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

Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2026-0364 for this rulemaking. Please note, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at http://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments received, go to http://www.regulations.gov, referencing DHS Docket No. USCIS-2026-0364. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

The purpose of this proposed rule is to remove the availability of the up to 60-day discretionary grace period from the regulations at 8 CFR 214.1(l)(2). The up to 60-day discretionary grace period disconnects the alien's lawful status from the very basis of eligibility under these employment-based nonimmigrant classifications. By statute, an alien's lawful status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN nonimmigrant classification is directly connected to and contingent upon the alien conducting certain employment activities or otherwise providing services in the United States that is generally tied to a petitioning employer. In order for an alien in any one of these classifications to maintain his or her status, the alien generally must maintain the employment or continue to perform the activity that was the basis of the alien's eligibility for the classification and associated admission or grant of status. However, under current regulations, these aliens, and their dependents, are not considered to have failed to maintain nonimmigrant status for a grace period of up to 60 days following cessation of the employment or activity that was the basis of their nonimmigrant status, unless that grace period is shortened or eliminated as a matter of DHS discretion. Typically, the decision whether or not to shorten or eliminate the grace period is made by DHS when a petitioner submits a petition on behalf of an alien, or the alien submits an application on behalf of him or herself, which seeks to extend the stay or change or adjust the status of the alien following the cessation of employment or activity that was the basis of his or her initial classification or grant of status.

The proposed rule, by removing the up to 60-day discretionary grace period, would better align the regulations with the statutory provisions governing the relevant classifications by requiring an alien to depart from the United States immediately upon his or her failure to maintain the employment or activity that was the basis for the nonimmigrant classification or status (unless otherwise authorized to lawfully remain in the United States). It would also reduce the administrative burden on USCIS associated with the grace period.

DHS originally extended this grace period to aliens in the listed classifications, and their dependents, to encourage aliens who ceased employment prior to the end of the petition validity period to remain in the United States to pursue other immigration options to maintain a lawful immigration status and, depending on the classification sought, continue or regain employment authorization; and to help U.S. employers to more easily facilitate changes in employment for existing and newly recruited nonimmigrant workers. 1 However, the relevant rulemaking did not sufficiently consider the negative impacts of the grace period provision. Upon reconsideration, and consistent with the Secretary of Homeland Security's (Secretary) broad authority to set the time and conditions of admission of nonimmigrants and to require that they depart the United States upon failure to maintain the employment or activity that was the basis for the classification or status, DHS believes that removing the up to 60-day discretionary grace period through this proposed rule is necessary to better align the regulations with the statutory basis for nonimmigrant status and to reduce administrative burden associated with administering the grace period.

The Secretary's authority for regulatory amendments is found in various provisions of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. 1101, et seq., and the Homeland Security Act (HSA) of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101, et seq., General authority for issuing this rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, and to establish such regulations as the Secretary deems necessary for carrying out such authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations. 2 Additional authority for this rule is found in:

• Section 101(a)(15) of the INA, 8 U.S.C. 1101(a)(15), which establishes classifications for aliens who are coming temporarily to the United States as nonimmigrants, including the E-1, E-2, E-3, H-1B, H-1B1, L-1 and O-1 classifications, see INA sec. 101(a)(15)(E)(i), (ii) and (iii), (H)(i)(b) and (b1), (L) and (O), 8 U.S.C. 1101(a)(15)(E)(i), (ii) and (iii), (H)(i)(b) and (b1), (L) and (O);

• Section 214(a) of the INA, 8 U.S.C. 1184(a), which authorizes the Secretary to prescribe by regulation the time and conditions of the admission of nonimmigrants.

• Section 214(e) of the INA, 8 U.S.C. 1184(e), which authorizes the admission of aliens under the TN classification pursuant to the provisions of Section D of Annex 16-A of the USMCA (United States-Mexico-Canada Agreement) (as defined in 19 U.S.C. 4502); and

• Section 451(a)(3) and (b) of the HSA, 6 U.S.C. 271(a)(3) and (b), transferring to USCIS the authority to adjudicate petitions for nonimmigrant status, establish policies for performing that function, and set national immigration services policies and priorities.

The purpose of this NPRM is to propose removing 8 CFR 214.1(1)(2) from DHS regulations and no longer providing an up to 60-day discretionary grace period for aliens admitted or otherwise provided status in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications, and their dependents, following cessation of the employment or activity that was the basis for the alien's admission or grant of status. As discussed fully in Section V.A.3 Costs and Benefits of the Proposed Rule of this preamble, DHS conducted a qualitative assessment of the impact of the proposed rulemaking on primary E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrants and their dependents who are authorized to work. DHS recognizes that as a consequence of this change, a subset of these aliens may incur lost income if they require additional days to conduct their job search and return to the United States because they would need to leave the country instead of being able to stay and begin new employment without departing. DHS estimates that under this proposed rule, some aliens may be issued Notices to Appear (NTA), 3 thereby incurring costs of attending immigration hearings with the Department of Justice Executive Office for Immigration Review (EOIR) as part of removal proceedings. However, the proposed rule would enable DHS to conduct the administration and adjudication of immigration benefit requests for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications with increased fidelity and is conducive to program integrity. DHS acknowledges that the proposed rulemaking would marginally increase the volume of USCIS referrals to EOIR annually and lead to a minor increase in workload demands on both DOJ and U.S. Immigration and Customs Enforcement (ICE).

Many aliens come to the United States under a nonimmigrant visa classification. Certain nonimmigrant visa classifications, including E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN, permit aliens to be employed or otherwise provide services in the United States for temporary periods. Each classification for purposes of employment or otherwise performing services in the United States has its own eligibility requirements, and terms and conditions related to the period of admission of status and maintenance of status, the ability to renew the status, and the ability to change jobs or employers.

The E-1 nonimmigrant classification allows aliens of certain treaty countries to be admitted to the United States solely to engage in international trade on their own behalf. To qualify for E-1 classification, the treaty trader must be (1) a national of a country with which the United States maintains a qualifying treaty, and (2) carry on substantial trade, principally between the United States and the treaty country that qualifies the treaty trader for E-1 classifications. See INA sec. 101(a)(15)(E)(i), 8 U.S.C. 1101(a)(15)(E)(i); 8 CFR 214.2(e)(1). Additionally, certain employees of a treaty trader, the treaty organization's parent company or one of its subsidiaries may also be eligible for the classification. See 8 CFR 214.2(e)(3) and (8). An E-1 nonimmigrant's employment is restricted, and he or she may only engage in trade activity and work in the employment for which he or she was admitted or otherwise granted E-1 status. See 8 CFR 214.2(e)(8) and 274a.12(b)(5).

The E-2 nonimmigrant classification concerns nationals of treaty countries who invest a substantial amount of capital in a U.S. enterprise. To qualify for E-2 classification, the treaty investor must (1) be a national of a country with which the United States maintains a qualifying treaty, (2) have invested or be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States and (3) be seeking to enter the United States solely to develop and direct the enterprise. See INA sec. 101(a)(15)(E)(ii), 8 U.S.C. 1101(a)(15)(E)(ii); 8 CFR 214.2(e)(2). Certain employees of treaty investors or the treaty investor's qualifying organization may also be eligible for the classification, but the employee's work is limited to the investment activity. See 8 CFR 214.2(e)(3) and (8) and 274a.12(b)(5). A treaty investor or employee in E-2 nonimmigrant status may only engage in the investment activity or work in the employment for which he or she was approved at the time the classification was granted. See 8 CFR 214.2(e)(8)(i). E-2 nonimmigrant employees, however, may also work for the treaty organization's parent company or one of its subsidiaries in certain circumstances. See 8 CFR 214.2(e)(8)(ii).

E-1 and E-2 nonimmigrants generally may be admitted or otherwise granted nonimmigrant status for an initial period of up to 2 years and such status may be renewed indefinitely, in increments of up to 2 years, so long as the alien continues to meet the relevant qualifications. 4 See 8 CFR 214.2(e)(19) and (20). Additionally, E-1 and E-2 nonimmigrants must intend to depart the United States upon expiration or termination of their status. See 8 CFR 214.2(e)(1) and (2).

The E-3 nonimmigrant visa classification concerns specialty occupation workers who are nationals of the Commonwealth of Australia. See INA sec. 101(a)(15)(E)(iii), 8 U.S.C. 1101(a)(15)(E)(iii). The definition of the term “specialty occupation” is the same as for the H-1B classification. See INA sec. 214(i)(1), 8 U.S.C. 1184(i)(1). To qualify for the E-3 classification, the employer must file a Labor Condition Application (LCA) in accordance with section 212(t)(1) of the INA, 8 U.S.C. 1182(t)(1), and may then apply directly to the Department of State if the alien is outside of the United States or the employer may file a petition requesting E-3 status with USCIS if the alien is present in the United States in another classification. See 9 Foreign Affairs Manual (FAM) 402.9-8(C). E-3 nonimmigrant workers may be admitted or otherwise granted status for an initial period not to exceed the validity period of the accompanying LCA (granted for 2 years) and may be granted indefinite extensions of stay in increments of up to 2 years. See 20 CFR 655.750(a)(2). An E-3 nonimmigrant's employment is restricted, and he or she may only engage in the specialty occupation employment for which he or she was admitted or otherwise granted E-3 status. See 8 CFR 274a.12(b)(5). As with other nonimmigrant visa classifications, the E-3 classification requires the alien intend to depart the United States upon expiration or termination of his or her status.

The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations, defined by statute as occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree in the specific specialty, or its equivalent (referred to as a “specialty occupation”). 5 See INA sec.101(a)(15)(H)(i)(b) and 214(i), 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1184(i); see also 8 CFR 214.2(h)(1)(ii)(B). Congress set the current annual cap for the H-1B visa category at 65,000, which limits the number of beneficiaries who may be issued an initial H-1B visa or otherwise provided initial H-1B status each fiscal year. 6

An employer who seeks to temporarily employ an alien as an H-1B in a specialty occupation must file an LCA in accordance with section 212(n)(1) of the INA, 8 U.S.C. 1182(n)(1), and a petition to obtain H-1B nonimmigrant classification on behalf of the alien. See INA sec. 214(c)(1), 8 U.S.C 1184(c)(1). Employers and certain agents that satisfy DHS regulatory requirements are eligible to file H-1B petitions. See 8 CFR 214.2(h)(2)(i)(A) and (F). H-1B specialty occupation workers generally may be admitted or otherwise granted nonimmigrant status for an initial period of up to 3 years. See 8 CFR 214.2(h)(9)(iii)(A)( 1 ). The maximum period of authorized admission of an alien in the H-1B classification is generally 6 years. See INA sec. 214(g)(4), 8 U.S.C. 1184(g)(4). Typically, an H-1B petition may not be approved for an alien who has stayed for the maximum allowable amount of time in the United States in either H-1B or L-1  7 nonimmigrant worker status unless the alien has resided and been physically present outside the United States for the immediate prior year. See 8 CFR 214.2(h)(13)(iii)(A). An H-1B nonimmigrant's employment is restricted, and he or she may only engage in the employment for which he or she was admitted or otherwise granted H-1B status, or as otherwise authorized under H-1B portability. See 8 CFR 274a.12(b)(9). 8

The H-1B1 program allows U.S. employers to temporarily employ nationals of Singapore and Chile in specialty occupations. See INA sec.101(a)(15)(H)(i)(b1) and 214(i), 8 U.S.C. 1101(a)(15)(H)(i)(b1). An employer who seeks to temporarily employ an alien in H-1B1 status must file an LCA in accordance with section 212(t)(1) of the INA, 8 U.S.C. 1182(t)(1), and may then apply directly to the Department of State if the alien is outside of the United States or may file a petition requesting H-1B1 status with USCIS if the alien is present in the United States in another classification. See 9 FAM 402.10-5(C)-(D). Aliens may be granted status in 1-year increments, with no maximum on the number of extensions. See INA sec. 214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C). Up to 6,800 visas are set aside from the 65,000 H-1B cap each fiscal year for the H-1B1 visa program under terms of the legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements. See INA secs. 101(a)(15)(H)(i)(b1), 214(g)(8), 8 U.S.C. 1101(a)(15)(H)(i)(b1), 1184(g)(8). An H-1B1 nonimmigrant's employment is restricted, and he or she may only engage in the employment for which he or she was admitted or otherwise granted H-1B1 status. See 8 CFR 274a.12(b)(9).

The L-1 nonimmigrant classification allows for the temporary transfer of aliens with the requisite management, executive, or specialized knowledge skills to the United States to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate. See INA sec. 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L); 8 CFR 214.2(l). 9 In order to obtain L-1 status for an employee, a qualifying organization must file a petition with USCIS that must be approved before the alien can obtain a visa to the United States or change status. See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(l)(2). Executive and managerial employees qualify for L-1A status and are admitted for a maximum initial stay of 3 years with extensions of stay granted in increments up to 2 years, until the employee has reached the maximum limit of 7 years. See INA sec. 214(c)(1)(D)(i), 8 U.S.C. 1184(c)(1)(D)(i); 8 CFR 214.2(l)(12)(i) and (15)(ii). Specialized knowledge employees qualify for L-1B status and are admitted for a maximum initial stay of 3 years with extensions of stay granted in increments up to 2 years, until the employee has reached the maximum limit of 5 years. See INA sec. 214(c)(1)(D)(ii), 8 U.S.C. 1184(c)(1)(D)(ii); 8 CFR 214.2(l)(12)(i) and (15)(ii). An L-1 nonimmigrant's employment is restricted, and he or she may only engage in the employment for which he or she was admitted or otherwise granted L-1 status. See 8 CFR 274a.12(b)(12).

The O-1 nonimmigrant visa classification includes individuals who either (1) have extraordinarily ability in the science, arts, education, business or athletics as demonstrated by sustained national or international acclaim; or (2) who have a demonstrated record of extraordinary achievements in the motion picture or television industry, as recognized in the field through extensive documentation. See INA sec. 101(a)(15)(O), 8 U.S.C. 1101(a)(15)(O); 8 CFR 214.2(o)(1)(ii)(A). O-1 nonimmigrants must be coming temporarily to the United States to continue work in the relevant area of extraordinary ability or achievement and may only be admitted after being petitioned for by an importing employer. See INA sec. 101(a)(15)(O), 8 U.S.C. 1101(a)(15)(O) and INA sec. 214(c), 8 U.S.C. 1184(c); 8 CFR 214.2(o)(1)(ii)(A). An O-1 nonimmigrant may be admitted for up to 3 years, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. See 8 CFR 214.2(o)(6)(iii)(A) and (o)(10). Extension of status may be authorized in increments of up to 1 year, and such status may be renewed indefinitely to continue to complete the same event or activity. See 8 CFR 214.2(o)(12)(ii). An O-1 nonimmigrant's employment is restricted, and he or she may only engage in the work that formed the basis of his or her status, with a limited exception for traded professional athletes. See 8 CFR 274a.12(b)(13).

The TN nonimmigrant classification, established in the North American Free Trade Agreement, 10 permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. See INA sec. 214(e), 8 U.S.C. 1184(e); 8 CFR 214.6(b). The TN nonimmigrant worker must not intend to establish a business or be self-employed in the United States, and he or she must be arriving pursuant to a prearranged agreement with a U.S. employer. See INA sec. 214(e), 8 U.S.C. 1184(e); 8 CFR 214.6(b). An eligible alien seeking TN classification may be granted TN status for an initial period not to exceed 3 years. See 8 CFR 214.6(e). Extensions of stay may be granted for periods not to exceed 3 years at a time. See 8 CFR 214.6(h)(1)(iii). TN is a temporary nonimmigrant classification, although there is no specific limit to the total period of time an alien may remain in the United States in TN status as long as he or she continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN status. See 8 CFR 214.6(h)(1)(iv). While there is no specific limit on the total period of time an alien may remain in the United States in TN status, the alien's period of stay is expected to have a “reasonable, finite end” and he or she must demonstrate this temporary intent to the satisfaction of the inspecting immigration officer. See 8 CFR 214.6(b).

DHS regulations provide for a discretionary grace period to aliens in certain nonimmigrant status at various times during their admission period. During a grace period, these aliens are not considered to have failed to maintain status solely by not engaging in the qualifying employment or activity for which they were admitted to the United States. See, e.g., 8 CFR 214.1(l); 8 CFR 214.2(f)(5)(iv); 8 CFR 214.2(j)(1)(ii); 8 CFR 214.2(o)(12)(ii).

Before 2017, there was no grace period for nonimmigrant workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification whose employment or activity ended during their period of lawful status. At that time, an alien who was admitted or otherwise provided status in the impacted nonimmigrant classifications was generally considered to have failed to maintain his or her status beginning on the day after the end of his or her employment or activity with the sponsoring employer and was expected to depart the United States immediately, unless otherwise authorized to lawfully remain in the United States. If an alien nonimmigrant fails to maintain status in the United States, he or she also becomes removable from the United States. See INA sec. 237(a)(1)(C), 8 U.S.C. 1227(a)(1)(C). Additionally, such an alien generally was not permitted to seek an extension of his or her stay in the United States in accordance with 8 CFR 214.1(c), 11 or an application for change of status under section 248 of the Act, 8 U.S.C. 1258, and 8 CFR part 248. 12 Failure to maintain status may also carry other immigration consequences for the alien in the future. 13

In 2016, DHS promulgated a final rule establishing an up to 60-day discretionary grace period following cessation of employment for aliens present in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status (and their dependents). See Retention of EB-1, EB-2, EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398 (Nov. 18, 2016) (AC21 final rule). 14 The rule was effective on January 17, 2017. Id. The purpose of the up to 60-day discretionary grace period was to enhance job portability, stability, and flexibility for these high-skilled nonimmigrant workers upon cessation of employment. See 80 FR 81900, 81923 (Dec. 31, 2015); see also 81 FR 82398, 82439 (Nov. 18, 2016). The up to 60-day discretionary grace period was codified at 8 CFR 214.1(l)(2) and allowed an alien present in the United States in one of those statuses, and their dependents, to remain in the United States for up to 60 days or until the end of the authorized validity period, whichever is shorter, without being considered to have failed to maintain his or her status on the basis of cessation of employment or activity of the principal alien, unless such grace period was shortened or eliminated by DHS. 15 See 8 CFR 214.1(l)(2). 16 In the AC21 final rule, DHS stated that it may consider such an alien to have not violated his or her nonimmigrant status and allow that alien to extend his or her stay with a new petitioner, or change status, if otherwise eligible. See 81 FR 82398, 82436 (Nov. 18, 2016).

DHS also noted in a comment response that the decision whether to shorten or eliminate the up to 60-day grace period is discretionary, stating that “such adjudications require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary's activities after such cessation” and provided a list of non-exclusive circumstances that could impact DHS's discretionary determination. See 81 FR 82398, 82436 (Nov. 18, 2016). USCIS assesses whether the alien warrants the grace period and exercises discretion to eliminate or shorten this up to 60-day period when adjudicating any subsequent request for extension of stay or change of status or other applicable benefit request. 17 During the up to 60 days following the cessation of their authorized employment, aliens may potentially obtain new job offers from employers that seek to file new nonimmigrant petitions  18 that are coupled with a request for a change of status or an extension of stay, on the alien's behalf. See 8 CFR 214.1(c)(4) and (l)(3), 8 CFR 248.1. Alternatively, the alien may, without the assistance of a petitioner, seek to change his or her status to a nonimmigrant status that is not related to working in the United States, such as change of status to student (F) nonimmigrant visa classification to pursue studies in the United States, or seek to adjust his or her status.

Finally, DHS explained in the AC21 final rule that while a nonimmigrant worker may only receive one grace period in an authorized validity period, he or she would be eligible for a new up to 60-day discretionary grace period in connection with any subsequently authorized validity period. See 8 CFR 214.1(l)(2); 81 FR 82398, 82438 (Nov. 18, 2016).

