OPM is issuing a final rule to improve the efficiency, rigor, and timeliness by which OPM and agencies vet individuals for risk to the integrity and efficiency of the service. In June 2025, OPM proposed updates to 5 CFR part 731 to the specific factors used to evaluate an individual's suitability or fitness for Federal service, as directed by E.O. 14210 of February 11, 2025, Implementing the President's “Department of Government Efficiency” Workforce Optimization Initiative (90 FR 9669, Feb. 14, 2025). See 90 FR 23467 (June 3, 2025). OPM also proposed updates to OPM's and agencies' delegated authority to take suitability actions on post-appointment conduct as directed by the March 20, 2025, Presidential Memorandum Strengthening the Suitability and Fitness of the Federal Workforce (90 FR 13683, Mar. 25, 2025). This final rule amends 5 CFR part 731, subparts A, B, C, and D, to update the specific factors and OPM's and agencies' delegated authority to take suitability actions on post-appointment conduct.

Congress has long charged the President with ensuring that those employed in the competitive service are suitable for Federal employment. In 1871, Congress directed the President to “prescribe such regulations for the admission of persons into the civil service . . . as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to . . . character”; appoint individuals to investigate applicants' suitability for Federal employment; and “establish regulations for the conduct of [employees] in the civil service.” 1 Rev. Stat. 313, § 1753 (1875) (enacted Mar. 3, 1871). Today, 5 U.S.C. 3301 and 7301 provide similarly that “[t]he President may . . . prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service,” “ascertain the fitness of applicants as to . . . character,” and “prescribe regulations for the conduct of employees in the executive branch.”

Historically, the President has delegated to OPM and its predecessor, the Civil Service Commission, the authority to prescribe both qualification standards and suitability standards, and to conduct both examinations of applicants' qualifications and investigations of suitability for appointment and continuing employment. See 5 U.S.C. 1104(a)(1). The President charged OPM with, among other duties: (1) “establish[ing] standards with respect to . . . suitability . . . which applicants must meet to be admitted to or rated in examinations”; (2) “[i]nvestigating . . . the suitability . . . of applicants for positions in the competitive service”; (3) “requir[ing] appointments to be made subject to investigation to enable the [Director] to determine, after appointment, that the requirements of law or the Civil Service Rules and Regulations have been met”; and (4) instructing an agency “to remove” an employee found to be “disqualified for Federal employment.” E.O. 10577 (Nov. 22, 1954) (codified, in relevant part, as amended, at 5 CFR 2.1(a), 5.2(a), 5.3(a)(1), 5.3(b)); see also 5 U.S.C. 1103(a)(5) (the Director's responsibility for “executing, administering, and enforcing” these Civil Service Rules); 5 U.S.C. 1104(a)(1) (the President's authority to “delegate, in whole or in part, [his] personnel management functions” to OPM); 5 U.S.C. 3302 (the President's authority to “prescribe rules governing the competitive service”).

Part 731 of title 5, Code of Federal Regulations, establishes and maintains OPM's policies and procedures governing suitability and fitness investigations and adjudications, including the procedures for taking suitability actions and the general process for appealing a suitability action. Suitability and fitness determinations examine “character or conduct that may have an adverse impact on the integrity or efficiency of the service,” such as criminal or dishonest conduct, and deception or fraud in examination or appointment. 5 CFR 731.101, 731.201, 731.202. If the suitability determination is unfavorable, the adjudicator must then determine what “suitability action” is appropriate. See § 731.203(a). OPM's regulations define a “suitability action” to include “[c]ancellation of eligibility,” “[r]emoval,” “[c]ancellation of reinstatement eligibility,” and “[d]ebarment.” See § 731.101(a). OPM may also be subject to these regulations in its capacity as an agency.

The objective of the suitability and fitness adjudicator is to establish a reasonable expectation that employment or continued employment of an individual either would or would not protect the integrity and promote the efficiency of the service. When there is a reasonable expectation employment would not do so, the individual should be found unsuitable or unfit. This expectation is established when an adverse nexus or connection can be shown between the character or conduct in question and the integrity of the service or the individual's capacity and fitness for employment or continued employment.

These interests and objectives apply equally to applicants for employment and current Federal employees, regardless of the employment status as an “appointee” or “employee” as those terms are defined in § 731.101. Current Federal employees, no less than applicants, must remain suitable for Federal employment. Employees who engage in serious misconduct while in the Federal service are equally as unsuitable for Federal employment as applicants who engaged in serious misconduct before applying for Federal employment.

The statutory authorities that direct the President, and by presidential delegation OPM, to take suitability actions apply to employees, not just job applicants. See 5 U.S.C. 7301 (“The President may prescribe regulations for the conduct of employees in the executive branch.”). Consistent with this broad grant of statutory authority, it has long been presidential and executive branch policy to assess post-appointment conduct to determine an individual's ongoing suitability or fitness to remain in their position and OPM has, under part 731 and implementing guidance, required agencies to make suitability determinations based on post-appointment conduct. See, e.g., 76 FR 69601 (Nov. 9, 2011) and 89 FR 102675 (Dec. 18, 2024) (discussing 5 CFR 731.106(d)).

OPM regulations have long applied suitability criteria to both Federal employees and applicants. Under part 731 and implementing guidance, OPM has required agencies to make suitability determinations based on post-appointment conduct. OPM has established in its regulations that “OPM may take a suitability action under this part against an employee” of an agency and direct that agency to remove the employee based on the suitability factors set forth in 5 CFR part 731, subpart B. These factors are as follows: material, intentional false statement, deception, or fraud, in examination or appointment; a statutory or regulatory bar that prevents the individual's lawful employment; and/or, knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by illegal or unconstitutional means. 5 CFR 731.203(e). Another factor, refusal to furnish testimony as required by 5 CFR 5.4, was a basis for OPM to take a suitability action against an employee and was in place from 1996 until January 2025, when OPM removed this factor from the suitability factors. See 61 FR 394 (Jan. 5, 1996) and 89 FR 102675 (Dec. 18, 2024). OPM regulations have further allowed OPM to consider “[t]he nature of the position for which the person is applying or in which the person is employed” in applying the suitability criteria, making clear that suitability actions might apply to incumbent employees, whether in an appointee or employee status as defined in 5 CFR 731.101, as well as applicants. 5 CFR 731.202(c).

Successive presidential administrations have emphasized that suitability determinations apply not only to applicants and appointees to competitive service or career SES positions but also to employees in such positions. E.O. 13488, Granting Reciprocity on Excepted Service and Federal Contractor Employee Fitness and Reinvestigating Individuals in Positions of Public Trust, (74 FR 4111, Jan. 16, 2009) issued in relevant part under 5 U.S.C. 7301, established a uniform, governmentwide requirement for public trust suitability reinvestigations to ensure persons in public trust positions remain suitable for continued employment.

In January 2017, E.O. 13764 (82 FR 8115, Jan. 23, 2017) amended the Civil Service Rules, E.O. 13488, and E.O. 13467, and established continuous vetting for all positions subject to personnel vetting, including positions subject to OPM's suitability regulations. Continuous vetting refers to the process of “reviewing the background of a covered individual at any time to determine whether that individual continues to meet applicable requirements.” Sec. 1.3, E.O. 13467, as amended by E.O. 13764. A “covered individual” is “a person who performs, or who seeks to perform, work for or on behalf of the executive branch.” Id. In the context of suitability for employment, continuous vetting is used to determine if an individual remains suitable for a position over time.

E.O. 13764 also amended the Civil Service Rules at 5 CFR 5.2(a) to permit the OPM Director to require appointments be made subject to investigation so that the OPM Director can determine, post-appointment, that Civil Service Rules and regulations have been met. E.O. 13764 clarified Civil Service Rule 5.3 to specify that the OPM Director could instruct an agency to remove an employee when the Director finds that the employee is unsuitable. 5 CFR 5.3(a)(1).

In May 2018, the OPM Director and the Director of National Intelligence, in their respective roles as Suitability and Credentialing Executive Agent and Security Executive Agent, launched the “Trusted Workforce 2.0” initiative to transform workforce vetting by employing a modernized and more efficient process for ensuring that only trusted individuals enter and remain in the Federal workforce. A key goal of the initiative is to provide vetting processes that enable each individual's vetting status to be continuously up to date. Since its launch, the initiative has enabled the enrollment into continuous vetting of more than 4 million individuals serving the Government in national security sensitive positions, including sensitive competitive service and career SES positions, and enrollment is underway for those serving in nonsensitive public trust positions.

OPM has established in its regulations that OPM itself may take a suitability action against an employee in the competitive service or the career Senior Executive Service and direct the employing agency to remove the employee based on a narrow set of its suitability factors in 5 CFR part 731, subpart B. OPM regularly takes suitability actions against such employees based on material, intentional false statement or deception, or fraud, in examination or appointment. OPM has not redelegated to agencies the authority to take suitability actions against employees, even when the conduct occurred prior to employment. OPM requires agencies to refer to OPM cases where there has been evidence of such conduct and, should OPM decide to take a suitability action, OPM directs the agency to remove the employee. OPM also requires agencies to refer cases involving knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force.

Although OPM has required agencies to make suitability determinations regarding employees based on post-appointment conduct, OPM has not permitted agencies to take suitability actions when the determination is unfavorable. Further, since the Merit Systems Protection Board's (MSPB) decision in Scott v. OPM in 2011 (116 M.S.P.R. 356 (2011), modified by 117 M.S.P.R. 467 (2012)), which held that suitability actions cannot be taken for post-appointment conduct, OPM has not itself taken suitability actions regarding employees, regardless of employment status as an “appointee” or “employee” per 5 CFR 731.101, for post-appointment conduct. OPM has recognized, however, in its regulations, that an agency may employ other authorities available to the agency when an employee's post-appointment conduct renders the employee unsuitable for continued employment in the position, such as Chapter 75 actions. Agencies have reported frustration with not being able to take the next logical step, a suitability action, after finding an employee unsuitable for continued employment.

After Scott, Congress specifically legislated that agencies need not proceed through Chapter 75 procedures when taking suitability actions. OPM's regulations have long defined a “suitability action” to include “[c]ancellation of eligibility,” “[r]emoval,” “[c]ancellation of reinstatement eligibility,” and “[d]ebarment.” 5 CFR 731.203. In 2015, Congress amended 5 U.S.C. 7512 to exclude “a suitability action taken by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the President under this title for the administration of the competitive service” from the scope of actions subject to Chapter 75 procedures. 5 U.S.C. 7512(F); see also Public Law 114-92, Div. A, Title X, § 1086(f)(9), Nov. 25, 2015, 129 Stat. 1010. This legislation functionally overruled a Federal Circuit case ( Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015)), which construed title 5 to subject suitability-based removals to Chapter 75 procedures.

In Hopper, OPM argued that suitability-based removals derived from a separate statutory authority than Chapter 75 removals—that is, the presidential authority to regulate employee conduct implies authority to remove employees who violate those regulations, and the President had delegated that authority to OPM. Hopper, 786 F.3d at 1348-49. The Federal Circuit in Hopper rejected OPM's position. Id. But Congress, in adding 5 U.S.C. 7512(F), repudiated Hopper and excluded “a suitability action taken by [OPM] under regulations prescribed by [OPM], subject to the rules prescribed by the President under this title for the administration of the competitive service” from the scope of Chapter 75. Congress thus expressly recognized the validity of suitability-based removals from the Federal service and that this authority is separate and distinct from Chapter 75 removal authority.

In addition to congressional action, presidential actions since Scott have further established OPM's authority to take suitability actions for post-appointment conduct against appointees and employees in competitive and career SES positions, although OPM has not done so. Notably, in Scott, a key element of the Board's rationale for deciding OPM could not take suitability actions for post-appointment conduct was that, while “it may be that the President could, pursuant to 5 U.S.C. 7301, issue an Executive Order authorizing OPM to make suitability determinations and take or direct suitability actions based on post-admission or postappointment conduct . . ., the President has not issued such an order.”

President Trump has now issued such an order, in the Presidential Memorandum Strengthening the Suitability and Fitness of the Federal Workforce, issued March 20, 2025 (“the Presidential Memorandum”). 90 FR 13683 (Mar. 25, 2025). President Trump further directed that the OPM Director “propose regulations, consistent with applicable law, amending Part 731 of title 5, Code of Federal Regulations, to account for the delegation” and “to implement appropriate rules and procedures regarding suitability determinations and suitability actions based on post-appointment conduct.”

Despite the clear intent from both Congress and the President—stretching over decades now—that agencies should not rely on Chapter 75 procedures to address post-appointment conduct covered by the factors described in 5 CFR 731.202(b), today agencies still largely must rely on Chapter 75 procedures to remove employees who engage in serious misconduct. This means that, illogically, the Government has far greater ability to bar someone from Federal employment who has committed a serious crime or misconduct in the past than it does to remove someone who engages in the exact same behavior as a Federal employee. This arbitrary state of affairs limits the tools available to the Government to ensure the efficiency and integrity of the Federal service.

OPM therefore is conforming its regulations to meet the requirements of the Presidential Memorandum and rectifying this irrational gap in the part 731 regulations. Specifically, the rule satisfies the President's direction in the Presidential Memorandum to “implement appropriate rules and procedures regarding suitability determinations and suitability actions based on post-appointment conduct.” It also ensures that implementation of continuous vetting as required by E.O. 13467, as amended, as part of the Trusted Workforce 2.0 initiative, is done in an efficient and effective manner. Under this rule, when continuous vetting uncovers information that results in a determination that an individual employed in the competitive service or career Senior Executive Service is no longer suitable for service, the situation can be remedied by the next logical step: a suitability action.

This rulemaking also implements Sec. 3(d) of E.O. 14210 of February 11, 2025, Implementing the President's “Department of Government Efficiency” Workforce Optimization Initiative, which specifies several additional suitability criteria. 90 FR 9669 (Feb. 11, 2025). E.O. 14210 directed the OPM Director to initiate a rulemaking that would propose to include four additional suitability criteria: “failure to comply with generally applicable legal obligations, including timely filing of tax returns”; “failure to comply with any provision that would preclude regular Federal service, including citizenship requirements”; “refusal to certify compliance with any applicable nondisclosure obligations, consistent with 5 U.S.C. 2302(b)(13), and failure to adhere to those compliance obligations in the course of Federal employment”; and “theft or misuse of Government resources and equipment, or negligent loss of material Government resources and equipment.” OPM proposed these new factors in its Notice of Proposed Rulemaking “Suitability and Fitness” 90 FR 23467. The final disposition of these new factors is described in the following sections. OPM and agencies must still base suitability determinations on the presence or absence of one or more of the specific factors in 5 CFR 731.202(b) while considering the additional considerations in § 731.202(c) to the extent they are deemed pertinent. The application of the additional considerations ensures suitability determinations are made case-by-case based upon the nature of the conduct, and the conduct's potential impact on the individual's ability to protect the integrity or promote the efficiency of the Federal service.

In response to the proposed rule, OPM received 1,479 comments  1 during the 45-day public comment period from multiple individuals, multiple labor organizations, and a professional organization representing employment law lawyers. At the conclusion of the public comment period, OPM reviewed and analyzed the comments. In general, the comments on the rule change were mixed, with some expressing support, others expressing opposition, and many comments that were outside the scope of the rulemaking. The comments are summarized below, including suggestions for revisions that OPM considered and either adopted, adopted in part, or declined, along with OPM's supporting rationale.

The first section below addresses general or overarching comments. The sections that follow address comments related to specific aspects of OPM's proposed revisions. The discussion of these comments is grouped by topic.

OPM received many comments in response to its proposed rulemaking that were either extremely broad in nature or related to matters that were outside the scope of the proposed rule. A summary of these comments follows.

Summarizing general comments first, some commenters offered support for the regulatory changes, expressing appreciation for expanded OPM oversight and intentions to unify and modernize Federal personnel vetting. Supporters were optimistic the changes will address fraud, waste, abuse, mismanagement, lack of accountability and enforcement, perceptions of immunity, and long disciplinary proceedings incurred at the expense of the taxpayer. Supporters believed conduct and ethical standards should be high and applicable to all Federal employees. Several agencies commented that the rulemaking will enhance their ability to manage risk and make on-going efforts to implement continuous vetting more effective. See, e.g., comments from U.S. Department of Homeland Security and Department of Education.

General comments in opposition included basic expression of displeasure with the proposed rule without specifying any reasons why, and many others characterized the rule as an attack on the civil service without further explanation. Multiple commenters in opposition also expressed concern that OPM's proposed changes related to post-appointment conduct suitability actions would alter how agencies handle employee performance concerns. Unless directly related to a specific factor used to evaluate an individual's suitability, conduct considered as the basis for a suitability determination does not generally include the inability to perform. Nothing in OPM's rule changes the authorities under which performance matters are handled.

Included in comments in opposition to the rule were many comments that addressed topics that were outside the scope of the proposed rule. These out-of-scope comments touched on many different topics. OPM is not addressing comments on topics that are outside the scope of this rule. The topics commenters brought up that were outside the scope of this rule include the Notice of Proposed Rulemaking, Improving Performance, Accountability and Responsiveness in the Civil Service, the Merit Hiring Plan initiative, the sale and management of Federal public lands, the rehiring of park rangers, reductions in force, and activities of the Department of Government Efficiency.

Some out-of-scope comments did address the proposed changes in the rule more directly; however, they digressed into topics not covered or impacted by the proposed changes. For example, a large number of comments claimed that the proposed rule would eliminate an individual's right to appeal a suitability action to the MSPB. OPM proposed no changes in this rule that would change appeal rights for suitability actions found in 5 CFR 731 subpart E. Other commenters recommended that OPM revise which types of positions ( e.g., competitive service, excepted service, contractor) are subject to suitability determinations and actions, with some recommending adding types of positions to be subject to suitability and others recommending eliminating some types. OPM proposed no changes to, and has limited authority to change, the types of positions subject to suitability determinations and actions and these comments are therefore out-of-scope. Additional out-of-scope topics included requests to define terms or questioning the underlying need for pre-appointment suitability investigations. The definitions suggested were not relevant to this rulemaking, and OPM did not propose any changes to pre-appointment suitability investigations in this rulemaking.

Several commenters objected to continuous vetting, incorrectly assuming that it was a new process OPM was proposing to add. Continuous vetting requirements already exist in 5 CFR part 731, and OPM proposed no changes to these requirements. As such, comments opposing continuous vetting are outside the scope of this rule.

In the following sections, we address the public comments related to the specific topics of the regulation to which each comment applied.

Historically, 5 CFR part 731 identified the limited circumstances in which OPM could take a suitability action against an employee, which were based on a subset of the suitability factors considered in evaluating an applicant or appointee's character and conduct, and only when the conduct was connected to the individual's examination, application, or appointment. In the proposed rulemaking, OPM explained, “[b]ecause employees who engage in serious misconduct while in the Federal service should not remain in Federal service, OPM should not limit its ability to take action to a limited subset of factors.” See 90 FR 23467, page 23470. OPM received several comments claiming that OPM is broadly expanding the suitability factors that apply to employees from a mere subset of the factors in § 731.202(b). Additionally, commenters suggested that OPM's proposal would allow OPM to arbitrarily decide which factors apply, and when. See Comment 1055, 2 as an example. OPM seeks to dispel this misconception.

While OPM is amending the specific factors used when making suitability determinations and taking suitability actions, and incorporating criteria as directed in E.O. 14210, OPM disagrees with the contention that historically only a subset of factors were relevant to evaluating whether employees' character and conduct made them suitable for the Federal workforce, or that under these new regulations OPM is at liberty to decide if or when factors apply. OPM has long required agencies to assess information bearing on an individual's continued suitability, including information that falls outside the factors necessitating a referral to OPM. Historically, when employee conduct raised suitability concerns, agencies addressed the matter under other available authorities. The changes in this rule do not suggest that previously, certain suitability factors were irrelevant to evaluating employees; rather, the changes address the authority and process for resolving such issues when conduct justifies a suitability action.

As an example, previously, if an employee engaged in criminal conduct, the agency was expected to assess the conduct and relevance to the individual's suitability for continued employment, but neither the agency nor OPM could take a suitability action based on the criminal conduct, absent related conduct that did warrant an OPM referral ( e.g., material, intentional false statement, or deception or fraud, in examination or appointment). If the agency determined actionable misconduct was present, it had to take an administrative action under its own authority such as 5 CFR 752. Essentially, OPM's ability to take a suitability action was limited to a subset of the factors, but the necessity for the agency to measure conduct against all factors and take appropriate punitive action was not. This rule broadens OPM's and agencies' authorities to take suitability actions against employees and appointees. However, conduct associated with all suitability factors is, and has always been, relevant, regardless of the authority available in different circumstances, to address the misconduct.

As discussed in III.A., comments related to existing suitability factors to which OPM has proposed no changes are outside the scope of this rulemaking. Some comments raised concerns that the meaning of the newly proposed factors is too vague. To address these concerns, the following discussion will cover each proposed change to the factors.

First, OPM proposed amending § 731.202(b)(1) to add examples to the existing factor for misconduct or negligence in employment that may be committed by current or former employees. The proposed additions read:

(i) Theft or misuse of Government resources and equipment, or negligent loss of material Government resources and equipment during employment with, or on behalf of, the Federal Government or a state, territorial, or local government;

(ii) Refusal to certify compliance with any applicable non-disclosure obligations consistent with 5 U.S.C. 2302(b)(13) and failure to adhere to those compliance obligations in the course of Federal employment; and

(iii) Refusal to furnish testimony as required by §  5.4 of this chapter.

Numerous public responses questioned what type of conduct would be captured under these examples. See Comment 571 for an example. In general, this factor relates to conduct involving questionable judgment, unreliability, dishonesty, or unwillingness to follow rules or regulations in the context of employment. This factor does not include performance (or inability to perform) concerns, failure to complete training, or other qualification issues as long as such concerns are not related to misconduct or negligence.

With regard to the first proposed example, § 731.202(b)(1)(i), some commenters requested OPM provide additional definitions or criteria for words such as “theft”, “misuse”, “negligent”, “material”, and others. See Comment 812 for an example. OPM does not agree that these words are vague or need further definition, as they are all commonly understood terms of which OPM is not proposing any novel uses. Commenters also requested that OPM set specific criteria or thresholds for each type of conduct covered by this example. Again, OPM does not agree that any thresholds need to be established, and notes that doing so would amount to an almost impossible task of identifying potentially endless possible scenarios. The suitability adjudication process involves an examination of the evidence and takes into consideration the unique circumstances for each individual case.

For the second proposed example related to compliance with non-disclosure obligations at § 731.202(b)(1)(ii), commenters raised concerns requesting OPM better describe the conduct intended for consideration under this example and expressed concerns that the proposed language did not account for whistleblower protections. See Comment 969 for an example of concerns raised. Federal employees and contractors are subject to longstanding legal and ethical obligations to safeguard nonpublic information obtained through their official duties. These obligations arise under multiple authorities, including the Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635), as well as statutes such as the Privacy Act of 1974. Together, these requirements reflect the expectation that those working for or on behalf of the Federal Government will handle official Government information responsibly and refrain from disclosing nonpublic information without authorization or through unauthorized channels and, when required as a condition of employment, will express their commitment to abiding by these obligations in writing. OPM notes that the proposed language did also account for whistleblower protections by including “consistent with 5 U.S.C. 2302(b)(13)” and that commenters expressing this concern seemingly overlooked this language, which requires a specific statement notifying employees of their rights, obligations, or liabilities relating to classified information, communications to Congress, whistleblowing to an Inspector General, or any other whistleblower protection. OPM has proposed a new form that agencies could elect to use to establish a non-disclosure agreement with individuals (91 FR 31478, May 27, 2026). OPM expects the form to help employees understand their responsibilities with respect to release of information obtained through their official duties and allows them to certify that they understand their obligations and agree to comply with them.

For the third example of misconduct or negligence in employment proposed at § 731.202(b)(1)(iii), OPM has determined not to pursue adding this proposed example to the regulation. As discussed previously, the third example related to §  5.4 of this chapter was included in § 731.202(b) before when OPM had authority to take suitability actions against employees based on pre-appointment conduct. OPM received many comments opposed to reintroducing this former standalone factor as an example of misconduct or negligence in employment. See Comment 1063 for an example. OPM disagrees with comments suggesting the language is vague or that inclusion would violate individuals' constitutional rights. Nevertheless, even though OPM now has authority to take suitability actions against appointees and employees for post-appointment conduct, the population most likely to engage in the conduct described in the proposed example, OPM has concluded that the alternative mechanisms for agencies to address such conduct that supported removal of this factor remain. OPM is removing this example from § 731.202(b)(1) in the final rule.

The next factor proposed by OPM at § 731.202(b) was § 731.202(b)(5), which read, “Knowing and willful failure to comply with generally applicable legal obligations, including timely filing of tax returns.” Numerous comments criticized the language as vague, questioned the meaning of “generally applicable legal obligations,” and expressed concern that, as written, the factor did not consider nuances in tax compliance. See Comments 326 and 039 as examples. OPM also received several comments expressing concern that this factor may be difficult to apply consistently, emphasizing the definition of “knowing and willful” is unclear. See Comments 1277 and 1401 as examples. OPM appreciates these comments and the opportunity to provide further clarity surrounding this factor, to include clarifying the distinction between the types of conduct that would be considered under this factor from conduct that would be considered under the existing criminal conduct factor. In response to the comments on this proposed factor, OPM is revising this factor to read, “Failure to comply with financial obligations or generally applicable civil legal obligations, such as timely filing of tax returns.” This revised language more precisely reflects the intent of the original proposed factor.

OPM has determined that including an intent requirement in the text of the factor is unnecessary and may create inconsistency and avoidable administrative complexity. Suitability and fitness adjudications already require a case-by-case assessment of the nature and seriousness of the conduct, the circumstances surrounding the conduct, and other pertinent considerations under § 731.202(c). Accordingly, an adjudicator may consider whether the individual acted knowingly, willfully, inadvertently, reasonably, or with mitigating circumstances as part of the overall adjudicative analysis. Removing “knowing and willful” from the factor does not prevent consideration of intent; rather, it avoids making intent a threshold element that must be separately established before the factor may be considered.

Prior to proposing this new factor, conduct related to financial responsibility or civil legal obligations was addressed under the existing factor for dishonest conduct. The expectation of fiscal responsibility and compliance with civil legal obligations, including tax compliance, is not new to suitability adjudications. This factor is focused on deliberate noncompliance with significant obligations, not on financial hardship itself. Adjudicators must distinguish deliberate disregard of an obligation from inadvertent error, inability to pay, or noncompliance resulting from circumstances beyond the individual's control. For example, serious medical issues, job loss, or other extenuating circumstances may cause financial distress without reflecting intentional irresponsibility. The suitability adjudication process accounts for this nuance, and underscores the relevance of materiality, by evaluating financial concerns in the context of the additional considerations found at § 731.202(c), including the circumstances surrounding the conduct, its seriousness and recency, contributing societal conditions, and rehabilitation or efforts toward rehabilitation. OPM believes that creating a separate factor for this conduct will help adjudicators focus on whether the individual failed to comply with a material obligation, rather than treating financial difficulty as synonymous with dishonesty.

Another area of concern on this proposed factor raised by multiple commenters was the inclusion of language related to timely filing of tax returns. Commenters noted that not all unfiled tax returns are associated with unpaid taxes. Comment 039. An individual could even be due a refund for a tax overpayment on an unfiled return. Commenters also voiced concern that with the addition of this factor, tax compliance issues that would typically result in modest IRS penalties could be used as the potential basis for removal and debarment from Federal employment, a much harsher penalty than that imposed by the IRS. See Comment 015. OPM acknowledges that there may be no penalty imposed by the IRS for an unfiled return when taxes are not owed; however, the absence of a penalty does not negate the civil obligation to timely file a tax return. Additionally, when an individual has unpaid taxes, as discussed previously, the conduct would be evaluated in the context of the additional considerations at § 731.202(c). The assessment would include evaluating the circumstances surrounding the conduct, and efforts toward rehabilitation such as entering into repayment plans.

Finally, many commenters expressed concern over the types of legal obligations that may be considered under this factor and that it could create overlaps with conduct considered under the criminal conduct factor. See Comment 474 for an example. OPM appreciates these comments and has revised the final language as noted above. The revisions clarify this factor is scoped to civil legal obligations and ensures there is a clear distinction between the type of conduct considered under this factor versus under the criminal conduct factor. A civil legal obligation is a duty imposed by law that requires a person or entity to do something (or refrain from doing something) in relation to another person or entity under civil law, as opposed to criminal law. In many scenarios, there is a nexus between financial duties and civil legal obligations. In addition to debts owed to the U.S. Government, other examples of where civil legal obligations may arise include, but are not limited to, contracts, torts, and statutes. Examples of such obligations may include: performing according to a business contract; making required payments under a loan and/or not defaulting on a loan; or court orders or judgments requiring payment of child support, alimony, or other repayment orders.

The next factor with a proposed change is the existing factor related to alcohol use at § 731.202(b)(7). OPM proposed no changes to the type of conduct considered under this factor or the description of the specific considerations to be applied when using it. OPM only proposed to remove the words “applicant or appointee” from the factor to clarify to agencies that it may be applied to all individuals regardless of employment status. OPM received many comments related to this factor; however, they did not address the specific nature of the proposed change and are therefore considered outside the scope of this rulemaking. See Comment 538 for an example. These comments did draw attention to the fact that in the proposed regulatory text for § 731.202(b)(7), the words “applicant or appointee” were only removed in the first instance while being erroneously retained at the end of the factor. OPM appreciates commenters drawing attention to this error and is revising the text for this factor to read as follows: Excessive alcohol use, without evidence of rehabilitation, of a nature and duration that suggests the individual would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the individual or others.

The final proposed factor that received comment was the factor proposed at § 731.202(b)(6) concerning failure to comply with any provision that would preclude Federal service. The original proposed language read, “Failure to comply with any provision that would preclude Federal service, including citizenship or nationality requirements.” In reviewing comments, OPM determined both this factor, and the existing factor, “Any statutory or regulatory bar that prevents the lawful employment of the individual in the position in question,” lead to the same conclusion—the individual is not suitable for employment due to conduct or conditions that disqualify him or her from lawful employment. Feedback from commenters also acknowledged this overlap. See Comment 528. If OPM kept both the existing and new factors separate, in most instances, an individual's failure to meet a provision of law would need to be considered under both factors, and articulating the differences between the two in an adjudication would have been overly complicated due to similarities. OPM has decided to combine these two factors into a single factor to clearly convey the intent, eliminate confusion, and sufficiently cover impediments to lawful employment. The combined factor reads: “Any statutory or regulatory bar or any other provision of law, regulation, Executive order, or other binding legal authority that prevents the lawful employment of the individual in the position in question, such as citizenship or nationality requirements.”

Some commenters focused on the references to citizenship and nationality requirements, believing that persons lawfully admitted to the United States for permanent residence and seeking U.S. citizenship are eligible for Federal employment based on the definition of “protected individual” in 8 U.S.C. 1324b(a)(3)(B). See Comment 029. This law explains the prohibition of discrimination based on national origin or citizenship status. While the definition of protected individuals in this law includes aliens who are lawfully admitted for permanent residence, certain aliens admitted for temporary residence, and certain refugees and asylees, 8 U.S.C. 1324b(a)(2)(C) includes an exception for discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government. As explained in Executive Order 11935, an individual cannot be admitted to competitive examination or given an appointment in the competitive service unless he or she is a citizen or national of the United States. In exceptional circumstances, including temporary appointments, a foreign national may be appointed to positions in the competitive service when necessary to promote the efficiency of the service, as described in 5 CFR 316.601, unless the appointment is prohibited by statute. Some statutes governing agencies and positions, such as national security positions, mandate U.S. citizenship by law. As such, OPM believes the reference to citizenship and nationality requirements is appropriate and will retain the examples.

OPM proposed changes to §§ 731.103, 731.105, 731.106, 731.203, and 731.301 to exercise its authority to make final suitability determinations and take suitability actions under part 731 in any case involving an employee in the competitive service or in a career appointment to a position in the Senior Executive Service. OPM proposed that it would retain sole jurisdiction to make these final suitability determinations and take suitability actions in any case involving an employee for post-appointment conduct. Although OPM proposed to retain sole jurisdiction to make final suitability determinations and take suitability actions in these cases, OPM proposed that it would only make such determinations and take such actions after an agency has identified post-appointment conduct that appears to warrant an unfavorable suitability determination and has referred the matter to OPM.

Comments in response to OPM's proposed changes to implement post-appointment conduct-based suitability determinations and actions were numerous and addressed many different sub-topics related to this proposal. These sub-topics are addressed in the discussion that follows.

Numerous comments claimed that OPM lacks authority to take 5 CFR part 731 suitability actions based on post-appointment conduct for employees in the competitive service or career Senior Executive Service, and that doing so would constitute an unlawful overreach of its statutory and delegated authorities. See Comment 1393 for an example of such comments. OPM disagrees with this assessment of its authorities. As noted above in section II, Authority and Background, Congress has directed the President to prescribe regulations for the conduct of employees in the executive branch and authorized him to delegate his authority over personnel management functions. Specifically, the President has delegated to OPM the authority to prescribe suitability standards and to conduct investigations of suitability for appointment and continuing employment.

OPM's authority to require agencies to assess employees' post-appointment conduct to determine their ongoing suitability to remain in their positions is not new and this rulemaking proposed no substantive changes to this long-standing requirement. See, e.g., 76 FR 69601 (Nov. 9, 2011) and 89 FR 102675 (Dec. 18, 2024) (discussing 5 CFR 731.106(d)). The proposed change primarily addresses how agencies should resolve situations when their assessment of an employee's post-appointment conduct appears to warrant an unfavorable suitability determination. Although it is true that, since the MSPB's decision in Scott v. OPM, noted above, OPM has not taken suitability actions against employees for post-appointment conduct, this does not mean that OPM lacks authority to do so. Quite the contrary, OPM's proposal to make final suitability determinations and take suitability actions against employees based on post-appointment conduct aligns OPM's regulations and the suitability process with congressional and presidential intent to manage risk in the civil service.

