court concluded that EPA erred with respect to its legal interpretation of Clean Air Act (CAA) section 107(d)(3)(E)(v), which requires that a State “has met” all requirements applicable to the area as a prerequisite to redesignation. The Court vacated the EPA's redesignation of the Detroit area and issued its mandate in the case on February 24, 2026. See Sierra Club v. EPA, 161 F.4th 934 (6th Cir. 2025). The EPA is therefore amending 40 CFR 81.323 to reflect the Court's decision.

The EPA is amending the listing in 40 CFR 81.323 to indicate that the Detroit area is designated as nonattainment for the 2015 ozone NAAQS, with a classification of Moderate.

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

This action is not subject to Executive Order 14192 because it is taken pursuant to a decision of the United States Court of Appeals for the Sixth Circuit and merely reflects the Court's action in reinstating the area's previous designation, an action that affects the attainment status of a geographical area, and is exempt from review under Executive Order 12866.

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This action will not impose any requirements on small entities beyond those imposed by state law.

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

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

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

This action is not subject to Executive Order 13045 because it is not 3(f)(1) significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it approves a State program.

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

This rulemaking does not involve technical standards.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 28, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons stated in the preamble, title 40 CFR part 81 is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

EPA is issuing this rulemaking under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. FFDCA section 408(c)(2)(A)(i) allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” FFDCA section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider, among other things, “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID numbers EPA-HQ-OPP-2025-0089, EPA-HQ-OPP-2025-0099, and EPA-HQ-OPP-2025-0100, in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before July 28, 2026.

EPA's Office of Administrative Law Judges (OALJ), in which the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Order Urging Electronic Filing and Service,” dated December 3, 2025, which can be found at https://www.epa.gov/system/files/documents/2025-12/2025-12-03-order-urging-electronic-filing-and-service.pdf. Although EPA's regulations require submission via U.S. Mail or hand delivery, EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/OA/EAB/EAB-ALJ_upload.nsf.

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

In the Federal Register of September 5, 2025 (90 FR 42896) (FRL-12474-06-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of pesticide tolerance petitions (PP 4F9125, 4F9126, and 4F9127) by Pioneer Hi-Bred International Inc.,7300 NW 62nd Avenue, P.O. Box Johnston, Iowa 50131. The petition requested that 40 CFR part 174 be amended by establishing exemptions from the requirement of a tolerance for residues of the Bacillus thuringiensis Cry1B.34.1, Bacillus thuringiensis Cry1B.61.1, and Adiantum trapeziforme var. braziliense IPD083Cb proteins in or on all food and feed commodities when used as plant incorporated protectants (PIP). That document referenced a summary of the petitions submitted by the petitioner Pioneer, which is available in the dockets.

One comment was received on the notice of filing. EPA's response to the comment is discussed in Unit III.C.

EPA evaluated the available toxicological and exposure data on the Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which the EPA relied and its risk assessment based on those data can be found within the document entitled “Product Characterization Review and Human Health Risk Assessment of the Insecticidal Plant-Incorporated Protectant (PIP) Active Ingredients Cry1B.34.1, Cry1B.61.1, and IPD083Cb, the PIP Inert Ingredient GM-HRA, and the Genetic Material Necessary (PHP90315 T-DNA) for their Production in Event COR23134 Soybean (OECD Unique Identifier: COR-23134-4)” (Human Health Risk Assessment). This document, as well as other relevant information, are available in the docket for this action as described under ADDRESSES .

Cry1B.34.1 and Cry1B.61.1 are both derived from the bacterium Bacillus thuringiensis ( Bt ) and IPD083Cb is derived from Adiantum trapeziforme var. braziliense (maidenhair fern). All three of these PIPs are intended to provide protection from feeding damage caused by certain lepidopteran insect pests. Similar to other insecticidal crystal proteins derived from Bt, the pesticidal mode of action effected by both Cry1B.34.1 and Cry1B.61.1 is pore formation in the midgut of the target pest leading to death. The Cry1B.34.1 protein in soybean was determined to be identical to the Cry1B.34 active ingredient in maize, for which an exemption from tolerance was previously established (40 CFR 174.553). The three-domain core of Cry1B.34.1 is intact and as such is expected to exhibit the mode of action and activity spectrum of Cry1B.34 in maize. Cry1B.61.1 is a modified Cry1B-class protein with changes introduced into the amino acid sequence to improve effectiveness against the target pests. The IPD083Cb protein is a fern-derived insecticidal protein whose mode of action is expected to be similar to that of the Bt Cry proteins. Characterization of fern-derived IPD proteins found that, while they share no significant sequence homology to Cry proteins, they do exhibit high structural and functional similarity to domains I and II of the tryptic core of three-domain Cry proteins, and the insecticidal activity was found to be specific to lepidopteran pests.