DHS is firmly committed to better aligning the regulations with the statutory purpose for which the alien was admitted or otherwise provided nonimmigrant status and to reducing administrative burdens. Removal of the up to 60-day discretionary grace period furthers these essential goals.

DHS believes that restoring the expectation that aliens depart the United States upon cessation of the employment or activity upon which the alien's status was based, would better promote program integrity and be more consistent with statutory purpose. DHS also believes that removal of the up to 60-day discretionary grace period would reduce administrative burden, as the process of determining when the up to 60-day grace period may apply, reviewing the information submitted, and determining whether to shorten or eliminate the grace period may be time consuming and complex for the agency and confusing or unpredictable for the petitioner, alien and the alien's dependents.

As such, DHS proposes to remove the discretionary up to 60-day grace period provided in 8 CFR 214.1(l)(2). 19

As noted, the up to 60-day discretionary grace period was added in the AC21 final rule. In that rule, DHS's reasoning for the addition of the grace period heavily emphasized the benefit to certain high-skilled immigrants and their U.S. employers. 81 FR 82398, 82436 (Nov. 18, 2016). DHS now believes, based on its experience administering the up to 60-day discretionary grace period over the last 10 years, that the existence of the grace period is inconsistent with the purpose for which Congress created the relevant nonimmigrant classifications. DHS also believes the grace period increases administrative burden on USCIS by adding complexity to the documentation and adjudication process. While many of the factors that USCIS considers in adjudicating a subsequent immigration benefit request where a grace period is applicable are also relevant to a discretionary decision whether to shorten or eliminate the grace period, the need for adjudicators to consider the grace period can add steps to the process. For example, officers adjudicating subsequent benefit requests (such as an extension petition which generally requires the beneficiary to have maintained status) must also determine whether the grace period would impact the benefit request, as this is not always clear from the request itself. The officer must also determine whether to eliminate the grace period as a matter of discretion and, if an officer decides not to eliminate the grace period, the officer then must determine and verify the end date of the alien's prior employment to determine the start and end date of the grace period.

In the AC21 proposed rule, DHS claimed a need for the addition of a grace period because, under the policies in effect at the time, aliens such as H-1B nonimmigrant workers whose employment ended (voluntarily or upon being terminated by the employer) were generally considered to be present in violation of their status, and thus, were required to depart the United States immediately. See 80 FR 81900, 81923-24 (Dec. 31, 2015). DHS explained that the proposal to afford these workers, who are facing sudden changes to their employment, up to 60 days to seek new employment and thereby extend their status without having to immediately depart the country, would remedy that situation. See 80 FR 81900, 81923-24 (Dec. 31, 2015). Furthermore, DHS also explained the up to 60-day discretionary grace period would allow these high-skilled workers to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or for the same classification with a new employer, and would allow U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers. See 80 FR 81900, 81902 (Dec. 31, 2015). Similarly, in the AC21 final rule, DHS explained that the up to 60-day discretionary grace period allows such nonimmigrants to remain in the United States without violating their status and potentially obtain new job offers from employers that seek to file new nonimmigrant petitions, and requests for an extension of stay, on their behalf. See 81 FR 82398, 82436 (Nov.18, 2016). DHS explained that in such cases, even though prior employment may have terminated several weeks prior to the filing of the new petition, DHS may consider such an alien to have not violated his or her nonimmigrant status and allow that alien to extend his or her stay with a new petitioner, if otherwise eligible. See 81 FR 82398, 82436 (Nov. 18, 2016).

DHS repeatedly made it clear that the purpose of the up to 60-day discretionary grace period was to increase mobility for certain high-skilled aliens and to improve the ability of U.S. employers to more easily facilitate changes in employment for existing and newly recruited nonimmigrant workers. DHS now believes that the justification did not sufficiently consider the fact that the introduction of the up to 60-day discretionary grace period created a misalignment with statutory provisions governing the impacted classifications. DHS also now believes the rule did not adequately consider how the up to 60-day discretionary grace period would add administrative burden for USCIS.

Given its broad discretionary authority to regulate the time and conditions of nonimmigrants under section 214(a) of the Act, 8 U.S.C. 1184(a), DHS is now reconsidering  20 the up to 60-day discretionary grace period and believes that it should be removed. DHS acknowledges that it is changing position, and notes that based on its experience administering the rule and its reevaluation of the results of the rule in relation to the statute governing nonimmigrant classifications, DHS believes that removal of the up to 60-day discretionary grace period is the better course. 21 DHS has also carefully considered reliance interests that may have been engendered by the current policy, 22 and believes that any such reliance interests are outweighed by the goals described in this preamble.

DHS has determined that removal of the up to 60-day discretionary grace period best aligns the regulatory provisions with the statute and restores the expectation that aliens depart the United States upon cessation of the employment or activity on which the visa classification was based.

By statute, an alien's lawful status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification is directly connected to and contingent upon the alien conducting certain employment activities or otherwise performing services in the United States that are generally tied to the petitioning employer. In pertinent part, section 101(a)(15)(E)(i) of the INA, 8 U.S.C. 1101(a)(15)(E)(i) describes an E-1 alien as entering the United States “solely to carry on substantial trade, including trade in services or trade in technology.” Section 101(a)(15)(E)(ii) of the INA, 8 U.S.C. 1101(a)(15)(E)(ii) describes an E-2 alien as entering the United States “solely to develop and direct the operations of an enterprise in which the alien has invested, or of an enterprise in which the alien is actively in the process of investing, a substantial amount of capital.” Section 101(a)(15)(E)(iii) of the INA, 8 U.S.C. 1101(a)(15)(E)(iii) describes an E-3 alien as entering “solely to perform services in a specialty occupation in the United States . . . [on behalf of] the intending employer.” Section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b) describes an H-1B alien as “coming temporarily to the United States to perform services . . . in a specialty occupation . . . [on behalf of] the intending employer.” Section 101(a)(15)(H)(i)(b1) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b1) describes an H-1B1 alien as one who is “engaged in a specialty occupation.” Section 101(a)(15)(L) of the INA, 8 U.S.C. 1101(a)(15)(L) describes an L-1 alien as entering the United States “temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.” Section 101(a)(15)(O) of the INA, 8 U.S.C. 1101(a)(15)(O) describes an O-1 alien as entering the United States to continue work in the area of extraordinary ability in the sciences, arts, education, business or athletics or extraordinary achievement with regard to motion picture and television productions. Section 214(e) of the INA, 8 U.S.C. 1184(e) describes a TN alien as entering the United States to engage in certain business activities at a professional level.

In each of these cases, the statute ties eligibility for the classification and associated admission or grant of status in each of these classifications directly to the qualifying work that is the basis of the alien's admission or grant of status. Although each classification has different requirements for maintenance of status based on the eligibility requirements of the classification, maintenance of status in employment-based nonimmigrant classifications generally requires continued compliance with the terms and conditions of the petition approval or admission. If an alien does not comply with the terms and conditions of his or her status throughout the admission period, the alien will not be maintaining his or her nonimmigrant status. 23 In order to maintain status, an alien must also only engage in the specified employment or activity that is the basis for his or her admission or grant of status. 24 An alien who fails to maintain his or her nonimmigrant status is deportable. See INA sec. 237(a)(1)(C)(i), 8 U.S.C. 1227(a)(1)(C)(i).

The up to 60-day discretionary grace period is not mandated by statute and disconnects the alien's lawful status from the basis of eligibility under these employment-based classifications. After further consideration, DHS now believes that removing the up to 60-day discretionary grace period currently codified at 8 CFR 214.1(l)(2) would better align with the statute because it requires that nonimmigrants depart the United States immediately upon cessation of the employment or activity on which their nonimmigrant status is based (unless otherwise authorized to lawfully remain in the United States).

As noted previously, each one of the listed classifications requires the alien to perform specific work or services that are generally tied to the intending or petitioning employer. The continued performance of the employment or activity on which their status is based is required in order for the alien to maintain status. 25 DHS now believes that once the alien is no longer fulfilling the very specific conditions under which he or she was admitted or otherwise provided status, such status, as well as the authorization to remain in the United States, should definitively cease and the impacted alien should immediately depart the United States (unless otherwise authorized to lawfully remain in the United States). This is generally consistent with the requirements for aliens admitted or otherwise provided status in other nonimmigrant categories when the alien fails to fulfill the very specific conditions under which he or she was admitted or otherwise provided status. 26 Similar to aliens admitted or otherwise provided status in other nonimmigrant categories, aliens subject to this rule would, however, be able to apply for readmission into the United States in a nonimmigrant employment-based status after finding new qualifying employment and obtaining the prerequisite approvals to apply for admission in the applicable classification.

DHS further believes that elimination of the up to 60-day discretionary grace period would reduce the administrative burden on USCIS. DHS has found that exercising this discretion when adjudicating benefit requests following a cessation of an alien's employment is burdensome. The process of assessing whether a grace period is warranted; and then of adjudicating the request and determining start and end dates of a grace period may be time consuming and complex for the agency and confusing or unpredictable for petitioners, the alien, and the alien's dependents. Adjudicating officers must verify the evidence provided by the petitioner or the alien, as applicable, to ascertain whether the up to 60-day discretionary period applies and whether the alien warrants a favorable exercise of discretion. For USCIS to assess the applicability of the up to 60-day discretionary grace period, the benefit requestor  27 (for example, a new employer filing a Form I-129, Petition for Nonimmigrant Worker (Form I-129) petition on behalf of the alien following the cessation of the alien's previous employment; or the alien, if he or she is seeking a change of status to a visa classification that is unrelated to employment) must provide evidence to establish the date the alien's previous employment ended. The USCIS adjudicator would designate the end of the previous employment as the start date of the discretionary grace period if the adjudicator does not make the discretionary determination to eliminate it. As noted in the AC21 final rule, the discretionary decision of whether to eliminate or shorten a grace period requires individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary's activities after such cessation. See 81 FR 82398, 82439 (Nov. 18, 2016). While many cases might result in grants of the up to 60-day discretionary grace periods, some cases may present factors that do not support the favorable exercise of this discretion. Circumstances that may lead DHS to make a discretionary determination to shorten or entirely eliminate the up to 60-day discretionary grace period include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, among other reasons. See 81 FR 82398, 82439 (Nov. 18, 2016).

Additionally, the availability of clear documentation of employment cessation date may differ from case to case. Evidence that documents the employment cessation date is non-standard and requires officers to familiarize themselves with the documentation type, review the contents, and assess its veracity and credibility. Officers must often review numerous different document types per filing and the level of review is more extensive than that conducted when the grace period is not applicable. In some instances, the only evidence of the termination that a petitioner or an applicant can provide is a generalized payroll document from an alien that reflects payments made on the last month of employment. In many instances, these payroll documents do not definitively state the last day of employment. Rather, the officer must infer the employment end date based on prorating the payment across the pay period. Further, petitioners or applicants may or may not proactively flag that they are requesting consideration of the up to 60-day discretionary grace period. USCIS officers therefore must review each benefit request for aliens potentially covered by 8 CFR 214.1(l)(2) to determine whether the up to 60-day discretionary grace period applies and, if it does, must determine whether the up to 60-day discretionary grace period should be shortened or eliminated as a matter of discretion. If the petitioner or the applicant is unable to provide credible evidence establishing the date of employment cessation, the officer may not be able to determine whether the grace period applies, either in part or in full. Collectively this lack of clarity increases the complexity of the adjudication and prolongs the adjudication of individual cases imposing an additional burden.

In order to determine the additional workload USCIS faces when administering the grace period, DHS calculated the number of petitions and applications that required USCIS to assess whether the up to 60-day discretionary grace period could have potentially applied. That number comprises the following petitions and applications: (1) the number of Form I-129 petitions filed for an alien in one of the listed classifications that requested an extension of stay for purposes of new employment; (2) the number of Form I- 129 petitions filed for an alien in one of the listed classifications that requested a change of status to another nonimmigrant category for purposes of new employment; (3) the number of Forms I-539, Application to Extend/Change Nonimmigrant Status filed by an alien in one of the listed classifications requesting a change of status to a non-employment based nonimmigrant status; (4) the number of Forms I-485, Application to Register Permanent Residence or Adjust Status, filed in an employment-based category by an alien in one of the listed classifications seeking to become a lawful permanent resident (LPR);  28 and (5) the number of Forms I-765, Application for Employment Authorization requesting compelling circumstances employment authorization, filed by an alien in one of the listed classifications.

DHS believes that this set of petitions and applications reasonably represents the potential number of cases for which USCIS must assess whether the up to 60-day discretionary grace period applies, and if so, perform the additional grace period analysis that was previously discussed for a subset of these petitions (see Costs and Benefits of the Proposed Rule). 29 From the beginning of fiscal year 2018 (October 1, 2017) through May 20, 2026, this population totaled over 1.9 million petitions or applications on which USCIS potentially had to perform this additional initial assessment thus representing a great adjudicative burden. 30 USCIS has reconsidered the grace period in light of this experience and now believes it should not be expending its limited resources to adjudicate a burdensome, discretionary benefit that not only is not required by statute, but in fact is inconsistent with the purpose of the nonimmigrant classifications. Eliminating the up to 60-day discretionary grace period would therefore reduce the administrative burden on USCIS.

DHS is cognizant that it is changing a longstanding policy that may impact aliens, employers, family members and potentially communities as a whole. 31 For example, U.S. employers who seek to employ recently terminated aliens in the relevant classifications may have made business arrangements based on an assumption that the aliens would be able to begin new employment, without the potentially lengthier process of seeking admission from outside the United States, following the cessation of their previous employment. Similarly, aliens in the relevant classifications, and their dependents, may have made career and/or personal plans in the United States based on the assumption that they may remain in legal status in the United States for up to 60 days during the grace period during which time they may be able to apply for a new status. DHS also acknowledges that aliens and their dependents may participate in activities in the local community. They may have, for example, purchased houses, paid taxes, and may have otherwise invested in the local community in reliance on the alien's continued stay in the United States. 32 Further, aliens may have, under the expectation that the up to 60-day discretionary grace period will apply, remained in the United States after the cessation of their employment while searching for new employment or waiting for the adjudication of the petition or application to change status or extend stay; yet during this time, they would have been considered to be failing to maintain status if USCIS later shortened or eliminated the up to 60-day grace period.

By removing the up to 60-day discretionary grace period, as this rule proposes, aliens in these nonimmigrant classifications would know with certainty that they are required to depart the United States, unless otherwise authorized to lawfully remain in the United States, upon cessation of employment or activity, because they, and their dependents, would be considered to be immediately failing to maintain their nonimmigrant status the day after the principal alien's employment or activity ceases. 33

DHS has considered these potential reliance interests and impacts and believes the negative impacts of the up to 60-day discretionary grace period on the legal immigration system, discussed in this preamble, outweigh any potential benefits to employers, aliens, and the community at large of retaining the grace period. DHS notes that any reliance on the existing up to 60-day discretionary grace period would be misplaced because the decision to shorten or eliminate the up to 60-day discretionary grace period and consider the alien to have not maintained nonimmigrant status following cessation of employment is within the discretion of USCIS and only determined when adjudicating a subsequent immigration benefit request. 34 Additionally, DHS acknowledges that removal of the up to 60-day discretionary grace period may result in increased departures following cessation of employment. However, DHS concludes that such outcomes would be consistent with statutory design, would likely not alter numerical visa limits (as applicable), and would generally not preclude the alien from applying for admission in the future based on approval of a new nonimmigrant or immigrant benefit request. For the reasons articulated in the preamble, DHS believes that any potential negative impacts of the proposed rule, if finalized, on the regulated public would be outweighed by the government's competing interests articulated in this rule.

DHS invites comments on any potential impact of this rulemaking, including comments on any potential reliance interests that are implicated by the provisions of this NPRM.

DHS considered alternatives to eliminating the up to 60-day discretionary grace period for all of the classifications listed in current 8 CFR 214.1(l)(2). First, DHS considered only eliminating the up to 60-day discretionary grace period for some of the listed classifications. However, as discussed in section IV. B. of this preamble, DHS is removing the up to 60-day grace period because it does not align with the statute. Allowing some classifications to remain in the United States and be considered to be maintaining status, while not adhering to the conditions of admission or grant of status, does not support the goal of requiring aliens, and their dependents, to depart the United States upon cessation of the employment or activity on which their nonimmigrant status is based, unless otherwise authorized to lawfully remain in the United States, and would therefore remain inconsistent with the statute with respect to those classifications. In addition, this alternative would not reduce the administrative burden described above for the classifications for which the up to 60-day discretionary grace period was not eliminated.

DHS also considered shortening, rather than eliminating the up to 60-day discretionary grace period. However, shortening the grace period would not address the burden borne by USCIS to administer this grace period. A shorter grace period would not reduce the number of applications and petitions that USCIS must review for grace period applicability and would not reduce the additional adjudication that must be undertaken to determine whether to reduce or eliminate the up to 60-day discretionary grace period, or to determine the start and end dates of the period. Shortening the up to 60-day discretionary grace period would also not meet the goal of requiring aliens, and their dependents, to depart the United States upon cessation of the employment or activity on which their nonimmigrant status is based, unless otherwise authorized to lawfully remain in the United States because aliens would still be allowed to remain in the United States and be considered to be maintaining status beyond the time in which the alien is adhering to the specific employment or activity that formed the basis of his or her admission or grant of status.

DHS also considered an alternative that would reduce the administrative burden on USCIS, specifically by imposing precise and stringent evidentiary requirements in order for USCIS to even consider whether a grace period applies. Under this approach, USCIS adjudicators would not have the burden of determining whether the grace period would impact the benefit request, as the evidence submitted with the filing would make it clear that the petition was relying on a grace period. However, DHS decided against this alternative. While it may ostensibly reduce administrative burden on USCIS, adjudicators would still have the added burden of scrutinizing the documentation and verifying the end date of the alien's prior employment to determine whether the alien is actually eligible to benefit from the grace period. Additionally, even acknowledging a potential reduction in administrative burden from this alternative, as with the above alternatives this approach would not address DHS's goal of aligning the regulatory provisions with the statute and restoring the expectation that aliens depart the United States upon cessation of the employment or activity on which their visa classification was based.

Considering the need to reduce administrative burden and better protect the integrity of the legal immigration system by requiring that aliens, and their dependents, depart the United States upon failing to meet the conditions that were the basis of their nonimmigrant status, unless otherwise authorized to lawfully remain in the United States, DHS believes that the harm of the up to 60-day discretionary grace period outweighs the potential benefit it provides to the impacted aliens and employers, the alien's dependents, and the community at large. Therefore, DHS believes that eliminating the up to 60-day discretionary grace period for all relevant classifications is the most effective way to achieve the goals of this rulemaking.

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

The Office of Management and Budget (OMB) has designated this rule a “significant regulatory action” under section 3(f) of E.O. 12866, although not economically significant under section 3(f)(1). Accordingly, the rule has been reviewed by OMB.

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

The purpose of this NPRM is to remove the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications from 8 CFR 214.1(l)(2), which currently provides for a discretionary grace period of up to 60 days for an alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications, and his or her dependents, following cessation of their qualifying employment prior to the expiration of the alien's authorized validity period. DHS estimates that under this proposed rule, some aliens may be issued Notices to Appear (NTA), 35 thereby incurring costs of attending immigration hearings with the Department of Justice Executive Office for Immigration Review (EOIR) as part of removal proceedings. In addition, some aliens would leave the country and then apply for readmission under a nonimmigrant employment-based status after finding a new job. The proposed rule would enable DHS to conduct the administration and adjudication of E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN immigration benefit requests with decreased complexity and is conducive to program integrity, as described in Section IV Discussion of Proposed Rule of the preamble.

Table 1 provides a detailed summary of estimated quantifiable and unquantifiable impacts of the proposed rule.

