The President's Executive Order 14219 of February 19, 2025, Ensuring Lawful Governance and Implementing the President's “Department of Government Efficiency” Deregulatory Initiative, 90 FR 10583, and subsequent implementing memorandum directed all agency heads to review regulations within their purview and rescind those that are, among other things, unlawful or unnecessary.

FNS has undertaken such a review and has identified the following obsolete, unnecessary, and outdated provisions in 7 CFR part 292:

• Application Requirements: The regulations at 7 CFR 292.13(q) authorized Summer EBT application flexibility only for 2024.

• Verification Requirements: The regulations at 7 CFR 292.14(g) authorized Summer EBT income verification flexibility only for 2024.

This final rule removes these obsolete provisions. The Agency has found good cause under 5 U.S.C. 553(b)(4)(B) that notice-and-comment rulemaking is unnecessary to take these actions because the provisions being rescinded are obsolete.

Under Executive Order 12866, as amended by Executive Orders 14215 and 13563, agencies must assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, select regulatory approaches that maximize net benefits. The Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs has determined that this regulatory action is not significant and, therefore, is not subject to OMB review.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) (as amended by the Small Business Regulatory Enforcement Fairness Act of 1996; 5 U.S.C. 601 et seq. ), agencies must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). FNS has concluded and hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule does not contain Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act (UMRA)) for State, local, and Tribal governments, or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. FNS has determined that this rule would not have Tribal implications that require consultation under Executive Order 13175.

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

The Department is committed to complying with the E-Government Act, 2002 to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The rule is deregulatory and has little effect on States and local governments, so FNS anticipates that this rule will not have implications for federalism. Therefore, under section 6(b) of the Executive order, a federalism summary is not required.

Accordingly, FNS amends 7 CFR part 292 as follows:

On December 17, 2023, Goettle Construction company notified the Coast Guard that they will be conducting waterside construction associated with a bank stabilization project on the Cuyahoga River in Cleveland, Ohio from August 15, 2024, through November 30, 2025. Construction is intended to shore-up and replace approximately 2,400 linear feet of corrugated steel bulkhead located on the western (left descending) bank of the Cuyahoga River between the Detroit-Superior Bridge and the Columbus Road Bridge. The Captain of the Port Sector Eastern Great Lakes (COTP) has determined that potential hazards associated with the equipment used to complete this project would be a safety concern for any craft intending to navigate near the project area during construction hours. Furthermore, additional safety measures are necessary to keep workers on the construction barges safe while completing the construction project.

There will be impacts to the Cuyahoga River in Cleveland during this stabilization project. However, this work is necessary because if the bank of the river is allowed to slide into the river, then it could potentially close the river for an estimated 12-18 months for all vessel traffic.

The Coast Guard published a notice of proposed rulemaking (NPRM) on May 21, 2024, with a 30-day comment period, at 89 FR 44622. That proposed rule proposed that we would enforce the RNA through November 30, 2025. During the NPRM comment period, 10 comments were received. After a review of all comments, several meetings were held with project stakeholders to discuss concerns over impacts to commercial vessel traffic in the affected area of the navigable waterway. Due to the significant nature of this project, and in the interest of continued collaboration with stakeholders, the Coast Guard published an interim rule with request for comment on November 25, 2024. 1 That interim rule provided for an additional 30-day comment period. The Coast Guard published the Final Rule on February 25, 2025. 2 The result of the analysis of the comments and collaboration with stakeholders was to maintain the original engineering scope of the project with modified project dates and timing to accommodate stakeholder concerns related to vessel and facility scheduling. As a result, the Coast Guard shortened the duration of the RNA to last only until July 11, 2025. We have since learned that the project will not be completed during the shortened duration of the RNA, by July 11. Therefore, we are relying on the original NPRM proposed enforcement dates to extend this RNA until November 30, 2025.

On March 19, 2025, the Coast Guard held a construction schedule update meeting with the Goettle Construction representative and concerned maritime stakeholders. At the meeting, Goettle Construction indicated that due to various construction issues, the anticipated end date of the waterside work, and thus, the RNA, would need to be extended to November 30, 2025. As a result, this interim rule will provide a comment period on extending the RNA effective period end date as an opportunity for the public to notify us of any new concerns. Based on construction delays in the renovation project, the Coast Guard is effectively extending the dates for the RNA to correspond to the new completion dates for the given work.

The Coast Guard is issuing this rulemaking under authority in 46 U.S.C. 70011 and 70034. The authority to promulgate regulations under this section is delegated to the Commandant of the Coast Guard under Department of Homeland Security (DHS) Delegation No. 00170.1(II)(70), Revision No. 01.4.

As noted above, the RNA final rule was issued on February 25, 2025. That final rule established an RNA starting on March 27, 2025, with an anticipated completion date of July 11, 2025. The RNA covered all navigable waters within 10 feet of construction barges in the Cuyahoga River located on the western bank (left descending bank) of the Cuyahoga River between the Detroit-Superior Bridge and the Columbus Road Bridge in Cleveland, Ohio. This IFR effectively extends the duration of the RNA until November 30, 2025 to ensure the safety of vessels and these navigable waters during the following revised scheduled hours of the construction project:

• Effective July 11, 2025, through November 30, 2025 the RNA will be enforced from 7 a.m. each Tuesday through 7 a.m. each Thursday.

No vessel or craft would be permitted to be operated within 10 feet of the construction barges without obtaining permission from the COTP or a designated representative. The regulatory text appears at the end of this document.

The economic impact of this rule is reduced to reasonable minimums as a result of consideration of comments and collaboration with affected stakeholders. If the project is completed before November 30 and there is no longer a safety concern in the area, we will notify the public through local notice to mariners that we are no longer enforcing the RNA.

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

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

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

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this RNA. The RNA is only enforced 48 hours each week, from 7 a.m. on Tuesdays through 7 a.m. on Thursdays until November 30, 2025. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM Marine Channel 16 about the regulated area, and the rule would allow vessels to transit around the RNA.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V.A. above, this rule would not have a significant economic impact on any vessel owner or operator. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

A rule has implications for federalism under Executive Order 13132 (Federalism) if it has a substantial direct effect on 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. We have analyzed this rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled that all of the categories covered in 46 U.S.C. chapter 700 (Ports and Waterways Safety), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the primary source of a vessel's or facilitiy's obligations, are within the fields generally foreclosed from regulation by the States. See, e.g., United States v. Locke, 529 U.S. 89 (2000) (finding that the States are foreclosed from regulating tanker vessels), see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) (State regulation is preempted where “the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it [or where] the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” (citations omitted)).

This Interim Final Rule will establish a Regulated Navigation Area (RNA) for certain waters of the Cuyahoga River in Cleveland, Ohio. In enacting 46 U.S.C. 70011 (Waterfront safety) Congress articulated a need for the Coast Guard to protect the navigable waters of the United States. We have analyzed this proposed rule for an RNA under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. The Coast Guard recognizes that the States may prescribe higher safety standards pursuant to 46 U.S.C. 70011(c), but such standards may not, conflict with Federal statutes and regulations. Ray v. Atlantic Richfield Co., at 158. Therefore this rule is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under Executive Order 13132, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Although this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a Regulated Navigation Area during specific periods each day from July 11, 2025, through November 30, 2025, that would prohibit vessels from operating within 10 feet of the construction barges. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. Paragraph L60a pertains to Regulated Navigation Areas. This rule involves Regulations establishing, disestablishing, or changing Regulated Navigation Areas. A record of environmental consideration is available in the docket.

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

In a proposed rule published in the Federal Register (FR) on April 3, 2023, VA proposed to remove its NPDB regulations at part 46, title 38 Code of Federal Regulations (CFR) and instead rely on HHS regulations at 45 CFR part 60 for NPDB reporting, supplemented with an MOU with HHS and VA policy to address NPDB compliance on issues involving the delivery of health care by a Federal agency. 88 FR 19581. VA determined that maintaining its own separate NPDB regulations is problematic because VA's regulations are not wholly consistent with HHS regulations. Id. at 19582. VA concluded that removing its regulations would reduce confusion and increase compliance with NPDB reporting requirements. Id. at 19583. VA provided a 60-day comment period, which ended on June 2, 2023. VA received one comment during the comment period.

VA received one comment expressing concerns that the proposed rule would: (1) create confusion and not increase compliance; (2) reduce due process protections for VA health care practitioners; and (3) negatively impact staffing and retention of VA health care practitioners. While VA is not making any changes to the rule based on this comment, these concerns are addressed in more detail below.

The commenter asserted that the removal of VA's NPDB reporting regulations would neither decrease confusion nor increase compliance with NPDB reporting requirements. Specifically, the commenter asserts that even if VA removes its regulations, VA would still need to have an MOU with HHS and VA policy in place, to fully implement the applicable HHS NPDB regulations. Therefore, the commenter argued that removing VA's NPDB regulations does not reduce the sources of NPDB authority, and it does not eliminate the need for, or improve the efficiency of, both an MOU with HHS and VA-specific policy on NPDB reporting. Thus, the commenter believes that VA would need a compelling reason to remove its NPDB reporting regulations. VA makes no changes based on this comment.

As discussed in the proposed rule, certain provisions of the HHS NPDB regulations conflict with VA's role and responsibility as a Federal agency. Therefore, an MOU with HHS, as well as, VA internal policies and procedures, would be necessary to address and avoid such conflicts. See 48 U.S.C. 11152(b); 88 FR 19582-83. While VA acknowledges that it will continue to rely on the MOU with HHS and VA policies and procedures, removing the NPDB regulations help to reduce the total number of NPDB authorities. VA believes that it is easier to have one set of regulations (HHS) as opposed to two (HHS and VA) and that VA can support the HHS regulatory framework through updated VA policies and an MOU with HHS. The process to update VA's policies and the MOU is much quicker than the process for updating VA's regulations. This reduces the potential for confusion or conflict between different sets of regulations, simplifies the regulatory framework, and allows VA to implement VA-specific procedures as necessary more efficiently in VA policies and an MOU. Furthermore, no other Federal agency has its own set of regulations governing its compliance with the NPDB and simply use the HHS statutory authority, HHS regulatory authority, MOUs, and their own policies.

The commenter argued that if HHS amends its regulations to include requirements applicable to VA, VA could simply update its MOU and policies. However, this overlooks a crucial point: if VA maintained its own regulations, it would need to update those regulations first before updating its policies and MOU to ensure they are consistent with existing regulations. The process to update regulations is time-consuming, as it requires VA to develop a proposed rule, publish it for public comment, and then develop a final rule considering those public comments, before implementing any changes. As a result, when VA's NPDB reporting regulations have not been updated to reflect changes in HHS regulations, VA health care practitioners may be confused about which NPDB reporting requirements to follow. By removing VA's NPDB regulations, VA streamlines this process. When HHS updates its regulations, VA will only need to update its policies and the MOU, which can be done more quickly and efficiently than amending regulations. This approach simplifies the process and reduces the potential for confusion among VA health care practitioners.

The commenter alleges that since VA will still need to maintain and update the MOU with HHS and VA policy, it needs a compelling reason to eliminate its NPDB regulations. However, under the Administrative Procedures Act (APA), if subjected to judicial review, the Secretary's decision, will only be reversed if a court finds: (a) it arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege, or immunity; it was obtained without procedures required by law, rule, or regulation having been followed; (c) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or (d) without observance of procedure required by law. 5 U.S.C. 706(1)-(2)(A)-(D).

However, the APA does not require the VA to provide a “compelling reason” for creating, amending, or removing regulations. Instead, under the APA the VA's decision to remove the regulation must not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S.C. 706(2)(A)). VA believes it has met this standard by providing a rational basis for removing its NPDB regulations that is supported by statutory and regulatory authority in the proposed rule. See 88 FR 19582-83. VA explained that removing these regulations will reduce confusion, eliminate inconsistencies with HHS regulations, and allow for more efficient updates to VA's NPDB reporting practices through policy changes rather than the lengthy regulatory process.

These reasons establish a rational connection between the facts (current regulatory inconsistencies and improve inefficiencies) and the chosen action (removing VA's separate NPDB regulations). Therefore, VA maintains that it has provided sufficient justification for this change under the applicable legal standard. VA also reiterates that other agencies, such a Department of Defense, similarly have chosen to have a MOU with HHS and internal policy; it does not maintain its own section of regulations for the NPDB. 88 FR 19583. The governing statutory authority for the NPDB does not require that Federal agencies create and maintain a separate set of regulations, but only that they enter into a MOU with HHS.

The commenter further claimed that VA did not provide evidence of confusion or conflicting language between HHS and VA NPDB reporting regulations, and the commenter claimed that removal of VA's NPDB reporting regulations would thus be arbitrary and capricious.

Contrary to the commenter's assertion that we did not provide evidence of confusing or conflicting language between HHS and VA NPDB reporting regulations, we stated in the proposed rule that VA's NPDB regulations are not comprehensive and do not encompass all of VA's required and permissive reporting requirements; thus, it is not always clear to VA's health care professionals which requirements are applicable. 88 FR 19582. We explained that VA's NPDB regulations at 38 CFR part 46 do not explicitly address the reporting requirements of exclusions from participation in Federal or State health care programs and other adjudicated actions or decisions as required in 45 CFR 60.15 and 60.16 (Id).

