Please refer to Docket ID NRC-2025-1139 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2025-1139.

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

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

Comments must be submitted electronically using https://www.regulations.gov by 11:59 p.m. Eastern Time on September 10, 2026. Please include Docket ID NRC-2025-1139 in your comment submission.

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

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

On May 23, 2025, President Donald J. Trump signed Executive Order (E.O.) 14300, “Ordering the Reform of the Nuclear Regulatory Commission.” This rulemaking addresses Section 5, “Reforming and Modernizing the NRC's Regulations,” which requires the NRC to undertake a review and wholesale revision of its regulations and guidance documents, consistent with the policies set forth in section 2 of the E.O.

Because the NRC considers this action to be non-controversial, the NRC is publishing this proposed rule concurrently with a direct final rule in the Rules and Regulations section of this issue of the Federal Register . The direct final rule will become effective on October 26, 2026. However, if the NRC receives significant adverse comments by September 10, 2026, then the NRC will publish a document that withdraws the direct final rule. If the direct final rule is withdrawn, the NRC will address the comments in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action in the event the direct final rule is withdrawn.

A significant adverse comment is one in which the commenter explains why the rule would be inappropriate, challenges the rule's underlying premise or approach, or argues that the rule would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule.

For procedural information and the regulatory analysis, see the direct final rule published in the Rules and Regulations section of this issue of the Federal Register .

The U.S. Nuclear Regulatory Commission (NRC) is undertaking a series of regulatory updates to modernize its administrative framework, align with government-wide requirements, and ensure continued compliance with evolving federal standards related to transparency, advisory committee governance, information management, and personnel security. These are consistent with the directive in E.O. 14300, “Ordering the Reform of the Nuclear Regulatory Commission,” which requires the NRC to conduct a comprehensive review of its regulations.

First, the NRC is updating its information withholding provisions in 10 CFR 2.390 to clarify the Commission's procedures for evaluating requests for withholding proprietary and sensitive information from public disclosure. The revisions to 10 CFR 2.390 align with a recent modification made to that regulation to alleviate the need for licensees or applicants filing a withholding request to include information regarding competitive harm (90 FR 54225; November 26, 2025). The revisions in this rule maintain the NRC's longstanding policy balance between protecting sensitive commercial or financial information and ensuring transparency in agency decision making. The changes are administrative in nature and are intended to improve clarity and consistency in how information is reviewed and processed.

Second, the NRC is revising a provision in 10 CFR 2.804 that established procedural requirements related to post-promulgation comment periods. This provision is not statutorily required and thus imposes unnecessary administrative burdens. Revision of this provision provides additional flexibility to rulemaking processes.

Third, the NRC is revising 10 CFR part 7 to align its advisory committee regulations with the government-wide Federal Advisory Committee Act (FACA) requirements administered by the General Services Administration (GSA). On December 16, 2026, GSA issued a final rule (90 FR 58408) modernizing FACA regulations by updating definitions, improving reporting requirements, and incorporating contemporary practices for advisory committee operations and technology. To ensure consistency with these standards and continued compliance with FACA, the NRC is making conforming amendments throughout 10 CFR part 7. These revisions update terminology, clarify procedural expectations, and consolidate administrative requirements to reflect GSA's current regulatory framework. The amendments do not impose substantive requirements on NRC licensees or external stakeholders; instead, they improve the efficiency, transparency, and accountability of NRC advisory committee management.

Finally, the NRC is revising its personnel security regulations in 10 CFR part 10 to reflect Federal adjudicative standards established in the Office of the Director of National Intelligence's Security Executive Agent Directive 4 (SEAD 4). SEAD 4 sets forth uniform adjudicative guidelines for determining eligibility for access to classified information and sensitive national security positions across the executive branch. The NRC previously incorporated SEAD 4 into Management Directive 12.3, “Personnel Security,” and is now codifying these requirements to ensure alignment between internal policy and regulatory text. This codification enhances transparency and promotes consistent expectations for individuals requiring an access authorization or employment clearance.

Collectively, the actions in this rulemaking modernize NRC regulations, improve alignment with federal policies, and enhance administrative efficiency while maintaining transparency, public participation, and national security protections consistent with the NRC's statutory responsibilities.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883). The NRC requests comment on this proposed rule with respect to clarity and effectiveness of the language used.

This proposed rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

The following are Executive orders that are related to this proposed rule:

The Office of Information and Regulatory Affairs (OIRA) has determined that this proposed rule is not a significant regulatory action.

The NRC has examined this proposed rule and has determined that it is consistent with the policies and directives outlined in E.O. 14154.

This action is determined to be a deregulatory action as defined by E.O. 14192. Details on the estimated costs of this proposed rule can be found in Section VI, “Regulatory Analysis,” of the direct final rule document.

E.O. 14270 requires the NRC to insert a conditional sunset date into all new or amended NRC regulations provided the regulations are (1) promulgated under the Atomic Energy Act of 1954, as amended (AEA), the Energy Reorganization Act of 1974, as amended (ERA), or the Nuclear Waste Policy Act of 1982, as amended (NWPA); (2) not statutorily required; and (3) not part of the NRC's permitting regime. The NRC determined that the regulatory changes proposed in this rule are for processes that are required by statute and are part of the NRC's regulatory permitting scheme authorized by the AEA, ERA, or NWPA. Therefore, the NRC views this rulemaking to be outside the scope of E.O. 14270 and did not insert conditional sunset dates for the regulatory changes in this proposed rule.

The NRC has examined this direct final rule and has determined that it is consistent with the policies and directives outlined in E.O. 14300.

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

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2025-1139.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace extending upward from 700 feet above the surface at Graham Hospital Heliport, Canton, IL, to support IFR operations at this airport.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov as described in the system of records notice (DOT/ALL-14FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address, phone number, and hours of operation). An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

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

The FAA is proposing an amendment to 14 CFR part 71 that would establish Class E airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Graham Hospital Heliport, Canton, IL.

This action is the result of instrument procedures being developed for this airport to support IFR operations.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Order 2100.6B, “Policies and Procedures for Rulemakings” (March 10, 2025); and (3) is expected to result in, at most, de minimis costs from compliance with applicable operating requirements or minor flight rerouting for operators choosing to navigate around the controlled airspace. Since these proposed amendments are routine and the expected impact to operators is de minimis, the FAA certifies that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures” prior to any FAA final regulatory action.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edits, including any personal information the commenter provides, to www.regulation.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during regular business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA, 30337.

Class D and Class E airspace designations are published in paragraphs 5000, 6002, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11K, dated August 4, 2025, and effective September 15, 2025. These updates would be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11K, which lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points, is publicly available as listed in the ADDRESSES section of this document.

This action proposes to amend 14 CFR part 71 by modifying Class D and Class E airspace over Tri-Cities, TN. A review of the Tri-Cities, TN Class D and Class E airspace revealed a need for an increase to the lateral dimensions of the Class D, Class E2, and Class E5 airspace due to current IFR operations not being sufficiently contained, specifically for departures and the following instrument approach procedures (IAP): ILS/LOC RWY 5, RNAV (GPS) RWY 5, and RNAV (GPS) RWY 9. This action would increase the lateral dimensions of both the Tri-Cities, TN Class D and Class E2 airspace to within a 4.7-mile radius of Tri-Cities Airport, and within 1 mile each side of the 042° bearing from the airport, extending from the 4.7-mile radius to 5.3 miles northeast of the airport.

This action would also remove the Tri-Cities, TN Class E4 airspace, as it will no longer be necessary to contain IFR operations after the modification to the Class D airspace. This action would also increase the lateral dimensions of the Tri-Cities, TN Class E5 airspace to within a 9.3-mile radius of Tri-Cities Airport and within 4 miles west and 8 miles east of the 223° bearing from the airport extending from the 9.3-mile radius to 23 miles southwest of the airport, and within 2.1 miles each side of the 270° bearing from the airport extending from the 9.3-mile radius to 11 miles west of the airport, and within 2 miles either side of the 043° bearing from the airport extending from the 9.3-mile radius to 14.5 miles northeast of the airport.

This action would also update the superseded term “Airport/Facility Directory” to “Chart Supplement” in the associated airspace legal descriptions. This action would also change the verbiage in the Class D and Class E2 airspace legal descriptions from effective day(s) and time(s) to effective date(s) and time(s) to comply with current FAA guidance. This action would also update the reference to the Tri-Cities Airport in the associated airspace legal descriptions from “Tri-Cities Regional Airport, TN/VA” to “Tri-Cities Airport, TN.”

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Order 2100.6B, “Rulemaking and Guidance Procedure” (March 10, 2025); and (3) is expected to result in, at most, de minimis costs from compliance with applicable operating requirements or minor flight rerouting for operators choosing to navigate around the controlled airspace. Since these proposed amendments are routine and the expected impact to operators is de minimis, the FAA certifies that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1G, “FAA National Environmental Policy Act Implementing Procedures” prior to any FAA final regulatory action.

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

The Drug Enforcement Administration (DEA) proposes to transfer suvorexant ([(7 R )-4-(5-chloro-1,3-benzoxazol-2-yl)-7-methyl-1,4-diazepan-1-yl]-[5-methyl-2-(triazol-2-yl)phenyl]methanone), lemborexant ((1 R, 2 S )-2-[(2,4-dimethylpyrimidin-5-yl)oxymethyl]-2-(3-fluorophenyl)- N -(5-fluoropyridin-2-yl)cyclopropane-1-carboxamide), and daridorexant ([(2 S )-2-(5-chloro-4-methyl-1 H -benzimidazol-2-yl)-2-methylpyrrolidin-1-yl]-[5-methoxy-2-(triazol-2-yl)phenyl]methanone) from schedule IV to schedule V of the Controlled Substances Act (CSA).

All comments received in response to this docket are considered part of the public record. DEA will make comments available for public inspection online at https://www.regulations.gov, unless reasonable cause is given. Such information includes personal or business identifying information (such as name, address, State or Federal identifiers, etc.) voluntarily submitted by the commenter.

Commenters submitting comments which include personal identifying information (PII), confidential, or proprietary business information that the commenter does not want made publicly available should submit two copies of the comment. One copy must be marked “CONTAINS CONFIDENTIAL INFORMATION” and should clearly identify all PII or business information the commenter does not want to be made publicly available, including any supplemental materials. DEA will review this copy, including the claimed PII and confidential business information, in its consideration of comments. The second copy should be marked “TO BE PUBLICLY POSTED” and must have all claimed confidential or proprietary business information redacted. DEA will post only the redacted comment on https://www.regulations.gov for public inspection. DEA generally will not redact additional information contained in the comment marked “TO BE PUBLICLY POSTED.” The Freedom of Information Act applies to all comments received.

For easy reference, an electronic copy of this document and supplemental information to this proposed rule are available at https://www.regulations.gov for easy reference.

Pursuant to 21 U.S.C. 811(a), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act (APA). 1 Interested persons, as defined in 21 CFR 1300.01(b), may file requests for a hearing in conformity with the requirements of 21 CFR 1308.44(a) and 1316.47(a), and such requests must:

(1) state with particularity the interest of the person in the proceeding;

(2) state with particularity the objections or issues concerning which the person desires to be heard; and

(3) state briefly the position of the person regarding the objections or issues.

Any interested person may file a waiver of an opportunity for a hearing or to participate in a hearing in conformity with the requirements of 21 CFR 1308.44(c), together with a written statement of position on the matters of fact and law involved in any hearing. 2

All requests for a hearing and waivers of participation, together with a written statement of position on the matters of fact and law involved in such hearing, must be sent to DEA using the address information provided above. The decision whether a hearing will be needed to address such matters of fact and law in the rulemaking will be made by the Administrator. If a hearing is needed, DEA will publish a notice of hearing on the proposed rulemaking in the Federal Register . 3 Further, once the Administrator determines a hearing is needed to address such matters of fact and law in rulemaking, he will then designate an Administrative Law Judge (ALJ) to preside over the hearing. The ALJ's functions shall commence upon designation, as provided in 21 CFR 1316.52.

In accordance with 21 U.S.C. 811 and 812, the purpose of a hearing would be to determine whether suvorexant, lemborexant, and daridorexant meet the statutory criteria in 21 U.S.C. 812(b)(5) to transfer these substances from schedule IV to schedule V, as proposed in this rule.

The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General (delegated to the Administrator of DEA pursuant to 28 CFR 0.100) on his own motion, at the request of the Secretary of the Department of Health and Human Services (HHS), or on the petition of an interested party. 4 This proposed action was initiated by DEA, 5 and it is supported by, inter alia, a recommendation from the Assistant Secretary for Health (Assistant Secretary) of HHS and an evaluation of all relevant data by DEA. If finalized, this action would impose the regulatory controls and administrative, civil, and criminal sanctions applicable to schedule V controlled substances on any person who handles or proposes to handle suvorexant, lemborexant, or daridorexant.

Pursuant to 21 U.S.C. 811(a)(1) and (2), the Attorney General (as delegated to the Administrator of DEA) may, by rule, and upon the recommendation of the Secretary, add to such a schedule or transfer between such schedules any drug or other substance, if he finds that such drug or other substance has a potential for abuse, and makes with respect to such drug or other substance the findings prescribed by 21 U.S.C. 812(b) for the schedule in which such drug or other substance is to be placed.

Suvorexant, lemborexant, and daridorexant are active ingredients in drug products approved by the U.S. Food and Drug Administration (FDA) for the treatment of insomnia (Belsomra, Dayvigo, and Quviviq, respectively). Suvorexant, lemborexant, and daridorexant are orally active and belong to the dual orexin receptor antagonists (DORA) class of substances. All three substances inhibit orexin 1 (OX1) and orexin 2 (OX2) receptors. DEA placed these substances in schedule IV of the CSA based on HHS' evaluation and recommendations and concurrence by the National Institute of Drug Abuse (NIDA) asserting that the abuse liability studies in humans showed the DORAs produce reinforcing effects and have a potential for abuse that is similar to that of schedule IV substances, such as zolpidem. 6

In accordance with 21 U.S.C. 811(b), DEA gathered the necessary data and, on February 14, 2024, submitted it to the then-Assistant Secretary for Health of HHS with a request for scientific and medical evaluation and scheduling determination for the three DORAs.

On December 31, 2025, HHS provided DEA a scientific and medical evaluation entitled, “Basis for the recommendation that suvorexant, lemborexant, and daridorexant be controlled in schedule V under the Controlled Substances Act,” and a scheduling recommendation. Following consideration of the eight factors and findings related to the substances' abuse potential, legitimate medical use, and dependence liability, HHS recommended that suvorexant, lemborexant, and daridorexant be transferred from schedule IV to schedule V of the CSA under 21 U.S.C. 812(b).

In response, DEA reviewed the scientific and medical evaluation and scheduling recommendation provided by HHS, and all other relevant data, and completed its own eight-factor review document on suvorexant, lemborexant, and daridorexant pursuant to 21 U.S.C. 811(c). Included below is a brief summary of each factor as analyzed by HHS and DEA, and as considered by DEA in this proposal to transfer suvorexant, lemborexant, and daridorexant from schedule IV to schedule V of the CSA. Both DEA and HHS analyses are available in their entirety under “Supporting and Related Material” of the public docket for this rule at https://www.regulations.gov under docket number DEA-1645.

In addition to considering the information HHS provided in its scientific and medical evaluation document for suvorexant, lemborexant, and daridorexant, DEA also considered all other relevant data regarding actual or relative potential for abuse of suvorexant, lemborexant, and daridorexant. The term “abuse” is not defined in the CSA; however, the legislative history of the CSA suggests the following four prongs in determining whether a particular drug or substances has a potential for abuse:  7

As HHS noted in their scientific and medical evaluation, there have been reports of adverse effects associated with the use of suvorexant, lemborexant, and daridorexant since their respective approvals in various databases, such as America's Poison Centers National Poison Data System (NPDS), the FDA Adverse Event Reporting System (FAERS), and National Electronic Injury Surveillance System-Cooperative Adverse Drug Event Surveillance. Based on the available data, suvorexant had the most cases reported into NPDS and FEARS, 674 and 154, respectively. There were 217 cases that included lemborexant in NPDS and 15 in FAERS. As for daridorexant, the DORA with the least amount of marketed time, there have been 66 reports in NPDS and 35 in FAERS. Further, HHS identified 17 emergency department visits involving either suvorexant, lemborexant, or daridorexant.

FDA is not aware of any significant diversion from legitimate drug channels, including research activities or manufacturing facilities, for suvorexant, lemborexant, and daridorexant.

National Forensic Laboratory Information System (NFLIS-Drug) data reflects that suvorexant, lemborexant, and daridorexant are present on the United States drug market. From 2015 to December 2025, NFLIS-Drug registered 53, 1, and 1 report from 22 states pertaining to the trafficking, distribution, and potential abuse of suvorexant, lemborexant, and daridorexant, respectively. 8 These encounters of suvorexant, lemborexant, and daridorexant by law enforcement indicate that these substances are being trafficked and distributed in the United States. HHS also noted instances of individuals using their prescribed drug in ways not prescribed by their healthcare provider or using diverted prescription drugs on their own initiative.

As noted in the respective Final Rules for suvorexant, lemborexant, and daridorexant, 9 these substances are selective DORAs that are currently controlled in schedule IV of the CSA and are the only three substances with this exact mechanism of action. However, they do share characteristics with other controlled substances, such as zolpidem (schedule IV), a sedative-hypnotic drug. HHS noted that the traditional non-clinical abuse potential assessments showed limited or no signs of abuse potential of the DORAs as discussed further in Factors 2 and 7. However, data from human abuse potential (HAP) studies indicated similar subjective effects ( e.g., “Overall Drug Liking,” “Take Drug Again,” and `in the moment' ratings of “High and Good” and “Drug Liking”) to substances currently in schedule IV of the CSA, such as zolpidem, and other positive controls in clinical trials.

In HHS's scientific and medical evaluation, it was noted that the DORAs have low market penetration for medical use. This makes the available evidence on scope, duration, and abuse limited, and limits the availability for diversion, abuse, or misuse by prescribed patients. As such, HHS also compared the abuse potential of the DORAs to triazolam (schedule IV), a substance that is used to treat insomnia and has similar medical utilization. Triazolam had similar abuse and misuse cases compared to the DORAs.

Overall, these data demonstrate there are instances of abuse, misuse, overdose, and potential diversion of suvorexant, lemborexant, and daridorexant that is contrary to medical advice. These substances are capable of creating hazards to the health of the user or to the safety of the community ( see Factors 5 and 6). Taken together these factors suggest that abuse potential for the DORAs is more similar to other substances in schedule V.

The Notice of Proposed Rulemaking (NPRM) for suvorexant noted that the orexin signaling pathway was discovered in 1998 and has been associated with sleep and wakefulness, appetite, metabolism, stress response, reward/addiction, and analgesia. 10 Data regarding the pharmacological effects of the DORAs can be found in further detail in the NPRM or Interim Final Rule (IFR) for each of these substances and the scientific and medical evaluation conducted by HHS. 11 In brief, the drug sponsors submitted in vitro binding study reports for suvorexant and lemborexant and functional study reports for all three substances for review as part of the New Drug Application (NDA) process. All three substances bind to and are antagonists at the OX1 and OX2 receptors, as previously reported. Non-clinical in vivo studies of suvorexant, lemborexant, and daridorexant showed limited indication of abuse potential. However, in HAP studies conducted by the respective sponsors during drug development, suvorexant, lemborexant, and daridorexant produced positive subjective effects that are indicative of abuse potential and similar to schedule IV substances, such as zolpidem. As for adverse events (AEs), somnolence was the most frequent AE, which is consistent with their mechanism for treating insomnia. During the drug development clinical trials, abuse-related AEs were infrequent for these substances at therapeutic levels.