In addition to the impacts summarized in Table 1, and as required by OMB Circular A-4, Table 2 presents the prepared accounting statement showing the costs, benefits, and transfers associated with this rule. 37

The H-1B nonimmigrant visa program allows U.S. employers to temporarily hire foreign workers to perform services in a specialty occupation, services related to a DOW cooperative research and development project or coproduction project, or services of distinguished merit and ability in the field of fashion modeling. 38 A specialty occupation is defined as an occupation that requires the (1) theoretical and practical application of a body of highly specialized knowledge and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum qualification for entry into the occupation in the United States. See INA sec. 214(i)(l), 8 U.S.C. 1184(i)(l).

The number of aliens who may be issued initial H-1B visas or otherwise provided initial H-1B nonimmigrant status during any fiscal year has been capped at various levels by Congress over time, with the current numerical limit being 65,000 per fiscal year. See INA sec. 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A). Congress has also provided for various exemptions from this annual numerical limit, including an exemption for 20,000 aliens who have earned a master's or higher degree from a U.S. institution of higher education. See INA sec. 214(g)(5) and (7), 8 U.S.C. 1184(g)(5) and (7). In general, prior to filing an H-1B petition, the employer is required to obtain a certified LCA from the DOL. See 8 CFR 214.2(h)(4)(i)(B)( 1 ). The LCA collects information about the employer and the occupation for the H-1B worker(s). The LCA requires certain attestations from the employer, including, among others, that the employer will pay the H-1B worker(s) at least the required wage. See 20 CFR 655.731 through 655.735. H-1B specialty occupation workers generally may be admitted or otherwise granted nonimmigrant status for an initial period of up to 3 years, see 8 CFR 214.2(h)(9)(iii)(A)( 1 ), with a maximum period of authorized admission generally limited to 6 years, see INA sec. 214(g)(4), 8 U.S.C. 1184(g)(4).

The spouses and unmarried children under the age of 21 of H-1B nonimmigrants are eligible for H-4 nonimmigrant status. See 8 CFR 214.2(h)(9)(iv). Certain H-4 dependent spouses of H-1B nonimmigrants can seek employment authorization by filing Form I-765, Application for Employment Authorization, if the H-1B nonimmigrant: (1) is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or (2) has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21). Id.

The H-1B1 nonimmigrant visa program, specifically applicable to nationals of Chile and Singapore, allows for the temporary employment of such nonimmigrant aliens in specialty occupations. See INA sec. 101(a)(15)(H)(i)(b1), 8 U.S.C 1101(a)(15)(H)(i)(b1). Of the current H-1B annual numerical limit of 65,000 initial visas or grants of status per fiscal year, 6,800 are reserved for use by H-1B1 nonimmigrants: 1,400 for nonimmigrants from Chile and 5,400 for nonimmigrants from Singapore. See INA sec. 214(g)(8)(B), 8 U.S.C. 1184(g)(8)(B). An employer who seeks to temporarily employ an alien in H-1B1 status may apply directly to the Department of State if the alien is outside of the United States or may file a petition requesting H-1B1 status with USCIS if the alien in in the United States in another classification. Aliens may be granted H-1B1 nonimmigrant status in one-year increments, with no maximum on the number of extensions. See INA sec. 214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C). The spouses and unmarried children under the age of 21 of H-1B1 nonimmigrants are eligible for H-4 nonimmigrant status but are not employment authorized or eligible to apply for employment authorization. See 8 CFR 214.2(h)(9)(iv).

An L-1 nonimmigrant visa is for multinational companies to transfer executives, managers (L-1A), or employees with specialized knowledge (L-1B) from an overseas office to a U.S. office, requiring the employee to have worked abroad for a related entity for at least one year out of the preceding three years in a similar role. See INA sec. 101(a)(15)(L), 8 U.S.C. 1101(a)(15)(L). The L-1A and L-1B visa classifications also enable a foreign company that does not yet have an affiliated U.S. office to send an executive or manager or a professional employee with specialized knowledge to the United States with the purpose of establishing one. See 8 CFR 214.2(l)(3)(v) and (vi). Qualified employees under L-1A or L-1B visa classifications entering the United States to establish a new office are allowed a maximum initial stay of one year. See 8 CFR 214.2(l)(7)(i)(A)( 3 ). All other qualified employees under L-1A or L-1B visa classifications are allowed a maximum initial stay of three years. See 8 CFR 214.2(l)(7)(i)(A)( 2 ). For all employees under L-1A and L-1B visa classifications, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of 7 years under L-1A and 5 years under L-1B. See 8 CFR 214.2(l)(15)(ii).

The alien employee may be accompanied by his or her spouse and unmarried children who are under 21 years of age. See 8 CFR 214.2(l)(7)(ii). Spouses and children may seek admission under the L-2 nonimmigrant classification and, if approved, they will generally be granted the same period of stay as the L-1 nonimmigrant worker. Id. Spouses of L-1 workers in valid L-2 nonimmigrant status are considered employment authorized incident to status. See INA sec. 214(c)(2)(E), 8 U.S.C. 1184(c)(2)(E). L spouses are not required to request employment authorization by filing Form I-765, but may still file the form, with fee, in order to obtain an Employment Authorization Document (EAD). They can be granted evidence of work authorization by way of an L-2S designation on their Arrival-Departure Record (Form I-94). 39

The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States solely to engage in international trade on his or her own behalf. See INA sec. 101(a)(15)(E)(i), 8 U.S.C. 1101(a)(15)(E)(i); 8 CFR 214.2(e)(1). Certain employees of such a person or of a qualifying organization may also be eligible for this classification. See 8 CFR 214.2(e)(3). Qualified treaty traders and employees are allowed a maximum initial stay of two years. See 8 CFR 214.2(e)(19)(i). Requests for extension of stay in E-1 classification may be granted in increments of up to two years each. See 8 CFR 214.2(e)(20). There is no limit to the number of extensions an E-1 nonimmigrant may be granted. See 8 CFR 214.2(e)(20)(iii). All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. 40

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation, or with which the United States maintains a qualifying international agreement, or which has been deemed a qualifying country by legislation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. 41 See INA sec. 101(a)(15)(E)(ii), 8 U.S.C. 1101(a)(15)(E)(ii); 8 CFR 214.2(e)(2). Certain employees of such a person or of a qualifying organization may also be eligible for this classification. See 8 CFR 214.2(e)(3). Qualified treaty investors and employees are allowed a maximum initial stay of two years. See 8 CFR 214.2(e)(19)(i). Requests for extension of stay in E-2 classification may be granted in increments of up to two years each. See 8 CFR 214.2(e)(20). There is no limit to the number of extensions an E-2 nonimmigrant may be granted. See 8 CFR 214.2(e)(20)(iii). All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. 42

The E-3 nonimmigrant classification concerns specialty occupation workers who are nationals of the Commonwealth of Australia. See INA sec. 101(a)(15)(E)(iii), 8 U.S.C. 1101(a)(15)(E)(iii). E-3 nonimmigrants must be coming to the United States solely to perform services in a specialty occupation. The definition of the term “specialty occupation” is the same as for the H-1B classification. See INA sec. 214(i)(1), 8 U.S.C. 1184(i)(1) (defined as requiring theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States). E-3 nonimmigrants may be granted a maximum initial stay of two years. Requests for extension of stay in E-3 nonimmigrant status may be granted in increments of up to two years each. There is no limit to the number of extensions an E-3 nonimmigrant may be granted. 43

E-1, E-2 and E-3 principal nonimmigrants may be accompanied by their spouse and unmarried children who are under 21 years of age. Spouses and children may seek admission under the E-1, E-2 or E-3 nonimmigrant classification, as applicable, and if approved, they will generally be granted the same period of stay as the E-1, E-2, or E-3 principal nonimmigrant. See 8 CFR 214.2(e)(4). Spouses of E nonimmigrant workers in valid E nonimmigrant status are generally considered employment authorized incident to status. 44 See INA sec. 214(e)(2), 8 U.S.C. 1184(e)(2). E nonimmigrant spouses generally are not required to request employment authorization by filing Form I-765, but may still file the form, with fee, in order to obtain an Employment Authorization Document (EAD). They can be granted evidence of work authorization by way of an E-1S, E-2S or E-3S designation on their Arrival-Departure Record (Form I-94). 45

The O-1 nonimmigrant classification is for aliens with extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. The O-1 nonimmigrant classification is commonly referred to as:

• O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry);

• O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry;

An O-1 nonimmigrant may be granted a maximum initial stay of 3 years with further extension in increments of up to one year to complete the activity or event for which the alien was admitted or otherwise granted O-1 nonimmigrant status. See 8 CFR 214.2(o)(6)(iii)(A) and (12)(ii). The spouses and unmarried children under the age of 21 of O-1 nonimmigrants are eligible for O-3 nonimmigrant status but are not employment authorized or eligible to apply for employment authorization. See 8 CFR 214.2(o)(6)(iv).

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. See INA sec. 214(e)(1), 8 U.S.C. 1184(e)(1); 8 CFR 214.6(a). Aliens may be granted TN nonimmigrant status in increments of up to 3 years. See 8 CFR 214.6(e). There is no limit on the number of times an alien may be granted TN nonimmigrant status, so long as he or she intends to remain temporarily in the United States as a nonimmigrant. See 8 CFR 214.6(h)(1)(iv). Dependent spouses of a TN nonimmigrant may be admitted or otherwise provided TD nonimmigrant status, but are not authorized to work or otherwise eligible to apply for employment authorization as a TD nonimmigrant. See 8 CFR 214.6(j).

DHS regulations currently allow alien workers in certain approved nonimmigrant visa classifications, and their dependents, to have grace periods of up to 60 days when their employment ends, whether the employment terminated voluntarily or involuntarily, unless such grace period is shortened or eliminated by DHS. See 8 CFR 214.1(l)(2). During the up to 60-day discretionary grace period, the nonimmigrant worker is not considered to be failing to maintain status solely for not engaging in employment or the activity that forms the basis of the alien's status. Id. Nonimmigrants are not authorized to work during the grace period, unless otherwise authorized. Id. Aside from departing the United States, such nonimmigrant workers can:

• File an application for a change of nonimmigrant status (I-539, Application to Extend/Change Nonimmigrant Status);

• File an application for adjustment of status (I-485, Application to Register Permanent Residence or Adjust Status);

• File an application for a “compelling circumstances” employment authorization document (Form I-765); or

• Be the beneficiary of a nonfrivolous petition to change employer (Form I-129).

If one of these actions described above occurs within the up to 60-day discretionary grace period, nonimmigrants may be permitted to remain in the United States beyond the 60-day grace period, even if they lose their previous nonimmigrant status. If an alien takes none of the above actions following cessation of the employment on which their status is based, they and their dependents would need to depart the United States unless otherwise authorized to lawfully remain in the United States. This provision, codified at 8 CFR 214.1(l)(2), was intended to enhance job portability for high-skilled nonimmigrants and provide limited flexibility in cases of job loss. 46

In Section IV.C: Reducing Administrative Burden, DHS presented statistics on additional workload USCIS faces when administering the grace period, and are discussed as qualitative benefits to DHS in this analysis. DHS calculated 1.9 million petitions and applications received from fiscal year 2018 through May 20, 2026 for which USCIS assessed whether the up to 60-day discretionary grace period could have potentially applied. 47 In the cost benefit analysis described in the following pages, DHS analyzes the impact of the proposed rulemaking on nonimmigrant worker visa beneficiaries who likely utilized the up to 60-day discretionary grace period and petitioners who petition for such beneficiaries. Table 3 presents data on E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN population of beneficiaries of a revoked Form I-129 petition based on a petitioner's withdrawal of the petition after approval. This group includes beneficiaries who experienced cessation of employment with the petitioner, either involuntarily or voluntarily. 48 Due to data limitations DHS uses the population of beneficiaries of a revoked Form I-129 petition as a reasonable proxy for beneficiaries who could have utilized the grace period to pursue one of the options described above for FY 2021 through FY 2025. 49 Based on a 5-year annual average, DHS estimates the number of primary beneficiaries who experienced either cessation of employment or voluntarily changed employer is 65,752, with a high of 80,034 in FY 2023 and a low of 40,959 in FY 2021. From FY 2021 through FY 2025, 5.77 percent of 328,758 primary beneficiaries that either lost their job or changed employers had a new petition for nonimmigrant worker (Form I-129) submitted on their behalf by a new employer (petitioner) within 60 days after the withdrawal of their approved I-129 petition by their old employer; 0.59 percent submitted Form I-485 requesting Adjustment of Status; another 1.70 percent submitted Form I-539 to request an Extension/Change of Status; and less than 0.1 percent submitted Form I-765 requesting a Compelling Circumstances EAD (CCEAD). 50 Ninety-nine percent of 328,758 E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN primary beneficiaries that either lost their job or changed employers from FY 2021 through FY 2025 belong to the H-1B classification. For brevity, the combined population of primary beneficiaries is presented in Table 3.

Nonimmigrant status of dependents of primary E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries is tied to the primary beneficiary's status and therefore they lose or change status if the primary beneficiary loses or changes status. In Table 4, DHS presents data on number of dependents of primary E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries by fiscal year of approval. Based on a 5-year annual average, DHS estimates the number of dependents of primary E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries is 208,187, with a high of 239,649 in FY 2022 and a low of 175,454 in FY 2024. DHS data is not salient enough to provide a reliable and accurate estimate of dependents of primary E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries who would have utilized the discretionary grace period under current regulations after the primary beneficiary either experienced cessation of employment or changed employer and received a new employment offer, filed an I-485 application, applied for change of status or extension of status, or requested a compelling circumstances EAD.

The cost-benefit analysis is prepared based on the observed behavior of beneficiaries and petitioners under the current regulation and the expected behavior change in beneficiaries and petitioners due to the proposed regulation. Hence the analysis is primarily qualitative as there are multiple interplaying factors determining the outcome. The cost-benefit analysis is separated into four sections, which reflect the potential impacts as a result of the proposed change to eliminate the 60-day grace period. The first section discusses the costs incurred by E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries with intentions to pursue new job opportunities or apply for another immigration status. The second section focuses on the total cost of attending immigration hearings for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries who experienced a period of unemployment in between jobs. The third section discusses the estimated impacts of the proposed rule to the Federal Government. Finally, DHS concludes with a discussion of the benefits of the proposed rule to both the Federal Government and the public.

The proposed change to eliminate the up to 60-day discretionary grace period could directly impact those aliens in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrant status with intentions to pursue new job opportunities or apply for another immigration status, including change of status, extension of stay or adjustment of status. If such beneficiaries decide to leave the United States upon cessation of their employment because they would be considered to be failing to maintain status the day after cessation of employment pursuant to this rule, they could incur costs related to their departure which could include a termination fee of rental lease agreements, expenditure on flight tickets or other transportation costs in certain circumstances, and opportunity costs of time to get their legal and personal affairs in order. However, to the extent that aliens in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrant status would have sought to use the up to 60-day discretionary grace period, but were unable to secure new employment or change to another lawful status, these costs would be indirect since this rule would only accelerate the time in which such beneficiaries would incur these costs. DHS notes that an employer is currently liable for the reasonable costs of return transportation of an H-1B or an O-1 beneficiary to his or her home country if the beneficiary is dismissed from employment by the employer before the end of the period of authorized admission pursuant to section 214(c)(5) of the INA, 8 U.S.C. 1184(c)(5); if the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the beneficiary is not considered to be “dismissed” and would personally incur the cost of return transportation. See 8 CFR 214.2(h)(4)(iii)(E) and (o)(16).

Due to data limitations, USCIS data cannot differentiate among beneficiaries if a request to withdraw an approved Form I-129 petition is due to voluntary (the employee quits) or involuntary (the employee is terminated from employment) cessation of employment. Therefore, DHS estimates that 3,795 E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants annually would have a new nonimmigrant worker petition (Form I-129) submitted on their behalf by a new petitioner within the up to 60-day discretionary grace period (see Table 3). While not all impacted classifications are obligated to request withdrawal, we consider this estimate as an upper-bound estimate of the population that could incur costs depending on their subsequent course of action motivated by their decision to remain in valid nonimmigrant status in United States or depart the country. About 3,765, out of a total of 3,795 or 99.2 percent of E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN nonimmigrants belong to the H-1B classification. 51

Moreover, after examining wage data  52 provided on Form I-129 petitions submitted by petitioners in the grace period, DHS determined the median annual wages to be $131,000 in FY 2025 for aliens in H-1B nonimmigrant status who had a Form I-129 petition revoked in FY 2025, but then had a new Form I-129 petition submitted on their behalf by a new petitioner within the up to 60-day discretionary grace period. 53 Because 99.2 percent of these nonimmigrants belong to the H-1B classification, DHS believes it is reasonable to use $131,000 to be the median annual wages as a basis to estimate any foregone wages. A subset of these beneficiaries who may have begun new employment with a new employer during the 60 day grace period may incur lost income if they require additional days to conduct their job search and return to the United States because they departed as a result of the proposed rulemaking. 54 Estimates of lost income from possible increased unemployment periods experienced by E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN beneficiaries varies within a classification and across classifications. The American Competitiveness in the 21st Century Act allows eligible H-1B workers to begin new employment immediately upon filing of a new, non-frivolous Form I-129 petition, without waiting for approval. 55 As for E-1, E-2, E-3, H-1B1, L-1, O-1 and TN beneficiaries, they can switch employers only after their new and non-frivolous Form I-129 petition is approved. 56

Within the United States Department of Agriculture (USDA), the Animal and Plant Health Inspection Service (APHIS) Center for Veterinary Biologics (CVB) regulates veterinary biologics under the Virus-Serum-Toxin Act (VSTA). 1 The VSTA prohibits the preparation, sale, barter, exchange or shipment of “worthless, contaminated, dangerous, or harmful” viruses, serums, toxins, or analogous products. 2 The VSTA authorizes the Secretary of Agriculture (the Secretary) to examine and inspect all viruses, serums, toxins, and analogous products for use in the treatment of domestic animals, if the products are imported or offered for importation into the United States, to determine if the products are prohibited by the VSTA, and if they are, to deny entry. The VSTA further authorizes the Secretary to promulgate regulations to prevent the preparation, sale, barter, exchange, or shipment of such products. Within USDA, this authority has been delegated to CVB. Regulations established under the VSTA are contained in 9 CFR parts 101-118, 123-124.

The regulations in 9 CFR parts 101-118, 123-124 establish the terminology, technical requirements, and enforcement practices for CVB's administration of the VSTA. These parts collectively address a range of activities associated with veterinary biological products, including product and establishment licensing;  3 the conditions for importation and experimental use;  4 and the procedures for suspension or revocation of USDA licenses and authorizations. 5 These regulations also include requirements related to facility design and operation, 6 equipment sanitation, 7 production controls, 8 testing and serial release procedures, 9 packaging and labeling specifications, 10 and recordkeeping and reporting practices. 11 Additional provisions address the management and use of animals at licensed establishments, 12 inspection authorities, 13 and the detention or disposition of non-compliant products. 14 Over time CVB has amended these regulations to incorporate updated laboratory methods and production technologies, resulting in a patchwork of incremental updates across multiple technical domains. The intent of this Request for Information (RFI) is to gather information that would assist USDA in modernizing 9 CFR parts 101-118, 123-124. Modifications will be considered to encourage innovation, protect animal health, and improve regulatory clarity, while ensuring fidelity to the text of the VSTA. Based on this background information, we solicit public comments regarding the following questions:

1. What modifications or streamlining of the regulations in 9 CFR parts 101-118, 123-124 would best respond to modern research and development (R&D), manufacturing, and distribution practices to improve animal health outcomes?

2. Please describe your experiences with regulation under 9 CFR parts 101-118, 123-124, including any areas that could be improved. In your view, do any provisions hinder market efficiency or innovation, and what costs do you incur when complying with or navigating the regulatory requirements? Additionally, which aspects of 9 CFR parts 101-118, 123-124 function effectively as written?