Additionally, the definitions found at 38 CFR 46.1 are not wholly consistent with those found in 45 CFR 60.3. See 88 FR 19582-19583. Further, VA regulations only permit reporting of adverse actions against physicians and dentists (38 CFR 46.12), while HHS additionally authorizes voluntary reporting of other licensed health care practitioners (45 CFR 60.12(a)(2)). Id. It is unclear as to whether VA could voluntarily report these other licensed health care practitioners. because, while authorized by HHS, it is not in VA's governing regulations, which may indicate VA did not exercise its authority to report and therefore cannot report them and would need to update the regulations if it wanted to report them. Thus, VA determined removing VA's NDPB reporting regulations and exclusively following HHS NPDB reporting regulations will directly reduce confusion and resolve inconsistencies between VA and HHS requirements moving forward.

The commenter claimed it would be arbitrary and capricious for VA to eliminate the NPDB regulations on the conclusory assertion that there is confusion. VA disagrees. Pursuant to 5 U.S.C. 706, VA is required to provide a rational basis. As explained above and further in the proposed rule, VA provided a rational basis for proposing to remove its NPDB regulations, which it incorporates in this final rule. See 88 FR 19582-83. VA also conducted extensive consultations with HHS and concluded that consolidation into one regulatory authority would reduce confusion and inconsistencies. See 88 FR 19582. VA reiterates that removing its NPDB reporting regulations brings VA in line with other Federal health agencies, eliminates direct conflicts or consistencies with HHS rules, and simplifies NPDB authority for VA staff. See 88 FR 19583.

The commenter further opined that instead of removing its NPDB reporting regulations, VA should address noncompliance of NPDB reporting requirements by updating VA's policies to ensure NPDB reporting requirements are clear and fill any gaps of applicable NPDB reporting requirements, based on a 2022 VA Office of Inspector General (OIG) report. See VA OIG Noncompliant and Deficient Processes and Oversight of State Licensing Board and National Practitioner Databank Reporting Policies by VA Medical Facilities, Report #20-00827-126, April 7, 2022.

VA acknowledges that OIG did not conclude that VA's NPDB reporting regulations were a source of confusion and/or cause of the noncompliant and deficient reporting processes. However, VA examined its overall NPDB reporting practices and determined, in consultation with HHS, that its NPDB regulations should be removed and that VA should instead rely on HHS NPDB reporting regulations, supplemented by an MOU with HHS and VA policy and procedures, to address the reporting deficiencies. See 88 FR 19582. It must be noted that removing its NPDB regulation is only part of a larger plan to meet OIG's recommendations. VA is updating VHA Directive 1100.17, National Practitioner Data Bank Reports (December 28, 2009), updating the MOU with HHS, and is enhancing its oversight and training. Thus, removal of VA's reporting regulations will complement the other NPDB compliance efforts VA is undertaking.

The commenter alleged that removing VA's NPDB reporting regulations will reduce due process protections for VA health care practitioners, listing three examples. First, the commenter stated that VA's current regulations require that when reviewing malpractice claims, at least one member of the medical malpractice review panel must be from the same profession as the practitioner under review, whereas HHS regulations do not have such a requirement. Second, the commenter stated that under VA regulations the medical center director is responsible for submitting reports to the NPDB, whereas the HHS regulations permit health care practitioners to voluntarily report their peers to the NPDB. Third, the commenter stated that the HHS regulations require all payments for medical malpractice be reported to the NPDB, whereas VA's review panels only report after the majority of the VA review panel determine that the payment was related to substandard care, professional incompetence, or professional misconduct.

Regarding the first concern, VA clarified in the proposed rule that removing its NPDB regulations will not alter its processes for reviewing and reporting malpractice payments. See 88 FR 19583. Specifically, VHA Directive 1100.17, National Practitioner Data Bank Reports, which explains that “all panels must include a member of the same profession and specialty, as appropriate, of the individual being reviewed” would remain status quo. (VHA Directive 1100.17; Para 8.(g)(1)) This approach preserves the integrity of the review process while streamlining regulatory requirements.

With respect to the second concern related to voluntary reporting, VA clarifies that 45 CFR 60.12(a)(2) permits health care entities to voluntarily report adverse privileging actions against “other licensed health care practitioners” but requires health care entities to report adverse privileging actions taken against physicians and dentists. 45 CFR 60.12(a)(1) and (2). There is nothing in the regulation that requires or permits a “peer” to report a provider subjected to an adverse privileging action.

The commenter expressed concern that following HHS regulations would require the VA to depart from its past practice of reporting payments after a majority of the review panel determines that payment was related to substandard care, professional incompetence, or professional misconduct, and now report “frivolous complaints” or “nuisance settlement payments”. However, VA disagrees with the commenter's position. As stated previously, VHA Handbook 1100.17, which explains that a malpractice payment is only reported after a majority of the review panel determines that the payment was “related to substandard care, professional incompetence, or professional misconduct” on the part of the provider, would continue to apply to situations involving medical malpractice payments. (VHA Handbook; Para; 8 (i.)(1)) Note: If any changes to VA's policy regarding NPDB reporting policy were proposed in the future that would impact the terms and conditions of hybrid title 38 bargaining unit employees, such proposed changes would be subject to the applicable collective bargaining rules and regulations. Specifically, the VA is required to provide notice to the applicable Union(s) and/or bargain over their impact and implementation.

The commenter raised concerns about the potential impact of removing VA's NPDB reporting regulations on staffing, retention, and patient satisfaction. The commenter stated that by eliminating VA's NPDB reporting regulations, VA is “eviscerating” due process rights and safeguards, which will result in voluntary separations and difficulties in hiring. The commenter provided specific information about VA staffing shortages and argued that these shortages could lead to more patient complaints and settlements even when practitioners are not at fault, which could result in increased reporting to the NPDB.

The commenter also raised concerns that VA's current NPDB reporting requirements and the due process protections attract health care practitioners to work at VA. The commenter opined that the downstream result is the exacerbation of a chronic recruitment and retention problem for VA, both because fewer practitioners will want to work for VA and because more practitioners will have been reported to NPDB with fewer due process protections. We make no changes based on this comment.

VA does not believe removing VA regulations will impact staffing and retention because the procedures and safeguards around NPDB reporting for VA that the commenter discussed will continue to be followed pursuant to VHA Directive 1100.17 and the MOU with HHS. As mentioned above, although the VA regulations will be removed, the VA requirements for reporting under HHS NPDB regulations will be retained in VA policy and the MOU with HHS. See 88 FR 19582. Note: If any changes to VA's policy regarding NPDB reporting policy were proposed in the future that would impact the terms and conditions of hybrid title 38 bargaining unit employees, such proposed changes would be subject to the applicable collective bargaining rules and regulations. Specifically, the VA is required to provide notice to the applicable Union(s) and/or bargain over their impact and implementation.

Therefore, as there will be no changes regarding the prohibition of peer to peer reporting, the composition of the review panel, or how many people in the review panel need to agree to report the practitioner to the NPDB, VA does not believe there will be an increase in frivolous reporting to the NPDB and also believes that prospective employees would still be attracted to VA for its due process protections at the same level as they were before the removal of the regulations.

The commenter also claimed that the proposed changes undermine the purpose of 38 U.S.C. and that VA is ceding its authority to HHS. VA clarifies that it is not ceding its authority to HHS but is required by 42 U.S.C. 11101 et seq. to comply with applicable HHS regulations while retaining the flexibility to set reporting processes through internal policy and the MOU with HHS. VA's proposal is consistent with how other Federal agencies comply with their statutory and regulatory obligations to comply with the HHS NPDB statutes and regulations. See 88 FR 19583.

Based on the rationale set forth in the proposed rule and in this final rule, VA is adopting the proposed rule without changes.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14192 (Unleashing Prosperity Through Deregulation) promotes prudent financial management and alleviates unnecessary regulatory burdens. The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866. This rule is not an Executive Order 14192 regulatory action because this rule is not significant under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This final rule will only affect individuals who are VA employees or independent contractors acting on behalf of VA and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. 2 U.S.C. 1532. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

Douglas A. Collins, Secretary of Veterans Affairs, approved and signed this document on June 3, 2025, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

This action corrects regulatory text affecting 40 CFR part 52 resulting from two inadvertent errors in the amendatory instructions in our final rule published January 16, 2025 (90 FR 4652), approving revisions to the MCAQD portion of the Arizona SIP. That rulemaking was related to the County's reasonably available control technology (RACT) demonstration for the 2008 8-hour ozone National Ambient Air Quality Standards and converted a conditional approval and a partial approval/partial disapproval to full approvals. This current action does not change the final action taken by the EPA on January 16, 2025. This action merely corrects regulatory text to properly codify the EPA's previously published final rulemaking.

40 CFR 52.119, Identification of plan—conditional approvals, identifies portions of the Arizona SIP that the EPA has conditionally approved under CAA section 110(k)(4). In the January 16, 2025 final rule, the amendatory instructions for codifying the conditional approval of portions of the County's RACT demonstration to a full approval in 40 CFR part 52 specified the deletion of paragraph 52.119(c)(3). These instructions resulted in paragraph (c) containing only introductory text describing a 2017 SIP submittal related to the County's RACT demonstration for which there are no longer any remaining conditional approvals. The instructions should have instead specified deleting the entirety of paragraph 52.119(c), including the introductory text. In this action, the EPA is correcting this error and deleting the entirety of paragraph 52.119(c).

Additionally, 40 CFR 52.124, Part D disapproval, identifies portions of the Arizona SIP that the EPA has disapproved under CAA section 110(k)(3) because they do not meet Part D of title I of the CAA. The prior disapproval of portions of the County's RACT demonstration related to our January 16, 2025 final rule was previously codified at 40 CFR 52.124(b)(2)(i) and our final rule should have only deleted this paragraph. However, we inadvertently deleted other disapprovals unrelated to our January 16, 2025 action by deleting the entirety of 52.124(b). This action will correct the error and revise 40 CFR 52.124 to recodify the disapproval for other portions of the County's RACT demonstration previously listed in 52.124(b)(2)(ii), as added by a separate final rule published on January 10, 2025 (90 FR 1903).

The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action are unnecessary because the underlying rule for which these correcting amendments have been prepared was already subject to a 30-day comment period. Further, this action is consistent with the purpose and rationale of the final rule for which inaccurate amendatory instructions are being corrected herein. Because this action does not change the EPA's analyses or overall actions, no purpose would be served by additional public notice and comment. Consequently, additional public notice and comment are unnecessary.

The EPA also finds that there is good cause under APA section 553(d)(3) for these corrections to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. This action merely corrects inaccurate amendatory instructions in a previous rulemaking. For these reasons, the EPA finds good cause under APA section 553(d)(3) for these corrections to become effective on the date of publication of this action.

This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, the EPA has made such a good cause finding, including the reasons therefore, for this action to become effective on the date of publication. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Accordingly, 40 CFR part 52 is corrected by making the following correcting amendments:

States that have received final authorization from the EPA under RCRA section 3006(b) (42 U.S.C. 6926(b)), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

Utah initially received final authorization on October 10, 1984, effective October 24, 1984 (49 FR 39683), to implement the RCRA hazardous waste management program. Utah received authorization for revisions to its program on February 21, 1989 (54 FR 7417), effective March 7, 1989; May 23, 1991 (56 FR 23648) and August 6, 1991 (56 FR 37291), both effective July 22, 1991; May 15, 1992 (57 FR 20770), effective July 14, 1992; February 12, 1993 (58 FR 8232) and May 5, 1993 (58 FR 26689), both effective April 13, 1993; October 14, 1994 (59 FR 52084), effective December 13, 1994; May 20, 1997 (62 FR 27501), effective July 21, 1997; January 13, 1999 (64 FR 02144), effective March 15, 1999; October 16, 2000 (65 FR 61109), effective January 16, 2001; May 7, 2002 (67 FR 30599), effective July 7, 2002; June 11, 2003 (68 FR 34829), effective June 11, 2003; and May 23, 2008, effective May 23, 2008 (73 FR 29987).

On April 13, 2023, the State of Utah submitted a final complete program revision application seeking authorization of their changes in accordance with 40 CFR 271.21. On December 23, 2024, the EPA published both a direct final rule (89 FR 104435) granting Utah final authorization for these revisions to its federally authorized hazardous waste program and the codification and incorporation by reference of the State's authorized hazardous waste program, along with a companion proposed rule announcing the EPA's proposal to grant such final authorization, codification, and incorporation by reference (89 FR 104486). The EPA announced in both documents that the direct final rule and the proposed rule were subject to a thirty-day public comment period. The public comment period ended on January 22, 2025. Further, the EPA stated in both documents that if it received adverse comments on its intent to authorize Utah's program revisions that it would (1) withdraw the direct final rule; (2) proceed with the proposed rule as the basis for the receipt and evaluation of such comments; and (3) subsequently publish a final determination responding to such comments and announce it final decision as to whether to authorize Utah's program revisions, codification, and incorporation by reference. The EPA did receive two adverse comments during the public comment period, and on February 20, 2025, the EPA published a document withdrawing the direct final rule (90 FR 9954).

This action responds to the comments the EPA received and publishes the EPA's final determination granting Utah final authorization of its program revisions and the incorporation by reference of the authorized program. Further background on the EPA's direct final rule and its tentative determination to grant authorization to Utah for its program revisions appears in the aforementioned Federal Register documents. The issues raised by the commenters are summarized and responded to in section B. below.