The most likely route of exposure to these plant-incorporated protectants are dietary, via consumption of food plants producing the three PIPs. However, Cry1B.34.1, Cry1B.61.1, and IPD083Cb are expected to be of negligible toxicity and are unlikely to be food allergens. The lack of toxicity is due to: (1) the results of the acute oral toxicity studies, which showed no toxicity to mice after exposure to three oral doses totaling 5000 mg/kg/bw (EPA Toxicity Category IV); and (2) bioinformatic analyses of the proteins that showed none of Cry1B.34.1 and Cry1B.61.1 of IPD083Cb were found to exhibit significant homology to any known mammalian toxins. Likewise, the potential for allergenicity is low because: (1) bioinformatic analyses indicate no biologically relevant similarity between the Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins and any known allergens; (2) Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins were fully and rapidly digested when exposed to digestive enzymes (gastric proteases); (3) Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins behave with a predictable tendency toward protein denaturation and loss of functional activity at elevated temperatures, indicating that they are heat labile and will likely denature in the course of normal thermal treatment during food preparation; and (4) Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins are not glycosylated. Current scientific knowledge suggests that protein glycosylation may contribute to protein stability and enhance its allergenic potential.

Oral exposure to the Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins via drinking water is considered unlikely. Cry1B.34.1, Cry1B.61.1, and IPD083Cb are proteins and, as such, they are susceptible to degradation by environmental conditions and microbial activity. Therefore, the expectation is that these proteins would be broken down into their amino acid constituents before they could reach drinking water. However, in the unlikely event that Cry1B.34.1, Cry1B.61.1, or IPD083Cb are present in drinking water, exposure to these proteins would not be expected to result in a human health risk based on the hazard considerations articulated above.

As plant-incorporated protectants, Cry1B.34.1, Cry1B.61.1, and IPD083Cb are contained within the plant cells. Therefore, non-occupational and residential exposure is considered to be negligible except for oral exposure through consumption of the plant expressing those proteins.

Although FFDCA section 408(b)(2)(C) provides for an additional tenfold margin of safety for infants and children in the case of threshold effects, EPA has determined that there are no such effects due to the lack of toxicity and allergenicity of Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins. As a result, an additional margin of safety for the protection of infants and children is unnecessary.

Based upon its evaluation in the Human Health Risk Assessment, which concluded that Bacillus thuringiensis Cry1B.34.1, Bacillus thuringiensis Cry1B.61.1, and Adiantum trapeziforme var. braziliense IPD083Cb proteins are not toxic or allergenic to mammals, the EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children from aggregate exposure to residues of Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins. Therefore, exemptions from the requirement of a tolerance are established for residues of Bacillus thuringiensis Cry1B.34.1, Bacillus thuringiensis Cry1B.61.1, and Adiantum trapeziforme var. braziliense IPD083Cb proteins in or on all food and feed commodities when used as plant-incorporated protectants and according to the label and good agricultural practices.

EPA has determined that an analytical method is not required for enforcement purposes for Cry1B.34.1, Cry1B.61.1, and IPD083Cb residues since the Agency is establishing exemptions from the requirement of a tolerance without any numerical limitation. Nonetheless, a valid enzyme-linked immunosorbent assay (ELISA) to detect the presence of. Cry1B.34.1, Cry1B.61.1, and IPD083Cb proteins in extracts from different plant parts were submitted with the petitions. The submitted ELISA methodology was determined to be a reliable method of detecting Cry1B.34.1, Cry1B.61.1, and IPD083C proteins in the tissues of soybean.

One comment was received during the public comment period for the notice of filing. The commentor urged the prohibition of PIPs and “manipulated nucleic acids (MNAs)” citing potential health and environmental impacts due to the gene flow (integration) of the modified genetic material from PIPs into other organisms, particularly microbes and marine fauna. EPA's assessments for PIP active ingredients have concluded that there is no evidence that the transfer of PIP genes and/or toxins to microorganisms or other fauna can occur. Furthermore, experiments published in the scientific literature have been unable to detect PIP gene transfer under typical environmental conditions. Regarding the Cry1B.34.1, Cry1B.61.1, and IPD083C proteins, EPA has performed two in-depth assessments to ascertain the overall risk to human health and the environment. As described in Part III.A above, these PIPs are expected to be of negligible mammalian toxicity and are unlikely to be food allergens. Therefore, no adverse effects to human health are expected when Cry1B.34.1, Cry1B.61.1, and IPD083Cb are expressed as a PIP in food and feed commodities. Further, an ecological risk and environmental fate assessment was conducted to determine the risk to terrestrial and aquatic non-target organisms. The results of this assessment determined that the three PIPs are not expected to pose a hazard to any non-target, non-lepidopteran organisms, including non-lepidopteran marine fauna such as fish and invertebrates, due to the proteins' lack of activity against non-insect species. Furthermore, exposure to these proteins is anticipated to be limited as off-field dispersal of the PIP pollen and post-harvest residues would result in negligible exposures levels of Cry1B.34.1, Cry1B.61.1, and IPD083Cb to marine environments. Therefore, due to a lack of hazard and/or relevant environmental exposure, there is a reasonable expectation of no discernible effects to occur to marine fish or invertebrate species.