Many of the commenters questioning OPM's authority to make final suitability determinations and take suitability actions for post-appointment conduct claimed that employee misconduct must be addressed under Chapter 75 procedures and that OPM has no authority to remove an employee for post-appointment misconduct under suitability. See Comment 1373 for an example. OPM disagrees and finds this viewpoint to represent a misunderstanding of congressional intent related to suitability actions. As noted above, in 2015, Congress added 5 U.S.C. 7512(F) to clarify that “a suitability action taken by the Office under regulations prescribed by the Office, subject to the rules prescribed by the President under this title for the administration of the competitive service”  3 is not within the scope of Chapter 75. This clarifying addition was part of a larger package of reforms in the Fiscal Year 2015 National Defense Authorization Act (FY 2015 NDAA) designed to improve the speed and effectiveness of Government personnel security, suitability, and credentialing reviews. These reforms were heavily influenced by Congress' response to tragic, potentially avoidable events had the Government had more robust personnel vetting processes in place. Following the Washington Navy Yard shooting in September 2013, when a trusted insider tragically killed 12 individuals at a Government facility, Congress held hearings examining necessary improvements to vetting processes highlighted by this event and other high-profile leaks of information ( e.g., the unauthorized disclosure and subsequent public release of classified U.S. Government information leaked by Edward Snowden to the media  4 ), and crafted legislation to improve the Government's ability to protect against risk posed by trusted insiders. For example, the same section of the FY 2015 NDAA that excluded suitability actions from the scope of Chapter 75 also directed action to develop strategies and capabilities to enable real-time, risk-managed personnel vetting decisions, increase access to criminal history information when determining an individual's suitability or fitness for employment, and improve insider threat detection and prevention. In passing this amendment, Congress meant to improve the Government's ability to mitigate risk by clarifying that suitability actions were never intended to follow Chapter 75 procedures.

In addition to congressional interest and action to improve the Government's ability to mitigate risk posed by employees whose post-appointment conduct renders them unsuitable, as noted above, the President has now delegated this authority to OPM. Through issuance of the Presidential Memorandum Strengthening the Suitability and Fitness of the Federal Workforce (90 FR 13683, Mar. 25, 2025), President Trump delegated authority to the OPM Director to make final suitability determinations and take suitability actions regarding employees in the executive branch based on post-appointment conduct.

Some comments portrayed OPM's position that it could take suitability actions based on post-appointment conduct as new and potentially politically motivated. See Comment 160 for an example. While the President's delegation of this authority to OPM is recent, OPM's position that such actions are under its authority is not new. In fact, in Scott v. OPM, OPM's position was that its authorities included the authority to take a suitability action based on post-appointment conduct. OPM notes that it argued that position when OPM was under leadership of an Administration representing a different political party than the current Administration. OPM therefore disagrees with characterizations of this policy as new or politically motivated.

Some commenters claimed that OPM lacks authority to take post-appointment conduct suitability actions for persons in career appointments to the SES. OPM disagrees. Although section 7543 does not include language akin to section 7512(F), Congress adopted subsection (F) to reverse an incorrect judicial interpretation of section 7512 and specified that subsection (F) was a clarification of congressional intent. Public Law 114-92, div. A, title X, sec. 1086(f)(9) (129 Stat. 1010) (identifying the amendment under the heading “Clarification regarding adverse actions”).

OPM does not interpret 5 U.S.C. 7543 to displace the President's and OPM's separate suitability authority when OPM acts under regulations prescribed under 5 U.S.C. 3301 and 7301 and the Civil Service Rules. Section 7543 governs actions covered by subchapter V of chapter 75. A suitability action under part 731 is taken under separate suitability authority, is subject to the procedures in this part, and is limited by the requirements of § 731.202 and the procedural protections in subpart C. OPM recognizes the SES-specific statutory scheme and therefore retains sole jurisdiction over any such action involving a career SES employee.

Generally, many commenters expressed a preference for current Chapter 75 procedures over OPM's proposal to make final suitability determinations and take suitability actions for employee post-appointment conduct. One commenter recommended OPM add consideration of what are commonly referred to as the “Douglas factors,” referring to a set of factors prescribed by the Merit Systems Protection Board for determining the appropriateness of penalties under Chapter 75, to the suitability determination process. See Comment 1053. OPM disagrees with the recommendation. The suitability determination process already provides a similar approach to evaluating conduct using additional considerations at § 731.202(c). The commenter's recommendation attempts to misapply a non-suitability process to suitability procedures and offers no explanation for how the additional considerations at § 731.202(c), which are already part of the suitability process, would fail to provide protections similar to the “Douglas factors.”

Many comments argued that OPM's proposal to make final suitability determinations and take suitability actions for employee post-appointment conduct is unnecessary because current Chapter 75 procedures provide an effective mechanism for agencies to address employee misconduct. See Comment 1373 for an example. OPM disagrees. First, OPM's proposed changes are necessary to bring suitability procedures in alignment with congressional intent and to carry out the President's directive in the March 20, 2025, Presidential Memorandum. Second, post-appointment conduct-based suitability actions provide a more effective tool for protecting the integrity and efficiency of the service from employee misconduct. A key distinction between Chapter 75 procedures and suitability actions is that suitability actions allow OPM to impose a rehabilitative governmentwide debarment from any position in the competitive service or appointment to the career SES for a period of up to three years. The ability to impose such a debarment better protects the integrity and efficiency of the service by preventing an employee who has engaged in serious misconduct from immediately re-entering the competitive service or career SES at another agency, a feature not found in Chapter 75 actions.

Another feature that makes OPM's proposal to take post-appointment conduct-based suitability actions more effective than Chapter 75 procedures relates to proposed updates to § 731.105(a)(1) that received comments. In § 731.105(a)(1), OPM proposed amendments to clarify that its authority to complete a suitability action continues when an employee, as defined in § 731.101, separates from employment. Several commenters stated that it appears inefficient to pursue a suitability action after an individual has withdrawn an application, an agency has withdrawn an offer of employment, or an appointee or employee has separated from employment. See Comment 487 for an example. OPM notes in response that the authority to complete a suitability action in the case of an applicant, appointee, or employee is not a change from current authorities in § 731.105(a)(1). OPM's proposed change simply clarifies that the distinction between an appointee or employee does not matter with respect to OPM's authority to complete an action after the individual has separated from employment. OPM disagrees, however, that it would be inefficient to complete a suitability action against an individual after he or she has separated. This is a key feature of suitability actions that make them more effective at managing risk than Chapter 75 actions. Under Chapter 75, an employee facing an action because of serious misconduct can escape being held accountable for his or her conduct by resigning or transferring to a new agency. OPM's ability to complete a suitability action and impose a governmentwide debarment in these situations provides better protection for all of Government by holding employees accountable and preventing someone who engages in serious misconduct from being held accountable by simply resigning or transferring to a new agency. This same approach is used presently in suitability actions to ensure that an individual whose conduct makes him or her unsuitable for Federal employment cannot avoid accountability and attempt to bounce from agency to agency. Applying this same principle to post-appointment conduct suitability actions fills this gap in the Chapter 75 process.

These considerations result in OPM concluding that the proposal to make post-appointment conduct-based suitability determinations and take suitability actions is necessary because current Chapter 75 procedures fall short. If an individual has engaged in serious misconduct that would result in a determination he or she is unsuitable for employment, posing a risk to either the efficiency or integrity of the service, the Government's ability to pursue an action and the penalty it may impose should not be determined by when the misconduct took place—either pre-appointment or post-appointment. Prior to this rulemaking, if the misconduct took place post-appointment, a trusted insider had more opportunity to avoid being held accountable for his or her conduct and even if held accountable, faced a lesser penalty than an individual who engaged in misconduct prior to Government service. Several agencies submitted comments directly on this point, indicating that Chapter 75 procedures are overly complex and often result in agencies choosing not to act and allowing unsuitable individuals to remain employed. See, for example, comments from Department of Homeland Security and Department of Education. Governmentwide, the Merit Principles Survey reports that only 41 percent of supervisors are confident they could remove an employee who committed serious misconduct. 5 This rulemaking addresses this gap. Suitability actions based on post-appointment conduct provide a better tool for holding Federal employees accountable for serious misconduct, ensuring Federal employees maintain high standards of integrity, conduct, and concern for the public interest.

OPM's proposal to retain sole jurisdiction for final suitability determinations and suitability actions for employee cases involving post-appointment conduct received several comments expressing concern that agencies would be better positioned to make these determinations and take any necessary suitability actions because they would be most familiar with the individual and his or her conduct, duties, and any unique circumstances. These commenters raised two primary concerns related to agency discretion: first, that OPM would act against another agency's employee without any input from the agency; and second, that the requirement to refer employee post-appointment conduct cases to OPM deprives agencies of their discretion to manage their personnel and resolve personnel matters under their own authorities. See Comments 067 and 452 for examples.

OPM recognizes that agencies are uniquely positioned to identify situations where an employee's conduct may warrant an unfavorable suitability determination and suitability action. This is why in § 731.105(b) and (d) OPM proposed a limit on its authority to take a post-appointment conduct suitability action against appointees or employees. OPM proposed that it would only make final suitability determinations and take suitability actions based on post-appointment conduct if the employing agency first made a proper and sufficient referral to OPM. The referral would include sufficient details of the facts of the conduct and circumstances, obtained via a background investigation or from internal agency records or information. This limitation on OPM's authority ensures that the employing agency retains autonomy and discretion in identifying those situations where an individual's conduct appears to warrant an unfavorable suitability determination. The agency will have the benefit of relying on its unique knowledge of the individual and the circumstances surrounding the conduct when evaluating it against the specific factors at § 731.202(b). This was the intent of the proposed language in § 731.103(b) that makes the employing agency responsible for assessing whether the employee's conduct would appear to warrant an unfavorable suitability determination.

Next, OPM notes that any impression that the proposed updates to 5 CFR part 731 would preclude an agency from discretionary authority to act on misconduct was a misunderstanding of the proposed rule. There is nothing in the proposed rulemaking that prohibits an agency from pursuing a disciplinary matter against an employee using Chapter 75 procedures or any other authority available to it. Agencies may still resolve disciplinary matters under Chapter 75 procedures. OPM acknowledges that not all post-appointment misconduct would warrant an unfavorable suitability determination and that agencies may prefer to resolve misconduct matters using an alternative authority. Under the proposed rule, agencies retain this discretion to identify when the level of misconduct would appear to warrant an unfavorable suitability determination and refer those matters to OPM for potential action. To further clarify that agencies retain discretion to resolve employee misconduct under alternative authorities, OPM in this final rule has clarified in §§ 731.103(b) and (g), 731.105(e), and 731.106(d) that agencies may make a referral to OPM when an employee's post-appointment conduct appears to warrant an unfavorable suitability determination for OPM to review and potentially take a suitability action.

When proposing in § 731.103(g) that OPM would retain sole jurisdiction to make a final suitability determination and take an action under this part in any case involving an employee for post-appointment conduct, OPM did not intend to prohibit agencies from acting on post-appointment conduct under another authority in situations where OPM decides not to pursue a suitability action after receiving an agency referral. OPM intended only to retain sole jurisdiction to take a suitability action in any case involving an employee for misconduct. OPM has clarified this intent by revising § 731.103(g) to state simply that it retains sole jurisdiction to take a suitability action in any case involving an employee for misconduct. In the event OPM were to decide not to make an unfavorable determination and take a suitability action based on an agency referral, this would not preclude an agency from pursuing an action under another authority for the same conduct. An OPM decision not to make an unfavorable determination and take a suitability action does not imply OPM finds the individual suitable. It is only a decision by OPM based on its review of the information available not to exercise its jurisdiction to make a determination and take an action under this part.

Most of the commenters who raised these concerns recommended that OPM instead delegate to agencies the authority to make final suitability determinations and take suitability actions in employee cases involving post-appointment conduct. See Comment 473 for an example. OPM notes that in the case of an appointee, in § 731.105(a), OPM proposed that both OPM or an agency acting under delegated authority could take a suitability action based on post-appointment conduct, with the limitation noted above that OPM would only take such an action on an appointee if the employing agency first made a referral to OPM. OPM has determined to retain sole jurisdiction over suitability actions for employees based on post-appointment conduct to ensure governmentwide uniformity in the application of this now explicitly expressed delegated authority from the President. As noted above, a suitability action includes the possibility of a debarment from positions at a specific agency or governmentwide, both representing significant consequences not included in Chapter 75 actions. Of note, § 731.205(a) limits debarment by agencies to positions within that agency, whereas OPM can debar the individual from examination for, and appointment to, the competitive service and career appointment in the Senior Executive Service, i.e., governmentwide. See § 731.204. As such, OPM has determined that in cases of post-appointment conduct suitability actions against employees it is most prudent to retain sole authority for this responsibility during the initial implementation. While it is true, as pointed out by some commenters, that the process of agencies reviewing cases and then referring them for a secondary review by OPM may introduce some duplication, OPM finds this preferable because it ensures uniformity and consistency in decisions. See Comment 1045. Additionally, agencies will not proceed through the suitability action procedures, and therefore the amount of duplicated effort should be minimal. After initial implementation of suitability actions based on post-appointment conduct OPM may revisit this decision later to assess whether agencies should be delegated authority to take such actions.

Some commenters recommending that OPM delegate authority for post-appointment conduct suitability actions to agencies raised concerns over whether OPM could manage the potential increased workload associated with agency referrals for these actions. See Comment 473. These commenters noted that under the current processes for pre-appointment conduct suitability actions, OPM timelines on processing agency referrals can vary and sometimes appear protracted. While OPM acknowledges these concerns, OPM believes these commenters have overlooked a crucial distinguishing characteristic of the work required to process a pre-appointment conduct action versus a post-appointment conduct action. For pre-appointment conduct referrals made by agencies to OPM, OPM must almost always further investigate the matter to obtain evidence substantiating the conduct. This involves obtaining evidence from sources outside of the Federal Government and adds days of processing time waiting for external sources to reply with information. In contemplating the nature of conduct most likely to result in a post-appointment conduct suitability referral from an agency, OPM believes that the evidence substantiating the conduct will already be available at the employing agency, thus greatly reducing any need for OPM to obtain additional evidence. OPM will require agency referrals to contain fully developed evidence relating to the post-appointment conduct. By mostly eliminating the need for OPM to conduct additional investigation upon receipt of the referral, OPM believes that the total labor hours and calendar days needed to process these actions will be shorter than those for pre-appointment conduct suitability actions.

Finally, one commenter raised a concern that agencies may face confusion on how to proceed when an individual newly appointed to a competitive service or career Senior Executive Service position and subject to investigation has already converted to an employee in another competitive service or career Senior Executive Service appointment. Comment 574. The commenter provided the example of an individual who is promoted from a non-supervisory competitive service position to a supervisory competitive service position and serves a new period of probation as a supervisor. It is OPM's intent that only OPM have authority to take a suitability action in the case of an individual who meets, or has met, the definition of an employee under 5 CFR 731.101. OPM has clarified § 731.103(a) to state that in a case involving an appointee where the individual has converted to an employee in a prior competitive service or career Senior Executive Service appointment, agency heads will consider the individual to be an employee and may make a proper and sufficient referral to OPM if the employee's conduct appears to warrant an unfavorable suitability determination.

Many commenters expressed concern that OPM's proposal to make final suitability determinations and take suitability actions based on post-appointment conduct would introduce political patronage and undermine the civil service merit system, recreating a “spoils” system, in violation of the Pendleton Act of 1883 and the Civil Service Reform Act of 1978 (CSRA). See Comment 104 for an example. In addition, many commenters suggested the rule would conflict with the Hatch Act by encouraging partisan political activities of Federal employees. See Comment 218 for an example.

This rulemaking will not undermine merit-based hiring practices, nor will it undermine the prohibition of civil service employees from using their positions for political purposes. The significant number of responses reflecting these concerns warrants emphasis that suitability determinations and actions are not subject to, nor do they have any bearing on, partisan political activities or coercion. Further, contrary to one commenter's concern that individuals seeking to work or working in the Federal civil service would be required to disclose their voting history and any political party preferences, this is simply not true. Comment 1189. Applicants, appointees, and employees are not asked about their voting patterns or political preferences during any personnel vetting process, except for the unique circumstance of voting in a foreign election when under consideration for eligibility for a national security sensitive position or eligibility for access to classified information. Nothing in OPM's rulemaking changes this. Any consideration of partisan political preferences in suitability procedures remains unlawful under the Merit Systems Principles codified at 5 U.S.C. 2301, and this rule does not alter those protections in any manner. In fact, it strengthens the application of Merit Systems Principles by providing a mechanism to ensure that “[a]ll employees” will “maintain high standards of integrity, conduct, and concern for the public interest.” 5 U.S.C. 2301(b)(4).

To further clarify this point, OPM has inserted a new § 731.102(c) stating expressly that suitability determinations and actions must be applied consistent with the Merit Systems Principles set forth in 5 U.S.C. 2301 and the prohibition against unlawful employment practices set forth in 5 U.S.C. 2302(b). This new provision underscores that determining an individual's suitability for Federal service is based on whether an individual's identifiable character and conduct may have an adverse impact on the integrity or efficiency of the service—not partisan political considerations. In making this assessment, OPM or an agency must base its suitability determination on the presence or absence of one or more of the specific factors in § 731.202(b)—again, not based on politics.

In this context, OPM considers its proposal to retain sole jurisdiction over suitability actions for employees based on post-appointment conduct to provide additional protections for employees (in addition to the express protections that OPM is reinforcing via the new § 731.102(c)). As noted above, the employee's agency must first identify misconduct that appears to warrant an unfavorable determination and then it may refer the matter to OPM. If referred to OPM, staff at OPM will review the evidence, assess the misconduct against the specific factors at § 731.202(b), and make a final determination. This referral process creates a degree of separation between the employing agency and the final authority to take a suitability action, allowing for an objective review of the evidence presented by the employing agency and eliminating the concerns raised by commenters related to politicization of the suitability process. Finally, this rulemaking supports the spirit of the CSRA by improving Government operations and productivity through removal of individuals who no longer support the integrity and efficiency of the service.

OPM notes that the proposed language in § 731.103(a) did state that the head of an agency would make post-appointment conduct referrals to OPM, and this language may have contributed to commenters who read the proposed rule believing the suitability determinations would be predominantly made by political appointees. OPM recognizes that within an appointee's or employee's agency it is unlikely the head of an agency will be directly involved in making a referral to OPM, as this function is typically carried out by staff delegated this duty within the agency. As such, to add clarity to this point, OPM will add language to §§ 731.103(b) and 731.105(b) and (d) making it clear that the referral from the agency may be made by the agency head or one or more people the agency head designates.

Some commenters reacted to the requirement for agencies to send referrals to OPM as a new process that appears vague. See Comment 156. OPM notes that the requirement for agencies to refer suitability cases to OPM has existed for decades and is not new. OPM provides clear instructions to agencies on submitting referrals in supplemental guidance issued under § 731.102(b). OPM makes this guidance available to the public on its website.

A large number of commenters opposed OPM's proposal to introduce post-appointment conduct-based suitability actions to the suitability and fitness regulations because of concerns that allowing such actions would strip employees of due process rights. The concerns surrounding the topic of due process varied. Some commenters claimed that employees would have no due process rights under the proposed rule. Others misunderstood proposed changes at 5 CFR 731.304(b) and 731.404(b). Finally, some opposed the proposal for post-appointment conduct suitability actions because they believe suitability action procedures do not provide sufficient due process when compared to the due process afforded to individuals for Chapter 75 actions. For examples, see Comments 038, 025, and 017, respectively.

OPM disagrees with commenters who claimed that individuals subject to a post-appointment conduct suitability action would have no due process under OPM's proposed rule. For this claim to be true it would require 5 CFR part 731 to provide no procedures to protect for fairness and impartiality prior to the Government taking a suitability action. This is simply false. The suitability regulations provide several procedural safeguards. The first procedural protection is the limitation placed on OPM and agencies regarding the type of conduct that can be considered when determining an individual's suitability. Section 731.202(a) requires that OPM or an agency must base its suitability determination on the presence or absence of one or more of the specific factors in § 731.202(b). In the event OPM or an agency makes an unfavorable determination, subparts C and D of 5 CFR part 731 provide the following procedural protections:

• Notification in writing of the proposed action, including the specific reasons for the proposed action;

• The right to review the materials OPM or the agency relied upon to reach the unfavorable determination;

• The right to respond to the proposed action in writing;

• The right to representation; and,

• Notification in writing of the decision regarding the final suitability action.

When OPM or an agency takes a suitability action at the end of this process, individuals subject to a suitability action also have the right to appeal the action as described in 5 CFR part 731, subpart E. OPM notes that it proposed no changes to the right to appeal a suitability action contained in subpart E in this rulemaking. Many of the commenters who claimed there was no due process for suitability actions under the proposed rulemaking also claimed there was no right to appeal a suitability action. This claim is also wholly false.

Many commenters voicing concern about due process focused on language contained in the proposed paragraphs at 5 CFR 731.304(b) and 731.404(b) that states the employing agency of an appointee or employee subject to a suitability action requiring removal must remove the individual from its rolls within 5 workdays from the final decision. See Comment 579 as an example. These commenters appear to have read this language out of context and to have misunderstood OPM's proposed changes to these sections. The requirement to remove an appointee or employee subject to a suitability action within 5 workdays from the final decision was not a proposed change from the existing requirements in §§ 731.304 and 731.404. Commenters claimed that under OPM's proposed rule an agency could discover an appointee or employee's misconduct and the individual could be subject to a suitability action and removed 5 workdays later with no due process. These commenters appear to have failed to understand that the requirement for removal from the rolls after the final decision included in §§ 731.304 and 731.404 comes after the suitability actions procedures contained in §§ 731.301-303 or 731.401-403, namely, the procedures described in the preceding paragraph.

One commenter did note that existing language at 5 CFR 731.304 and 731.404 at the time of the proposed changes included a requirement that when notifying an individual in writing of a final decision, the notification must include informing the individual of the right to appeal an unfavorable decision in accordance with subpart E of this part. See Comment 937. The commenter noticed that the requirement to notify individuals of the right to appeal was absent from the proposed §§ 731.304(a) and (b) and 731.404(a) and (b) and recommended it be restored. OPM agrees that a requirement to include notification of the right to appeal should be included in the suitability action procedures. The omission was inadvertent, and OPM has included it in the final rule at §§ 731.304(b) and 731.404(b).

The proposed changes at §§ 731.304 and 731.404 instead were intended to clarify decision-making authority for suitability actions and to require independence in decision-making. Specifically, in § 731.304 OPM proposed to clarify that the OPM Director, or designee, will make the final decision regarding a suitability action. When the OPM Director delegates such decision-making, the OPM employee authorized to make the decision would be required to be appropriately independent from the employee who made the suitability determination and proposed the action. For example, the employee adjudicating the suitability determination ( i.e., proposing a suitability action) may not participate in discussions with or advise the OPM official authorized to make the final suitability decision. OPM also proposed to prohibit ex parte communication with the OPM official authorized to make the final decision, applying procedural protections akin to those provided by 5 U.S.C. 554(d). Although 5 U.S.C. 554 and 557 do not apply to suitability actions, OPM believes that the type of legal protections provided by those procedures are appropriate for suitability actions, given the potential significant consequences. In § 731.404 OPM proposed to amend the process by which a final decision on a suitability action is made by an agency, in cases where agencies are permitted to take suitability actions. OPM proposed that the agency head, or designee, will make the final decision regarding a suitability action. OPM proposed the same requirements for independence in decision-making and prohibiting ex parte communication.

Some commenters raised concerns about the regulation placing final decision authority in the OPM Director or an agency head and instead recommended that OPM revise the regulations to require decisions be made by lower-level career civil servants. OPM views this decision process as necessary to ensure that the OPM Director or agency head can supervise adjudicators sufficiently to avoid the constitutional concerns that vesting subordinate officials with final executive authority would engender. Article II of the Constitution vests the executive power in the President, who must rely upon subordinates to exercise his authority. The Supreme Court has held that only principal officers who are appointed by the President with Senate consent can make unreviewable decisions for the executive branch. See United States v. Arthrex, Inc., 594 U.S. 1 (2021). Adjudicators assigned to make suitability determinations under this rule exert significant authority and thus, under Arthrex, must be properly supervised by a principal officer (such as the OPM Director). For that reason, OPM is not adopting the recommendation made by some commenters that the regulations be amended to require suitability determinations be made only by career Federal staff. See Comment 009. Finally, one commenter recommended that OPM require deciding officials be individuals who have no intention of leaving Federal service within one year of making the final decision. Comment 528. OPM also is not accepting this recommendation as it would be impractical to implement: there is no existing mechanism by which the agencies could reliably predict when an employee may decide to leave Federal service.

OPM did receive one comment related to the requirement to remove an appointee or employee within 5 workdays from the final decision when the suitability action includes removal under a post-appointment conduct suitability action. The commenter highlighted that in the context of post-appointment conduct suitability actions, there is a much higher likelihood that an appointee or employee subject to a suitability action may be working for the Government outside of the United States or a United States territory. Comment 030. The commenter noted that it may be impractical in these instances for an employing agency to remove an individual from its rolls within 5 workdays due to the potential need for additional planning to transition the individual out of the workforce. Although OPM appreciates this comment, OPM does not believe any change to the requirement is required. In these situations, the agency will have ample advance notice of a potential unfavorable suitability determination and action to allow for planning for the individual's removal and transition out of the workforce. Notably, in cases involving post-appointment conduct, it will be the agency that first identifies the conduct that may warrant an unfavorable determination and then refers the matter to OPM and the agency also receives notice in the event OPM proposes to take a suitability action. While OPM agrees that any post-appointment conduct suitability action on an appointee or employee working outside of the U.S. or a U.S. territory will require careful planning by the employing agency, OPM does not believe the need for such planning should delay the Government's ability to protect the integrity and efficiency of the service by removing the individual promptly.

As noted, the final concern commenters raised related to OPM's proposal to include post-appointment conduct suitability actions in the regulation is that employees subject to a post-appointment conduct suitability action would receive diminished due process compared to what individuals receive under Chapter 75. While OPM acknowledges that there are differences in procedures between adverse action procedures under Chapter 75 and suitability actions procedures, to include differences in the scope of reviews, OPM disagrees that its proposal to allow for suitability actions based on post-appointment conduct would diminish the individuals' due process rights. Due process is simply the right to the process, or procedures, due to the individual based on the action taken. OPM has not proposed any changes that would diminish the process an individual receives under the suitability action procedures. The only proposed changes to the suitability actions procedures are the additional requirements for independence in decision-making and the prohibition against ex parte communications noted above. Individuals, whether applicants, appointees, or employees, will receive the same due process they receive today for suitability actions based on pre-appointment conduct, to include appeal rights contained in 5 CFR part 731, subpart E. It is true that some suitability actions for post-appointment misconduct may be actions that would have previously been processed under Chapter 75. In these instances, the process an individual receives may be different than what the individual would have received under Chapter 75. The individual will still, though, receive the process that is due under 5 CFR part 731. Prior to this rulemaking, OPM is unaware of any substantial claims that individuals were not afforded sufficient due process in suitability actions when taking such actions under 5 CFR part 731 against applicants, appointees, or employees based on pre-appointment conduct, even when such actions required removal. OPM disagrees that individuals subject to a suitability action based on post-appointment conduct suffer diminished due process, because they will experience the same process that has been due for suitability actions previously with no substantial change. To strengthen due process protections, in the Final Rule, OPM is expanding the restrictions on ex parte communications in § 731.304(a) and § 731.404(a) to ensure that the official authorized to make the final decision may not consult with, receive advice from, or communicate with the employee who proposed the suitability action concerning the merits of the proposed action, except on notice to the respondent and as part of the record.

OPM proposed amendments to this regulation clarifying that suitability determinations and actions taken based on an internal agency investigation fall under the scope of determinations and actions already required to be reported into the Central Verification System or its successor as part of continuous vetting. Several commenters raised concerns that incorrectly interpreted the amendments to expand suitability reporting requirements and potentially raise new privacy concerns. See Comment 017 as an example. This is a misreading and misunderstanding of existing requirements. Commenters suggested the rule fails to specify adequate safeguards concerning data accuracy, security, necessity, and permissible use, and recommend stringent compliance standards to avoid liability. These matters are outside the scope of 5 CFR part 731 and are instead addressed, as required by the Privacy Act of 1974, in the System of Records Notice (SORN) covering these records. The Central Verification System or any successor system is operated by the Department of War (DoW) and is covered by the DoW's Personnel Vetting Records System. The SORN for this system may be found at 83 FR 52420.

OPM received one request seeking a method for agencies to report suitability actions on uninvestigated applicants in the Central Verification System, or its successor. See Comment 004. OPM proposed no changes to reporting suitability actions on uninvestigated applicants but may consider this concern as part of future personnel vetting reform efforts.

OPM received many comments that incorrectly believed that OPM's proposed rule was establishing a new requirement for continuous vetting. The requirement for individuals covered by the 5 CFR part 731 to be subjected to continuous vetting existed within the rule prior to OPM's proposed rule and OPM proposed no changes to this requirement. As such, these comments are considered outside the scope of this rulemaking. OPM did propose clarifying language at § 731.106(d)(1) to identify where requirements for handling internal agency information in the context of continuous vetting may be found. One commenter expressed concerns with the reference to “internal agency sources” and asked for clarification on what kind of internal agency information would be deemed credible. See Comment 960. The commenter worried that hearsay or gossip might be considered as evidence for a suitability determination and action. A suitability action must be supported by preponderant evidence, that is, the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than untrue. OPM proposed no changes that would alter the way evidence is evaluated in the suitability adjudication process. The language identified by the commenter serves only to point agencies to requirements for handling internal agency information in continuous vetting.

One commenter raised questions of the need for post-appointment conduct suitability actions to help implement the Trusted Workforce 2.0 initiative and continuous vetting. See Comment 1065. The commenter referenced a Government Accountability Office (GAO) May 9, 2025, report ( https://www.gao.gov/assets/gao-25-107325.pdf ) of a qualitative survey it conducted with some agencies on their perceptions of improved risk management delivered by the initiative at the time of the report. The commenter focused on the report's finding that, while most agencies reported some improvement in risk management, the improvement was not yet substantial. The commenter questioned whether a need for post-appointment conduct suitability actions truly exists if the reform initiative has not yet had a significant governmentwide impact on risk management. OPM disagrees with the commenter's conclusions. OPM acknowledges that the Trusted Workforce 2.0 initiative launched in 2018; however, the reliance on that date by the commenter fails to acknowledge that the initial stages of reform focused on eliminating a backlog of investigations, securing vulnerable IT systems, and establishing a new vetting policy framework. At this time, enrollment of the Federal workforce into continuous vetting is still underway for individuals occupying positions that are non-sensitive, meaning not involving national security duties. The true benefit of post-appointment conduct suitability actions will be realized as continuous vetting identifies concerning post-appointment conduct. Establishing post-appointment conduct suitability actions now positions the Government to fully protect the integrity and efficiency of the service through suitability actions once continuous vetting is fully implemented.

OPM received comments related to its proposal to remove references to 5 CFR part 315 throughout the rule. One of the comments on this topic failed to properly understand the references to part 315, believing they applied to reductions in force, which is found in part 351. See Comment 1402. Another comment described OPM's proposal to remove the reference as premature before E.O. 14284 has been fully implemented. See Comment 415. OPM has completed the rulemaking required by E.O. 14284. (90 FR 26727, June 24, 2025). Commenters appear to have misunderstood the prior inclusion of the reference in the context of the rule. See, e.g., Comment 474. The rule previously only referenced 5 CFR part 315 as an example of non-suitability authorities an agency may use to take an action. The inclusion or exclusion of the reference in the rule has no impact on authorities related to probationary status for Federal employment nor does it impact the types of positions subject to suitability. As such, OPM finds it prudent to remove the reference to 5 CFR part 315 as an example of an authority under which an agency may take an action pursuant to E.O. 14284.

OPM received comments on its proposal at § 731.202(d) to require persons responsible for suitability screening, review, or making suitability determinations under this part to be trained in accordance with national training standards for suitability adjudicators issued in supplemental issuances, as described in § 731.102(b). The comments collectively questioned when the training standards would be developed, how agencies would obtain training for staff, the timeline for requiring compliance with new training standards, and costs associated. See Comment 1053 for an example. National training standards for suitability adjudicators and the requirement for persons performing suitability adjudication-related duties to be trained in accordance with these standards have existed since August 2012 when first established by supplemental issuance in accordance with § 731.102(b). OPM provides governmentwide training that complies with these standards to agency staff under existing interagency agreements covered by existing budgets. OPM is adding this requirement in the final rule to move the requirement from supplemental issuance to regulation, formalizing the existing requirement. OPM has not adjusted the cost impact as the establishment of this previously existing requirement in the rule will not impact costs at agencies.

OPM received several comments that the comment period afforded for comment on the proposed rule violated the Administrative Procedure Act (APA). See Comment 028 for an example. They argued that the comment period following the proposed rule, which extended to July 18, 2025, was unlawfully short, in violation of the APA. The commenters based this argument on multiple sources—first, the APA's mandate that an “opportunity to participate” on proposed rules be provided following a notice of proposed rulemaking; second, E.O.s 12866 and 13563, which specify that comment periods should “generally” be at least 60 days; and, third, the Supreme Court's holding in Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015), and related caselaw, which generally stipulate that the same procedures be used to amend a rule as were used to enact that rule.

Respectfully, OPM rejects the argument that the comment period was inadequate as a matter of law or policy. As multiple appellate courts have held, a 30-day comment period is generally the minimum needed to comply with the APA. 6 In Chamber of Commerce of United States v. U.S. Securities and Exchange Commission, the Fifth Circuit upheld a 45-day comment period against the charge that it was legally insufficient. 7 It simply is not the case that the APA requires longer than 45 days for the public to provide comment.

The commenters' reliance on E.O.s 12866 and 13563 is similarly misplaced. E.O.s 12866 and 13563 only specify that comment periods should “generally” be at least 60 days. The policy rationale is that stakeholders should have adequate opportunity to meaningfully participate in the notice-and-comment process. Concerning the present rulemaking, OPM received over one thousand four hundred distinct comments, offering nuanced perspectives on virtually every aspect of the proposed rule. Factually, it cannot be said that the comment period was insufficient to allow for meaningful feedback on the proposed rule given the voluminous feedback that OPM did receive. 8 In its proposed rule, OPM decided that a 30-day comment period would be adequate. However, at the request of commenters, OPM extended the comment period for an additional fifteen days. (90 FR 29512, July 3, 2025).

Accordingly, the 45-day comment period provided by OPM, which included a 15-day extension from the usual APA-required minimum at commenters' request, provided a reasonable opportunity for public comment.

Further, nothing in Perez stands for the proposition that the length of comment periods to initially promulgate and then amend a regulation must be identical. OPM promulgated 5 CFR part 731 through notice and comment rulemaking and is amending it through the same procedures. This comports fully with Perez.