During the public comment period, adverse comments were received from two sources. The comments did not address specific concerns with the EPA's approval of the 41 additional RCRA regulatory provisions in Utah's authorized hazardous waste program; rather the comments were general in nature: Opposition to Utah administering hazardous waste and allegations that Utah's State government is incompetent, has not cleaned the State of air pollution, and created a water crisis related to overdevelopment and agricultural use. In response to the first commenter who stated they are “worried that the EPA is allowing the state of Utah to alter the hazardous waste plan, because the history of the state regarding the protection of the people during the uranium years was not good” the EPA notes that the authorization of the additional RCRA regulatory provisions as specified in the direct final rule will not impact the way Utah regulates hazardous waste. The State has already adopted these regulatory provisions into the Utah Hazardous Waste Management Rules. Additionally, the EPA notes that, in general, this authorization does not address radioactive waste.

In response to the second commenter who expressed concerns that the State of Utah should not be entrusted to administer hazardous waste, commenting that instead, “the EPA should be fully budgeted and staffed to manage the program,” claiming the Utah State government is incompetent due to other perceived environmental failures. The State of Utah initially received delegation of the RCRA program in 1984, with many subsequent authorizations of Federal final rules in the years since. The Utah Department of Environmental Quality (UDEQ) has followed the process specified in 40 CFR part 271 for submitting an application for authorization to the EPA and the EPA has conducted a thorough review of both the application for authorization and the State's hazardous waste program as a whole. Neither review revealed a basis for revoking the status of the delegation of the RCRA hazardous waste program for Utah.

Therefore, we have determined that these comments do not provide a basis to deny authorization and codification of Utah's hazardous waste program.

Based on the EPA's response to public comments, we have determined that approval and codification of Utah's RCRA program revisions should proceed. The EPA has made a final determination that Utah's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA; therefore, we grant Utah final authorization to operate its hazardous waste program with the changes described in the authorization application. Additionally, the State's program is approved for codification and incorporation by reference under 40 CFR part 272. Utah has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian country as that term is defined at 18 U.S.C. 1151, and for carrying out the aspects of the RCRA program described in its program application, subject to the limitations of the Hazardous and Solid Waste amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements; thus, the EPA will implement those requirements and prohibitions in Utah, including issuing permits, until Utah is authorized to do so. For further background on the scope and effect of this action to approve Utah's RCRA program and codify and incorporate by reference the authorized hazardous waste program, please refer to the preambles of the EPA's December 23, 2024, proposed and direct final rules at 89 FR 104486 and 89 FR 104435, respectively.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); therefore, this action is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because State hazardous waste program authorization revisions under Subtitle C of RCRA actions are exempt from review under Executive Order 12866. For these reasons, this action is not subject to review by OMB. This action authorizes and codifies State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes and codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes and codifies State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA.

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, Feb. 7, 1996), in issuing this action, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective June 11, 2025.

EPA is correcting an inadvertent error in the regulatory text for the final rule. Equation 1 to 40 CFR 1090.1355(a) should read as follows: RVP = 0.956 • P total −0.347.

Section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary as the technical correction is for minor typographical, non-substantive errors only.

In rule FR Doc. 2025-07755, in the Federal Register of May 5, 2025, on page 18928, in the first column, correct the title caption to read:

The National Highway Traffic Safety Administration (NHTSA) is issuing this interpretation as the foundation for resetting its Corporate Average Fuel Economy (CAFE)  1 and medium- and heavy-duty fuel efficiency (MDHD) programs as authorized by law. In accordance with the President's Executive Order, Unleashing American Energy, and the Secretary's Memorandum, Fixing the CAFE Program, NHTSA is in the process of reviewing and reconsidering fuel economy standards applicable to vehicles produced from model year (MY) 2022 forward. 2 NHTSA is also reviewing the existing MDHD standards, including those standards for heavy-duty pickup trucks and vans referenced in the Secretary's Memorandum. NHTSA will apply this interpretation to ensure any changes to these standards and standards set in the future comply with the law, including the legal prohibition on considering dedicated alternative and dual-fueled vehicles and credit trading when setting CAFE standards. 3

The Energy Policy and Conservation Act of 1975 (EPCA), as amended by the Energy Independence and Security Act of 2007 (EISA), directs the Secretary of Transportation—and NHTSA by delegation—to prescribe average fuel economy standards for the United States passenger automobile and non-passenger automobile fleets, separately, for each model year at the maximum feasible average fuel economy level. 4 Passenger automobiles are those that the Secretary decides by regulation are manufactured primarily for transporting not more than ten individuals, but do not include automobiles that the Secretary decides by regulation have a significant feature designed for off-highway operation and are 4-wheel drive automobiles or are rated at more than 6,000 pounds gross vehicle weight. 5 Non-passenger automobiles are defined as not passenger automobiles or work trucks. 6 Thus, by elimination, non-passenger automobiles are, in general, those that are not primarily for transporting individuals and those that have significant features designed for off-highway operation. Non-passenger automobiles are also referred to as light trucks.

NHTSA also is required to prescribe fuel economy standards for “work trucks and commercial medium-duty or heavy-duty on-highway vehicles.”  7 NHTSA is required to “determine in a rulemaking proceeding how to implement a commercial medium- and heavy-duty on-highway vehicle and work truck fuel efficiency improvement program designed to achieve the maximum feasible improvement.”  8

When deciding what levels of fuel economy are “maximum feasible,” the statute states that NHTSA “shall consider technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy.”  9 When carrying out its statutory directive to set fuel economy standards at the maximum feasible level, NHTSA must not consider the fuel economy of dedicated automobiles; must consider dual-fueled automobiles to be operated only on gasoline or diesel fuel; and must not consider, when prescribing a fuel economy standard, the trading, transferring, or availability of credits under section 32903. 10 A dedicated automobile is one “that operates only on alternative fuel,” which includes, among others, fuels such as methanol, hydrogen, electricity, or “any other fuel the Secretary of Transportation prescribes by regulation that is not substantially petroleum and that would yield substantial energy security and environmental benefits.”  11 Non-exhaustive examples of dedicated automobiles include electric vehicles (EVs) when powered solely by electricity, natural gas vehicles (NGVs), and other similar vehicles including fuel-cell electric vehicles (FCEVs) powered by hydrogen or dedicated propane vehicles. A dual-fueled automobile is, among other requirements, “capable of operating on alternative fuel . . . and on gasoline or diesel fuel,”  12 and includes plug-in hybrid electric vehicles (PHEVs) that can be powered in a “gasoline only” mode (charge-sustaining mode) or with a mix of electricity and gasoline (charge-depleting mode), or “flex-fuel vehicles” (FFVs) that can operate on gasoline or a high-ethanol blend.

Finally, 49 U.S.C. 32902(h) prohibits NHTSA from considering the trading, transferring, or availability of credits under section 32903. The credits in section 32903 are those that manufacturers earn when their CAFE compliance value exceeds their CAFE standard. 13 Manufacturers can apply these “overcompliance” credits up to three years before and five years after the model year in which the credits are earned;  14 they can transfer these credits between their own passenger and non-passenger automobile fleets, 15 subject to statutory restrictions;  16 and trade these credits to other manufacturers under a program established by NHTSA pursuant to discretionary statutory authority, again subject to certain statutory restrictions. 17

These three limitations—referred to herein as section 32902(h) limitations or factors for their location in the United States Code at 49 U.S.C. 32902(h)—are the primary focus of this interpretive rule. In this interpretive rule, NHTSA affirms that the agency cannot consider the section 32902(h) factors for any purpose and at any point in the process of setting fuel economy standards. NHTSA also examines other aspects of the agency's CAFE and MDHD programs to ensure that both programs are compliant with the law.

EPCA was passed in the context of the Arab oil embargoes of the 1970s when American consumers and the U.S. economy were threatened by gasoline shortages and high fuel prices. The House report accompanying the legislation noted that, as a result, the legislation sought to address the national security dangers of America's dependence on foreign oil. 18 Consistent with that context, the House report stated that the purpose of the CAFE program was to induce automakers into offering America's consumers more fuel-efficient vehicle options to advance the national goal of conserving energy while simultaneously “recogniz[ing] that the automobile industry has a central role in our national economy and that any regulatory program must be carefully drafted so as to require of the industry what is attainable without either imposing impossible burdens on it or unduly limiting consumer choice as to capacity and performance of motor vehicles.”  19

As originally enacted, EPCA did not limit the Secretary's consideration of factors when setting maximum feasible standards. Limitations in section 32902(h) first appeared in the Alternative Motor Fuels Act of 1988 (AMFA). 20 AMFA aimed to displace energy derived from imported oil to help achieve energy security and improve air quality by encouraging the development of widespread use of methanol, ethanol, and natural gas as transportation fuels by consumers and the production of methanol, ethanol, and natural gas-powered motor vehicles. The statute specified that, in carrying out responsibilities to set maximum feasible fuel economy standards, “the Secretary shall not consider the fuel economy of alcohol powered automobiles or natural gas powered automobiles, and the Secretary shall consider dual energy automobiles and natural gas dual energy automobiles to be operated exclusively on gasoline or diesel fuel.”  21 One member of Congress described AMFA's approach as “evenhanded” in that the bill did not favor one alternative fuel over another; rather, “it allow[ed] the market to pick the non-petroleum alternative fuel of the future.”  22

The conferees specifically noted their intent to ensure that the Secretary of Transportation did not erase the AMFA incentives by setting the CAFE standards for passenger or non-passenger automobiles “at a level that assumes a certain penetration of alternative fueled vehicles.”  23 Specifically, “i[t] is intended that [NHTSA's maximum feasibility] examination will be conducted without regard to the penetration of alternative fuel vehicles in any manufacturer's fleet, in order to ensure that manufacturers taking advantage of the incentives offered by this bill do not then find DOT including those incentive increases in the manufacturer's ‘maximum fuel economy capability.’ ”  24

The Energy Policy Act of 1992 expanded the section 32902(h) limitations to include all dedicated alternative-fueled vehicles. 25 The Energy Policy Act's accompanying House report acknowledged that the widespread use of alternative fuels faced several problems, but expanded the AMFA requirements to keep the program “fuel neutral.”  26 This was because “all the data, experience, and knowledge gathered concerning alternative fuels over the past two decades points to the fact that no one fuel is ‘the winner.’ ”  27

There have been no subsequent substantive changes to the language in 49 U.S.C. 32902(h), 28 including with the enactment of EISA in 2007. The statutory prohibition was clear at the time of enactment and has remained clear: it is impermissible for NHTSA to consider the fuel economy of dedicated automobiles in setting maximum feasible fuel economy standards.

NHTSA is required to also prescribe average fuel economy standards for work trucks and commercial medium-duty or heavy-duty on-highway vehicles in accordance with 49 U.S.C. 32902(k). 29 In subsection (k), the statute specifically requires NHTSA “to determine in a rulemaking proceeding how to implement a commercial medium- and heavy-duty on-highway vehicle and work truck fuel efficiency improvement program designed to achieve the maximum feasible improvement,” and to “adopt and implement appropriate test methods, measurement metrics, fuel economy standards, and compliance and enforcement protocols that are appropriate, cost-effective, and technologically feasible.”  30 NHTSA's civil penalty authorities for violations of the agency's fuel economy standards also do not include a civil penalty for violations of the MDHD standards. 31

On January 20, 2025, the President issued several Executive Orders, with two in particular pertaining to NHTSA's fuel economy program and directly relevant to this action. Executive Order 14148, Initial Rescission of Harmful Executive Orders and Actions, revoked various Executive orders issued by the previous administration, including several that directed NHTSA to reconsider the fuel economy standards finalized in 2020. 32 Executive Order 14154, Unleashing American Energy, announced the Administration's policy regarding energy resources, specifically to promote the production, distribution, and use of reliable domestic energy supplies, including oil, natural gas, and biofuels; to ensure that all regulatory requirements related to energy are “grounded in clearly applicable law;” and “to eliminate the ‘electric vehicle (EV) mandate’ and promote true consumer choice.”  33 The Order directed that the United States do this by “removing regulatory barriers to motor vehicle access; by ensuring a level regulatory playing field for consumer choice in vehicles; by terminating, where appropriate, state emissions waivers that function to limit sales of gasoline-powered automobiles; and by considering the elimination of unfair subsidies and other ill-conceived government-imposed market distortions that favor EVs over other technologies and effectively mandate their purchase by individuals, private businesses, and government entities alike by rendering other types of vehicles unaffordable.”  34

On January 28, 2025, the Secretary of Transportation issued a memorandum, titled Fixing the CAFE Program, stating that there is “strong reason to conclude that the [2022 and 2024 final rule] CAFE standards promulgated by NHTSA are contrary to Administration policy as reflected in President Trump's Executive Orders and are inconsistent with the substantive statutory requirements applicable to the CAFE program enacted by Congress and codified in chapter 329 of title 49, United States Code.”  35 The memorandum directed NHTSA, accordingly, to “commence an immediate review and reconsideration of all existing fuel economy standards applicable to all models of motor vehicles produced from model year 2022 forward, including in particular the rules titled Corporate Average Fuel Economy Standards for Model Years 2024-2026 Passenger Cars and Light Trucks (87 FR 25710) and Corporate Average Fuel Economy Standards for Passenger Cars and Light Trucks for Model Years 2027 and Beyond and Fuel Efficiency Standards for Heavy-Duty Pickup Trucks and Vans for Model Years 2030 and Beyond (89 FR 52540).”  36 Furthermore, the Secretary directed NHTSA, at the earliest opportunity, to “propose the rescission or replacement of any fuel economy standards as determined necessary to bring the CAFE program into compliance with Administration policy and the requirements of the law.”  37

After the President and Secretary's initial direction on reconsidering the CAFE program, the President issued Executive Order 14219, Ensuring Lawful Governance and Implementing the President's “Department of Government Efficiency” Deregulatory Initiative. 38 That Executive Order directed agencies, among other things, to identify regulations that are “based on anything other than the best reading of the underlying statutory authority or prohibition” and work with White House offices and personnel to rescind or modify these regulations, as appropriate. 39 That Order also directed agencies, when proposing new regulations, to take account of specific factors related to law or Administration policy laid out in the order, 40 such as whether the regulation is based on the best reading of the underlying statutory authority or prohibition.