3. How could CVB improve the clarity, organization, or interpretation of the regulations in 9 CFR parts 101-118, 123-124 to reduce ambiguity, enhance predictability, and support consistent compliance across the industry?

4. How could 9 CFR parts 101-118, 123-124 better align with the statutory authorities granted in the VSTA, particularly with respect to animal testing and handling requirements, facility requirements, and packaging and labeling requirements, among others?

5. Which regulatory processes within 9 CFR parts 101-118, 123-124, such as licensing, production updates, facility approvals, inspections, or reporting, could be streamlined to reduce administrative burden while preserving product quality, availability, and effectiveness?

6. How could CVB better align 9 CFR parts 101-118, 123-124 with international standards or regulatory frameworks to support and/or preserve global market access, reduce duplicative requirements, or improve regulatory harmonization? How could changes to 9 CFR parts 101-118, 123-124 impact domestic manufacturers and producers' ability to export to other markets?

7. How might CVB incorporate greater regulatory flexibility into 9 CFR parts 101-118, 123-124 to accommodate emerging technologies, novel product categories, or evolving production systems without compromising safety or effectiveness?

8. Are there any other specific issues or topics CVB should consider in modifying and modernizing the regulatory framework outlined in 9 CFR parts 101-118, 123-124?

We request that commentors:

1. Provide supporting data, case examples, or references that substantiate your recommendations.

2. If applicable, indicate whether your comments reflect the perspective of a manufacturer, distributor, veterinarian, academic/research institution, trade association, state regulatory officials, the public, or other stakeholder group.

When providing information to USDA, commenters must indicate what information provided is confidential business information. USDA will review this information to ensure that the provided information is not information that the submitter would ordinarily disclose to the public. USDA intends to protect confidential business information in accordance with legal and regulatory obligations and practices.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments using a method listed under the ADDRESSES section. Include “Docket No. FAA-2026-8806; Project Identifier MCAI-2025-01580-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Nicholas Benson, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3647; email: nicholas.h.benson@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2025-0214, dated September 30, 2025 (EASA AD 2025-0214) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A300 B4-601, A300 B4-603, A300 B4-620, A300 B4-622, A300 B4-605R, A300 B4-622R, A300 C4-620, A300 C4-605R Variant F, A300 F4-605R and A300 F4-622R airplanes. Model A300 C4-620 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability. The MCAI states that new or more restrictive airworthiness limitations have been developed, as specified in Airbus A300-600 ALS Part 2, Damage Tolerant Airworthiness Limitation Items (DT—ALI), Variation 4.2, dated July 7, 2025.

EASA AD 2025-0214 specifies that it requires a task (limitation) already in Airbus A300-600 Airworthiness Limitations Section (ALS) Part 2 Revision 4 that is required by EASA AD 2024-0009 (which corresponds to FAA AD 2024-16-02, Amendment 39-22808 (89 FR 75464, September 16, 2024) (AD 2024-16-02)), and that incorporation of EASA AD 2025-0214 invalidates (terminates) prior instructions for that task. This proposed AD therefore would terminate the limitations required by paragraph (dd) of AD 2024-16-02 for the tasks identified in the material referenced in EASA AD 2025-0214 only.

The FAA is proposing this AD to address fatigue cracking in principal structural elements. The unsafe condition, if not addressed, could result in reduced structural integrity of the airplane.

EASA AD 2025-0214 specifies new or more restrictive airworthiness limitations for airplane structures. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2025-0214 described previously, as incorporated by reference. Any differences with EASA AD 2025-0214 are identified as exceptions in the regulatory text of this proposed AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (k)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2025-0214 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2025-0214 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2025-0214 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2025-0214. Material required by EASA AD 2025-0214 for compliance will be available at regulations.gov under Docket No. FAA-2026-8806 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOC paragraph under “Additional AD Provisions.” This new format includes a “Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this AD, if adopted as proposed, would affect 120 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

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

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

This document contains proposed additions and amendments to 26 CFR part 1 (proposed regulations) regarding section 904(b)(5) and section 250(b)(3) of the Internal Revenue Code (Code). The proposed regulations are issued pursuant to the express delegations of authority under sections 250(c) and 7805(a).

For taxable years beginning after December 31, 2025, section 250(a)(1)(A) provides a deduction to a domestic corporation equal to a percentage of the corporation's foreign-derived deduction eligible income (FDDEI). FDDEI is the deduction eligible income (DEI) of any domestic corporation that is derived in connection with (i) property that is sold by the taxpayer to any person who is not a United States person and that the taxpayer establishes to the satisfaction of the Secretary is for a foreign use, or (ii) services provided by the taxpayer which the taxpayer establishes to the satisfaction of the Secretary are provided to any person, or with respect to property, not located within the United States. Section 250(b)(1).

Section 250(b)(3)(A) was amended by section 70322 of Public Law 119-21, 139 Stat. 72 (July 4, 2025), commonly known as the One, Big, Beautiful Bill Act (the OBBBA). Prior to its amendment, section 250(b)(3)(A) defined DEI as the excess (if any) of a domestic corporation's gross income determined without regard to six categories of gross income, described in section 250(b)(3)(A)(i)(I) through (VI), over the deductions (including taxes) properly allocable to such gross income. Section 70322(b) of the OBBBA amended section 250(b)(3)(A)(ii) to reduce gross income by the “expenses and deductions (including taxes), other than interest expense and research or experimental expenditures, properly allocable to such gross income.” Section 70322(b)(2) of the OBBBA provides that the amendment to section 250(b)(3)(A)(ii) applies to taxable years beginning after December 31, 2025.

As discussed in more detail in part III of this Background, section 904(a) and (d) limit the foreign tax credit for foreign taxes attributable to amounts described in section 904(d)(1)(A) (section 951A category income) to the amount of U.S. tax imposed on the taxpayer's net foreign source section 951A category income. To determine the taxpayer's net foreign source section 951A category income, the taxpayer must determine the amount of deductions that are allocated and apportioned to foreign source section 951A category income. The rules for allocating and apportioning deductions to foreign source section 951A category income, as well as to foreign source gross income in the other categories listed in, or treated as listed in, section 904(d)(1) (each, a “separate category,”  1 and to gross income from sources within the United States (U.S. source income), are generally found in the regulations described in § 1.861-8(a)(1) (the section 861 regulations).

The OBBBA made several changes to the Code with respect to the foreign tax credit rules, including rules for allocating and apportioning deductions for purposes of determining the foreign tax credit limitation. In particular, the OBBBA added section 904(b)(5), which provides special rules for allocating and apportioning deductions to foreign source income for purposes of applying section 904(a) with respect to section 951A category income. Section 904(b)(5)(A) provides that any deduction allowed under section 250(a)(1)(B) and any deduction allowed under section 164(a)(3) for taxes imposed on amounts described in section 250(a)(1)(B) are allocated and apportioned to foreign source section 951A category income. Section 904(b)(5)(B) provides that no amount of interest expense or research and experimental (R&E) expenditures is allocated or apportioned to foreign source section 951A category income. Section 904(b)(5)(C) provides that any other deduction is allocated and apportioned to foreign source section 951A category income only if the deduction is directly allocable to such income. Pursuant to the second sentence in section 904(b)(5), any amount or deduction that would (but for section 904(b)(5)(B) and (C)) have been allocated or apportioned to foreign source section 951A category income is only allocated or apportioned to U.S. source income. Section 70311(c) of the OBBBA provides that the amendment to section 904(b) applies to taxable years beginning after December 31, 2025.

Section 904(a) limits a taxpayer's foreign tax credit to the amount of U.S. tax imposed on the taxpayer's foreign source taxable income. For this purpose, foreign source taxable income cannot exceed the taxpayer's entire taxable income.

Other provisions in section 904 set forth additional rules for determining the limitation on the amount of the foreign tax credit a taxpayer is allowed. Section 904(d) provides that the limitation in section 904(a) is applied separately with respect to each separate category. Section 904(b) provides special rules for determining the taxpayer's foreign source taxable income and entire taxable income needed to compute the foreign tax credit limitation. Section 904(f) provides rules that apply if a taxpayer sustains a loss from sources within the United States (U.S. source loss), an overall foreign loss (OFL), or a separate limitation loss (SLL) with respect to one or more separate categories. Section 904(g) provides rules that apply if a taxpayer sustains an overall domestic loss (ODL) for the taxable year.

To the extent a taxpayer has a U.S. source loss, the U.S. source loss reduces foreign source taxable income in the separate categories (separate limitation income (SLI)) on a proportionate basis. Section 904(f)(5)(D).

To the extent of an ODL (subject to limitations), a taxpayer's U.S. source taxable income in subsequent taxable years is recharacterized as foreign source taxable income. Under section 904(g)(2)(A), in the case of a taxpayer that chooses to claim a foreign tax credit for the taxable year, an ODL is a domestic loss for the taxable year that offsets foreign source taxable income for the taxable year or for any preceding taxable year (by reason of a carryback) in which the taxpayer chose to claim a foreign tax credit. In the case of a taxpayer that does not choose to claim a foreign tax credit for the taxable year, an ODL is a domestic loss for the taxable year that offsets foreign source taxable income for any preceding taxable year in which the taxpayer chose to claim a foreign tax credit. Section 904(g)(2)(B) defines the term “domestic loss” as the amount by which the deductions properly apportioned or allocated to gross U.S. source income for the taxable year exceed the gross U.S. source income (determined without regard to any carryback from a subsequent taxable year).

The section 861 regulations provide general rules for allocating and apportioning deductions for purposes of various sections of the Code that require the determination of taxable income (each an operative section), including sections 250(b), 871(b)(1), 882(a)(1), and 904(d)(1). See § 1.861-8(a)(1) and (f)(1). Generally, deductions are allocated and apportioned based on the factual relationship of the deduction to a class or a grouping of gross income. See § 1.861-8(b)(1) and § 1.861-8T(c)(1). A deduction is first allocated to a class of gross income and then, if necessary to make the determination of taxable income required by the operative section of the Code, apportioned within the class among the statutory and residual groupings of gross income.

A class of gross income may consist of one or more items (or subdivisions of these items) of gross income enumerated in section 61, such as gross income derived from business and gains from dealings in property. A deduction is allocated to a class of gross income if it is definitely related to the class of gross income. A deduction is definitely related to a class of gross income if it is incurred as a result of, or incident to, an activity or in connection with property that generates, has generated, or could reasonably have been expected to generate gross income in the class. § 1.861-8(b)(2). If a deduction is not definitely related to a class of gross income constituting less than all gross income, it is ordinarily treated as definitely related and allocable to all of the taxpayer's gross income. § 1.861-8(b)(5). Certain deductions may not be definitely related to any gross income. § 1.861-8(e)(9).

After a deduction has been allocated to a class of gross income, the deduction is apportioned among the statutory and residual groupings within the class of gross income in a manner that reflects to a reasonably close extent the factual relationship between the deduction and the grouping of gross income. § 1.861-8T(c)(1). A statutory grouping is the gross income from a specific source or activity relevant to the operative section. Gross income from other sources or activities is included in the residual grouping. For example, section 904(d)(1) is the operative section when applying the section 861 regulations to determine foreign source taxable income in each separate category for purposes of the foreign tax credit limitation. Accordingly, the foreign source income in each separate category is a statutory grouping, and U.S. source income is the residual grouping.

Sections 1.861-9, 1.861-9T, 1.861-10, 1.861-10T, 1.861-11, and 1.861-11T, and related §§ 1.861-12, 1.861-12T, and 1.861-13, provide rules for allocating and apportioning interest expense that is deductible under section 163. Under §§ 1.861-9 and 1.861-9T, interest expense is generally allocated to all gross income that the taxpayer's assets generate and apportioned to statutory and residual groupings based on the average total value of assets within each grouping for the taxable year, as determined under the asset valuation rules and asset characterization rules provided in those sections and §§ 1.861-12, 1.861-12T, and 1.861-13 (the asset method). See also section 864(e)(2). In a set of narrow circumstances, the general rule provided under §§ 1.861-9 and 1.861-9T does not apply. In those circumstances, interest expense is directly allocated to income generated by certain assets or investments. See §§ 1.861-10 and 1.861-10T.

Section 1.861-17 provides rules for allocating and apportioning R&E expenditures, as defined in § 1.861-17(a). Section 1.861-17(b) allocates R&E expenditures to gross intangible income (as defined in § 1.861-17(b)(2)) that is reasonably connected with the taxpayer's Standard Industrial Classification (SIC) code category or categories. Gross intangible income does not include dividends or any amounts included in income under section 951, 951A, or 1293. See § 1.861-17(b)(2).

Section 1.861-17(d) apportions R&E expenditures among the statutory and residual groupings within the class of gross intangible income in proportion to the taxpayer's gross receipts (and gross receipts of certain related and unrelated taxpayers) from sales and leases of products or services that are related to gross intangible income in the groupings. If, however, the taxpayer performs at least 50 percent of the R&E activities in the United States or more than 50 percent of the R&E activities outside the United States, then, for purposes of determining the taxpayer's foreign tax credit limitation, § 1.861-17(c) apportions 50 percent of the taxpayer's R&E expenditures to U.S. source gross intangible income or foreign source gross intangible income, respectively (the exclusive apportionment rule). The remaining 50 percent of R&E expenditures is apportioned under § 1.861-17(d).

Section 250(a) permits a domestic corporation a deduction for 33.34 percent of the domestic corporation's FDDEI and 40 percent of the domestic corporation's net CFC tested income under section 951A and related section 78 deemed dividend. Under § 1.861-8(e)(14), the portions of the section 250(a) deduction attributable to net CFC tested income (reduced by a taxable income limitation under section 250(a)(2)(B)(ii)) and the related deemed dividend are considered definitely related and allocable to the classes of gross income included under section 951A(a) and section 78, respectively. To the extent the class of gross income includes income in more than one grouping, the respective portions of the section 250(a) deduction are apportioned based on the relative amounts of gross income in each grouping. § 1.861-8(e)(14).

Section 164(a)(3) permits a deduction for State and local, and foreign, income, war profits, and excess profits taxes paid or accrued by the taxpayer in the taxable year. A deduction for State and local taxes is considered definitely related and allocable to the gross income on which the State and local taxes are imposed. § 1.861-8(e)(6).

Section 1.861-8 provides specific rules for the allocation and apportionment of certain other deductions. Stewardship expenses that are allocable to a class of gross income that includes gross income in more than one grouping are apportioned based on the relative values of the entity or entities in each grouping that are owned by the taxpayer that incurred the stewardship expense. § 1.861-8(e)(4)(ii)(C).

Legal and accounting fees and expenses may be allocable either to specific classes of gross income or to all of the taxpayer's gross income and are apportioned among statutory and residual groupings based on the amounts of gross income in the groupings or some other apportionment factor. §§ 1.861-8(b)(5), (e)(5)(i) and 1.861-8T(c)(1). See also § 1.861-8(e)(5)(ii) and (iii) (apportioning deductions arising from product liability and other claims for damages on the basis of certain gross income or assets).

Net operating loss (NOL) deductions are allocated and apportioned to statutory and residual groupings by reference to the statutory and residual groupings of the components of the NOL. § 1.861-8(e)(8)(ii). An NOL is separated into components that are assigned to statutory or residual groupings by reference to the loss in each statutory or residual grouping that does not reduce income in other groupings in the taxable year of the loss. § 1.861-8(e)(8)(i). When section 904 is the operative section, § 1.861-8(e)(8)(i) determines the source and separate category components of an NOL by reference to the amounts of SLL and U.S. source loss (determined without regard to adjustments required under section 904(b)) that are not allocated to reduce U.S. source income or SLI in other separate categories under the rules of section 904(f) for the taxable year in which the NOL arose.

Deductions that are supportive in nature (such as for overhead, general and administrative, and supervisory expenses) may be allocated and apportioned along with other deductions to which they relate that are more readily allocated to gross income. § 1.861-8(b)(3). Alternatively, they may be attributed directly to activities or property, in which case they will ordinarily be allocated to a broad class of gross income or all gross income. Id. If allocated to all gross income, supportive deductions are apportioned among the statutory and residual groupings based on the amounts of gross income in the groupings or some other apportionment factor. §§ 1.861-8(b)(5) and 1.861-8T(c)(1).

Rules for allocating and apportioning certain deductions are contained in regulations other than the section 861 regulations. For example, § 1.904-4(p) provides the rule for allocating foreign currency gain or loss under section 986(c) with respect to a distribution of previously taxed earnings and profits (PTEP) (section 986(c) gain or loss). Section 1.904-4(p) provides that section 986(c) gain or loss is assigned to the separate category or categories of the PTEP from which the distribution is made. Section 986(c) provides that the foreign currency gain or loss with respect to distributions of PTEP is treated as from the same source as the associated income inclusion.

Section 250(b)(3)(A), as amended by section 70322(b) of the OBBBA, defines a domestic corporation's DEI as a net amount that is computed by determining the excess of the corporation's gross income without regard to certain excluded items (gross DEI) over expenses and deductions (including taxes), other than interest expense and R&E expenditures, properly allocable to gross DEI. Existing regulations under section 250 (section 250 regulations) provide rules for computing a taxpayer's DEI for a taxable year. Under these rules, first, a taxpayer determines its gross DEI, gross FDDEI, and gross residual DEI (gross RDEI), which is the portion of gross DEI for a taxable year that is not gross FDDEI. § 1.250(b)-1(c)(14) through (16) (defining gross RDEI, gross DEI, and gross FDDEI, respectively). Next, the taxpayer determines its deductions for the taxable year properly allocable to gross DEI and gross FDDEI without regard to certain Code sections, including section 163(j). § 1.250(b)-1(d)(2)(ii). Lastly, the taxpayer allocates and apportions its deductions for the taxable year to gross DEI and gross FDDEI under the rules of §§ 1.861-8 through 1.861-14T and 1.861-17 by treating: (i) section 250(b) as an operative section described in § 1.861-8(f), (ii) gross FDDEI and gross RDEI as separate statutory groupings, and (iii) the items of gross income that are excluded from gross DEI as the residual grouping. § 1.250(b)-1(d)(2)(i) and (c)(15)(i) through (vi).

The proposed regulations would update the section 250 regulations to reflect the amendment to section 250(b)(3)(A)(ii) made by section 70322(b) of the OBBBA. First, the proposed regulations would provide that a taxpayer's gross DEI and gross FDDEI for a taxable year are reduced by the properly allocable expenses and other deductions (referred to collectively as “deductions”) that the taxpayer deducts in the taxable year. Proposed § 1.250(b)-1(a). The proposed regulations would add the term “expenses” to existing § 1.250(b)-1(a) in order to reflect the addition of this term, and the related term “interest expense,” in amended section 250(b)(3)(A)(ii). By taking into account amounts that are deducted in the taxable year in order to compute DEI and FDDEI, the proposed regulations would reflect that DEI and FDDEI are measures of taxable income.

Second, the proposed regulations would provide that taxpayers must determine their deductions for the taxable year properly allocable to gross DEI and gross FDDEI without regard to interest expense and R&E expenditures. Proposed § 1.250(b)-1(d)(2)(ii). The proposed regulations would define interest expense as any amount that is deductible under section 163 (including original issue discount). To reflect that interest expense is no longer allocable to gross DEI and gross FDDEI, the proposed regulations would remove the reference to section 163(j) in existing § 1.250(b)-1(d)(2)(ii). The proposed regulations would define R&E expenditures as any expenditure that a taxpayer deducts (including as an amortization deduction) in a taxable year under section 174, 174A, or 59(e)(2)(B). Proposed § 1.250(b)-1(d)(2)(ii). Lastly, the proposed regulations would update the general references to the section 861 regulations to use the defined term “section 861 regulations” provided in § 1.861-8(a). Proposed § 1.250(b)-1(d)(2)(i).

The Treasury Department and the IRS intend to issue separate guidance regarding section 250, which would update the section 250 regulations to reflect other amendments made by the OBBBA. Separate guidance would address, for example, the removal of the deemed tangible income return and deemed intangible income from calculation of the deduction provided under section 250(a)(1)(A) for taxable years beginning after December 31, 2025.