Therefore, EPA is finalizing the tolerance exemption that was petitioned for by Pioneer (PP 4F9125 2025-0099) (PP 4F9126 2025-0100) (PP 4F9127 2025-0089).

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

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

Executive Order 14192 (90 FR 9065, February 6, 2025) does not apply because actions that establish a tolerance or tolerance exemption under FFDCA section 408 are exempted from review under Executive Order 12866.

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

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

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

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

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

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

However, EPA's 2026 Policy on Children's Health applies to this action. This rule finalizes tolerance actions under the FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” (FFDCA 408(b)(2)(C)). The Agency's consideration is documented in Unit III.A.

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

EPA is issuing this rulemaking under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a. FFDCA section 408(b)(2)(A)(i) allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” FFDCA section 408(b)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. FFDCA section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .”

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2025-0158 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 28, 2026.

The EPA's Office of Administrative Law Judges (OALJ), in which the Hearing Clerk is housed, urges parties to file and serve documents by electronic means only, notwithstanding any other particular requirements set forth in other procedural rules governing those proceedings. See “Order Urging Electronic Filing and Service,” dated December 3, 2025, which can be found at https://www.epa.gov/system/files/documents/2025-12/2025-12-03-order-urging-electronic-filing-and-service.pdf. Although the EPA's regulations require submission via U.S. Mail or hand delivery, EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/oa/eab/eab-alj_upload.nsf.

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

In the Federal Register of September 5, 2025 (90 FR 42896) (FRL-12474-06-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F9175) by ABERCO, Inc., a Balchem Company, 5 Paragon Drive, Suite 201, Montvale, NJ 07645. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide propylene oxide (PPO), in or on sesame, seed; turmeric, roots, dried; ginger, dried; pepper, bell, dried; and pepper, nonbell, dried at 300 parts per million (ppm) for PPO, including its metabolites and degradates, and 6,000 ppm for its reaction product propylene chlorohydrin (PCH), including its metabolites and degradates. That document referenced a summary of the petition prepared by ABERCO, Inc., a Balchem Company, the registrant, which is available in the docket, ID number EPA-HQ-OPP-2025-0158, at http://www.regulations.gov.

EPA received one comment on the notice of filing. The comment did not pertain to the PPO or PCH tolerances described in the notice of filing and provided no information indicating that a safety determination for these tolerances cannot be supported.

EPA is not establishing the petitioned-for PCH tolerances because the request was subsequently withdrawn by the petitioner. The reason for this change is explained in Unit IV.C.

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Systemic effects in toxicity studies via the inhalation route suggest that PPO is absorbed locally and systemically, accumulating in the mucosa of the nose, trachea, and lung, but also reaching the liver; however, data suggest that inhalation exposure produces adverse effects only at the portal of entry. Oral and dermal toxicity studies have also found mostly portal of entry effects, suggesting that PPO is minimally absorbed systemically via those routes. Hydrolysis of PPO may occur spontaneously in the acidic environment of the stomach. Under in vitro conditions similar to the stomach environment, PPO hydrolysis is fast (half-life of 1 minute) and yields propylene glycol. Conjugation of PPO to glutathione (GSH), and alkylation to DNA or proteins can also occur, especially at the portal of entry. Chronic oral gavage dosing induced forestomach lesions in rats; however, this effect is not relevant for risk assessment because humans do not have a forestomach or any similar tissues. Inhalation exposure to PPO decreased non-protein sulfhydryl (NPSH) levels in respiratory mucosa, lung, and liver, and induced nasal cavity lesions in rats (olfactory epithelium atrophy, necrosis and regeneration; respiratory epithelium regeneration; inflammation; epithelial and squamous metaplasia) and mice (inflammation). For inhalation exposure, PPO is classified as “B2; Probable Human Carcinogen” by the Integrated Risk Information System, and a cancer slope factor (Q1*) of 3.7 x 10 −6 (μg/m 3 ) −1 based on nasal cavity hemangioma in mice is used for inhalation risk assessment. There is no offspring susceptibility in the PPO database.