In accordance with direction from the President and the Secretary of Transportation, and pursuant to NHTSA's authority under Chapter 329 of Title 49, the agency is issuing this interpretive rule to affirm that the agency cannot consider the section 32902(h) factors for any purpose and at any point in the process of setting fuel economy standards. Not only does the plain text of the statute make clear that NHTSA's prior consideration of the section 32902(h) limitations was inconsistent with the substantive statutory requirements applicable to the CAFE program, but the legislative history affirms this interpretation as well. In this interpretative rule, NHTSA also addresses the statutory provisions applicable to the MDHD program, including the absence of a civil penalty for violations of standards established under that program. This interpretation provides the foundation for subsequent fuel economy standards rulemakings to reset the CAFE program to implement the President and Secretary's directives on CAFE, to reset the MDHD program, and to ensure that future regulatory actions are consistent with the agency's underlying statutory authority and specific prohibitions in the law.

Since the beginning of the CAFE program in the late 1970s, NHTSA has evaluated vehicle manufacturers' ability to comply with different levels of CAFE standards by, among other things, performing an analysis that evaluates a cost-effective pathway for manufacturers to apply fuel-economy-improving technologies to their vehicles. 41 More recently, NHTSA has used the CAFE Compliance and Effects Model (commonly referred to as “the CAFE Model”) to perform this analysis. NHTSA uses the model as a tool to estimate how manufacturers could attempt to comply with a given CAFE standard by adding technology to anticipated vehicle fleets and to estimate the impacts of additional technology application. NHTSA also uses the model to evaluate the sensitivity of these estimated outcomes to key analytical inputs ( e.g., fuel prices), and to perform probabilistic uncertainty analysis. While the analytical results are used to inform the maximum feasible determination, 42 the analytical results do not dictate the maximum feasible determination. 43 It is ultimately up to the agency to balance the available information regarding technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy—whether from the technical and economic analysis or other legally appropriate considerations—to set maximum feasible CAFE standards.

In the 2012, 2020, 2022, and 2024 final rules, NHTSA took the position that it could account for the factors prohibited from consideration in section 32902(h) by using a narrow construction of that provision. This narrow interpretation permitted dedicated alternative and dual-fueled vehicles to be added to an existing reference fleet of vehicles  44 in response to reasons other than NHTSA's CAFE standards, 45 and outside of the years for which NHTSA was setting standards. 46 NHTSA prohibited the consideration of dedicated or dual-fueled vehicles only as a compliance option in response to the agency's fuel economy standards during “standard-setting” years ( i.e., the model years being evaluated as the subject of the active rulemaking), and similarly prohibited consideration of manufacturers' use of compliance credits only during the standard-setting years. In other words, the model did not apply dedicated or dual-fueled technology to a manufacturer's fleet of vehicles when simulating a cost-effective pathway for the manufacturer to comply with a given level of CAFE standards only in standard-setting years, but application of the technology was otherwise permitted.

NMFS, with the advice from and the South Atlantic Fishery Management Council (Council), manages the South Atlantic snapper-grouper fishery, which includes red snapper, in the South Atlantic exclusive economic zone (EEZ) under the Snapper-Grouper FMP. The Snapper-Grouper FMP was prepared by the Council, approved by the Secretary of Commerce (Secretary), and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The Magnuson-Stevens Act authorizes the Secretary to prepare an amendment necessary for the conservation and management of a fishery managed under the Snapper-Grouper FMP if NMFS determines that the Council has not developed and submitted such an amendment to the Secretary after a reasonable period of time (16 U.S.C. 1854(c)(1)(A)). Additionally, the Magnuson-Stevens Act authorizes the Secretary to adopt the amendment and to propose and subsequently promulgate regulations to implement any plan or amendment, consistent with the fishery management plan, national standards, other provisions of the Magnuson-Stevens Act, and any other applicable law (16 U.S.C. 1854(c)(5) and (7)). As discussed below, because the Council has failed to take action to develop and submit measures to the Secretary to end and prevent overfishing of South Atlantic red snapper, NMFS, acting for the Secretary, developed Amendment 59 and its implementing regulations in this final rule to end and prevent overfishing of South Atlantic red snapper.

On October 9, 2024, NMFS published a notice of intent to prepare an environmental impact statement (EIS) for Amendment 59 in the Federal Register and requested public comment (89 FR 81892). On January 14, 2025, NMFS published a proposed rule and notice of availability for Amendment 59 in the Federal Register and requested public comment (90 FR 3160). On January 17, 2025, NMFS published a draft EIS in the Federal Register and requested public comment (90 FR 5877). Subsequent to the end of these public comment periods, NMFS removed five actions from further consideration in Amendment 59. A new red snapper stock assessment, Southeast Data, Assessment, and Review 90 (SEDAR 90), is beginning this year, and will take into account new information about the red snapper stock from the results of the South Atlantic Red Snapper Research Program (SARSRP or the South Atlantic Red Snapper Count). The results of SEDAR 90 are expected to provide further critical information that will better inform future red snapper management decisions. In view of the fact that new stock assessment information will be available soon, and taking the substantial concerns expressed in the public comments into account, NMFS decided to move ahead with only three actions, which will provide the Council another opportunity to consider other management measures to reduce dead discards and increase red snapper fishing opportunities in a future amendment. Therefore, for South Atlantic red snapper, this final rule revises the commercial and recreational ACLs for red snapper and Amendment 59 revises the FMSY proxy used to determine overfishing, as well as the OFL, ABC, and total ACL.

NMFS determined that based on the remaining actions in the amendment, preparation of an EA versus a final EIS for Amendment 59 was more appropriate. This final rule implements and addresses the actions remaining in the amendment. The section Changes from the Proposed Rule, later in this document, more fully describes the actions that were removed from further consideration. Amendment 59 was approved on May 23, 2025.

Unless otherwise noted, all weights are described in round weight.

In 2021, a stock assessment for red snapper was completed (SEDAR 73, 2021) and indicated that red snapper remained overfished and undergoing overfishing, but also indicated that the stock was making adequate progress towards rebuilding. In July 2021, NMFS sent a letter to the Council notifying it of the results of the stock assessment and the Magnuson-Stevens Act requirements to end overfishing. NMFS further explained at subsequent Council meetings that although the red snapper stock was rebuilding and the existing rebuilding plan did not need to be revised, the Council needed to take action to end overfishing of red snapper. Subsequent to the stock status notification of July 2021, the Council developed Regulatory Amendment 35 to the Snapper-Grouper FMP (Regulatory Amendment 35) which, if implemented, would have reduced the catch levels of red snapper and specified gear requirements for reducing discards, but would not have ended overfishing. After taking final action to approve Regulatory Amendment 35 for Secretarial review and implementation at their March 2023 meeting, the Council rescinded its final action at its December 2023 meeting. Since that time, the Council has taken no further action under the Magnuson-Stevens Act to end overfishing of red snapper. As a result, on June 14, 2024, NMFS implemented temporary interim measures for red snapper to reduce overfishing by reducing the catch limits for the 2024 red snapper commercial and recreational fishing seasons, and these measures were effective through December 11, 2024 (89 FR 50350). Those temporary measures, for the red snapper 2024 fishing seasons reduced the commercial ACL from 124,815 lb (56,615 kg) to 85,268 lb (38,677 kg), and the recreational ACL was reduced from 29,656 fish to 21,167 fish with a 1-day fishing season.

In the past 2 years, the Secretary and NMFS have been sued three times for the continued overfishing of South Atlantic red snapper. On August 22, 2024, a Federal District Court approved a settlement agreement between the Secretary, NMFS, and the plaintiffs in one of these lawsuits. The settlement agreement requires the Secretary and NMFS to submit to the Federal Register by June 6, 2025, a final rule implementing a Secretarial Amendment to end red snapper overfishing. However, a Secretarial Amendment would not be required if the Council takes action to end overfishing and NMFS approves and submits a final rule to the Federal Register to implement the Council's action on or before June 6, 2025. The Council has failed to take that action.

NMFS completed an update of the SEDAR 73 (2021) assessment in December 2024 using data through 2023 (SEDAR 73 Update Assessment [2024]). The update assessment indicates that the stock is still experiencing overfishing relative to the current fishing mortality threshold in the Snapper-Grouper FMP, but the stock could continue to rebuild on schedule if fished at a higher fishing mortality rate given above-average recruitment of younger fish in recent years. In addition, the update assessment indicates the stock is still rebuilding but is no longer overfished because the red snapper spawning stock biomass is greater than the minimum stock size threshold (MSST). However, because the stock size has not reached the rebuilding target level specified in the rebuilding plan, red snapper will continue to be managed under the rebuilding plan. The rebuilding target level is the reproductive capacity of the red snapper population at 30 percent of the spawning potential ratio (SPR) of an unfished population [30 % SPR ]).

Most of the red snapper fishing mortality is attributed to dead discards in the recreational sector. The recreational sector consists of both private recreational anglers and charter vessels and headboats (for-hire). Recreational fishermen discard red snapper both during the directed red snapper recreational open fishing season and during the closed recreational season while fishers are targeting snapper-grouper species that co-occur with red snapper. As described in Amendment 59, approximately 98 percent of all red snapper discard mortalities during 2021-2023 were from the recreational sector (SEDAR 73 Update 2024). The current level of discards is removing younger fish from the population. This prevents a segment of the fish population from surviving to the older ages necessary to sustain the population in the long term, particularly if recruitment decreases back to more historical levels. Additionally, the high level of mortality from discards is limiting the amount of catch that can be landed, resulting in forgone yield and harvest opportunities.

For red snapper, this final rule revises the commercial and recreational ACLs in the South Atlantic EEZ.

The Council developed Amendment 43 to the Snapper-Grouper FMP (Amendment 43) in 2018 and specified the current total ACL of 42,510 fish based on landings observed during the limited red snapper season in 2014 (83 FR 35428, July 26, 2018). The total ACL is divided between the sectors using the current sector allocation ratio for red snapper in the Snapper-Grouper FMP of 28.07 percent commercial and 71.93 percent recreational. This results in the commercial ACL of 124,815 pounds (lb) (56,615 kilograms (kg)) and the recreational ACL of 29,656 fish. The commercial sector ACL is set in pounds of fish because the commercial sector reports landings in weight, and weight is a more accurate representation of commercial landings. The ACL for the recreational sector is specified in numbers of fish because numbers of fish are a more reliable estimate for the recreational sector than specifying the ACL in weight of fish.

As discussed later in this final rule, Amendment 59 increases the total ACL to 509,000 fish, separated into 34,000 fish as landings and 475,000 fish as dead discards. While the total ACL, and the ABC, is equal to 509,000 fish, the 34,000 fish from the total ACL that is used to apportion to each sector based on the current sector allocations is the result of what remains from the total ACL after accounting for the dead discards (509,000 minus 475,000). In Amendment 59, the total ACL of 509,000 fish is derived from SEDAR Update Assessment (2024) projections of the amount of catch that is associated with fishing at 90 percent of F 2021-2023 (FMSY proxy for maintaining rebuilding consistent with the Amendment 17A rebuilding plan) applied in Amendment 59 for 2025-2027 under the high recent average recruitment scenario. Using the current sector allocation ratio of 28.07 percent commercial and 71.93 percent recreational as applied to the 34,000 fish, this final rule specifies a commercial ACL of 102,951 lb (46,698 kg), and a recreational ACL of 22,797 fish (equivalent to 263,815 lb (119,664 kg)). The conversion of red snapper numbers of fish to pounds uses a commercial average weight of 9.19 lb (4.17 kg) per fish and a recreational average weight of 11.085 lb (5.028 kg) per fish. These landed ACL values are based on the new ABC that is derived from the SEDAR 73 Update Assessment (2024) and the existing sector allocations, and assume no additional reduction in dead discards is achieved. Management measures such as the current commercial and recreational fishing seasons and the commercial trip limit and recreational bag limit are intended to constrain catches to the sector ACLs.

In addition to the measures codified within this final rule, for red snapper, Amendment 59 revises the F MSY proxy used to determine overfishing, as well as the OFL, ABC, and total ACL.