As noted in part II of the Background section of this preamble, the first sentence of section 904(b)(5) describes three categories of deductions and specifies whether the category of deduction is allocated or apportioned to foreign source section 951A category income for purposes of section 904(a).

The first category of deductions is described in section 904(b)(5)(A) and consists of the deduction allowed under section 250(a)(1)(B) and the deduction under section 164(a)(3) to the extent tax is imposed on the taxpayer's net CFC tested income or section 78 gross-up attributable to such income.

For purposes of determining the extent to which a deduction under section 250(a)(1)(B) is allocated or apportioned to foreign source section 951A category income, the proposed regulations would apply the allocation and apportionment rules of § 1.861-8(e)(14). Proposed § 1.904(b)-4(b)(1)(i).

The first category also includes any deduction under section 164(a)(3) for a tax with the same or similar tax base as the Federal income tax such that all or a portion of the tax is attributable to the taxpayer's net CFC tested income amount or the section 78 gross-up attributable to that amount. This may arise, for instance, where a State income tax reflects a policy of Federal-State conformity and therefore includes in the tax base all or a portion of a taxpayer's net CFC tested income amount or the section 78 gross-up attributable to that amount. For purposes of determining the extent to which a deduction for State or local income taxes under section 164(a)(3) is imposed on net CFC tested income (or the associated section 78 gross-up) and allocated or apportioned to foreign source section 951A category income, the proposed regulations would apply the allocation and apportionment rules of § 1.861-8(e)(6). Proposed § 1.904(b)-4(b)(1)(ii). The proposed regulations would not include in the first category a deduction for foreign income taxes under section 164(a)(3) because foreign income taxes are not expected to be imposed on a U.S. shareholder's net CFC tested income amount or the section 78 gross-up attributable to that amount.

Deductions in the second category consist of the deductions for interest expense and R&E expenditures. Section 904(b)(5)(B). The proposed regulations would define interest expense to mean any expense that is deductible under section 163 (including original issue discount) and R&E expenditures to mean any expenditure that a taxpayer deducts (including as an amortization deduction) in a taxable year under section 174, 174A, or 59(e)(2)(B). Proposed § 1.904(b)-4(b)(3).

Deductions in the third category consist of any other deduction that is “directly allocable” to foreign source section 951A category income. Section 904(b)(5)(C).

Section 904(b)(5) does not define the term “directly allocable.” While the term appears in several other Code sections, those sections also do not define the term, and the term has no consistent accepted meaning. In comparison, the term “properly allocable” (or the variation “properly apportioned or allocated”) appears more frequently in the Code, including in sections 861, 862, 863, and 904. For those sections, the section 861 regulations provide the general framework for determining the deductions properly allocable to the relevant gross income. Under the section 861 regulations, a deduction may be allocated and apportioned to a grouping of income because the deduction resulted from activities or property that generated income in the grouping. If the deduction is instead related to all the taxpayer's gross income, a portion of the deduction may be allocated and apportioned to each grouping.

The Treasury Department and the IRS interpret the term “directly allocable” in section 904(b)(5) as requiring a closer, more direct relationship between the deduction and income than the term “properly allocable” as construed under the section 861 regulations. This interpretation is supported by the statute's use of the word “directly” and further supported by the structure of the statute. Section 904(b)(5)(C) provides that any deduction that is not in the first or second category is allocated and apportioned to foreign source section 951A category income only if the deduction is directly allocable to such income. This language indicates that “directly allocable” deductions are a subset of the “properly allocable” deductions that, before the enactment of section 904(b)(5), would have reduced foreign source section 951A category income.

The scope of deductions that may be properly allocable to foreign source section 951A category income but do not have the requisite degree of direct relationship to be considered directly allocable is informed by the deductions that the statute, in section 904(b)(5)(B), disregards in determining foreign source section 951A category income for purposes of applying section 904(a). Both interest expense and R&E expenditures are typically apportioned among statutory and residual groupings by use of proxies. Section 1.861-9T generally requires taxpayers to apportion interest expense based on the relative value of assets within statutory and residual groupings. See also section 864(e)(2). Section 1.861-17 requires that all or, where the exclusive apportionment rule of § 1.861-17(c) applies, a portion of R&E expenditures be apportioned based on the relative amount of gross receipts within statutory and residual groupings. This type of apportionment by proxy does not reflect the type of direct link between a deduction and foreign source section 951A category income required for a deduction to be “directly allocable” to such income.

Accordingly, the proposed regulations would first allocate and apportion deductions to foreign source section 951A category income without regard to section 904(b)(5) and then reallocate to U.S. source income those deductions that are not directly allocable. Under the proposed regulations, a deduction is not directly allocable if it is of a type that, under the applicable rules for allocating and apportioning deductions (without regard to section 904(b)(5)), is subject to apportionment based on the relative value of assets or amounts of U.S. gross income (including modified gross income). Proposed § 1.904(b)-4(b)(2)(i). The relevant inquiry is not how a particular item of deduction is in fact apportioned, but rather whether the item of deduction is of a type that may in some cases be apportioned based on the relative value of assets or amounts of U.S. gross income.

To provide clarity to taxpayers, proposed § 1.904(b)-4(b)(2)(ii) would specify certain deductions that are not directly allocable under this definition and certain deductions that are directly allocable under this definition. Stewardship expenses, for example, would not be directly allocable to foreign source section 951A category income because stewardship expenses are a type of deduction that is apportioned based on the relative values of entities in the statutory and residual groupings. See § 1.861-8(e)(4)(ii)(C). Legal expenses also would not be directly allocable to foreign source section 951A category income. See § 1.861-8(e)(5).

On the other hand, foreign source section 986(c) loss that is assigned to the separate category described in section 904(d)(1)(A) (section 951A category) would be directly allocable to foreign source section 951A category income. Section 986(c) loss is not a type of deduction that is subject to apportionment based on the relative value of assets or amounts of gross income. Rather, section 986(c) loss is determined separately with respect to PTEP in each separate category. Any section 986(c) loss is assigned to the separate category of the distributed PTEP and has the same source as the associated income inclusion. See § 1.904-4(p) and section 986(c).

Comments are requested on whether further guidance is needed on the application of section 904(b)(5) to other deductions.

Proposed § 1.861-8(e)(8)(i) would provide that, unlike the other adjustments in section 904(b), section 904(b)(5) is taken into account in determining the SLL and U.S. source loss components of an NOL. Otherwise, the portion of an NOL that is attributable to a deduction that would be allocated or apportioned to foreign source section 951A category income but for section 904(b)(5) could create an SLL with respect to the section 951A category that is carried over to reduce foreign source section 951A category income in a different taxable year. The Treasury Department and the IRS are of the view that this would be contrary to the instruction of section 904(b)(5).

Proposed § 1.861-8(e)(8)(i) would continue to provide that section 904(b)(2) and (4) are disregarded when determining the source and separate category components of an NOL. The different treatment of the adjustments under section 904(b)(2) and (4) and the adjustment under section 904(b)(5) reflects the fact that, unlike section 904(b)(5), section 904(b)(2) and (4) adjust amounts of deductions and affect worldwide taxable income for purposes of the foreign tax credit limitation.

The proposed regulations would also amend § 1.904(b)-3(d)(2) to clarify that, when determining the components of an NOL, the rules in section 904(f) and (g) are applied without taking into account the adjustments under section 904(b)(4).

In the taxable year in which a taxpayer deducts an NOL carryover, section 904(b)(5) and the rules for allocating and apportioning deductions apply to determine the U.S. and foreign source taxable income in separate categories before determining the NOL components to be carried over and combined with the U.S. and foreign source taxable income in the separate categories under § 1.904(g)-3(b). Section 904(b)(5) applies before determining the NOL components to be carried over because § 1.904(g)-3 applies after deductions for the current taxable year (other than the NOL deduction) have been allocated and apportioned among the statutory and residual groupings before determining the amounts of the NOL components to be carried over.

The proposed regulations would provide that an NOL deduction under section 172 that is allocated and apportioned to foreign source section 951A category income under § 1.861-8(e)(8) is directly allocable to foreign source section 951A category income. See proposed § 1.904(b)-4(b)(2)(ii)(B). This approach reflects the fact that NOL deductions are not subject to apportionment based on the relative value of assets or amounts of U.S. gross income. See § 1.861-8(e)(8). Moreover, for NOLs that arise after the applicability date of section 904(b)(5), the component of an NOL that is assigned to foreign source section 951A category income under proposed § 1.861-8(e)(8)(i) will already exclude amounts that are not allocated or apportioned to foreign source section 951A category income by reason of section 904(b)(5). Accordingly, treating that component of those NOLs as directly allocable to foreign source section 951A category income preserves the same outcome that would have occurred if the deductions had reduced income in the taxable year in which they were incurred.

Section 904(b)(5)(B) and (C) identify deductions that are not allocated to foreign source section 951A category income for purposes of section 904(a): interest expense, R&E expenditures, and deductions that are not “directly allocable” to foreign source section 951A category income (collectively, excluded deductions). The second sentence of section 904(b)(5) provides that, to the extent an amount of the excluded deductions would have been allocated or apportioned to foreign source section 951A category income but for section 904(b)(5)(B) and (C), that amount of the excluded deductions is allocated to U.S. source income (reallocated deductions).

The proposed regulations would determine the reallocated deductions by first allocating and apportioning deductions to foreign source section 951A category income using existing rules for allocating and apportioning deductions. This preliminary allocation and apportionment is performed without regard to section 904(b)(5) and is performed for purposes of determining the amount of reallocated deductions. Only deductions that are allocated and apportioned to foreign source section 951A category income under this preliminary step may be reallocated to U.S. source income as a result of the second sentence of section 904(b)(5). See proposed § 1.904(b)-4(c).

This approach produces different outcomes as applied to the different categories of excluded deductions. A deduction that is not directly allocable to foreign source section 951A income may, or may not, have been allocated or apportioned to such income under existing expense allocation and apportionment rules. Similarly, a deduction for interest expense may be allocable to foreign source section 951A category income under the section 861 regulations, including §§ 1.861-9, 1.861-9T, 1.861-10, 1.861-10T, 1.861-11, and 1.861-11T. Under § 1.861-17, however, deductions for R&E expenditures cannot be allocated to section 951A category income. In order to reallocate any amount of R&E expenditures to U.S. source income under the second sentence of section 904(b)(5), § 1.861-17 would need to be revised to allocate and apportion R&E expenditures to foreign source section 951A category income in the first instance. The preamble to the final § 1.861-17 regulations states that R&E expenditures cannot be allocated to section 951A category income because R&E expenditures, whether or not ultimately successful, are incurred to produce intangible property and a taxpayer's section 951A inclusions do not result from R&E expenditures incurred by the taxpayer. 85 FR 71,998, 72,005-06. The preamble states that, even if the section 951A inclusion relates to a CFC licensee of the intangible property produced by the R&E expenditures, the use of the intangible property by the CFC results in income to the taxpayer from the arm's length price paid by the CFC to the taxpayer (or, if the intangible property is transferred to the CFC in an exchange described in section 351 or 361, from a section 367(d) inclusion) rather than from the section 951A inclusion. Id. Accordingly, under § 1.861-17, a deduction for R&E expenditures is not allocable to section 951A category income. The Treasury Department and the IRS are of the view that these conclusions remain correct after the enactment of section 904(b)(5). Changing § 1.861-17 to allocate R&E expenditures to section 951A category income would require a theory for how R&E expenditures by a U.S. shareholder supports the production of section 951A category income, such as by identifying some portion of a CFC's tested income that is attributable to the use of the intangible property (which is owned by the U.S. shareholder and was produced as a result of the U.S. shareholder's R&E expenditures) for which the U.S. shareholder is not required to be fully compensated under section 482 principles.

Comments are requested on this proposed approach of applying existing rules for allocating and apportioning deductions to section 951A category income in the context of determining the deductions that are reallocated to U.S. source income.

Proposed § 1.904(b)-4(c) would provide that reallocated deductions are allocated to U.S. source income and confirms that this reallocation occurs for all purposes of section 904 including when applying rules, such as the section 861 regulations, when section 904 is the operative section. It follows that a taxpayer's aggregate foreign source taxable income will not exceed the taxpayer's entire taxable income, which is a requirement of section 904(a).

Likewise, because reallocated deductions are treated as allocated to U.S. source income for purposes of section 904(g)(2)(B), reallocated deductions may cause the taxpayer to sustain, or increase the amount of, a domestic loss within the meaning of section 904(g)(2)(B) that is taken into account in determining the taxpayer's ODL under section 904(g)(2)(A). If reallocated deductions were not allocated to U.S. source income for purposes of section 904(g)(2)(B), then the domestic loss, and therefore the ODL, would not reflect the amount by which the taxpayer's aggregate foreign source taxable income was reduced as a result of the U.S. source loss. In that case, the taxpayer would be unable to benefit from the full amount of recapture in subsequent years under section 904(g).

Similarly, because the reallocated deductions reduce U.S. source income, the reallocated deductions are not treated as “properly apportioned and allocated” to foreign source income in determining any OFL under section 904(f)(2). Reallocated deductions are treated as reducing U.S. source income, and not foreign source section 951A category income, for purposes of determining the amount of SLL or SLI in the section 951A category. Accordingly, the reallocation may affect the recapture of foreign source income in a separate category as U.S. source income or as foreign source income in a different separate category in subsequent years.

The Treasury Department and the IRS are studying whether any further changes to the regulations under section 904(f) and (g) are needed to reflect the approach described above.

Under section 7805(b)(2) of the Code, the proposed regulations regarding section 250(b)(3) are proposed to apply to taxable years beginning after December 31, 2025. Proposed § 1.250-1(b). A taxpayer may rely on the proposed regulations regarding section 250(b)(3) for taxable years beginning after December 31, 2025 and before the date the proposed regulations are published as final regulations in the Federal Register , provided the taxpayer follows the proposed regulations regarding section 250(b)(3) in their entirety.

Under section 7805(b)(2) of the Code, proposed § 1.904(b)-4 and the proposed amendment to § 1.861-8(e)(8) would apply to taxable years beginning after December 31, 2025. Proposed § 1.904(b)-4(e). A taxpayer may rely on those proposed regulations for taxable years beginning after December 31, 2025 and before the date those proposed regulations are published as final regulations in the Federal Register , provided the taxpayer follows them in their entirety.

The Office of Management and Budget's Office of Information and Regulatory Analysis has determined that this proposed regulation is not significant and is not subject to review under section 6(b) of Executive Order 12866. Therefore, a regulatory impact assessment is not required.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA) generally requires that a Federal agency obtain the approval of the Office of Management and Budget before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. 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 collection of information in these proposed regulations includes recordkeeping requirements that are necessary for the allocation and apportionment of deductions to net CFC tested income and to deduction eligible income. These recordkeeping requirements are considered general tax records under § 1.6001-1. For PRA purposes, general tax records are already approved by OMB control number 1545-0047 for tax-exempt filers, 1545-0074 for individual filers, 1545-0092 for trust and estate filers, and 1545-0123 for business filers.

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (5 U.S.C. chapter 6) (RFA) requires the agency to prepare and make available for public comment an initial regulatory flexibility analysis that will describe the impact of the proposed rule on small entities. See 5 U.S.C. 603(a). Section 605 of the RFA provides an exception to this requirement if the agency certifies that the proposed rulemaking will not have a substantial economic impact on a substantial number of small entities. A small entity is defined as a small business, small nonprofit organization, or small governmental jurisdiction. See 5 U.S.C. 601(3) through (6).

The proposed regulations will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(3) through (6) of the RFA. The proposed regulations provide guidance on issues regarding sections 250(b)(3) and 904(b)(5) but do not change the economic impact of the existing regulations or impose any new costs on small entities. The proposed regulations do not impose any economic impact on taxpayers beyond what is imposed by the statute itself. Any economic impact on taxpayers flows directly from the underlying statute. It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities.

The Treasury Department and the IRS request comments from the public with respect to this certification.

Pursuant to section 7805(f) of the Code, the proposed regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.

Section 202 of the Unfunded Mandates Reform Act of 1995 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 in 1995 dollars, updated annually for inflation. The proposed regulations do 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. The proposed regulations do not have federalism implications, do not impose substantial direct compliance costs on State and local governments, and do not preempt State law within the meaning of the Executive order.

Consideration will be given to comments that are submitted timely to the IRS as prescribed in the preamble under the ADDRESSES section. In addition to the comments specifically requested in the Explanation of Provisions, 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.

A public hearing will be scheduled if requested in writing by any person who timely submits written comments. Requests for a public hearing are encouraged to be made electronically. If a public hearing is scheduled, notice of the date and time for the public hearing will be published in the Federal Register .

Any IRS Revenue Procedures, Revenue Rulings, Notices, or other guidance cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at www.irs.gov .

The principal authors of these regulations are John Lee and Alex Kaplan, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.

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

On August 20, 2026, the Department published in the Federal Register a proposed rule titled Special Areas; Roadless Area Conservation at 91 FR 53827. The proposed rule would rescind the 2001 Roadless Area Conservation Rule by removing and reserving 36 CFR part 294, subpart B. The notice of proposed rulemaking invited public comment on the proposed rescission, the associated draft environmental impact statement, and cost benefit analysis.

The original comment period is scheduled to close on September 21, 2026. The Department is extending the comment period by 15 days, until October 6, 2026, to provide interested persons additional time to review the proposed rule and supporting materials and submit comments. The Department will consider all timely comments received by October 6, 2026, in developing any final rule and supporting analyses.

Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2026-4324, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

EPA will begin pre-registering speakers for the hearing upon publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available on EPA's CCR website ( https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program ) or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to register to speak at the hearing. The last day to pre-register to speak at the hearing will be November 5, 2026.

EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing according to the procedures specified on EPA's CCR website for this hearing ( https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program ). The Agency will make every effort to accommodate all speakers who arrive and register, although preferences on speaking times may not be able to be fulfilled.

Each commenter will have five minutes to provide oral testimony. EPA encourages commenters to provide EPA with a copy of their oral testimony electronically (via email) to the person listed in the FOR FURTHER INFORMATION CONTACT section. If EPA is anticipating a high attendance, the time allotment per testimony may be shortened to no shorter than three minutes per person to accommodate all those wishing to provide testimony and who have pre-registered. While EPA will make every effort to accommodate all speakers who do not pre-register, opportunities to speak may be limited based upon the number of pre-registered speakers. Therefore, EPA strongly encourages anyone wishing to speak to pre-register. Participation in the virtual public hearing does not preclude any entity or individual from submitting a written comment.

EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Verbatim transcripts of the hearings and written statements will be included in the docket for this action.

Please note that any updates made to any aspect of the hearing will be posted online on EPA's CCR website ( https://www.epa.gov/coal-combustion-residuals/us-state-wisconsin-coal-combustion-residuals-permit-program ). While EPA expects the hearing to go forward as set forth above, please monitor our website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates. EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the service of a translator, please pre-register for the hearing and describe your needs on the registration form by October 26, 2026. If you require special accommodations such as audio description or closed captioning, please pre-register for the hearing and describe your needs on the registration form by October 26, 2026. Alternatively, registrants may notify the person listed in the FOR FURTHER INFORMATION CONTACT section of any special needs. EPA may not be able to arrange accommodations without advance notice.

On April 17, 2015, EPA published a final rule, creating 40 CFR part 257, subpart D, 1 which establishes a comprehensive set of minimum Federal requirements for the disposal of CCR in landfills and surface impoundments (80 FR 21302) (Federal CCR regulations). Section 2301 of the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act amended RCRA section 4005 to create a new subsection (d) that requires EPA to establish a Federal CCR permitting program. See 42 U.S.C. 6945(d).