Many commenters expressed concerns that OPM's proposal to make final suitability determinations and take suitability actions based on post-appointment conduct and to modify several of the specific factors at § 731.202(b) would dissuade qualified individuals from attempting to join the Federal workforce and prompt attrition among experienced staff. The commenters provided several different reasons they believe the proposed changes will negatively impact hiring and retention. See Comments 042, 060, and 1054 for examples.

OPM disagrees that its rule will negatively impact retention or morale. Many of these negative comments appear to be based on an incorrect understanding of OPM's proposal. Commenters cited the elimination of appeal rights and a five-day removal period with no opportunity to respond as negatively impacting employee morale. As discussed in section III.B.2.e, Due Process Concerns, these reasons reflect a fundamental misunderstanding of OPM's proposals and thus this final rule. Some commenters also imply that a very large number of employees will be removed under this rule. OPM notes that, while it estimates a portion of actions taken under Chapter 75 will be taken as suitability actions in the future, OPM did not estimate a significant increase in the number of individuals that would be removed whether under Chapter 75 or suitability actions. A proper understanding of revisions to this regulation should not deter qualified applicants from seeking Federal employment or discourage Federal employees from maintaining their positions. In fact, OPM expects the shift in post-appointment suitability actions to improve the integrity of, and public confidence in, the Federal workforce. OPM also notes that the failure to address unsuitable conduct by agency employees can create a toxic work environment that itself harms recruitment and retention. The audit of the Federal Deposit Insurance Corporation, which revealed longstanding and gross abuses of authority by senior leaders which were rarely addressed, is a recent example of this phenomenon. 9 The audit noted employees would quit or move within the agency rather than endure abusive behavior. 10 OPM believes that post-appointment suitability actions will improve the integrity of the Federal workforce and thereby make agency employment more attractive to prospective employees.

OPM acknowledges commenters' concerns that some applicants may perceive post-appointment suitability actions as increasing the risks associated with Federal employment. However, OPM notes that this rulemaking is being implemented alongside broader governmentwide efforts to strengthen merit-based recruitment and hiring, including implementation of OPM's Merit Hiring Plan. 11 These initiatives are designed to attract highly qualified candidates and improve the applicant experience. OPM therefore does not agree that this final rule will deter qualified individuals from seeking Federal employment. Rather, OPM believes that maintaining appropriate standards of suitability and conduct supports public confidence in the Federal workforce while remaining fully consistent with ongoing efforts to recruit and retain talented employees.

OPM received individual or small sets of comments on several other miscellaneous topics. One commenter recommended that OPM amend § 731.202 to include a provision that suitability determinations and actions must be applied consistent with 5 U.S.C. 2302(b), which establishes prohibited personnel practices. OPM agrees with this comment and is adding a new § 731.102(c) that provides that suitability determinations and actions must be applied consistent with the Merit Systems Principles set forth in 5 U.S.C. 2301 and with 5 U.S.C. 2302(b), setting forth prohibited personnel practices. OPM also is revising the Authority citations for part 731 to reflect this addition.

OPM received no comments on the proposed changes to the definitions at § 731.101 and is adopting them as proposed.

Some commenters requested OPM provide guidance on how this rule will be implemented. See Comment 1319 for an example. This rulemaking is prospective starting at the effective date. That means that agencies cannot apply the updated language in the specific factors at § 731.202(b) when proposing or taking an action until the effective date of this rule. Similarly, agencies cannot make referrals to OPM for consideration of post-appointment conduct suitability actions until the effective date of this rule. Post-appointment conduct occurring prior to the effective date of this rule but that is referred to OPM on or after the effective date may be considered for a suitability action by OPM consistent with applicable law. Finally, conduct that was previously known by an agency at the time it made a favorable suitability determination may not be used as the sole basis for a post-appointment conduct suitability action against an appointee or employee.

This rule is needed to improve the efficiency, rigor, and timeliness by which OPM and agencies vet individuals for risk to the integrity and efficiency of the service. An agency currently must rely on the protracted Chapter 75 process when the agency identifies conduct that poses risk to the efficiency and integrity of the service. Agencies and managers report frustration with not being able to take a suitability action after finding an employee unsuitable for continued employment. Agencies reported they often decline to act because the Chapter 75 process is perceived as too difficult, leaving unsuitable employees in the workplace. Allowing employees who engage in gross—and at times criminal—misconduct to remain in their positions undermines the integrity of the Federal service.

This final rule also brings suitability processes into alignment with presidential direction and congressional intent. The suitability factors that are being introduced by this rulemaking are needed to emphasize that individuals serving for, or on behalf of, the Government are expected to comply with legal and ethical obligations. Specifying these factors in the regulations will provide greater clarity to agencies as well as to applicants and employees as to the types of conduct by which an individual may be found unsuitable.

This rule permits OPM to take suitability actions for post-appointment conduct on specified positions, revises suitability action procedures, and incorporates additional suitability criteria used in making suitability determinations and taking suitability actions. Applicants, appointees, and employees in the competitive service, in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and in the career Senior Executive Service will be impacted by these changes. Applicants, appointees, and employees in the excepted service will be impacted by changes incorporating new factors at § 731.202(b) as these factors are required to be used as the minimum standards of fitness for excepted service positions. Contractors and nonappropriated fund employees will also be impacted by the updated factors, as agencies must exercise due regard to the minimum fitness standards in 5 CFR part 731 and supplemental guidance for these populations as well.

OPM will also be impacted by the proposed changes as the final rule will increase the number of suitability actions OPM will be required to conduct. OPM anticipates the impact to MSPB to be neutral. Any removal action on an employee for post-appointment conduct currently processed under Chapter 75 that results in an appeal to MSPB and might be processed instead as a suitability action will still likely result in an appeal to MSPB. OPM assumes an individual willing to appeal a Chapter 75 action to MSPB would be equally willing to appeal a suitability action to MSPB. OPM acknowledges that it proposed to move the venue for suitability action appeals from the MSPB to OPM in the rulemaking Suitability Action Appeals. See 91 FR 5352 (February 6, 2026). Any impacts of that proposed change would, if adopted, be addressed in a final rule in that rulemaking.

Commenter 939 suggested that OPM's acknowledgement that the number of MSPB appeals will not meaningfully change is a tacit admission that this rule will not change the number of removals. The commenter also asserted that implementing new processes would “create disruption with no real benefit.” Id.

OPM disagrees. OPM made no admission nor gave any estimate on the total number of removals, whether stemming from Chapter 75 or suitability actions, that would result from its rulemaking. OPM simply presented the rationale for why it believes this rule will have a neutral impact on MSPB. In fact, OPM believes there are many types of adverse actions taken under Chapter 75 today that do not result in removals, such as suspensions for more than 14 days, reductions in grade, or reductions in pay, that could potentially result in a post-appointment conduct suitability action under this final rule. Because the authority to take a suitability action for the types of misconduct that result in non-removal Chapter 75 actions is new, there is insufficient data to permit OPM to reliably predict how many of those non-removal Chapter 75 actions may become removals under suitability. For that reason, OPM did not attempt to quantify how many non-removals under Chapter 75 may become removals under suitability. Additionally, many of those non-removal actions under Chapter 75 still result in appeal rights to the MSPB. Even if OPM had attempted to quantify the number of net new removals resulting from this rule, the impact on MSPB would still be neutral: an appeal to MSPB of a suspension for more than 14 days that changes to an appeal of a suitability action still counts as a single appeal to MSPB. As such, OPM disagrees with the commenter's conclusion that OPM claimed there would be no more removals with this final rule or that there would be no benefit from the rule.

Commenter 939 also suggested that the rule would not change how quickly removals can be effected as demonstrated by OPM's admission that the number of MSPB appeals would not significantly change. OPM is not certain how the commenter reached the conclusion that the speed with which an agency could effectuate a removal would be unchanged simply because the number of MSPB appeals would not meaningfully change. OPM continues to believe that the suitability action process run by OPM is faster compared to adverse action processes at agencies. There are only four potential suitability actions, whereas adverse actions under Chapter 75 come with a multitude of various possible penalties an agency must debate internally and compare to its table of penalties, if applicable. These successive reviews and deliberations take time and slow down the process. Moreover, permitting OPM to take suitability actions against employees for post-appointment conduct, consistent with the President's direction, will allow agencies to address risk to the integrity or efficiency of the service with the process designed to protect the Government from such risk: suitability actions.

Focusing solely on the benefits of the rulemaking tied to streamlining processes and reducing costs fails to account for the rule's positive impact on the rigor of vetting processes and risk mitigation. Using suitability actions when an employee has engaged in serious misconduct instances will achieve better risk protection than Chapter 75 procedures because if the employee's conduct warrants an action, it always results in removal, instead of a lesser penalty. Suitability actions also allow for debarments to prevent individuals from immediately re-entering Federal service in a competitive service position with another agency.

Although not quantified in the analysis, debarments also deliver agencies cost savings by avoiding the costs associated with managing individuals who bounce from agency to agency with a track record of misconduct that would make them unsuitable for Federal service. The intangible benefits of holding the workforce accountable with suitability actions for serious post-appointment misconduct and not permitting individuals to avoid consequences by simply resigning or transferring agencies will provide better protection of the integrity and efficiency of the service than is currently afforded under Chapter 75 procedures. As discussed throughout this rule, OPM is unpersuaded that these changes will not have a positive impact on the efficiency and integrity of the service. OPM expects this rule to reduce time and costs while promoting an impartial and effective suitability process that produces sound decisions, adding rigor to vetting processes.

One commenter expressed concerns with OPM's impact and cost analysis, stating that the analysis did not appear to meet the requirements of OMB Circular A-4 and therefore fails to justify the rulemaking. See comment 1065. OPM disagrees. Agencies, working with the White House, have a great deal of discretion in assessing impacts and costs based on the facts of the situation. As courts have repeatedly held, “executive orders are not judicially enforceable.”  12 That is, as a general matter, executive orders and other White House guidance on the regulatory process bind executive agencies only as a matter of the internal management of the executive branch. Thus, several Federal courts have specifically held that there is no legal requirement that agencies comply with the requirements specified in E.O. 12866 and related guidance. 13

One-time Implementation Cost: This rule will affect the operations of most Federal agencies in the Executive branch—ranging from cabinet-level departments to small independent agencies. To comply with the regulatory changes in this rule, affected agencies will need to review the rule and update their policies and procedures. For this cost analysis, the assumed average salary rate of Federal employees performing this work is the rate in 2026 for GS-14, step 5, from the Washington, DC, locality pay table ($163,104 annual locality rate and $78.15 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $156.30 per hour. We estimate that, in the first year following publication of the final rule, the effort to update policies and procedures will require an average of 250 hours of work by employees with an average hourly cost of $156.30. This effort will result in estimated costs in the first year of implementation of about $39,075 per agency, and about $3.1 million in total governmentwide.

Savings from Fewer Chapter 75 Removals: In permitting OPM to take suitability actions for post-appointment conduct, OPM anticipates a decreased level of effort for agencies as they will refer employee cases to OPM for suitability action rather than pursue Chapter 75 removals. In fiscal years 2022 and 2023, an average of 2,452 Federal employees were removed under Chapter 75, or Chapter 75 equivalent, procedures for post-appointment misconduct. 14 OPM estimates that approximately 50 percent, or 1,226, of these Chapter 75, or Chapter 75 equivalent, removal actions presently taken by agencies could be referred to OPM for suitability actions instead. Some commenters questioned OPM's estimate or speculated whether additional employees would be subject to suitability determinations and actions, while others noted that the net estimated savings could increase or decrease depending on the accuracy of this estimate and portrayed the estimate as arbitrary. See Comments 156, 533, and 1393 for examples. This rule does not change the types of positions subject to suitability determinations and actions. Positions subject to suitability determinations and actions will continue to be those in the competitive service, in the excepted service where the incumbent can be noncompetitively converted to the competitive service, or a career appointment to a position in the SES. As such, OPM disagrees with commenters portraying the estimate as illogical or arbitrary. Moreover, the commenters appear to fail to appreciate that OPM is providing only an estimate to demonstrate that its rule provides an opportunity for cost savings. OPM acknowledges that the extent to which agencies adopt the opportunity to refer cases to OPM for removal under suitability will ultimately determine the amount of cost savings realized. If a higher percentage of removals move from being taken under Chapter 75 to being taken under suitability, the cost savings will increase. If a lower percentage of removals move from being taken under Chapter 75 to being taken under suitability, the cost savings will decrease. The estimate serves simply to demonstrate the magnitude of potential savings. OPM also believes that because Chapter 75, or Chapter 75 equivalent, removals generally involve such serious conduct that the individual would fairly likely also be unsuitable, it is possible that the estimate of 50% is conservative. OPM believes, therefore, that estimating 50% of employees subject to Chapter 75, or Chapter 75 equivalent, removals would be individuals who were also subject to suitability is fair and fully logical.

Another commenter who took issue with OPM's estimates of potential increased workload for OPM referenced a number of potential suitability actions that were not substantiated by any source and also suggested, without any basis, that each suitability case be required to be reviewed by three suitability staff members. See Comment 462. OPM is not adjusting its cost estimate based on these comments. The average number of collective hours for supervisory and HR personnel to take a Chapter 75 action is 600 hours. The cost analysis assumes an average salary rate of Federal supervisors and senior HR personnel performing this work at the 2026 rate for a GS-15, step 5, from the Washington, DC, locality pay table ($191,850 annual locality rate and $91.93 hourly locality rate). OPM received some comments questioning the use of the Washington, DC locality for personnel performing these functions. See Comment 533. Commenters noted that Federal employees are stationed across the country. OPM acknowledges that some personnel performing these functions may be outside of the Washington, DC locality; however, at present most Federal agencies are headquartered in the Washington, DC locality. These actions require several layers of approval that most often involve personnel at the agency headquarters. OPM assumes the total value of labor is 200 percent of the hourly wage rate, for a total average hourly cost of $183.86. While a portion of the 600 hours would still fall to the agency to establish a fulsome referral to OPM for a suitability action, OPM anticipates that referring the matter to OPM for a suitability action would relieve the agencies of at least thirty percent of the work involved in taking a Chapter 75 action, prior to appeals. This implies total savings of $33,095 per case and a total annual savings of $40.6 million.

Some commenters questioned the assumption that agencies would save at least thirty percent of the work involved in taking a Chapter 75 action, prior to appeals. See Comment 156 for an example. Agencies will still be required to develop and prepare the evidence of conduct believed to warrant an unfavorable suitability determination prior to making a referral to OPM. Once a referral is made, the agencies will be relieved of the requirements, for example, to draft, review, and approve a proposed action, review and respond to any response by the employee, and draft, review, and approve a final decision. Based on OPM's own experience, OPM believes that the labor hours required for these activities represent at least thirty percent, or approximately 180 hours, of the total estimated hours for agencies to process a Chapter 75 action, prior to appeals.

Cost Increase to Handle Agency Post-Appointment Conduct Referrals: OPM would likely need to increase the number of resources to handle the new workload from agencies' referrals for suitability determinations and actions on employees based on post-appointment conduct. Even if some agency referrals for determinations and actions on employees for post-appointment conduct do not result in a suitability action, OPM estimates it would likely need eighteen additional adjudicators performing the work at the 2026 rate for a GS-13, step 5, from the Pittsburgh, PA locality pay table ($124,720 annual locality rate and $59.76 hourly locality rate). OPM assumes the total value of labor is 200 percent of the hourly wage rate, for a total average hourly cost of $119.52 and a collective annual cost of $4.5 million for all eighteen additional employees. OPM received comments questioning the grade level and locality assumptions used for this estimate, as well as questioning whether 18 additional staff would be sufficient to handle the increased workload. See Comments 533, 004, and 938 for examples. OPM used the GS-13 grade level for its assumption because this is the grade level of OPM suitability adjudications staff currently processing suitability actions. OPM used the Pittsburgh, PA locality for its analysis because that is the primary location of OPM's suitability adjudications staff. OPM is not altering these assumptions in its analysis. In calculating the number of additional staff needed, OPM used information on the amount of labor hours needed by staff to process a suitability action along with the estimated increased number of suitability actions to determine the equivalent full-time-equivalent staff it would need. OPM appreciates the recommendations in Comment 938 to consider adding staff at a lower grade level, where possible, and will take this into consideration in refining its staffing plan to accommodate this new workload. OPM agrees with comments that the rate of agencies' adoption of the opportunity to submit post-appointment conduct suitability referrals could alter OPM's staffing needs. See, e.g., Comment 473. OPM does not, however, believe those concerns warrant instead delegating authority for post-appointment conduct suitability actions to agencies, as recommended by commenters. As previously explained in section III.B.2.c, Agency Input in Post-Appointment Conduct Actions, OPM believes that retaining this authority will allow for the most impartial process that protects individuals and ensures consistency in implementation across the Federal Government.

Taking into account both decreases and increases in levels of effort associated with the proposed rule, on balance OPM anticipates one-time implementation costs of approximately $3.1 million and recurring annual net cost savings governmentwide of approximately $36.1 million.

The expected benefits of the rule are that OPM and agencies will be able to more efficiently and appropriately vet individuals for risk to the integrity and efficiency of the service. More expeditious removal of individuals found to negatively impact the integrity or efficiency of the service will reduce risks posed by such individuals as well as costs to agencies, allowing them to spend resources on mission services rather than administrative processes. In addition, providing the option for a suitability action for post-employment conduct when an employee has engaged in serious misconduct instances will achieve better risk protection than Chapter 75 procedures because it will allow the Government to pursue debarment. Debarments prevent individuals from immediately re-entering Federal service in a competitive service position with another agency, holding individuals more accountable for misconduct and preventing them from avoiding consequences by simply resigning or transferring agencies. Post-appointment conduct suitability actions will provide better protection of the integrity and efficiency of the service than is currently afforded under Chapter 75 procedures and adds rigor to vetting processes.

In addition, OPM believes that the final rule will reinforce Merit Systems Principles, in at least two ways. First, the rule change creates a new § 731.102(c) which expressly states that suitability determinations and actions must be applied consistent with the Merit Systems Principles set forth in 5 U.S.C. 2301 and the prohibition against unlawful personnel practices in 5 U.S.C. 2302(b). Second, the rule change reinforces Merit Systems Principle 4, “[a]ll employees should maintain high standards of integrity, conduct, and concern for the public interest,” by providing a mechanism to swiftly remove employees who fail to uphold baseline standards of integrity, conduct, and concern for the public interest.

OPM must comply with the direction of E.O. 14210 and the Presidential Memorandum, as described in section II, Authority and Background, to establish specific suitability factors and to take suitability actions on employees when warranted and referred by agencies based on post-appointment conduct. OPM could have delegated to agencies the authority to take suitability actions against employees for post-appointment conduct. However, at this time, OPM believes reserving jurisdiction for these actions for itself will provide for governmentwide consistency in decision-making. OPM may at a later time determine to delegate this authority to the heads of agencies. See discussion in section III.B.2.c., Agency Input in Post-Appointment Conduct Actions.

For the updates to the suitability factors, OPM could have elected to establish each new criterion from E.O. 14210 as its own separate suitability factor under 5 CFR 731.202(b). The current suitability factors employ a hierarchical approach where the factors establish broad categories of conduct or behavior where discrete examples of such conduct may then fit within the general categories. For example, the criminal conduct factor establishes a broad category under which a wide range of criminal behavior may be considered, regardless of whether the conduct resulted in an arrest or conviction. Therefore, where appropriate, OPM believes adding some of the new suitability criteria required by E.O. 14210 as examples of conduct under an existing factor will be more intuitive and easier for agency suitability staff to apply in making suitability determinations.

Many commenters recommended that OPM work to improve training for Federal supervisors and HR offices on using Chapter 75 processes and suggested that doing so would eliminate the need to introduce post-appointment conduct suitability actions. See Comment 1042 for an example. OPM disagrees that such training would deliver the same benefits as gained from this rule. As noted, post-appointment conduct suitability actions provide for better protection against risk by allowing the Government to complete actions even after an individual resigns or withdraws an application and also prevents immediate re-entry through debarment. Additional training on Chapter 75 actions would not close these gaps or deliver the same benefits as this rule.

If any of the provisions of this final rule is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, it shall be severable from its respective section(s) and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other dissimilar circumstances. For example, if a court were to invalidate any portions of this final rule revising the suitability factors, the other portions of the rule—including the portions providing that OPM may make suitability determinations for post-appointment conduct—would independently remain workable and valuable.

OPM has examined the impact of this rule as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for rules with effects of $100 million or more in any one year. This rulemaking does not reach that threshold but has otherwise been designated as a “significant regulatory action” under section 3(f) of Executive Order 12866.

This rule is considered an Executive Order 14192 deregulatory action. We estimate that this rule generates $30.3 million in annualized cost savings at a 7% discount rate, discounted relative to year 2024, over a perpetual time horizon.

The Director of OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities because this rule affects suitability and fitness regulations which apply primarily to Federal agencies and employees. Although some Federal contractors may be small entities, the nature of the changes in this rulemaking are not expected to result in economic impacts to non-agency entities.

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

This regulation meets the applicable standard set forth in section 3(a) and (b)(2) of E.O. 12988.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits before issuing any rule that would impose spending costs on State, local, or tribal governments in the aggregate, or on the private sector, in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold is currently approximately $206 million. This rulemaking will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, in excess of the threshold. Thus, no written assessment of unfunded mandates is required.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

Depending on the population, currently suitability and vetting information is collected through the following OMB Control Numbers.

Additional information regarding these collections of information—including all current supporting materials—can be found at https://www.reginfo.gov/public/do/PRAMain by using the search function to enter either the title of the collection or the OMB Control Number.

On November 15, 2023, a new information collection, the Personnel Vetting Questionnaire (PVQ), was approved (OMB Control Number 3206-0279). The Defense Counterintelligence and Security Agency (DCSA) is working to implement the new information collection. OPM plans to discontinue the current information collections once the PVQ is operational.

OPM believes this rulemaking does not require any changes in any of these collections. Data gathered through these information collections fall under the system of records notice (SORN) Personnel Vetting Records System, DUSDI 02-DoD (83 FR 52420 and 83 FR 52317).

OPM's system of records titled CENTRAL-9, Personnel Investigations Records (81 FR 70191), previously covered both background investigation records and suitability adjudication records. OPM has transferred the background investigation mission and associated records to DCSA (now under DUSDI 02-DoD). Because the personnel investigations records are no longer maintained in OPM/CENTRAL-9, OPM is renaming CENTRAL-9 “OPM Suitability Adjudications Files” and is modifying it to reflect the changes in this rulemaking. (See 91 FR 38737 for more information.)

In addition, individual agencies should each have a SORN that covers the agency adjudication and referral records. Agencies should evaluate whether the agency-specific SORNs must be updated to permit sharing information with OPM for suitability referrals, OPM suitability adjudications, debarment consideration, reporting to the Central Verification System or successor systems, and any related appeal.

The Director of OPM, Scott Kupor, reviewed and approved this document and has authorized the undersigned to electronically sign and submit this document to the Office of the Federal Register for publication.

Accordingly, for the reasons stated in the preamble, OPM amends part 731 of title 5, Code of Federal Regulations 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-2026-7202 and Project Identifier AD-2026-00546-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on The Boeing Company Model 747-8F and 747-8 series airplanes and Model 777 airplanes and issued AD 2022-03-05, Amendment 39-21922 (87 FR 4150, January 27, 2022) (AD 2022-03-05). AD 2022-03-05 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that interference from the 5G Lower C-Band may affect multiple airplane systems using radio altimeter data, including the pitch control laws, including those that provide tail strike protection, regardless of the approach type or weather. AD 2022-03-05 required revising the limitations section of the existing AFM to incorporate limitations prohibiting dispatching or releasing to airports, and approaches or landings on runways, when in the presence of 5G Lower C-Band interference as identified by NOTAMs.

After the FAA issued AD 2021-23-12 and AD 2022-03-05, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-05, Amendment 39-22463 (88 FR 40065, June 21, 2023) (AD 2023-12-05) to supersede AD 2022-03-05.

Currently, AD 2023-12-05 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting dispatching or releasing to airports, and approaches or landings on runways, in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-05 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-05, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-05 exists for Model 747-8F and 747-8 series airplanes and Model 777 airplanes when operating in the Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-05 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations prohibiting dispatching or releasing to airports, and approaches or landings on runways when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-05 also prohibits dispatching or releasing to airports and approaches or landings on runways for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no prohibitions for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those prohibitions are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most Boeing Model 747-8, 747-8F, and 777 radio altimeter tolerant airplanes are not subject to the prohibitions in AD 2023-12-05 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-05 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-05 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-05, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2-4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band. This interference may affect other airplane systems using radio altimeter data, including the pitch control laws, including those that provide tail strike protection, regardless of the approach type or weather, which, in combination with multiple flight deck effects, could lead to loss of continued safe flight and landing. The urgency is based on a change in the 5G Lower C-Band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 390 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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 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-2026-7203 and Project Identifier AD-2026-00547-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on Boeing Model 787-8, 787-9, and 787-10 airplanes and issued AD 2022-02-16, Amendment 39-21913 (87 FR 2692, January 19, 2022) (AD 2022-02-16). AD 2022-02-16 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that, during landings, as a result of this interference, certain airplane systems may not properly transition from AIR to GROUND mode when landing on certain runways, resulting in degraded deceleration performance and longer landing distance than normal due to the effect on thrust reverser deployment, speedbrake deployment, and increased idle thrust. AD 2022-02-16 required revising the limitations and operating procedures sections of the existing AFM to incorporate limitations prohibiting certain landings and the use of certain minimum equipment list (MEL) items, and to incorporate operating procedures for calculating landing distances, when in the presence of 5G Lower C-Band interference as identified by NOTAM.

After the FAA issued AD 2021-23-12 and AD 2022-02-16, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-10, Amendment 39-22468 (88 FR 40071, June 21, 2023) (AD 2023-12-10), to supersede AD 2022-02-16.

Currently, AD 2023-12-10 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain landings and the use of certain MEL items, in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-10 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-10, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-Band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-10 exists for Model 787-8, 787-9, and 787-10 airplanes when operating in the Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-10 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations prohibiting certain landings and the use of certain MEL items when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-10 also prohibits certain landings and the use of certain MEL items for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no prohibitions for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those prohibitions are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most Model 787-8, 787-9, and 787-10 radio altimeter tolerant airplanes are not subject to the prohibitions in AD 2023-12-10 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-10 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Although Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, the FAA has identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-10 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-10, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2 to 4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band. During landings, as a result of this interference, certain airplane systems may not properly transition from AIR to GROUND mode when landing on certain runways, resulting in a longer landing distance than normal due to the effect on thrust reverser deployment, speedbrake deployment, and increased idle thrust, which could lead to a runway excursion. The urgency is based on a change in the 5G Lower C-Band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 192 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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 invites you to send any written relevant data, views, or arguments about this final rule. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2026-4659; Project Identifier MCAI-2025-00826-A,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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@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.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

After the FAA issued AD 2021-23-12, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S. at transmission frequencies between 3.7-3.98 GHz. Additionally, the FAA found that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12. For non-radio altimeter tolerant airplanes, AD 2023-10-02 maintains the AFM limitations imposed by AD 2021-23-12 in areas identified by NOTAM until June 30, 2023. After June 30, 2023, for non-radio altimeter tolerant airplanes, AD 2023-10-02 requires revising the AFM to incorporate the same limitations but in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM. AD 2023-10-02 also requires modifying a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane in order to operate under 14 CFR part 121 in the contiguous U.S. as of February 1, 2024.

Since the FAA issued AD 2023-10-02, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (the MCAI), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. The MCAI states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. The MCAI further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-band interference to radio altimeters as compared to the Lower C-band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, the MCAI requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace.

The MCAI does not contain the prohibition on the use of Enhanced Flight Vision System (EFVS) to touchdown under 14 CFR 91.176(a) that is in AD 2023-10-02, as those operations are not yet approved in Canada. As terminating action for the operating limitations, the MCAI provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in the MCAI. 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-2026-4659.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations prohibiting the following when operating in Canadian airspace:

This AD also requires that airplanes operating under 14 CFR part 121 in Canadian airspace be modified from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane.

This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-10-02 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

The AFM revision required by this AD includes a prohibition for non-radio altimeter tolerant airplanes for the use of EFVS to touchdown under 14 CFR 91.176(a), which is the same prohibition specified in AD 2023-10-02. The Transport Canada does not include this prohibition since the use of EFVS has not been approved for use in Canada. The FAA has included this prohibition because Transport Canada is in the process of approving the use of EFVS.

This AD requires airplanes operating under 14 CFR part 121 in Canadian airspace to be modified to a radio altimeter tolerant airplane, and the MCAI does not. As the FAA explained in AD 2023-10-02, this equipage requirement addresses the accumulating risk for systems that are less hazardous than low-visibility landings (for example, repeated false warnings from the collision avoidance system from erroneous radio altimeter data). The FAA determined that this accumulating risk was unacceptable for part 121 operations after February 1, 2024. The MCAI states that Transport Canada is reviewing whether to prohibit operation in Canadian airspace based on type of operation and that further Canadian AD action may follow.

The MCAI specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for purposes of AD 2023-10-02, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2 to 4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-band interference environment changes or if Canada issues an operational rule to address 5G C-band interference with radio altimeters.

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 radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing. Additionally, radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. The urgency is based on a change in the 5G Lower C-band environment in Canada, which is scheduled to occur on July 1, 2026. 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 prior notice and comment, RFA analysis is not required.

The FAA notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects approximately 1,000 airplanes of U.S. registry. When the FAA issued AD 2023-10-02, it estimated that out of the approximately 8,000 transport and commuter category airplanes of U.S. registry, almost 7,000 airplanes on the U.S. registry had already equipped or retrofitted to address radio altimeter interference tolerance. While the FAA expects that many of the affected airplanes have upgraded their radio altimeters, the FAA does not have definitive data on how many airplanes have been modified to a radio altimeter tolerant airplane since July 2023, and therefore this AD retains the estimates from AD 2023-10-02.

Some operators will comply with the modification requirement by replacing the radio altimeter with a new upgraded or modified radio altimeter, and others will comply by installing an externally mounted filter. The FAA estimates that approximately 180 airplanes may modify by replacing the radio altimeters and approximately 820 airplanes may modify by adding radio altimeter filters. As such, the FAA estimates the following costs to comply with this AD, for a total U.S. fleet cost of compliance of up to $50,382,000.

The benefits of this AD include the value of reducing aviation accident risks that are mitigated by Terrain Awareness and Warning System (TAWS), Traffic Collision Avoidance System (TCAS), and airborne windshear warning and flight guidance systems (windshear systems), all of which rely on proper performance of radio altimeters to perform their intended function. TAWS, TCAS, and windshear systems are examples of safety-enhancing systems required for operation under 14 CFR part 121. The FAA required these systems to address hazards that have caused accidents and fatalities during commercial air transportation. This AD will maintain the same level of safety afforded by these and other safety systems before the use of the Lower C-Band by 5G broadband networks. This AD will also minimize erroneous system messages and the unsafe condition they produce.

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 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-2026-7208 and Project Identifier AD-2026-00557-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on Boeing Model 737-8, 737-9, and 737-8200 airplanes and issued AD 2022-03-20, Amendment 39-21937 (87 FR 4787, January 31, 2022) (AD 2022-03-20). AD 2022-03-20 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that, during takeoffs and landings, as a result of interference from the 5G Lower C-Band, certain airplane systems may not properly function, resulting in longer than normal landing or rejected takeoff distances due to the effect on thrust reverser deployment, spoilers, speedbrake deployment, and increased idle thrust, regardless of the approach type or weather, which could lead to degraded deceleration performance and a runway excursion. AD 2022-03-20 required revising the limitations section of the existing AFM to incorporate limitations prohibiting the use of certain minimum equipment list (MEL) items when in the presence of 5G Lower C-Band interference as identified by NOTAMs.

After the FAA issued AD 2021-23-12 and AD 2022-03-20, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-11, Amendment 39-22469 (88 FR 40011, June 21, 2023) (AD 2023-12-11), to supersede AD 2022-03-20.

Currently, AD 2023-12-11 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting the use of certain MEL items in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-11 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-11, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-Band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-11 exists for Model 737-8, 737-9, and 737-8200 airplanes when operating in the Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-11 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations prohibiting the use of certain MEL items when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-11 also specifies limitations for dispatch or release to airports and approach, landing, and go-around on runways for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no limitations for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those limitations are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most 737-8, 737-9, and 737-8200 radio altimeter tolerant airplanes are not subject to the limitations in AD 2023-12-11 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-11 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-11 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-11, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2-4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. This interference can cause other airplane systems to not properly function, resulting in longer than normal landing or rejected takeoff distances due to the effect on thrust reverser deployment, spoilers, speedbrake deployment, and increased idle thrust, regardless of the approach type or weather, which could lead to degraded deceleration performance and a runway excursion. The urgency is based on a change in the 5G Lower C-band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 832 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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 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-2026-7204 and Project Identifier AD-2026-00548-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on Boeing Model 737-100, -200, -200C, -300, -400, -500, -600, -700, -700C, -800, -900, and -900ER series airplanes, except for Model 737-200 and -200C series airplanes equipped with an SP-77 flight control system, and issued AD 2022-05-04, Amendment 39-21955 (87 FR 10299, February 24, 2022) (AD 2022-05-04). AD 2022-05-04 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that, during approach, landings, and go-arounds, as a result of this interference, certain airplane systems may not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. AD 2022-05-04 required revising the limitations and operating procedures sections of the existing AFM to incorporate specific operating procedures for instrument landing system (ILS) approaches, speedbrake deployment, go-arounds, and missed approaches, when in the presence of 5G Lower C-Band interference as identified by NOTAM.

After the FAA issued AD 2021-23-12 and AD 2022-05-04, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-13, Amendment 39-22471 (88 FR 39996, June 21, 2023) (AD 2023-12-13), to supersede AD 2022-05-04.