The current MSY for South Atlantic red snapper equals the yield produced by F MSY , and F 30 % SPR is used as the F MSY proxy. If the current F is greater than the F MSY or greater than the F MSY proxy of F 30 % SPR , overfishing is occurring. Amendment 59 revises the F MSY proxy from a fixed F 30 % SPR value to a more flexible definition that reflects the best scientific information available at the time an overfishing determination is made. If current F is greater than F MSY or the F MSY proxy, overfishing is occurring.

Amendment 59 would specify the F MSY proxy as the fishing mortality rate consistent with maintaining the existing rebuilding plan adopted in Amendment 17A to the Snapper-Grouper FMP (75 FR 76874, December 9, 2010). Based on the SEDAR 73 Update Assessment (2024), the F MSY proxy that maintains the existing rebuilding plan would be equivalent to F 2021-2023 , and the red snapper stock would no longer be classified as undergoing overfishing (F CURRENT /F 2021-23 = 1.0).

NMFS has determined that the use of F 2021-2023 is a reasonable F MSY proxy for the South Atlantic red snapper stock until the next stock assessment is completed in 2026 ( https://sedarweb.org/documents/sedar-90-south-atlantic-red-snapper-project-schedule-pdf/ ). The projection results from the 2024 SEDAR 73 Update Assessment (2024) indicate this level of fishing mortality combined with recent, above-average recruitment will keep the stock on track to rebuild consistent with the red snapper rebuilding plan until the next assessment is completed.

In the Snapper-Grouper FMP, for red snapper the current OFL is 56,000 fish and the ABC is 53,000 fish, which includes both landings and dead discards and is based on SEDAR 41 (2017). As previously discussed, the Council developed Amendment 43 to the Snapper-Grouper FMP in 2018 and also specified the current total ACL of 42,510 fish and the current commercial and recreational ACLs. Amendment 59 revises the OFL and ABC and specifies an OFL of 551,000 fish (landings and discards), which is the yield at F 2021-2023 , and an ABC equal to 92 percent of the OFL (F 2021-2023) ) of 509,000 fish (includes both landed fish and dead discards) based on projections derived from the SEDAR 73 Update Assessment (2024). The revised ABC includes a buffer of eight percent from the OFL to account for scientific uncertainty. The revised total ACL is set equal to the revised ABC value of 509,000 fish. The total ACL of 509,000 fish is derived from SEDAR Update Assessment (2024) projections of the amount of catch that is associated with fishing at 90 percent of F2021-2023 (FMSY proxy for maintaining rebuilding consistent with the Amendment 17A rebuilding plan) applied in Amendment 59 for 2025-2027 under the high recent average recruitment scenario.

As previously noted, the total ACL of 509,000 fish represents both landed catch (34,000 fish) and dead discards (475,000 fish). While both the ABC and the total ACL are 509,000 fish, the landed portion of the ABC is 71,000 fish and the landed portion of the total ACL is 34,000 fish. This difference is because the total ACL includes a higher number of dead discards than the ABC, since NMFS removed the proposed action to reduce dead discards.

By maintaining dead discards at 475,000 fish, the landed ACL for red snapper is reduced from 71,000 fish to 34,000 fish. Those 34,000 fish are then apportioned to each sector based on the existing allocation. However, the sector ACLs only represent landed catch and in-season monitoring of the sectors is based on landed catch only. The sector accountability measures (AMs) are directly related to the sector ACLs which represent landed catch. Any in-season closure or season length projection is based on landings only with respect to a sector ACL and not the dead discard estimates that are included as part of the definition of the total ACL and ABC.

In addition to the measures within Amendment 59 and codified in this final rule, this final rule announces the red snapper commercial season opening date and the recreational season opening and closing dates for the 2025 fishing year. The commercial and recreational season lengths for the 2025 fishing year are determined using the revised sector ACLs in this final rule.

For the commercial sector, and consistent with the regulations in 50 CFR 622.183(b)(5), for the 2025 fishing year, the red snapper commercial season opens on July 14, 2025, and will remain open until 12:01 a.m., local time, on January 1, 2026, unless the commercial ACL is reached or projected to be reached prior to this date. NMFS will monitor commercial landings during the open season, and if commercial landings reach or are projected to reach the commercial ACL, then NMFS will file a notification with the Office of the Federal Register to close the commercial sector for red snapper for the remainder of the fishing year. On or after the effective date of a commercial closure notification, all sale or purchase of red snapper is prohibited and harvest or possession of red snapper is limited to the bag and possession limits if recreational harvest is still allowed. This bag and possession limit and the prohibition on sale/purchase apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued without regard to where such species were harvested or possessed, i.e., in state or Federal waters. On and after the effective date of a recreational closure notification, the bag and possession limits for red snapper are zero. During the commercial fishing season, the commercial trip limit is 75 lb (34 kg), gutted weight.

For the recreational sector, and consistent with the regulations in 50 CFR 622.183(b)(5), for the 2025 fishing year, the red snapper recreational season opens at 12:01 a.m., local time, on July 11, 2025, and closes at 12:01 a.m., local time, on July 13, 2025. During the recreational season, the recreational bag limit is one red snapper per person, per day. The length of the recreational fishing season serves as the AM for the recreational sector. The length of the red snapper recreational season is projected based on catch rate estimates from previous years to prevent the recreational ACL from being exceeded. After the closure of the recreational sector, the recreational bag and possession limits for red snapper are zero.

There are no red snapper minimum or maximum size limits for the commercial and recreational sectors during the open seasons.

In addition to the Amendment 59 actions contained and being implemented in this final rule, for red snapper, the amendment and proposed rule also contained actions to revise the fishing year, the commercial and recreational season start dates, the recreational fishing season structure, and the commercial trip limits. The amendment and proposed rule also contained an action to establish a snapper-grouper discard reduction season in the South Atlantic EEZ and an action to establish an annual experimental studies program for red snapper. Additionally, as discussed in this final rule, subsequent to the proposed rule, the preferred alternative for the sector ACLs was revised.

As discussed in the proposed rule, the fishing year would have been changed from January 1 through December 31 to May 1 through April 30. The commercial fishing season would have changed its start date from beginning on the second Monday in July to begin on May 1. The recreational fishing season would have changed its start date from beginning on the second Friday in July to begin on the second Saturday in July in 2025 and the second Saturday in June in 2026 and beyond. For the recreational fishing season, the proposed rule would have also changed the recreational fishing season from consisting of a Friday, Saturday, and Sunday to be one consisting of a Saturday and Sunday. The proposed rule had a provision changing the recreational fishing season weather flexibility that allows a change to the opening and closing dates from using the threshold of tropical storm or hurricane conditions existing to a threshold of an issued Small Craft Advisory. The proposed rule contained an action to change the commercial trip limit from 75 lb (34 kg), gutted weight, to a trip limit of 150 lb (68 kg), gutted weight. The proposed rule contained an action to establish a discard reduction season for the South Atlantic snapper-grouper recreational sector. The discard reduction season would have created an area where no recreational fisherman could fish for, harvest, or possess any South Atlantic snapper grouper in a specified area off the northeast Florida coast using hook-and-line fishing gear from January 1 through February and from December 1 through December 31. Also, Amendment 59 contained a measure to establish an annual experimental studies program and process to support applicants to undertake research projects to reduce red snapper discards and increase fishing opportunities.

During the public comment period for Amendment 59, the draft EIS, and the proposed rule, the majority of comments received opposed many of the actions, especially all or part of the measure to establish a discard reduction season for snapper-grouper. The preferred alternative for the discard reduction season action proposed establishing a 3 month closure to recreational hook-and-line fishing in Federal waters for any species within the Snapper Grouper FMP from Cape Canaveral, Florida, to the Florida-Georgia border.

The comments regarding the discard reduction season included issues with unfairness of a recreational closure versus a commercial one; that a recreational closure would cause significant economic harm to recreational fishermen, businesses, and their communities; that a closure as proposed would result in an effort shift to fishing inshore; that the closure was based on inaccurate data; that NMFS should not implement a closure without including the Council in the process; that the closure created an unforeseen enforcement burden that was not anticipated; that the proposed closure did not have an adequate economic analysis of impacts; and that the closure would apply to only one South Atlantic state and not any others. The intent of the discard reduction season was to reduce the overall catch of snapper-grouper species in the area and time proposed and thereby contribute to reducing discards of red snapper specifically, and co-occurring snapper-grouper species generally, while increasing fishing opportunities during the red snapper fishing seasons. Currently, 20 of the 55 managed snapper-grouper species are closed and prohibited from harvest during a portion of, or during all of, the proposed discard reduction area 3-month closure. The overall expected benefit of this discard reduction season was to allow for increased ACLs because the overall level of recreational discards would be reduced, thereby allowing for increased fishing opportunities.

However, after the end of the public comment periods for the proposed rule and Amendment 59, NMFS decided to remove these actions from further consideration in the amendment. As discussed above, NMFS decided to remove certain actions based on the following factors: (1) The new red snapper stock assessment (SEDAR 90) beginning this year that will take into account new information about the stock from the results of the SARSRP; (2) taking into account the substantial concerns expressed in the public comments; and (.3) providing the Council the results of the new information from SEDAR 90 and the opportunity to consider other management measures to reduce dead discards and increase red snapper fishing opportunities in a future amendment. NMFS also considered the beneficial and adverse impacts of these actions, particularly the discard reduction season and its associated fishing opportunities, in its decision about which actions to include in Amendment 59 and its final rule. NMFS determined that the actions to revise the fishing year, the commercial and recreational season start dates, the recreational fishing season structure, and the commercial trip limits, and the actions to establish a discard reduction season, and establish an experimental studies program are no longer management measures contained in Amendment 59 and are not being implemented in this final rule.

As a result of the removal of these actions from the amendment, specifically the removal of the discard reduction season from further consideration, the expected reductions in recreational discards proposed in the draft of Amendment 59 and the proposed rule will not be achieved. All of the sector ACL alternatives considered in the draft EIS were based on expected reductions in discards related to the discard reduction season action and alternatives. These alternatives would have increased the ACL from the current ACL due to the expected reduction in discards, and consequently would have allowed for a higher landed portion of the ACL with increased sector ACLs. However, NMFS is no longer implementing a discard reduction season. Therefore, it was necessary for NMFS to revise the preferred alternative in Amendment 59 for the action to revise the red snapper ACLs to include a new alternative with sector ACLs that are slightly reduced from the status quo. Amendment 59 now sets the total ACL equal to the ABC and does not contain a buffer between them. The new total ACL in Amendment 59 is 509,000 fish and not 500,000 fish as was proposed. However, the new sector ACLs are lower because NMFS is no longer implementing a discard reduction season. NMFS determined that the elimination of a buffer between the total ACL and ABC will provide the highest sector ACLs possible while remaining consistent with the results of SEDAR 73 Update Assessment (2024). In this final rule, the new commercial ACL is 102,951 lb (46,698 kg) and not 346,000 lb (156,943 kg) as was proposed, and the recreational ACL is 22,797 fish and not 85,000 fish as was proposed. As noted, the total ACL in this final rule is greater than proposed because the buffer between the ABC and the total ACL is removed to provide the greatest amount of fish to be apportioned to the sectors, but the actual sector ACLs are less than what was proposed given the lack of a reduction in dead discards.

As previously discussed in this final rule, this rule also contains the announcement of the red snapper commercial season opening date and the recreational season opening and closing dates for the 2025 fishing year. The commercial and recreational season lengths for the 2025 fishing year are determined using the revised sector ACLs in this final rule.

NMFS received 523 comments on the notice of availability and proposed rule for Amendment 59. Comments were received from individuals including Congressional representatives, several recreational sportfishing organizations, commercial organizations, a non-governmental organization, the Council, two Council members, and two South Atlantic states. Most of the comments received were in one or more of the following categories: against the actions (especially the proposed discard reduction season); flawed science used to made decisions in Amendment 59; inaccurate data; significant adverse social and economic impacts and inadequate analyses; government overreach by not following the Council process; the need to wait for more data including the new red snapper SEDAR stock assessment, the Council's Management Strategy Evaluation (MSE) project, the SARSRP, and the Florida Fish and Wildlife Conservation Commission (FWC) exempted fishing permit (EFP) processes; and consideration of different management options.

As discussed in the Changes from the Proposed Rule section of this final rule, subsequent to the public comment of the proposed rule and Amendment 59, NMFS decided to remove the actions discussed above. Because these actions have been removed and are not being implemented in this final rule, NMFS is not responding to the public comments specific to the removed actions as they are no longer applicable. NMFS did receive comments from the public in general support of all of the actions not being implemented in this final rule, but they were in the minority of comments received.

NMFS did receive some public comments in general support of Amendment 59 and the proposed rule and NMFS agrees with those as appropriate given the current scope of actions.

Comments specific to the remaining actions in Amendment 59 and the proposed rule are grouped as appropriate and summarized below, each followed by NMFS' respective response.

Comment 1: NMFS is circumventing the Council process with Amendment 59 and will further alienate the public by implementing the amendment. Discard reductions should instead be achieved through the Council process. Despite the Council's ongoing efforts to end overfishing of red snapper, NMFS has proposed action outside the Council process solely based on the outcomes of a lawsuit settlement agreement.