As amended, RCRA section 4005(d) also allows States to seek approval for a State CCR permit program that will operate in lieu of a Federal CCR permit program in the State. The statute provides that within 180 days after a State submits a complete application to the Administrator for approval, EPA shall approve the State permit program if the Administrator determines that the State program requires each CCR unit located in the State to achieve compliance with either the Federal requirements or other State requirements that EPA determines, after consultation with the State, are at least as protective as those included in the Federal CCR regulations. See 42 U.S.C. 6945(d)(1)(B).

On February 24, 2026, WDNR submitted its State CCR permit program application to EPA Region 5 requesting approval of the State's partial CCR permit program. 2 EPA is proposing to approve the Wisconsin partial CCR permit program pursuant to RCRA section 4005(d)(1)(B). 42 U.S.C. 6945(d)(1)(B). The fact that Wisconsin is seeking approval of a partial program does not mean it must subsequently apply for full program approval. However, Wisconsin could apply for revised partial program approval or full program approval at some point in the future if it chooses to do so. If approved, the Wisconsin CCR permit program will operate in lieu of the Federal CCR program (codified at 40 CFR part 257, subpart D), with the exception of the provisions specifically identified below for which the State is not seeking approval and for which the corresponding provisions of the Federal CCR program would remain in effect. However, even for the approved provisions, EPA would retain its inspection and enforcement authorities under RCRA sections 3007 and 3008, 42 U.S.C. 6927 and 6928, consistent with EPA's ongoing oversight authority under RCRA. See 42 U.S.C. 6945(d)(4)(B).

EPA has also engaged Federally recognized Tribes within the State of Wisconsin in consultation and coordination regarding the program approval for the determination. EPA has established opportunities for coordination and consultation. Tribal consultation has been and will continue to be conducted in accordance with the EPA policy on Consultation and Coordination with Indian Tribes. 3

CCR are generated from the combustion of coal, including solid fuels classified as anthracite, bituminous coal, subbituminous coal, and lignite, for the purpose of generating steam to power a generator to produce electricity or electricity and other thermal energy by electric utilities and independent power producers. CCR, commonly known as coal ash, include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. CCR can be sent offsite for disposal or beneficial use, or disposed of in on-site landfills or surface impoundments. This section summarizes EPA's regulatory actions on CCR to date to provide relevant background on this proposed approval of Wisconsin's partial CCR permit program.

On April 17, 2015, EPA published a final rule creating 40 CFR part 257, subpart D, which established a comprehensive set of minimum Federal requirements for the disposal of CCR in landfills and surface impoundments (80 FR 21302). The rule created a self-implementing program that regulates the location, design, operating criteria, and groundwater monitoring and corrective action for CCR units, as well as the closure and post-closure care of CCR units. It also requires recordkeeping and notifications for CCR units. EPA has since amended 40 CFR part 257, subpart D on August 5, 2016 (81 FR 51802), July 30, 2018 (83 FR 36435), August 28, 2020 (85 FR 53516), November 12, 2020 (85 FR 72506), May 8, 2024 (89 FR 38950), November 8, 2024 (89 FR 88650), and February 10, 2026 (91 FR 5806). More information on these rules is provided in the Technical Support Document in the docket for this document. 4

EPA is issuing this proposed action pursuant to RCRA sections 4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d) and 6974(b)(1). As amended by section 2301 of the 2016 WIIN Act, RCRA section 4005(d) instructs EPA to establish a Federal permit program similar to those under RCRA subtitle C and other environmental statutes and authorizes States to develop their own CCR permitting programs that go into effect in lieu of the Federal permit program upon approval by EPA. See 42 U.S.C. 6945(d).

Under RCRA section 4005(d)(1)(A), 42 U.S.C. 6945(d)(1)(A), States seeking approval of a State CCR program must submit to the Administrator “in such form as the Administrator may establish, evidence of a permit program or other system of prior approval and conditions under state law for regulation by the State of coal combustion residuals units that are located in the state.” The statute provides that EPA shall approve a State CCR permit program if the Administrator determines that the State program will require each CCR unit located in the State to achieve compliance with either: (1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2) Other State criteria that the Administrator, after consultation with the State, determines to be “at least as protective as” the Federal requirements. 42 U.S.C. 6945(d)(1)(B). The Administrator must make a final determination, after providing for public notice and an opportunity for public comment, within 180 days of receiving a State's complete submittal of the information specified in RCRA section 4005(d)(1)(A). 42 U.S.C. 6945(d)(1)(B). EPA may approve a State CCR permit program in whole or in part. Id. Once approved, the State permit program operates in lieu of the Federal requirements. 42 U.S.C. 6945(d)(1)(A). In a State with a partial program, only the State requirements that have been approved by EPA operate in lieu of the Federal requirements, and facilities remain responsible for compliance with all remaining Federal requirements in 40 CFR part 257.

As noted above, the Federal CCR regulations are self-implementing, meaning that CCR landfills and surface impoundments must comply with the terms of the regulations prior to obtaining a Federal permit or a permit issued by an approved State. Noncompliance with the Federal CCR regulations can be the subject of an enforcement action brought directly against the facility. Once a final CCR permit is issued by an approved State or pursuant to a Federal CCR permit program, however, the terms of the permit apply in lieu of the terms of the Federal CCR regulations and/or requirements in an approved State program, and RCRA section 4005(d)(3) provides a permit shield against direct enforcement of the applicable Federal or State CCR regulations (meaning the permit's terms become the enforceable requirements for the permittee).

RCRA section 7004(b), which applies to all RCRA programs, directs that “public participation in the development, revision, implementation, and enforcement of any . . . program under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States.” 42 U.S.C. 6974(b)(1). Accordingly, EPA considers permitting requirements, requirements for compliance monitoring authority, requirements for enforcement authority, and requirements for intervention in civil enforcement proceedings in evaluating State CCR permit program applications.

Once a State CCR permit program is approved, the Administrator must review the approved program no less frequently than every 12 years, no later than three years after a revision to an applicable section of 40 CFR part 257, subpart D, and no later than one year after any unauthorized significant release from a CCR unit located in the State. EPA also must review an approved State CCR permit program at the request of another State alleging that the soil, groundwater, or surface water of the requesting State is or is likely to be adversely affected by a release from a CCR unit in the approved State. See 42 U.S.C. 6945(d)(1)(D)(i)(I) through (IV).

In a State with an approved State CCR permit program, EPA may commence administrative or judicial enforcement actions under RCRA section 3008, 42 U.S.C. 6928, if the State requests assistance or if EPA determines that an EPA enforcement action is likely to be necessary to ensure that a CCR unit is operating in accordance with the criteria of the State's permit program. 42 U.S.C. 6945(d)(4). EPA can enforce any Federal requirements that remain in effect ( i.e., those for which there is no corresponding approved State provision). EPA may also exercise its inspection and information gathering authorities under RCRA section 3007 in a State with an approved program. 42 U.S.C. 6927.

EPA began working with Wisconsin in 2020 as the State developed its application for the State's partial CCR permit program. As it has with other States, EPA discussed with Wisconsin the process for EPA to review and approve the State's CCR permit program, Wisconsin 's anticipated timeline for submitting a CCR permit program application to EPA, and Wisconsin's regulations for issuing permits. As discussed further below, Wisconsin is only seeking approval to regulate CCR landfills, and the State's CCR regulatory program for CCR landfills is structured differently than the Federal CCR regulations. Specifically, WDNR has regulated CCR landfills the same as other non-hazardous waste landfills since it implemented its solid waste program in 1992 in the Wisconsin Administrative Code (Wis. Adm. Code). To ensure the State CCR landfills are subject to a program that is at least as protective as the Federal CCR regulations, the State revised the applicable sections of the Wis. Admin. Code to incorporate additional CCR specific requirements.

Accordingly, EPA and WDNR held numerous detailed conversations about differences in applicable requirements for liner design, groundwater monitoring parameters, groundwater monitoring well placement, detection monitoring, assessment monitoring, closure, post-closure care, recordkeeping and WDNR's plan of operation, and permitting requirements. WDNR shared drafts of the State rules with EPA for comment. After WDNR finalized its rules, WDNR also sent several drafts of the State CCR permit program application to EPA for review to ensure that the State program would be at least as protective as the Federal CCR regulations.

On February 24, 2026, WDNR submitted its CCR permit program application to EPA Region 5 requesting approval of Wisconsin's partial CCR permit program. 5 6 In response to EPA comments, on August 13, 2026, WDNR provided a supplement to its Narrative description. 7

RCRA section 4005(d) requires EPA to evaluate two components of a State CCR permitting program to determine whether it meets the standard for approval: the program itself, and the technical criteria that will be included in each permit issued under the State program. This section discusses EPA's review of both requirements under RCRA section 4005(d) and the criteria EPA uses to conduct this review.

First, EPA must evaluate the permit program itself (or other system of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A) through (B). RCRA section 4005(d)(1)(A) directs the State to provide evidence of a State permit program's compliance with RCRA requirements in such form as determined by the Administrator. In turn, RCRA section 4005(d)(1)(B) directs EPA to approve the State program based upon a determination that the program “requires each coal combustion residuals unit located in the state to achieve compliance with the applicable [Federal or State] criteria.” In other words, the statute directs EPA to determine that the State has sufficient authority to require compliance at all CCR units located within the State. See also 42 U.S.C. 6945(d)(1)(D)(ii)(I). To make this determination, EPA evaluates the State's authority to issue permits and impose conditions in those permits, as well as the State's authority to conduct compliance monitoring and enforcement.

During this review of the State permit program, EPA also determines whether the program contains procedures consistent with the public-participation directive in RCRA section 7004(b). RCRA section 7004(b), which applies to all RCRA programs, directs that “public participation in the development, revision, implementation, and enforcement of any . . . program under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States.” 42 U.S.C. 6974(b)(1). To make this determination, EPA evaluates the State's public participation procedures for issuing permits and for intervention in civil enforcement proceedings.

Although 40 CFR part 239 applies to the approval of State Municipal Solid Waste Landfill (MSWLF) programs under RCRA section 4005(c)(1) rather than EPA's evaluation of CCR permit programs under RCRA section 4005(d), the specific criteria outlined in that regulation provide a helpful framework to examine the relevant aspects of a State's CCR permit program. States are familiar with these criteria because all States have MSWLF programs that have been approved pursuant to these regulations, and the regulations are generally regarded as protective and appropriate.

Consequently, EPA relied on the four categories of criteria outlined in 40 CFR part 239 as guidelines to evaluate the Wisconsin CCR permit program: permitting requirements, requirements for compliance monitoring authority, requirements for enforcement authority, and requirements for intervention in civil enforcement proceedings.

Second, EPA must evaluate the technical criteria that will be included in each permit issued under the State CCR permit program to determine whether they are the same as the Federal criteria, or to the extent they differ, whether the modified criteria are “at least as protective as” the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). Only if both components meet the statutory requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1). EPA makes this determination by comparing the State's technical criteria to the corresponding Federal criteria and, where necessary, evaluating whether different State criteria are at least as protective as the Federal criteria.

Upon careful review, and as discussed in more detail below, EPA has preliminarily determined that Wisconsin's partial CCR permit program includes all the elements of an adequate State CCR permit program. It also contains all the technical criteria in 40 CFR part 257, subpart D, except for the provisions specifically discussed below that Wisconsin has not included in its partial permit program. Consequently, EPA is proposing to approve the entirety of Wisconsin's partial CCR permit program application. The State's CCR permit program does not encompass the full scope of Federal CCR requirements as presently constituted, and the provisions of the Federal CCR regulations that are not part of State's approved CCR permit program will remain directly applicable to affected CCR units. 42 U.S.C. 6945(d)(1)(B).

EPA's full analysis of the Wisconsin CCR permit program, and how the Wisconsin regulations differ from the Federal requirements, can be found in the Technical Support Document. EPA determined that the Wisconsin CCR permit program application was complete and notified Wisconsin of its determination by letter. 8

Section 4005(d)(1)(A) of RCRA, 42 U.S.C. 6945(d)(1)(A), requires a State seeking State CCR permit program approval to submit to EPA, “in such form as the Administrator may establish, evidence of a permit program or other system of prior approval and conditions under State law for regulation by the State of coal combustion residuals units that are located in the State.” Although the statute directs EPA to establish the form of such evidence, the statute does not require EPA to promulgate regulations governing the process or standard for determining the adequacy of such State programs. EPA, therefore, developed the Coal Combustion Residuals State Permit Program Guidance Document; Interim Final (82 FR 38685, August 15, 2017) (the “Guidance Document”). The Guidance Document provides recommendations on a process and standards that States may choose to use to apply for EPA approval of its CCR permit programs, based on the standards in RCRA section 4005(d), existing regulations at 40 CFR part 239, and the Agency's experience in reviewing and approving State programs.

EPA evaluated the Wisconsin CCR permit program using the process and statutory and regulatory standards discussed in Units II.C. and IV.A. of this preamble. EPA's findings are summarized below and provided in more detail in the Technical Support Document located in the docket supporting this proposed determination.

In EPA's judgment, an adequate State CCR permit program must ensure that: (1) Existing and new facilities are permitted or otherwise approved and in compliance with either 40 CFR part 257 or other State criteria; (2) The State has the authority to collect all information necessary to issue permits that are adequate to ensure compliance with relevant 40 CFR part 257, subpart D requirements; and (3) The State has the authority to impose requirements for CCR units adequate to ensure compliance with either 40 CFR part 257, subpart D, or such other State criteria that have been determined and approved by the Administrator to be at least as protective as 40 CFR part 257, subpart D.

In Wisconsin, a State permit is required for all CCR units under section 289.31 Wis. Stats.: “No person may operate a solid waste facility or hazardous waste facility unless the person obtains an operating license from the department.” There is no expiration for an operating license or plan of operation approval; however, the facility is required to follow the proposed development, filling, and closure sequencing in the plan of operation or request a modification to the plan of operation. Section NR 514.07(10), Wis. Adm. Code, has additional requirements for CCR landfill plans of operation, including that the plan of operation be updated every 10 years during the landfill's active life to comply with new regulations put in place since initial issuance of the permit or since the last update.

Procedures for evaluating proposed new and expanded solid waste landfills are defined more specifically in chs. NR 500 to 520, Wis. Adm. Code. As described on pages 21-22 of the TSD, and documented in Wisconsin permitting forms, the State has the authority to collect all information necessary to issue permits that are adequate to ensure compliance with relevant 40 CFR part 257, subpart D requirements as documented in NR 509, NR 512, and 514. The minimum submittal requirements are found in chs. NR 509 for an ISR, NR 512 for a feasibility report, NR 514 for a plan of operation, and NR 520 for financial responsibility. Additionally, section NR 512.06(3), Wis. Adm. Code, allows WDNR to require an applicant to submit any additional information found necessary to establish the feasibility of a proposed solid waste landfill. Other applicable requirements are found in chs. NR 504 for location, performance, design and construction criteria, NR 506 for operational criteria, NR 507 for environmental monitoring, NR 508 for responses when a groundwater standard is attained or exceeded, NR 509 for initial site inspections (ISI), and NR 516 for construction documentation.

Simultaneous with the WDNR technical decision-making process, an applicant must seek and obtain any applicable local approvals, and municipalities are allowed to negotiate and arbitrate with applicants proposing a landfill by adopting siting resolutions. section 289.22, Wis. Stats. The negotiated/arbitrated awards cannot be less stringent than what is contained in WDNR rules and technical conditions of approval. Chapter 289, Wis. Stats., requires all information submitted to WDNR regarding a feasibility report to also be submitted to all affected municipalities ( i.e., any host county, township, village or city as well as any municipalities within 1,500 feet of the proposed landfill) and the main public libraries in those municipalities.

Section 289.31, Wis. Stats., allows WDNR to deny, suspend or revoke the operating license of a solid waste facility for grievous and continuous failure to comply with the approved plan of operation.

Under s. NR 514.04(6), Wis. Adm. Code, an owner, or operator of a landfill may propose changes to the approved plan of operation. The changes are required to be submitted to WDNR for review and may not be implemented until WDNR issuance of a plan of operation approval modification. The review time for a complete plan of operation modification is 65 business days under s. NR 500.07, Wis. Adm. Code. Plan approval modification decisions are reviewable through judicial review under ss. 227.52 and 227.53, Wis. Stats., but are not subject to administrative contested case hearings.

There is no differentiation between major and minor plan modifications; however, WDNR does have an expedited plan modification process under s. NR 514.09, Wis. Adm. Code, which only applies to specific types of modifications or those that are considered to pose low potential risk of adverse impacts on public health or the environment and that would not result in a violation of a statute or administrative rule, and would not require the issuance of an exemption. Some examples of modifications eligible for expedited modifications include, but are not limited to, (1) Use of an alternate borrow source, (2) Soil daily cover, and (3) Access roads within a landfill. Specific limitations apply to the use of expedited plan modifications and the review time is 30 calendar days. In general, WDNR expects that most plan modifications for CCR landfills would be routine plan of operation modifications and not expedited plan modifications because of the regulatory limitations and additional time for public participation requirements discussed below.

Excluding the plan of operation for initial permitting that requires at least 60 days notification, the owner or operator of a CCR landfill is required to notify WDNR at least 30 days prior to the submittal of a plan of operation modification affecting the closure plan, liner system, leachate system, or changes that reduce the stringency of groundwater monitoring requirements to WDNR and post the draft plan of operation modification on its publicly accessible internet site. NR 514.04(8), Wis. Adm. Code. WDNR will post the draft plan of operation modification on its internet site and hold a public meeting if, within 30 days after posting the draft plan of operation on the WDNR's internet site, any county, city, village or town, the applicant, or any 6 or more persons file a written request for a public meeting with WDNR.

EPA has preliminarily determined that the Wisconsin approach to CCR permit applications and approvals is adequate, and that this aspect of the Wisconsin CCR permit program meets the standard for program approval.

Based on RCRA section 7004, 42 U.S.C. 6974, it is EPA's judgment that an adequate State CCR permit program will ensure that: (1) Documents for permit determinations are made available for public review and comment; (2) Final determinations on permit applications are made known to the public; and (3) Public comments on permit determinations are considered and significant comments are responded to in the permit record. EPA's review of Wisconsin's CCR permit program indicates that the State has adopted public participation procedures that allow interested parties to talk openly and frankly about permit issues and search for mutually agreeable solutions to differences in views. An overview of Wisconsin's public participation provisions is provided below.

Wisconsin's CCR landfill permitting program provides for public participation by making documents for permit determinations available for public review and comment, making final determinations on permit applications known to the public, and considering public comments on permit determinations. In order that WDNR might receive public comments and allow for the request of a hearing pursuant to section 289.25(3), Wis. Stats., a class 1 public notice is published in the local newspaper when a feasibility report has been deemed to contain the minimum information required to be submitted and the requirements of the environmental review process have been addressed.

If complete, WDNR will provide written notice of completeness and post a class 1 notice under ch. 985, Wis. Stats., in the official newspaper designated under s. 985.04 or 985.05, Wis. Stats., or, if none exists, in a newspaper near the landfill. A copy of the notice and the plan of operation modification submittal will also be posted on WDNR's internet site and NR 506.17(d) requires posting on the facility's CCR landfill public accessible internet site.

Before certain WDNR decisions, WDNR must provide opportunities for public comment upon the following documents submitted by CCR landfill owners/operators:

• Plan of operation modification report—60-day comment period.

• Draft decision issued by WDNR—60-day comment period.

• Draft plan of operation or plan of operation modifications after initial permitting—30-day comment period.

• Feasibility report for new or expanded facility—30-day comment period.

WDNR must hold public hearings during the comment periods upon submittal of the following documents:

• Plan of operation modification report—WDNR holds a virtual or in-person public meeting during the 60-day comment period to receive oral comments on the complete submittal.

• Draft plan of operation or plan of operation modifications after initial permitting—These plans are required to be posted for public comment for at least 30 days. During this time, any county, city, village or town, the applicant, or any six or more individuals may file a written request for a public meeting with WDNR. If a public meeting is held, WDNR will solicit public comments on the report at the meeting.