Currently, AD 2023-12-13 requires revising the limitations section of the existing AFM to incorporate limitations for dispatch or release to airports, and approach, landing, and go-around on runways, in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-13 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-13, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-Band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-13 exists for Model 737-100, -200, -200C, -300, -400, -500, -600, -700, -700C, -800, -900, and -900ER series airplanes, except for Model 737-200 and -200C series airplanes equipped with an SP-77 flight control system, when operating in the Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-13 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations for dispatch or release to airports, and approach, landing, and go-around on runways when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-13 also specifies limitations for dispatch or release to airports, and approach, landing, and go-around on runways for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no limitations for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those limitations are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most Model 737-100, -200, -200C, -300, -400, -500, -600, -700, -700C, -800, -900, and -900ER series radio altimeter tolerant airplanes are not subject to the limitations in AD 2023-12-13 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-13 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-13 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-13, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2 to 4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band. This interference may cause other airplane systems to not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. The urgency is based on a change in the 5G Lower C-Band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 1,995 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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 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-2026-7206 and Project Identifier AD-2026-00550-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on Boeing Model 707, 717, and 727 airplanes; Model DC-8, DC-9, and DC-10 airplanes; Model MD-10 and MD-11 airplanes; Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes; and Model MD 90-30 airplanes and issued AD 2022-09-18, Amendment 39-22038 (87 FR 31097, May 23, 2022) (AD 2022-09-18). AD 2022-09-18 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that during approach, landings, and go-arounds, as a result of interference from the 5G Lower C-Band, certain airplane systems may not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. AD 2022-09-18 required revising the limitations and operating procedures sections of the existing AFM to incorporate specific operating procedures for, depending on the airplane model, instrument landing system (ILS) approaches, non-precision approaches, ground spoiler deployment, and go-around and missed approaches, when in the presence of 5G Lower C-Band interference as identified by NOTAMs.

After the FAA issued AD 2021-23-12 and AD 2022-09-18, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-15, Amendment 39-22473; (88 FR 40023, June 21, 2023) (AD 2023-12-15), to supersede AD 2022-09-18.

Currently, AD 2023-12-15 requires revising the limitations section of the existing AFM to incorporate limitations for, depending on the airplane model, ILS approaches, non-precision approaches, ground spoiler deployment, and go-around and missed approaches, in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-15 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-15, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-Band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-15 exists for Model 707, 717, and 727 airplanes; Model DC-8, DC-9, and DC-10 airplanes; Model MD-10 and MD-11 airplanes; Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes; and Model MD 90-30 airplanes when operating in Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-15 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations for, depending on the airplane model, ILS approaches, non-precision approaches, ground spoiler deployment, and go-around and missed approaches when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-15 also incorporates limitations for, depending on the airplane model, ILS approaches, non-precision approaches, ground spoiler deployment, and go-around and missed approaches for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no limitations for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those limitations are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most Model 707, 717, and 727 airplanes; Model DC-8, DC-9, and DC-10 airplanes; Model MD-10 and MD-11 airplanes; Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes; and Model MD 90-30 radio altimeter tolerant airplanes are not subject to the limitations in AD 2023-12-15 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-15 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-15 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-15, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2-4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band. This interference can cause other airplane systems to not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. The urgency is based on a change in the 5G Lower C-band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 502 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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 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-2026-7207 and Project Identifier AD-2026-00556-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on Boeing Model 757 and Model 767 airplanes and issued AD 2022-04-05, Amendment 39-21947 (87 FR 8152, February 14, 2022) (AD 2022-04-05). AD 2022-04-05 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that, during approach, landings, and go-arounds, as a result of interference from the 5G Lower C-Band, certain airplane systems may not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. AD 2022-04-05 required revising the limitations section of the existing AFM to incorporate limitations requiring specific operating procedures for landing distance calculations, instrument landing system (ILS) approaches, non-precision approaches, speedbrake deployment, and go-around and missed approaches for dispatch or release to airports, and approach, landing, and go-around on runways, when in the presence of 5G Lower C-Band interference as identified by NOTAMs.

After the FAA issued AD 2021-23-12 and AD 2022-04-05, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-12, Amendment 39-22470, (88 FR 40058, June 21, 2023) (AD 2023-12-12), to supersede AD 2022-04-05.

Currently, AD 2023-12-12 requires revising the limitations section of the existing AFM to incorporate limitations requiring specific operating procedures for dispatch or release to airports, and approach, landing, and go-around on runways at all airports in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-12 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-12, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-Band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-12 exists for Model 757 and Model 767 airplanes when operating in the Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-12 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations for dispatch or release to airports, and approach, landing, and go-around on runways when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-12 also specifies limitations for dispatch or release to airports, and approach, landing, and go-around on runways for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no limitations for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those limitations are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most Model 757 and Model 767 radio altimeter tolerant airplanes are not subject to the limitations in AD 2023-12-12 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-12 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-12 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-12, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2 to 4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band. This interference can cause other airplane systems to not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. The urgency is based on a change in the 5G Lower C-Band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 1,084 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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 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-2026-7205 and Project Identifier AD-2026-00549-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 Ken Fairhurst, Continued Operational Safety Technical Advisor, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), for all transport and commuter category airplanes equipped with a radio altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band, which is close to the frequency bands used by radio altimeters (4.2-4.4 GHz). AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G Lower C-Band interference as identified by Notices to Air Missions (NOTAMs). The agency issued AD 2021-23-12 because radio altimeter anomalies that are undetected by the automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing.

The FAA subsequently identified an additional hazard presented by 5G Lower C-Band interference on Boeing Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, and -400F series airplanes and issued AD 2022-06-16, Amendment 39-21982 (87 FR 14780, March 16, 2022) (AD 2022-06-16). AD 2022-06-16 was prompted by the unsafe condition in AD 2021-23-12, as well as a determination that, during takeoff, approach, landings, and go-arounds, as a result of interference from the 5G Lower C-Band, certain airplane systems may not properly function, resulting in increased flightcrew workload while on approach with the flight director, autothrottle, or autopilot engaged, which could result in reduced ability of the flightcrew to maintain safe flight and landing of the airplane. AD 2022-06-16 required revising the limitations and operating procedures sections of the existing AFM to incorporate specific operating procedures for takeoff, instrument landing system (ILS) approaches, non-precision approaches, and go-around and missed approaches, when in the presence of 5G Lower C-Band interference as identified by NOTAMs.

After the FAA issued AD 2021-23-12 and AD 2022-06-16, the agency determined that additional limitations were needed due to the continued deployment of new 5G Lower C-Band base stations whose signals were expected to cover most of the contiguous U.S., as well as the determination that radio altimeter anomalies could lead to increased flightcrew workload and flightcrew desensitization to warnings. Therefore, the FAA issued AD 2023-10-02, Amendment 39-22438 (88 FR 34065, May 26, 2023) (AD 2023-10-02), to supersede AD 2021-23-12, and the FAA issued AD 2023-12-14, Amendment 39-22472 (88 FR 40003, June 21, 2023) (AD 2023-12-14), to supersede AD 2022-06-16.

Currently, AD 2023-12-14 requires revising the limitations section of the existing AFM to incorporate limitations for dispatch or release to airports, and takeoff, approach, landing, and go-around on runways at all airports in the entire contiguous U.S. airspace instead of only in areas identified by NOTAM; however, AD 2023-12-14 permits radio altimeter tolerant airplanes to perform these operations at 5G Lower C-Band mitigated airports as identified in an FAA Domestic Notice.

Since the FAA issued AD 2023-12-14, Transport Canada, which is the aviation authority for Canada, issued AD CF-2024-14, dated May 15, 2024 (Transport Canada AD CF-2024-14), to correct an unsafe condition for all transport and commuter category airplanes with a radio altimeter. Transport Canada AD CF-2024-14 states that in July 2023, Innovation, Science and Economic Development Canada (ISED), Canada's spectrum regulator, published Standard Radio System Plans (SRSP)-520 Issue 3  1 and Radio Standard Specifications (RSS)-192 Issue 5, 2 which define the spectrum environment for the 3.45-3.90 GHz frequency band in Canada. Transport Canada AD CF-2024-14 further states that spectrum auctions for the 3.45-3.65 GHz and the 3.65-3.9 GHz band were completed in 2021 and 2023, respectively.

In July 2023, ISED implemented measures to mitigate Lower C-Band interference to radio altimeters, which provide the Canadian airspace greater protection from 5G Lower C-Band interference to radio altimeters as compared to the Lower C-Band environment in the contiguous U.S. airspace. These measures include exclusion and protection zones and airport effective isotropic radiated power (EIRP) elevation mask (a restriction that requires nearby cell tower signals to be angled downward so they do not interfere with aircraft altimeters) at certain airport runways covering the majority of air traffic in Canada, as well as nationwide reduced fundamental power emissions based on the degree of antenna uptilt above the horizon to minimize emissions from 5G base stations toward aircraft.

In late March 2026, Transport Canada notified the FAA that, beginning July 1, 2026, changes in the 5G Lower C-band protection mitigations established by ISED in 2023 would result in a more severe 5G interference environment in the Canadian airspace. Exclusion and protection zones at airports will no longer exist and updates to the airport EIRP elevation mask, nationwide tilt restriction, emitter height limitation and reduced spurious emissions will only protect airplanes that are radio altimeter tolerant. The change in mitigations will result in an unsafe condition in the Canadian 5G interference environment.

Transport Canada determined that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.45-3.98 GHz frequency band. Transport Canada based its determination on the same unsafe condition found by the FAA in AD 2023-10-02. As a result, Transport Canada AD CF-2024-14 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data, due to the presence of 5G Lower C-Band interference, while operating in Canadian airspace. As terminating action for the operating limitations, Transport Canada AD CF-2024-14 provides that operators may upgrade their radio altimeters to demonstrate the tolerances for emissions as specified in Transport Canada AD CF-2024-14.

Boeing subsequently conducted an analysis of the expected changes in the 5G Lower C-Band environment in Canada and the effects of interference with radio altimeters with respect to the Boeing fleet. In May 2026, Boeing reported that certain airplane configurations will not demonstrate tolerance to radio altimeter interference in the new 5G environment in Canada. Therefore, based on this information, the FAA determined that the unsafe condition identified in AD 2023-12-14 exists for Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, and -400F series airplanes when operating in the Canadian airspace. As a result, operating limitations similar to the limitations required by AD 2023-12-14 are necessary.

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

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

For non-radio altimeter tolerant airplanes, this AD requires, before further flight in Canadian airspace, revising the existing AFM to incorporate limitations for dispatch or release to airports, and takeoff, approach, landing, and go-around on runways when operating in Canadian airspace. This AD provides that modifying the airplane from a non-radio altimeter tolerant airplane to a radio altimeter tolerant airplane terminates the AFM operating limitations for that airplane.

While AD 2023-12-14 also specifies limitations for dispatch or release to airports and takeoff, approach, landing, and go-around on runways for radio altimeter tolerant airplanes except at 5G Lower C-Band mitigated airports, this AD has no limitations for radio altimeter tolerant airplanes. The interference environment at Canadian airports after July 1, 2026, will be mitigated enough such that those limitations are not necessary for radio altimeter tolerant airplanes. The FAA also notes that most Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300, -400, -400D, and -400F series radio altimeter tolerant airplanes are not subject to the limitations in AD 2023-12-14 under the provisions of an FAA-approved AMOC.

An airplane that is a radio altimeter tolerant airplane using a method approved by the FAA for AD 2023-12-14 is also a radio altimeter tolerant airplane for the purposes of paragraph (g)(1) of this AD. Alternative methods of compliance (AMOC) listed in paragraph (j)(3) of this AD are approved for this AD.

Transport Canada AD CF-2024-14 specifies the fundamental emissions are in the 3.45-3.98 GHz frequency band, while this AD specifies the 3.7-3.98 GHz frequency band. AD 2023-10-02 and AD 2023-12-14 identified an unsafe condition from wireless broadband transmissions in the 3.7-3.98 GHz frequency band, and this AD is based on that same determination. In addition, an airplane determined to be a radio altimeter tolerant airplane for the purposes of AD 2023-12-14, which has demonstrated the performance tolerances for fundamental emissions within the 3.7-3.98 GHz frequency band, would also be a radio altimeter tolerant airplane for purposes of this AD. Frequencies less than 3.7 GHz are further away from the frequency bands used by radio altimeters (4.2-4.4 GHz), so an airplane determined to be tolerant in the range of 3.7-3.98 GHz is also tolerant to emissions less than 3.7 GHz.

The FAA considers this AD to be an interim action. The FAA may consider further rulemaking if the Canadian 5G C-Band interference environment changes or if Canada issues an operational rule to address 5G C-Band interference with radio altimeters.

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 radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G Lower C-Band. This interference can cause other airplane systems to not properly function, resulting in increased flightcrew workload, which could lead to reduced ability of the flightcrew to maintain safe flight and landing of the airplane. The urgency is based on a change in the 5G Lower C-band environment in Canada, which is scheduled to occur on July 1, 2026. 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 notes that since operators must comply with this AD before further flight in Canadian airspace, airplanes that do not operate in Canada will not have to comply and therefore will have no costs under this AD.

The FAA estimates that this AD affects 114 airplanes of U.S. registry. The FAA expects that many of the affected airplanes have upgraded radio altimeters; therefore, the FAA estimates the total number of airplanes affected by this AD to be less than the total fleet size provided in this AD. The FAA estimates the following costs to comply with 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, 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:

I. Background

Upon request, FDA (the Agency or we) has classified the monitor for opioid induced impairment of oxygenation 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 February 19, 2020, FDA received Masimo Corporation's request for De Novo classification of the Masimo SafetyNet Opioid System. 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 March 31, 2023, 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 868.2250. 1 We have named the generic type of device “monitor for opioid induced impairment of oxygenation,” and it is identified as a device that uses sensor hardware and software algorithms to detect desaturations of arterial oxygen saturation resulting from opioid overdose.

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.

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 monitors for opioid induced impairment of oxygenation. 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 868 is amended as follows:

I. Background

Upon request, FDA (the Agency or we) has classified the skin patch for treatment of hyperhidrosis 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 December 3, 2021, FDA received Candesant Biomedical, Inc.'s request for De Novo classification of the N-SWEAT Patch. 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 April 7, 2023, 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 878.4425. 1 We have named the generic type of device “skin patch for treatment of hyperhidrosis,” and it is identified as a prescription topical patch that utilizes a chemical reaction to generate thermal energy in situ for treatment of hyperhidrosis.

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, skin patches for treatment of hyperhidrosis 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 skin patches for treatment of hyperhidrosis. 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 878 is amended as follows:

PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes actuarial assumptions—including an interest assumption—for valuing benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumption is also posted on PBGC's website ( www.pbgc.gov ).

PBGC uses the interest assumption in § 4044.54 to determine the present value of annuities in an involuntary or distress termination of a single-employer plan under the asset allocation regulation. The assumptions in part 4044 of PBGC's regulations are also used in other situations where it is appropriate for liabilities to align with private sector group annuity prices. For example, PBGC's regulations on Notice, Collection, and Redetermination of Withdrawal Liability (29 CFR part 4219) and Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281) provide that these assumptions are used to value liabilities for purposes of determining withdrawn employers' reallocation liability in the event of a mass withdrawal from a multiemployer plan. Multiemployer plans that receive special financial assistance under the regulation on Special Financial Assistance by PBGC (29 CFR part 4262) must, as a condition of receiving special financial assistance, use the interest assumption to determine withdrawal liability for a prescribed period. Additionally, plan sponsors are required to use some, or all of these assumptions for specified purposes ( e.g., reporting benefit liabilities in filings required under PBGC's regulation on Annual Financial and Actuarial Information Reporting (29 CFR part 4010) or determining certain amounts to transfer to PBGC's Missing Participants Program on behalf of a missing participant of a terminating defined benefit plan under PBGC's regulation on Missing Participants (29 CFR part 4050)) and may use them for other purposes ( e.g., to ensure that plan spinoffs comply with section 414(l) of the Internal Revenue Code).

Part 4044 of PBGC's regulations provides that the interest assumption for part 4044 purposes is a yield curve ( i.e., the “4044 yield curve”) that is based on a blend of two publicly available bond yield curves that is adjusted to the extent necessary so that the resulting liabilities align with group annuity prices. The adjustments are referred to as “spreads.” PBGC determines and publishes spreads quarterly based on survey data on pricing of private-sector group annuities. PBGC posts the 4044 yield curve on its website at www.pbgc.gov each month shortly after its underlying data becomes available. In addition, practitioners are able to determine the 4044 yield curve as of the end of any month using the publicly available bond yield curves and the spreads specified in the regulation.

This rule amends the regulation to specify the spreads used to determine the 4044 yield curve as of the last days of July, August, and September of 2026 ( i.e., the “third quarter 2026 spreads”). Due to space constraints, table 1 to paragraph (e) shows spreads only for the most recent four quarters. Historical spreads are available on www.pbgc.gov, along with more recent spreads.

PBGC has determined that notice of, and public comment on, this rule are impracticable, unnecessary, and contrary to the public interest. PBGC routinely updates the spreads component of the interest assumption in the asset allocation regulation so that the 4044 yield curve may be determined as soon as the underlying bond yield curves become available. These amendments are merely technical; they ensure that use of PBGC's interest assumption continues to yield liabilities in line with group annuity prices. Accordingly, PBGC finds that the public interest is best served by issuing this rule expeditiously, without an opportunity for notice and comment, and that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

For the reasons stated in the preamble, PBGC amends 29 CFR part 4044 as follows.

There are currently two different marine casualty reporting regimes that apply to entities on the Outer Continental Shelf (OCS). One regime focuses on casualties involving U.S.-flagged vessels, and the other focuses on casualties involving foreign-flagged vessels and all entities fixed to the seabed. Placing various entities into one regime or the other has occurred over time; however, developments in technology have blurred the distinctions between the types of entities, and the law governing these entities has evolved. As a result, placing fixed or floating entities into one regime or the other reflects historical considerations instead of practical considerations.

The primary purpose of this final rule is to harmonize applicability provisions for the two marine casualty reporting regimes under 46 CFR part 4 and 33 CFR subchapter N. To achieve that alignment, we also had to consider some of the changes in technology used on the OCS since the regulations for marine casualty reporting in 33 CFR subchapter N were first published in 1982.

As a consequence of this realignment, we have grouped entities into two groups for reporting purposes. We categorize them roughly as fixed entities and floating entities. Floating entities include both U.S.- and foreign-flagged mobile offshore drilling units (MODUs), floating OCS facilities (FOFs), and vessels. Fixed entities include OCS facilities affixed to the OCS, such as U.S.- and foreign-flagged MODUs affixed to the seabed.

This final rule makes those floating entities not already subject to existing reporting requirements found in 46 CFR part 4, subject to part 4. Part 4 of title 46 of the CFR, Marine Casualties and Investigations, already generally applies to casualties occurring on the U.S. navigable waters and to U.S.-flagged vessels involved in casualties wherever located.

Finally, to harmonize the reporting threshold for fixed OCS facilities with the threshold for vessels, we are raising the property damage casualty reporting threshold for fixed OCS facilities from $25,000 to $75,000.00. The legal basis of this rulemaking is 43 U.S.C. 1333(d)(1) and Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.4, paragraph 90.

The economic impact of this final rule is a cost savings to U.S. industry of about $10,775 over a 10-year period in 2023 dollars and discounted to 7 percent, or $1,534 annualized. Because of this final rule's further application to foreign vessels, there is also a net cost of $94,977 to foreign industry over a 10-year period, or $13,523 annualized. These net costs include the cost of increased reporting and cost savings from raising the property damage threshold. The cost of increased reporting is estimated at $107,218 for foreign industry over a 10-year period, or $15,265 annualized, and $26,107 to the U.S. Government over a 10-year period, or $3,717 annualized. Cost savings from raising the property damage threshold are estimated at $12,241 for foreign industry over a 10-year period, or $1,743 annualized. The affected population that will now report casualties under 46 CFR part 4 includes 649 foreign-flagged entities, including MODUs, FOFs, and vessels; 1,385 fixed platforms will continue to report under 33 CFR part 146.

Through 43 U.S.C. 1333(d)(1), Congress authorizes the Secretary of the Department in which the Coast Guard is operating to promulgate and enforce reasonable regulations to promote the safety of life and property on artificial islands on the OCS, and on installations and other devices permanently or temporarily attached to the seabed of the OCS, as well as in waters adjacent to such artificial islands, installations, or devices. The Coast Guard operates under DHS except when it is operating as a service in the U.S. Navy per 14 U.S.C. 103, and it is presently operating in DHS. The Secretary of the Department of Homeland Security (Secretary) delegated their authority under section 1333(d)(1) to the Commandant of the Coast Guard through DHS Delegation No. 00170.1, Revision No. 01.4, paragraph 90.

This rulemaking began with a notice of proposed rulemaking (NPRM) titled “Marine Casualty Reporting on the Outer Continental Shelf,” published on January 10, 2014 (79 FR 1780). In the NPRM, we explained our rationale for changing the criteria under which MODUs, FOFs, and vessels engaged in OCS activities report marine casualties, specifically to improve the Coast Guard's ability to capture data on casualties that occur on the U.S. OCS.

Subsequently, we published a supplemental notice of proposed rulemaking (SNPRM) titled “Marine Casualty Reporting on the Outer Continental Shelf”  1 with a 90-day comment period on June 14, 2023 (88 FR 38765). The SNPRM, which completely replaced the 2014 NPRM, differed from the NPRM primarily in two ways. First, we decided not to pursue changing the casualty reporting requirement for fixed OCS facilities as we proposed in the NPRM. Second, we decided to propose increasing the property damage dollar reporting threshold to $75,000, thereby aligning the threshold reporting requirements of title 33 of the CFR with those of title 46 of the CFR.

This final rule, which revises and finalizes the regulations detailed in the SNPRM, improves the regulatory scheme in two ways. First, this final rule enables the Coast Guard to collect more comprehensive data on casualties occurring on the OCS than the Coast Guard could previously. That, in turn, helps the Coast Guard better protect the safety of life and property on the OCS, and to account for changes in technology, which improves the Coast Guard's maritime domain awareness. Second, this final rule reduces the regulatory burden on fixed OCS facilities by raising the monetary property damage threshold for reporting a marine casualty from $25,000 to $75,000. Further details on the changes from the SNPRM to final rule are shown in table 2.

The Coast Guard's regulations in 33 CFR subchapter N  2 apply to OCS facilities, such as FOFs and fixed OCS facilities, as well as to vessels, such as MODUs  3 and to other units engaged in OCS activities. Among these regulations in subchapter N are regulations for reporting casualties on the OCS. These reside in 33 CFR part 146, Operations.

The owner, operator, or person in charge of a U.S.- or foreign-flagged MODU, FOF, fixed OCS facility, or vessel must submit marine casualty reports according to the applicable regulations. Section 146.30 of title 33 of the CFR applies to U.S. and foreign OCS facilities, including MODUs affixed to the seabed. Sections 146.301 and 146.303 of title 33 of the CFR apply both to U.S. and foreign vessels, including MODUs that are engaged in OCS activities, but which are not affixed to the seabed. However, §§ 146.301 and 146.303 do not apply to those U.S. vessels, including MODUs, 4 which are already required to report marine casualties under 46 CFR subpart 4.05.

The criteria for reporting casualties are not identical between titles 33 and 46 of the CFR. The differences in these regulations stem from the fact that the original casualty reporting regulations in title 33 of the CFR published on February 9, 1956 (21 FR 900) applied only to stationary artificial islands and fixed structures. On March 4, 1982 (47 FR 9366), the Coast Guard extended the application of these regulations to floating facilities and vessels engaged in OCS activities to implement amendments to the Outer Continental Shelf Lands Act (OCSLA) (Pub. L. 95-372). However, the reporting criteria in 46 CFR part 4 do not align with the reporting criteria currently found in 33 CFR part 146. As table 1 shows, the result of evolving the casualty reporting requirements on the OCS is that U.S. MODUs are regulated by two different reporting regimes, and the casualty reporting requirements for foreign MODUs are less stringent than those for U.S. MODUs.

Under 33 CFR 146.30, for facilities, and 33 CFR 146.303 for vessels, the owner, operator, or person in charge of an FOF, a fixed OCS facility, a MODU (when in contact with the seabed of the OCS for exploration or exploitation of subsea resources), or a vessel when engaged in OCS activities must report to the Coast Guard as soon as possible any casualties involving:

• Death;

• Injury to five or more persons in a single incident;

• Injury causing any person to be incapacitated for more than 72 hours;

• Damage affecting the usefulness of primary lifesaving or firefighting equipment; and

• Certain other property damage in excess of $25,000.

The reporting party must follow up the initial report with a written report that contains a description of the factors that may have contributed to the casualty, including whether there is any evidence of alcohol or drug use by individuals directly involved in the casualty. The written report must be submitted on Coast Guard Form CG-2692 “Report of Marine Casualty, Commercial Diving Casualty, or OCS-Related Casualty” or in a narrative that supplies the same information as in the form. The CG-2692 form or narrative can be supplemented, as necessary, by appended Forms CG-2692 A “Barge Addendum,” CG-2692B “Report of Mandatory Chemical Testing Following a Serious Marine Incident Involving Vessels in Commercial Service,” CG-2693C “Personnel Casualty Addendum,” or CG-2692D “Involved Persons and Witnesses Addendum.”  5

U.S. vessels operating anywhere and foreign vessels operating within the navigable waters of the United States are subject to the marine casualty reporting requirements found in 46 CFR part 4. The regulations in 46 CFR part 4 also apply to U.S. MODUs operating on the OCS because 46 CFR 109.411 requires U.S. MODUs to report casualties in accordance with 46 CFR part 4. U.S. FOFs also report casualties under 46 CFR part 4. Part 4 of title 46 of the CFR does not apply to foreign MODUs, FOFs, or vessels operating on waters beyond the navigable waters of the United States, except for certain foreign tank vessels operating in the Exclusive Economic Zone. See 46 CFR 4.05-2(b).

Under 46 CFR part 4, a vessel's owner, agent, master, operator, or person-in-charge must report any casualties to the Coast Guard, as required by 46 CFR 4.05-1. The initial marine casualty report required under 46 CFR 4.05-1 must be followed within 5 days by a written report on the CG-2692 form. See 46 CFR 4.05-10. Additionally, under 46 CFR 4.05-12, the Coast Guard requires the marine employer to determine whether there is any evidence of alcohol or drug use by individuals directly involved in the casualty. This information can be included on the CG-2692 form or, as necessary, on a CG-2692B form. Reports for closed investigations of reportable marine casualties investigated by the Coast Guard from 2002 to the current year are publicly available at the USCG Maritime Information Exchange. 6

A fatal incident in 2010 that resulted in the largest oil spill in U.S. history illustrates the discrepancies between the two reporting regimes. On April 20, 2010, the foreign MODU Deepwater Horizon was performing drilling operations on the Macondo Well. That evening, an explosion and fire took 11 lives, injured 16 others, and severely crippled and sank the MODU. The casualty resulted in a continuous flow of hydrocarbons into the Gulf of America for 87 days, causing significant environmental damage to the Gulf of America. 7

During their casualty analysis, the members of the Marine Board of Investigation for the Deepwater Horizon   8 incident noted the inconsistencies between the marine casualty reporting criteria in 33 CFR part 146 and 46 CFR part 4. In their accident report, the board members emphasized the disparate casualty reporting and chemical testing requirements between U.S. MODUs and foreign MODUs operating beyond navigable waterways of the United States.

The investigative team noted that the Deepwater Horizon had experienced a flooding and total loss of power events in 2008, but because of the marine casualty reporting criteria in 33 CFR subchapter N, the flooding and loss of power events were not considered reportable marine casualties that would have been reported to the Coast Guard. The investigative team stated in their report the following:

As a result of this investigation, the Commandant directed the Coast Guard to amend subchapter N to align reporting requirements between U.S.- and foreign-flagged MODUs engaged in OCS activities. The risks are similar for other floating entities and vessels engaged in OCS activities.

U.S. MODUs, FOFs, and vessels engaged in OCS activities report casualties under 46 CFR part 4, while foreign MODUs, FOFs, and vessels engaged in OCS activities report casualties under 33 CFR part 146. The reporting criteria in 33 CFR part 146 includes fewer types of casualties than the reporting criteria in 46 CFR part 4. Thus, foreign MODUs, FOFs, and vessels engaged in OCS activity have a less comprehensive casualty-reporting regime than their U.S. counterparts. These differences are important in the offshore oil and gas exploration, development, and production industry because a lack of casualty data could hamper early detection of risks.

As the coastal State with jurisdiction, we note that the reporting criteria under 46 CFR part 4 has the same casualty reporting standards for foreign MODUs, floating facilities, and vessels that engage in OCS activities as their U.S. counterparts. Additionally, having a uniform reporting standard for both U.S. and foreign MODUs, FOFs, and vessels that engage in OCS activities equalizes the regulatory burden.

Further, the casualty reporting regulations in 33 CFR subchapter N and 46 CFR part 4 reflect neither technological developments nor present-day operations in the OCS industry since the Coast Guard updated marine casualty reporting requirements on the OCS in 1982. At that time, MODUs affixed to the seabed, such as jack-up units, conducted most of the oil and natural gas exploration on the OCS in waters to about 500 feet deep. Similarly, oil and gas companies erected fixed facilities to produce oil and natural gas because these types of facilities are feasible to the same 500-foot water depth.

Over the past 30 years, the use of floating MODUs and facilities has become commonplace, as exploration and production activities moved into increasingly deeper waters of the OCS. Today, MODUs and FOFs operate in waters deeper than 5,000 feet. They also operate much farther offshore, and, consequently, more distant from emergency assistance. These MODUs and floating facilities are more like ocean-going vessels than older MODUs or fixed OCS facilities grounded to the seabed.

Therefore, in this final rule, as noted in the SNPRM and NPRM, the Coast Guard changes the criteria that foreign MODUs, FOFs, and vessels engaged in OCS activities will use to report casualties. This action will improve collection and analysis of casualty information on the OCS to help the Coast Guard and industry develop policies and procedures that prevent future marine casualties.

In this final rule, as noted in the SNRPM, the Coast Guard raises the dollar threshold for reporting property damage under 33 CFR part 146. The Coast Guard established the property damage threshold of $25,000 in 33 CFR part 146 through a final rule that published on March 4, 1982 (47 FR 9366).

The $25,000 threshold has not been changed in over 30 years and has not kept pace with inflation. Over time, this has resulted in reports of a greater number of casualties involving relatively minor property damage. In the regulatory analysis (RA), we address the reduction of regulatory burden from not having to report marine casualties with less than $75,000 in property damage.

Until recently, a similar situation existed with reporting property damage under 46 CFR part 4. In that case, to account for inflation, the Coast Guard published a final rule titled “Marine Casualty Reporting Property Damage Thresholds” on March 19, 2018 (83 FR 11889) (hereafter the 2018 Final Rule). In that final rule, the Coast Guard raised the property damage reporting criteria in 46 CFR part 4 from $25,000 per incident to $75,000 based on the increase in the Consumer Price Index for all urban consumers between 1980 (82.408) and 2016 (240.007). 10

The original $25,000 threshold had not been selected arbitrarily. In the NPRM for the 2018 Final Rule, we quoted from a 1980 interim final rule to explain that “the Coast Guard's selection of a monetary value as a reporting criterion is based upon the premise that increased repair costs are indicative of the increased seriousness of a marine casualty. . . . The monetary damage criterion has been chosen as the most effective method of ensuring that only the more serious casualties are reported.” (45 FR 77439, 77440). Accordingly (as we had explained in the NPRM to the 2018 Final Rule), “it has never been our intent to require owners or operators to notify us of casualties involving relatively minor property damage; consequently, we are amending the property damage monetary threshold amounts in order to eliminate the reporting of insignificant property damage incidents.” (82 FR 7755, 7756.)

The Coast Guard believes the property damage threshold in 33 CFR part 146 should be consistent with the threshold in 46 CFR part 4. Accordingly, this final rule results in a $75,000 property damage dollar threshold (PDT) for OCS units, which has the practical effect of reducing confusion across regulatory frameworks. It amends 33 CFR part 146 to apply this PDT increase to fixed OCS facilities and 46 CFR part 4 to make MODUs, floating offshore facilities, and vessels operating on the OCS subject to reporting criteria already subject to that PDT.

The Coast Guard received 11 comment submissions from the SNPRM comment period. 11 During the SNPRM's initial 90-day comment period, beginning on June 14, 2023, the Coast Guard received a comment requesting an extension of the comment period. The Coast Guard granted this request and, on September 12, 2023, published an extension of the comment period (88 FR 62491) for an additional 60 days until November 13, 2023. These written submissions can be viewed in the docket following the instructions in the ADDRESSES section of the preamble. The Coast Guard appreciates the comments from the public, as these insights continue to inform Coast Guard actions and programs. We summarize the comments by topic and discuss our responses in the following paragraphs.

The Coast Guard received one comment requesting a comment period extension and a public meeting. The initial SNPRM comment period was set for 90 days, which we extended for an additional 60 days upon request. Because the comment period was 150 days, we determined a public meeting was unnecessary as 5 months is sufficient time for comments. 12

We received another comment recommending we use input from the U.S. Coast Guard OCS National Center of Expertise (NCOE) when drafting rulemakings related to operations on the OCS. In line with the commenter's suggestion, the Coast Guard received input from the OCS NCOE when drafting this regulation.

One commenter recommended keeping a $25,000 threshold for reporting property damage for continuity and consistency. Another commenter recommended increasing the reporting threshold from $75,000 to $250,000.

The Coast Guard does not agree with keeping the threshold for reporting property damage at $25,000 or with raising it to $250,000. The purpose of updating the property damage threshold in 33 CFR part 146 is to harmonize the reporting criteria across reporting protocols and neither of those two recommendations would result in consistent reporting criteria.

As discussed in the 2018 Final Rule, the property damage threshold was initially set at $25,000 in the 1980s and that original $25,000 was selected as indicator that a marine casualty was serious enough to warrant an investigation. This 1980's property damage threshold has not kept pace with inflation, and over time, that has diminished its value as an indicator of the seriousness of a marine casualty and resulted in the reporting of casualties involving relatively minor property damage.

Raising the property damage threshold in 33 CFR part 146 to $250,000 would increase the threshold well above the inflation amount. It would, moreover, not only fail to address the inconsistency in reporting criteria across different entities but actually exacerbate that inconsistency by setting the 33 CFR part 146 damage threshold well above that of a Serious Marine Incident under 46 CFR part 4. The threshold for a Serious Marine Incident was raised to $200,000 from $100,000 in the 2018 Final Rule to adjust that threshold for inflation and recalibrate that amount to reclaim its place as an indicator of serious marine incidents.

Updating the property damage to $75,000 accounts for inflation, restores the dollar threshold to its role as an indicator of the seriousness of a marine casualty, and it results in consistent reporting criteria across all entities reporting marine casualties to the Coast Guard. The change to the threshold in 46 CFR part 4 also addressed a concern expressed by NOSAC in its comment on the 2014 NPRM, that the property damage threshold for casualty reporting should be increased from $25,000 to account for inflation. We are, therefore, updating the reporting thresholds for reporting property damage due to marine casualties to $75,000.