Response: The Magnuson-Stevens Act requires conservation and management measures to prevent overfishing and to end overfishing should it occur. NMFS proposed changes to the management of red snapper through Amendment 59 because the Council, after being notified in July 2021 that it needed to end the overfishing of red snapper, has failed to develop and submit to the Secretary needed conservation and management measures to end and prevent overfishing of the South Atlantic red snapper stock. The amendment and this final rule also respond to the latest stock assessment for red snapper, SEDAR 73 Update Assessment (2024). NMFS is implementing these actions to end overfishing as required by the Magnuson-Stevens Act, and as specified by a settlement agreement between NMFS and the plaintiffs in a lawsuit approved by a U.S. Federal District Court.

NMFS sought public input and comment in numerous ways during the development of this amendment. NMFS published a notice of intent to prepare an EIS on October 9, 2024, with a 30-day public comment period (89 FR 81892). NMFS published the draft EIS on January 17, 2025, with a 45-day public comment period (90 FR 5877). NMFS published the combined notice of availability for Amendment 59 and the proposed rule on January 14, 2025, with a 60-day public comment period (90 FR 3160). In addition, NMFS also held a series of public hearings in Florida, Georgia, South Carolina, and North Carolina, in February and March 2025 to provide more information to the public about the red snapper stock and to solicit public input about the actions in Amendment 59.

As explained above, NMFS is not implementing all of the actions described in the proposed rule. At its March 2025 meeting, the Council decided to initiate an amendment to the Snapper-Grouper FMP to consider options for an aggregate snapper-grouper recreational bag limit and other possible management actions to reduce recreational dead discards.

Comment 2: In Amendment 59, NMFS should only implement Action 1 to revise the red snapper F MSY and the overfishing definition and not proceed with any other actions. The remainder of actions in Amendment 59 fall under the Council's purview and should not be forced upon the Council by NMFS. If NMFS moves forward with Action 1, the Council is the appropriate entity to consider any further modifications to the Snapper-Grouper FMP, including any alternative management strategies to reduce discards of South Atlantic red snapper through the standard and public facing amendment process.

Response: As explained above, NMFS is not implementing all of the actions in the proposed rule, and NMFS disagrees that it should only implement Action 1 of Amendment 59 to revise the red snapper F MSY proxy for defining overfishing and no other actions. In accordance with Magnuson-Stevens Act National Standard 2 (16 U.S.C. 1851(a)(2)), NMFS must also update the ABC and ACL to respond to the most recent and best scientific information available from the most recent stock assessment, the SEDAR 73 Update Assessment (2024). NMFS is implementing the remaining actions in Amendment 59 with the intent to end and prevent overfishing of red snapper, as required by the Magnuson-Stevens Act and pursuant to a settlement agreement between NMFS and the plaintiffs in accordance with a lawsuit approved by a U.S. Federal District Court.

Comment 3: NMFS completed an internal stock assessment for South Atlantic red snapper outside of the traditional SEDAR process that allows independent expert review and public comment.

Response: As previously discussed in this final rule, the SEDAR 73 red snapper stock assessment was completed in 2021 using data through 2019, and using the Beaufort Assessment Model, which is a catch-at age model. SEDAR 73 (2021) was part of the traditional SEDAR process that included independent expert review and public comment. However, for Amendment 59, NMFS determined that it was appropriate to update the SEDAR 73 Assessment (2021) to include more recent data through 2023. The SEDAR 73 Update Assessment (2024) used the same methods that were used in the previous peer-reviewed stock assessment for red snapper SEDAR 73 (2021). Given the need for Amendment 59 to be in place for the 2025 fishing season, the updated assessment was internally peer-reviewed by NMFS Southeast Fisheries Science Center ( e.g., 50 CFR 600.310(f)(3)). NMFS has determined that the SEDAR 73 Update Assessment (2024) and the management measures in this final rule are based on the best scientific information available, in accordance with National Standard 2 of the Magnuson-Stevens Act.

Comment 4: Recreational data is uncertain and the estimated discard mortality rate from the SEDAR 73 Update Assessment (2024) is severely inflated and the stock status information and determination is based on this uncertain data. Some of the NMFS information appears to count all discards as dead discards, which is not correct and significantly overstates the actual discard mortality levels. Relying on surveys or voluntary data collection methods is not the correct way to estimate the fishery population. Amendment 59 is based on notoriously unreliable data from the Marine Recreational Information Program (MRIP), which NMFS has previously estimated to be off by 30-40 percent and as being unsuitable for management use. There is currently no reliable Federal recreational data collection system to accurately determine how significant red snapper recreational discards actually are.

Response: NMFS disagrees, and has determined that the SEDAR 73 Update Assessment (2024) and the management measures in this final rule are based on the best scientific information available. The 2024 Assessment includes estimates of recreational catch, effort, and discards. Recreational catch is estimated through a combination of different state and Federal survey methods, including dockside intercepts of anglers, mail surveys, and logbooks. Estimates of discard mortality rates are based on numerous scientific studies and fishery observer data. Both recreational red snapper catch estimates and discard mortality rates were peer-reviewed during the SEDAR 73 red snapper stock assessment (2021). Additionally, during the recent SEDAR 73 Update Assessment (2024), sensitivity runs were completed that assumed recreational catch was 20 percent and 40 percent less than current estimates of the total recreational catch. Despite these lower estimates of catch, the results of these sensitivity runs are similar to the base stock assessment run. Recreational data also represents only a portion of the data used in a stock assessment. Numerous sources of data, including but not limited to, commercial catch, fishery independent indices, and biological information, are also used in the red snapper stock assessments, including the SEDAR 73 Update Assessment (2024), to determine the red snapper stock status.

The MRIP-FES method is considered more reliable by the Council's Scientific and Statistical Committee (SSC), the Council, and NMFS and more robust when compared to earlier MRIP survey methods. NMFS continues to evaluate and incorporate improvements to its recreational catch and effort data estimation processes (including MRIP). In addition, NMFS is continuing collaborative work on alternative approaches for data gaps caused by imprecise and outlier catch and effort estimates.

In May 2023, NMFS developed a Fishing Effort Survey (FES) pilot studies report that described two studies that identified potential sources of bias in the FES. NMFS is now conducting a large scale study to address the issues identified by the pilot study for (MRIP-FES). The intent is to produce a public report outlining key findings and estimate comparisons in summer 2025 followed by a facilitated peer review of the revised design and updated calibration model, and then determine if a new design will be able to be implemented in 2026. Contingent on the study results and peer review, the anticipated result of this would be to have calibrated historical effort estimates updated to reflect outputs from the revised design in spring 2026 for use in subsequent stock assessments and fisheries management decisions.

Comment 5: NMFS is using an inaccurate conversion of the recreational ACL to numbers of fish. When the proposed recreational ACL was stated in numbers (85,000 fish), it is unclear what conversion factor NMFS has used to calculate that result. In Amendment 59, NMFS uses a recreational average weight from 2021- 2023 of 11.085 lb (5.028 kg)/fish, presumably for landings. But this does not correspond to 85,000 fish. It is unclear why NMFS will use a hindcast weight-per-fish value from past years, when the projections provide a forward-looking conversion value that corresponds to the underlying quantities of fish that are being manipulated. It appears NMFS is overstating the amount of landings—in numbers of fish—that are available to the recreational sector.

Response: NMFS has explained above that the recreational ACL of 85,000 fish is not being implemented in this final rule, as that ACL was connected to a discard reduction action that is no longer being considered in Amendment 59. However, NMFS did not use the 2021-23 average recreational weight in determining the 85,000 fish recreational ACL. As dead discards are reduced and the landed recreational ACL is correspondingly increased, the average weight of landed catch is estimated to decline. Thus, the estimated average weight for landed red snapper based on an ACL of 85,000 fish is 8.840 lb (4.010 kg)/fish.

Comment 6: NMFS is inaccurately depicting the recreational landings component of the red snapper total ACL as the landings component (139,000 fish) appears misleading and overstates the amount of available catch in at least two ways. The total ACL should only represent landings and it is not accurate to say that 139,000 fish are available to be landed, when only 71,000 of those fish are actual “landed” fish and the remainder are “dead discard” fish from the proposed time and area closure, for which the unit weight is less than half of a landed fish. Both sectors will be landing, as described in Amendment 59 projections, fish with an average weight of 12.79 lb (5.80 kg)/fish for the years 2025-2027. For example, it appears that if 139,000 fish are available to be landed per year, and the average weight of a landed fish is expected to be 12.79 lb (5.80 kg)/fish, then around 1,778,000 lb (806,487 kg) of red snapper are available to be landed each year. This is far in excess of the actual available amount.

Response: NMFS disagrees that the amount of fish that can be landed is overstated in Amendment 59. If dead discards would have been reduced by 24 percent as was initially proposed in the Amendment 59 proposed rule, then the landed portion of the ACL would have been increased from 71,000 to 139,000 fish. Additionally, as discussed above, the average weight of landed catch is estimated to decline as dead discards are reduced and the landed recreational ACL is correspondingly increased. The average weight of landed fish is not expected to be 12.79 lb (5.80 kg)/fish if less fish are discarded dead and more fish are landed. NMFS has determined that the total ACL and the sector ACLs in this final rule and Amendment 59 are accurately described, both in terms of landed fish (34,000 fish) and in consideration of dead discards (475,000 fish) and that the average fish weights used in Amendment 59 are an accurate calculation.

Comment 7: NMFS excluded data from Florida's State Reef Fish Survey (SRFS) in the SEDAR 73 Update Assessment (2024). Florida's SRFS is more precise and does not rely on MRIP-FES which is flawed. Also, it is irresponsible not to include SRFS data as 87 percent of the recreational proportion of red snapper discards by state (2021-2023) come from Florida.

Response: The SEDAR 73 (2021) and SEDAR 73 Update Assessment (2024), and the management measures in this final rule are based on the best scientific information available. The SRFS expanded to the east coast of Florida in July 2020 and was not considered as part of the SEDAR 73 (2021) assessment. Consequently, NMFS did not consider SRFS data in the SEDAR 73 Update Assessment (2024) since the update followed the same methodology used in SEDAR 73 (2021) and only updated landings data through 2023. However, Florida's East Coast Red Snapper (ECRS) Survey results were incorporated into both SEDAR 73 (2021) and the SEDAR 73 Update Assessment (2024). The survey estimates landings from the recreational sector during the red snapper season openings off Florida.

Comment 8. The information used by NMFS in Amendment 59 is flawed and, therefore, the resulting mortality estimates, catch limits, and proposed regulations are not using the best scientific information available. The stock assessment did not fully utilize current descending device and venting practices. The amendment appears to consider all discards as dead discards, which is not correct and significantly overstates the actual discard mortality. This results in inaccurate catch limits and the incorrect belief red snapper are overfished. Yet while fishery observers did not record witnessing any dead discards, the SEDAR 73 Update Assessment (2024) concludes the red snapper discard mortality is at least 28 percent. The red snapper discard mortality rate in SEDAR 73 Update Assessment (2024) is inaccurate. The mortality estimates used to inform Amendment 59 were determined from a model using Gulf of America information for groupers.

Response: NMFS disagrees, and has determined that the SEDAR 73 Update Assessment (2024) is the best scientific information available, and includes data through 2023. When estimating dead discard mortality rates, the stock assessment incorporates changes in fishing gear types used and the increasing use of descending devices over time. Evaluation of the red snapper stock status relies on the mortality associated with both landed catch and dead discards, and there are clear distinctions between discarded fish that survive or fish that die from release. The discard mortality rates for South Atlantic red snapper used in South Atlantic red snapper stock assessments, including the SEDAR 73 Update Assessment (2024), are based on studies and research conducted in the South Atlantic, and are not based on a model that was developed for Gulf of America groupers.

Comment 9: NMFS should not take action through Amendment 59 until updated research and more reliable information through the new red snapper stock assessment, the MSE, the South Atlantic Great Red Snapper Count, and the FWC EFP processes are completed. The EFPs could also provide improved discard mortality data, enhanced effort assessments, and alternative management strategies that may allow for less restrictive regulations to be implemented. Waiting for the results of these actions will also present a clearer picture of red snapper stock health and confirm the condition of the population status.

Response: NMFS has explained previously why five of the eight actions proposed in the draft EIS for Amendment 59 are no longer being considered, and why the three remaining actions are being implemented in this final rule. NMFS acknowledges the multiple future sources of potential additional data and information and expects the results of these experimental projects, plus the congressionally-funded SARSRP, and other surveys to provide valuable insights into ways to improve management of red snapper and all snapper-grouper species. However, these studies will not be completed by June 6, 2025. NMFS must end the overfishing of red snapper and submit this final rule to end the overfishing to the Federal Register by June 6, 2025, due to a court settlement. In addition, NMFS was able to update the most recent red snapper assessment in 2024 and the assessment and the current rulemaking are based on the best scientific information available.

In 2024, NMFS provided funding support for 5 research projects, of which 3 were FWC EFPs, which aim to identify and test new strategies to improve the status of red snapper and test innovative ways to increase fishing opportunities in the snapper-grouper fishery. The SARSRP project is being done in collaboration with several university scientists, NMFS, and state fisheries agencies from North Carolina, South Carolina, Georgia, and Florida. The program will provide two different types of abundance estimates that are being investigated for optimal use within the next South Atlantic red snapper stock assessment. In addition, the first round of the Council's MSE process is complete and the Council is continuing development of an MSE for the snapper-grouper fishery to evaluate management alternatives.