This document contains proposed additions to the Income Tax Regulations (26 CFR part 1) to implement sections 128 and 129 of the Internal Revenue Code (Code).

These proposed regulations are promulgated under section 7805(a) of the Code, which provides that “the Secretary  1 shall prescribe all needful rules and regulations for the enforcement of [the Code], including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.”

Section 70204 of Public Law 119-21, 139 Stat. 72 (July 4, 2025), commonly known as the One, Big, Beautiful Bill Act (OBBBA), added section 530A regarding Trump accounts to the Code. Section 70204 of the OBBBA also added section 128 to the Code providing an exclusion from gross income for employer contributions to the Trump account of an employee or of any dependent of an employee pursuant to a Trump account contribution program. The provisions apply to taxable years beginning after December 31, 2025.

A Trump account is a type of traditional individual retirement account (IRA) that is established for the exclusive benefit of an eligible individual and that is designated at its establishment as a Trump account. When a Trump account is opened, the eligible individual is the owner of the Trump account and is referred to as the account beneficiary.

A Trump account is subject to certain special rules inapplicable to other individual retirement arrangements under section 408. 2 The special rules apply only during the period that begins when the account beneficiary's initial Trump account is established and ends on December 31 of the calendar year in which the account beneficiary attains age 17 (growth period). The special rules that apply only during the growth period include rules regarding contributions, investments, distributions, and reporting. After the growth period, most of these special rules cease to apply and the rules under section 408(a) governing traditional IRAs generally apply.

Section 128(a) provides that an amount paid by an employer as a contribution to the Trump account of an employee or of any dependent of an employee pursuant to a Trump account contribution program is excludable from gross income of the employee. Section 128(b) provides that the amount excludable under section 128(a) with respect to any employee shall not exceed $2,500 (subject to inflation adjustments after 2027).

Section 128(c) provides that the term “Trump account contribution program” means a separate written plan of an employer for the exclusive benefit of its employees to provide contributions to the Trump accounts of such employees or dependents of such employees that meets requirements similar to the requirements of section 129(d)(2), (3), (6), (7), and (8).

Section 129  3 provides that amounts paid or incurred by an employer for dependent care assistance provided to an employee are excludable from the employee's gross income if the amounts are furnished pursuant to a dependent care assistance program. A dependent care assistance program is a separate written plan of an employer for the exclusive benefit of its employees that provides dependent care assistance and meets certain other requirements under the Code, including requirements relating to nondiscriminatory benefits, limits on principal shareholders' benefits, and information to be provided to eligible employees.

Dependent care assistance means the payment or provision of services that would be considered employment-related expenses under section 21(b)(2) (relating to expenses for household and dependent care services necessary for gainful employment) if paid for by the employee. Such employment-related expenses include expenses for the care of a qualifying individual. The term “qualifying individual” is defined as (i) a dependent of the taxpayer who has not attained age 13 or (ii) a dependent or spouse of the taxpayer who is physically or mentally incapable of caring for himself or herself and who has the same principal place of abode as the taxpayer for more than one-half of the taxable year. The amount that may be excluded annually from an employee's gross income under a dependent care assistance program is limited to $7,500 ($3,750 in the case of a married individual filing a separate return).

A dependent care assistance program must satisfy four nondiscrimination rules: (1) the contributions and benefits rule in section 129(d)(2), (2) the eligibility rule in section 129(d)(3), (3) the owner concentration rule in section 129(d)(4), and (4) the average benefits rule in section 129(d)(8). The contributions and benefits rule is satisfied if the contributions and benefits provided under the plan do not discriminate in favor of highly compensated employees (HCEs) within the meaning of section 414(q). The eligibility rule is satisfied if a plan must benefit employees who qualify under a classification set up by the employer and found by the Secretary not to be discriminatory in favor of HCEs or their dependents. The owner concentration rule is satisfied if no more than 25 percent of the amounts paid or incurred by the employer for dependent care assistance during the year are provided for the class of individuals who are shareholders or owners (or their spouses or dependents), each of whom (on any day of the year) owns more than 5 percent of the stock or of the capital or profits interest in the employer. The requirements of the average benefits rule are satisfied if the average benefits provided to employees who are not HCEs under all plans of the employer is at least 55 percent of the average benefits provided to the HCEs under all plans of the employer. A special rule applies with respect to benefits provided through a salary reduction agreement that allows the plan to disregard employees whose compensation is less than $25,000.

In applying the eligibility test and the average benefits test, employees are excluded if they have not attained age 21 and completed one year of service; or if they were not included in a dependent care assistance program and were included in a unit of employees covered by a collective bargaining agreement under which dependent care benefits were the subject of good faith bargaining.

If a dependent care assistance program fails the nondiscrimination rules, the benefits are not excludable from income by HCEs, but the benefits are excludable from income by employees who are not HCEs.

Notice 2025-68, 2025-52 IRB 856, informed taxpayers that the Treasury Department and the IRS intend to propose regulations providing guidance with respect to Trump accounts. The notice described guidance expected to be included in the proposed regulations in the form of answers to specific questions, including questions about employer contributions under a Trump account contribution program.

Notice 2025-68, Q&A I-1 states that section 128 permits an employee to exclude up to $2,500 per calendar year, indexed for inflation after 2027, for employer contributions made under a Trump account contribution program. This limit is applied per employee rather than per dependent, so an employee with multiple children still has only one aggregate $2,500 exclusion. Q&A I-2 of Notice 2025-68 states that when an employer makes a section 128 contribution to a Trump account, it must affirmatively identify the payment to the trustee of the Trump account as a section 128 contribution that is excludable from the employee's income, and the trustee may rely on that employer-provided information unless it has contrary knowledge. 4 Finally, Q&A I-3 of Notice 2025-68 states that a Trump account contribution program may be offered through salary reduction under a section 125 cafeteria plan only when the contribution is made to the Trump account of the employee's dependent, not to the employee's own Trump account.

Notice 2025-68 included a request for comments. These proposed regulations under sections 128 and 129 are informed by the comments received in response to the notice. The issues raised in the comments are discussed in the Explanation of Provisions in Part III of this preamble.

Proposed § 1.128-1(h) would define a section 128 contribution as an amount paid by an employer to a Trump account under a Trump account contribution program.

Proposed § 1.128-1(j) would define the term Trump account contribution program to mean a program governed by a separate written plan of an employer for the exclusive benefit of its employees to provide contributions to the Trump accounts of the employees or their dependents that meets the requirements of proposed § 1.128-2(b) through (h), including following the terms of the written plan, satisfying the nondiscrimination requirements (see Part III.B. of this preamble), and providing various notices and certifications. For these purposes, the term Trump account has the meaning set forth in section 530A(b)(1). Generally, an arrangement that fails to satisfy a requirement for a Trump account contribution program would not be a Trump account contribution program and, for this reason, contributions to Trump accounts under such an arrangement would not be excludable from employee income under section 128. However, with respect to the nondiscrimination requirements at proposed § 1.128-3, a failure to satisfy the rules would cause the arrangement to fail to be a Trump account contribution program only with respect to HCEs.

Proposed § 1.128-2(b) would provide that a Trump account contribution program must be set forth in a separate written plan. The written plan must specify—(i) the classes of employees eligible to participate; (ii) the rules governing employer contributions, including the amount of contributions and whether contributions may be made via a section 125 cafeteria plan salary reduction arrangement; (iii) the procedures under which an employee must designate the Trump account of the employee or of a dependent of the employee to receive contributions; (iv) the certification, notice, and reporting procedures required under proposed § 1.128-2(d), (f) and (g); (v) the plan year; and (vi) the procedures for correcting administrative failures and for furnishing notices to employees and trustees when amounts previously designated as section 128 contributions are subsequently determined not to be excludable from an employee's gross income under section 128(a). Proposed § 1.128-2(c) would provide that an arrangement is a Trump account contribution program only if the employer follows the terms of the written plan.

Under section 128(c), a Trump account contribution program must meet requirements similar to the requirements of section 129(d)(6), which requires reasonable notification of the availability and terms of the program to be provided to eligible employees. Accordingly, proposed § 1.128-2(f) would provide that all eligible employees must be given reasonable notification of the availability and terms of the Trump account contribution program. This rule is intended to ensure that employees who are eligible to participate are adequately informed by the employer about the existence of the program and the terms governing participation. Providing reasonable notification is also relevant to the operation of the eligibility rules, because employees cannot have a meaningful opportunity to receive benefits under the program unless they are informed by the employer that the program is available and understand its basic terms. Proposed § 1.128-2(f) does not prescribe content requirements or a particular method of furnishing the notice.

Under section 128(c), a Trump account contribution program must meet requirements similar to the requirements of section 129(d)(7), which requires a plan to furnish to an employee, on or before January 31, a written statement showing the amounts paid or expenses incurred by the employer in providing dependent care assistance to the employee during the previous calendar year. Accordingly, proposed § 1.128-2(g) would provide that a written statement showing the amount of section 128 contributions made for an employee during the previous calendar year under the employer's Trump account contribution program must be furnished to that employee. This requirement may be satisfied by including the amount of Trump account contributions on the employee's Form W-2, Wage and Tax Statement, in the manner specified in the form's instructions for reporting section 128 contributions. The 2026 General Instructions for Forms W-2 and W-3 provide that the employer must report the amount of section 128 contributions made to the Trump account of an employee or dependent of an employee in box 12 of the Form W-2 with code TA.

Proposed § 1.128-2(d)(1) would provide that a Trump account contribution program may make contributions only to a Trump account whose account beneficiary is in his or her growth period, and is an employee or an employee's dependent. Proposed § 1.128-2(d)(2) would provide that the aggregate amount contributed with respect to any employee under a Trump account contribution program may not exceed the permitted annual limit specified in proposed § 1.128-2(d)(5). Proposed § 1.128-2(d)(3) would provide that contributions that are not permitted under proposed § 1.128-2(d)(1) or (d)(2) are not made pursuant to a Trump account contribution program and thus are not excludable from income under proposed § 1.128-2(a).

Proposed § 1.128-2(d)(4) would allow, but not require, an employer to rely on certain employee certifications. The employee certification must be in writing, in paper or electronic form, and must include the following representations: (i) the account beneficiary is the employee or anticipated to be the dependent of the employee for that employee's taxable year during which the contribution is made; (ii) the beneficiary's date of birth, which would allow the employer to determine whether the beneficiary is in his or her growth period for the calendar year in which the contribution is made; and (iii) no facts are known to the employee that would make the account beneficiary ineligible to receive a contribution to his or her Trump account for that calendar year. The employer may rely on this certification unless the employer has actual knowledge that the certification is incorrect.

Proposed § 1.128-2(d)(4) would further provide that an employer may not rely solely on an employee certification to establish that the recipient account is a valid Trump account. The employer must use a method reasonably designed to verify, through information provided by the trustee, payroll processor, or other service provider, that the contribution is made to a valid Trump account. For example, the method may be that the employee provides the employer with a unique identifying number that corresponds to a particular Trump account, which the employer (or service provider) could then use to verify that the account to which the contribution will be transferred is a valid Trump account. The Treasury Department and the IRS are exploring ways in which this information can be validated in a secure, electronic way.

Proposed § 1.128-2(h) would prescribe rules regarding employer communications with a Trump account trustee to which the employer is making contributions. Proposed § 1.128-2(h)(1) would require an employer at the time it makes a contribution to a trustee to advise the trustee that the amount is a section 128 contribution.

If the employer subsequently determines a section 128 contribution not to be a section 128 contribution, in whole or in part, proposed § 1.128-2(h)(4) would require an employer to so notify the trustee and provide the trustee with the affected Trump account information, the calendar year in which the contribution was made, and the amount determined not to be a section 128 contribution. The employer must provide this notice within a reasonable period of time following the date the employer determines that an amount is not a section 128 contribution. Proposed § 1.128-2(h)(4) would deem 21 calendar days after the determination to be a reasonable period of time as a safe harbor.

The Treasury Department and the IRS request comments on whether any additional information is needed for this corrective notice requirement.

Proposed § 1.128-2(h)(2) would require an employer to adopt procedures to ensure that section 128 contributions are properly identified and to notify the trustee when a contribution is a section 128 contribution and when a contribution previously identified as a section 128 contribution is not a section 128 contribution. Proposed § 1.128-2(h)(3) would allow a Trump account trustee to rely on an employer's notice that an amount is a section 128 contribution until such time that the trustee receives a corrective notice or has contrary knowledge.

The Treasury Department and the IRS propose this rule to ensure that contributions intended to qualify as section 128 contributions are specifically identified as section 128 contributions when made and are corrected as necessary, so that the trustee may properly administer the contribution under the applicable rules governing Trump accounts, including properly accounting for whether the account beneficiary has basis in such contributions. The Treasury Department and the IRS recognize that the corrective notice requirement may be operationally challenging. For this reason, comments are requested on what elements in particular will be difficult to effectuate, and alternative ways to ensure that basis in Trump accounts may be properly accounted for where section 128 contributions are recharacterized. For example, the Treasury Department and the IRS ask commenters to consider whether it would be viable for the employer to furnish a notice to the affected employee that could be submitted to, and relied upon by, the trustee of the affected account.

Comments received in response to Notice 2025-68 requested guidance on whether an employer may limit the number of trustees of Trump accounts to whom they will send contributions under a Trump account contribution program. Some commenters explained that allowing such limitations could minimize employer burden associated with directing contributions to multiple trustees as Trump accounts are established or rolled over.

Proposed § 1.128-2(d)(6) would provide that an arrangement is not a Trump account contribution program if an employer limits contributions to Trump accounts held by a particular trustee or trustees. Allowing for a Trump account contribution program to restrict the trustee or trustees would frustrate the purposes of section 128 and section 530A because, unlike analogous circumstances involving health savings accounts, only one Trump account may exist for a particular beneficiary. If the employer were permitted to select the trustees into which a section 128 contribution would be made, an employee whose dependent has a Trump account with a different trustee would be precluded from receiving contributions to the dependent's Trump account. In addition, in the case of parents working for different employers, each of whom limits section 128 contributions to particular, but different trustees, at least one parent would be precluded from receiving tax-favored employer contributions to the dependent's Trump account. Section 530A(b)(1)(A)(i), which contemplates the Treasury Department's role in organizing initial Trump accounts, supports the need for a rule that addresses systemic account structure problems that arise because only one Trump account may exist for a beneficiary. Trump accounts are a distinct statutory arrangement, not merely ordinary IRAs by another name, and the Treasury Department's general rulemaking authority under section 7805 supports issuance of administrable rules implementing sections 128 and 530A where the statute leaves operational gaps. Accordingly, the proposed regulations would provide that a Trump account contribution program may not restrict contributions to a particular trustee or trustees.

Consistent with Notice 2025-68, proposed § 1.128-2(d)(7) would provide that a Trump account contribution program may allow an employee to make a contribution via salary reduction under a section 125 cafeteria plan if the contribution is made to the Trump account of the employee's dependent but not if the contribution is made to the Trump account of the employee. Although a Trump account contribution program would be a qualified benefit under section 125(f)(1), a contribution under the Trump account contribution program to a Trump account of the employee would provide deferred compensation that is prohibited under section 125(d)(2)(A), because the employee would have a vested right to compensation that may be payable to that individual in a later year. In contrast, in the case of a contribution to the Trump account of a dependent, the employee cedes dominion and control over the contributed amount after the contribution is made, retaining no future right to receive or assign later distributions from the account. In the case of a contribution to the account of a dependent, the amount is not a deferral of a right to compensation because there is no such future right.

Comments received in response to Notice 2025-68 that addressed salary reduction through a section 125 cafeteria plan generally described it as an important feature because it would let employees make pre-tax contributions to a dependent's Trump account, something they otherwise could not do. Several commenters treated this as a potentially meaningful path to employer adoption. One commenter asked for clarification regarding whether the elections would be required before the start of the program year or if employees could change or revoke their elections mid-year.

Proposed § 1.128-2(d)(7) would provide that a section 125 cafeteria plan may permit employees to make prospective salary reduction elections, or to change or revoke those elections, at any time during the plan year, provided the election change is effective before the salary becomes currently available. Proposed § 1.128-2(d)(7) would also require that the section 125 cafeteria plan specifically describe the Trump account program contribution benefit and permit participants to prospectively change or revoke elections at least monthly before salary becomes currently available. The Treasury Department and the IRS propose these regulations to facilitate administration of section 128 contributions through section 125 cafeteria plans while ensuring that any election to reduce salary remains prospective in operation. The Treasury Department and the IRS intend to amend Treas. Reg. § 1.125-4 to incorporate these proposed rules concerning election changes with respect to salary reduction for section 128 contributions.

Proposed § 1.128-2(d)(5) would provide that, with respect to any employee, the total contributions under a Trump account contribution program for a calendar year may not exceed the lesser of the amount specified in section 128(b), as adjusted for inflation under section 128(b)(2), or the amount specified in the terms of the program's written plan.

An individual employee may not exclude employer contributions under section 128 for that individual's taxable year to the extent the aggregate amount of such contributions from all employers exceeds the annual limitation under section 128(b). Specifically, proposed § 1.128-2(d)(5) would provide that the amount which may be excluded by an individual with respect to all Trump account contribution programs for that individual's taxable year may not exceed the amount specified in section 128(b), which is $2,500 for 2026 and 2027 and is adjusted for taxable years after 2027 as provided in section 128(b)(2). An employee's receipt of excess contributions due to participation in Trump account contribution programs sponsored by more than one employer will not cause those programs to fail to be Trump account contribution programs, provided that each program prohibits the payment of contributions under that plan with respect to an employee in excess of the annual limitation.

Several comments received in response to Notice 2025-68 requested that the Treasury Department and the IRS clarify how the annual limit for employer contributions applies in certain scenarios where multiple employers might make contributions to the same Trump account or an employee has multiple children who could receive contributions to their Trump accounts under an employer's Trump account contribution program. In response to these comments, proposed § 1.128-2(d)(5)(ii) would clarify that the annual limit applies with respect to each employee so that if an employee has more than one employer in a year, the maximum that an employee can receive from all employers is the amount specified in section 128(b). Further, as to employment for a single employer, the limit applies to the employee rather than on a dependent-by-dependent basis. If an employee has more than one dependent with a Trump account, a program may permit the contribution to be allocated among those accounts, provided that the aggregate amount an employer contributes with respect to the employee for the calendar year does not exceed the annual limit. The proposed regulations provide examples clarifying the application of these rules.

A number of major employers have announced their intention to match the government's $1,000 contributions pursuant to the section 6434 Trump accounts contribution pilot program for eligible children born in the years 2025 through 2028. Provided that the arrangement otherwise qualifies as a Trump account contribution program under section 128, these employer contributions would be excludable from employee gross income. Like other section 128 contributions, the match contributions would count toward the program's limit under proposed § 1.128-2(d)(5) and toward the individual employee's aggregate limit under section 128(b) for the taxable year. See Part B.7 of this Explanation of Provisions for a safe harbor for such match contributions under the otherwise applicable nondiscrimination rules that would apply under proposed § 1.128-3.

Proposed § 1.128-2(d)(5)(v) would provide that an employer has no obligation with respect to compliance with the section 530A(c)(2) limit. The Treasury Department and the IRS intend to provide in a separate notice of proposed rulemaking addressing contributions to a Trump account that, to the extent that section 128 contributions and other source contributions (such as from the parent, child, relative, etc. but not including pilot program contributions, qualified general contributions, or qualified rollover contributions) are made to a Trump account and exceed the section 530A(c)(2) annual limit, excess contributions will be considered first to be attributable to the other source contributions before being attributable to section 128 contributions. The Treasury Department and the IRS request comments on specific circumstances in which the section 128 contributions in addition to other contributions to a Trump account may exceed the applicable limit under section 530A and how such situations can best be addressed.