We received two comments on reporting and investigating pollution spills. The first commenter stated that pollution spills must already be reported under the Clean Water Act  13 and that requiring them to be reported as marine casualties with a CG-2692 form is duplicative and adds no value. The second commenter expressed concerns that there will be a significant increase in the number of marine casualty notifications that require a CG-2692 form due to only pollution spills and will increase the number of investigations being conducted. Both commenters state that there are conflicting requirements related to spill reporting between the Coast Guard, BSEE, and EPA, and that permitted discharge points (under the National Pollutant Discharge Elimination System (NPDES)) would now be required to be reported as marine casualties.

The Coast Guard agrees that pollution spills are already required to be reported under the Clean Water Act. Those notifications are done through the National Response Center and are distributed to the Coast Guard, BSEE, and the EPA. They do not need to be reported to the Coast Guard separately as marine casualties because a report under existing regulations (33 CFR 153.203, 40 CFR 117.21, or 40 CFR part 302) for an occurrence exclusively involving significant harm to the environment satisfies the immediate notification requirement applicable to marine casualties. 14 This final rule does not change that. Therefore, there is not a duplicative reporting requirement, and we do not anticipate there being an increase in the number of marine casualty reports due solely to pollution spills. This final rule does not change the requirements for the NPDES permit program and permitted discharge points are not considered to be a marine casualty; therefore, they are not required to be reported under this rule.

One commenter expressed concerns regarding duplicative reporting to the Bureau of Safety and Environmental Enforcement (BSEE) and the Coast Guard and requested improvements to the incident reporting process. The same commenter expressed concerns about the transparency of interactions between the Coast Guard and BSEE related to incident investigations.

While there is overlapping jurisdiction on the OCS, the Coast Guard and BSEE have a Memorandum of Understanding and multiple Memorandums of Agreement that address the agencies' responsibilities. The overarching Memorandum of Understanding identifies the roles and responsibilities of the two agencies for the oversight of OCS activities. The Memorandums of Agreement serve to provide more detailed explanations of how the agencies work to enhance collaboration, reduce redundancy, ensure consistency among the two agencies; they provide clarity to the regulated community and the public on the roles, responsibilities, and interaction between the two agencies. 15 MOA OCS-05 is specific to incident investigations with BSEE. The Coast Guard and BSEE will continue working together to minimize duplicative work, as we explained in the SNPRM, 16 but changing the incident reporting process or the manner in which the Coast Guard and BSEE interact is beyond the scope of this rulemaking.

We received multiple comments about definitions and terminology. One comment pointed out language used in Section IX. Regulatory Analysis of the SNPRM, which referenced Coast Guard organizational units that no longer exist.

The regulations have since been changed and current regulations refer to the current names of these organizational units. This final rule does not change the nomenclature of Coast Guard offices or units which receive reports for marine casualties.

Another submission raised 15 issues on the terminology used in the SNPRM preamble as well as in the proposed regulatory text. We received five comments about terms and language used in Section VIII of the SNPRM, which detailed differences in proposed regulations between the NPRM and SNPRM. Many of these comments questioned if the Coast Guard proposed new acronyms and terms, such as floating entities, foreign FOF, and fixed platforms.

The Coast Guard did not propose any new acronyms or terms. The only definition we had proposed to change in the NPRM was the definition of an FOF. Upon review, we agreed with the SNPRM comment that the proposed change to the definition of “Floating OCS Facility” blurred the distinction between a facility and a vessel. Therefore, we are not amending the definition of “Floating OCS Facility,” and we will keep the existing definition of FOF. However, this final rule will still require FOFs to report marine casualties per 46 CFR part 4 as they face similar risks as vessels. Fixed OCS units will continue to use the reporting requirements found in 33 CFR parts 140 and 146.

As far as the language used in Section VIII of the SNPRM, referring to units as “flagged” was to provide more explanation and clarification. It was not associated with any additional regulatory definitions. For instance, we used “foreign FOF” as shorthand to identify that an FOF was not U.S.-flagged without introducing a new regulatory definition. It was not our intent to introduce new acronyms or terms.

One commenter requested that the Coast Guard create a clear distinction between FOFs that are flagged, self-propelled, seagoing vessels, and non-vessel FOFs such as spars, tension leg platforms, and semi-submersible floating production units that are permanently moored, citing the CG-OES Policy Letter 01-22. 17 The cited CG-OES Policy Letter 01-22 was issued to aid the OCMI in determining which floating OCS units “are not vessels”; therefore, this commenter's request is beyond the scope of this rulemaking.

Another commenter expressed confusion regarding the distinctions between vessels and non-vessels in our references to FOFs and fixed OCS facilities. This commenter also requested aligning the degree of specificity required in the casualty reporting criteria in 33 CFR part 146 and 46 CFR part 4. This commenter stated that when an OCS unit is considered a vessel, the casualty reporting regulations should be aligned as proposed in the SNPRM. When an OCS unit was not considered a vessel but more appropriately described as either a fixed OCS facility or an FOF, the commenter felt the OCS unit should follow only the reporting requirements in 33 CFR part 146.

The commenter stated that the risk profiles between FOFs and vessels are different, and that the application of vessel-based reporting requirements in 46 CFR part 4, as explained above, is not appropriate. Additionally, they stated that nearly all the vessel-based marine casualty criteria in 46 CFR part 4 are not applicable to FOFs, which are not vessels as determined by the Coast Guard Officers in Charge, Marine Inspection (OCMI). Another frequent request was to keep requirements for vessel FOFs in 46 CFR part 4 and requirements for non-vessel FOFs in 33 CFR part 146.

The Coast Guard agrees that there are distinctions between the different types of OCS units. However, the purpose of this final rule is to better align the reporting requirements for marine casualties found in 33 CFR subchapter N with those found in 46 CFR part 4. This final rule does not alter the reporting requirements found in 33 CFR part 146 for fixed OCS units as defined in 33 CFR part 140, except for raising the reporting threshold dollar amount to $75,000.

FOFs are at risk of marine casualties similar to those that vessels are at risk of, such as flooding or loss of stability. These types of marine casualties are not currently accounted for in 33 CFR part 146. While some of the types of marine casualties identified in 46 CFR part 4 may not be applicable to FOFs, the only requirement is to report the marine casualty, if it occurs.

Lastly, we received one comment recommending we issue the National Offshore Safety Advisory Committee (NOSAC) a task statement for input on OCS terms and other definitions. We do not agree that it is necessary to issue NOSAC a task statement to review terms and definitions we proposed to change in the SNPRM because we are no longer amending terms or definitions in this final rule.

We received four comments about the 2021 National Defense Authorization Act's OCSLA amendment that added “including non-mineral energy resources” to 43 U.S.C. 1333(a)(1). These comments recommended revising 33 CFR subchapter N to include this change. Another commenter suggested that the stated objective of this final rule could not be achieved without including non-mineral vessel activities on the OCS in the same reporting regime. This commenter also recommended withdrawing the SNPRM until all of subchapter N is updated.

The Coast Guard appreciates all these comments; however, the OCSLA amendment and suggestions to update the entirety of subchapter N to include non-mineral vessel activities are separate topics that are beyond the scope of this rulemaking.

Four comments questioned the validity of affected population data and Marine Information for Safety and Law Enforcement (MISLE) labeling being inconsistent when investigating OCS incidents. Another comment was about the integrity of MISLE data regarding industrial vessels.

To address concerns that the affected population undercounted vessels, the Coast Guard cross referenced the population of reporting vessels that appear in MISLE casualty records with both MISLE population data and the OCS NCOE-maintained directory of FOFs. This cross-reference increases the total population count to 649 foreign vessels and prevents any double counting in the overall population of vessels that are labeled as industrial vessels. We continue to use MISLE as the source for the count of casualties as this is the primary record of reports made to the Coast Guard and has no private equivalent, making it the most appropriate source for the counts of casualties reported and population of reporting vessels.

Another comment questioned the validity of the NOSAC report, given the date of the report. We agree with the commenter that the data in the NOSAC report reflected activity on the OCS at the time the NOSAC report was issued and that the data in the report may change. However, our analysis was intended to be based on a specific period of time and does not rely solely on the information found in the NOSAC report. 18 So, for the purpose of this rulemaking, we reviewed and updated the analysis at each stage of the process and determined the analysis reflects the period from 2015 to 2022 when the data was collected, as detailed in the RA.

One commenter expressed concerns about the accuracy of the cost burden associated with creating a drug-testing program similar to the Department of Transportation's program.

This final rule makes no change to the existing requirements in 46 CFR parts 4 and 16 to report alcohol and drug testing as part of a marine casualty report.

This final rule aligns the marine casualty reporting requirements in 33 CFR part 146 with those found in 46 CFR part 4 to harmonize reporting requirements that apply to foreign and U.S. MODUs, FOFs, and vessels engaged in OCS activities. This final rule also raises the property damage threshold that triggers a casualty report from $25,000 to $75,000 for fixed OCS facilities. These actions will also improve the collection and analysis of casualty information on the U.S. OCS to help the Coast Guard and industry develop policies and procedures that prevent future marine casualties. We discussed the section-by-section changes in the SNPRM. 19 As noted above, we are not amending the definition of “Floating OCS Facility” in 33 CFR 140.10 as we had proposed to do. In other respects, however, the section-by-section discussion in the SNPRM applies to this final rule.

We developed this final rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

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

Two additional Executive orders promote the goals of Executive Order 13563: Executive Order 13609 (Promoting International Regulatory Cooperation) and Executive Order 13610 (Identifying and Reducing Regulatory Burdens). Executive Order 13609 targets international regulatory cooperation to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. Executive Order 13610 aims to modernize the regulatory systems and reduce unjustified regulatory burdens and costs on the public.

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

This final rule is considered an Executive Order 14192 deregulatory action. We estimate that this rule generates $0.0029 million dollars in annualized cost savings at a 7-percent discount rate, discounted relative to year 2024, over a perpetual time horizon.

An RA follows.

We summarize the differences between the SNPRM and final rule in table 2.

In this final rule, as in the SNPRM, the Coast Guard amends regulations in which marine casualties, under 33 CFR subchapter N, are reported for foreign MODUs, FOFs, and vessels operating on the OCS. The amendments will close the gap between casualty reporting requirements for U.S. and foreign MODUs, FOFs, and vessels engaged in an OCS activity under the 46 CFR part 4 reporting requirements, which brings foreign entities to the same standard as U.S. entities. In addition to the change from the NPRM and as proposed in the SNPRM, the Coast Guard updates the property damage threshold from $25,000 to $75,000 for reporting under 33 CFR part 146 to align with the threshold in 46 CFR part 4, which was raised in the 2018 Final Rule, 20 which, in turn, decreases the number of reports by U.S. industry and generates undiscounted cost savings of about $15,340 for the next 10 years. We summarize the impacts of the changes of this final rule in table 3.

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

As in the SNPRM, 21 the affected population comprises all foreign FOFs identified in the MISLE database as floating production systems and floating production storage offloading vessels, as well as various types of industrial vessels, 22 MODUs, and lift boats. For this final rule, we use the index of FOFs from the Coast Guard's OCS NCOE. 23 We provide transparency in table 4, which shows details on the affected population and addresses concerns that the population of industrial vessels in the MISLE database undercounts the affected population. Since the 2020 SNPRM, MISLE now distinguishes FOFs, so we listed those separately from industrial vessels to show that we did not undercount the population. We excluded types that did not have an oceangoing route under the assumption that they would not operate on the OCS.

Table 5 describes the different events that prompt reporting of a marine casualty under 33 CFR part 146 and 46 CFR part 4. Title 46 CFR part 4 has more casualty reporting triggers than 33 CFR part 146. Therefore, an FOF, MODU, or vessel will report more casualties under 46 CFR part 4 than under 33 CFR part 146.

Transferring marine casualty reporting of MODUs, FOFs, and vessels to 46 CFR part 4 will require an increase in the types of reportable casualties, including injury to fewer than five persons, grounding, stranding, foundering, flooding, collision, allision, explosion, fire, loss of propulsion, loss of steering, and impaired operations. There are already some voluntary submissions of marine casualty reports, which are not required under 33 CFR part 146, for incidents on foreign MODUs, FOFs, and vessels involving the criteria we mentioned previously. Even with a count of active foreign MODUs, FOFs, and vessels each year, we are unable to determine the number of incidents that were non-reportable under 33 CFR part 146 but would have been reportable under 46 CFR part 4. Without aligned reporting, we are unable to compare how often one type of incident occurs on foreign MODUs, FOFs, and vessels compared to their U.S. counterparts, while accounting for differences in the total population sizes, how much of those populations actively report, and general risk levels between the two populations.

The reports for nonfatal types of incidents described as voluntary for foreign MODUs, FOFs, and vessels are mandatory for U.S. MODUs, FOFs, and vessels and will become mandatory for all flags with this final rule. We show the number of voluntary and mandatory marine casualty reports by flag type in table 6. From 2015 to 2022, MISLE recorded 258 total voluntary reports of casualties that met the reporting criteria under 46 CFR part 4 from a total of 163 uniquely identified foreign MODUs, FOFs, and vessels reporting under title 33 of the CFR. Table 6 shows the number of marine casualty reports from foreign MODUs, FOFs, and vessels that met the criteria for a reportable casualty under title 46 of the CFR but not under title 33 of the CFR, meaning those reports were submitted voluntarily. Table 7 shows the number of unique foreign MODUs, FOFs, and vessels that submitted voluntary reports in each year. These reports are unique only within each year; across the entire range from 2015 to 2022, there were 69 unique entities, meaning 94 foreign MODUs, FOFs, or vessels submitted reports in multiple years.

Similarly, from 2015 to 2022, MISLE recorded 1,333 total reports from 830 identified U.S. MODUs, FOFs, and vessels that matched the reporting criteria for voluntary reports from foreign MODUs, FOFs, and vessels, although those types of reports are mandatory for U.S. MODUs, FOFs, and vessels. Table 8 shows the number of marine casualty reports from U.S. MODUs, FOFs, and vessels that met the criteria for a reportable casualty under title 46 of the CFR but not under title 33 of the CFR. Table 9 shows the number of unique U.S. MODUs, FOFs, and vessels that submitted reports in each year. These are unique only within each year, across the entire range from 2015 to 2022, there were 574 unique entities, meaning 256 U.S. MODUs, FOFs, or vessels submitted reports in multiple years.

Coast Guard regulations, 33 CFR 165.5(b), allow any person to request that a safety zone be established. Driven by Federal Aviation Administration (FAA) regulations restricting drone flights over human beings, 1 the Coast Guard has received numerous requests for safety zones over water from the sponsors of drone shows. In response to these requests, the Coast Guard proposed safety zone regulations in 2024 and noted that risks associated with drone shows include, but are not limited to, the hazard created by drones potentially falling from the sky and the hazard of collisions between drones and sailboat masts, or commercial vessel pilothouses. On August 23, 2024, the Coast Guard published final regulations titled Safety Zones; Aerial Drone Displays, Hudson and East Rivers, New York, NY, (89 FR 68102). That rule, which is codified at 33 CFR 166, established specific areas of the Hudson and East Rivers where safety zones are enforced on the navigable waters beneath aerial drone displays.

Since then, Coast Guard Sector New York has supported 18 drone displays in these areas, demonstrating the continuing need for safety zones to protect persons, vessels, and the marine environment from potential hazards created by aerial drone displays. The Captain of the Port (COTP) New York has determined that these hazards extend to anyone within 500 yards of the area below the aerial drone displays. Furthermore, in May 2026, Coast Guard Sector New York received notification of the need for safety zones for multiple additional aerial drone displays (to be held as early as June 27, 2026) outside of the established safety zone areas in the Hudson and East Rivers; two of these are in the vicinity of Liberty Island and Ellis Island.

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 to take notice and comment on a request that the Coast Guard received in May to establish a safety zone which must be in place in late June.

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

This rule establishes a safety zone from June 27, 2026, through July 20, 2026. The Captain of the Port (COTP) will make notification of the exact dates and times in advance of each enforcement period to the local maritime community through marine broadcasts, local notice to mariners, or by an on-scene oral notice and signage. The safety zone will cover all waters of the Upper Bay in the vicinity of Ellis Island and Liberty Island formed within a polygon bound by the following coordinates in order: Point One at 40°41′26.35″ N, 074°03′17.73″ W, thence to Point Two at 40°41′02.07″ N, 074°02′24.83″ W, thence to Point Three at 40°41′35.58″ N, 074°02′02.95″ W, thence to Point Four at 40°42′05.26″ N, 074°01′57.11″ W, thence to Point Five at 40°42′30.35″ N, 074°02′03.73″ W; thence along the shoreline returning to Point One. These coordinates are based on the World Geodetic System (WGS 84)/North American Datum 83 (NAD 83).

Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the Captain of the Port.

The Coast Guard developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below is a summary of the Coast Guard's 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).

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has 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.

The Coast Guard has 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 has 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 establishes 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:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under FFDCA section 408(g), 21 U.S.C. 346a(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-2021-0290 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 August 31, 2026.

The EPA's Administrative Law Judges Division (ALJD), 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, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the ALJD electronically, a person should utilize the ALJD 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 August 24, 2021 (83 FR 47275) (FRL-8792-02-OCSPP), the Federal Register of October 21, 2021 (86 FR 58239) (FRL-8793-04-OCSPP), and the Federal Register of March 24, 2023 (88 FR 17778) (FRL-10579-02-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 0F8857) by Taminco US LLC, a subsidiary of Eastman Chemical Company, 200 S Wilcox Drive, Kingsport, TN 37660-5147. The petition requested that 40 CFR 180.698 be amended by establishing tolerances for residues of the plant growth regulator chlormequat chloride, [(2-chloroethyl) trimethylammonium chloride], in or on Aspirated grain fractions (AGF) at 30 parts per million (ppm); barley grain at 8 ppm; barley, hay at 90 ppm; barley, straw at 50 ppm; eggs at 0.1 ppm; horse, meat byproducts at 1 ppm; horse, meat at 0.2 ppm; meat byproducts of cattle at 0.7 ppm; meat of cattle at 0.2 ppm; meat byproducts of goats at 0.7 ppm; meat of goats at 0.2 ppm; meat byproducts of hogs at 0.5 ppm; meat of hogs at 0.2 ppm; meat byproducts of sheep at 0.7 ppm; meat of sheep at 0.2 ppm; milk at 0.5 ppm; oat, forage at 15 ppm; oat, hay at 100 ppm; oat, straw at 50 ppm; poultry meat byproducts at 0.1 ppm, poultry meat at 0.05 ppm, oat grain at 40 ppm, triticale grain at 5 ppm; wheat, bran at 15 ppm; wheat, germ at 20 ppm; wheat grain at 5 ppm; wheat, forage at 30 ppm; wheat, hay at 90 ppm; and wheat, straw at 80 ppm.

Those documents referenced a summary of the petition prepared by Taminco US LLC, a subsidiary of Eastman Chemical Company, the petitioner, which is available in the docket (Docket ID Number EPA-HQ-OPP-2021-0290) at https://www.regulations.gov.

Comments were received in response to the notices of filing, one comment from the Center for Food Safety (CFS), one from Environmental Working Group (EWG), and one from a private citizen which was non-substantive. EPA's response to the remaining comments is addressed in the Comments on the NOF and EPA's Responses section of the document, Response to Public Comments on EPA's Registration Decision to Approve the First Outdoor Food Uses on Wheat, Triticale, Barley, and Oats for Chlormequat Chloride, posted in Docket ID Number EPA-HQ-OPP-2021-0290 at https://www.regulations.gov.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is modifying the existing tolerances for residues at different levels than requested. The reason for these changes is explained in Unit IV.C.

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

Consistent with FFDCA section 408(b)(2)(D), and the factors specified 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 chlormequat chloride including exposure resulting from the tolerances modified by this action. EPA's assessment of exposures and risks associated with chlormequat chloride follows.

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

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

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

Specific information on the studies received and the nature of the adverse effects caused by chlormequat chloride as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at https://www.regulations.gov in the document, Chlormequat Chloride. Revised Human Health Risk Assessment for the Section 3 Registration Action for a New Use on Wheat, Triticale, Barley, Oats, and Grasses Grown for Seed, in docket ID number EPA-HQ-OPP-2021-0290. This assessment incorporated a subchronic 28-day inhalation study in rats. This study showed decreases in body weight in males, increased incidence of salivation, unsteady gait, tremors, flattened posture, and decreases in white blood cells in both sexes at 0.3 mg/L.

For additional discussion of the Toxicological Profile of chlormequat chloride see Unit III.A of the chlormequat chloride tolerance rulemaking published in the Federal Register of April 25, 2018 (84 FR 17925) (FRL-9974-42).

A summary of the toxicological endpoints used for the human health risk assessment can be found in the document, Chlormequat Chloride. Revised Human Health Risk Assessment for the Section 3 Registration Action for a New Use on Wheat, Triticale, Barley, Oats, and Grasses Grown for Seed, in docket ID number EPA-HQ-OPP-2021-0290.

Much of the exposure assessment remains the same although updates have occurred to accommodate exposures from the petitioned-for tolerances. These updates are discussed in this section. For a description of the rest of the EPA approach to and assumptions for the exposure assessment, please reference Unit III.C. of the April 25, 2018, rulemaking in the Federal Register (84 FR 17925) (FRL-9974-42).

1. Dietary exposure from food and feed uses. EPA's dietary exposure assessments have been updated to include the additional petitioned-for tolerances for residues of chlormequat chloride. In estimating acute and chronic dietary exposure, the assessment was conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID, Version 4.02, EPA) which incorporates 2005-2010 food consumption information from the United States Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America. The acute assessment is based on tolerance-level residues and assumes 100 percent crop treated (PCT). The acute assessment is unrefined. The chronic assessment is based on average field trial values and assumes 100 PCT. The chronic assessment is partially refined. Empirical processing factors were included where available. Otherwise, DEEM-FCID default processing factors were used. A cancer dietary assessment was not conducted because chlormequat chloride is classified as “not likely to be carcinogenic to humans.”

EPA did not use refined PCT information in the dietary assessment for chlormequat chloride, although average field trial values were used. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require, pursuant to FFDCA section 408(f)(1), that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

2. Dietary exposure from drinking water. Since the most recent drinking water assessment was conducted, new metabolism data (aerobic soil, aerobic aquatic, anaerobic aquatic) and terrestrial field dissipation studies have been received, and refined modeling was conducted. The drinking water model and their descriptions are available at the EPA internet site: https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/models-pesticide-risk-assessment. The updated estimated drinking water concentrations (EDWCs) used in the dietary risk assessment are 661.7 µg/L for acute risk, and 240.2 µg/L for chronic risk, all based on surface water sources of drinking water.

3. From non-dietary exposure. Chlormequat chloride is not registered for any specific use patterns that would result in residential exposure.

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

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

EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act safety factor from 10X to 1X. See Unit III.D. of the rulemaking published in the Federal Register of April 25, 2018 (84 FR 17925) (FRL-9974-42), for a discussion of the Agency's rationale for that determination.

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

Acute dietary risks are below the Agency's level of concern of 100% of the aPAD; they are 22% of the aPAD for infants (<1 year old), the population subgroup with the highest exposure. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 76% of the cPAD for children 1 to 2 years old, the population subgroup with the highest exposure.

Short- and intermediate-term aggregate risks take into account short- and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Short- and intermediate-term adverse effects were identified; however, chlormequat chloride is not registered for any use patterns that would result in either short- or intermediate-term residential exposure. Because there is no short- or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short- or intermediate-term risk), no further assessment of short- or intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short- and intermediate-term risk for chlormequat chloride.

Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, chlormequat chloride is not expected to pose a cancer risk to humans.

Therefore, based on the risk assessments and information described above, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to chlormequat chloride residues. More detailed information on this action can be found in the document, Chlormequat Chloride. Revised Human Health Risk Assessment for the Section 3 Registration Action for a New Use on Wheat, Triticale, Barley, Oats, and Grasses Grown for Seed in docket ID number EPA-HQ-OPP-2021-0290.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the April 25, 2018, rulemaking in the Federal Register (84 FR 17925) (FRL-9974-42).

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established MRLs for chlormequat chloride in or on: Barley, grain at 2 ppm; Barley, hay at 50 ppm; Barley, straw at 50 ppm; Hog, meat byproducts at 1 ppm; Hog, meat at 0.2 ppm; Milk at 0.3 ppm; Oat, grain at 4 ppm; Oat, straw at 7 ppm; Wheat, bran at 7 ppm; Wheat, grain at 2 ppm; Wheat, hay at 80 ppm; and Wheat, straw at 80 ppm. These MRLs are different than the tolerances established for chlormequat chloride in the U.S. as a result of the use pattern proposed. EPA is harmonizing with Codex-established MRLs for chlormequat chloride in or on: Cattle, meat byproducts at 1 ppm; Cattle, meat at 0.2 ppm; Egg at 0.1 ppm; Goat, meat byproducts at 1 ppm; Goat, meat at 0.2 ppm; Poultry, meat byproducts at 0.1 ppm; Sheep, meat byproducts at 1 ppm; and Sheep, meat at 0.2 ppm. EPA is harmonizing with Canada-established MRLs for chlormequat chloride in or on: Barley, bran at 20 ppm; Barley, grain at 8 ppm; Oat, grain at 40 ppm; Oat, bran at 80 ppm, Poultry, meat at 0.05 ppm; Wheat, bran at 15 ppm; Wheat, germ at 20 ppm; Wheat, grain at 5 ppm; and Wheat, straw at 80 ppm. Mexico adopts U.S. tolerances and/or Codex MRLs for its export purposes.

In general, a tolerance action is effective on the date of publication of the final rule in the Federal Register . For actions in the final rule that lower or revoke existing tolerances, EPA will set an expiration date for the existing tolerance of six months after the date of publication of the final rule in the Federal Register , in order to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to the requirements.

The tolerance expression for chlormequat chloride stated measuring only chlormequat (2-chloro- N,N,N -trimethylammonium) and should be updated as follows: “ The sum of chlormequat and its salts expressed as chlormequat cation”, as the residue definition for both tolerance enforcement and risk assessment for plants and livestock commodities in order to harmonize with Codex and Canada.

The registrant petitioned for a tolerance of 90 ppm for Barley, hay and 50 ppm for Barley, straw. EPA is establishing the tolerances for Barley, hay at 150 ppm and Barley, straw at 60 ppm due to these residues being increased when converted to chlormequat chloride equivalents using a molecular weight conversion factor (MWCF) of 1.29 and calculated with the Organisation for Economic Cooperation and Development (OECD) MRL calculation procedures.

EPA is establishing tolerances for Cattle, meat byproducts; Goat, meat byproducts; and Sheep, meat byproducts at levels higher than requested in order to harmonize with Codex MRLs.

There are established tolerances for Cattle, meat at 0.20 ppm; Egg at 0.10 ppm; Goat, meat at 0.20 ppm, Milk at 0.50 ppm; Poultry, meat byproducts at 0.10 ppm; and Sheep, meat at 0.20 ppm. EPA is establishing the tolerance for Cattle, meat at 0.2 ppm; Egg at 0.1 ppm; Goat, meat at 0.2 ppm; Milk at 0.5 ppm; Poultry, meat byproducts at 0.1 ppm; and Sheep, meat at 0.2 ppm based on rounding class practices.

The registrant petitioned for a tolerance of 0.5 ppm for Hog, meat byproducts and 0.2 ppm for Hog, meat. However, EPA is not establishing those tolerances because the available residue and metabolism data indicate that there is no reasonable expectation of finite residues in swine/hog commodities. In such situations, EPA's regulations state that EPA does not set tolerances for the residues in the hog or swine livestock commodities. See 40 CFR 180.6(b).

The registrant did not petition for Horse, meat byproducts, or Horse, meat. EPA is establishing tolerance levels for Horse, meat byproducts at 1 ppm for harmonization with Codex, and Horse, meat at 0.2 ppm.

The registrant petitioned for a tolerance of 100 ppm for Oat, hay. EPA is establishing the tolerances for Oat, hay at 150 ppm due to these residues being increased when converted to chlormequat chloride equivalents using a MWCF of 1.29 and calculated with the OECD MRL calculation procedures.

The registrant did not petition for Barley, bran. The tolerance on Barley, bran is significantly higher than raw agricultural commodity, Barley, grain; therefore, a tolerance is needed for the processed commodity Barley, bran. EPA is establishing tolerance levels for Barley, bran at 20 ppm for harmonization with Health Canada Pest Management Regulatory Agency (PMRA) EPA is establishing tolerance levels for Wheat, bran at 15 ppm for harmonization with Health Canada PMRA.

The registrant petitioned for a tolerance of 90 ppm for Wheat, hay. EPA is establishing the tolerances for wheat, hay at 150 ppm due to these residues being increased when converted to chlormequat chloride equivalents using a MWCF of 1.29 and calculated with the OECD MRL calculation procedures.

Therefore, tolerances are established for residues of chlormequat chloride (the sum of chlormequat and its salts expressed as chlormequat cation) in or on: Barley, bran at 20 ppm; Barley, grain at 8 ppm; Barley, hay at 150 ppm; Barley, straw at 60 ppm; Cattle, meat byproducts at 1 ppm; Cattle, meat at 0.2 ppm; Egg at 0.1 ppm; Goat, meat byproducts at 1 ppm; Goat, meat at 0.2 ppm; Hog, meat byproducts at 0.5 ppm; Hog, meat at 0.2 ppm; Horse, meat byproducts at 1 ppm; Horse, meat at 0.2 ppm; Milk at 0.5 ppm; Oat, grain at 40 ppm; Oat, forage at 15 ppm; Oat, hay at 150 ppm; Oat, straw at 50 ppm; Poultry, meat byproducts at 0.1 ppm; Poultry, meat at 0.05 ppm; Sheep, meat byproducts at 1 ppm; Sheep, meat at 0.2 ppm; Wheat, bran at 15 ppm; Wheat, germ at 20 ppm; Wheat, grain at 5 ppm; Wheat, forage at 30 ppm; Wheat, hay at 150 ppm; and Wheat, straw at 70 ppm.

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

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

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

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

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because tolerance actions like this one are exempt from review under Executive Order 12866.

However, EPA's 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 summarized in Unit III.E.

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify the docket ID number EPA-HQ-OPP-2023-0555 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 August 31, 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, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the OALJ electronically, a person should utilize the OALJ e-filing system at https://yosemite.epa.gov/oa/eab/eab-alj_upload.nsf.

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

In the Federal Register of January 13, 2025 (90 FR 2661) (FRL-11682-11), 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 3E9078) by the Interregional Research Project Number 4 (IR-4), 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested that 40 CFR 180.442 be amended by establishing tolerances for residues of the insecticide bifenthrin, in or on the raw agricultural commodities: celtuce at 3 ppm; citrus, oil at 0.75 ppm; clover, forage (regional tolerance) at 7 ppm; clover, hay (regional tolerance) at 30 ppm; coffee, green bean at 0.05 ppm; cottonseed subgroup 20C at 0.5 ppm; edible podded bean subgroup 6-22A at 0.6 ppm; edible podded pea subgroup 6-22B at 0.6 ppm; fennel, Florence, fresh leaves and stalks at 3 ppm; kiwifruit, fuzzy at 1.5 ppm; kohlrabi at 0.6 ppm; leaf petiole vegetable subgroup 22B at 3 ppm; pulses, dried shelled bean, except soybean, subgroup 6-22E at 0.3 ppm; pulses, dried shelled pea subgroup 6-22F at 0.3 ppm; rapeseed subgroup 20A at 0.05 ppm; safflower at 0.2 ppm; succulent shelled bean subgroup 6-22C at 0.05 ppm; succulent shelled pea subgroup 6-22D at 0.05 ppm; Swiss chard at 3 ppm; tropical and subtropical, palm fruit, edible peel, subgroup 23C at 3 ppm; and vegetable, brassica, head and stem, group 5-16 except cabbage at 0.6 ppm.

Additionally, the petition requested, upon approval of the above tolerances, to remove the existing tolerances in 40 CFR 180.442 in or on brassica, head and stem, subgroup 5A, (except cabbage) at 0.6 ppm; cotton, undelinted seed at 0.5 ppm; leafy petioles subgroup 4B at 3.0 ppm; pea and bean, dried shelled, except soybean, subgroup 6C at 0.15 ppm; pea and bean, succulent shelled, subgroup 6B at 0.05 ppm; rapeseed, seed at 0.05 ppm; and vegetable, legume, edible podded, subgroup 6A at 0.6 ppm. That document referenced a summary of the petition prepared by IR-4, the petitioner, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is establishing some tolerances as requested and some that vary from what was requested. The reasons for these changes are explained in Unit IV.C.

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

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. The database of experimental toxicology studies available for bifenthrin provides a robust characterization of the hazard potential for adults and children. The bifenthrin database is considered complete for risk assessment.

Bifenthrin has been evaluated for a variety of toxic effects in guideline experimental toxicity studies. Predominantly, behavioral changes characteristic of Type I pyrethroids, such as muscle tremors, were seen in most of the bifenthrin experimental toxicology studies, consistent with its mode-of-action (MOA) to activate sodium channels. This observation was noted in several bifenthrin toxicology studies across various species at different durations, and different routes of exposure and lifestages. The published acute Wolansky study provided robust data on locomotor activity, due to the fact that it utilized nine dose groups and a benchmark dose data analysis method to address dose spacing effects.

The Wolansky study is considerably conservative, using the most sensitive rat strain, plus gavage dosing utilizing a vehicle and volume producing the most adverse responses ( i.e., 1 mL/kg corn oil). Muscle tremors were observed in nearly all experimental studies in all species and durations; however, motor activity was not measured in most of these studies. The decreased locomotor activity observed in the acute Wolansky study was the most sensitive endpoint identified in the study and therefore, was selected as the endpoint for acute dietary and short-term incidental oral risk assessment. In the acute Wolansky study, tremors were not observed at doses less than 8 mg/kg of bifenthrin, while decreased motor activity was significant at doses of 4 mg/kg and above. Further, the Wolansky study monitored the toxicology at the time of peak effects, unlike most of the guideline studies. Additional effects seen in one or more studies included: muscle twitching, decreased grip strength, altered landing foot splay, depressed respiration, increased grooming counts, loss of muscle coordination, staggered gait, exaggerated hind limb flexion, and convulsions at high doses. Decreased body weight and food consumption were also noted in repeat-dosing dietary studies. There was no clear evidence in the database that either gender was more sensitive to bifenthrin.

Clinical signs of neurotoxicity were also reported in the route-specific dermal and inhalation toxicity studies. In a 21-day dermal study in rabbits, loss of muscle coordination and increased incidence of tremors were seen at the highest dose tested (442 mg/kg/day) and in a 21-day dermal study in rats, a staggered gait and exaggerated limb flexion was noted at 93 mg/kg/day. In a 28-day inhalation study in rats, increased tremors and increased respiration were seen at the highest concentration tested (0.0196 mg/L/day).

Bifenthrin has been evaluated for potential developmental effects in the rat (following gavage and dietary administration) and in the rabbit (gavage administration). Maternal toxicity included neurological effects (tremors in rats and rabbits; head and forelimb twitching in rabbits). There were no developmental effects of biological significance in either species. A Developmental Neurotoxicity (DNT) study is available, which establishes a clear no observed adverse effect level (NOAEL) for the adult and offspring toxicity. The NOAEL in adults and offspring is similar in magnitude, and the lowest observed adverse effect level (LOAEL) are based on the clinical signs of neurotoxicity (dams had tremors and convulsions, offspring had increased grooming counts). Based on targeted testing in the DNT study for common endpoints for bifenthrin, there was no increase in sensitivity in rat pups. However, the Agency has reviewed existing pyrethroid data and concludes that the DNT is not a particularly sensitive study for comparing the sensitivity of young and adult animals to pyrethroids. The reproductive toxicity of bifenthrin was examined in a two-generation reproduction dietary study in the rat. Tremors were noted only in females of both generations, with one parental generation rat observed to have clonic convulsions, and no observed effects in the offspring. Overall, there is no indication of increased juvenile sensitivity specifically to bifenthrin.

Bifenthrin has low acute toxicity via the dermal (Category III) and inhalation routes (Category III-IV) of exposure and has high acute toxicity via the oral route (Category I). It is not a skin irritant (Category IV) but is a moderate eye irritant (Category III) and is a dermal sensitizer.

Bifenthrin is classified as “Group C—Possible Human Carcinogen,” based on an increased incidence of urinary bladder tumors in mice. However, EPA has determined that quantification of risk using a non-linear approach ( i.e., reference dose (RfD)) will adequately account for all chronic toxicity, including potential carcinogenicity, that could result from exposure to bifenthrin for the following reasons. First, the bladder tumors may not be uncommon in Swiss Webster mice and are not likely to be malignant. Second, these tumors were observed only in male mice at the highest dose. Third, no evidence of carcinogenicity was observed in bifenthrin carcinogenicity studies in rats. Finally, there is a low concern for mutagenicity based on the overall results of the available mutagenicity tests of bifenthrin.

Specific information on the studies received and the nature of the adverse effects caused by bifenthrin, as well as the NOAEL and the LOAEL from the toxicity studies, can be found at http://www.regulations.gov in the document titled “Bifenthrin. Human Health Risk Assessment for the Section 3 Registration of Bifenthrin on Clover (Grown For Seed); Coffee; Fuzzy Kiwifruit; Safflower; Tropical And Subtropical Palm Fruit (Subgroup 23C); and Crop Group Expansions/Conversions for Brassica, Head and Stem Vegetables (Group 5-16); Kohlrabi; Succulent Peas and Beans (Subgroups 6-22A, B, C, and D); Dried Beans and Peas (Subgroups 6-22E and F); Rapeseed (Subgroup 20A); Cottonseed (Subgroup 20C); Leaf Petiole Vegetables (Subgroup 22B); Celtuce; Florence Fennel; and Swiss Chard.” in docket ID number EPA-HQ-OPP-2023-0555.

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

A summary of the toxicological endpoints for bifenthrin used for human risk assessment can be found in the document titled “Bifenthrin. Human Health Risk Assessment for the Section 3 Registration of Bifenthrin on Clover (Grown For Seed); Coffee; Fuzzy Kiwifruit; Safflower; Tropical And Subtropical Palm Fruit (Subgroup 23C); and Crop Group Expansions/Conversions for Brassica, Head and Stem Vegetables (Group 5-16); Kohlrabi; Succulent Peas and Beans (Subgroups 6-22A, B, C, and D); Dried Beans and Peas (Subgroups 6-22E and F); Rapeseed (Subgroup 20A); Cottonseed (Subgroup 20C); Leaf Petiole Vegetables (Subgroup 22B); Celtuce; Florence Fennel; and Swiss Chard.” in docket ID number EPA-HQ-OPP-2023-0555.

In evaluating dietary exposure to bifenthrin, EPA considered exposure under the petitioned-for tolerances as well as all existing bifenthrin tolerances in 40 CFR 180.442. EPA assessed dietary exposures from bifenthrin in food as follows:

Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for bifenthrin. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture's (USDA) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA used USDA Pesticide Data Program (PDP) monitoring data, field trial data, and empirical processing factors, where available, and incorporated percent crop treated (PCT) estimates in the refined acute dietary exposure assessment.

A chronic dietary endpoint has not been selected for bifenthrin because repeated exposure does not result in a POD lower than that resulting from acute exposure; therefore, the acute dietary risk assessment is protective of chronic dietary risk. However, a refined chronic dietary exposure assessment was conducted to determine the background exposure of food plus drinking water to support the bifenthrin aggregate risk assessment. The assessment was refined using point estimates derived from PDP monitoring data, field trial data, PCT data, and empirical processing factors.

As discussed in Unit III.A., EPA has determined that the acute RfD will adequately account for all repeated exposure/chronic toxicity, including potential carcinogenicity, which could result from exposure to bifenthrin. A separate cancer exposure assessment was not conducted.

Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition A: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition B: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition C: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The acute dietary assessment used the following maximum PCT estimates: almonds: 40%, apples: 10%; artichokes: 65%; avocados: 2.5%; beans (snap, bush, pole, string): 60%; blueberries: 40%; broccoli: 25%; cabbage: 45%; caneberries: 50%; canola (oil rapeseed): 25%; cantaloupes: 55%; carrots: 10%; cauliflower: 45%; celery: 45%; chicory: 10%; citron: 10%; citrus hybrids: 10%; corn: 15%; cotton: 25%; cucumbers: 35%; dry beans/peas: 10%; eggplants: 45%; grapefruit: 2.5%; grapes, raisin: 2.5%; grapes, table: 2.5%; grapes, wine: 10%; honeydew: 90%; kumquats: 10%; lemons: 2.5%; lettuce: 20%; lima beans: 40%; limes: 10%; pomelos: 10%; okra: 45%; oranges: 10%; peanuts: 20%; pears: 2.5%; peas (fresh/green/sweet): 50%; pecans: 20%; peppers: 35%; pistachios: 55%; pomegranates: 50%; potatoes: 15%; pumpkins: 30%; soybeans: 15%; spinach: 15%; squash: 25%; strawberries: 70%; sunflowers: 2.5%; sweet corn: 50%; tangerines: 5%; tomatoes: 45%; walnuts: 40%; watermelons: 30%.

The following average PCT estimates for bifenthrin were used to refine the chronic dietary exposure assessment for the following crops: almonds: 35%, apples: 2.5%; artichokes: 35%; avocados: 1%; beans (snap, bush, pole, string): 40%; blueberries: 35%; broccoli: 15%; cabbage: 30%; caneberries: 30%; canola (oil rapeseed): 15%; cantaloupes: 45%; carrots: 2.5%; cauliflower: 15%; celery: 20%; chicory: 2.5%; citron: 2.5%; citrus hybrids: 2.5%; corn: 10%; cotton: 20%; cucumbers: 15%; dry beans/peas: 5%; eggplants: 35%; grapefruit: 1%; grapes, raisin: 1%; grapes, table: 1%; grapes, wine: 2.5%; honeydew: 80%; kumquats: 2.5%; lemons: 2.5%; lettuce: 10%; lima beans: 15%; limes: 2.5%; pomelos: 2.5%; okra: 35%; oranges: 2.5%; peanuts: 10%; pears: 1%; peas (fresh/green/sweet): 25%; pecans: 10%; peppers: 20%; pistachios: 50%; pomegranates: 30%; potatoes: 10%; pumpkins: 15%; soybeans: 10%; spinach: 1%; squash: 20%; strawberries: 50%; sunflowers: 1%; sweet corn: 40%; tangerines: 2.5%; tomatoes: 35%; walnuts: 30%; watermelons: 15%.

A default of 100% CT was used for all livestock and game commodities, freshwater finfish, and all other registered uses where no maximum/average PCT estimates were available. All other commodities included for depicting food handling establishment (FHE) uses were refined with the upper bound estimate of 4.65% for non-fumigant treatments made in FHEs.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the California Department of Pesticide Regulation (CalDPR) Pesticide Use Reporting (PUR) for the chemical/crop combination for the most recent 10 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 10 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition A, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions B and C, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have reliable information available on the regional consumption of food to which bifenthrin may be applied in a particular area.

The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for bifenthrin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of bifenthrin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks.

The estimated drinking water concentrations (EDWCs) were incorporated directly into the dietary assessment; water residues were incorporated in the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) into the food categories “water, direct, all sources” and “water, indirect, all sources.” Ground water EDWCs were calculated with Pesticide in Water Calculator (PWC) 2 for citrus as the highest exposure scenarios using chemical input parameters from previous drinking water assessments. Citrus continues to generate no breakthrough for EDWCs despite the increased annual application rates in the proposed labels. Therefore, the EDWC used in the dietary exposure assessment (acute and chronic) is the bifenthrin limit of solubility of 0.000014 ppm, i.e., the maximum possible residues that could occur in drinking water based on the chemical properties of the compound.

The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Bifenthrin is currently registered for the following uses that could result in residential exposures: Lawns/turf, indoor environments, gardens/trees, pets (dog shampoo), termiticide and indoor/outdoor surface treatment for various residential and commercial premises.

Residential exposures are not expected from the proposed new uses; however, there are existing residential uses that have been previously assessed. Non-occupational exposures from spray drift (dermal [adults and children] and incidental oral [children only]) are expected to be short-term (1 to 30 days) only. Occupational (dermal and inhalation) handler and post-application exposure is expected to be both short- and intermediate-term (1 to 6 months) based on information provided on the proposed labels. These uses were assessed previously, remain current, and are not of concern ( i.e., margins of exposure (MOEs) > the level of concern (LOC)).

A quantitative non-occupational spray drift assessment was not conducted for bifenthrin because the proposed use pattern is likely to result in spray drift exposures ( i.e., aerial, groundboom, and airblast) that are equal to or less than those assessed in the previous bifenthrin exposure and risk assessment conducted in support of registration review. The previous spray drift assessment concluded that there were no risk estimates of concern at the edge of the field for bifenthrin based on the use patterns assessed and are protective of the currently proposed use patterns.

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

The Agency is required to consider the cumulative risks of chemicals sharing a common mechanism of toxicity. The Agency has determined that the pyrethroids and pyrethrins share a common mechanism of toxicity ( https://www.regulations.gov; EPA-HQ-OPP-2008-0489-0006). As explained in that document, the members of this group share the ability to interact with voltage-gated sodium channels ultimately leading to neurotoxicity. In 2011, after establishing a common mechanism grouping for the pyrethroids and pyrethrins, the Agency conducted a cumulative risk assessment (CRA) which is available at https://www.regulations.gov; EPA-HQ-OPP-2011-0746. In that document, the Agency concluded that cumulative exposures to pyrethroids (based on pesticidal uses registered at the time the assessment was conducted) did not present risks of concern. For information regarding EPA's efforts to evaluate the risk of exposure to this class of chemicals, refer to https://www.epa.gov/ingredients-used-pesticide-products/pyrethrins-and-pyrethroids.

Since the 2011 CRA, for each new pyrethroid and pyrethrin use, the Agency has conducted a screen to evaluate any potential impacts on the CRA prior to registration of that use. A new turf use for the pyrethroid, tau-fluvalinate, was assessed after completion of the cumulative, which did impact the worst-case non-dietary risk estimates identified in the 2011 CRA for the turf scenario (H. DeLeon, D450820, 16-DEC-2019). However, EPA has determined that the overall finding ( i.e., that the pyrethroid cumulative risk is below the Agency's level of concern) would not change upon registration of this new use.

The new uses of bifenthrin proposed by IR-4 will not significantly impact the cumulative assessment because dietary exposures make a minor contribution to total pyrethroid exposure relative to residential exposures in the 2011 cumulative risk assessment. Therefore, the results of the 2011 CRA are still valid and there are no cumulative risks of concern for the pyrethroids/pyrethrins.

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

Bifenthrin has been evaluated for potential developmental effects in the rat (following gavage and dietary administration) and in the rabbit (gavage administration). Maternal toxicity included neurological effects (tremors in rats and rabbits; head and forelimb twitching in rabbits). There were no developmental effects of biological significance in either species. A DNT study was available, which establishes a clear NOAEL for the adult and offspring toxicity. The NOAEL in adults and offspring is similar in magnitude, and the LOAELs are based on the clinical signs of neurotoxicity (dams had tremors and convulsions, offspring had increased grooming counts). Based on targeted testing in the DNT study for common endpoints for bifenthrin, there was no increase in sensitivity in rat pups. However, the Agency has reviewed existing pyrethroid data and concludes that the DNT is not a particularly sensitive study for comparing the sensitivity of young and adult animals to pyrethroids. Some literature studies indicated susceptibility for other pyrethroids, but in context, these studies were conducted at relatively high doses, which may not reflect environmental exposures. The reproductive toxicity of bifenthrin was examined in a 2-generation reproduction dietary study in the rat. Tremors were noted only in females of both generations, with one parental generation rat observed to have clonic convulsions, and no observed effects in the offspring. Overall, there is no indication of increased juvenile sensitivity specifically to bifenthrin.

EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. No new information has been available since the last assessment; therefore the Agency concludes that the default 10X FQPA safety factor can be reduced to 1X for all populations for the pyrethroid pesticides. More information regarding the FQPA SF can be found in the 2021 rule (86 FR 68150) (FRL-8945-01-OCSPP).

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to bifenthrin will occupy 12% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure. The acute aggregate risk assessment combines exposures to bifenthrin in food and drinking water only and is equivalent to the acute dietary assessment. There are no acute aggregate risks estimates of concern.

The chronic dietary (food and drinking water) exposure assessment for bifenthrin was conducted solely for the purpose of obtaining an average dietary exposure estimate for use in the short-term aggregate assessment. The population subgroup with the highest chronic dietary exposure estimate is children 1 to 2 years old (0.000123 mg/kg/day). A chronic aggregate risk assessment was not conducted since single dose and repeat dosing bifenthrin studies show that repeat exposures do not result in lower PODs ( i.e., there is no evidence of increasing toxicity with an increased duration of exposure). Therefore, only acute and short-term aggregate risk assessments are conducted for bifenthrin, and these are protective of scenarios in which exposure occurs for longer durations.

Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Bifenthrin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to bifenthrin.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 520 for adults (treated gardens). The short-term aggregate assessment for children 1 to less than 2 years old resulted in an MOE of 170 (high contact lawn activities). The short-term aggregate assessment for children 6 to less than 11 years old and children 11 to 16 years old resulted in MOEs of 1,600 (treated gardens) and 7,500 (golfing), respectively. Because EPA's level of concern for bifenthrin is an MOE of 100 or lower, these MOEs are not of concern.

Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). While there is potential intermediate-term residential exposure, because the single dose and repeat dosing bifenthrin studies show that repeat exposures do not result in lower points of departure, the residential assessments are conducted as a series of acute exposures, and the same endpoint is used regardless of duration. Therefore, the short-term aggregate assessment is considered protective of any intermediate-term exposures.

EPA has concluded that the acute RfD will adequately account for all repeated exposures, including carcinogenicity, which could result from exposure to bifenthrin.

Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to bifenthrin residues.

Adequate enforcement methodology (gas chromatography with an electron capture detector (GC/ECD) analyses for determining bifenthrin residues in both plant and livestock commodities) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

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

EPA is establishing tolerance levels that are not harmonized with Codex MRLs for the following commodities/subgroups: kohlrabi; vegetable, brassica, head and stem, group 5-16, except cabbage; and vegetable, legume, pea, edible podded, subgroup 6-22B.

For kohlrabi, vegetable, brassica, head and stem, group 5-16, except cabbage, and vegetable, legume, pea, edible podded, subgroup 6-22B tolerances, harmonization to the corresponding Codex MRLs is not possible as the Codex MRLs are lower than the established tolerances for these groups. Reducing the U.S. tolerance would put U.S. growers at risk of having violative residues despite legal use of the pesticide according to the label.

EPA is establishing tolerances for cottonseed subgroup 20C; milk; milk fat; ruminant (cattle, goat, and sheep) and horse fat; ruminant and horse meat byproducts; rapeseed subgroup 20A; vegetable, legume, pea, succulent shelled, subgroup 6-22D; vegetable, legume, pulse, bean, dried shelled, except soybean, subgroup 6-22E; and vegetable, legume, pulse, pea, dried shelled, subgroup 6-22F that are harmonized with the corresponding Codex MRLs.

Several revisions to the petitioned-for tolerances are explained in this section. Tolerance determinations were based on use of the Organization for Economic Cooperation and Development (OECD) Maximum Residue Limit (MRL) calculation procedures for plant commodities or anticipated residue calculations for livestock commodities. Additionally, international harmonization and data translations were considered where appropriate.

Following the OECD Rounding Classes, EPA is establishing a tolerance of 0.8 ppm for fruit, citrus, group 10-10, oil rather than the proposed tolerance of 0.75 ppm. Also, EPA is establishing the tolerance for tropical and subtropical, palm fruit, edible peel, subgroup 23C based on the date field trials, which differs from the proposed tolerance. Because the decline data for date showed increasing residues past the label-indicated preharvest interval (PHI), the highest residue, found at the 20-day PHI, was selected for use in tolerance determination for that trial; this resulted in a tolerance of 4 ppm, rather than the proposed tolerance of 3 ppm.

Several commodity definitions have also been updated to align with the U.S. EPA Health Effects Division (HED) Preferred Tolerance Vocabulary, including fennel, florence, fresh leaves and stalk; fruit, citrus, group 10-10, oil; safflower, seed; vegetable, brassica, head and stem, group 5-16, except cabbage; vegetable, legume, bean, edible podded, subgroup 6-22A; vegetable, legume, bean, succulent shelled, subgroup 6-22C; vegetable, legume, pea, edible podded, subgroup 6-22B; vegetable, legume, pea, succulent shelled, subgroup 6-22D; vegetable, legume, pulse, bean, dried shelled, except soybean, subgroup 6-22E; and vegetable, legume, pulse, pea, dried shelled, subgroup 6-22F.

EPA is establishing the tolerance at different levels than requested for: kohlrabi; vegetable, brassica, head and stem, group 5-16, except cabbage; vegetable, legume, bean, edible podded, subgroup 6-22A; and vegetable, legume, pea, edible podded, subgroup 6-22B, to harmonize with the corresponding Canadian MRLs. The proposed tolerance for kohlrabi is 0.6 ppm; EPA is establishing the tolerance at 0.9 ppm. For crop group 5-16, the proposed tolerance is 0.6 ppm; EPA is establishing the tolerance at 0.9 ppm. For both subgroup 6-22A and subgroup 6-22B, the proposed tolerance is 0.6 ppm; EPA is establishing the tolerance for both subgroups at 0.8 ppm.

Finally, EPA is increasing the tolerances for milk, milk fat, ruminant and horse fat, and ruminant and horse meat byproducts due to the increased dietary burden resulting from the new uses. Although adjustments to these tolerances were not requested in the petition submitted, EPA has stated that before establishing tolerances in raw agricultural commodities, EPA considers the possibility of residues in livestock commodities, e.g., meat, and meat byproducts, from animals eating those treated commodities (40 CFR 180.6(a)). Where the data show that there are residues in livestock feed commodities, EPA will establish the tolerances on the raw agricultural feed item only where the tolerances can be established on the livestock items at the same time (40 CFR 180.6(b)). The commodity definitions for milk and milk fat have also been separated and updated to align with the HED Preferred Tolerance vocabulary. More information on these tolerance determinations can be found in the document titled “Bifenthrin. Human Health Risk Assessment for the Section 3 Registration of Bifenthrin on Clover (Grown For Seed); Coffee; Fuzzy Kiwifruit; Safflower; Tropical And Subtropical Palm Fruit (Subgroup 23C); and Crop Group Expansions/Conversions for Brassica, Head and Stem Vegetables (Group 5-16); Kohlrabi; Succulent Peas and Beans (Subgroups 6-22A, B, C, and D); Dried Beans and Peas (Subgroups 6-22E and F); Rapeseed (Subgroup 20A); Cottonseed (Subgroup 20C); Leaf Petiole Vegetables (Subgroup 22B); Celtuce; Florence Fennel; and Swiss Chard.” in docket ID number EPA-HQ-OPP-2023-0555.

Tolerances are established for residues of bifenthrin, in or on the following commodities: cattle, fat at 3 ppm; cattle, meat byproducts at 0.2 ppm; celtuce at 3 ppm; coffee, green bean at 0.05 ppm; cottonseed subgroup 20C at 0.5 ppm; fennel, florence, fresh leaves and stalk at 3 ppm; fruit, citrus, group 10-10, oil at 0.8 ppm; goat, fat at 3 ppm; goat, meat byproducts at 0.2 ppm; horse, fat at 3 ppm; horse, meat byproducts at 0.2 ppm; kiwifruit, fuzzy at 1.5 ppm; kohlrabi at 0.9 ppm; leaf petiole vegetable subgroup 22B at 3 ppm; milk at 0.2 ppm; milk, fat at 3 ppm; rapeseed subgroup 20A at 0.05 ppm; safflower, seed at 0.2 ppm; sheep, fat at 3 ppm; sheep, meat byproducts at 0.2 ppm; Swiss chard at 3 ppm; tropical and subtropical, palm fruit, edible peel, subgroup 23C at 4 ppm; vegetable, brassica, head and stem, group 5-16, except cabbage at 0.9 ppm; vegetable, legume, bean, edible podded, subgroup 6-22A at 0.8 ppm; vegetable, legume, bean, succulent shelled, subgroup 6-22C at 0.05 ppm; vegetable, legume, pea, edible podded, subgroup 6-22B at 0.8 ppm; vegetable, legume, pea, succulent shelled, subgroup 6-22D at 0.05 ppm; vegetable, legume, pulse, bean, dried shelled, except soybean, subgroup 6-22E at 0.3 ppm; and vegetable, legume, pulse, pea, dried shelled, subgroup 6-22F at 0.3 ppm. The following regional tolerances are established for clover, forage at 7 ppm and clover, hay at 30 ppm.

The following tolerances are removed as unnecessary due to the establishment of the above tolerances: brassica, head and stem, subgroup 5A, except cabbage at 0.6 ppm; cotton, undelinted seed at 0.5 ppm; leafy petioles subgroup 4B at 3.0 ppm; milk, fat (reflecting 0.1 ppm in whole milk) at 1.0 ppm; pea and bean, dried shelled, except soybean, subgroup 6C at 0.15 ppm; pea and bean, succulent shelled, subgroup 6B at 0.05 ppm; rapeseed, seed at 0.05 ppm; and vegetable, legume, edible podded, subgroup 6A at 0.6 ppm. EPA is also removing, as a housekeeping measure, the tolerance for Groundcherry, since that expired on June 1, 2022, and is no longer effective.

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

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

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

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

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

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because tolerance actions like this one are exempt from review under Executive Order 12866. However, EPA's 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 summarized in Unit III.D.

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify the docket ID number EPA-HQ-OPP-2021-0435 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 August 31, 2026.

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

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

In the Federal Register of August 24, 2021 (86 FR 47275, FRL-8792-02-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 1F8912) by Bayer CropScience, 800 N. Lindbergh Blvd., St. Louis, MO 63167. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the herbicide diflufenican, N -(2,4-difluorophenyl)-2-[3-(trifluoromethyl)phenoxy]-3-pyridinecarboxamide, in or on corn, forage at 0.01 parts per million (ppm); corn, grain at 0.01 ppm; corn, stover at 0.01 ppm; soybean, forage at 0.015 ppm; soybean, hay at 0.02 ppm; soybean, seed at 0.01 ppm. That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, https://www.regulations.gov. Three comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

The tolerances EPA is establishing vary from what the petitioners have requested, these changes are explained in greater detail in Unit IV.D.

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 diflufenican including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with diflufenican is as 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.

The hazard database for diflufenican indicates that the major toxicological effect in rodents is decreased body weight regardless of duration of exposure, and no clear target organ was identified. No dermal or inhalation toxicity data are available and therefore every effect specified is through the oral route. In the subchronic and chronic oral studies, decreased body weights were seen in both rats and mice, and adverse decreases in body weight occurred at doses lower than those causing additional toxicological effects. The rat appeared to be the most sensitive species tested, followed by the mouse. There were no adverse effects seen in the subchronic or chronic dog studies up to the limit dose of 1000 mg/kg/day. There did not appear to be a difference in toxicity by sex in any species.

No evidence of increased quantitative or qualitative lifestage susceptibility was seen in rat or rabbit developmental toxicity studies or in the rat reproduction studies. There were no adverse maternal or developmental effects in the developmental rat or rabbit studies up to and exceeding the limit dose (≥1000 mg/kg/day). In the rat extended one-generation and two-generation reproduction studies, adverse decreases in body weights in the parental animals and offspring were the most sensitive effect. Decreased body weights in the offspring were observed in the presence of decreased parental body weights, and there were no reproductive effects seen. There was low acute toxicity through oral, dermal, and inhalation routes. Diflufenican is not an ocular or dermal irritant, nor is it a dermal sensitizer.

Diflufenican is classified as “Not Likely to be Carcinogenic to Humans.” No treatment-related increase in the incidence of tumors was observed in carcinogenicity studies in rats or mice at doses that were considered to be adequate. Additionally, there is no evidence of mutagenicity in vivo or in vitro. One of the plant metabolites of diflufenican (2,4-difluoroaniline malonate, hereafter referred to as BCS-BT38895) was found to be more toxic than the parent compound, with a different toxicological profile. A cursory analysis of the metabolite based on highly conservative assumptions is assessed separately in Appendix C (pages 96-99) of the Human Health Risk Assessment, in docket ID number EPA-HQ-OPP-2021-0435.

Specific information on the studies received and the nature of the adverse effects caused by diflufenican as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at https://www.regulations.gov in document “Diflufenican. Human Health Risk Assessment for Diflufenican. New Active Ingredient” at pages 16-25 in docket ID number EPA-HQ-OPP-2021-0435.

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

For more detailed information on the toxicological endpoints for diflufenican used for human risk assessment can be found in the “Diflufenican. Human Health Risk Assessment for Diflufenican. New Active Ingredient” at pages 22-23 in docket ID number EPA-HQ-OPP-2021-0435.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to diflufenican, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from diflufenican in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for diflufenican; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the 2005-2010 food consumption data from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA conducted an unrefined chronic dietary exposure risk assessment using 100 percent crop treated (PCT) and combined residues of diflufenican and DFF-amide (<0.02 ppm) in all samples of corn, field grain and soybean, except for soybean seed (average of diflufenican metabolite, BCS-BT38895, 0.011 ppm). The processing factor used for soybean flour was 1.3x, and the default processing factor was used for corn bran. Based on residues being above the limit of quantitation (<LOQ) at a 5X treatment rate, processing factors for all other commodities were set to 1.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that diflufenican does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk from exposure to diflufenican is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for diflufenican. Tolerance-level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for diflufenican in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of diflufenican. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/models-pesticide-risk-assessment.

EPA calculated the estimated drinking water concentrations (EDWCs) of diflufenican Using the Pesticide Water Calculator (PWC) ver. 2.001. The modeling simulations for maximum label rates indicate that concentrations in ground water are expected to be higher than those in surface water. Therefore, the chronic value of 30.1 ppb was used to assess the dietary contribution from drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., products registered for direct application to lawns and for garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Diflufenican is not proposed for any specific use patterns that would result in direct applications in residential areas.

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

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

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

2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative lifestage susceptibility was seen in rat or rabbit developmental toxicity studies or in the rat reproduction studies.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for diflufenican is complete.

ii. There is no indication that diflufenican is a neurotoxic chemical, and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that diflufenican results in increased quantitative or qualitative lifestage susceptibility in rat and rabbit developmental studies or in the rat reproduction toxicity studies. There were no maternal or developmental adverse effects observed in any of the developmental studies. In the reproduction toxicity studies, no reproductive effects were observed; however, decreased body weights were observed in the offspring and maternal animals at comparable dose levels.

iv. There are no residual uncertainties identified in the exposure databases.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short, intermediate, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate points of departure (POD) to ensure that an adequate margin of exposure (MOE) exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, diflufenican is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to diflufenican from food and water will utilize <1% of the cPAD for the general U.S. population, including children 1-2 years old (the most sensitive). Since there are no residential uses for diflufenican, aggregate exposure and risk are equivalent to chronic dietary (food and drinking water) exposure and risk, which are not of concern.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no short-term adverse effect was identified, diflufenican is not expected to pose a short-term risk.

4. Intermediate-term risk: Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, diflufenican is not expected to pose an intermediate-term risk.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, the diflufenican parent compound is not expected to pose a cancer risk to humans and is classified as “Not Likely to be Carcinogenic to Humans.”

6. Metabolite BCS-BT38895. There is no expectation of exposure to BCS-BT38895 from residential or occupational exposure scenarios. The only potential route of exposure to BCS-BT38895 is via the dietary route. The available data do not demonstrate a concern for effects attributable to a single exposure at this time; therefore, an acute non-cancer dietary assessment is not necessary for BCS-BT38895. Even with application of a 10X uncertainty factor to extrapolate from subchronic to chronic exposure duration, estimated chronic exposures to BCS-BT38895 are orders of magnitude below any potential chronic non-cancer reference dose for BCS-BT38895. Any chronic exposures to BCS-BT38895 residues are expected to be significantly lower than diflufenican-derived BCS-BT38895 residues based on diflufenican' s limited use patterns and lower tolerance-level residues. Therefore, a quantitative chronic non-cancer dietary risk assessment for BCS-BT38895 residues is not necessary to conclude with reasonable certainty that chronic exposures from BCS-BT38895 residues do not pose a non-cancer dietary risk. The highly refined estimated chronic exposure of the most highly exposed adult subpopulation (adults 20-48, 50+) to BCS-BT38895 (0.000005 mg/kg/day) results in an upper bound cancer risk estimate of 3 × 10 − 8 , which is below the Agency's level of concern. Based again on diflufenican' s limited use patterns and lower tolerance-level residues, the Agency concludes that the cancer risk estimates for BCS-BT38895 residues indicate that there should not be any cancer risk from diflufenican-derived BCS-BT38895 residues.

7. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to diflufenican residues.

Adequate enforcement methodology high-performance liquid chromatography with tandem mass spectrometry (HPLC-MS/MS), Method No. DC-003-P18-02 is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for diflufenican. However, the proposed tolerances are harmonized with the currently established MRLs of diflufenican in the European Union.

In the Federal Register of August 24, 2021 (86 FR 47275, FRL-8792-02-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 1F8912) by Bayer CropScience, 800 N. Lindbergh Blvd., St. Louis, MO 63167. The Agency received three comments. Two of the comments (EPA-HQ-OPP-2021-0435-0004 and EPA-HQ-OPP-2021-0435-0005) were by the same private citizen raising concerns over the use of pesticides on corn and soybeans. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these diflufenican tolerances are safe. The same commenter further claims diflufenican contains fluoride and states fluoride to be toxic to insects, but provided no information supporting a conclusion that diflufenican is not safe, nor did the commenter provide any basis for concluding that tolerances would have a disproportionate effect on any population. A comprehensive database is available for diflufenican to support risk assessments that are protective of human health and the environment (including insects). The third comment (EPA-HQ-OPP-2021-0435-0006) was also from a private citizen which did not pertain to diflufenican. The comment addressed the Federal Aviation Administration proposed rule (FAA-2021-0793) which is not germane to this action.

FFDCA section 408(d)(4)(A)(i) permits the Agency to finalize a tolerance that varies from that sought by the petition. The petitioner initially requested tolerance levels of 0.015 ppm for soybean, forage and 0.02 ppm for soybean, hay. However, the Agency deems it appropriate to use the more conservative ( i.e., results with the highest residue value) approach and as a result produced a recommended tolerance levels of 0.01 ppm for soybean, forage and 0.015 ppm for soybean, hay when entered into the Organization for Economic Cooperation and Development (OECD) calculator.

Therefore, tolerances are established for residues of diflufenican, N -(2,4-difluorophenyl)-2-[3-(trifluoromethyl)phenoxy]-3-pyridinecarboxamide, in or on corn, field, forage at 0.01 ppm; corn, field, grain at 0.01 ppm; corn, field, stover at 0.01 ppm; soybean, forage at 0.01 ppm; soybean, hay at 0.015 ppm; and soybean, seed at 0.01 ppm.

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

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

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

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

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

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because tolerance actions like this one are exempt from review under Executive Order 12866. However, EPA's 2021 Policy on Children's Health applies to this action.

This rule finalizes tolerance actions under the FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” (FFDCA 408(b)(2)(C)). The Agency's consideration is documented in the pesticide-specific registration review documents, located in each chemical docket at https://www.regulations.gov.

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. If you fail to file an objection to the final rule within the time period specified in the final rule, you will have waived the right to raise any issues resolved in the final rule. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify the docket ID number EPA-HQ-OPP-2022-0980 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 August 31, 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/HomePage?ReadForm.

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 July 5, 2023 (88 FR 42935) (FRL-10579-05-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 2F9005) by Bayer CropScience, 800 N Lindbergh Blvd., St. Louis, MO 63167. The petition requested that EPA establish tolerances in 40 CFR part 180 for residues of the fungicide fluoxapiprolin in or on tuberous and corm vegetables subgroup 1C at 0.01 parts per million (ppm); onion, bulb subgroup 3-07A at 0.03 ppm; onion, green subgroup 3-07B at 2.0 ppm; lettuce, head at 0.8 ppm; leafy vegetable group 4-16, except head lettuce at 5.0 ppm; brassica head and stem vegetable group 5-16 at 0.8 ppm; fruiting vegetable group 8-10 at 0.06 ppm; cucurbit vegetable group 9 at 0.06 ppm; small fruit vine climbing subgroup 13-07F, except fuzzy kiwifruit at 0.2 ppm; grape, raisin at 0.4 ppm; leafy petiole vegetable subgroup 22B at 1.5 ppm as primary crops; and in or on low growing berry subgroup 13-07G at 0.01 ppm as rotational crops. That document referenced a summary of the petition that was prepared by the petitioner, which is available in the docket at https://www.regulations.gov, docket ID number EPA-HQ-OPP-2022-0980. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is establishing tolerances for onion, green subgroup 3-07B; vegetable, cucurbit, group 9; vegetable, leafy, group 4-16; and grape, raisin that vary from what the petition requested based on the data. In addition, EPA is not establishing a tolerance for low growing berry subgroup 13-07G for the indirect rotational crop usage. The reasons for these changes are explained in Unit IV.C.

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

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

Fluoxapiprolin is a piperidinyl-thiazole-isoxazoline fungicide used to control oomycete diseases in a variety of vegetable and vine crops. Fluoxapiprolin has an oxysterol binding protein inhibitor pesticidal mode of action, but a mammalian mode of action has not been determined. Across the fluoxapiprolin database, there were no adverse effects seen in guideline studies. No developmental or maternal toxicity was observed up to the limit dose in developmental toxicity studies in rats and rabbits. In a rat two-generation reproduction toxicity study, no toxicity was observed up to the highest doses tested (262/302 mg/kg/day (M/F)), which were selected based on toxicokinetic data. In the developmental and reproduction toxicity studies, there was no indication that fluoxapiprolin had an adverse effect on fetal or offspring development, fertility, or reproductive performance. In the carcinogenicity studies, fluoxapiprolin was not found to be carcinogenic in rats or mice and was not mutagenic. Based on the lack of toxicity in the available fluoxapiprolin toxicity database, no toxicological points of departure (POD) have been established to evaluate incidental oral, dermal, or inhalation exposure scenarios for fluoxapiprolin human health risk assessment.

In the toxicological database for fluoxapiprolin, a 28-day oral toxicity study in rats examining an aerobic soil degradate of fluoxapiprolin, BCS-BP32808, is available. Decreased total motor activity and piloerection in males and females was observed at 12 mg/kg/day (no observed adverse effect level (NOAEL) was 5 mg/kg/day), indicating that the degradate BCS-BP32808 is more toxic than the parent. Additionally, BCS-BP32808 was positive for mutagenicity in a bacterial reverse mutation assay but did not induce gene mutations in an in vitro mammalian cell gene mutation test. BCS-BP32808 showed a positive response in the in vitro chromosomal aberration assay. However, when BCS-BP32808 was tested in vivo, it did not induce micronuclei in the mouse micronucleus test up to non-cytotoxic doses. Lastly, BCS-BP32808 was negative for the induction of mutations in vivo in the liver and glandular stomach of transgenic mice. Therefore, there is low concern for mutagenicity for BCS-BP32808 in vivo.

The toxicological database for fluoxapiprolin is considered complete and adequate for hazard identification, characterization, and risk assessment. Fluoxapiprolin was categorized as having low acute toxicity via the oral (Toxicity Category III), dermal (Toxicity Category III), and inhalation routes (Toxicity Category IV) of exposure. It produces minimal but reversible eye irritation (Toxicity Category IV). It is not a dermal irritant but is a dermal sensitizer.

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

Based on the lack of toxicity in the available fluoxapiprolin toxicity database, no toxicological PODs have been established for fluoxapiprolin. More detailed information on the toxicological endpoints for the degradate of fluoxapiprolin, BCS-BP32808, used for human health risk assessment can be found in the document “Fluoxapiprolin: Human Health Risk Assessment to Support the Registration of a New Active Ingredient for Proposed Uses on Brassica Head and Stem Vegetables; Bulb Vegetables; Cucurbit Vegetables; Fruiting Vegetables; Leafy Vegetables; Leaf Petiole Vegetables; Small Fruit Vine Climbing, Except Fuzzy Kiwifruit; and Tuberous and Corm Vegetables” (hereafter, the Fluoxapiprolin Human Health Risk Assessment) in docket ID number EPA-HQ-OPP-2022-0980 at https://www.regulations.gov.

In evaluating dietary exposure to fluoxapiprolin, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from fluoxapiprolin as follows:

i. Acute and chronic exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No acute or chronic effects were identified in the toxicological studies for fluoxapiprolin; however, such effects were identified for the degradate of fluoxapiprolin, BCS-BP32808. In estimating the acute and chronic dietary exposure, EPA used the Dietary Exposure Evaluation Model software with the Food and Commodity Intake Database (v 4.02). This software uses the food consumption information from the United States Department of Agriculture's 2005-2010 National Health and Nutrition Examination Survey, What We Eat in America. As to residue levels in food, EPA conducted unrefined acute and chronic dietary exposure assessments based on the recommended tolerance for fluoxapiprolin for onion, green subgroup 3-07B, which are high enough to cover residues for the degradate, BCS-BP32808. BCS-BP32808 was only identified and quantifiable in green onion samples, and the tolerance level for onion, green subgroup 3-07B is higher than the BCS-BP32808 residue levels of the individual green onion samples. Both the acute and chronic assessments assume 100 percent crop treated (PCT), default processing factors, and incorporate conservatively modeled estimated drinking water concentrations (EDWC) of BCS-BP32808.

ii. Cancer. Based on its review of available data, EPA has concluded that fluoxapiprolin is not likely to be carcinogenic. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iii. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the acute or chronic dietary exposure assessment for BCS-BP32808. Tolerance level residues and/or 100 PCT were assumed.

The Agency addressed exposures from the three major routes (oral, dermal, and inhalation) and determined whether the individual exposures from these routes can be combined. If two or more exposures have endpoints based on the same target organ or system, they can be combined. Toxicity was seen only for the degradate BCS-BP32808. Therefore, BCS-BP32808 was used for establishing residues of concern (ROC) in primary crops, rotational crops, and drinking water for risk assessment purposes. For livestock commodities, no residues are included in the ROCs for risk assessment purposes. No endpoints were selected for fluoxapiprolin, thus there is no need to consider combining routes of exposures to that compound. As identified earlier, the BCS-BP32808 degradate has been identified for toxicological effects. No endpoints were selected for dermal and inhalation exposures for BCS-BP32808, thus these routes cannot be combined.

For fluoxapiprolin, the nature of the residue is adequately understood based on plant and livestock metabolism studies. In the metabolic profile in plants, the parent compound represented the most prominent residue in above-ground parts of crops (grapes and lettuce), whereas metabolites that have been formed in soil were mainly detected in potato tuber. The predominant residues observed in primary crops were also observed in rats. The metabolic pathway of fluoxapiprolin in rats, poultry (laying hens), and ruminants (goats) was similar.

Field trial studies are of an adequate number and geographic representation. The magnitude of the residue data show that when following the proposed use patterns, parent fluoxapiprolin is the most widely observed compound and comprises most of the residues. Due to its hazard, BCS-BP32808, has been identified as the ROC for risk assessment in primary crop plants. While it was not observed in the lettuce, grape, or potato metabolism studies, it was observed at quantified levels in the green onion residue trials. The unrefined acute and chronic dietary exposure analyses are based on the recommended tolerance for fluoxapiprolin for onion, green subgroup 3-07B, which are high enough to cover residues for BCS-BP32808. Additionally, both assessments assume 100 PCT and incorporate conservatively modeled EDWCs of BCS-BP32808.

The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for fluoxapiprolin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of fluoxapiprolin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/models-pesticide-risk-assessment.

Determination of the ROCs for human health in drinking water included consideration of fluoxapiprolin and the degradate BCS-BP32808. The drinking water ROC is limited only to the granddaughter degradate BCS-BP32808 and does not include the parent fluoxapiprolin. Fluoxapiprolin is classified as hardly mobile, while the degradate BCS-BP32808 is classified as highly mobile. For the drinking water ROC for BCS-BP32808, the aerobic soil metabolism half-lives range from 3.8 to 28.7 days (non-persistent to slightly persistent). Aerobic and anaerobic aquatic metabolism half-lives range from 14 to 56.2 days and 85.5 to 108 days in the total system, respectively.

Based on the Pesticides in Water Calculator (PWC; version 2.001), the EDWCs of degradate BCS-BP32808 for acute dietary exposures are estimated to be 1.0 µg/L for surface water and 1.2 µg/L for groundwater. EDWCs for chronic dietary exposures are estimated to be 0.2 µg/L for surface water and 1.0 ug/L for groundwater. The modeled maximum EDWCs were incorporated into the dietary exposure model.

The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., from lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Fluoxapiprolin is not registered for any use patterns that are expected to result in residential exposure.

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

In 2016, EPA's Office of Pesticide Programs released a guidance document, “Pesticide Cumulative Risk Assessment: Framework for Screening Analysis”. The Agency has utilized this framework for fluoxapiprolin and determined that although fluoxapiprolin shares some chemical and/or toxicological characteristics ( e.g., chemical structure or apical endpoint) with other pesticides, the toxicological database does not support a testable hypothesis for a common mechanism of action. No further data are required to determine that no common mechanism of toxicity exists for fluoxapiprolin and other pesticides and no further cumulative evaluation is necessary for fluoxapiprolin. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/pesticide-cumulative-risk-assessment-framework.

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

The available toxicity database for fluoxapiprolin does not show any evidence of neurotoxicity, including in the acute neurotoxicity study. A developmental neurotoxicity study was not required.

Evidence of potential neurotoxicity was observed in the 28-day oral toxicity study conducted on the degradate of fluoxapiprolin, BCS-BP32808. However, there is a low degree of concern for the potential neurotoxic effects since (1) clear NOAELs were identified for the neurotoxic effects; and (2) the endpoints chosen for risk assessment are protective of any potential neurotoxicity.

For fluoxapiprolin, EPA has not identified any toxicological endpoints of concern associated with any threshold effects and has conducted a qualitative assessment. As part of that assessment, the Agency did not use SFs for assessing risk, and no additional SF is needed for assessing risk to infants and children. EPA has also evaluated the available data for fluoxapiprolin and concluded that there are no residual uncertainties concerning the potential risks to infants and children that would impact its conclusions about threshold effects.

For BCS-BP32808, EPA is retaining the 10X FQPA SF for protection of infants and children to address hazard uncertainties, including incompleteness of the database, prenatal and postnatal toxicity, and subchronic to chronic uncertainty. The Agency concludes that this safety factor will be protective of potential toxicity to infants and children given the conservative exposure estimates and overall low expected exposure.

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

No adverse effects were observed in the submitted toxicological studies for fluoxapiprolin regardless of the route of exposure. Therefore, a quantitative aggregate exposure assessment was not conducted for fluoxapiprolin.

For the degradate of fluoxapiprolin, BCS-BP32808, the Agency characterized the risk of BCS-BP32808 based upon the results observed in the 28-day oral toxicity study and conservative exposure assumptions as a protective screening measure. Residential exposures to BCS-BP32808 are not anticipated based on the proposed uses, and no dermal, incidental oral, and inhalation endpoints or PODs have been established for BCS-BP32808. Therefore, the quantitative dietary assessment of BCS-BP32808 is considered as a screening-level aggregate exposure assessment for BCS-BP32808.

Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fluoxapiprolin (BCS-BP32808) will occupy 3.8% of the aPAD for all infants, the population group receiving the greatest exposure.

Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluoxapiprolin (BCS-BP32808) from food and water will utilize less than 1% of the cPAD for the general U.S. population, and 1.6% for all infants, the population group receiving the greatest exposure. There are no residential uses for fluoxapiprolin.

Short- and intermediate-term aggregate exposure takes into account short- and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Short- and intermediate-term adverse effects were identified. However, fluoxapiprolin is not being proposed to be registered for any use patterns that would result in either short- or intermediate-term residential exposure. Therefore, the short-term and intermediate-term aggregate risks are equivalent to the chronic dietary risk estimates, which are not of concern.

Based on the evidence of low carcinogenicity in two adequate rodent carcinogenicity studies, fluoxapiprolin is not expected to pose a cancer risk to humans.

Based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to fluoxapiprolin residues. More detailed information on this action can be found in the Fluoxapiprolin Human Health Risk Assessment in docket ID number EPA-HQ-OPP-2022-0980.

For analysis of fluoxapiprolin for purposes of regulatory enforcement, the petitioner has proposed method 01624 for assessing residues on plants and method 01628 for assessing residues on livestock products and biproducts. Extracted residue levels are determined by a high-performance liquid chromatography/triple-stage quadrupole mass spectrometry method. The method limit of quantitation is 0.01 mg/kg (ppm). Furthermore, the method is considered acceptable for enforcement purposes.

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

The Codex has proposed MRLs for fluoxapiprolin on grapes; grapes, dried; onion bulb; tomato; and potato. The U.S. tolerances and proposed Codex MRLs for the following commodities are harmonized: grape, raisin and grapes, dried at 0.5 ppm; onion, bulb, subgroup 3-07A and onion bulb at 0.03 ppm; and vegetable, tuberous and corm, subgroup 1C and potato at 0.01 ppm. The U.S. tolerance and Codex MRL are not harmonized for grapes or vegetable, fruiting, group 8-10 and tomato. EPA is establishing a tolerance for fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.2 ppm, which is higher than the proposed individual Codex MRL for grapes at 0.15 ppm. The U.S. tolerance is based on available residue data and use by U.S. growers consistent with approved label instructions could result in residues that exceed the Codex MRL. Harmonizing with the proposed Codex MRL could put U.S. growers at risk of violative residues despite legal use. EPA is establishing a tolerance for vegetable, fruiting, group 8-10 at 0.06 ppm, which is lower than the proposed individual Codex MRL for tomato at 0.07 ppm. Fluoxapiprolin is being jointly reviewed in the U.S. and Canada. For this joint review, the U.S. tolerances and Canadian MRLs and associated tolerance expressions are harmonized between the U.S. and Canada. While Codex has proposed an MRL for tomato, the MRL is not yet established. Mexico has not established any fluoxapiprolin MRLs.

The petitioned-for tolerance on onion, green subgroup 3-07B has been revised from 2.0 ppm to 2 ppm to remove trailing zeros in accordance with Organization for Economic Cooperation and Development (OECD) rounding class practice. The Agency is establishing a higher tolerance level than the petition requested for vegetable, cucurbit, group 9 (0.07 ppm instead of 0.06 ppm) and vegetable, leafy, group 4-16 (6 ppm instead of 5 ppm) based on OECD tolerance calculation procedures. The Agency is establishing a tolerance for vegetable, fruiting, group 8-10 of 0.06 ppm to harmonize with Canada at that level. The Agency is establishing a higher tolerance level than the petition requested for grape, raisin (0.5 ppm instead of 0.4 ppm), based on the grape highest average field trial data and the raisin processing factor. Additionally, EPA is not establishing a tolerance for inadvertent residues on berry, low growing, subgroup 13-07G for the indirect rotational crop usage since fluoxapiprolin residues in strawberry fruit were less than the limit of quantitation (0.010 ppm) in a limited field rotational crop study.

Therefore, a tolerance is established for residues of fluoxapiprolin in or on the food and feed commodities of: Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.2 ppm; Grape, raisin at 0.5 ppm; Leaf petiole vegetable subgroup 22B at 1.5 ppm; Lettuce, head at 0.8 ppm; Onion, bulb, subgroup 3-07A at 0.03 ppm; Onion, green, subgroup 3-07B at 2 ppm; Vegetable, brassica, head and stem, group 5-16 at 0.8 ppm; Vegetable, cucurbit, group 9 at 0.07 ppm; Vegetable, fruiting, group 8-10 at 0.06 ppm; Vegetable, leafy, group 4-16, except lettuce, head at 6 ppm; and Vegetable, tuberous and corm, subgroup 1C at 0.01 ppm.

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 has exempted these types of actions from review under Executive Order 12866.

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

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

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because tolerance actions like this one are exempt from review under Executive Order 12866.

However, EPA's 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 summarized in Unit III.E.

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

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

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

For the reasons set forth in the preamble, 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).

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-2022-0354 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 August 31, 2026.

The EPA's Administrative Law Judges Division (ALJD), 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, the EPA intends to treat submissions filed via electronic means as properly filed submissions; therefore, the EPA believes the preference for submission via electronic means will not be prejudicial. When submitting documents to the ALJD electronically, a person should utilize the ALJD e-filing system at https://yosemite.epa.gov///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/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 June 26, 2023 (88 FR 41395) (FRL-10841-05-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 PP2F8983) by Valent, P.O. Box 5075, San Ramon, CA 94583. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the herbicide epyrifenacil, ethyl [(3-{2-chloro-4-fluoro-5-[3-methyl-2,6-dioxo-4-(trifluoromethyl)-3,6-dihydropyrimidin-1(2H)-yl]phenoxy}-2-pyridyl)oxy]acetate, in or on canola, field corn, soybean, wheat at 0.01ppm.

A summary of the petition prepared by Valent, the registrant, is available in the docket, ID number EPA-HQ-OPP-2022-0354, at https://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified several tolerances for the listed commodities for harmonization with the upcoming registrations by Canada's Pest Management Regulatory Agency (PMRA). The reason for these changes are explained in Unit IV.B and IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.”

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

Repeated dose oral toxicity studies with epyrifenacil are available for rats, mice, and dogs. Across durations, the mouse was the most sensitive species, followed by the rat and then the dog. Male mice were more sensitive than female mice. The target organs/tissues identified following exposure to epyrifenacil were the liver and blood. Liver effects in mice and rats included an increase in liver weights, hepatocellular hypertrophy, and degeneration/necrosis. In blood, there is a mild decrease in red blood cell parameters resulting in secondary increased erythropoiesis in the bone marrow and increased extramedullary hematopoiesis in the spleen. Hematological changes, typically of a mild and adaptive nature, occurred at doses where more observable and notable liver-related effects were seen, highlighting the liver's heightened sensitivity as the primary/target organ. In a subchronic (90-day) inhalation study in rats, adverse portal of entry effects included degenerative and inflammatory changes occurring in the upper respiratory tract (turbinates and pharynx). In a 28-day dermal toxicity study in rats, no adverse effects were observed in both sexes up to the limit dose (1000 mg/kg/day). Epyrifenacil showed no evidence of neurotoxicity in the available studies in rats. In vitro studies found no evidence of genotoxicity or mutagenicity for parent epyrifenacil or its metabolites.

In the rat developmental study, adverse developmental toxicity (increased presence of supernumerary ribs in the cervical region) was observed at a higher dose than maternal toxicity. There is evidence of increased qualitative susceptibility in the two-generation reproductive toxicity study in rats. In that study, adverse parental toxicity included bile duct hyperplasia and hepatocellular necrosis in males. In the offspring, at the same dose, there was increased mortality and moribundity in F1 males, which was accompanied by clinical observations (pale and cool extremities and/or body) and reduced body weights. Additionally, adverse hematological changes in F1 males and F2 females presented as severely decreased red blood cell parameters indicative of anemia. Reproductive toxicity included delayed sexual maturation in F1 males and females.

Epyrifenacil has low acute oral (Category III), dermal (Category III), and inhalation toxicity (Category IV). It is minimally irritating to the eye and skin (Category IV) and is not a skin sensitizer (see Table A.2.1 for details).

In vivo studies with metabolites focused on S-3100-DP-Me, S-3100-PR, 4″-OH-S-3100-CA, S-3100-CA-RD, and S-3100-DA. Results from these dietary studies in mice included adverse liver effects and adaptive hematological effects (lower erythrocyte count, hematocrit, and hemoglobin) in both sexes at doses ≥229.3 mg/kg/day. In vitro genotoxicity battery testing in S-3100-DA, S-3100-PR, S-3100-BFP, S-3100-DP, and S-3100-CA-UR showed no evidence of genotoxicity. Overall findings from repeat dose studies conducted with metabolites concluded that they were less toxic than the parent compound. A quantitative structure-activity relationship analysis was conducted using Derek Nexus (v2.5.2, kb 2022 2.0) on the parent compound, which found no carcinogenicity/mutagenicity alerts.

Specific information on the studies received and the nature of the adverse effects caused by epyrifenacil as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at https://www.regulations.gov in the document “Epyrifenacil: Human Health Risk Assessment for the Section 3 Registration of the New Herbicide Active Ingredient Epyrifenacil on Field Corn, Canola, Soybean, Wheat, Fallow Land, Bare Ground, and Non-crop Areas” at page 21 in docket ID number EPA-HQ-OPP-2022-0354.

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

A summary of the toxicological endpoints for epyrifenacil used for human risk assessment is shown in Table 1 of this unit.

In evaluating dietary exposure to epyrifenacil, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from epyrifenacil in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. An endpoint was identified for acute dietary exposure for the female 13-49 years old population subgroup only; therefore, no acute dietary risk assessment was performed for any other population subgroups. EPA conducted an unrefined acute dietary exposure risk assessment using recommended tolerance-level and 100 percent crop treated (PCT) for all commodities. The female 13-49 years old population subgroup occupied <1% of the acute population-adjusted dose (aPAD).

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the 2005-2010 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America. As to residue levels in food, EPA conducted an unrefined chronic dietary exposure risk assessment using recommended tolerance-level and 100 PCT for all commodities. The chronic dietary risk for the highest exposed population subgroup, all infants, utilizes 53% of the cPAD, which isbelow HED's LOC (<100% cPAD).

iii. Cancer. Epyrifenacil is classified as “not likely to be carcinogenic to humans below doses that induce hepatocellular injury”. This is based on an acceptable tumorigenic MOA for liver tumors in male mice that posed no concern for mutagenicity. The cPAD is protective of potential carcinogenic effects. Therefore, a separate cancer dietary assessment was not required.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for epyrifenacil. Tolerance level residues and/or 100% PCT were used for all food commodities.

The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for epyrifenacil in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of epyrifenacil. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide in Water Calculator (version 2.001; Sept 2020), the estimated drinking water concentrations (EDWC) of epyrifenacil for acute exposures are estimated to be 2.6 micrograms per liter (μg/L) for surface water and 8.1μg/L for ground water. For chronic exposures for non-cancer assessments, EDWCs are estimated to be 1.2 μg/L for surface water and 6.3 μg/L for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the EDWC of 8.1 μg/L was used to assess the contribution to drinking water. For chronic dietary risk assessment, the EDWC of 6.3 μg/L was used to assess the contribution to drinking water.

The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Epyrifenacil is not registered for any specific use patterns that would result in residential exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at https://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

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

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

No evidence of increased quantitative susceptibility was seen in rat and rabbit developmental toxicity studies. Adverse developmental toxicity in rats (extra supernumerary ribs in the cervical region) was observed at the highest dose tested (200 mg/kg/day), which was higher than the dose eliciting maternal toxicity. However, in the two-generation reproductive toxicity study there is evidence of increased qualitative susceptibility at 20.04/22.63 mg/kg/day (M/F) in the offspring (increased mortality and moribund animal counts seen in the post-lactation F1 males). No mortality or moribund animal counts were seen in the parental generation (F0) at the same dose as other adverse effects in the offspring. The degree of concern for these effects in infants and children is low because the PODs selected for risk assessment are protective of these effects.

EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

• the toxicity database is adequate to characterize potential pre- and postnatal risk for infants and children;

• although there were offspring and reproductive effects in the reproductive toxicity study, they occurred in the presence of parental toxicity;

• there were developmental effects in the developmental study in rats; however, these effects occurred at doses above maternal toxicity;

• there were no potential signs of neurotoxicity observed in the epyrifenacil database, including the acute neurotoxicity or subchronic neurotoxicity studies;

• clear NOAELs/LOAELs are established for the rat developmental and reproductive studies; and

• the PODs selected for risk assessment purposes are protective of the developmental and offspring effects seen in the database.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to epyrifenacil will occupy <1% of the aPAD for females 13-49 years old, the population group receiving the greatest exposure.

Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to epyrifenacil from food and water will utilize 53% of the cPAD for all infants, the population group receiving the greatest exposure. There are no residential uses for epyrifenacil.

Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there are no residential exposures, no short-term adverse effect was identified, therefore, epyrifenacil is not expected to pose a short-term risk.

Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, epyrifenacil is not expected to pose a intermediate-term risk.

Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, epyrifenacil is not expected to pose a cancer risk to humans.

Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to epyrifenacil residues.

Adequate enforcement methodology for plant commodities (Method RM-52C-2b, which uses a high-performance liquid chromatography method with tandem mass spectrometry detection (LC/MS/MS), and soybean and corn oil commodities (LC/MS/MS method, Method RM-52C-1a), are available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

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

The Codex has not established an MRL for epyrifenacil.

Based on the submitted processing studies, no separate tolerances for residues are being established for processed commodities as the proposed tolerances for corn, soybean, and wheat raw agricultural commodities cover the processed commodities. The Agency is correcting commodity definitions for rapeseed, seed; field corn grain; and wheat grain, and is establishing tolerances in/on rapeseed, seed; field corn grain; soybean seed; and wheat grain at 0.005 ppm. The Agency determined that a tolerance for field corn hulls is not necessary as it is no longer considered a feed item.

Therefore, tolerances are established for residues of epyrifenacil, ethyl [(3-{2-chloro-4-fluoro-5-[3-methyl-2,6-dioxo-4-(trifluoromethyl)-3,6-dihydropyrimidin-1(2H)-yl]phenoxy}-2-pyridyl)oxy]acetate, in or on corn, field (forage, grain, stover); rapeseed, seed; soybean (forage, hay, seed); wheat (forage, grain, hay, straw) at 0.005 ppm.

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 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 has exempted these types of actions from review under Executive Order 12866.

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

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

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

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

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

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because tolerance actions like this one are exempt from review under Executive Order 12866.

However, EPA's 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 summarized in Unit III.D.

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Commission's Third Report and Order ( Third Report and Order ), FCC 26-34, adopted May 20, 2026, and released May 21, 2026. The full text of this document is available by downloading the text from the Commission's website at: https://www.fcc.gov/document/fcc-modernizes-disaster-information-reporting-system-0. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, 45 L Street NE, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice).

The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning possible impact of the rule and policy changes contained in the Third Report and Order on small entities concerning possible impact of the rule and policy changes contained in the Third Report and Order on small entities. The FRFA is set forth in Appendix B.

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

This Third Report and Order may contain new or substantively modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. All such requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other federal agencies will be invited to comment on any new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

To simplify DIRS for manual filers and make DIRS information more useful to emergency managers, we adopt our proposal to redesign the DIRS interface to replace the ten separate DIRS worksheets with a single, dynamic form as proposed in the FNPRM. Instead of completing a series of worksheets that collect overlapping information, manual DIRS filers will respond to initial questions about the services they provide in the DIRS activation area and the impacts to equipment and facilities caused by the disaster. Based upon these responses, manual filers will be presented with questions seeking information applicable only to the services the filer provides. Information that currently appears on multiple worksheets would only need to be entered once. While, as we noted, manual filers comprise a minority of providers that submit DIRS reports, many providers that manually file DIRS reports are small- or medium-sized businesses, and so this change will have an outsized effect in reducing burdens for providers whose resources may be most thinly stretched during a disaster.

The record supports our view that this step will simplify and reduce the time burden associated with manual data entry in DIRS. The National Rural Electric Cooperative Association observes that the current DIRS reporting framework is cumbersome and inefficient with many overlapping data fields. Accordingly, CTIA and others describe this, along with other measures we adopt today, as “common sense changes that would reduce burdens on providers, allowing them to direct resources towards recovery efforts without impacting the actionable information provided to public safety stakeholders through DIRS reports.” The National Association of Broadcasters (NAB) agrees that this redesign “will facilitate filing in DIRS during a disaster[,]” and NTCA adds that it will “benefit public safety agencies by allowing them to more quickly identify the status of communications in their area.” The Competitive Carriers Association (CCA) observes that these changes address a concern that is “particularly acute for small and rural carriers. Such providers often operate with limited engineering and operations teams, many of whom are simultaneously engaged in damage assessment, power restoration, and physical repairs.” No commenters oppose this proposal or express concern that its adoption would diminish DIRS's utility.

In the interest of reducing the burdens of required DIRS reporting and encouraging participation for voluntary DIRS filers, we adopt our proposal to establish a “one-click” option on the consolidated worksheet for providers to indicate there is no change in infrastructure status from the previous day's report. Commenters agree that this would reduce time spent on manual DIRS entry while preserving the value of DIRS for emergency management officials. USTelecom states that a one-click option will “improve the efficiency” of disaster-related data collection, and an individual commenter describes this change as “monumental.” In addition to saving time and streamlining DIRS report preparation, NAB believes this change “would facilitate broadcasters' voluntary participation in DIRS, especially smaller stations.” As reflected in these comments, we believe this step will simplify manual DIRS report submission during DIRS activations, while also enabling providers to have more time to focus on the important task of restoring service to their customers.

We decline to extend the availability of a one-click-like option to batch filers, in addition to manual filers, as recommended by WISPA—The Association for Broadband Without Boundaries (WISPA). To satisfy their DIRS reporting obligations, batch filers already enjoy a streamlined filing process whereby they upload a provider-created spreadsheet to the Commission, the production of which may be automated by network administration systems. We disagree with WISPA that implementing the equivalent of one-click filing will enable batch filers to complete their DIRS filing obligation more easily than simply resubmitting the previous day's spreadsheet. We believe that a one-click (or near one-click) option would require substantially similar effort and time for DIRS batch filers as using the existing spreadsheet upload process, particularly for those users that leverage the DIRS Upload Application Programming Interface (API). Further, in our experience, batch filers are more likely to be larger entities providing service through many facilities in a broader geographic area than manual filers. As a result of the number of facilities on which batch filers report and the dynamic nature of service restoration during and after disasters, DIRS information for batch filers is very likely to change day-over-day, making a one-click option less useful for these types of filers.

While no commenter opposes the Commission's proposal, one commenter requests that the Commission have “a way to ensure that [] providers aren't actually skipping the daily report and are in fact checking their data to see it hasn't changed.” We recognize this valid concern. As an initial matter, we note that providers are under an obligation to report information truthfully to the Commission. To remind providers of the requirement to submit accurate information, we will also add the following language to DIRS, which the user will be required to acknowledge when clicking “submit”: “By submitting this Form, you certify that the information you have provided on this Form and the attachments is true and accurate. Filers are responsible for the accuracy of the information they file with the Commission, including any data automatically populated into this Form or its attachments from other Commission databases. Failure to ensure the accuracy of information filed with the Commission may result in enforcement action.” We believe this language puts providers further on notice that it is their responsibility to verify the accuracy of the information in their reports. We expect that this language will prompt providers to review any existing data before submitting their DIRS report.

To further streamline DIRS reporting for both manual and batch filers, we eliminate many DIRS reporting fields and worksheets, as proposed in the FNPRM. The record affirms our view that the worksheets and fields we eliminate today are unnecessary because they are duplicative and/or provide little of actionable value for disaster response. We summarize the remaining DIRS fields that will be mandatory or voluntary to complete in Appendix C.

Eliminate the Inter-exchange Carrier (IXC) Blocking Worksheet. We eliminate the inter-exchange carrier worksheet, agreeing with ACA Connects which observes that the worksheet “has not proven useful for disaster response.” No commenters oppose this action.

Eliminate the “Percent of Historical Capacity Available” Field from the Wireless Cell Site by County Worksheet. We eliminate the “percent of historical capacity available” field from the Wireless Cell Site by County worksheet because this field is redundant as the information it contains can be derived from other reported data. As explained by CTIA, “[t]he Commission has access to the relevant information provided in [this field] through other means, such as by measuring capacity based on the number of sites reported in operation or out of service.” We agree, and find that since the Commission has the ability to calculate this percentage from other data reporting in DIRS, it is appropriate to eliminate this field from the worksheet. No commenters disagree with this conclusion.

Consolidate Cable Telephone Subscriber Data Fields. Rather than eliminate DIRS' reporting fields for cable telephony, as proposed, we consolidate the fields for cable communications providers that request (1) the number of cable telephone subscribers served and (2) the number of VoIP subscribers served with (3) the number of cable telephony subscribers down and (4) the number of VoIP subscribers whose service is down. As a result of this action, cable communications service providers will be required to respond to only two prompts: how many cable telephony and/or VoIP subscribers do you serve, and how many of them are without service? Based on data reported in NORS and DIRS over the past year, cable communications service providers themselves often appear to be unsure whether to report voice outages as VoIP or cable telephony, resulting in inconsistent and unreliable reporting for outages of each type. Moreover, the difference between cable telephony provided via a circuit-switched network and cable telephony provided via VoIP is often not material from an emergency management standpoint. We agree with ACA Connects that eliminating the need for providers to discern between these two types of service in their DIRS reports “would substantially reduce the time burdens associated with DIRS data entry without compromising DIRS's mission.” This action is also consistent with CTIA's advocacy that we eliminate duplicative fields in DIRS. We take this action to improve DIRS reporting efficiency and to save service providers precious time in DIRS reporting when their primary focus is on disaster recovery and restoring service to customers. No commenters oppose this action.

Eliminate Video Subscriber Data Fields from the Cable System and Major Equipment Worksheets. We remove the fields currently in the cable system and major equipment worksheet that request the number of video subscribers served and the number whose service is down to, consistent with NCTA's comments, “facilitate more efficient reporting by providers and [to] help maximize the time and resources that are available for network restoration.” NAB and ACA Connects support our taking this step because this information is less critical for disaster response, and no commenters oppose this action.

Eliminate the “Number of Access Lines” field from the Major Equipment Worksheet. We eliminate the “number of access lines” field from the existing major equipment worksheet because, as noted in the FNPRM, this information is addressed by other questions on the same worksheet that are better targeted to gathering useful information. Specifically, the major equipment worksheet requests the “number of working numbers” and the “number of working numbers down.” While there can be multiple working telephone numbers on a single access line, we do not believe it is necessary for disaster response to collect both types of data. We believe it reasonable to use “working numbers down” as a proxy for affected customers. Moreover, this field, in combination with the “number of working numbers” field, yields important information about how much of a provider's customer base is without service. ACA Connects supports our eliminating this field step because this information is covered elsewhere on the existing major equipment worksheet, and no commenters oppose our taking this step.

Harmonize Fields on the Interoffice Facilities—TSP worksheet with NORS. We update the fields on the existing interoffice facilities—TSP worksheet by collecting information about the number of Optical Carrier circuits (or their functional equivalent) affected and eliminating the requirement to report the “number of DS3s affected (down).” For the avoidance of doubt, we emphasize that we are not eliminating required reporting for circuits that are smaller than an OC3. Required reporting on OC3s or functional equivalents will include DS3s, for example, that are transporting volumes of traffic that are the functional equivalent of an OC3. We find this important to keep pace with marketplace changes that have added capacity to today's high-speed networks. USTelecom—The Broadband Association (USTelecom) supports harmonizing fields that currently exist on this worksheet as we proposed in the FNPRM, and no commenters disagreed with this modification.