Feasibility report for new or expanded facility—During public comment period any county, city, village or town, the applicant, or any 6 or more persons can request an informational hearing or, if certain other requirements are met, a contested case hearing.

WDNR is required to grant an informational or a contested case hearing on a proposed solid waste landfill at the feasibility report stage to anyone who has standing as established in sections 289.26 or 289.27, Wis. Stats. In order that WDNR might receive public comments and allow for the request of a hearing pursuant to section 289.25(3), Wis. Stats., a class 1 public notice is published in the local newspaper when a feasibility report has been deemed to contain the minimum information required to be submitted and the requirements of the environmental review process have been addressed. All written or verbal comments received from the public are considered by WDNR before making a feasibility determination.

If an informational hearing is held, a hearing officer will preside over the proceeding to give the landfill applicant an opportunity to present information regarding the proposed facility, followed by an opportunity for the public to present comments to WDNR on the proposed facility and content of the feasibility report and environmental analysis. If a contested case hearing is held, it is held before a hearing examiner in much the same way as a court trial. The petitioners of the hearing, the landfill applicant, and WDNR review staff present information during the hearing through exhibits, depositions, affidavits and witness testimony. The information presented at the hearing becomes the official hearing record and is then used by the WDNR Secretary or their designee to make a feasibility decision. A copy of the WDNR final decision is sent to all parties to a contested case hearing and to all citizens present at the informational hearing. ss. 227.47 and 227.48, Wis. Stats.

After the comment period on the complete submittal, DNR is required to issue a draft decision and post a copy of the draft decision on the DNR's internet site for a 30-day public comment period. The draft decision is required to include a written response to previous comments. Following the end of the 30-day public comment period on the draft decision, DNR is required to issue a final decision. The final decision is reviewable through judicial review under ss. 227.52 and 227.53, Wis. Stats.

Final permit decisions are reviewable through judicial review under ss. 227.52 and 227.53, Wis. Stats. A party must wait for some final agency decision it is aggrieved by, such as the issuance or denial of a permit, at which point it may raise its challenges in a petition for judicial review of the agency decision.

EPA has preliminarily determined that the Wisconsin approach to public participation requirements provides adequate opportunities for public participation in the permitting process sufficient to meet the standard for program approval. The provisions described above meet the three criteria listed at the beginning of this section by providing several means by which documents for draft and final permit determinations are made available for public review and comment, as well as ensuring that public comments on permit determinations are considered and significant comments are responded to in the permit record and that judicial review is available.

An adequate permit program must provide the State with the authority to gather information about compliance, perform inspections, and ensure that the information it gathers is suitable for enforcement. Wisconsin has enacted formal legal provisions for documented certified inspections by a Professional Engineer (P.E.). Chapter NR 516, Wis. Adm. Code, requires all construction associated with the establishment and closure of any landfill to be documented by a professional engineer (P.E.) registered in the State of Wisconsin. The P.E. must render an opinion in writing, based on testing results and actual inspections, as to whether the facility has been constructed or closed in substantial conformance with the plan of operation or other approved plans. Approval of the construction documentation must be obtained from WDNR prior to initiating disposal operations in the newly established area. Section NR 500.09, Wis. Adm. Code, allows WDNR to require as a condition of any approval that critical construction steps of a facility, as specified in the approval, be inspected by WDNR.

Wisconsin requires facilities to certify their operations and to maintain a public website with operating records. Section NR 506.19, Wis. Adm. Code, requires the owner or operator to submit an annual compliance certification and allows WDNR to conduct audits and require the owner to provide specific records. Under s. NR 506.17, Wis. Adm. Code, an owner or operator of a CCR landfill must maintain a written operating record and publicly accessible internet site and provide documentation to WDNR upon request. Under s. NR 506.20, Wis. Adm. Code, an annual report must be prepared and submitted by the facility for WDNR review.

Section NR 507.16, Wis. Adm. Code, requires the owner or operator of a solid waste facility to submit a sampling plan for all monitoring devices at the facility. Additional requirements for a sampling plan for CCR landfills can be found under s. NR 507.15(3)(f) and (g). The sampling plan must follow WDNR guidelines for groundwater sampling and comply with the requirements in s. NR 140.16, Wis. Adm. Code, and s. NR 507.17, Wis. Adm. Code.

Sampling results submitted are reviewed by a WDNR hydrogeologist for accuracy, any inconsistencies, and to determine if any groundwater standards have been attained or exceeded. Occasionally and whenever necessary, WDNR employees collect or split samples at a facility and have those samples analyzed by the State Laboratory of Hygiene (SLOH) to confirm or to compare with the results submitted by the owner/operator of a facility.

Wisconsin has legal provisions for inspection by WDNR personnel. Section 289.91, Wis. Stats., gives any officer, employee or authorized representative of WDNR authority to enter and inspect any property, premise or place on or at which a solid waste facility is located or is being constructed or installed, or to inspect any record relating to solid waste management of any person who generates, transports, treats, stores or disposes of solid waste, at any reasonable time for the purpose of ascertaining the state of compliance with chapter 289, Wis. Stats., and rules promulgated under chapter 289, Wis. Stats. Wisconsin law specifies that no person may refuse entry or access to anyone who requests entry for purposes of inspection, and who represents appropriate credentials. WDNR, if requested, will furnish the owner or operator of the premises with a report documenting the facts related to the facility's compliance status. If required, a WDNR employee can also obtain a special inspection warrant, under section 66.0119 (Special Inspection Warrants), Wis. Stats.

The WDNR website provides a link to a form for the public to report complaints to the WDNR relevant to waste or air issues. Complaints are routed to a Complaint Coordinator within the Waste and Materials Management program. Complaints involving a licensed facility are referred to WDNR staff assigned to the facility.

Accordingly, EPA has preliminarily determined that these compliance monitoring authorities are adequate, and that this aspect of the Wisconsin CCR permit program meets the standard for program approval. The State has authorities and guidelines for inspections, analysis and monitoring, which allow the State to: (1) Verify the accuracy of information submitted by owners or operators of the CCR unit; (2) Verify the adequacy of methods (including sampling) used by owners or operators in developing that information; (3) Produce evidence admissible in an enforcement proceeding; and (4) Receive and ensure proper consideration of information submitted by the public.

An adequate State CCR permit program must provide the State with adequate enforcement authority to administer its State CCR permit program, including the authority to: (1) Restrain any person from engaging in activity which may damage human health or the environment, (2) Sue to enjoin prohibited activity, and (3) Sue to recover civil penalties for prohibited activity.

Section 289.94(2), Wis. Stats., authorizes WDNR to do one or more of the following: (a) issue any special order necessary to protect public health or the environment, (b) take any other action necessary to protect public health or the environment, or (c) request that the Wisconsin Department of Justice commence legal proceedings to restrain or enjoin any person from handling, storage, treatment, transportation or disposal which presents or may present an imminent and substantial danger to health or the environment or require any other action as may be necessary to protect public health and the environment.

Wisconsin has provided WDNR with both statutory and regulatory authorities to provide enforcement actions for the Wisconsin environmental statutes, regulations, and permit conditions that are applicable to the CCR permit program. Section 289.93, Wis. Stats., allows WDNR to issue orders to effectuate the purposes of chapter 289, Wis. Stats., and enforce the same by all available and appropriate administrative and judicial proceedings. Section NR 500.11, Wis. Adm. Code, allows the department to take enforcement action as authorized under sections 289.91 to 289.97, Wis. Stats., or as authorized in applicable enforcement provisions for landfill and solid waste disposal program requirements in chapters NR 500 to 538, Wis. Adm. Code.

Wisconsin has statutory authority to sue to enjoin prohibited activities. Pursuant to section 289.97, Wisc. Stats., when WDNR has evidence that a violation of chapter 289, Wis. Stats., or a violation of any promulgated rule, special order, plan approval, or any term or condition of a license issued under chapter 289, has occurred, WDNR may serve written notice upon the alleged violator. This written notice must specify the alleged law or rule violation and contain the findings of fact on which the charge of violation is based. Except as provided in section 289.95, WDNR may also include in the written notice an order that necessary corrective action be taken within a reasonable time. This order becomes effective unless, no later than 30 days after the date the notice and order are served, the person named in the notice and order requests in writing a hearing before the department.

Upon such request, WDNR, after due notice, is required to hold a hearing. Instead of an order, and except as provided in section 289.95, the department may require that the alleged violator appear before the department for a hearing at a time and place specified in the notice and answer the charges complained of; or the department may initiate action under section 299.95 by referring the matter to the Wisconsin Department of Justice for enforcement. If after such hearing WDNR still finds that a violation(s) has occurred, WDNR is required to affirm or modify its previously issued order, or issue an appropriate order for the prevention, abatement or control of the problems involved or for the taking of other corrective action as may be appropriate.

Wisconsin has enacted authorities to restrain any person from engaging in an activity which may damage human health or the environment. If WDNR receives evidence that the past or present handling, storage, treatment, transportation, or disposal of any solid waste may present an imminent and substantial danger to health or the environment, section 289.94, Wis. Stats., requires WDNR to provide immediate notice of the danger to each affected municipality and promptly post notice of the danger at the site at which the danger exists, or order a person responsible for the danger to post such a notice. Per section 289.94(2), Wis. Stats., the department may request that the Wisconsin Department of Justice commence legal proceedings to restrain or enjoin any person from handling, storage, treatment, transportation or disposal which presents or may present an imminent and substantial danger to health or the environment or require any other action as may be necessary to protect public health and the environment.

Wisconsin has authority to sue to recover civil penalties for prohibited activity. Any person who violates chapter 289, Wis. Stats., or any promulgated rule, or any plan approval, license or special order issued under this chapter shall forfeit not less than $10 nor more than $25,000 for each violation per section 289.96(3), Wis. Stats. Per section 289.96(3)(a), for environmental violations, each day of continued violation is a separate offense.

Based on the foregoing, EPA has preliminarily determined that this aspect of the Wisconsin CCR permit program meets the standard for program approval.

Based on RCRA section 7004, an adequate CCR State permit program must provide an opportunity for citizen intervention in civil enforcement proceedings. Specifically, the State must either: (1) Provide for citizen intervention as a matter of right; or (2) Have in place a process to: (a) Provide notice and opportunity for public involvement in civil enforcement actions, (b) Investigate and provide responses to citizen complaints about violations, and (c) Not oppose citizen intervention when permissive intervention is allowed by statute, rule, or regulation.

Wisconsin's statutes allow for intervention in a judicial action. Under section 803.09(1), Wis. Stats., upon timely motion anyone shall be permitted to intervene in a judicial action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may, as a practical matter, impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties. Under section 803.09(2), Wis. Stats., timely intervention in an action is also permitted when the movant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Additionally, section 289.92, Wis. Stats., allows any six or more citizens or any municipality to petition for an administrative review of an alleged violation of the chapter or any rule promulgated or special order, plan approval, license or any term or condition of a license issued under ch. 289, Wis. Stats. More details are provided in the section III.2.f. “Civil Intervention” of the TSD.

Wisconsin has procedures to investigate and provide responses to citizen complaints about violations. The WDNR website provides a link to a form for the public to report complaints on waste or air issues. Wisconsin maintains a hotline that is in operation 24 hours a day, 7 days a week. These complaints are routed to a Complaint Coordinator within the Waste and Materials Management program of WDNR. Complaints that involve a licensed facility are referred to the WDNR staff assigned to the facility. The Complaint Coordinator may follow up directly on waste-related complaints that are not associated with a facility. The Waste and Materials Management staff can involve other programs if the complaint or possible violations involve other program areas ( e.g., wetlands, storm water, air management).

EPA has preliminarily determined that these authorities provide for an adequate level of citizen involvement in the enforcement process, and that this aspect of the Wisconsin CCR permit program meets the standard for program approval.

EPA conducted an analysis of the Wisconsin CCR Permit Program Application, including a thorough analysis of Wisconsin statutory authorities at ch. 289, Wis. Stats. for the CCR program, as well as its regulations NR 500, 504-508, 512-516 and 520, Wis. Adm. Code. 9 Additional groundwater monitoring requirements are found in NR 140 and 141. 10 11 As noted above, Wisconsin has requested approval of a partial CCR permit program regulating CCR landfills.

WDNR has identified 9 CCR units (6 landfills and 3 surface impoundments) at 6 facilities in Wisconsin. 12 The three CCR surface impoundments will continue to be regulated by EPA. WDNR demonstrated that it has the personnel to administer a permit program that is at least as protective as the Federal requirements. 13 WDNR indicates that the State program is funded by State general funds appropriated to WDNR. WDNR indicates that the State Program is also funded from landfill tipping fees, annual license fees, and plan review fees. In addition, WDNR applied for EPA State and Tribal Assistance Grants (STAG) funding for Fiscal Years 2021 through 2025. In total, WDNR has received $1,303,485 in funding from EPA to develop its CCR permit program. If EPA receives future appropriations, if approved, WDNR can continue to receive funds for implementation of its CCR permit program. EPA has preliminarily determined that the WDNR staffing and funding are adequate for WDNR to administer the CCR permit program.

EPA has preliminarily determined that the portions of the Wisconsin CCR permit program applicable to CCR landfills that were submitted for approval meet the standard for approval under RCRA section 4005(d)(1)(B)(ii), 42 U.S.C. 6945(d)(1)(B)(ii). To make this preliminary determination, EPA compared the technical requirements in the Wisconsin CCR regulations at NR 500, 504-508, 512-516 and 520, Wis. Adm. Code. to the Federal CCR regulations at 40 CFR part 257 to determine whether the State's requirements are at least as protective as required in RCRA sections 4005(d)(1)(B)(ii) and (C), 42 U.S.C. 6945(d)(1)(B)(ii) and (C). EPA's review in this case was more involved than in most other States, by necessity, because Wisconsin did not adopt by reference the Federal CCR regulations like many other States and, instead, the State applies its solid waste landfill requirements, supplemented to address the Federal CCR regulations not included in the State's landfill regulations, to regulate CCR landfills.

Wisconsin regulates solid waste disposal facilities, which includes CCR landfills, and the beneficial use of CCR under its solid waste management regulations, chs NR 500—538, Wis. Adm. Code, and statutory authority, ch. 289, Wis. Stats. Wisconsin has regulated CCR landfills for 50 years, the last 30 of which have been under its existing solid waste rules. These regulations were updated on August 1, 2022, to incorporate Federal CCR landfill requirements into its existing solid waste code to ensure Wisconsin's regulations are at least as protective as the Federal CCR regulations. Affected chapters include NR 500, 504-508, 512-516 and 520, Wis. Adm. Code. Table 2 of the Technical Support Document provides a cross-reference between the Federal and State CCR regulations. A technical discussion on differences between the State and Federal programs, that has an analysis of program equivalency, is in section V. Technical Review of the State Submittal, of the TSD.

WDNR is seeking approval of its partial CCR permit program pursuant to RCRA section 4005(d). Wisconsin's CCR regulations reflect 40 CFR part 257, subpart D, as amended through August 28, 2020, for CCR landfills; however, the Federal CCR regulations have changed since then as a result of litigation and the Legacy CCR surface impoundments and CCR management units final rule (89 FR 38985, May 8, 2024) (the 2024 Legacy Rule) and the CCR Management Unit Deadline Extension Rule (91 FR 5806, February 10, 2026). WDNR has not adopted regulations reflecting the 2024 and February 2026 changes. Any subsequent amendments to the Federal CCR regulations, including those effective before a final decision is made on the State CCR permit program, will not be automatically included in the State's CCR program and would require further State adoption and approval by EPA. WDNR did not adopt regulations for CCR surface impoundments. Therefore, WDNR has not sought approval of any State regulations that would operate in lieu of these amendments. EPA is approving only those aspects of Wisconsin's CCR program that were submitted for approval.

In the 2024 Legacy Rule, EPA amended certain terms and provisions that apply to all CCR units. It is EPA's understanding that WDNR interprets the provisions in NR 140, 141, 500, 504-508, 512-516 and 520, Wis. Adm. Code. the same as EPA interprets these in 40 CFR part 257, subpart D. Therefore, EPA is approving the State's version of these requirements:

1. Throughout 40 CFR part 257, subpart D, the regulations were amended by removing the phrase “Website” and adding in its place the word “website” wherever it appears.

2. 40 CFR 257.52; this amendment clarifies that all CCR units are subject to the requirement to comply with all other Federal, State, Tribal, or local laws or other requirements. In addition, all CCR units continue to be subject to §§ 257.3-1, 257.3-2, and 257.3-3.

3. “Active facility or active electric utilities or independent power producers”; this amendment to 40 CFR 257.53 clarifies that the relevant operational date for any active facility or active electric utilities or independent power producers is on or after October 19, 2015.

4. “CCR landfill or landfill”; this amendment to 40 CFR 257.53 clarifies that a CCR landfill means an area of land or an excavation that “contains”, rather than “receives”, CCR, and meets the other criteria of the definition.

5. “Infiltration”; this additional definition in 40 CFR 257.53 is consistent with the term's plain meaning and dictionary definitions to assist in the application of closure performance standards for CCR units.

6. “Liquids”; this additional definition in 40 CFR 257.53 is consistent with the term's plain meaning and dictionary definitions to assist in the applicability for CCR surface impoundments and the application of closure performance standards for CCR units.

7. “State director”; this amendment to 40 CFR 257.53 clarifies that the State director is the chief administrative officer of the lead State agency responsible for implementing the State program regulating disposal in all CCR units.

8. 40 CFR 257.61(a); this amendment updates a reference to 40 CFR 230.41(a), as the previously referenced provision has since been amended.

9. 40 CFR 257.80(a); this amendment clarifies that all CCR units are subject to the fugitive dust requirements.

10. 40 CFR 257.90(a); this amendment clarifies that all CCR units are subject to the groundwater monitoring and corrective action requirements. In addition, it corrects a typographical error.

11. 40 CFR 257.104(a); this amendment clarifies that all owners or operators of CCR units that are subject to § 257.102 are subject to the post-closure care requirements, except for those owners and operators of a CCR unit that elect to close the CCR unit by removing CCR.

The State is not seeking approval of certain provisions in the State regulations and the Federal CCR regulations, or EPA cannot approve certain provisions. First, EPA is not proposing to approve the following provisions of the State regulations and, therefore, the identified provisions will not be included in the Federally approved program:

1. NR 504.04(2), Wis. Adm. Code, contains several exemptions that, if used, cannot be guaranteed to be at least as protective as the Federal CCR regulations. NR 504 contains landfill location, performance, design and construction criteria. Section NR 504.04 contains the landfill locational criteria and performance standards, and section NR 504.04(2) contains exemptions from the location restrictions that EPA is proposing to not approve. However, the exemption provisions that cannot be approved as part of the Federally approved program are intertwined with exemption provisions that apply to State only requirements that are in addition to the Federal CCR requirements, and exemptions from State only requirements can be issued without causing the State CCR permits to be less protective than the Federal requirements. For this reason, the Agency is identifying the specific provisions of section NR 504.04 that will not be included in the approved program. The provisions that EPA is proposing to not approve are:

a. NR 504.04(2)(a) with respect to the exemptions from NR 504.04(3)(g) as it applies to new CCR landfills. Consistent with the Federal CCR regulations, NR 504.04(3)(g) prohibits the citing of new landfills within 200 feet of a fault that had a displacement event in Holocene time. NR 504.04(3)(g) is different from the Federal CCR regulations because the State rule applies to both new and existing CCR landfills and lateral expansions of CCR landfills, whereas 40 CFR 257.62 only applies to new CCR landfills and lateral expansions of CCR landfills. EPA cannot ensure that an exemption from this requirement for new CCR landfills and lateral expansions of CCR landfills would be as protective as the Federal CCR regulations, so EPA is not proposing to approve this authority for exemptions into Wisconsin's CCR permit program. However, EPA is proposing to approve the use of this exemption for existing CCR landfills because the Federal CCR program does not apply this requirement to existing CCR landfills.

b. NR 504.04(2)(a) with respect to exemptions from 504.04(3)(h) as it applies to new CCR landfills. Consistent with the Federal CCR regulations, NR 504.04(3)(h) prohibits the siting of new landfills in a seismic impact zone. NR 504.04(3)(h) is different from the Federal CCR regulations because it applies to both new and existing CCR landfills and lateral expansions of CCR landfills, whereas 40 CFR 257.63 only applies to new CCR landfills and lateral expansions of CCR landfills. EPA cannot ensure that an exemption from this requirement for new CCR landfills or lateral expansions would be as protective as the Federal CCR regulations, so EPA is not proposing to approve this authority into Wisconsin's CCR permit program. However, EPA is proposing to approve the use of this exemption for existing CCR landfills because the Federal CCR program does not apply this requirement to existing CCR landfills.

c. NR 504.04(2)(a) with respect to exemptions from 504.04(3)(i) for new units. Consistent with the Federal CCR regulations, NR 504.04(3)(i) prohibits the citing of new landfills within unstable areas. EPA cannot ensure that an exemption from this requirement for new CCR landfills and lateral expansions of CCR landfills would be as protective as the Federal CCR regulations, so EPA is not proposing to approve this authority for exemptions into Wisconsin's CCR permit program.

d. NR 504.04(2)(d) authorizing exemptions from compliance with section NR 504.04(4)(d), which prohibits a regulated unit from having a detrimental effect on groundwater quality or otherwise causing a violation of an applicable standard. EPA cannot ensure that an exemption from NR 504.04(4)(d) would be as protective as the Federal CCR regulations, so EPA is not proposing to approve this authority into Wisconsin's CCR permit program.

e. NR 504.04(2)(a) with respect to exemptions from NR 504.04(4)(b), which prohibits the taking of an endangered or threatened species; EPA cannot ensure that an exemption from this requirement for CCR landfills would be as protective as the Federal CCR regulations and there is no analogous exemption in the Federal CCR regulations. As such EPA is not proposing to approve this authority into Wisconsin's CCR permit program.

2. Section 289.43(7), Wis. Stats, contains a general exemption from solid waste licensing for the recycling of high-volume industrial waste and section 538.05 contains an exemption for the beneficial use of CCR. Both Chapters 289 and 538 contain regulations applicable to high-volume industrial waste or byproducts and provide alternatives to the default regulatory scheme. Under both Chapters 289 and 538, CCR are considered a high-volume industrial waste or byproduct. The exemption in section 289.43(7) is insufficiently limited and does not reference section 538.05. Thus, if the exemption were granted, EPA could not be sure that the management of CCR for recycling would be as protective as the Federal CCR requirements or beneficial use criteria. As such, EPA is not proposing the approval of the exemption in section 289.43(7) into the federally approved CCR program. In contrast, section NR 538.05 also contains an exemption from solid waste licensing when CCR is beneficially used consistent with Chapter 538 requirements, which describe various obligations for beneficial use. EPA finds that the provisions of Chapter 538 will ensure that the beneficial use of CCR will be as protective as the Federal CCR regulations and therefore proposes to approve section 538.05 as applied to CCR beneficial use. This beneficial use exemption will apply to activities that fully meet the applicable requirements of Chapter 538 and the exemption will not otherwise exclude the licensing requirements for any facility involved with the disposal of CCR.

3. NR 500.03(26p)(a) and (b): The State definition of “CCR pile” is not being approved as EPA determined it is not at least as protective as the Federal definition at 40 CFR 257.53, because it allows onsite accumulation of CCR for beneficial use without including limitation that such accumulation must be for offsite use. Therefore, the Federal definition of “CCR pile” will remain in effect.

Second, WDNR is not seeking approval for the Federal CCR regulations that apply to CCR surface impoundments and, accordingly, the scope, definitions, and applicable requirements in 40 CFR part 257 will remain directly applicable to CCR surface impoundments within the State of Wisconsin. While various provisions of the CCR regulations apply to the different types of CCR units ( i.e., CCR surface impoundments, CCR landfills, legacy CCR surface impoundments, and CCRMU), the following list only describes the applicability of these sections to CCR surface impoundments over which the Federal CCR regulations will continue to apply. EPA will continue to implement CCR surface impoundments provisions under the Federal CCR program and retain enforcement authority over these provisions (EPA also maintains enforcement authority over units operating under a State program). The following list identifies key provisions applicable to CCR surface impoundments that EPA will implement under the Federal CCR program. This list is non-exhaustive.

1. 40 CFR 257.50, scope and purpose, specifically 40 CFR 257.50(c);

2. 40 CFR 257.52, applicability of other regulations;

3. Definitions in 40 CFR 257.53; many definitions apply to all CCR units. However, the following definitions are specific to CCR surface impoundments that are not applicable to CCR landfills:

a. Acre foot;

b. Area-capacity curves;

c. Dike;

d. Downstream toe;

e. Eligible unlined CCR surface impoundment;

f. Existing CCR surface impoundment;

g. Factor of safety (Safety factor);

h. Flood hydrograph;

i. Freeboard;

j. Hazard potential classification;

k. Incised CCR surface impoundment;

l. Inflow design flood;

m. Liquefaction factor of safety;

n. New CCR surface impoundment;

o. Overfill

p. Probable maximum flood;

q. Retrofit;

r. Seismic factor of safety;

s. Slope protection;

t. Static factor of safety;

u. Technically feasible; and

v. Technically infeasible;

4. 40 CFR 257.60, location restrictions for placement above the uppermost aquifer for CCR surface impoundments;

5. 40 CFR 257.61, location restrictions for wetlands for CCR surface impoundments;

6. 40 CFR 257.62, location restrictions for fault areas for CCR surface impoundments;

7. 40 CFR 257.63, location restrictions for seismic impact zones for CCR surface impoundments;

8. 40 CFR 257.64; location restrictions for unstable areas for CCR surface impoundments;

9. 40 CFR 257.71 Liner design criteria for existing CCR surface impoundments;

10. 40 CFR 257.72 Design criteria for new CCR surface impoundments and any lateral expansion of a CCR surface impoundment;

11. 40 CFR 257.73 Structural integrity criteria for existing CCR surface impoundments;

12. 40 CFR 257.74 Structural integrity criteria for new CCR surface impoundments and any lateral expansion of a CCR surface impoundment;

13. 40 CFR 257.80 Air criteria;

14. 40 CFR 257.82 Hydrologic and hydraulic capacity requirements for CCR surface impoundments;

15. 40 CFR 257.83 Inspection requirements for CCR surface impoundments;

16. 40 CFR 257.90, groundwater monitoring applicability;

17. 40 CFR 257.91, groundwater monitoring systems;

18. 40 CFR 257.93, groundwater sampling and analysis requirements;

19. 40 CFR 257.94, detection monitoring program;

20. 40 CFR 257.95, assessment monitoring program;

21. 40 CFR 257.96, assessment of corrective measures;

22. 40 CFR 257.97, selection of remedy;

23. 40 CFR 257.98, implementation of corrective action program;

24. 40 CFR 257.101, closure or retrofit of CCR units;

25. 40 CFR 257.102, criteria for conducting the closure or retrofit of CCR units;

26. 40 CFR 257.103, alternative closure requirements;

27. 40 CFR 257.104, post-closure care requirements;

28. 40 CFR 257.105, recordkeeping requirements;

29. 40 CFR 257.106, notification requirements; and

30. 40 CFR 257.107, CCR website requirements.

The following list identifies amendments to the requirements in 40 CFR part 257, subpart D that were not included in Wisconsin's application. These Federal provisions will continue to apply directly to, and remain Federally enforceable for, each CCR unit in Wisconsin. Meaning, the requirements in NR 140, 141, 500, 504-508, 512-516 and 520, Wis. Adm. Code., as enumerated below, are not being proposed for approval:

1. 40 CFR 257.73(a)(4), 257.73(d)(1)(iv), 257.74(a)(4), and 257.74(d)(1)(iv) for vegetative cover for slope stability;

2. 40 CFR 257.90(g) for suspension of groundwater monitoring;

3. 40 CFR 257.95(h)(2) for groundwater protection standards for constituents in appendix IV having no Maximum Contaminant Levels;

4. EPA amended certain provisions of the Federal CCR regulations in the 2024 Legacy Rule that apply to all CCR units and are more prescriptive than the requirements in the 2015 CCR Rule. WDNR did not adopt these amendments and did not seek approval of these provisions. Thus, the following Federal provisions will be applicable to CCR units in Wisconsin:

a. “Operator”; this amendment to 40 CFR 257.53 specifies the definition of operator to include certain other person(s) including those responsible for disposal or otherwise actively engaged in the solid waste management of CCR and person(s) responsible for directing or overseeing groundwater monitoring, closure or post-closure activities at a CCR unit.

b. “Owner”; this amendment to 40 CFR 257.53 broadened the definition of owner to include person(s) who own a facility, whether in full or in part.

c. 40 CFR 257.80(b)(6); this amendment specifies that the owner or operator must amend the written fugitive dust control plan no later than 30 days whenever there are certain changes in condition.

d. 40 CFR 257.102(c)(2); this amendment specifies the criteria for complete removal and decontamination activities during the active life and post-closure care period of a CCR unit.

e. 40 CFR 257.102(d)(2); this amendment specifies that the closure performance standards for drainage and stabilization of a unit when leaving CCR in place apply to all CCR units, including CCR management units (CCRMU) and CCR landfills, where free liquids remain in the unit.

f. 40 CFR 257.102(f)(2)(ii)(C) and(D); these amendments specify that CCR landfills that intersect with groundwater are eligible for the closure time extensions available to CCR surface impoundments, subject to certain requirements.

g. 40 CFR 257.104(a)(2), (c)(1) and (3); these amendments specify that an owner or operator closing a CCR unit pursuant to the closure by removal and decontamination standards during the active life and post-closure care period, 40 CFR 257.102(c)(2), must complete groundwater corrective action.

h. 40 CFR 257.104(g); this amendment specifies that a deed notation, required pursuant to 40 CFR 257.102(i), may be removed after the owner or operator demonstrates that groundwater monitoring concentrations no longer exceed any protection standard ( i.e., the unit must be in detection monitoring) and certain notifications of completion of post-closure care are completed.

i. 40 CFR 257.105(a); this amendment specifies that each file in the operating record must indicate the date the file was placed in the record.

j. 40 CFR 257.105(e); (f)(1) through (14); (f)(19); (g); (h)(1) through (4); (h)(10) through (11); (h)(13) through (14); (i)(4) through (20); these amendments extend the retention times for certain documents maintained in the operating record.

k. 40 CFR 257.107(b); this amendment specifies that owners and operators using one website to meet the requirements of multiple environmental rules must delineate the postings for each regulatory program under a separate heading on the combined website.

l. 40 CFR 257.107(e); (f)(1) through (4); (f)(6) through (13); (f)(18); (g); (h)(1) through (3); (h)(8); (h)(10) through (11); (i)(4) through (20); these amendments extend the retention times for certain documents maintained on the facility's CCR website.

5. In the 2024 Legacy Rule, EPA added requirements for legacy CCR surface impoundments. WDNR did not adopt these amendments. Thus, any legacy CCR surface impoundments in Wisconsin will remain subject to the following Federal CCR regulations:

a. 40 CFR 257.50(e); this amended provision specifies that 40 CFR part 257, subpart D applies to electric utilities or independent power producers that ceased producing electricity prior to October 19, 2015 and have a legacy CCR surface impoundment onsite.

b. “Inactive facility or inactive electric utility or independent power producer”; this added definition to 40 CFR 257.53 specifies the facility where legacy CCR surface impoundments are located.

c. “Legacy CCR surface impoundment”; this added definition to 40 CFR 257.53 specifies a new type of CCR unit that meets certain criteria.

d. 40 CFR 257.100(a)(2); EPA amended 40 CFR 257.100(a) to add paragraph (2), which specifies that legacy CCR surface impoundments are subject to all of the requirements applicable to existing CCR surface impoundments, except for the requirements in 40 CFR 257.60 through 257.64 and 257.71.

e. 40 CFR 257.100(f) through (j); these additional provisions include reporting and technical requirements for legacy CCR surface impoundments.

f. 40 CFR 257.101(e); this added provision specifies the deadlines when owners or operators of legacy CCR surface impoundments must initiate closure.

g. 40 CFR 257.101(g); this added provision specifies requirements for deferral to permitting for closures conducted under substantially equivalent regulatory authority.

h. 40 CFR 257.105(k), 257.106(k), and 257.107(k); these added provisions specify recordkeeping, notification, and CCR website posting requirements for legacy CCR surface impoundments.

6. In the 2024 Legacy Rule, EPA also added requirements for CCR management units. WDNR did not adopt these provisions. Thus, any CCR management units in Wisconsin will remain subject to the following Federal CCR regulations:

a. 40 CFR 257.50(d); this amended provision specifies the scope of CCRMU requirements.

b. “CCR management unit”; this additional definition in 40 CFR 257.53 is for a new type of CCR unit.

c. “Closed prior to October 19, 2015”; this additional definition in 40 CFR 257.53 specifies the applicability of CCR landfills or surface impoundments that completed closure of the unit in accordance with State law prior to October 19, 2015.

d. “Critical infrastructure”; this additional definition in 40 CFR 257.53 specifies infrastructure, large buildings, or other structures vital to the success or continuation of current site operations or activities for the public welfare. Under the Federal CCR regulations, CCRMU located under critical infrastructure have the option to defer certain requirements to permitting.

e. “Inactive CCR landfill”; this additional definition in 40 CFR 257.53 is for a new type of CCR unit related to CCRMU.

f. “Regulated CCR unit”; this additional definition in 40 CFR 257.53 is a conforming change, which means any new CCR landfill, existing CCR landfill, new CCR surface impoundment, existing CCR surface impoundment, inactive CCR surface impoundment, or legacy CCR surface impoundment. This term specifies that CCRMU are not considered regulated CCR units.

g. 40 CFR 257.75; this additional section includes requirements for identifying CCRMU.

h. 40 CFR 257.90(b)(3); this additional provision specifies a deadline for the owners and operators of CCRMU to comply with certain groundwater monitoring requirements.

i. 40 CFR 257.90(e); EPA amended one sentence in this provision to add an annual groundwater monitoring and corrective action report deadline for CCRMU. WDNR has not adopted this amendment, see ss. NR 507.15(3)(m), Wis. Adm. Code. However, WDNR adopted a prior (August 28, 2020), version of 40 CFR 257.90(e). EPA is approving the August 28, 2020, version of the provision, but the added deadline for CCRMU contained in the 2024 Legacy Rule will remain directly applicable to CCRMU in Wisconsin.

j. 40 CFR 257.95(b); this amended provision adds a deadline for CCRMU to sample and analyze the groundwater for all constituents in 40 CFR part 257, appendix IV.

k. 40 CFR 257.101(f); this additional provision specifies the deadlines when CCRMU must initiate closure.

l. 40 CFR 257.101(g) and (h); these include additional requirements for deferral to permitting for closures conducted under substantially equivalent regulatory authority and under critical infrastructure.

m. 40 CFR 257.102(b)(2)(iii) and (v); these amended provisions renumber paragraph (b)(2)(iii) to (iv) and add new paragraphs (b)(2)(iii) and (v). The added provisions are only applicable to CCRMU.

n. 40 CFR 257.102(f)(1)(iii); this additional provision specifies when CCR management units must complete closure activities.

o. 40 CFR 257.102(f)(2)(ii)(E) and (F); these additional provisions specify when CCR management units may extend the complete closure activities.

p. 40 CFR 257.104(d)(2)(iii); these amended provisions renumber paragraph (d)(2)(iii) to (iv) and add a new paragraph (d)(2)(iii). This added provision is only applicable to CCRMU.

q. 40 CFR 257.105(f)(25) and (26), 40 CFR 257.106(f)(24) and (25), 40 CFR 257.107(f)(24) and (25); these include additional recordkeeping, notification, and CCR website posting provisions for CCRMU.

EPA has preliminarily determined that the Wisconsin CCR regulations contain all of the technical elements of the Federal CCR regulations, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification, and CCR website posting requirements. The Wisconsin partial CCR permit program also contains State-specific language, references, definitions, and requirements that differ from the Federal CCR regulations, but which EPA has preliminarily determined to be “at least as protective as” the Federal criteria. These State-specific requirements are also discussed further in sections III.1. and V. of the Technical Support Document.

The effect of approving a partial State CCR permit program is that, except for the provisions for which EPA has not granted approval, the Wisconsin partial CCR permit program will operate in lieu of the Federal CCR regulations. For the State provisions that are not approved upon finalization, the corresponding Federal requirements will continue to apply directly to facilities, and therefore facilities must comply with both the Federal requirements and the State requirements. RCRA section 4005(d)(3).

Pursuant to Wisconsin's CCR regulations, the owner or operator of existing CCR landfills and impoundments will comply with 40 CFR part 257, subpart D. ch. 289 Wis. Stats. To demonstrate compliance with Wisconsin's revised regulations for CCR landfills, effective August 1, 2022, the six CCR landfills were required to submit a plan of operation modification for initial permitting by February 1, 2023. Subsequently, WDNR issued permits to the owners and/or operators of all CCR six CCR landfills in the State. All six CCR landfills met this date for the initial plan of operation modification submittal. As of February 2026, three CCR landfills had received approval of their plan of operation modification for initial permitting, two CCR landfill submittals were posted for public comment, and one CCR landfill was gathering additional information for a complete submittal.

On February 24, 2026, WDNR submitted its application and requested approval of Wisconsin's partial CCR permit program for CCR landfills. The application states that WDNR does not seek to have its existing permits approved as part of its partial program. On page 115 of the Narrative Description, WDNR states that: “Wisconsin is not seeking approval from EPA at this time of the already issued plans of operation. If Wisconsin receives approval of its CCR permit program, the DNR will review the issued plans of operation within one year of the approval to ensure that all elements of state regulations and EPA's approval are documented in the plans of operation. If any modifications are needed, public notice of the modifications will be conducted prior to final approval.”

WDNR has committed to reviewing and modifying these permits to ensure compliance with the Federally approved program after EPA issues its final determination of adequacy. Therefore, EPA has treated these existing permits as outside the program evidence submitted for EPA review and thus not relevant to the decision on the permit program. See 42 U.S.C. 6945(d)(1)(A), and (d)(1)(B). EPA is basing its proposed decision on information in the program application package, as outlined in EPA's 2017 Guidance Document, 14 submitted by WDNR on February 24, 2026.

Because Wisconsin has chosen to exclude its previously-issued permits from the scope of its CCR permit program application, those permits also would not become effective under RCRA as a consequence of an EPA final approval action. Thus, permits issued prior to EPA's approval of Wisconsin's partial program will not provide facilities with the Federal permit shield in RCRA sections 4005(d)(3) and (d)(6). 42 U.S.C. 6945(d)(3) and (d)(6). Instead, these permits only become a part of Wisconsin's approved program and obtain the Federal permit shield after a modification is completed “in accordance with” the approved program, including providing a public notice and comment period on the entirety of each CCR permit. 42 U.S.C. 6945(d)(6)(A). Similarly, RCRA section 4005(d)(3)(A) makes clear that, in the absence of a permit under an “approved” State program, facilities must still comply with the Federal CCR regulations. EPA intends to review the State's permits in conjunction with the program review required by RCRA section 4005(d)(1)(D)(i) and 4005(d)(1)(D)(ii). 42 U.S.C. 6945(d)(1)(D)(i), (ii).

EPA has preliminarily determined that the Wisconsin partial CCR permit program for CCR landfills meets the statutory standard for approval. Therefore, in accordance with 42 U.S.C. 6945(d), EPA is proposing to approve the Wisconsin partial CCR permit program.