The Treasury Department and the IRS note that an employer may make contributions to a Trump account that are not section 128 contributions because, for example, the contribution exceeds the annual limit for contributions that are excludable from gross income under a Trump account contribution program. Pursuant to section 219(f)(5), amounts paid by an employer on behalf of an employee to a Trump account that are not made under a Trump account contribution program, including by reason of exceeding the annual limit, are not excludable from income by virtue of section 128, and absent some other basis for exclusion, are payments of compensation to the employee that are includible in his or her gross income and wages in the taxable year for which the amounts were contributed and are subject to applicable employment tax reporting and withholding. For example, if an employer contributes an additional amount outside of the Trump account contribution program to a Trump account, it must treat that amount as gross income and wages to the employee rather than as a section 128 contribution. Proposed § 1.128-2(d)(5)(vi)(E) ( Example 5 ) illustrates this rule.

For an amount to be excludable from gross income under section 128, it must be contributed by an employer to the Trump account of an employee or an employee's dependent. One comment received in response to Notice 2025-68 asked Treasury and the IRS to address whether section 128 contributions may be made for an “owner-employee,” specifically in the case of partners in a partnership and S corporation shareholders.

To address this comment proposed § 1.128-1(b) would provide that the term employee means an individual who is an employee under the common-law standard described in § 31.3401(c)-1. Therefore, the term employee does not include a self-employed individual within the meaning of section 401(c)(1), such as a partner in a partnership, a sole proprietor, a director solely by reason of service as a director, or a 2-percent shareholder of an S corporation within the meaning of section 1372(b). A self-employed individual is not disqualified from maintaining a Trump account contribution program covering employees of the self-employed individual's trade or business, but the self-employed individual would not be eligible to participate in the program.

This definition is narrower than the definition of employee in section 129 and is based on differences in the statutory structures of the two provisions. Section 128 does not define the term “employee.” Accordingly, in the absence of a contrary statutory indication, that term is interpreted under common-law principles. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24 (1992). Section 129 similarly does not provide a general definition of employee and thus would also rely on common law principles. In contrast to section 128, however, section 129(e)(3) states the term employee includes “an individual who is an employee within the meaning of section 401(c)(1) (relating to self-employed individuals).” Section 129(e)(3) is not among the paragraphs of section 129 that are incorporated into section 128. Moreover, section 128 does incorporate three of the four nondiscrimination provisions of section 129(d), omitting only section 129(d)(4), which tests owner concentration, a rule that is generally unnecessary when self-employed individuals, including owners in that capacity, are not eligible for the benefit. Accordingly, the statutory structure indicates that self-employed individuals were intentionally excluded from section 128.

Likewise, consistent with the proposed definition of employee, proposed § 1.128-1(c) would define employer by reference to the common-law standard. The proposed regulations would further provide that all persons treated as a single employer under section 414(b), (c), (m), or (o) are treated as a single employer for purposes of section 128. Although these rules are not referenced expressly in section 128, they are implicitly incorporated into section 128 because the section 129 rules referenced in section 128(c) are subject to them by virtue of section 414(t). As a result, in adopting rules similar to the referenced section 129 rules, as section 128(c) directs, it is appropriate to incorporate the same aggregation rules. Accordingly, the proposed regulations would treat related entities that are members of a controlled group of corporations, trades or businesses under common control, or an affiliated service group, or that otherwise are required to be aggregated under section 414(o), as one employer in applying section 128(c). The rules are intended to function under section 128 in the same manner as they would under section 129, including the application of special rules for separate lines of business under section 414(r).

Proposed § 1.128-1(a) would define dependent for purposes of section 128 by cross-reference to the definition of dependent in section 152. 5 Consequently, in the case of divorced or separated parents, or married taxpayers filing separately, a child cannot qualify as a dependent of both parents and only one of the parents can claim the child as a dependent. See section 152(c)(4) and (e). In the case of a married couple filing jointly, a child may qualify as a dependent of both parents for purposes of the exclusion under section 128.

Proposed § 1.128-2(a) would provide that gross income of an employee does not include an amount paid by the employer as a contribution to the Trump account of the employee or of any dependent of the employee pursuant to a Trump account contribution program. Such a contribution may be made via salary reduction, as explained in Part A.2 of this Explanation of Provisions. 6 Amounts contributed by an employer in excess of the section 128 exclusion, or otherwise not meeting the requirements for exclusion under section 128, would not be excludable from the employee's gross income under section 128.

Several comments received in response to Notice 2025-68 asked for clarification regarding whether employer contributions under a Trump account contribution program are wages subject to the Federal Insurance Contributions Act (FICA), Railroad Retirement Tax Act (RRTA), and Federal Unemployment Tax Act (FUTA), as well as Federal income tax withholding requirements. Although section 128 excludes certain employer contributions from an employee's gross income for Federal income tax purposes, that exclusion does not extend to amounts that are taxed as wages under subtitle C of the Code. Thus, employer contributions that are excludable from gross income under section 128 have no corresponding exclusion from the definitions of wages under section 3121 (FICA) and section 3306 (FUTA), or compensation under section 3231 (RRTA), and are treated as wages or compensation for these purposes unless some other exclusion applies. Although there is also no express exclusion from the definition of wages under section 3401 for section 128 contributions, Federal income tax withholding generally is intended to be commensurate with an employee's income tax liability. Therefore, section 128 contributions that are excludable from an employee's income will not be treated as subject to Federal income tax withholding. See, e.g., Notice 2001-14, 2001-6 IRB 516.

As discussed previously, section 128 provides that Trump account contribution programs must, among other things, satisfy “requirements similar to the requirements” of certain of the nondiscrimination rules under section 129. In general, the nondiscrimination rules under proposed §§ 1.128-3 and 1.129-2 are identical. However, these proposed regulations would differ with respect to the nondiscrimination rules in situations in which modifications would better effectuate the purposes of section 128.

Proposed § 1.129-1 would provide certain definitions related to dependent care assistance programs. Proposed §§ 1.128-3 and 1.129-2 would clarify the application of the nondiscrimination rules to Trump account contribution programs and dependent care assistance programs, respectively.

Comments received in response to Notice 2025-68 expressed support for comprehensive section 129 guidance that provides clear and administrable rules. Some commenters requested that safe harbors or other interim relief be provided in order to ensure that uncertainty does not discourage employers from implementing Trump account contribution programs. Commenters also raised unresolved questions about the definition of an HCE, what it means for “benefits or contributions” not to discriminate in favor of HCEs, and how the section 129(d)(3) classification test should work. They also emphasized that the 55-percent average benefits test under section 129(d)(8) has been the subject of confusion for many years and has been challenging for taxpayers to apply. Commenters also requested that the Treasury Department and the IRS provide guidance on opportunities for remediation and self-correction of contributions that would otherwise cause a nondiscrimination failure.

For purposes of both sections 128 and 129, HCE is defined by cross-reference to section 414(q). Proposed §§ 1.128-1(f) and 1.129-1(a)(7) would define non-highly compensated employee (NHCE) to mean an employee who is not an HCE. These definitions would provide the basic employee groupings used throughout the proposed nondiscrimination rules under both sections 128 and 129. The Treasury Department and the IRS propose these regulations to provide an administrable framework for applying the statutory requirement that eligibility classifications not discriminate in favor of HCEs, while aligning the analysis under sections 128 and 129 with established nondiscrimination principles used in other employee benefit contexts.

Proposed §§ 1.128-3(a) and 1.129-2(a) would provide parallel rules requiring that contributions and benefits provided under the Trump account contribution program and dependent care assistance plan, respectively, must not discriminate in favor of HCEs or their dependents. These proposed regulations would implement section 129(d)(2) (applied to Trump account contributions via section 128(c)) through qualitative rules governing the terms on which contributions are made available under the program. More specifically, proposed §§ 1.128-3(a) and 1.129-2(a) would provide that a Trump account contribution program or dependent care assistance program does not satisfy the nondiscrimination rule for contributions and benefits if the program provides more favorable terms for HCEs than for other employees. These proposed regulations would further provide that a program satisfies this requirement if it is designed to provide contributions and benefits on the same terms for all employees who are eligible to participate, even if eligible employees receive different amounts of contributions and benefits as a result of differing elections or differing utilization of the contributions and benefits.

Proposed §§ 1.128-3(b) and 1.129-2(b) would address the requirement in sections 128(c) and 129(d)(3), respectively, that the program benefit employees who qualify under a classification established by the employer and found by the Secretary not to be discriminatory in favor of HCEs or their dependents. Proposed §§ 1.128-3(b) and 1.129-2(b) would interpret these provisions as requiring both that the employer's eligibility classification be reasonable and that the classification be nondiscriminatory in operation.

Accordingly, proposed §§ 1.128-3(b)(2) and 1.129-2(b)(2) would provide that an eligibility classification must be, based on all facts and circumstances, reasonable and established under objective business criteria that identify the category of employees who are eligible under the program. Proposed §§ 1.128-3(b)(2) and 1.129-2(b)(2) would clarify that reasonable classifications generally include specified job categories, nature of compensation (salaried or hourly), geographic location, and similar bona fide business criteria, but that an enumeration of employees by name, or by criteria having substantially the same effect, is not a reasonable classification. This is the same standard that is applied under § 1.410(b)-4(b).

Proposed §§ 1.128-3(b)(3) and 1.129-2(b)(3) would further provide rules for determining whether an employer's eligibility classification is nondiscriminatory. Under the proposed regulations, a classification would be nondiscriminatory for a plan year only if the group of employees eligible under the program satisfies either a facts-and-circumstances test or a numerical safe harbor, both of which are similar to the nondiscriminatory classification test for qualified plans described in § 1.410(b)-4.

Proposed §§ 1.128-3(b)(3)(ii) and 1.129-2(b)(3)(ii) would provide a facts-and-circumstances test for determining whether an employer's eligibility classification is nondiscriminatory. Under proposed §§ 1.128-3(b)(3) and 1.129-2(b)(3), a classification would satisfy the eligibility requirement if and only if, based on all the relevant facts and circumstances, the Secretary finds that the classification is nondiscriminatory. Proposed §§ 1.128-3(b)(3)(ii) and 1.129-2(b)(3)(ii) would clarify that no one factor is determinative and would identify relevant considerations including the underlying business reason for the classification, the percentage of the employer's employees who are eligible under the plan, whether the eligible employees under the plan are representative of the employer's workforce across salary ranges, and the extent to which the plan's ratio percentage differs from the employer's safe harbor percentage (as described in the following paragraph). In general, the greater the business justification for the classification, the broader the coverage under the plan, the more representative the classification is across salary ranges, and the smaller the difference between the plan's ratio percentage and the employer's safe harbor percentage, the more likely the classification is to be nondiscriminatory. The Treasury Department and the IRS propose these regulations to provide a flexible but administrable standard for evaluating classifications that do not satisfy the numerical safe harbor while ensuring that the classification does not discriminate in favor of HCEs or their dependents.

Proposed §§ 1.128-3(b)(3)(iii) and 1.129-2(b)(3)(iii) would provide a safe harbor under which the classification would be treated as nondiscriminatory if the plan's ratio percentage is greater than or equal to the safe harbor percentage of the employer. Proposed §§ 1.128-3(b)(3)(iii) and 1.129-2(b)(3)(iii) would define the plan's ratio percentage by comparing the percentage of NHCEs who are eligible under the program to the percentage of HCEs who are eligible under the program. The proposed regulations would define the safe harbor percentage of an employer as 90 percent, reduced by 3/4 of a percentage point for each whole percentage point by which the NHCE concentration percentage exceeds 60 percent. The NHCE concentration percentage is the percentage of all the employer's employees who are NHCEs. Under this approach, a classification that satisfies the safe harbor is treated as nondiscriminatory without the need to establish, based on all the relevant facts and circumstances, that the classification is nondiscriminatory. The Treasury Department and the IRS propose this safe harbor to provide employers with certainty and to align the testing of eligibility classifications with established nondiscrimination concepts used in other employee benefit contexts. See, e.g., § 1.410(b)-4(c)(2) (safe harbor for nondiscriminatory classification test under section 410(b)).

As discussed in Part B.6 of this Explanation of Provisions, excluded employees are not taken into account under the eligibility rules in proposed §§ 1.128-3(b) and 1.129-2(b).

Proposed § 1.129-2(c) would provide rules for applying the owner concentration limitation in section 129(d)(4). Under that statutory rule, not more than 25 percent of the amounts paid or incurred by the employer for dependent care assistance during the year may be provided for the class of individuals who are shareholders or owners (or their spouses or dependents) each of whom owns more than 5 percent of the stock or of the capital or profits interest in the employer on any day of the year. Proposed § 1.129-2(c) would restate this statutory requirement, which imposes a separate limitation based on ownership rather than compensation. No similar owner concentration limitation applies under section 128, and accordingly the proposed regulations under section 128 do not include a corresponding rule. However, as discussed in Part A of this Explanation of Provisions, the income exclusion under section 128 is not available to self-employed individuals. Accordingly, self-employed individuals in their capacity as such may not participate in a section 128 Trump account contribution program.

Proposed §§ 1.128-3(c) and 1.129-2(d) would provide rules for applying the average benefits test under sections 128(c) and 129(d)(8), respectively. A program satisfies this statutory test if the average benefits provided to NHCEs under all Trump account contribution programs and dependent care assistance programs of the employer, respectively, are at least 55 percent of the average benefits provided to HCEs.

Proposed §§ 1.128-3(c) and 1.129-2(d) would provide a framework for applying this test. In general, the average contributions and benefits provided to a group of HCEs or NHCEs under all Trump account contribution programs or dependent care assistance programs of the employer, respectively, for a plan year would equal the total dollar amount of such contributions and benefits provided during the plan year to employees in that group, divided by the number of employees in that group to whom such contributions and benefits in a dollar amount greater than zero are provided during the plan year, via salary reduction or otherwise. Proposed §§ 1.128-3(c) and 1.129-2(d) would further clarify that, solely for purposes of this calculation, an employee is taken into account in the denominator only if the employee is provided contributions and benefits under a Trump account contribution program or a dependent care assistance program of the employer, respectively, in an amount greater than zero during the plan year, and that these rules apply only for purposes of determining compliance with the average benefits test. Proposed §§ 1.128-3(c) and 1.129-2(d) would also reflect the statutory rule permitting a program, in the case of contributions and benefits provided through a salary reduction agreement, to disregard employees whose compensation is less than $25,000. Additionally, as discussed in Part B.6 of this Explanation of Provisions, excluded employees are not taken into account in the average benefits test.

Proposed §§ 1.128-3(c)(3) and 1.129-2(d)(3) would provide parallel timing rules for applying the average benefits test. Under proposed §§ 1.128-3(c)(3) and 1.129-2(d)(3), compliance with the average benefits test is determined as of the last day of the plan year, taking into account any individual employed on any day of the plan year who is not an excluded employee and who was provided section 128 contributions or dependent care assistance program benefits, as applicable, via salary reduction or otherwise, on any day during the plan year. The Treasury Department and the IRS are proposing these rules to provide a uniform testing date and to ensure that the test takes into account all relevant employees, rather than only employees employed or participating at a particular time during the plan year. The Treasury Department and the IRS request comments on whether any additional information would be helpful in applying the average benefits test.

Proposed §§ 1.128-3(e) and 1.129-2(f) would provide rules identifying employees who are excluded from consideration for purposes of applying specified nondiscrimination requirements. Consistent with section 129(d)(9), 7 proposed §§ 1.128-3(e) and 1.129-2(f) would provide that, for purposes of the eligibility and average benefits tests, an employer shall exclude employees who have not attained age 21 and completed one year of service, subject to rules similar to the rules of section 410(b)(4). An employer shall also exclude employees not included in the Trump account contribution program or the dependent care assistance program who were covered by a collective bargaining agreement if there is evidence that the relevant benefits were the subject of good faith bargaining between employee representatives and the employer or employers.

The Treasury Department and the IRS are proposing these rules to reflect the statutory exclusions from nondiscrimination testing and to clarify the circumstances in which those employees are disregarded in applying the eligibility and average benefits rules. Proposed §§ 1.128-3(e) and 1.129-2(f) are generally parallel in this respect.

Employers have expressed concern that their announced intentions to match payments made to Trump accounts of dependents of employees pursuant to the section 6434 Trump accounts contribution pilot program available to account beneficiaries born in calendar years 2025 through 2028 may cause a plan to fail applicable nondiscrimination requirements. To address these concerns, proposed § 1.128-3(d) would provide a safe harbor disregarding these contributions for purposes of the contribution and benefits requirement of proposed § 1.128-3(a), and the average benefits percentage requirement of proposed § 1.128-3(c). The safe harbor does not apply for purposes of proposed § 1.128-3(b).

To be eligible for the safe harbor, an employer must make contributions under a pilot match contribution arrangement designed to provide contributions on behalf of employees with dependents who are eligible to receive section 6434 pilot program contributions to their Trump accounts. These contributions must be made available on the same terms and conditions to all employees who are not excluded employees. An arrangement will not fail to be a pilot match contribution arrangement because the employer adopts reasonable measures to establish eligibility. Thus, for example, an employer might determine eligibility based on the age of a dependent or might alternatively base eligibility on validation of receipt of the pilot program contribution into an employee's dependent's Trump account. In either case, the arrangement uses a reasonable measure to determine eligibility.

If an employer makes pilot match contributions and also makes other section 128 contributions, via salary reduction or otherwise, the other contributions must separately satisfy the contribution and benefits requirement and the average benefits percentage requirement. In determining whether these requirements are separately satisfied, the employer may, but is not required to, disregard the pilot match contributions.

Proposed §§ 1.128-3(c)(5) and (g) and 1.129-2(h) and (j) would provide rules addressing the effect of a failure to satisfy the nondiscrimination requirements and the circumstances in which a program may take remedial action. In general, these proposed rules would provide that, if a program would qualify as a Trump account contribution program or dependent care assistance program but for a failure to satisfy one or more of the applicable nondiscrimination requirements, the program would continue to be treated as satisfying those requirements with respect to employees who are NHCEs.

The proposed rules would also provide a remedial rule for failures of the average benefits test and, in the case of dependent care assistance programs, the owner concentration test. Under proposed §§ 1.128-3(c)(5) and 1.129-2(j), if the program fails the average benefits test as of the last day of the plan year, the program may nonetheless be treated as satisfying that requirement if, on or before the deadline for furnishing Form W-2 for the year in which the benefits were provided, the employer includes in the gross income of affected HCEs the amount of excess benefits determined under the proposed regulations. In the case of dependent care assistance programs, proposed § 1.129-2(j)(3) would provide a similar remedial rule for excess ownership concentration.

In general, if all HCEs have benefits in excess of the amount that would satisfy the 55-percent average benefits threshold, the excess benefit amount for each HCE is determined by reference to that threshold. If not all HCEs have benefits in excess of that amount, proposed §§ 1.128-3(c)(5)(ii)(B)( 2 ) and 1.129-2(j)(2)(ii) would permit the employer to allocate the excess benefit and required reduction among HCEs in any reasonable manner, including methods similar to those used under § 1.401(k)-2(b)(2)(iii).

A similar allocation of an excess ownership concentration is permitted in the case of failures to satisfy the ownership concentration test. In that case, the permitted concentration amount is subtracted from the benefit provided to participating principal shareholders or owners (defined to include their spouses and dependents) to determine the amount to be included in income. The permitted concentration amount is 25 percent of the total dependent care benefits provided by the employer to all participants during the year divided by the number of participating principal shareholders or owners.