Make Reporting the Number of Remote Aggregation Devices Voluntary. We make it voluntary, rather than mandatory, for providers to report the number of remote aggregation devices that are down as provided on the existing remote aggregation devices worksheet. We find that other fields on the current worksheet, specifically the “number of working numbers served” and “number of working numbers down,” collect more useful information about customer impact and pace of service restoration than the “number of [remote aggregation devices] . . . down” field. We believe we can further our goal of simplifying DIRS without sacrificing useful information for public safety stakeholders by making this field voluntary. While this will provide an incremental time savings to those providers that elect not to complete this field in DIRS, it will enable providers to continue to share this information. ACA Connects supports our rationale for this conclusion and no commenters object to proceeding in this manner.

Make Broadband Data User Fields Voluntary. We make the collection of broadband access user information voluntary, rather than mandatory, for all DIRS filers except fixed and mobile broadband providers that are stage 2 recipients of the Uniendo a Puerto Rico Fund and Connect USVI Fund, as we proposed and as supported by NCTA, CCA, and ACA Connects. This step preserves the collection, on a voluntary basis, of information that is important to public safety stakeholders, as broadband access is a critical lifeline enabling the public to stay informed during disasters and emergencies, while still reducing burdens on providers. As CCA notes, adopting streamlining measures like this “ensure[s] providers can maximize their recovery efforts [while] critical information is shared with relevant emergency management entities.” The record supports this modification and no commenters disagree with this step.

Retain Voluntary DIRS Reporting for Satellite Providers. As a means of maintaining visibility into critical infrastructure during disasters, we decline to adopt our proposal in the FNPRM to eliminate the fields on satellite services. CTIA stated it “[did] not have any specific concerns about eliminating the satellite worksheet.” Notwithstanding the fact that Verizon “does not oppose” exempting satellite providers from DIRS reporting, Verizon observes that “wireless and wireline providers' customers may rely in part on satellite capabilities during DIRS activations” and wireless and wireline providers have limited visibility into the status of satellite providers' networks. While acknowledging that no satellite provider has ever filed in DIRS, the National Rural Electric Cooperatives Association notes that public safety officials, the Commission, and the public deserve “to have the best information available” in the event of a “powerful solar storm, `Kessler Syndrome' ablation cascade, or a disaster of a type yet unknown[ ]” affects satellite service. We agree that it is possible that a disaster that specifically affects satellite services could create a need for the Commission to activate DIRS; however, were we to eliminate the satellite worksheet fields as proposed, we would be unprepared to receive daily infrastructure status updates from satellite operators, even on a voluntary basis. In light of the key role satellite service plays to enable other modes of communications and to support national security interests, we are persuaded to retain the worksheet.

We decline, however to make satellite reporting in DIRS mandatory at this time as recommended by the Foundation for Defense of Democracies in consideration of the increasing threats from China and the importance of these systems to the economy and military operations. We believe retaining the worksheet on a voluntary basis strikes the appropriate balance of enabling public safety officials to receive satellite status information through DIRS in the event there is a disaster that impacts satellite service, without burdening satellite providers with mandatory reporting obligations for circumstances that have not yet come to pass in the history of DIRS. The Commission continues to retain visibility into satellite network status through satellite providers' ongoing mandatory obligation to report outages in NORS. Our approach ensures that the Commission will remain informed of significant impairments to satellite connectivity, preserves the ability for satellite providers to voluntarily report in DIRS should an unforeseen event warrant such reporting, all while avoiding burdening satellite providers with new mandatory reporting obligations.

Allow Providers Flexibility in Providing Location Information. We decline to adopt our proposal to improve the utility of DIRS data by requiring providers to submit location information for their affected equipment or facilities in a single format, either street address or latitude and longitude. While ACA Connects notes submitting “street addresses would be significantly less burdensome than the submission of latitude/longitude data[,]” no other stakeholder or public safety entity indicates that one format is preferable to the other for any given type of facility or equipment. Instead, industry commenters ATIS, CTIA, NTCA, and Verizon argue that providers should continue to be allowed to select their preferred format for any type of facilities or equipment. NTCA argues that maintaining our current approach would minimize “the time providers must spend completing DIRS reports.” We find that continuing to allow providers to choose which address format to use for equipment and facilities location reporting is appropriate because, as CTIA points out, equipment located in rural or remote areas may not have a street address at all, and requiring providers to convert information that they maintain as a street address into a latitude and longitude would, as ATIS observes, result in “significant impacts on the industry.”

We find that previous delegations of authority to the Bureau are sufficiently broad to enable it to implement these modifications, as well as future modifications to DIRS and its fields that may be needed to ensure that the system continues to serve its crucial role in disaster response and recovery. As noted in the FNPRM, the Commission has delegated authority to the Bureau “to administer the communications disruption reporting requirements contained in part 4 of this chapter and to revise the filing system and template used for the submission of such communications disruption reports.” While no commenter challenges this delegation, some commenters seek to require the Bureau to exercise its delegated authority “subject to consultation with wireless service providers” or limited to “what is expressly authorized in the final rules.” We find it unnecessary to revise the authority delegated to the Bureau in this manner. The revision to § 4.18(a) that we adopt today will contain more specificity for PSHSB to implement as it revises the DIRS filing system and templates. We further find that it is necessary for the Bureau's authority to be sufficiently broad to ensure that the Bureau has the flexibility to timely implement lawful changes to DIRS and otherwise maintain the system as necessary to ensure that it remains effective.

We direct the Bureau to afford providers an opportunity to test the above improvements to DIRS before they are officially released, as recommended by Verizon. This process will also allow filers to provide additional feedback on the new DIRS interface to ensure usability. We decline, however, to require the Bureau to engage in a second round of notice and comment on the look and feel of the new DIRS system, as suggested by USTelecom, ATIS, AT&T, CTIA, and WISPA. While formal notice and comment was appropriate to address the information that providers are required to file in DIRS because those changes affect their legal obligations, no such formality is needed to enable the Bureau to consider feedback from industry on its implementation of the changes contemplated herein.

As proposed in the FNPRM, we eliminate the requirement for providers to file a final report in DIRS within 24 hours of DIRS' deactivation. Many commenters argue that DIRS final reports are not useful to emergency managers. ATIS, WISPA, and WTA submit that the primary reason DIRS final reports have not been as useful in practice as the Commission intended is the “uncertainty and unknowns that will still exist right after the end of the DIRS reporting period,” which prevent providers from offering reliable, actionable service restoration estimates. We agree. In our experience, DIRS final reports have not provided emergency managers with reliable service restoration estimates, which must be made when DIRS is deactivated. Moreover, we understand from experience that the timeline for service restoration can depend on factors outside of the service provider's control, such as the accessibility of the damaged area to service technicians or the availability of replacement parts, so it is not sensible to refer to estimates provided in the midst of an emergency as “final.” As such, we disagree with the Foundation for Defense of Democracies that the DIRS final report “ensur[es] accountability and provid[es] a definitive record for planning repairs and analyzing outages.” As we reasoned in the FNPRM, service restoration estimates that routinely prove incorrect cause more harm than good because reliance on those estimates leads to the misallocation of finite disaster response resources. Taking more time to consider the potential utility of these requirements, as Public Knowledge suggests we should, cannot change the fundamental difficulty of presenting DIRS information to emergency managers as “final” as if service providers can predict the future. Further, we are not persuaded to retain the DIRS final report requirement by Public Knowledge's vague assertion that, even if this information is not valuable for immediate situational awareness, it has value as “historic information for analysis and planning.” We also do not believe it would be beneficial to retain a streamlined version of the DIRS final report requirement that providers could satisfy with “one-click.” If the Bureau believes that an additional day of DIRS reporting on infrastructure status was warranted before DIRS's deactivation, it can obtain that information simply by keeping DIRS active for an additional day.

To eliminate duplicative and potentially speculative DIRS reporting about infrastructure neither owned nor operated by the reporting entity, we revise our mandatory DIRS rules to apply only to facilities-based providers, exempting providers that do not own or operate their own facilities or infrastructure in the DIRS activation area. We agree with CTIA that providers that do not own or operate their own facilities or infrastructure should not report in DIRS because “their service offerings rely on the facilities of underlying service providers that already report the status of those facilities” in DIRS. In our experience, information that non-facilities-based providers submit in DIRS about the status of facilities or infrastructure that they do not own or operate tends to be either be speculative, as ACA Connects and NCTA observe, or derivative of information that the non-facilities-based provider has imposed upon the facilities-based provider to obtain, as WISPA observes. We agree with CTIA and T-Mobile that receiving information about the status of the same communications equipment from both the facilities-based provider that owns and operates that equipment and from non-facilities-based providers that rely upon that equipment to offer service introduces a risk of double counting that threatens the quality of DIRS data. It will promote our ability to quickly and reliably produce aggregated information about the status of communications equipment during disasters to receive one authoritative report about each relevant communications facility in a DIRS activation area, and we agree with ACA Connects that the report we receive should come from the party “with direct visibility into the outage and system restoration.” That provider will be in the best position to answer DIRS' prompts about the status of the facilities or infrastructure. Eliminating reporting requirements for other providers will result in more accurate data and remove unnecessary burdens from industry.

NCTA recommends that we extend the exemption for non-facilities-based providers to NORS for the same reasons as we offer it in the context of DIRS. We reject this recommendation and continue to require mobile virtual network operators and wireless, wireline, and interconnected VoIP resellers to report outages in NORS. As the Commission has previously found, these providers are “uniquely positioned to provide information on outages affecting their customers.” Unlike DIRS reporting's focus on “infrastructure status” during and after disasters, non-facilities-based providers are in the best position to report in NORS about the effects of outages on their subscribers because they have visibility into the status of their own subscribers, while the underlying facilities-based providers on which they rely often do not. The Commission also relies on NORS reporting as a source of information about the root causes of all kinds of network outages and the impacts of those outages on end users, which leads “to the development of best practices and has fostered a `data-driven, self-improvement model.' ” By maintaining the requirement that non-facilities-based providers report in NORS, the Commission preserves its insight into the impact of outages on the millions of non-facilities-based provider subscribers nationwide.

We do not adopt the FNPRM' s proposal to require facilities-based wireless providers to report in DIRS which mobile virtual network operators utilize their respective networks within the DIRS activation area, nor do we adopt the alternative that mobile virtual network operators identify their underlying network providers as part of a limited DIRS filing. Public Knowledge observes that there is not necessarily a simple, direct relationship between the operational status of a facilities-based provider and a non-facilities-based provider that relies upon it. As CTIA also recognizes, non-facilities-based providers often utilize the networks of multiple facilities-based providers in delivering their service. As a result, we are concerned that a list of business relationships alone would be insufficient to enable emergency managers to derive actionable insights about a disaster's impacts on their community, irrespective of whether a facilities-based or non-facilities-based provider submits it. While there are undoubtedly examples of non-facilities-based providers that rely exclusively on a single facilities-based provider to offer service, significant risk would stem from inducing emergency managers to believe that this is always the case by requiring the disclosure of business relationships as a proxy for the availability of service to communities. While Public Knowledge argues that this complexity is grounds for the Commission to continue require non-facilities-based providers to report in DIRS, we conclude that the burdens of filing this information outweigh its public safety value.

We direct the Bureau to upgrade DIRS to improve the ability of filers to voluntarily submit geographic information about service areas and the locations of facilities that are out of service. As Public Knowledge puts simply, collecting more granular information for stakeholders “can improve their disaster response.” In the FNPRM, we specifically sought comment on whether to collect more granular information from wireless providers about the location of cell sites that are out of service. Whereas DIRS requires providers to specify the location of major equipment other than wireless cell sites, DIRS currently only requires wireless providers to complete a worksheet to specify the number of cell sites out by county. Wireless providers, however, have voluntarily submitted more granular information than DIRS requires about the location of their wireless cell sites. T-Mobile voluntarily provides cell site location data in Keyhole Markup Language. As ATIS observes, one major wireless provider has voluntarily submitted shape files in response to DIRS activation since 2017, which provide “information about cell site impacts on a very conservative measure of −98db.” Accordingly, we agree with CTIA that collecting mapping data from service providers during DIRS activation on a voluntary basis is an approach that is working well, and we therefore do not require providers to submit any additional mapping data at this time. While providing this information in DIRS is voluntary, the Bureau may still exercise its delegated authority to require providers to provide this information in appropriate circumstances.

However, we recognize that DIRS does not offer an easy way for providers to voluntarily submit geographic information about service coverage and infrastructure location and believe that expanding that capability may induce more providers to submit that information and make DIRS easier to use for providers that do submit that information. We do not limit the submission of geographic information solely to cell site locations, but allow it for any kind of geographic information that filers believe would be useful to provide to emergency managers. We believe this flexibility was warranted in light of Verizon, CCA, and other commenters arguments that “[c]overage, not site location, is most relevant to where Wireless Emergency Alerts, 911 calls and public safety-related communications are affected during disaster events.” Upgrading DIRS to offer providers a clear way to submit a wider array of geographic information in additional formats may also reduce burdens on providers and other stakeholders.

To ensure that emergency managers and first responders have the information they need to stay connected during disasters, we require public safety voice and broadband network operators to submit DIRS daily reports about their infrastructure status when the Commission activates DIRS in geographic areas where they provide service. Public safety voice and broadband networks now play a vital role in keeping first responders connected during emergency response. AT&T manages and operates a nationwide public safety voice and broadband network, FirstNet, which plays a key role in enabling first responders using the network to communicate with one another and with PSAPs during emergencies. As the National Regional Planning Council states, public safety officials increasingly use FirstNet to replace older Land Mobile Radio systems for communication among first responders during emergencies. First responders use FirstNet for voice-over LTE, rich communication services and IP-based messaging to communicate with one another from a variety of operational locations, including outdoors, inside buildings, through drones and satellites, from airborne vehicles like helicopters, and from onboard maritime vessels. First responders also rely on FirstNet's network to access key technologies that affect situational awareness, such as cameras that convey real-time or historical data; internet-connected devices and sensors that monitor weather, traffic, environmental issues, or access to secured locations; and maps and Geographic Information Systems that may provide the location of responders or assets, potential hazards, or relational information between personnel and assets. According to Verizon, its Frontline service prioritizes first responder communications on Verizon's 5G network and provides high speed, low latency, large capacity connectivity to over 45,000 agencies. T-Mobile USA, Inc.'s (T-Mobile) T-Priority service prioritizes data-intensive communications for public safety agencies by using 5G network slicing to enable law enforcement, fire protection, emergency medical services, and other first responders to respond to emergencies. Disruptions to services like FirstNet, Verizon Frontline, or T-Priority could be a matter of life and death for first responders or members of the public who rely on police, fire, and emergency medical services that subscribe to these services.

The FNPRM sought comment on whether the Commission should revamp DIRS to enable voluntary or mandatory reporting on the status of public safety voice and broadband networks. The Commission also proposed to require FirstNet to report in DIRS in 2024, and received significant support. As Public Knowledge, Communications Workers of America, and New America's Open Technology Institute observed, effective crisis response “can only happen if those responding to the crisis—and managing the response—have clear knowledge of the communications environment in as close to real time as possible.” NASUCA and TURN recognized that FirstNet's “unique purpose [is] to provide robust public safety communications and, by extension, carry some of the most life-saving information across public safety stakeholders when disasters strike.” And Next Century Cities observed that, “without mandatory DIRS or NORS reporting the Commission and state and local officials are left without critical information about how the nation[']s emergency services are connected.” We agree with these views and find that DIRS reports are inadequate for providing actionable infrastructure status information if they do not specifically identify impacts to public safety voice and broadband network customers and efforts to restore service for public safety customers. Moreover, government stakeholders commonly request that the FCC share DIRS reports about FirstNet, but no public safety voice and broadband network operator has voluntarily provided information specific to the status of those network functions in their DIRS reports to date. Mandatory DIRS reporting will close this gap and provide critical visibility and situational awareness into these vital public-safety networks during disasters, consistent with the Commission's reasoning for previously requiring other types of providers to file in DIRS.

AT&T and Verizon oppose making public safety voice and broadband network reporting mandatory, asserting such additional reporting is unnecessary, duplicative, and may be misleading. With respect to FirstNet, AT&T's states that information about FirstNet's network status, infrastructure, and assets is already included as part of AT&T's DIRS reporting and is provided directly to FirstNet's public safety customers via the FirstNet Central platform. Verizon acknowledges the Commission's “legitimate situational awareness interest in a wireless outage's impact on public safety users[,]” but is concerned such reporting may double-count infrastructure impacts since the same networks are used for commercial and public safety purposes, be inaccurate as providers may have different designations for what constitutes a public safety customer, and, as AT&T notes, likely duplicates information being provided directly to customers. We find that mandatory reporting for public safety voice and broadband networks in DIRS is both necessary to ensure public safety officials can respond during disasters, and, as Verizon observes, will provide important situational awareness that does not exist today regarding the status of all of these critical networks.

We find that direct reporting to enterprise customers via interfaces such as FirstNet Central is an inadequate substitute for the visibility that DIRS reporting will yield. AT&T asserts that FirstNet Central provides its users with “near real-time network status[,]” enabling FirstNet users access to more information [than DIRS], even during emergency events that do not rise to the level of a DIRS activation. We are unpersuaded by the argument that outage information public safety voice and broadband network operators share with public-safety subscribers obviates DIRS reporting. While a public safety voice and broadband network operator may share information about its network status relevant to its own customers, not all public safety customers subscribe to the same public safety voice and broadband network. During a disaster, those customers may need to communicate with public safety entities that are customers of a different public safety voice and broadband network. Thus, broader visibility to the public safety voice and broadband network ecosystem is essential to identify outages that may impede seamless communications among customers of all public safety voice and broadband networks. Through mandatory DIRS reporting, the Commission can aggregate public safety voice and broadband network status information for all such networks and provide more comprehensive visibility than any single, network-specific outage reporting platform like FirstNet Central can provide. While AT&T describes how it and “the FirstNet Authority actively engage in state emergency operations centers during a disaster,” state emergency operations centers lack access to the aggregated network status available as a result of the DIRS reporting requirements we adopt today.

Other aspects of the outage notifications provided by public safety voice and broadband network operators to their customers today further demonstrate how those notifications fail to sufficiently accomplish our goals. Information that public safety voice and broadband network operators report directly to enterprise customers is not available to state, Tribal, territorial, or Federal agencies that are not themselves FirstNet users. Additionally, while FirstNet Central may provide some outage-specific information, T-Mobile observes that FirstNet does not provide information within any specific timeframe after an outage begins, or update information at any specific interval thereafter. It is also unclear whether FirstNet Central provides its customers with outage information on a customer-specific basis, or on a larger scale such as a region, state, or for its network as a whole. Moreover, it is uncertain the extent to which FirstNet Central provides infrastructure status in addition to the information it provides on “operational status[.]” DIRS' inclusion of infrastructure status makes it more robust and useful, providing visibility to the damaged equipment that would need to be restored to reestablish critical connectivity. Aside from FirstNet, the record is silent on whether or how Verizon and T-Mobile notify Frontline and T-Priority users, respectively, of outages on their public safety voice and broadband networks, but no information about the operational status of these networks has been reported directly to the Commission, nor are we aware of state, Tribal, territorial, or Federal agencies that are not themselves Frontline or T-Priority users receiving access to this information. Verizon states that detailed service availability and restoration information is likely already being provided in accordance with contractual terms and conditions as part of the provider-enterprise customer relationship, but neither definitively states that such communications are, in fact, occurring, nor provides any specifics about those communications. Accordingly, we find that customer-specific outage communications are inadequate substitutes for the visibility and situational awareness DIRS reporting will yield for emergency management agencies and the Commission.

We require public safety voice and broadband network operators to file in DIRS irrespective of whether their service is integrated into their network or standalone. T-Mobile asserts that only FirstNet and other providers of standalone public safety networks should be required to report in DIRS, and that T-Mobile, which offers its T-Priority service through a dedicated 5G network slice, should be exempt. In our view, this distinction is immaterial. Operators of public safety voice and broadband networks can prioritize service restoration to those networks irrespective of whether they are physically or logically diverse. Network slicing allows network administrators to dynamically prioritize access (and, potentially, post-outage service restoration) to transport, backhaul, and core network functions for public safety customers during emergency response and disaster recovery efforts when network congestion is more likely to occur. Excluding such offerings from the requirement we adopt today would limit our and public safety agencies' visibility into the status of these important services based on a network architecture distinction that is irrelevant to their importance during disasters and emergencies.

To eliminate the potential for both duplicative reporting burdens and “overstating the physical and user impact of an outage,” we will allow operators of public safety voice and broadband networks to satisfy their DIRS reporting obligation by indicating whether the status of their public safety voice and broadband network is the same as the status of their other network infrastructure. In the event that the status is not the same, then we require the fields in DIRS that are applicable to that network to be completed to identify specific impacts. This approach is consistent with Verizon's proposal for “a simple voluntary Yes/No checkbox field . . . that answers the question `Public Safety Voice and Broadband Network Customers Affected?' ” At the same time, we find it critical to require these providers to submit additional information to help the Commission identify public safety communications-specific impacts and restoration information, so we require them to submit the information that is appropriate for their type of network ( e.g., the provider of a wireless public safety voice and broadband network shall complete the wireless service provider fields in DIRS). This approach strikes a balance that will ensure we collect important information about public safety impacts that will provide the Commission and our federal, state, Tribal, and territorial partners with visibility into the operational status of these networks while minimizing new burdens on providers. While Verizon expresses concern about the potential for “apples-to-oranges comparisons between providers that have different designations for what constitutes a `public safety' entity,” this does not deter us from our conclusion. We think it reasonable that each public safety voice and broadband network operator will have eligibility criteria that requires customers on their respective networks to have a legitimate public safety purpose in order to subscribe. We acknowledge this criteria may not be identical across all public safety voice and broadband networks, but find this potential variance will not adversely affect our goal of capturing impacts to public safety customers. As with the other changes we implement today, we delegate authority to the Bureau to integrate public safety voice and broadband networks' infrastructure status into DIRS reporting.

At this time, we decline to extend the suspension of NORS reporting requirements during DIRS activations to DIRS-Lite activations, which we believe is necessary to preserve our visibility into outages that result from disasters for which we activate DIRS-Lite. By contrast to DIRS activations, the Commission activates DIRS-Lite for disasters that are less severe than those warranting a full DIRS activation. In anticipation of disaster impacts on communications services that are less severe, but that are nonetheless important for local emergency managers to understand on a day-to-day basis, the Commission can choose to collect infrastructure status information from providers by activating DIRS-Lite. When the Commission activates DIRS-Lite, it collects infrastructure status information informally, by e‐mail or phone, rather than via DIRS's online interface. All information that providers offer to the Commission during a DIRS-Lite activation is submitted voluntarily; providers are not required to submit the detailed infrastructure status information that DIRS elicits. The daily cadence of infrastructure status information during DIRS-Lite activations supplements more fulsome information that providers are required to report in NORS for outages that meet the Commission's reporting thresholds. The Commission has never waived NORS reporting requirements during an activation of DIRS-Lite. Accordingly, we disagree with ATIS, CTIA, USTelecom, and Verizon that we should waive NORS requirements during DIRS-Lite activations.

We agree with Public Knowledge that suspending NORS filing obligations during DIRS-Lite activations could create a gap in the Commission's information about network reliability by shifting the type of information that the Commission collects from information about outage root causes and subscriber impacts to information about infrastructure status at the time that network outages are most likely to occur. We also agree with Public Knowledge that extending the NORS waiver to DIRS-Lite activations may make it necessary for the Bureau to annually reconcile NORS filings, DIRS filings, and DIRS-Lite in order to maintain a complete picture of network resilience. We believe that this would pose significant administrative burdens for the Commission that outweigh the benefits of waiving NORS filings. In addition, we are not persuaded that DIRS-Lite activations present burdens to providers that would meaningfully detract from their service restoration efforts. For these reasons, we decline to extend the suspension of NORS reporting requirements to DIRS-Lite activations.

With respect to eliminating the DIRS final report and providing a filing exemption for providers that do not own or operate their own facilities, neither of these changes will necessitate technical changes to DIRS before becoming effective as the providers to which these changes apply can simply decline to file the reports in question. Accordingly, both changes to our rules shall be effective immediately upon publication of this Third Report and Order in the Federal Register . In addition to these amendments, the FNPRM proposed amendments to section 4.18(a) that specified the types of information that providers are required to report in DIRS. See FNPRM and Order on Reconsideration, 40 FCC Rcd at 6337. Because these amendments reflect information that is currently required to be reported in DIRS and do not impose any new obligations on providers, we also make those amendments effective immediately upon publication of this Third Report and Order in the Federal Register . However, we expect that many of the steps that we take today to streamline DIRS, including the creation of a dynamic form, the elimination of unnecessary fields, and the creation of a field to collect more granular location information, will require additional time to modify DIRS. We direct the Bureau to implement the necessary technical modifications to DIRS to effectuate the improvements described in this Report and Order, work with stakeholders to share information about and test the improvements to help facilitate any modifications to their reporting practices, and release a Public Notice to notify stakeholders when those improvements have been implemented.

We require public safety voice and broadband network operators to begin reporting in DIRS on the later of (i) 30 days after the Bureau announces that the Office of Management and Budget has completed its review of this requirement pursuant to the Paperwork Reduction Act and that DIRS is ready to receive public safety voice and broadband network operators' filings; or (ii) November 30, 2026. We believe that this approach will provide sufficient time for public safety voice and broadband network operators to make any necessary adjustments to their existing reporting processes to comply with the new requirement and to adjust to DIRS modifications.

We conclude that the rules we adopt today to reduce the burdens of DIRS reporting on service providers, along with new mandatory DIRS reporting requirements for public safety voice and broadband network operators, will result in annual cost savings of approximately $4 million, which outweighs the approximately $176,000 one-time cost and the $72,000 annual recurring cost to implement these changes. The approximate $4 million benefit estimate includes cost savings of $143,000 for streamlining the filing process and eliminating the final report requirement for facilities-based voice providers and $3.9 million from eliminating DIRS reporting obligations for mobile virtual network operators and VoIP resellers. The cost estimates include a $176,000 one-time cost for DIRS batch filing reconfiguration, and an annual cost of $72,000 for public safety voice and broadband networks to report outages when DIRS is activated. We find that these net cost savings, along with the public safety benefits that will flow from our actions will outweigh any new costs and any potential effects on public safety from the Commission no longer receiving and sharing certain types of infrastructure status information.

By removing the need for providers to select from the current array of ten separate forms concerning different types of service and infrastructure, we find that manual filers should be able to complete their filings more quickly. In addition, we find that eliminating unnecessary and duplicative fields will allow DIRS filings to be submitted more quickly. To quantify these cost savings, we use the methodology that we proposed in the FNPRM. Consistent with the FNPRM, based on staff estimation using the most recent available data, at the county-level, there are on average 53 fixed voice providers, including cable communications, wireline, and VoIP providers per county. Among these, an average of 12 fixed voice providers are facilities-based, and 41 are non-facilities based resellers. We further estimate that there are an average of six facilities-based mobile wireless voice providers and 82 mobile virtual network operators per county. Consistent with the FNPRM, we estimate the overall recurring cost savings to providers arising from modifying DIRS to simplify filing to be approximately $143,000 annually. We arrive at this figure by reducing by 20%, on average, the time we estimate providers will spend filing DIRS reports and by eliminating the cost burden associated with the requirement to provide a DIRS final report. We estimate the cost saving from streamlining DIRS reporting with a (20% cost reduction) × 1 office and administrative support worker × ($35.22 hourly compensation) × [(10/60) hours for the initial entry + (10/60) hours for daily updates × 14 days] × 339 counties × 18 facilities-based service providers = $107,456. DIRS filers will realize these cost savings on an annually recurring basis; therefore, these savings will exceed the one-time implementation costs associated with these changes. We further estimate a $35,819 cost saving from eliminating the final reporting requirement as 1 office and administrative support worker × ($35.22 hourly compensation) × (10/60) hours for the final report entry × 339 counties × 18 facilities-based service providers = $35,819. The aggregate cost saving is $143,275 (= $107,456 + $35,819), which we round to $143,000. For labor costs, the FNPRM used an hourly compensation figure of $35.22, which remains consistent with the most recent available wage data. The most recent available data suggests a base hourly wage for an office and administrative support worker of $24.12/hour. Consistent with the FNPRM, we calculate the applicable benefits markup by using Bureau of Labor Statistics data, as of December 2025, where civilian wages and salaries averaged $33.45/hour and benefits averaged $15.33/hour. Using these figures, we calculate that benefits constituted a markup of $15.33/33.45 ~ 46%. Taking 46% for cost of benefits ($11.10/hour), we determine an hourly compensation of $35.22/hour ($24.12/hour + $11.10/hour). We acknowledge that a batch filer in DIRS may incur one-time costs “to reconfigure its systems to reorganize how it exports data, and to ensure that the data is formatted in a manner accepted by DIRS” and find those costs to be approximately $176,000. The most recent available data suggests a base hourly wage for a database administrator of $51.65/hour. Taking 46% for cost of benefits ($23.76/hour), we arrive at an hourly compensation of $75.41/hour (which equals $51.65/hour plus $23.76/hour using our methodology for benefits markup). We revise our facilities-based estimate in the FNPRM, to estimate a total cost of $175,479 = 1 database administrator × $75.41/hour × 1 hour × 2,327 facilities-based cable, wireline, wireless, and interconnected VoIP providers, which we round to $176,000. Note that in the FNPRM, we used the county average estimate for facilities-based providers in counties where DIRS is activated, whereas the one-time cost here applies to all providers that have set up their systems for batch-filing. On our own initiative, we update the one-time cost calculation to reflect this. Because we do not have data on the total number of batch-filers, we conservatively use the sum of all facilities-based cable, wireline, wireless, and interconnected VoIP as a cost ceiling ( i.e., the maximum possible number of batch filers). This consists of 53 wireless facilities based providers and 2,274 wireline end-user switched access and interconnected VoIP providers based on the most recent Voice Telephone Services Report.

Our action today to exclude non-facilities-based providers from mandatory DIRS reporting will result in considerable savings for these providers. We find there will be an estimated $3.9 million annual cost savings for these categories of providers, as explained in the FNPRM. We estimate the cost saving as follows: 1 office and administrative support worker working at a wage rate of $35.22 per hour working for ten minutes on the initial entry and ten minutes for each daily update multiplied by the 14-day average period of a DIRS activation plus the ten minutes saved as a result of no longer having to submit a final report multiplied by 339 counties in which DIRS is activated, on average, each year, multiplied by the sum of the nation's estimated 82 mobile virtual network operators and 41 resellers. The result of this calculation is $3,916,182, which we round to $3.9 million. No commenters opposed our estimated cost savings or methodology.

Expanded reporting for public safety voice and broadband network operators will bring new visibility to the status of these critical networks and the essential first responders and emergency management customers who rely on those networks to perform life-saving recovery work. We estimate that the cost of public safety voice and broadband network operators reporting infrastructure status information in DIRS will not exceed approximately $72,000 annually. We update that calculation as follows: (1−20% cost saving) × {1 office and administrative support worker × ($35.22/hour) × [(10/60) hours for the initial entry + (10/60) hours for daily updates × 14 days] × 339 counties × 3 public safety voice and broadband network operators} = $71,637, which we round to $72,000. As proposed, we calculate the annual costs for public safety voice and broadband network operators filing in DIRS by applying the hourly wage of an office and administrative support worker ($35.22) multiplied by the amount of time we estimate for these providers to enter initial contact information and file one daily status update in DIRS for each day of the 14-day average duration of a DIRS activation. We note that this figure is likely conservatively high because of our actions to eliminate duplicative reporting burdens, including allowing operators of public safety voice and broadband networks to satisfy their DIRS reporting obligation by indicating whether the status of their public safety voice and broadband network is the same as the status of their other network infrastructure.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Federal Communications Commission (Commission) incorporated an Initial Regulatory Flexibility Analysis (IRFA) in the Resilient Networks; Amendments to Part 4 of the Commission's Rules Concerning Disruptions to Communications Third Further Notice of Proposed Rulemaking ( Third Further Notice ) released in August 2025. The Commission sought written public comment on the proposals in the Third Further Notice, including comment on the IRFA. No comments were filed addressing the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA and it (or summaries thereof) will be published in the Federal Register .

The Commission's rules require cable communications, wireless, wireline and interconnected VoIP providers to report network outages in the Commission's Disaster Information Reporting System (DIRS) when it is activated. Today's Third Report and Order reduces DIRS-related burdens faced by small and other service providers and government agencies so that they can dedicate more resources to restoring and maintaining communications services during a disaster. The Third Report and Order makes the following changes to DIRS: Redesigning the DIRS user interface to streamline reporting for service providers who enter information in DIRS manually so these filers can submit information more efficiently; Eliminating fields and reports that are not core to public safety disaster response and recovery needs to reduce the information collection burden for manual and batch DIRS filers; Eliminating DIRS final reports for mandated DIRS filers; and Exempting non-facilities-based providers from requirements to report in DIRS.

The Third Report and Order also supports the collection of new information that would offer significant public safety value during disasters, namely requiring reporting on infrastructure status by public safety voice and broadband network operators, and allowing all DIRS filers to voluntarily submit granular location maps, such as maps of downed cell sites. The Commission believes that the improvements to DIRS in the Third Report and Order strike the appropriate balance of reducing regulatory burdens for providers while ensuring collection of necessary and relevant information when disasters occur.

Comments were filed by the Competitive Carriers Association (CCA), the National Association of Broadcasters (NAB), and WTA—Advocates for Rural Broadband (WTA) addressing the impact of the proposed rules on small entities. The Competitive Carriers Association (CCA) observes that redesigning the DIRS interface to replace the ten separate DIRS worksheets with a single, dynamic form addresses a concern that is “particularly acute for small and rural carriers. Such providers often operate with limited engineering and operations teams, many of whom are simultaneously engaged in damage assessment, power restoration, and physical repairs.” WTA, whose members are small, rural local telecommunications carriers, also explain that “[s]treamlining the DIRS reporting requirements is important to WTA's members, who do not have any “surplus staff” to deal with regulatory burdens, particularly when disasters strike.” NAB discussed its support for a “one-click” option in DIRS that would allow providers to indicate there is no change in infrastructure status from the previous day's report. NAB notes that in addition to saving time and streamlining DIRS report preparation, this change “would facilitate broadcasters' voluntary participation in DIRS, especially smaller stations.” The Commission agrees with these views and adopts both of these changes to DIRS.

Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for the Small Business Administration (SBA) Office of Advocacy, and to also provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

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

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

The rules adopted in the Third Report and Order will apply to small entities in the industries identified in the chart below by their six-digit North American Industry Classification System (NAICS) codes and corresponding SBA size standard. Where available, we also provide additional information regarding the number of potentially affected entities in the identified industries below.