Comment 10: Removing the designation that red snapper is undergoing overfishing while at the same time prohibiting access to the stock is counterintuitive. Because the red snapper population is rebuilding, NMFS should redefine overfishing to exclude when the stock is clearly recovering in the recreational sector. The proposed MSY proxy change is improper and counter to the Council's SSC advice. The proposed revision to the MSY proxy is unclear, violates statutory rebuilding requirements under the Magnuson-Stevens Act, and artificially ends overfishing of the red snapper stock.

Response: NMFS disagrees. The National Standard 1 guidelines discuss overfishing and note that overfishing occurs whenever a stock or stock complex is subjected to a level of fishing mortality or total catch that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis. Amendment 59 proposes to revise the red snapper overfishing proxy to a more flexible definition that reflects the best scientific information available. Amendment 59 will specify the F MSY proxy as the fishing mortality rate consistent with maintaining the existing rebuilding plan adopted in Amendment 17A to the Snapper-Grouper FMP (75 FR 76874, December 9, 2010). Projection results from the SEDAR 73 Update Assessment (2024) indicate this level of fishing mortality combined with recent, above-average recruitment will keep the stock on track to rebuild, thus not jeopardizing the stock's ability to rebuild and produce MSY.

Since implementing the rebuilding plan for red snapper in 2010, fishing mortality has exceeded the Council's recommended maximum fishing mortality threshold (MFMT) of F 30 % SPR in every year except one (2013). Despite MFMT being exceeded, the stock is rebuilding on schedule, and in fact is slightly ahead of schedule. Spawning stock biomass (SSB) in 2024 was at 78 percent of the SSB associated with achieving MSY, whereas the Amendment 17A rebuilding plan predicted SSB to be at 74 percent in 2024. Although NMFS has determined that the stock is no longer undergoing overfishing, it is not yet rebuilt and will continue to be managed subject to its rebuilding plan, and new management measures should not create additional risk of achieving the rebuilding timeline.

Comment 11: Setting the MSY proxy at F 2021-2023 will enshrine overfishing and the proposed MSY proxy will need to be changed in a few years.

Response: The MSY proxy for overfishing is not F 2021-2023 , but rather the fishing mortality consistent with maintaining rebuilding the stock under the existing rebuilding plan adopted in Amendment 17A to the Snapper-Grouper FMP. NMFS has clarified how the proxy is described in Amendment 59 to address this comment. Specifying the MSY proxy as the fishing mortality consistent with maintaining the existing rebuilding plan will not enshrine overfishing. Rather, this level of fishing mortality allows for continued rebuilding progress consistent with achieving MSY. The definition of the overfishing proxy also provides flexibility and can be changed in the future based on the availability of new data that is also the best scientific information available. As stated in Amendment 59, this proxy will be used until at least the next red snapper assessment is completed in 2026.

Comment 12: The MSY proxy must be adjusted after these red snapper current productive juvenile-year classes mature in a few years. The SEDAR 73 Update Assessment (2024) states that under the proposed scenario, the stock will never rebuild to the target biomass proxy if recruitment does not remain optimistically high. The Council's SSC determined that there is no apparent stock-recruitment relationship, and there is not the ability to predict future recruitment, indicating that there is a high degree of uncertainty in any assumption made regarding future recruitment.

Response: The average recruitment for South Atlantic red snapper in the last 10 years has been substantially higher than long-term average recruitment, and the short-term projections through 2028 indicate the stock will continue to rebuild consistent with the Amendment 17A rebuilding plan. If recruitment increases or decreases in the future, NMFS, with the advice of the Council will have the flexibility to modify the overfishing limit as necessary, and the relevant ABC and ACLs may be revised to ensure overfishing is prevented and stock rebuilding remains on schedule. Despite the high degree of recruitment uncertainty as noted in the comment, red snapper have been very resilient and experienced very high levels of recruits entering the fishery in recent years. This has reinforced the size of the stock and led to the stock no longer being classified as overfished, though not yet rebuilt.

Comment 13: Amendment 59 and the proposed rule is unclear on the distinction between Fcurrent and F 2021-2023 , yet both are flawed. Amendment 59 and the proposed rule's language suggests that Fcurrent is interchangeable with F 2021-2023 and should be revised to clarify this distinction.

Response: NMFS clarified the language in Amendment 59 and this final rule regarding usage of Fcurrent and F 2021-2023 . As clarified, Fcurrent from the SEDAR 73 Update Assessment (2024) is the most recent 3-year average fishing mortality rate and is equivalent to F 2021-2023 . Amendment 59 specifies the F MSY proxy as the fishing mortality rate consistent with maintaining the existing rebuilding plan adopted in Amendment 17A to the Snapper-Grouper FMP, which corresponds with current fishing mortality rates. It is a flexible definition that can be changed over time as new science becomes available, as long as it is determined to be the best scientific information available.

Comment 14: Are the red snapper landed from Florida state waters counted in the red snapper ABC as described in Amendment 59?

Response: Florida has both commercial and recreational fishing for red snapper in its state waters. Landings caught in Florida state waters off the east coast of Florida were included in the SEDAR 73 Update Assessment (2024) for determining the new ABC.

Comment 15: No other South Atlantic fishery separates landed fish versus those fish assumed to be discarded dead to propose establishing a de facto ACL for red snapper for each estimated removal component is unprecedented, inherently difficult, and inappropriate. Discard estimates are an estimate of an estimate, and with the current challenges of MRIP to accurately estimate landed catch currently being investigated by NMFS, applying a catch limit for discards that are estimated from MRIP information will produce an ACL value with exceptionally low confidence and subject to large variability. The ABC for South Atlantic red snapper should continue to be set in a singular whole number. In Amendment 59, NMFS has taken a new and different approach in setting the ACLs and decided that discards, which are self-reported and unvalidated, should be included with landed fish as part of the ACL. NMFS has only applied this method for including discards as part of the ACL for South Atlantic red snapper.

Response: NMFS is not proposing to establish a de facto red snapper ACL for both landings and dead discards, particularly for the sector ACLs. Amendment 59 establishes an ABC that is expressed in terms of total catch. The Magnuson-Stevens Act National Standard 1 Guidelines allow an ABC to be expressed in terms of catch, and provide that ACLs cannot exceed the ABC. Although it is correct that no other South Atlantic fisheries include total removals when setting ACLs, this is an approach NMFS uses in other U.S. regions and which allows NMFS and stakeholders an opportunity to better understand the tradeoffs between reducing dead discards and increases in the ACL. Amendment 59 specifies an ACL in total catch (landings and discards), but as with other Snapper Grouper FMP species, this final rule specifies only the sector's landed ACL for management purposes and in the regulatory text of this final rule.

Comment 16: NMFS should propose different ACLs. Both the commercial and recreational sectors are in need of increased ACLs to improve access to red snapper. The proposed ACL increases are too large and can only occur if accompanied by the snapper-grouper discard reduction season that was proposed.

Response: NMFS has developed a new preferred ACL alternative in Amendment 59 that is being implemented in this final rule. The proposed rule contained eight actions, and NMFS removed five actions from further consideration that were in the proposed rule, draft amendment, and draft EIS, including the action that would have implemented a discard reduction season (see Changes from the Proposed Rule). Subsequent to the end of the public comment periods, NMFS added a new preferred ACL alternative to Action 3 in Amendment 59 that was not in the draft EIS or proposed rule. The new ACL alternative is also based on the results of the SEDAR 73 Update Assessment (2024), but is not dependent on a specific reduction in the level of dead discards, as was expected to have resulted from the proposed snapper-grouper discard reduction season action. The new ACL preferred alternative sets the total ACL for red snapper equal to the ABC of 509,000 fish. The total ACL of 509,000 fish includes 34,000 fish (landings) and 475,000 fish (dead discards). Retaining the current red snapper sector allocation percentages of 28.07 percent for the commercial sector and 71.93 percent for the recreational sector, the new commercial ACL is 102,951 lb (46,698 kg), and the recreational ACL is 22,797 fish (equivalent to 263,815 lb (119,664 kg)).

The most recent stock assessment for red snapper is the SEDAR 73 Update Assessment (2024), using data through 2023, indicated that the South Atlantic red snapper stock was not overfished and overfishing was occurring, but that the stock was rebuilding (though not yet rebuilt). Despite the overfishing determination, the assessment indicated substantial increases in stock abundance and recruitment, as well as total biomass and spawning biomass. In Amendment 59, for red snapper NMFS is modifying the OFL, ABC, and the total, commercial, and recreational ACLs in response to the latest stock assessment.

Comment 17: In the regulatory text of the Amendment 59 proposed rule, only the red snapper sector ACLs are codified and the total ACL is not. The proposed rule's regulatory text provides management measures (such as, a seasonal closure) intended to create accountability to the sector ACLs, but there are no measures serving to create accountability or constrain catch to the total ACL. Given this, in Amendment 59 the total ACL cannot be considered as an ACL as defined at 16 U.S.C. 1853(a)(15). To be consistent with the statute, the total ACL will have to function as a limit on catch but in Amendment 59 it does not. If NMFS intends the total ACL to actually be an ACL within the meaning of the statute, then specific management measures need to be in place to ensure total catch (landings and dead discards combined) does not exceed the total ACL. If NMFS does not intend the total ACL to be an ACL within the meaning of the statute, then NMFS should explicitly state that and rename the value since referring to it as an ACL is incorrect and creates confusion.

Response: NMFS disagrees that the total ACL as described in this final rule and Amendment 59 should not be referred to as an ACL and that the red snapper ACLs do not serve as a measure to constrain the catch. While the total ACL of 509,000 fish represents both landed catch (34,000 fish) and dead discards (475,000 fish), the sector ACLs only represent landed catch. In-season monitoring of the sectors is based on landed catch and any in-season closure or length of a sector's fishing season is based on landings and not the discard estimates that are included as part of the total ACL and ABC. Each sector has an ACL representing landed catch and each sector's AM serves to constrain catch to their respective ACL. In addition, while 16 U.S.C. 1853(a)(15) requires the establishment of ACLs to prevent overfishing and ensure accountability, this provision does not preclude the use of sector ACLs to ensure these requirements.

Comment 18: In 2024, reduction of the red snapper recreational fishing season to a single day created serious safety concerns on the water, as highlighted by both the Florida Fish and Wildlife Commission and the U.S. Coast Guard comments to the Council after the season about safety concerns with the 1-day season.

Response: NMFS is aware of public comments to the Council regarding concerns about a short recreational fishing season for red snapper. As discussed previously in this final rule, the length of the recreational season serves as the AM for the sector. NMFS determines the length of the recreational season based on the revised recreational ACL in this final rule and when it is projected to be met. Also, NMFS may modify the opening and closing dates of the fishing season if tropical storm or hurricane conditions exist, or are projected to exist, in the South Atlantic, during a commercial or recreational fishing season.

NMFS notes that the decision of whether a not a vessel trip should be taken, based on weather conditions, vessel condition, or other factors, is ultimately the decision of the vessel operator. No vessel will be forced to participate in any South Atlantic fisheries under weather or ocean conditions an operator determines to be unsuitable as a result of the management regulations as contained in Amendment 59 or this final rule.

Comment 19: Saltwater commercial and recreational fishing contribute billions of dollars annually to Florida's economy and Amendment 59 and the proposed rule will dramatically reduce business activity associated with fishing and tourism and affect millions of dollars in revenue for the State of Florida.

Response: NMFS understands that the actions considered in the draft EIS for Amendment 59 and the proposed rule, namely the recreational discard reduction season and closed area, would have had the potential to reduce commercial and for-hire business revenue and business activity in nearshore Florida communities, and as a result, reduce the sales and revenue generated for the state of Florida. However, this final rule will not implement a discard reduction season and closed area for the recreational sector. This final rule will reduce the red snapper commercial and recreational ACLs; however, the economic effects are expected to be much lower than those associated with the proposed rule and will likely not have a substantial impact on revenue for the state of Florida or the solvency of individual businesses.

Comment 20: Headboat businesses will not increase prices to individuals for a headboat trip or generate additional revenue as a result of a longer recreational fishing season for red snapper and so the benefits of the proposed red snapper recreational ACL are inflated and should not be used to offset the costs of the discard reduction season and closed area that was contained in the proposed rule.

Response: In Amendment 59, NMFS presented lower and upper bound net economic benefit estimates that reflected the uncertainty in how demand for headboat trips and resultant net revenue will change. NMFS assumes the true change in headboat trips and net revenue will likely fall somewhere between the lower and upper bound estimates, based on the highly prized nature of red snapper. This final rule will no longer implement a discard reduction season and closed area, nor will it increase the red snapper recreational ACL; however, NMFS has considered the range of potential economic effects that the new, lower recreational ACL will have on headboat businesses in Amendment 59 and presented the upper bound cost estimate in the Classification section of this final rule.

Pursuant to section 305(c)(7) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 59, the Snapper-Grouper FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule is not an Executive Order 14192 regulatory action because this action is not significant under Executive Order 12866.

NMFS has determined that this action would not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes; therefore, consultation with Tribal officials under E.O. 13175 is not required, and the requirements of sections (5)(b) and (5)(c) of E.O. 13175 also do not apply. A Tribal summary impact statement under section (5)(b)(2)(B) and section (5)(c)(2)(B) of E.O. 13175 is not required and has not been prepared.