The Treasury Department and the IRS are proposing these regulations to provide a practical correction mechanism for failures, while preserving the statutory focus on preventing HCEs from receiving the benefit of discriminatory arrangements. Proposed §§ 1.128-3(c)(5) and 1.129-2(j) are intended to allow employers to correct certain failures through income inclusion, rather than by requiring adjustment of benefits that have already been provided.

The proposed regulations regarding nondiscrimination remediation rules under sections 128 and 129 are generally parallel, but there are certain substantive differences between the two. First, because there is no corresponding ownership concentration test under section 128, no remediation rule for an ownership concentration failure is needed under section 128. In contrast, proposed § 1.129-2(j) would permit remediation for failures of either the ownership concentration test in section 129(d)(4) or the average benefits test in section 129(d)(8). Second, proposed § 1.128-3(c)(5)(ii)(A), through its cross-reference to § 1.128-2(h)(4), would require that the Trump account contribution program provide a corrective notice to advise the trustee that the contribution is not a section 128 contribution.

These proposed regulations are proposed to apply to plan years beginning on or after the date final regulations are published in the Federal Register . Taxpayers may rely on these proposed regulations for plan years beginning before the date final regulations are published in the Federal Register .

Executive Orders 12866 and 13563 direct agencies to assess 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The proposed regulations have been designated by the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs (OIRA) as subject to review under Executive Order 12866 pursuant to the Memorandum of Agreement (MOA, July 4, 2025) between the Treasury Department and the OMB regarding review of tax regulations. OIRA has determined that the proposed rulemaking is a significant regulatory action under section 3(f) of Executive Order 12866 and subject to review under Executive Order 12866 and section 1(b) of the MOA. Accordingly, the proposed regulations have been reviewed by OMB. This proposed rule is not expected to be considered a regulatory action under Executive Order 14192 because it does not impose any more than de minimis regulatory costs.

The proposed regulations would clarify the rules for employer contributions to Trump accounts under section 128 of the Internal Revenue Code (Code) and the rules for nondiscrimination testing under sections 128 and 129 of the Code.

Public Law 119-21, commonly referred to as the One, Big, Beautiful Bill Act (OBBBA), added new sections 530A, 128, and 6434 to the Code. Section 530A describes Trump accounts, section 128 describes certain employer contributions to Trump accounts, and section 6434 describes the Trump accounts contribution pilot program. The proposed regulations provide guidance on employer contributions to Trump accounts under section 128.

Section 530A defines a Trump account as a traditional individual retirement account (IRA) with some special rules. Most special rules that distinguish Trump accounts from other IRAs apply only during the growth period. The first day of the growth period is the day the account is established, and the final day of the growth period is December 31 of the calendar year in which the account beneficiary attains age 17. The rules for traditional IRAs generally apply after the growth period. A Trump account may be established for the benefit of a child prior to the calendar year in which the child attains age 18 if the child has been issued a social security number.

In general, distributions from Trump accounts are not permitted during the growth period. The entire balance of a Trump account may be rolled over in a direct trustee-to-trustee transfer to a new Trump account of the account beneficiary. The entire balance of a Trump account may be rolled over in a direct trustee-to-trustee transfer to an ABLE account of the account beneficiary in the calendar year the account beneficiary attains age 17.

Investments in a Trump account must track the returns of a broad index of equities in primarily U.S. companies for which regulated futures contracts are traded, avoid the use of leverage, and avoid annual fees and expenses above 0.1 percent. Trump accounts may receive contributions from nonprofits, governments, employers, and individuals. In general, contributions to a Trump account are subject to an annual limit of $5,000, adjusted for inflation.

Governments and nonprofits may make qualified general contributions through the Treasury Department, and such contributions must be allocated in equal amounts to the Trump accounts of every account beneficiary in a qualified class. Qualified general contributions from governments and nonprofits through the Treasury Department do not count towards the $5,000 annual contribution limit.

Section 128 sets rules for certain employer contributions to Trump accounts. Employers may contribute to the Trump account of an employee or an employee's dependent. Section 128 contributions to a Trump account are excluded from the employee's income, up to an annual limit of $2,500, adjusted for inflation. Section 128 contributions count towards the $5,000 annual contribution limit.

Section 6434 describes the Trump accounts contribution pilot program. In the pilot program, the Secretary will pay $1,000 to the Trump accounts of eligible children. A U.S. citizen born in 2025, 2026, 2027, or 2028 who has been issued a social security number and for whom no request for a pilot program contribution has previously been processed is eligible for a pilot program contribution. Pilot program contributions do not count towards the $5,000 annual contribution limit.

All other contributions to a Trump account, including contributions from friends or family members, create investment in the contract and count towards the $5,000 annual contribution limit.

Section 129 describes dependent care assistance programs. Under section 129, an employee may exclude from gross income employer-provided dependent care assistance furnished under a qualifying program. To qualify, the program must satisfy nondiscrimination rules for eligibility and benefits, limit benefits for more-than-5-percent shareholders or owners to no more than 25 percent of total program benefits and provide average benefits to non-highly compensated employees equal to at least 55 percent of those provided to highly compensated employees. The exclusion is generally limited to $7,500, or $3,750 for married individuals filing separately, for taxable years beginning after December 31, 2025.

The proposed regulations are just one piece of the implementation of section 70204 of OBBBA; prior guidance addressed the election to open an initial Trump account and the election to receive a pilot contribution, and future guidance will address other Trump account issues. In addition to addressing issues specific to Trump accounts, the proposed regulations also address nondiscrimination testing in the context of both section 128 Trump account contribution programs and section 129 dependent care assistance programs.

The proposed regulations would define various terms for the purposes of section 128. The proposed regulations would adopt the common law definitions of employee and employer for section 128. An implication of these definitions of employee and employer is that a section 128 contribution cannot be made by a self-employed individual; a section 128 contribution must be made by an employer to the Trump account of an employee or an employee's dependent. The proposed regulations define dependent by cross referencing section 152. Other definitions in the proposed regulations generally adhere closely to definitions from section 128, other statutes, or prior regulations.

The proposed regulations would provide rules for Trump account contribution programs. Trump account contribution programs would be required to notify eligible employees of the terms of the program, report annually to an employee on Form W-2 or other written document the section 128 contributions made for that employee during the prior calendar year, verify that the destination of a section 128 contribution is a Trump account, identify a section 128 contribution as such to the trustee when it is made, and notify the trustee within a reasonable period (generally, within 21 calendar days) if a contribution previously identified as a section 128 contribution is later determined not to be a section 128 contribution. Trump account contribution programs would be permitted to rely on an employee's certification of the age of the account beneficiary and the employee's relationship to the account beneficiary. Trump account contribution programs would not be permitted to limit contributions to accounts held by one or more particular trustees.

The proposed regulations would provide rules for the use of section 125 cafeteria plans by Trump account contribution programs. A Trump account contribution program would be permitted to allow an employee to fund a section 128 contribution to a dependent's Trump account via salary reduction under a section 125 cafeteria plan. A cafeteria plan that includes section 128 contributions would be required to allow an employee to prospectively change or revoke elections at least monthly.

The proposed regulations would clarify the statutory limit on section 128 contributions. Section 128 contributions are generally excludable from the income of the employee and limited to $2,500 per year. The $2,500 section 128 contribution limit would apply to each employee, regardless of how many employers the employee has and regardless of how many dependents the employee has. Employer contributions in excess of $2,500 would not be excludable from the gross income of the employee.

The proposed regulations would define various terms for the purposes of section 129. In contrast to section 128, the definition of employee for section 129 would include both common law employees and self-employed individuals. For both section 128 and section 129, the proposed regulations would adopt the definition of HCE in section 414(q).

The proposed regulations would provide nondiscrimination rules for Trump account contribution programs under section 128 and dependent care assistance programs under section 129. The proposed regulations would require section 128 and section 129 benefits to be made available on terms that do not discriminate in favor of HCEs or their dependents. The proposed regulations would require eligibility classifications to be reasonable, based on objective business criteria, and nondiscriminatory under either a facts-and-circumstances test or a numerical safe harbor. The facts-and-circumstances test would include consideration of the business reason for the classification, the percentage of eligible HCEs, and the percentage of eligible non-HCEs. The numerical safe harbor would be satisfied if the percent of non-HCEs eligible is at least 90 percent as large as the percent of HCEs eligible, and the 90 percent threshold would be reduced by 3/4 of a percentage point for each whole percentage point by which the percent of an employer's employees who are non-HCEs exceeds 60 percent.

The proposed regulations would clarify that the average benefits test, which requires that average benefits of non-HCEs be at least 55 percent as large as average benefits of HCEs, is based exclusively on employees who receive more than zero benefits during the plan year. The proposed regulations would exclude employees under age 21, employees who have not completed one year of service, and certain collectively bargained employees from the eligibility and average benefits tests. The proposed regulations would provide a nondiscrimination testing safe harbor for section 128 contributions tied to section 6434 pilot program contributions, if those section 128 contributions are made available on the same terms and conditions to all non-excluded employees. The proposed regulations would generally preserve favorable treatment for non-HCEs after a nondiscrimination failure and would allow certain average benefits failures, and section 129 owner concentration failures, to be remediated no later than the general deadline for W-2 reporting through income inclusion for affected individuals.

The Treasury Department and the IRS have assessed the benefits and costs of the proposed regulations relative to a no-action baseline reflecting anticipated Federal income tax-related behavior in the absence of these proposed regulations.

The proposed regulations are expected to affect 73 million children in 44 million families and 3 million employers.

The proposed regulations generally minimize compliance burdens on employers, subject to the access requirements of taxpayers, operational requirements of Trump account trustees, and applicable law. Some employers have announced intentions to “match” the $1,000 pilot payments from the U.S. Treasury. The proposed regulations facilitate the prompt implementation of that structure by giving employers a safe harbor from nondiscrimination testing.

In the long run, the most important aspect of section 128 is likely to be the ability of employers to facilitate pre-tax contributions by their employees. The proposed regulations clarify how section 128 contributions can be made via salary reduction through a cafeteria plan. Pre-tax contributions to a Trump account are on par with pre-tax contributions to other traditional IRAs, and they are even competitive with section 529 accounts in the context of family savings for higher education expenses.

Comparisons with other savings vehicles for children are challenging in practice because they involve long time horizons and uncertainty about future income and tax rates. Nevertheless, an apples-to-apples comparison is possible with a clear question and clear assumptions. If a family saves one dollar of after-tax income now, how many after-tax dollars will the child have in 20 years? Table 1 shows the answers when the after-tax dollar is saved in a section 529 account, a Trump account through a pre-tax contribution, and a Trump account through an after-tax contribution, assuming a 10 percent annual nominal rate of return, a 27 percent present marginal tax rate (including a 22 percent federal marginal tax rate and a 5 percent state marginal tax rate), and a 17 percent future marginal tax rate (including a 12 percent federal marginal tax rate and a 5 percent state marginal tax rate).

These comparisons do not incorporate the “kiddie tax” in section 1(g) of the Code or how financial aid might be impacted by taking distributions while a child is in college. Pre-tax contributions to Trump accounts will not be universally better for families than contributions to section 529 accounts, but they are competitive.

By minimizing compliance burdens for employers, the proposed regulations make widespread adoption of Trump account contribution programs, including programs that permit pre-tax contributions through a cafeteria plan, more likely.

The proposed regulations would clarify how to apply the nondiscrimination rules to section 128 contributions. The proposed regulations would provide a safe harbor under which section 128 contributions are disregarded for purposes of the contributions and benefits rule and average benefits test, but not for purposes of the eligibility rule, if the contributions are tied to section 6434 pilot program contributions and made available on the same terms and conditions to all non-excluded employees. An alternative would be to provide no safe harbor, such that employers would be required to do ordinary nondiscrimination testing. The same-terms safe harbor gives employers the legal certainty they need to implement a match for section 6434 pilot contributions and is narrow enough to prevent employers from targeting the benefit to HCEs. Employers will be more likely to match the pilot contribution as a result of the safe harbor, which could benefit up to 15 million children expected to be born in 2025 through 2028. With median historical returns, an additional $100 in contributions made by an employer to a newborn would result in an additional $620 dollars in the account when the child turns 18.

Many employers offer benefits to support families with children. As of March 2025, 13 percent of civilian employees had access to childcare, 46 percent had access to a dependent care flexible spending account, and 85 percent had access to personal leave, sick leave, or paid family leave. Using the same-terms safe harbor makes it more likely that employers will offer broadly available matches for section 6434 pilot contributions through a Trump account contribution program. However, section 128 contributions that are tied to section 6434 pilot contributions will be more costly to employers than section 128 contributions that are structured as a salary reduction through a cafeteria plan. Section 128 contributions structured as salary reductions shift employer costs from one purpose (salaries) to a different purpose (benefits) without increasing total costs. Section 128 contributions structured as a “match” to the pilot contribution do not shift costs from one purpose to another, they simply increase the employer's cost of providing benefits. The extent of adoption will be limited to employers who are willing to bear the incremental marginal cost of a new benefit for employees.

The proposed regulations would clarify how to apply the eligibility component of the nondiscrimination rules for section 128 and section 129 benefits. The proposed regulations would provide a safe harbor under which benefits satisfy the eligibility test if the percentage of non-highly compensated employees eligible for the benefit is at least 90 percent as large as the percentage of highly compensated employees eligible for the benefit. The 90 percent threshold would be reduced by three-fourths of a percentage point for each whole percentage point by which the percentage of the employer's employees who are non-highly compensated employees exceeds 60 percent. Alternatives would be to provide a safe harbor with a different percentage, use a fixed threshold that does not vary with workforce composition, or provide no safe harbor. The 90 percent threshold is high enough to ensure that eligibility is broadly available to non-highly compensated employees and flexible enough to account for employers with workforces that are heavily composed of non-highly compensated employees. A safe harbor gives employers more certainty in designing section 128 and section 129 benefits and reduces the compliance burden of applying a facts-and-circumstances eligibility test. Facts-and-circumstances tests are generally more costly to comply with because they are more complicated. Evaluating a multi-pronged test is harder than checking a simple numerical threshold.

The eligibility classification safe harbor makes it more likely that employers will offer section 128 and section 129 benefits. However, the safe harbor is narrow enough, starting at a threshold of 90 percent, such that employers meeting the safe harbor would in any case have some confidence of satisfying the facts-and-circumstances test. The eligibility classification safe harbor is more of a relief from compliance burdens than a relaxation of the eligibility component of nondiscrimination testing. The relief from compliance burdens makes it more likely that employers will offer Trump account contribution programs and dependent care assistance programs and reduces the compliance costs of administering those programs.

The proposed regulations would clarify when employers may correct certain nondiscrimination failures for section 128 and section 129 benefits through income inclusion for affected individuals. The proposed regulations would provide that certain average benefits failures, and section 129 owner concentration failures, may be remediated no later than the general deadline for W-2 reporting. Alternatives would be to require remediation by the end of the plan year, allow remediation through a later amended return process, or provide no remediation deadline. The W-2 reporting deadline is late enough to give employers time to identify nondiscrimination failures after year-end and early enough to ensure that affected amounts are included in income through the regular annual wage reporting system. A clear remediation deadline gives employers certainty, preserves administrability for payroll reporting, and helps ensure that failed benefits are taxed to the affected individuals.

Correction periods in other retirement and tax contexts commonly allow time for orderly correction rather than requiring immediate action. For example, under IRS self-correction rules, many significant retirement plan operational failures may be corrected before the end of the third plan year after the year of the failure. The excise tax rules for prohibited transactions also distinguish between an initial tax of 15 percent of the amount involved and an additional 100 percent tax if the transaction is not corrected within the taxable period. Compared with these correction frameworks, a remediation deadline tied to the deadline for Form W-2 is relatively prompt. However, the remedy of including benefits in the income of affected individuals is also relatively straightforward, so the impact of the remediation deadline is likely small.

The proposed regulations would clarify the timing and information reporting obligations for Trump account contribution programs that make section 128 contributions. The proposed regulations would require a program to identify a section 128 contribution as such to the trustee when the contribution is made and to notify the trustee within a reasonable period (within 21 calendar days is deemed a reasonable period) if a contribution previously identified as a section 128 contribution is later determined not to be a section 128 contribution. Alternatives would be to require immediate notice, provide a longer correction period, or provide no specific deadline. The 21-day deadline is long enough to give contribution programs time to identify and process errors and short enough to allow trustees to maintain accurate account records before errors become difficult to correct. A clear 21-day deadline gives trustees timely information, reduces uncertainty about the tax character of contributions, and supports consistent administration of Trump accounts.

As noted in the previous section, correction periods in other retirement and tax contexts commonly allow time for orderly correction rather than requiring immediate action. Compared with other retirement and tax correction frameworks, the 21-day corrective notice requirement is relatively prompt. However, the circumstances leading to a corrective notice are expected to be rare, so the impact of the 21-day corrective notice deadline is expected to be small.

The proposed regulations would clarify how cafeteria plan election rules apply to section 128 contributions. The proposed regulations would require a cafeteria plan that includes section 128 contributions to allow an employee to prospectively change or revoke elections at least monthly. Alternatives would be to require more frequent election changes, allow less frequent election changes, or provide no specific frequency rule. The monthly frequency is frequent enough to give employees flexibility to adjust section 128 contributions as household budgets and savings needs change and limited enough to avoid imposing excessive administrative burdens on employers and payroll systems. A clear monthly election-change rule gives employers a workable standard for plan administration and gives employees meaningful access to adjust section 128 contributions during the plan year. The impact of requiring a cafeteria plan to allow changes at least monthly is expected to be small. The marginal cost to employers of building the capacity for employees to change elections at least monthly is likely to be a one-time cost. Most cafeteria plans already have this capacity for HSA and section 401(k) contributions because the proposed timing rule is similar to the timing rules for HSA and section 401(k) contributions, and Treasury and the IRS expect most employees to rarely change their contributions within a plan year.

The proposed regulations would clarify how Trump account contribution programs must notify employees of section 128 contributions made for them during the prior calendar year. The proposed regulations would allow the annual notice requirement to be satisfied on Form W-2 or another written document. Alternatives would be to require a separate stand-alone notice, prescribe a specific Treasury or IRS form, or require reporting only on Form W-2. Allowing Form W-2 reporting is flexible enough to let employers use an existing wage reporting process and specific enough to ensure that employees receive annual information about section 128 contributions in a familiar year-end document. A Form W-2 option reduces compliance costs for employers, limits duplicative reporting, and helps employees identify section 128 contributions when preparing their tax returns. Allowing the statement of contributions requirement to be satisfied by Form W-2 is expected to minimize compliance burdens.

Based on the available models and data, the Treasury Department and the IRS estimate that the proposed regulations would minimize compliance burdens and make employers more likely to create Trump account contribution programs, including programs that allow employees to fund pre-tax contributions to Trump accounts. The Treasury Department and the IRS invite public comments and additional data on the economic effects that would result from these proposed regulations.

The collection of information contained in this notice of proposed rulemaking will be submitted, under approval number 1545- NEW, to the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, C:DC:TS:CAR:MP:T:M:S, Washington, DC 20224. Comments on the collection of information should be received by October 13, 2026. Comments are specifically requested concerning:

Whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility;

The accuracy of the estimated burden associated with the proposed collection of information;

How the quality, utility, and clarity of the information to be collected may be enhanced;

How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and

Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.

The collection of information in this proposed regulation is in §§ 1.128-2, 1.128-3, 1.129-1, and 1.129-2. This information is necessary to provide guidance with respect to employer contributions to Trump accounts and the nondiscrimination rules for dependent care assistance programs. The collection of information is required to comply with the provisions of section 70204 of the OBBBA. The likely respondents are employers maintaining a Trump account contribution program or a dependent care assistance program.

The estimated number of respondents is 217,000.

The estimated average annual burden per respondent varies from 2 to 14 hours, depending on individual circumstances, with an estimated average of 8 hours.

The estimated total annual reporting burden is 1,736,000 hours.

The estimated frequency of responses is annually.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

The Secretary of the Treasury certifies that these proposed regulations will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6). This certification is based on the fact that these proposed regulations would not impose significant reporting requirements on small entities.

These proposed regulations would apply to employers maintaining a Trump account contribution program under section 128 or a dependent care assistance program under section 129. For purposes of section 128, these proposed regulations would include requirements related to a written plan, employee certifications, section 125 cafeteria plan elections (if applicable), notifications to employees, statements of contributions, employer-to-trustee communications, corrective notices (if applicable), and nondiscrimination requirements. It is estimated that the written plan requirement would take no more than three hours to complete, the nondiscrimination requirements would take no more than two hours to complete, and the other requirements would take no more than one hour to complete. For purposes of section 129, these proposed regulations would not impose any new requirements on small entities but rather provide clarifications to assist employers in satisfying existing requirements under the statute, including requirements for a written plan and nondiscrimination requirements. It is estimated that the written plan requirement would take no more than three hours to complete, if a written plan has not already been adopted, and the nondiscrimination requirements would take no more than two hours to complete and are largely already performed by employers with dependent care assistance programs.

The Treasury Department and the IRS also expect that Trump account contribution programs and dependent care assistance programs are primarily maintained by large employers, given that small employers are less likely to adopt these programs. Small employers that do adopt these programs may be more likely to use third-party administrators to satisfy any reporting requirements.

For these reasons, these proposed regulations are unlikely to impact a substantial number of small entities and any economic impact to small entities is expected to be insignificant. Therefore, a Regulatory Flexibility Act analysis is not required.

Notwithstanding this certification, the Treasury Department and the IRS invite comments on the impacts these proposed regulations may have on small entities.

Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million (updated annually for inflation). This proposed rule does not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.

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

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in the preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. Any comments submitted will be made available at www.regulations.gov or upon request. Once submitted to the Federal eRulemaking Portal, comments cannot be edited or withdrawn.

A public hearing is being held on October 15, 2026, beginning at 10 a.m. ET, in the Auditorium at the Internal Revenue Building, 1111 Constitution Avenue NW, Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. Participants may alternatively attend the public hearing by telephone.

The public hearing will be conducted according to the procedures set out in 26 CFR 601.601(a)(2) and (3). Persons who wish to testify at the hearing must submit written or electronic comments and an outline of the topics to be discussed as well as the time to be devoted to each topic by September 25, 2026. A period of ten minutes will be allocated to each person for making comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available at www.regulations.gov, search IRS and REG-101355-26. Copies of the agenda will also be available by emailing a request to publichearings@irs.gov. Please put “REG-101355-26 Agenda Request” in the subject line of the email. Copies of the agenda will be available free of charge at the hearing. If no outlines of the topics to be discussed at the hearing are received by September 25, 2026, the public hearing will be cancelled. If the public hearing is cancelled, a notice of cancellation of the hearing will be published in the Federal Register .

Individuals who want to testify in person at the public hearing must send an email to publichearings@irs.gov to have their name added to the building access list. The subject line of the email must contain the regulation number (REG-101355-26) and the language TESTIFY In Person. For example, the subject line may say: Request to TESTIFY in Person at Hearing for REG-101355-26.

Individuals who want to testify by telephone at the public hearing must send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-101355-26 and the language TESTIFY Telephonically. For example, the subject line may say: Request to TESTIFY Telephonically at Hearing for REG-101355-26.

Individuals who want to attend the public hearing in person without testifying must also send an email to publichearings@irs.gov to have the individual's name added to the building access list. The subject line of the email must contain the regulation number REG-101355-26 and the language ATTEND In Person. For example, the subject line may say: Request to ATTEND Hearing In Person for REG-101355-26. Requests to attend the public hearing must be received by 5 p.m. ET on October 13, 2026.

Individuals who want to attend the public hearing by telephone without testifying must also send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-101355-26 and the language ATTEND Telephonically. For example, the subject line may say: Request to ATTEND Hearing Telephonically for REG-101355-26. Requests to attend the public hearing must be received by 5 p.m. ET on October 13, 2026.

Any questions regarding speaking at or attending the public hearing may also be emailed to publichearings@irs.gov. Hearings will be made accessible to people with disabilities. To request special assistance during a hearing please contact the Publications and Regulations Section of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to publichearings@irs.gov (preferred) or by telephone at (202) 317-6901 (not a toll-free number) by October 9, 2026.

Guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at https://www.irs.gov.

The principal author of these proposed regulations is the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). Personnel from the Treasury Department and the IRS also participated in their development.

Accordingly, the Treasury Department and the IRS propose to amend 26 CFR part 1 as follows:

In response to a request from the Department of the Navy, and pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1 ) and chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3 ), the Corps is proposing to amend its regulations at 33 CFR 334.930 by revising the restricted area boundaries and the associated regulations for NWSSB to reflect current site conditions and operational needs.

a. Review Under Executive Orders 12866 and 13563, this proposed rule has not been designated a “significant regulatory action”. If issued, it would be with respect to a military function of the Department of Defense therefore, Executive Order 12866 and 13563 do not apply.

b. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354), which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments). The restricted area is necessary to protect public safety. Unless information is obtained to the contrary during the comment period, the Corps certifies that the proposed rule would have no significant economic impact on the public.

c. Review Under the National Environmental Policy Act. Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact on the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments that have been received will be considered.

d. Unfunded Mandates Reform Act of 1995. This proposed rule does not impose an enforceable duty among the private sector nor State, local, and Tribal governments and, therefore, it is not a Federal private sector mandate, nor a State, local, or Tribal government mandate, and it is not subject to the requirements of either section 202 or section 205 of Public Law 104-4 (Unfunded Mandates Reform Act of 1995). We have also found that under section 203 of the Act, small governments will not be significantly and uniquely affected by this rulemaking.

e. Congressional Review Act. The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. This proposed rule is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the United States Army Corps of Engineers is proposing to amend 33 CFR part 334 as set forth below:

Throughout this proposed rule, the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple abbreviations and terms in this proposed rule. While this list may not be exhaustive, for ease of reading and for reference purposes, the EPA defines the following terms and acronyms here:

The EPA is proposing action on the October 8, 2025, submittal by the Arizona Department of Environmental Quality (ADEQ or “State”) of MCAQD Rule 352, “Gasoline Cargo Tank Testing and Use,” as revised on October 1, 2025 (“Rule 352”), and MCAQD Rule 353, “Storage and Loading of Gasoline at a Gasoline Dispensing Facility (GDF),” as revised on October 1, 2025 (“Rule 353”) (collectively, “the MCAQD submittal”). The MCAQD submittal is also intended to meet RACT requirements for the 2008 8-hour ozone NAAQS for the category of sources regulated by each rule.

Rule 352 limits VOC emissions from gasoline cargo tanks that are used to load or unload gasoline within Maricopa County. Because it fulfills all relevant requirements, we are proposing to fully approve Rule 352 and the County's RACT demonstration for the 2008 8-hour ozone NAAQS for the category of sources covered by the EPA Control Techniques Guideline (CTG) document, “Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems.”  1

Rule 353 limits VOC emissions from storage and loading of gasoline at gasoline dispensing facilities (GDFs). We are proposing to conditionally approve Rule 353 and the County's RACT demonstration for the 2008 8-hour ozone NAAQS for the category of sources covered by the EPA CTG document “Design Criteria for Stage I Vapor Control Systems—Gasoline Service Stations.”  2 We are proposing to conditionally approve Rule 353 and the associated RACT demonstration based on a commitment from the ADEQ to correct a deficiency in Rule 353 within one year of the EPA's final action on the MCAQD submittal. The deficiency relates to the enforceability of a provision that adds a new annual testing requirement but cites to and relies on requirements in an Arizona statute that has not been approved into the Arizona SIP.

If finalized as proposed, Rules 352 and 353 would be incorporated into the federally enforceable portion of the Maricopa County portion of the Arizona SIP and would replace the current SIP-approved versions.

We are taking this proposed action under CAA section 110. Pursuant to CAA section 110(a), States are required to submit SIPs to the EPA that provide for the implementation, maintenance, and enforcement of the NAAQS. CAA section 110(k) requires SIPs to meet certain procedural requirements and requires the EPA to approve or disapprove SIP submissions. CAA section 110(l) requires States to provide public notice and an opportunity for public hearing of SIP revisions prior to their submittal and prohibits the EPA from approving any SIP revisions that would interfere with attainment or maintenance of the NAAQS, reasonable further progress, or other applicable requirements of the CAA. If a SIP submittal meets all the applicable CAA requirements, then the EPA must approve the submittal under CAA section 110(k)(3).

For the MCAQD submittal to be approved we must consider several requirements related to enforceability and stringency of the emission limitations. CAA section 110(a)(2)(A) requires emission limitations in the SIP to be enforceable and CAA section 172(c)(6) requires SIPs for nonattainment areas “include enforceable emission limitations, and such other control measures means or techniques . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date . . . .”. Also, 40 CFR part 51, subpart K requires SIPs to have legally enforceable procedures for monitoring the status of compliance with the requirements in the control strategy. Further, this submittal is intended to meet the RACT requirement in CAA section 182(b)(2) for the 2008 8-hour ozone NAAQS. Thus, these rules must also establish RACT level controls for the applicable sources.

Because Rule 353 is not fully approvable, we are proposing to conditionally approve this portion of the MCAQD submittal under CAA section 110(k)(4). Under CAA section 110(k)(4), the EPA may approve a plan revision based on a commitment from the State to adopt specific enforceable measures by not later than one year after the date of approval of the plan revision. Any such conditional approval shall be treated as a disapproval if the State fails to comply with such commitment. On June 9, 2026, the ADEQ submitted a commitment to address this deficiency.

The deficiency in Rule 353 relates to CAA section 110(i), which prohibits the modification of SIP requirements outside the SIP approval process. The rule cites requirements that are not a part of the Arizona SIP and could result in the modification or relaxation of SIP requirements without a SIP revision.

Rules 352 and 353 regulate emissions of VOC, which contribute to the formation of ground-level ozone. Ozone harms human health and the environment and is a pollutant for which the EPA has established a NAAQS. Section 110(a) of the CAA requires States to submit plans that provide for implementation, maintenance, and enforcement of the NAAQS. In addition, CAA section 182(b)(2) requires that SIPs for ozone nonattainment areas classified as “Moderate” or higher implement RACT for sources covered by a control techniques guidelines (CTG) document. The MCAQD regulates a portion of the Phoenix-Mesa area designated as nonattainment for ozone and classified as Moderate nonattainment for the 2008 ozone NAAQS. 3 Therefore, the MCAQD is required to submit SIP revisions that implement RACT-level controls for all sources covered by a CTG. For the 2008 8-hour ozone NAAQS, the MCAQD submitted Rule 352 and Rule 353 to establish RACT-level controls for VOC emissions from sources covered by the CTGs listed in Table 1. Rule 352 limits VOC emissions from gasoline cargo tanks that are used to load or unload gasoline within Maricopa County. Rule 353 limits VOC emissions from storage and loading of gasoline at GDFs.

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

On December 24, 2025, the State of New Hampshire petitioned the EPA pursuant to CAA section 176A(a)(2) for the removal of the State of New Hampshire from the Ozone Transport Region (OTR). Section 184(b) of the CAA establishes specific control requirements that each State in the OTR is required to implement within the State, including certain controls on sources of nitrogen oxides (NO X ) and volatile organic compounds (VOCs). These control requirements are required to be implemented in any State included within the OTR, regardless of ozone attainment status. Under CAA section 184(b)(1)(A), OTR States must include vehicle I/M programs in their SIPs.

Section 176A(a)(2) of the CAA states that the Administrator may remove any state or portion of a state from the OTR whenever the Administrator has reason to believe that the control of emissions in that state or portion of that state pursuant to its inclusion in the transport region will not significantly contribute to the attainment of the standard in any area in the region. In its 176A petition to be removed from the OTR, New Hampshire committed to retaining all existing OTR control measures in its SIP, except the vehicle I/M program. In a separate document, the EPA evaluates, and proposes to grant, New Hampshire's 176A petition. In the document you are reading now, the EPA addresses New Hampshire's SIP revision regarding the I/M program, which contains a section 110(l) analysis, as required by the CAA. NHDES consulted with the EPA during the development of the CAA section 110(l) demonstration, and the EPA finds that the methodology in this demonstration supports this proposed action.

For the reasons fully described in this document, and in consideration of the data submitted by NHDES, including impacts to air quality, the EPA proposes to find that removal of the I/M program as an active SIP measure will not interfere with attainment or maintenance of the NAAQS or any other applicable CAA requirements.

The EPA is proposing to conditionally approve New Hampshire's SIP revision, submitted on December 24, 2025, to remove the State's I/M program as an active SIP measure and to include it on the list of potential contingency measures for the 1997 ozone NAAQS maintenance area in southern New Hampshire. 2 The EPA is soliciting public comments on the EPA's proposal. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

Under CAA section 110(k)(4), the EPA may conditionally approve a plan revision based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than one year from the date of approval. If the EPA conditionally approves the December 24, 2025, SIP revision in a final rulemaking action, the State must meet its commitment to submit a SIP revision addressing the requirement of CAA section 175A(d). If the State fails to do so, this action will become a disapproval one year from the date of final approval. The EPA will notify the State by letter that this action has occurred. The EPA subsequently will publish a document in the Federal Register notifying the public that the conditional approval automatically converted to a disapproval. If the State meets its commitment within the applicable time frame, the I/M program will remain on the list of potential contingency measures for the maintenance area unless the EPA takes final action disapproving the new submittal. If the EPA disapproves the new submittal, the request to remove the I/M program as an active control measure and include it on the list of potential contingency measures will be disapproved at that time. If the EPA approves the submittal, the December 24, 2025, revision will be fully approved in its entirety, and the I/M program will remain on the list of potential contingency measures for the maintenance area.

New Hampshire has enacted legislation, House Bill 2 (HB2), mandating the repeal of the motor vehicle I/M program under portions of New Hampshire's Revised Statute Annotated (RSA) Chapter 266 Equipment of Vehicles, Chapter 260 Administration of Motor Vehicle Laws, and Chapter 125-S Motor Vehicle Abatement Fund, effective January 31, 2026. 3 Consequently, the NHDES submitted a SIP revision on December 24, 2025, to remove the I/M program from the SIP, including those sections of the New Hampshire Code of Administrative Rules Chapter Saf-C 3200 Official Motor Vehicle Inspection Requirements regulation, most recently approved into the New Hampshire SIP in a final rulemaking published April 29, 2024. 4 On June 11, 2026, NHDES supplemented the current SIP submittal with a letter to the EPA committing to submit an additional SIP revision requesting that the I/M program be included on the list of potential contingency measures portion of the maintenance plan pertaining to the 1997 ozone NAAQS. 5

Two areas in New Hampshire, the City of Manchester and the City of Nashua, were designated nonattainment for the 1971 8-hour and 1-hour CO NAAQS, which are 9 ppm and 35 ppm, respectively, both not to be exceeded more than once per year. The CAA required these areas to achieve the CO NAAQS by November 15, 1995. 6 The EPA redesignated the City of Nashua and the City of Manchester from nonattainment to attainment for CO and approved the first maintenance plans for both, effective January 29, 2001. 7 The 1999 CO NAAQS redesignation requests from New Hampshire contained CO motor vehicle emissions budgets (budgets) of 55.83 tons per winter day for Manchester, and 60.13 tons per winter day for Nashua. These budgets were considered adequate for transportation conformity purposes. For the second 10-year period, 2011-2021, NHDES submitted a limited maintenance plan (LMP) to the EPA, committing to continuing to implement the I/M program and other emissions reduction strategies during the 10-year period of the LMP. In the LMP, New Hampshire projected CO emissions in 2026 of 26.38 tons per winter day for the City of Manchester and 25.51 tons per winter day for the City of Nashua, both of which are significantly below the initial tons per winter day budgets set for each location in the redesignation requests. The EPA approved the LMP, effective April 9, 2014. The 20-year maintenance period for the CO NAAQS ended in 2021. 8

Consistent with the 1990 CAA Amendments, which established a classification system for nonattainment areas, several New Hampshire counties were designated as nonattainment of the now-revoked 1979 1-hour ozone NAAQS (0.12 parts per million (ppm)). 9 In 2012, the EPA determined that these areas met the revoked 1-hour ozone standard by the areas' respective, applicable attainment dates. 10 On July 18, 1997, the EPA revised the ozone primary and secondary NAAQS to 0.08 ppm and the averaging time from 1-hour to 8-hour (annual fourth-highest daily maximum 8-hour concentration, averaged over three years). 11 The EPA initially designated the three New Hampshire nonattainment areas (two Serious and one Marginal) as a single area, the New Hampshire portion of the Boston-Manchester-Portsmouth area under the 1997 8-hour ozone NAAQS. New Hampshire submitted a redesignation request, maintenance plan, requisite emission inventory and budgets for the Boston-Manchester-Portsmouth area related to the 1997 8-hour ozone NAAQS on March 2, 2012, supplemented on September 21, 2012. The EPA redesignated the Boston-Manchester-Portsmouth area to attainment of the 1997 8-hour ozone NAAQS on January 31, 2013. 12 Although the EPA revoked the 1997 8-hour ozone NAAQS in 2015, certain CAA requirements remain in place, such as a second maintenance plan. 13 Accordingly, NHDES submitted an LMP to the EPA for the second 10-year maintenance period (2023-2032) for the Boston-Manchester-Portsmouth area on July 29, 2021, which the EPA approved on April 22, 2022. 14 Finally, the entire State of New Hampshire is also designated attainment/unclassifiable for the 2008 and 2015 ozone NAAQS. 15

The CAA requires I/M programs for ozone and CO nonattainment areas based upon certain criteria, such as air quality status and population. 16 Additionally, certain areas in the OTR are required to implement I/M programs pursuant to CAA section 184(b)(1)(A). Currently, all of New Hampshire, as well as all or portions of eleven other States and the District of Columbia comprise the OTR. As stated in the previous section, portions of New Hampshire used to be in nonattainment under the CO, 1979 1-hour ozone, and 1997 8-hour ozone NAAQS but have since redesignated to attainment, and the entire State is designated attainment for the 2008 and 2015 ozone NAAQS. 17 Thus, there are no outstanding I/M implementation requirements due to nonattainment designations, and New Hampshire's obligation to implement a vehicle I/M program is now due only to its inclusion in the OTR. Concurrently with this proposed SIP revision, the EPA has in a separate action proposed to grant New Hampshire's petition to remove the State from the OTR pursuant to CAA section 176A(a)(2). 18

The EPA's I/M rule was established on November 5, 1992. 19 The EPA made significant revisions to the I/M rule on September 18, 1995, and on July 25, 1996. 20 21 The I/M regulations are codified at 40 CFR part 51, subpart S, and generally require a State in the OTR to have an Enhanced I/M program in its SIP that covers areas of the State within a metropolitan statistical area (MSA), but a State may choose to include additional areas outside of any MSA, as well. New Hampshire chose to include the entire State in its Enhanced I/M program.

States subject to the I/M requirement are to submit an I/M SIP revision that addresses the elements necessary to implement I/M as specified in the EPA's I/M rule at 40 CFR part 51, subpart S. The most recent revision to New Hampshire's I/M SIP was submitted on September 22, 2022, and included amendments to the Department of Safety Chapter Saf-C 3200, Official Motor Vehicle Inspection Requirements. The remaining technical aspects of the I/M SIP, including emission modeling and other technical documentation included in prior I/M SIP revisions, were still applicable to the technical demonstration that New Hampshire's Enhanced I/M program met the requirements of 40 CFR part 51, subpart S. Therefore, the EPA approved this revision into the New Hampshire SIP, effective May 29, 2024. 22 For a further detailed history of the State's I/M program, see section 2.5.2 of New Hampshire's December 24, 2025, submittal.

In sum, New Hampshire is attaining the CO and ozone standards, which are the criteria pollutants I/M programs are designed to address. While the State is well within the attainment limits for all other criteria pollutants, there are no emissions reductions from the I/M program attributable to the direct emissions of particulate matter, lead, and sulfur dioxide (SO 2 ). Additionally, nitrogen dioxide (NO 2 ) is captured generally through consideration of NO X impacts, and the PM 2.5 precursor pollutants, NO X and VOCs, are already addressed by the consideration of ozone precursors, which are also NO X and VOCs. In addition, while CAA section 184(b)(1)(A) requires New Hampshire's SIP to provide for an I/M program because the State is in the OTR, the EPA is concurrently proposing in a separate action to grant New Hampshire's request pursuant to CAA section 176A(a)(2) to be removed from the OTR. The EPA will not finalize the proposal to remove the I/M program as an active control measure and include it on New Hampshire's list of contingency provisions for the maintenance area unless and until the EPA grants New Hampshire's request to be removed from the OTR.

The December 24, 2025 New Hampshire SIP revision seeking the removal of the I/M program from the SIP includes an evaluation of monitored design values and emissions data. The data show a consistent downward trend in CO design values since the initial designation, with negligible design values since 2014 ( i.e., <1 ppm). New Hampshire has also shown an overall downward trend in ozone design values since the 1980s, with the three most recent design value periods consistently below the current, and most stringent, 8-hour ozone NAAQS of 70 parts per billion (ppb) in the State. 23 Notably, the current 2022-2024 design values across all 12 monitoring sites measure a statewide maximum of 65 ppb or below.

For the non-interference demonstration pursuant to CAA section 110(l), NHDES used the National Emissions Collaborative's 2022v1 Emissions Modeling Platform (EMP), using 2022 as the base year and 2026 as the future analytic year. The analysis focuses on CO and ozone precursor pollutants, NO X and VOC. The 2022 base year serves as a baseline for comparison of future projected emissions and includes emissions benefits from the I/M program. NHDES considered two options for a base year emissions inventory, the 2020 NEI and the 2022v1 EMP. Ultimately, NHDES decided on 2022, since using 2020 data may not realistically represent vehicle emissions due to VMT decreases in that year resulting from the COVID-19 pandemic. NHDES chose 2026 for future-year analysis since it is the same year the I/M discontinuation is slated to take effect and thus coincides with the removal of emissions benefits from the New Hampshire I/M program. NHDES consulted with the EPA during the development of this demonstration, and the EPA finds that the methodology in the CAA section 110(l) demonstration supports this proposed action.

NHDES used the latest version of the EPA's mobile source emissions model, Motor Vehicle Emission Simulator (MOVES5), to quantify 2026 projected emissions from on-road vehicles without the I/M program and replaced the EMP on-road mobile emissions estimates. Additionally, NHDES estimated its own 2022 on-road mobile emissions using MOVES5 to ensure an accurate comparison, since the EMP used the previous MOVES4 model to calculate 2022 on-road mobile emissions. For more detailed information on the methodologies, assumptions, and data inputs used, see attachment 3 of the NHDES December 24, 2025, SIP submittal.

Even with the discontinuation of the I/M program, the State's submittal shows a reduction in NOx, VOC, and CO emissions by 16.0%, 2.7% and 1.9%, respectively, from the 2022 base year with I/M to the 2026 projected year without I/M. This continued decrease in emissions, despite projected increases in VMT, is generally agreed to be partially a result of fleet turnover, with old vehicles being replaced with newer, lower emitting vehicles that meet more stringent engine and emission standards. 24 25 26 Additionally, since all areas in New Hampshire are designated attainment for all applicable NAAQS with current emissions levels, we are proposing to approve the State's conclusion that New Hampshire will continue to attain in the future with projected emissions reductions. The EPA agrees with New Hampshire's conclusion that on-road mobile source emissions are expected to decline even without implementation of the State's I/M program. New Hampshire is also retaining all other active control measures in the SIP that were implemented due to New Hampshire's inclusion in the OTR, ensuring New Hampshire remains in attainment. Additionally, in previous rulemakings, the EPA determined that New Hampshire does not significantly contribute to nonattainment, or interfere with maintenance, of the 2008 and 2015 ozone NAAQS. 27 New Hampshire's removal of its I/M program does not affect the prior non-contribution findings, because the reductions attributed to New Hampshire's I/M program are minor and have been overtaken by greater emissions reductions from other mitigation measures, like fleet turnover, since those previous rulemakings.

Since the maintenance plan for the New Hampshire portion of the Boston-Manchester-Portsmouth area for the revoked 1997 8-hour ozone NAAQS is still active, New Hampshire may remove the I/M program as an active control measure but must include it in its list of potential contingency measures for the maintenance area in accordance with CAA section 175A(d). To address this requirement, New Hampshire has committed to submit a SIP revision which will formally request the EPA approval to include the I/M program on the list of potential contingency measures portion of the 1997 8-hour ozone NAAQS maintenance plan. The forthcoming SIP revision must be submitted no later than one year from a final conditional approval of the December 24, 2025, I/M SIP revision.

Because 2026 emissions without the I/M program are projected to be lower than the 2022 emissions with the I/M program, the EPA proposes to find that the State's submittal demonstrates that the removal of the I/M program in New Hampshire will not interfere with attainment or maintenance of the NAAQS or any other applicable CAA requirements. 28 Further, because New Hampshire has committed to submit a SIP revision to include the I/M program on the list of potential contingency measures, the EPA proposes to conditionally approve the current SIP revision.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

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

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

The information in this SUPPLEMENTARY INFORMATION section of this preamble is organized as follows:

Publicly available docket materials are available at https://www.regulations.gov identified by Docket ID No. EPA-HQ-OAR-2026-2179. In addition to being available in the docket, an electronic copy of this document will be posted at https://www.epa.gov/nh/new-hampshire-clean-air-act-176a-petition-im-program-sip-revision.

On December 24, 2025, the state of New Hampshire petitioned the EPA pursuant to CAA section 176A(a)(2) for the removal of the state of New Hampshire from the OTR. New Hampshire concludes that emissions from the state are not significant contributors to ozone nonattainment in other States in the OTR. Therefore, removing New Hampshire from the OTR would not degrade the air quality in New Hampshire or in any other state. The petition includes monitoring data and technical analyses to support a demonstration that the state is attaining the ozone NAAQS and that emissions from New Hampshire do not significantly contribute to ozone nonattainment in any area of the OTR. For the reasons described in this document, the EPA is proposing to grant the petition on the basis that removing the state from the OTR would not result in emissions changes that would significantly contribute to nonattainment or interfere with maintenance in any area of the OTR.

Section 176A(a) of the CAA provides the Administrator with the authority to develop interstate transport regions for particular pollutants where the Administrator determines that interstate transport of air pollutants from one or more States contributes significantly to violations of air quality standards in other States. In the 1990 CAA Amendments, Congress created the OTR by statute under CAA section 184(a) to address the interstate transport of ozone pollution in the Northeast and Mid-Atlantic regions of the United States (U.S.).

The creation of an interstate transport region requires establishing a transport commission with representatives from each state who make recommendations to mitigate interstate pollution. The Ozone Transport Commission (OTC) was formed in 1991 under section 184 of the CAA, serving as the multi-state body responsible for advising the EPA and States on developing and implementing regional solutions to ground-level ozone issues in the Northeast and Mid-Atlantic regions. Model rules and programs designed through the OTC may be adopted by the individual States through their own rulemaking processes. Under CAA section 184(c), the OTC may petition the EPA to approve additional control measures to be applied within all or part of the transport region. New Hampshire seeks to remove the state from the OTR, thereby releasing those areas from OTC recommendations and applicable control requirements established under CAA section 184.

Section 176A(a)(1) of the CAA provides the Administrator with authority to “add any state or portion of a state to any [transport] region . . . whenever the Administrator has reason to believe that the interstate transport of air pollutants from such state significantly contributes to a violation of the standard in the transport region.” Conversely, CAA section 176A(a)(2) allows the Administrator to “remove any state or portion of a state from [a transport] region whenever the Administrator has reason to believe that the control of emissions in that state or portion of the state . . . will not significantly contribute to the attainment of the standard in any area in the region.” These provisions of CAA section 176A are made applicable to the OTR by virtue of the second sentence of CAA section 184(a).

For the reasons fully described in this document, and in consideration of monitoring data, technical demonstrations, and impacts to air quality controls in the areas to be removed, the EPA believes the removal of New Hampshire from the OTR does not contribute to a violation of any ozone standard in any area of the OTR, and that control of emissions from New Hampshire will not significantly contribute to attainment of any ozone standard in any area of the OTR. Accordingly, the EPA is proposing to grant the CAA section 176A petition filed by the state of New Hampshire to remove the state from the OTR.

Ground-level ozone is predominantly a secondary air pollutant created by chemical reactions between ozone precursors including nitrogen oxides (NO X ) and volatile organic compounds (VOCs) in the presence of sunlight. Emissions from various stationary and mobile sources are some of the major anthropogenic sources of ozone precursors. The potential for ground-level ozone formation tends to be highest during months with warmer temperatures and stagnant air masses; therefore, ozone levels are generally higher during the summer months. 1 Increased temperatures may also increase emissions of anthropogenic and biogenic VOC emissions and can indirectly increase anthropogenic NO X emissions as well ( e.g., through increased electricity generation to power air conditioning).

The EPA has regulated ozone pollution and the precursor emissions that contribute to ozone for the last five decades. 2 Currently, there are two NAAQS in effect for ozone. 3 On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 ppb. 4 On October 1, 2015, the EPA lowered the primary and secondary standards to 70 ppb. 5 Section 109(d)(1) of the Act requires periodic review and, if appropriate, revision of existing air quality criteria to reflect advances in scientific knowledge concerning the effects of the pollutant on public health and welfare. Under this provision, the EPA is to periodically review and, if appropriate, revise the NAAQS, based on the revised air quality criteria. The EPA last reviewed the ozone NAAQS in 2020 at which time the 2015 primary and secondary ozone NAAQS were retained. 6

In accordance with CAA section 107(d), the EPA designates areas as “attainment” (meeting the standard), “nonattainment” (not meeting the standard), or “unclassifiable” (insufficient data to classify). States with areas designated as nonattainment must develop and submit State Implementation Plans (SIPs) to the EPA with the goal of attaining and maintaining the level of the NAAQS by the applicable attainment deadline. The EPA and States work collaboratively to establish and implement nonattainment area planning requirements that are designed to bring areas into attainment of the NAAQS by the applicable attainment deadline. A key step in ensuring that areas attain and maintain the ozone NAAQS is to assess and understand the potential for ozone formation (and sources of its precursor pollutants) in a given area, including the potential for upwind States' emissions to impact ozone formation in downwind States.

Precursor emissions can be transported downwind directly or, after transformation in the atmosphere, as ozone or secondary ozone precursors. Studies have established that ozone formation, atmospheric residence, and transport can occur on a regional scale ( i.e., hundreds of miles) over much of the eastern U.S., with elevated concentrations occurring in rural as well as metropolitan areas. 7 Additionally, observational studies have demonstrated the presence of ozone and ozone precursor transport, and documented the impact that upwind emissions have on high concentrations of ozone pollution. 8 As a result of ozone transport, ozone pollution levels in a given location are impacted by a combination of local emissions and emissions from upwind sources. While substantial progress has been made in reducing ozone in many urban areas, regional-scale ozone transport is still a major component of peak ozone concentrations during the summer ozone season.

Subpart 1 of part D of title I of the CAA provides the general plan requirements for designated nonattainment areas. This subpart includes provisions governing the development of transport regions to address the interstate transport of pollutants that contribute to NAAQS violations. In particular, section 176A(a) of the CAA provides that, on the EPA's own motion or by a petition from the Governor of any state, whenever the EPA has reason to believe that the interstate transport of air pollutants from one or more States contributes significantly to a violation of the NAAQS in one or more other States, the EPA may establish, by rule, a transport region for such pollutant that includes such States. The provision further provides that the EPA may add any state or portion of a state to any transport region whenever the Administrator has reason to believe that the interstate transport of air pollutants from such state significantly contributes to a violation of the standard in the transport region.

Section 176A(b) of the CAA provides that when the EPA establishes a transport region, the Administrator shall establish an associated transport commission, comprised of (at a minimum) the following: The Governor or her or his designee of each covered state, the EPA Administrator or designee, the Regional EPA Administrator or designee, and an air pollution control official appointed by the Governor of each state. The purpose of the transport commission is to assess the degree of interstate transport throughout the transport region and assess and recommend control strategies to the EPA to mitigate such interstate transport.

Subpart 2 of part D of title I of the CAA provides plan requirements specific to the ozone NAAQS. Consistent with CAA section 176A, found in subpart 1, subpart 2 includes specific provisions focused on the interstate transport of ozone. CAA section 184(a) established a single transport region for ozone—the OTR—comprising the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan Statistical Area for the District of Columbia, which includes certain portions of northern Virginia. 9 The Virginia counties and cities included in the OTR are Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.

Section 184(b) of the CAA establishes specific control requirements that each state in the OTR is required to implement within the state, including certain controls on sources of NO X and VOCs. These control requirements are required to be implemented statewide in any state included within the OTR, regardless of ozone attainment status. 10 Under CAA section 184(b)(1)(A), OTR States must include Enhanced vehicle emissions inspection and maintenance (I/M) programs in their SIPs. 11 Under CAA section 184(b)(2), major stationary sources of VOCs in OTR States are subject to the same requirements that apply to major sources in designated ozone nonattainment areas classified as Moderate. 12 Thus, the state must adopt rules to apply nonattainment new source review (NNSR) and reasonably available control technology (RACT) (pursuant to CAA section 182(b)(2)) provisions for major VOC sources statewide. Under CAA section 184(b)(2) States must also implement Stage II gasoline refueling vapor recovery programs, incremental to vehicle Onboard Refueling Vapor Recovery achievements, or measures that achieve comparable emissions reductions for both attainment and nonattainment areas. 13

Section 182(f) of the CAA requires States to apply the same requirements to major stationary sources of NO X as are applied to major stationary sources of VOCs under subpart 2. Thus, the same NNSR and RACT requirements that apply to major stationary sources of VOC in the OTR also apply to major stationary sources of NO X . 14

Section 176A(a)(2) of the CAA states that the Administrator may remove any state or portion of a state from the Ozone Transport Region whenever the Administrator has reason to believe that the control of emissions in that state or portion of that state pursuant to its inclusion in the transport region will not significantly contribute to the attainment of the standard in any area in the region. The provision does not provide further methodology or criteria for the Administrator to apply other than this language when determining whether to remove a state or portion of a state from the OTR. As explained in this action, in determining whether to grant the state of New Hampshire's petition the EPA intends to follow the best reading of the statute, drawing upon interpretations of the CAA's suite of interstate pollution transport provisions in court decisions and in prior EPA actions and consistent with the EPA's previous interpretations of section 176A(a)(2) in an action granting a request from the State of Maine to remove a portion of that state from the OTR. 15 Prior to that action, the Agency had also acted pursuant to CAA section 176A(a)(1) to deny a request to expand the OTR but did not in that action have cause to interpret the operative language in CAA section 176A. 16

The EPA believes it is appropriate to read the key terms in section 176A(a)(2) ( i.e., “control of emissions . . . will not significantly contribute to the attainment of the standard” and “in any area in the region”) consistently with other parts of the CAA that govern the interstate transport of ozone pollution, taking into account relevant facts and circumstances and the EPA's past approaches to addressing interstate ozone transport.

The CAA provision that States and the EPA have primarily relied upon to address interstate pollution transport is section 110(a)(2)(D)(i)(I) of the CAA, often referred to as the “good neighbor” provision. The provision requires all States to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which “will contribute significantly” to nonattainment in, or interfere with maintenance by, any other state with respect to any NAAQS. Thus, each state is required to submit a SIP that demonstrates that the state is adequately controlling sources of emissions that would impact other States' air quality relative to the NAAQS in violation of the good neighbor provision. However, if a state does not adequately address the good neighbor provision requirements in a SIP submission, the CAA requires that the EPA must address the requirements of the good neighbor provision in the State's stead. Specifically, if the EPA disapproves a State's SIP submission or if the EPA finds that a state has failed to submit a required SIP, then the EPA must promulgate a Federal Implementation Plan (FIP) within two years, unless the state corrects the deficiency and the EPA approves the plan or plan revision before the EPA promulgates a FIP. 17

To address the regional transport of ozone pursuant to the CAA's good neighbor provision, the EPA has promulgated several regional interstate transport rules focusing on the reduction of NO X emissions, as the primary meaningful precursor to address regional ozone transport across state boundaries. 18 These interstate transport rules are the NO X SIP Call, 19 Clean Air Interstate Rule (CAIR), 20 the Cross-State Air Pollution Rule (CSAPR), 21 the Cross-State Air Pollution Rule Update (CSAPR Update), the Revised Cross-State Air Pollution Rule Update (Revised CSAPR Update), 22   23   24 and the Interstate Transport of Air Pollution for the 2015 8-Hour Ozone National Ambient Air Quality Standards (Good Neighbor Plan). 25

Through the development and implementation of CSAPR and the CSAPR Update, the EPA, working in partnership with the States, developed a four-step interstate transport framework to interpret and address the requirements of the good neighbor provision. The four steps are: (1) identifying downwind air quality monitors (known as “receptors”) that are expected to have problems attaining or maintaining clean air standards ( i.e., NAAQS); (2) identifying upwind States that impact those downwind air quality problems sufficiently such that they are considered “linked” and therefore warrant further review and analysis; (3) identifying the emissions reductions necessary (if any), considering cost and air quality factors, to prevent linked upwind States identified in step 2 from contributing significantly to nonattainment or interfering with maintenance of the NAAQS at the locations of the downwind air quality problems; and (4) adopting permanent and enforceable measures needed to achieve those emissions reductions.

Given the use of the phrase “significantly contribute to [ ] attainment” in CAA section 176A(a)(2), the EPA has determined it is reasonable to look to the 4-step interstate transport framework to guide its analysis of whether a state or portion of a state has met the necessary condition for removal from the OTR in CAA section 176A(a)(2). Under Step 1 of the interstate transport framework, the EPA has interpreted the term “will” in the phrase “will significantly contribute” in section 110(a)(2)(D)(i)(I) by looking at current downwind air quality problems and whether those air quality problems will persist in a future year, i.e., by focusing its analysis regarding downwind interstate transport impacts on an analytic year in the future. In its transport rules, the EPA has considered monitored air quality data in addition to future projections “because will' can mean either certainty or indicate the future tense,” and considering present-day data to inform the projected identification of downwind air quality problems “give[s] effect to both interpretations of the word.”  26   27 Specifically, in those rules, the EPA explained that it had the most confidence in its projections of nonattainment for those counties that also measure nonattainment for the most recent period of available ambient data. 28 In the CSAPR Update, receptors that had clean measured data but were projected to have nonattainment problems in the future-year modeling were denoted by the EPA as maintenance-only receptors, acknowledging that while currently attaining the NAAQS, such areas could violate the standard in the future under certain meteorological conditions. The D.C. Circuit has upheld this balance struck by the EPA in considering historical monitored data as well as future projected modeled data as a method for identifying downwind air quality problems at Step 1. 29

In CSAPR and the CSAPR Update, the EPA used a threshold of one percent of the NAAQS to determine whether a given upwind state was “linked” at step 2 of the four-step interstate transport framework and would, therefore, contribute to downwind nonattainment and maintenance sites identified in step 1. If a State's impact did not equal or exceed the one percent threshold, the upwind state was not “linked” to a downwind air quality problem, and the EPA therefore concluded that the state will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in the downwind States. However, if a State's impact equaled or exceeded one percent, the State's emissions were further evaluated in step 3, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary to address the good neighbor provision. More recently, the EPA proposed to reconsider policies and actions underlying the Interstate Transport of Air Pollution for the 2015 Ozone NAAQS (Good Neighbor Plan). 30 In that proposed rule, the EPA proposed to identify 1 ppb as an acceptable contribution threshold at Step 2 of the interstate transport framework. The EPA finds New Hampshire's use of the one percent of the NAAQS threshold as acceptable for this petition, as it is more conservative than if the state had used the more recently proposed 1 ppb interpretation. 31

These first two steps of the 4-step interstate transport framework are particularly informative to analyze the standard for removal of areas from the OTR established by CAA section 176A(a)(2). In the previous action under CAA section 176A(a)(2) (EPA's granting of Maine's request), the EPA acknowledged that the specific inquiry posed by the OTR removal provision does not perfectly align with the inquiry in the CAA section 110 good neighbor provision or in CAA section 176A(a)(1). Read literally, rather than identify significant contribution of emissions to nonattainment or maintenance receptors—that is, determining whether a State's emissions are large enough that they negatively impact air quality in another state and thus may warrant the imposition of control measures—CAA section 176A(a)(2) presents a different but related question: Whether OTR controls in a state will not significantly contribute to attainment anywhere in the OTR. Despite the framing of CAA section 176A(a)(2) as significant contribution to attainment rather than significant contribution to nonattainment, we continue to think CAA section 176A(a)(2) is best read within the context of the statutory section as a whole, and in conjunction with the other CAA provisions addressing interstate pollution transport and therefore focused on impacts to areas that are struggling with attaining or maintaining the NAAQS. While one could read CAA section 176A(a)(2) as asking the EPA to analyze only OTR areas that are already in attainment and determine whether such areas would remain so after the removal of a state or portion of a state from the OTR per CAA section 176A(a)(2), 32 a better interpretation of CAA section 176A(a)(2) is that it is establishing a standard that is the inverse of the question presented in CAA section 176A(a)(1). At base, CAA section 176A(a) presents two authorities—the Administrator may add a state or a portion of a state to the transport region whenever the Administrator has reason to believe that pollutants from that state significantly contribute to a violation of the NAAQS in the transport region and may remove a state or a portion of a state whenever the Administrator has reason to believe that the State's continued inclusion in the OTR will not be required for attainment in the transport region, i.e., that the petitioning state is not significantly contributing to air quality problems in the region and will not so contribute if the state is removed from the OTR. Interpreting the statute in this way means that under CAA section 176A(a)(2), although there is no explicit reference to significant contribution to nonattainment or maintenance, the EPA's inquiry focuses on whether the state, or portion of the state, to be removed is significantly contributing or will contribute to nonattainment of the standard in the OTR. The EPA's inquiry, therefore, does not solely focus on consequences to areas that are already in attainment.

In determining whether removal is warranted under section 176A(a)(2), the EPA must also interpret the phrase “control of emissions in that State or portion of that State pursuant to this section.” Consistent with the previous action granting Maine's 176A(a)(2) petition, the EPA reads “controls” to refer to new controls that would be required under CAA section 184(b) if the state or portion of the state were to remain in the OTR, as opposed to controls that the state has already adopted as required by the CAA due to its inclusion in the OTR. Interpreting “controls” in this manner gives effect to the forward-looking nature of the provision, which asks the Administrator to analyze whether removal of the state or portion of the state from the OTR “will” have the effect of contributing to air quality problems in any area in the OTR. In undertaking that forward-looking analysis, it is reasonable to assume that existing SIP-approved controls (not including, in this instance, New Hampshire's vehicle I/M program) that were adopted by the state due to its inclusion in the OTR will remain in place.

Under the CAA, a state seeking to revise its SIP must undergo a section 110(l) demonstration. Section 110(l) of the CAA states that the Administrator cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the CAA. Therefore, the EPA will only approve a SIP revision that removes or modifies control measures after the state has demonstrated that such removal or modification will not interfere with attainment of the NAAQS, Rate of Progress (ROP), RFP or any other applicable requirement of the CAA.

States may demonstrate a revision's noninterference with NAAQS-related requirements by substituting one measure with another that achieves equivalent or greater emissions reductions or air quality benefit or by preparing an air quality analysis showing that removing the measure will not interfere with other applicable requirements ( i.e., without a substitute measure). 33 Additionally, for areas that do not have an attainment demonstration, the EPA would consider alternative analyses to demonstrate noninterference on a case-by-case basis. The level of rigor in the alternative demonstration would vary depending on the nature of the requirement, its potential impact on air quality in the area, and the air quality of the area in which the requirement applies.

Moreover, this reading of CAA section 176A(a)(2) is consistent with the EPA's treatment of nonattainment areas seeking redesignation to attainment under CAA section 107(d)(3). States seeking redesignation of a nonattainment area to attainment are required to demonstrate that the area will maintain the NAAQS, per CAA section 107(d)(3)(E)(iv) and CAA section 175A. In making demonstrations of maintenance, States perform air quality modeling or emissions projections showing that existing control requirements are sufficient to maintain the NAAQS in question. However, once redesignated, a state may seek revision of its SIP to remove nonattainment SIP measures that are not necessary to maintain the NAAQS, subject to a section 110(l) demonstration. We, therefore, think this analysis under CAA section 176A(a)(2) should, like a CAA section 175A maintenance demonstration, assume continued implementation of existing OTR control measures even though such measures would no longer be statutorily mandated once the EPA removes a state or portion of the state from the OTR. As in the case of an area redesignated to attainment, a state could only stop actively implementing those measures and remove them from its SIP after satisfying its obligation under section 110(l), as discussed earlier. We note that in submitting its petition to the EPA to remove the state from the OTR, New Hampshire committed to retaining all existing OTR control measures in its SIP, except the vehicle I/M program. The request to remove the I/M program from the New Hampshire SIP is, as mentioned throughout this document, currently being evaluated by the EPA in a separate rulemaking document. We note that the request contains a section 110(l) analysis, as required by the CAA for New Hampshire's I/M SIP revision. The EPA has included some information later in this document regarding expected emissions trends with the proposed removal of I/M as described in that SIP revision. 34

To establish the proper geographic scope of the EPA's CAA section 176A(a)(2) “significant contribution” analysis, another phrase in the provision must be interpreted: “any area in the region.” This phrase could reasonably mean all existing areas in the OTR, including areas within the petitioning state. 35 Here, this would include the state of New Hampshire, because the entire state is included in the OTR as established under section 184. However, we recognize that it is possible that Congress intended the EPA to focus primarily on interstate impacts within the OTR, rather than impacts within the petitioning state.

Read literally, “any” is a broad term that, in this context, encompasses areas within the petitioning state because they are currently in the OTR. However, case law recognizes that “`any' can and does mean different things depending upon the setting.”  36 Here, aspects of the statutory structure and context indicate that “any” may reasonably be interpreted to have a narrower scope than all areas of the current OTR. For instance, it could be relevant that the provision at issue is part of CAA section 176A, which is titled, “Interstate Transport Commissions,” and the provision at issue is located within the subsection entitled “Authority to Establish Interstate Transport Regions.” The basis under CAA section 176A(a) for creating or expanding a transport region is the interstate effects of air pollution. Further, under the CAA's cooperative federalism scheme, States retain the primary regulatory role in developing and implementing the necessary emissions reductions within their borders to meet the air quality standards established by the EPA. 37 If a State's removal from the OTR were projected to have negative impacts on other areas within the state, under the CAA that state would retain jurisdiction, authority, and responsibility to address such air quality problems in the first instance. 38 Rejecting a State's petition to be removed from the OTR solely on the basis of intrastate impacts could be seen as going beyond the purpose of CAA section 176A, which was promulgated to address the interstate effects of air pollution, i.e., a problem in which affected States might otherwise have no recourse.

Nonetheless, it is also possible that Congress envisioned that the grounds for removing an area from the OTR should require a different bar ( i.e., a demonstration that removal would not cause air quality problems in other States and in one's own state) than the conditions for adding a new area to a transport region (which are limited to out-of-state impacts). This broader reading of the term “any” in this context also comports with the overall public health and welfare purposes of the CAA. In this action, as explained below, the EPA proposes that New Hampshire's petition may be granted under either interpretation, because its own emissions' impact on itself does not—and is not expected to if the petition is granted—contribute to ozone NAAQS attainment problems within the state. Therefore, we need not decide whether we must apply the narrower or the broader interpretation.

Turning back to the provision as a whole, informed by the backdrop and context of other CAA provisions addressing interstate pollution transport and the States' and the EPA's actions addressing those provisions, we think CAA section 176A(a)(2) is best read in a manner consistent with the EPA's 4-step interstate transport framework, and in particular here, Steps 1 and 2. Under this interpretation, the EPA determines whether air quality problems exist in the transport region (including the state or area of a state petitioned to be removed) based on projected air quality modeling and also current monitored data. If so, the EPA then determines whether the state (or portion of a state) to be removed from the OTR is contributing less than the contribution threshold to those problems, indicating that the state (or portion of a state) is not significantly contributing to air quality problems in the OTR, and that additional OTR controls in that state (or portion of that state) and continued OTR membership are, therefore, unnecessary for attainment of the NAAQS in the OTR. Applying that framework to the question presented by CAA section 176A(a)(2), we think the best reading requires the Administrator to identify whether there are ambient air monitoring sites in the OTR that either are projected to be in nonattainment based on modeling data, or potentially struggle with maintenance or are currently violating the NAAQS based on monitored data, and whether the area petitioned to be removed from the transport region contributes less than the contribution threshold to those monitors. 39

Consistent with the 1990 CAA Amendments, several New Hampshire counties were designated as nonattainment of the now-revoked 1979 1-hour ozone NAAQS (0.12 parts per million (ppm)). The more populous southeastern counties of Strafford, Rockingham, and Hillsborough had areas that were designated as Serious nonattainment areas. South centrally located Merrimack County was classified as a Marginal nonattainment area. Cheshire County, in the State's rural southwest corner, was designated as a nonattainment area on the basis of incomplete data. These areas were all subsequently redesignated as attainment in 2012. 40

On July 18, 1997, 41 the EPA promulgated an 8-hour ozone standard of 0.08 ppm. On April 30, 2004, the EPA published a final rule designating and classifying areas under the 8-hour ozone NAAQS. 42 These designations and classifications became effective June 15, 2004. The EPA designated as nonattainment any area that was violating the 8-hour ozone NAAQS based on the three most recent years of air quality data, 2001-2003. The Boston-Manchester-Portsmouth Southern NH area was designated as nonattainment for the 1997 8-hour ozone standard and classified as a “Moderate” nonattainment area. This area includes 54 cities and towns in Hillsborough, Merrimack, Rockingham, and Strafford Counties. 43 This area was redesignated to attainment on January 31, 2013. 44 NHDES later submitted a Limited Maintenance Plan (LMP) to the EPA for the second 10-year maintenance period (2023-2032) for the Boston-Manchester-Portsmouth area which was approved on April 22, 2022. 45 On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 parts per billion (ppb). 46 On October 1, 2015, the EPA lowered the primary and secondary standards to 70 ppb. 47 New Hampshire was designated “Attainment/Unclassifiable” statewide for both the 2008 and 2015 8-hour ozone standards of 75 ppb and 70 ppb, respectively. 48

On December 24, 2025, the state of New Hampshire petitioned the EPA pursuant to CAA section 176A(a)(2) for the removal of the state of New Hampshire from the OTR. The NHDES provided an analysis making the case that New Hampshire's emissions are not a significant contributor to the nonattainment for the 8-hour ozone NAAQS in other States and in New Hampshire. New Hampshire's analysis consists of modeling “back trajectories” for ozone exceedance days in 2021, 2022, and 2024, 49 50 ozone contribution modeling, emissions data, and an analysis of mobile source impacts. The EPA's assessment of the CAA section 176A petition is discussed in section V.

If the EPA takes final action granting New Hampshire's petition, the main change is that New Hampshire will no longer be required to implement an Enhanced motor vehicle I/M program if the EPA also approves the SIP revision removing the program. On December 24, 2025, together with the 176A petition, New Hampshire submitted a request to revise its SIP to remove the State's vehicle I/M program. Concurrent with today's proposal to grant New Hampshire's 176A petition, the EPA is also proposing to approve New Hampshire's SIP revision in a separate Notice of Proposed Rulemaking in the Federal Register .

In the December 24, 2025, petition to remove the state from the OTR, New Hampshire confirmed that no current control requirements in the SIP will be relaxed as a result of the petition request with the exception of the I/M program. To date, other than for the removal of the I/M program, New Hampshire has not submitted any SIP revisions to modify current OTR control requirements. Should the EPA grant final approval of New Hampshire's petition, this would not in itself have the effect of revising New Hampshire's existing SIP requirements. A more detailed discussion of the changes follows in paragraphs i-iv.

The NSR provisions in Parts C and D of title I of the CAA are a combination of air quality planning and air pollution control technology provisions that require stationary sources of air pollution to obtain permits before they are first constructed or engage in a modification of an existing facility. To comply with the requirements of the CAA and the NSR implementing regulations at 40 CFR 51.160 through 51.166, most States have EPA-approved SIPs in place to implement the Prevention of Significant Deterioration (PSD), Nonattainment New Source Review (NNSR), and minor NSR preconstruction permit programs. The state of New Hampshire implements its CAA permitting program requirements through Env-A 600, Statewide Permit System. Revisions to the NNSR and PSD programs were last approved into the New Hampshire SIP on May 25, 2017. 51 Together, New Hampshire's PSD, NNSR, and minor NSR permitting programs ensure that construction of new and modified stationary sources of air pollutant emissions do not significantly deteriorate air quality, impede reasonable further progress in nonattainment areas, or interfere with maintenance of any NAAQS.

Pursuant to New Hampshire's NNSR program, new major stationary sources are subject to New Hampshire's NNSR permitting program requirements, including installing control technology that meets the statutory definition of the Lowest Achievable Emission Rate (LAER) and obtaining emissions offsets, for any pollutant ( i.e., NO X or VOC) which the source has the potential to emit in amounts equal to or greater than the respective major source threshold. For existing major stationary sources in New Hampshire, NNSR permitting requirements apply to construction projects, or “major modifications,” that would result in a significant net emissions increase of NO X or VOC.

New Hampshire, in its submittal, indicated that the state intends to keep the NNSR program intact, so any new major sources and major modifications at existing major sources would still be subject to NNSR (including LAER and emissions offsets.). If, in the future, the state requested to change this program, it would need to submit a request to modify Env-A 600 in the SIP, which would also require an anti-backsliding demonstration under section 110(l).

Section 184(b)(1)(A) of the Act requires certain areas in the OTR to adopt and implement an inspection and maintenance program meeting the EPA's Enhanced I/M performance standard. The EPA's I/M rule was established on November 5, 1992. 52 The I/M regulation was codified at 40 CFR part 51, subpart S, and requires States subject to the I/M requirement to submit an I/M SIP revision that includes all necessary legal authority and the items specified in 40 CFR 51.350 through 51.373. New Hampshire will no longer be required by CAA section 184(b)(1)(A) to implement an I/M program if the EPA approves the State's petition to withdraw from the OTR. New Hampshire's I/M program, however, is approved in the SIP, and requires a formal request from the state to remove it. New Hampshire submitted a request for a SIP revision to remove this program, along with a section 110(l) anti-backsliding analysis, on the same day it submitted the 176A petition. That SIP revision is being addressed in more detail in a separate rulemaking document (see Docket ID No. EPA-R01-OAR-2026-2147 at https://www.regulations.gov ).

Stage II refueling vapor recovery systems and vehicle onboard refueling vapor recovery (ORVR) systems were initially both required by the 1990 Amendments to the CAA. Section 182(b)(3) requires ozone nonattainment areas classified Moderate and above to implement Stage II refueling vapor recovery programs. Under CAA section 184(b)(2), States in the OTR were also required to implement Stage II or comparable measures. CAA section 202(a)(6) required the EPA to promulgate regulations for ORVR for light duty vehicles (passenger cars). 53 New Hampshire's Stage II requirements were included in Env-Or 500 “Recovery of Gasoline Vapors.” With the widespread use of ORVR, New Hampshire's revised Env-Or 500 decommissioning Stage II vapor recovery requirements was approved into the SIP. 54 The EPA's proposed granting of New Hampshire's 176A petition would have no impact on Stage II requirements due to the decommissioning of the program in New Hampshire.

Sections 182(b)(2) and 184(b)(1)(B) of the CAA require States with ozone nonattainment areas that are classified as Moderate or above, as well as areas in the OTR, to submit a SIP revision requiring the implementation of RACT for sources covered by a control techniques guideline (CTG) and for all major sources of VOCs and NO X . A CTG is a document issued by the EPA that is used to help determine VOC RACT for a specific VOC source category. RACT is defined as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. The CTGs usually identify a particular control level that informs a RACT analysis. States in the OTR are required to address RACT for the source categories covered by CTGs through adoption of rules as part of the SIP, and they are also required to adopt RACT for major sources of VOCs (50 tpy) and major sources of NO X (50 tpy) even if a CTG does not apply. The EPA approved New Hampshire's RACT certification for the 2008 and 2015 ozone standards on September 6, 2023, 55 and on April 30, 2024. 56

If finalized, the EPA's grant of New Hampshire's petition would terminate New Hampshire's federal obligation under CAA section 184 to adopt RACT requirements for any potential future ozone NAAQS. As noted above in the NSR discussion, New Hampshire has indicated in its 176A petition that it does not intend or desire to remove any stationary source programs currently in the SIP from the SIP. The EPA notes again that if, in the future, the state decided to seek to relax or remove RACT requirements in its SIP, any such revision would be required to satisfy an anti-backsliding demonstration under section 110(l).

As noted previously, the New Hampshire petition included detailed technical analyses for VOC and NO X emissions in the state, including an analysis of whether emissions from New Hampshire impact other areas in the OTR. The State's analysis contains back trajectories using the National Oceanic and Atmospheric Administration (NOAA) Air Resources Laboratory's Hybrid Single-Particle Lagrangian Integrated Trajectory (HYSPLIT) model and photochemical contribution modeling. 57 HYSPLIT trajectory analyses provide information on wind patterns and can indicate whether air masses originating over New Hampshire emissions sources reached locations near violating ozone monitors (forward trajectories) and whether air masses impacting violating monitors originated from or passed over New Hampshire locations (back trajectories). These wind patterns could potentially be used to exclude impacts if air from New Hampshire did not reach violating monitors. However, trajectories alone cannot be used to indicate the magnitude or significance of contributions because wind patterns do not show whether, or to what extent, emissions from the upwind locations impact air pollution concentrations at a downwind receptor, only that transport of air from the upwind location was present. In contrast, the photochemical contribution modeling tools referenced in this assessment calculate combined impacts of emissions, mixing, transport and chemistry to provide quantitative estimates of ozone impacts due to tracked emissions from the upwind state.

New Hampshire used a four-phase analysis to demonstrate how it does not, and will not, contribute to attainment status for areas in the OTR. In Phase 1, NHDES performed an initial screening of potential New Hampshire connections to OTR 8-hour ozone exceedances by conducting HYSPLIT 48-hour forward trajectory analysis. In phase 2, New Hampshire conducted additional HYSPLIT back trajectory analysis for dates and approximate locations of ozone exceedances in States directly adjacent to New Hampshire as well as dates and approximate locations of ozone exceedances in any other OTR state where the NHDES Phase 1 forward trajectories passed within approximately 100 kilometers of an exceeding monitor. Phase 3 further refined the HYSPLIT back trajectory analysis to more specifically assess transport to the exact location of violating monitors at the exact times impacting the measured exceedances. In Phase 4, NHDES examined photochemical contribution modeling to quantify the State's contribution to these nonattainment areas. NHDES provided further inspection of New Hampshire's emissions trends in their technical demonstration to supplement the HYSPLIT and source apportionment modeling analyses.

For Phase 1, New Hampshire applied HYSPLIT v5.4.0 with NAM 12 km meteorology; and produced 48-hour forward trajectories at 100 m and 750 m AGL start heights with four start times per day (starting two days before the exceedance day). New Hampshire identified 324 site-day combinations experiencing ozone NAAQS exceedances within the OTR in 2021, with 27 of those exceedances being in the neighboring States of Maine and Massachusetts. 58 In 2022, 177 site-day combinations experienced ozone exceedances within the OTR, with 17 of the exceedances occurring in Maine and Massachusetts. In 2024, New Hampshire found 304 site-day combinations experiencing ozone NAAQS exceedances within the OTR, with 11 of these in Maine and Massachusetts. New Hampshire performed forward trajectories for 105 dates  59 for Phase 1, including 34 for 2021, 32 for 2022, and 39 for 2024, for all States in the OTR. Accounting for the two different starting elevations, New Hampshire completed a total of 840 forward trajectories for Phase 1. New Hampshire, through Phase 1 modeling, found 21 dates during 2021, 2022 and 2024 on which ozone exceedance either occurred in neighboring States to New Hampshire or on which forward trajectories passed within approximately 100 kilometers of an exceeding monitor in a non-neighboring OTR state. NHDES determined that further analysis was warranted on these dates for which New Hampshire emissions could potentially influence ozone exceedances in other OTR States. These dates were further analyzed in Phase 2.

For Phase 2, NHDES conducted 48-hour back trajectories using the data and methods listed below for each day where NHDES determined that Phase 1 trajectories identified the potential for New Hampshire ozone precursor emission influence on ozone exceedances observed elsewhere in the OTR (and for the above-mentioned neighboring States' exceedances). 60 While NHDES did not conduct a separate back trajectory for every violating monitor location on these days, they determined that using a smaller number of representative monitoring locations appropriately captured the transport of air parcels relevant to ozone exceedances within the OTR. NHDES selected a total of 47 site-day combinations as starting points for HYSPLIT back trajectories relevant to monitored ozone exceedances during 27 dates in the Phase 2 assessment. Again, HYSPLIT trajectories applied the same two starting elevations as were used in the Phase 1 forward trajectories. NHDES then performed back trajectories for each of these exceedances. The air trajectories used by NHDES are four-dimensional representations of the path an air parcel follows, in 3-D space and time, based on surface and upper-level meteorological data during the day of and days prior to the measured exceedances. A back trajectory represents the path an air parcel takes to reach a specific point in time and space. Through the Phase 2 back trajectory analysis, NHDES concluded that New Hampshire emissions could potentially influence exceedances at monitors in three other OTR States on three dates. 61 New Hampshire further evaluated these monitor exceedances in Phase 3.

For Phase 3 of the analysis, NHDES again conducted 48-hour back trajectories for monitors beginning on the dates of the ozone exceedances, but this time using the exact locations of all exceeding monitors and the exceedance hours starting on hour 3, 5, and 7 on the 8-hour period to represent the maximum daily exceedance period. NHDES used 10, 100, and 750-meter start heights, and again used the HYSPLIT v5.4.0 model with NAM 12km meteorology. NHDES, through this analysis, identified four ozone exceedances (one in Connecticut, three in New Jersey) that could suggest potential back trajectory linkage to emissions from New Hampshire. These monitors are located in Chester, NJ; Ramapo, NJ; Columbia, NJ; and Groton, CT. 62 For each of these exceedances, according to NHDES, the only trajectory that showed any possible New Hampshire connection started at the highest altitude (750-m) while trajectories starting at lower altitudes did not show potential linkages. 63 NHDES indicated that these trajectories passed over only the very northern portion of New Hampshire (which has very low population and emission density), and any emissions from these areas were small compared to emissions occuring along the lower-level trajectories from high density areas like New York City and New Jersey. Given the form of the ozone NAAQS which is based on the 3-year average of the annual 4th highest value, NHDES maintained that the fact that this analysis only found these four locations with potential linkages over the three years analyzed, makes it extremely unlikely that emissions from New Hampshire contributed to nonattainment anywhere in the OTR. NHDES further analyzed the potential for the State's emissions to impact ozone attainment in Phase 4.

In addition to the trajectory analysis discussed above, New Hampshire's petition uses the EPA's photochemical modeling for the EPA's Transport Assessment contribution modeling with emissions that were projected from a 2016 base year to a 2023 analytic year. New Hampshire also analyzed an OTC version of a similar scenario using the same base and projected years as the EPA model. Both modeling platforms provided similar results. New Hampshire found, through analyzing the EPA model results, that total anthropogenic emissions in the State of New Hampshire contributed less than the 1 percent of the NAAQS contribution threshold to all OTR monitors outside of Maine and Massachusetts. The largest NH contributions at monitors outside of Maine and Massachusetts were 0.2 ppb or 0.28% for Chester, NJ; 0.06 ppb or 0.08% for Ramapo, NJ; 0.21 ppb or 0.30% for Columbia, NJ; and 0.01 ppb or 0.02% for Groton, CT. These results were all well below the 1 percent of NAAQS contribution threshold New Hampshire chose to apply, as described in section III.C. of this document. Additionally, New Hampshire asserted that higher contributions modeled to occur at monitoring sites in Maine and Massachusetts are not currently interfering with those States' attainment of the ozone NAAQS as evidenced by ozone design values below the 70 ppb NAAQS standard based on current and recent air quality data (this is further evaluated later in this document).

New Hampshire supplemented the analysis by examining an EPA Transport Climatology study for several ozone nonattainment areas throughout the country. The analysis conducted back trajectories for a 12-year period from 2010 through 2021 for specific monitors of interest, including monitors in Connecticut. The study found that back trajectories to Connecticut ozone exceedances rarely passed over New Hampshire. 64

Additionally, New Hampshire provided graphical figures showing NO X and VOC historical statewide emissions trends as well as projected emissions trends out to 2038. The projected emissions data are broken out into four source types (on-road vehicles, non-road equipment, point sources, and nonpoint sources), and show that emissions in the state are declining and are expected to continue to decline through 2038. Additionally, the petition provides data to show that the total annual anthropogenic NO X and VOC emissions in 2022 for the entire State of New Hampshire are just over 2% and 3%, respectively, of the OTR total. 65

Finally, New Hampshire provided a demonstration of how emissions from vehicles registered and residing in New Hampshire will not impact air quality in other OTR States. New Hampshire found that for the mobile source emissions sector in 2022, the emissions from the state accounted for only 2.48% of NO X and 3.54% of VOC emissions in the OTR. NHDES also analyzed commuter patterns compiled by the New Hampshire Department of Employment Security based on information from the American Community Survey (ACS). NHDES, in this analysis, found overall low mobile source emissions from New Hampshire vehicles commuting to other States, especially when offset by emissions from vehicles from other States commuting to New Hampshire.

As noted in section III.C. of this proposed document, the EPA views the inquiry under CAA section 176A(a)(2) as necessitating the identification of current and future air quality problems in the OTR, determining whether the petitioning area is significantly contributing to those problems, and examining whether removal of the petitioning area from the OTR will significantly contribute to nonattainment or maintenance problems in the future. The EPA proposes to find that the technical analyses submitted by New Hampshire in its CAA section 176A petition, in conjunction with analysis performed by the EPA, support New Hampshire's petition to remove the state from the OTR.

Typically, the EPA has relied on photochemical grid modeling in the first instance when conducting analysis of potential linkages between upwind and downwind States for purposes of evaluating interstate transport obligations for ozone. However, in this case the HYSPLIT analyses performed by New Hampshire and summarized in section V.A. are a technically sound and appropriate method to support showing the potential (or lack of potential) of an area to contribute to high-ozone values at a downwind location. This type of trajectory analysis is a commonly used method to examine potential source-receptor relationships based on air transport patterns. We are proposing to agree that the analysis provided by New Hampshire showed that in 2021, 2022, and 2024, air parcels containing high-ozone concentrations at monitors in the OTR on ozone exceedance days rarely ever originated from or recently passed over New Hampshire. The analysis NHDES conducted using HYSPLIT accords with the available photochemical grid modeling in demonstrating that New Hampshire does not contribute above even a 1 percent of NAAQS threshold to any locations struggling to attain or maintain the ozone NAAQS in the OTR.

The EPA agrees that the forward and back trajectories provided by NHDES in the petition demonstrate that emissions from New Hampshire are extremely unlikely to contribute to attainment problems in the OTR. NHDES indicated only four monitor locations, on two dates over three years of monitoring data (2021, 2022, and 2024), that showed any potential linkage to emissions from New Hampshire, and even on those dates, the back trajectories showed linkages only from airmasses aloft at the highest modeled start height (750 m). The lower-level modeled back trajectories at the 10-m and 100-m start heights passed through New York City (NYC) and New Jersey (NJ), areas with much higher population and emissions density and higher mobile source emissions. Given the higher emissions from NYC and NJ and the trajectories from NYC and NJ having a closer proximity to the monitors than New Hampshire emissions, the NYC and NJ areas would likely have had a much larger impact on the monitor values for those days than any potential New Hampshire contribution aloft at 750 m. 66

The EPA also provided NHDES with a Transport Climatology Study  67 that conducted back trajectories for a 12-year period from 2010 through 2021. NHDES used this study to supplement their own analysis and closely examined the back trajectories—focusing on the most recent years of 2019-2021. The EPA agrees that the Transport Climatology analysis supports the conclusion that New Hampshire ozone precursor emissions do not significantly contribute to nonattainment areas within the OTR. The back trajectories in the images provided by NHDES rarely, if ever, pass over the state of New Hampshire during the hours leading up to measured exceedance days.

The EPA's interstate transport modeling for the 2015 ozone NAAQS further supports the conclusions that: (1) New Hampshire has historically contributed below 0.70 ppb to all States other than Maine and Massachusetts (neither of which contain current or projected ozone nonattainment receptors (as defined within the EPA's 4-step framework)) and contributes well below that threshold to any such receptors in the OTR; and (2) the State will continue to contribute below that threshold to all receptors in the OTR in the future. Further, the EPA agrees with NHDES's analysis in the petition that New Hampshire does not have any monitors showing design values above the 70-ppb standard and that granting the petition would not cause any to fall into nonattainment in the future. As discussed throughout this document, New Hampshire has indicated that it intends to keep SIP approved measures other than the I/M program intact, which will help New Hampshire stay in attainment. The EPA's source apportionment modeling employs enhanced techniques that track the formation and transport of ozone from specific emissions sources and calculates the contribution of sources and precursors to ozone for individual receptor locations. The strength of the photochemical model source apportionment technique is that all modeled ozone at a given receptor location in the modeling domain is tracked back to specific sources of emissions and boundary conditions to fully characterize culpable sources.

Data from the contribution analysis are summarized within table 15 of the State's submittal, showing the maximum modeled ozone contribution from New Hampshire's emissions in other OTR States. The data indicate a maximum modeled impact of only 0.21 ppb for a receptor in any state containing an ozone nonattainment area in 2023 (New Jersey) which is well below one percent of the NAAQS (0.70 ppb) that New Hampshire chose to apply as described in III.C of this proposed action. The EPA also examined its 2023 contribution modeling to identify the highest contribution from New Hampshire to any other monitor in another state, regardless of attainment status. The EPA agrees with NHDES that New Hampshire's highest contributions to monitors in other States are to monitors located in southern Maine and northeastern Massachusetts, which are areas that are in attainment for the 2008 and 2015 ozone NAAQS, and have shown no indication that they will struggle with attainment in the future. 68 69

EPA notes that the projected modeled contributions were for the year 2023, which was not one of the years for which NHDES performed HYSPLIT trajectory analyses. The 2023 contributions were modeled using 2016 meteorology, 2016 emissions from natural sources such as biogenics and fires, and projected 2023 anthropogenic emission inventories. Although NHDES did not analyze 2023 for back trajectories the projected 2023 model results from the EPA's 2016v3 modeling are informative for this assessment. 2023 back trajectories were not analyzed at the EPA's suggestion due to the complexity of interpreting potential for contributions using HYSPLIT trajectories in a year with substantial wildfire emissions that originated from locations upwind of New Hampshire. 70 However, those wildfire events did not affect the validity of the EPA modeling of the 2023 analytic year, which used a 2016 base year. The EPA also notes that both the EPA and OTC 2023 modeled scenarios displayed a very low contribution from New Hampshire to any of the potentially affected monitors. 71

We also propose to find that the NO X and VOC historical emissions trends and projected future emissions trends information to 2032 and 2038 provided in New Hampshire's submittal further support removal of the petitioning area from the OTR. VOC and NO X emissions in New Hampshire have declined since 2005 and are expected to continue to decline into the future. The historical and projected downward trend is driven, in large part, by emissions reductions from the point source and on-road mobile source categories. 72

The EPA notes that New Hampshire's future year emissions projections for the years 2022, 2026, 2032, and 2038 were developed using EPA's 2022v1 Emissions Modeling Platform (2022v1 EMP). The 2022v1 EMP used EPA's Motor Vehicle Emission Simulator (MOVES) model version 4 (MOVES4) to estimate emissions from onroad and nonroad mobile sources. On February 12, 2026, the EPA finalized the rescission of the Greenhouse Gas (GHG) Endangerment Finding and repealed all GHG emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines (“Endangerment Finding Rescission Rule”). 73 Due to this action, aspects of the State's planning assumptions from the MOVES4 model may no longer be entirely consistent with the latest information. The EPA recognizes that States have relied on MOVES4 and MOVES model version 5, including the national default electric vehicle (EV) projections tied in part to the implementation of these now-repealed standards, in developing some actions that have been submitted to the EPA.

Per the EPA's MOVES Policy Guidance, States “should use the latest version of MOVES that is available at the time that a SIP is developed.”  74 In this guidance, the EPA also stated that an earlier version of MOVES can be used if significant work has already been completed using that earlier version. 75 In addition, the EPA indicated that for fuel type distributions for onroad vehicles that include estimates of EVs, States should use local data if available and could rely on the default information within the model as planning assumptions. 76 While this action is not a SIP revision, this guidance for SIPs, including mobile source emissions inventories, could be applied to the emissions inventories in this petition. Therefore, based on the EPA's statements in the EPA's MOVES Policy and Technical Guidance, the State reasonably relied on the assumptions in MOVES4 and thus the 2022v1 EMP.

New Hampshire's documentation shows that statewide point source emissions of NO X and VOC decreased by 87 and 62 percent, respectively from 2005 to 2020. New Hampshire's projections predict that NO X and VOC emissions will continue to decrease into the future. For example, New Hampshire's analysis of statewide emissions shows NO X and VOC reductions of 30 and 7 percent, respectively, between 2022 and 2038. The EPA, therefore, proposes to find that granting New Hampshire's petition to remove the state from the OTR, and the changes in the extent of emissions controls that would result, will not significantly contribute to nonattainment or maintenance problems for any area in the OTR. As noted, the emissions trends in New Hampshire indicate continued decline in emissions of ozone precursors associated with on-the-books emissions controls and do not depend on any new emissions limitations that would be driven by OTR control requirements under CAA section 184(b). In addition, New Hampshire's highest modeled contribution to any currently identified receptor in the OTR that has struggled with attainment of the 2015 ozone NAAQS is only 0.21 ppb. This suggests that the ozone contribution from anthropogenic ozone precursor emissions in New Hampshire would have to increase by more than a factor of three for New Hampshire to potentially contribute above one percent of the 2015 ozone NAAQS to an existing or projected ozone nonattainment or maintenance problem in the OTR. The EPA finds that granting the petition would not result in a change in emissions sufficient to increase its downwind ozone contribution by a factor of more than three resulting from either removal of existing emissions controls or unchecked growth in new source emissions. The historic emissions trends in New Hampshire and the CAA's section 110(l) anti-backsliding provisions for SIP revisions provide assurances that a substantial increase in emissions is highly unlikely and would represent an unprecedented reversal in overall emissions reductions for any state, whether in the OTR or not.

Further, the primary change in the ozone control regime that will result from granting the petition would be if the EPA approves New Hampshire's SIP revision to remove the I/M program. This revision is discussed in a separate rulemaking, but the New Hampshire submittal includes a section 110(l) demonstration that shows how removing the program will not interfere with attainment or maintenance of any NAAQS or other CAA requirements.

Finally, the EPA acknowledges the significant amount of time and resources required by New Hampshire to develop this petition. In the evaluation of this petition, the EPA is considering the modeling and information provided by New Hampshire and affirming that the State relied on the appropriate EPA models and guidance information available at the time it developed this petition. To acknowledge and accommodate reliance interests States may have had in MOVES4, and thus the 2022v1 EMP, based on the EPA's statements in the EPA's MOVES Policy and Technical Guidance, the EPA is proposing to find that New Hampshire appropriately considered onroad mobile source emissions for this petition. The EPA also notes that the New Hampshire modeled scenario displays an overall reduction in both VOCs and NOx by 2038, even when disregarding the projected on-road sector emission reductions. 77

Based on the information discussed in this document, the EPA is proposing to grant New Hampshire's CAA section 176A petition. In consideration of monitoring data, emissions data, technical demonstrations (including air quality modeling and trajectory analyses), and the potential impact to air quality control regimes, the EPA proposes to find that additional OTR controls under CAA section 184(b) for New Hampshire will not significantly contribute to attainment of any ozone NAAQS in any area of the OTR. In support of this proposed conclusion, the EPA finds that removing the state from the OTR will not result in emissions changes that would significantly contribute to nonattainment or interfere with maintenance of any ozone NAAQS in any area of the OTR. The entire state of New Hampshire has been designated attainment for ozone since 2013. Technical demonstrations from New Hampshire's HYSPLIT back trajectory analysis, the EPA's ozone source apportionment modeling, and emissions trends all support the assertion that emissions from New Hampshire will not significantly contribute to nonattainment or maintenance problems in any area in the OTR, including within the state of New Hampshire itself, in the foreseeable future. Furthermore, removing the state from the OTR will not result in unchecked relaxation of existing NO X and VOC controls included in New Hampshire's SIP or revoke permitted emissions limits at existing facilities. Any future revisions to New Hampshire's SIP (including potential removal of the State's I/M program) would be subject to CAA section 110(l) anti-backsliding demonstrations. Accordingly, the EPA proposes to grant the CAA section 176A petition filed by the state of New Hampshire. The EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

Under section 307(b)(1) of the CAA, petitions for judicial review of this action, if finalized, must be filed in the United States Court of Appeals for the appropriate circuit within 60 days of publication of any final action. Filing a petition for reconsideration by the Administrator of this rule, if finalized, will not affect the finality of the rule for the purposes of judicial review nor will it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. The Administrator of the EPA hereby determines that this action is subject to CAA section 307(d), as authorized by section 307(d)(1)(V).

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 81 as follows:

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 26-195; RM-12023; DA 26-804, adopted July 31, 2026, and released July 31, 2026. The full text of this document is available online at https://www.fcc.gov/edocs.

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in §  1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See §§  1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

Providing Accountability Through Transparency Act: The Providing Accountability Through Transparency Act, Public Law 118-9, requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. The required summary of this notice of proposed rulemaking is available at https://www.fcc.gov/proposed-rulemakings.