A final regulatory flexibility analysis (FRFA) was prepared, as required by section 604 of the RFA (5 U.S.C. 604). The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows. All monetary estimates in the following analysis are in 2023 dollars.

The Magnuson-Stevens Act provides the statutory basis for this final rule. A description of this final rule, why it is being implemented, and the purpose of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule. Public comments specific to the IRFA were received by NMFS. These comments contested that NMFS failed to include the economic impacts on recreational anglers and shoreside fishing support businesses in the IRFA, and thus violated the RFA. NMFS acknowledges that the proposed red snapper recreational discard reduction season and closed area would be impactful to these groups; however, NMFS disagrees that their exclusion from the IRFA violates the RFA. The RFA requires NMFS to describe the impact of the proposed rule on small entities (5 U.S.C. 603). Small entities include small businesses, small organizations, and small governmental jurisdictions (5 U.S.C. 601(6) and 601(3)-(5)). Recreational anglers are not businesses, organizations, or governmental jurisdictions, so they are outside the scope of such analysis. Additionally, the RFA and NMFS guidance require an IRFA to address the effects of a proposed rule only on entities subject to the regulation ( i.e., entities to which the rule will directly apply) and not on all entities that are affected by the regulation ( i.e., entities to which the rule will indirectly apply). NMFS agrees that it is prudent to consider Amendment 59's impacts on recreational anglers and indirectly affected businesses. The analyses conducted in Amendment 59 to satisfy the National Environmental Policy Act and the Magnuson-Stevens Act requirements and in the Regulatory Impact Review to satisfy the requirements of Executive Order 12866 provide such consideration by detailing the expected economic effects on recreational anglers resulting from Amendment 59. However, NMFS agrees, as suggested by public comments, that these documents would have benefited from a more thorough discussion of the impacts to local fishing support businesses and regional business activity, to the extent practicable. Partially based on a review of the comments specific to the IRFA and other general public comments (see SUPPLEMENTARY INFORMATION section), NMFS decided to remove the actions for red snapper to revise the fishing year, the commercial and recreational season start dates, the recreational fishing season structure, and the commercial trip limits, and for snapper-grouper to establish a recreational discard reduction season from further consideration in the amendment and this final rule. No comments were received from the Office of Advocacy for the Small Business Administration.

This final rule decreases the South Atlantic red snapper commercial and recreational landed-catch ACLs based on the new total ACL of 509,000 fish set in Amendment 59 (34,000 fish as landings and 475,000 fish as dead discards) using existing sector allocations. The commercial ACL will be reduced from 124,815 lb (56,615 kg) to 102,951 lb (46,698 kg) and the recreational ACL will be reduced from 29,656 fish to 22,797 fish. This rule will apply to all commercial fishing businesses, recreational fishers (anglers), and for-hire fishing businesses (charter vessels and headboats) that fish for red snapper in Federal waters of the South Atlantic. None of the measures in this final rule will directly apply to federally-permitted dealers. Any change in the supply of red snapper available for purchase by dealers as a result of this final rule, and associated economic effects, would be an indirect effect of this final rule and would therefore fall outside the scope of the RFA.

A valid South Atlantic snapper-grouper unlimited permit (SG1) or 225-lb Trip-limited permit (SG2) is required in order to legally harvest red snapper commercially in the South Atlantic. At the end of 2020, 535 vessels possessed a valid commercial South Atlantic SG1 permit, and 104 vessels possessed a valid SG2 permit. From 2016 through 2020, an average of 660 commercial vessels possessed one of these permits each year. NMFS does not possess complete ownership data regarding businesses that harvest South Atlantic red snapper. Therefore, it is not currently feasible to accurately determine affiliations between commercial fishing vessels and the businesses that own them. As a result, for purposes of this analysis, NMFS assumes each commercial fishing vessel is independently owned by a single business, which is expected to result in an overestimate of the actual number of commercial fishing businesses regulated by this regulatory action. Thus, this analysis assumes that 660 commercial fishing businesses will be regulated by this final rule.

This final rule will also regulate and directly affect recreational anglers and for-hire fishing businesses. Again, the RFA does not consider recreational anglers to be entities, so they are outside the scope of this analysis (5 U.S.C. 603). Small entities include small businesses, small organizations, and small governmental jurisdictions (5 U.S.C. 601(6) and 601(3)-(5)). Recreational anglers are not businesses, organizations, or governmental jurisdictions.

A valid charter vessel/headboat South Atlantic snapper-grouper vessel permit is required in order for for-hire vessels to legally harvest snapper-grouper species in the South Atlantic. NMFS does not possess complete ownership data regarding vessels that hold charter vessel/headboat South Atlantic snapper-grouper vessel permits, and thus potentially harvest snappers or groupers. Therefore, it is not currently feasible to accurately determine affiliations between these vessels and the businesses that own them. As a result, for purposes of this analysis, NMFS assumes each for-hire vessel is independently owned by a single business, which is expected to result in an overestimate of the actual number of for-hire fishing businesses regulated by this final rule. Further, NMFS also does not currently possess data on the number of for-hire fishing vessels that harvest or target South Atlantic red snapper or snapper and grouper species in general. However, from 2016 through 2020, the average number of for-hire fishing vessels with charter vessel/headboat South Atlantic snapper-grouper vessel permits was 2,059. Because these permits are open access and thus not limited, this analysis assumes that as many as 2,059 for-hire fishing businesses could be directly regulated by this final rule.

On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates). From 2019 through 2023, the maximum annual gross revenue earned by a single commercial snapper-grouper vessel was approximately $457,418, while the average annual gross revenue for a vessel commercially harvesting red snapper in the South Atlantic was $70,028. Based on this information, all commercial fishing businesses directly regulated by this final rule are determined to be small entities for the purpose of this analysis.

For other industries, the Small Business Administration has established size standards for all major industry sectors in the U.S., including for-hire businesses (NAICS code 487210). A business primarily involved in for-hire fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has annual receipts (revenue) not in excess of $14 million for all its affiliated operations worldwide. The average annual gross revenue for a headboat in the South Atlantic is estimated at $355,255, based on data from 2017. The average annual charter vessel gross revenue is estimated at $146,438, based on data from 2009. Information on the maximum annual gross revenue earned by an individual headboat or charter vessel is not available; however, NMFS assumes that no such businesses earned in excess of $14 million. Based on this information, all for-hire fishing businesses regulated by this final rule are determined to be small businesses for the purpose of this analysis.

On average from 2019 through 2023, there were 192 federally-permitted commercial vessels with reported landings of red snapper in the South Atlantic. Their average annual vessel-level gross revenue from all species for 2019 through 2023 was $70,028 and red snapper accounted for approximately six percent of this revenue. For commercial vessels that harvest red snapper in the South Atlantic, NMFS estimates that economic profits are approximately eight percent of annual gross revenue, on average, or $5,602 per vessel per year. This final rule will reduce the commercial ACL from 124,815 lb (56,615 kg) to 102,951 lb (46,698 kg). This is expected to reduce commercial landings by 21,864 lb (9,917 kg) per year, worth an estimated $136,896. Average annual gross revenue and economic profits per affected commercial fishing business are expected to decrease by approximately one percent or $713 and $57, respectively.

For the average South Atlantic charter vessel, annual gross revenue is estimated to be approximately $146,438. For the average South Atlantic headboat, annual gross revenue is estimated to be approximately $355,255. This final rule will reduce the recreational ACL from 29,656 fish to 22,797 fish. If current relative sector usage persists, the decrease of 6,859 fish to the red snapper recreational ACL is expected to decrease the number of targeted for-hire angler trips. In the long-term, factors of production, such as labor and capital, can be used elsewhere in the economy, and so only short-term changes to economic profits are expected. In the South Atlantic, headboat trips take a diverse set of anglers on a single vessel, generally advertising a diverse range of species to be caught. Therefore, economic profits for headboats are estimated separately from charter vessels. The expected decrease in directed red snapper recreational angler trips is expected to decrease net revenue for charter vessels and headboats by up to $31,574 and $37,048, respectively, per year on average. The estimates will depend on how many fewer for-hire trips are booked as a result of the decreased red snapper recreational ACL and corresponding recreational fishing season length. Given that there are approximately 2,059 for-hire fishing businesses that are eligible to recreationally harvest South Atlantic red snapper each year and 61 of those are considered headboat businesses, the average decrease in annual net revenue per charter and headboat business is approximately $16 and $607, respectively. Because not all permitted charter vessels may be active and many permitted charter vessels fish in areas where red snapper are less abundant ( e.g., southeast Florida), the change in net revenue per active charter vessel is likely underestimated and may be greater than presented here.

Four alternatives, including the status quo, were considered for the action to specify a total red snapper ACL of 509,000 fish, with a commercial ACL of 102,951 lb (46,698 kg) and a recreational ACL of 22,797 fish.

The status quo alternative would have retained the total ACL equal to 42,510 fish, with a commercial ACL equal to 124,815 lb (56,615 kg), and a recreational ACL of 29,656 fish, and with the total ACL based on landings only. The status quo total ACL of 42,510 fish was specified in the final rule for Amendment 43 to the Snapper-Grouper FMP and is based on the landings observed during the limited red snapper season in 2014. Under the status quo ACL, no changes in landings, effort, or direct economic effects would have been expected on any small entities. The status quo ACL is based on outdated data that no longer represents the best scientific information available, and thus was not selected as preferred.

The second alternative would have reduced dead discards 16 percent from the baseline and used this discard reduction achievement to increase the total ACL to 505,000 fish. The commercial and recreational South Atlantic red snapper sector ACLs would equal 300,000 lb (136,078 kg) and 64,000 fish respectively. The second alternative would have resulted in approximately $1.23 million more total ex-vessel revenue for the commercial sector and approximately $412,000 more total net revenue for the for-hire component of the recreational sector compared to the ACLs specified in this final rule. This alternative was not selected because, although it would increase red snapper ACLs and harvest opportunities relative to this final rule, it would require a 16 percent reduction in dead discards. Specific discard reduction seasons for all snapper grouper species were considered for the recreational sector at the proposed rule stage to achieve this red snapper discard reduction; however, because new stock assessment information will be available soon, and taking the substantial concerns expressed in the public comments into account, NMFS decided to remove discard reductions seasons from further consideration. This will afford the Council another opportunity to consider other management measures to reduce dead discards and increase red snapper fishing opportunities in a future amendment.

The third alternative would have reduced dead discards 24 percent from the baseline and used this discard reduction achievement to increase the total ACL to 500,000 fish. The commercial and recreational South Atlantic red snapper sector ACLs would equal 346,000 lb (156,943 kg) and 85,000 fish respectively. The third alternative would have resulted in approximately $1.5 million more total ex-vessel revenue for the commercial sector and approximately $622,000 more total net revenue for the for-hire component of the recreational sector compared to the ACLs specified in this final rule. This alternative was not selected because, although it would increase red snapper ACLs and harvest opportunities relative to this final rule, it would require a 24 percent reduction in dead discards. Specific discard reduction seasons for all snapper grouper species were considered for the recreational sector at the proposed rule stage to achieve this red snapper discard reduction; however, because new stock assessment information will be available soon, and taking the substantial concerns expressed in the public comments into account, NMFS decided to remove discard reductions seasons from further consideration. This will afford the Council another opportunity to consider other management measures to reduce dead discards and increase red snapper fishing opportunities in a future amendment.

The fourth alternative would have reduced dead discards 32 percent from the baseline and used this discard reduction achievement to increase the total ACL to 496,000 fish. The commercial and recreational South Atlantic red snapper sector ACLs would equal 390,000 lb (176,901 kg) and 105,000 fish respectively. The third alternative would have resulted in approximately $1.8 million more total ex-vessel revenue for the commercial sector and approximately $822,000 more total net revenue for the for-hire component of the recreational sector compared to the ACLs specified in this final rule. This alternative was not selected because, although it would increase red snapper ACLs and harvest opportunities relative to this final rule, it would require a 32 percent reduction in dead discards. Specific discard reduction seasons for all snapper grouper species were considered for the recreational sector at the proposed rule stage to achieve this red snapper discard reduction; however, because new stock assessment information will be available soon, and taking the substantial concerns expressed in the public comments into account, NMFS decided to remove discard reductions seasons from further consideration. This will afford the Council another opportunity to consider other management measures to reduce dead discards and increase red snapper fishing opportunities in a future amendment.

NMFS notes that this final rule will announce the red snapper commercial season opening date and the recreational season opening and closing dates for the 2025 fishing year (see DATES ) in accordance with the new commercial and recreational ACLs specified in this final rule. The economic effects of the reduction in sector ACLs on small entities, which will be realized through the commercial and recreational fishing seasons, are described earlier and no additional economic effects are anticipated as a result of this component of the final rule.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a fishery bulletin to permit holders that also serves as a small entity compliance guide was prepared. This final rule and the guide ( i.e., bulletin) will be available on the Southeast Regional Office website (see ADDRESSES ). Hard copies of the guide and this final rule will be available upon request (see ADDRESSES ).

No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting or recordkeeping compliance requirements are introduced in this final rule.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS amends 50 CFR part 622 as follows: