Federal Register Vol. 81, No.99,

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model MYSTERE-FALCON 900 airplanes, FALCON 900EX airplanes, and FALCON 2000EX airplanes. The NPRM published in the Federal Register on January 13, 2016 (81 FR 1580) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0005, dated January 14, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model MYSTERE-FALCON 900 airplanes, FALCON 900EX airplanes, and FALCON 2000EX airplanes. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We have revised paragraph (g) of this AD to remove “table 1 to paragraph (g) of this AD” regarding the use of the applicable AFM change. This change is necessary because the AFM materials specified in the proposed AD do not meet the requirements for approval of incorporation by reference by the Office of the Federal Register. Therefore, operators must contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, for information regarding the use of the applicable AFM change for revising the normal procedures and limitations sections of the AFM, as applicable, to include new yaw damper procedures.

We estimate that this AD affects 284 airplanes of U.S. registry.

We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $24,140, or $85 per product.

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

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

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

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

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

An electronic copy of this document may be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at: http://www.gpoaccess.gov/nara.

This rulemaking makes technical corrections to the regulations that govern policies and procedures relating to the enforcement of the Heavy Vehicle Use Tax found at 23 CFR part 669. In the final rule published in the Federal Register on July 26, 2010 (75 FR 43409), FHWA referenced 23 U.S.C. 104(b)(4) in 23 CFR 669.13 and 669.19, which at that time governed the effect of failure to certify or to adequately obtain proof-of-payment and the reservation and reapportionment of funds. Section 1404(d)(2) of MAP-21 (PL 112-141), enacted in 2012, amended that section and inserted revised language governing the Heavy Vehicle Use Tax at 23 U.S.C. 104(b)(1). As a result of the language in MAP-21, the penalty for States for non-compliance with the proof of payment requirements of the Federal Heavy Vehicle Use Tax at the time of State registration was amended. The penalty computation was amended by statute to eight percent of the amount apportioned in any fiscal year beginning after September 30, 1984 (23 U.S.C. 104(b)(1)) as was reference to the amended portion of the statute at section 104(b)(1).

However, the regulations in 23 CFR part 669 have several references to the old statute at 23 U.S.C. 104(b)(4) and also suggest the penalty is 25 percent rather than 8 percent. As such, references in 23 CFR 669.13 and 669.19 to 23 U.S.C. 104(b)(4) cause confusion. These amendments will direct readers of 23 CFR 669 to the proper section of 23 U.S.C.

Finally, the authority citation for part 669 will be updated to reflect ministerial changes in the numbering of FHWA delegations of authority made with the publication of the final rule on Organization and Delegation of Powers and Duties on August 17, 2012 (77 FR 49964, 49981). The current regulation cites authority contained in 49 CFR 1.48. The location of those sections describing delegations to the Federal Highway Administrator are now found at 49 CFR 1.85.

The 2012 change in location within the CFR is ministerial in nature and pertains to DOT management and organization. Amendment of the section identifying the authority for part 669 will direct readers to the proper section of 49 CFR.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. The FHWA finds that notice and comment for this rule is unnecessary and contrary to the public interest because it will have no substantive impact, is technical in nature, and relates only to management, organization, procedure, and practice. The amendments to the rule are based upon the explicit language of statutes that were enacted subsequent to the promulgation of the rule. The FHWA does not anticipate receiving meaningful comments on it. State and local governments rely upon the regulations corrected by this action. These corrections will reduce confusion for these entities and should not be unnecessarily delayed. Accordingly, for the reasons listed above, FHWA finds good cause under 5 U.S.C. 553(b)(3)(B) to waive notice and opportunity for comment.

The FHWA has determined that this final rule is not a significant regulatory action within the meaning of Executive Orders 12866 or significant within the meaning of DOT regulatory policies and procedures. This action complies with Executive Orders 12866 and 13563 to improve regulation. It is anticipated that the economic impact of this rulemaking will be minimal. This final rule only makes minor corrections that will not alter the regulatory effect of 23 CFR 669. Thus, the final rule will not adversely affect, in a material way, any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354), FHWA has evaluated the effects of this action on small entities and has determined that the action will not have a significant economic impact on a substantial number of small entities. The final rule will not make any substantive changes to our regulations or in the way that our regulations affect small entities; it merely corrects technical errors. For this reason, FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This final rule does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This final rule does not impose any requirements on State, local, or tribal governments, or the private sector and, thus, will not require those entities to expend any funds.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. The FHWA has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this final rule does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to these programs.

This final rule does not create any new information collection requirements for which submission to the Office of Management and Budget would be needed under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

The FHWA has analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action will not have any effect on the quality of the environment.

The FHWA has analyzed this final rule under Executive Order 13175. The FHWA concluded that the final rule will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal government; and will not preempt tribal law. There are no requirements set forth in the final rule that directly affect one or more Indian tribes. Therefore, a tribal summary impact statement is not required.

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

Under Executive Order 13045 this final rule is not economically significant and does not involve an environmental risk to health and safety that may disproportionally affect children.

This final rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630.

This final rule has been analyzed under Executive Order 13211. The FHWA has 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 this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RINs contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing, 23 CFR part 669 is amended as set forth below.

The Attorney General is responsible for enforcing the Gun Control Act of 1968 (the Act), 18 U.S.C. Chapter 44. She has delegated that responsibility to the Director of ATF (Director), subject to the direction of the Attorney General and the Deputy Attorney General. 28 CFR 0.130(a). ATF has promulgated regulations that implement the Act in 27 CFR part 478.

The regulations in subpart E of part 478, §§ 478.71-478.78, relate to proceedings involving Federal firearms licenses, including the denial, suspension, or revocation of a license, or the imposition of a civil fine. In particular, § 478.71 provides that the Director may issue a notice of denial, ATF Form 4498, to an applicant for a license if he has reason to believe that the applicant is not qualified, under the provisions of § 478.47, to receive a license. The notice sets forth the matters of fact and law relied upon in determining that the application should be denied, and affords the applicant 15 days from the date of receipt of the notice in which to request a hearing to review the denial. If a request for a hearing is not filed within such time, the application is disapproved and a copy, so marked, is returned to the applicant.

Under § 478.72, an applicant who has been denied an original or renewal license may file a request with the Director of Industry Operations for a hearing to review the denial of the application. On conclusion of the hearing and after consideration of all relevant facts and circumstances presented by the applicant or his representative, the Director renders a decision confirming or reversing the denial of the application. If the decision is that the denial should stand, a certified copy of the Director's findings and conclusions is furnished to the applicant with a final notice of denial, ATF Form 5300.13.1 In addition, a copy of the application, marked “Disapproved,” is returned to the applicant. If the decision is that the license applied for should be issued, the applicant is so notified, in writing, and the license is issued.

Section 478.73 provides that whenever the Director has reason to believe that a firearms licensee has willfully violated any provision of the Act or part 478, a notice of revocation of the license, ATF Form 4500, may be issued. In addition, a notice of revocation, suspension, or imposition of a civil fine may be issued on ATF Form 4500 whenever the Director has reason to believe that a licensee has knowingly transferred a firearm to an unlicensed person and knowingly failed to comply with the requirements of 18 U.S.C. 922(t)(1) (relating to a National Instant Criminal Background Check System (NICS) background check) with respect to the transfer and, at the time that the transferee most recently proposed the transfer, the NICS was operating and information was available to the system demonstrating that the transferee's receipt of a firearm would violate 18 U.S.C. 922(g) or 922(n) or State law. Additionally a notice of suspension or revocation of a license, or the imposition of a civil penalty, may be issued whenever the Director has reason to believe that a licensee has violated § 922(z)(1) by selling, delivering, or transferring any handgun to any person other than a licensee unless the transferee was provided with a secure gun storage or safety device for that handgun.

As specified in 27 CFR 478.74, a licensee who has received a notice of license suspension or revocation of a license, or imposition of a civil fine, may, within 15 days of receipt, file a request for a hearing with the Director of Industry Operations. On conclusion of the hearing and after consideration of all the relevant presentations made at the hearing, the Director renders a decision and prepares a brief summary of the findings and conclusions on which the decision is based. If the decision is that the license should be revoked or, in actions under 18 U.S.C. 922(t)(5) or 924(p)(1), that the license should be revoked or suspended, or that a civil fine should be imposed, a certified copy of the summary is furnished to the licensee with the final notice of revocation, suspension, or imposition of a civil fine on ATF Form 5300.13. If the decision is that the license should not be revoked, or in actions under §§ 922(t)(5) or 924(p)(1), that the license should not be revoked or suspended, and a civil fine should not be imposed, the licensee is notified in writing.

Under 27 CFR 478.76, a firearms licensee or an applicant for a firearms license may be represented at a hearing by an attorney, certified public accountant, or other person recognized to practice before ATF, provided certain requirements are met. The Director may be represented in hearing proceedings by an authorized attorney in the Office of Chief Counsel. Pursuant to § 478.77, hearings concerning license denials, suspensions, or revocations, or the imposition of a civil fine, must be held in a location convenient to the aggrieved party.

In addition, ATF has published in the Federal Register its procedures regarding administrative hearings held as part of firearms license proceedings. See ATF 36N, 75 FR 48362, Aug. 10, 2010.

On February 3, 2012, ATF published in the Federal Register a notice of proposed rulemaking (NPRM) amending the regulations in subpart E of part 478, sections 478.71-478.78 (Notice No. 32P, 77 FR 5460). The proposed regulations were intended to ensure that Federal firearms licensees and applicants for a Federal firearms license are familiar with the hearing process relative to the denial, suspension, or revocation of a firearms license, or imposition of a civil fine.

Specifically, the NPRM proposed to add language stating that a hearing would be informal and that a licensee or applicant would have the opportunity to submit facts, arguments, offers of settlement, or proposals of adjustment for review and consideration as part of the hearing process. While the opportunity for a licensee or applicant to submit additional material for review and consideration has always been afforded to such parties since the enactment of the Act, this clarification of the regulations was intended to ensure that all parties involved in firearms license administrative hearings are fully aware of these opportunities.

The comment period for Notice No. 32P closed on May 3, 2012.

All public comments were considered in preparing this final rule. In response to Notice No. 32P, ATF received ten comments. Five of the commenters agreed with the proposed rule. Commenters who agreed with the proposed rule primarily did so because they believed that implementation of the rule would clarify the opportunities available to an applicant or licensee requesting a hearing in response to a notice of the denial, revocation, or suspension of a firearms license, or imposition of a civil fine. Commenters who disagreed with the proposed rule did so for a variety of reasons, with the most common objection relating to the proposed addition of the term “informal” as applied to firearms license administrative hearings.

One commenter stated that the proposed rule should better clarify what conduct can lead to a revocation, denial, or suspension of a Federal firearms license so that a person applying for a license can be on notice of the possibilities before taking the steps to get the license. Existing regulations in part 478, however, already specify which actions and violations by a licensee or applicant may lead to a license denial, revocation, or suspension, or imposition of a civil fine. Therefore, clarification of this matter is not needed.

One commenter stated, “[i]n order to ensure that Federal firearms licensees and applicants for a Federal firearms license are familiar with the hearing process relative to the denial, suspension, or revocation of a firearms license, or imposition of a civil fine, the information regarding the process and procedures for the denial hearing should be included in the Director of Industry Operation's report that is sent to the applicant or licensee.” ATF already follows this practice: The notice of denial, revocation, suspension, or imposition of a civil fine includes information concerning specific procedures on how to request a hearing, a citation to the applicable regulations, and a pamphlet on the hearing process. In addition, information regarding the hearing process as well as what is required from an applicant or licensee can be found in §§ 478.72 and 478.74, and the hearing procedures were published by ATF in the Federal Register on August 10, 2010 (ATF 36N, 75 FR 48362). Accordingly, there is no need to change the language of this regulation to address the commenter's concern.

One commenter argued that this proposed rule will likely cause crime to rise by making it more difficult for law-abiding citizens to have access to firearms. The same commenter stated that penalties for violations where the Director has reason to believe that a licensee has knowingly transferred a firearm to an unlicensed person and knowingly failed to comply with the requirements of 18 U.S.C. 922(t)(l) should be strengthened. Regarding the commenter's first assertion, this rule will not have any negative effect on the ability of law-abiding citizens to acquire firearms. If anything, this rule will benefit licensees or applicants requesting hearings by informing them of their option to submit material that may mitigate or reverse ATF's decision to revoke, suspend, or deny an application for a Federal firearms license. Concerning the commenter's second assertion, strengthening the penalties in § 922(t)(5) for violations of § 922(t)(1) is a matter for Congress, and cannot be addressed by ATF in this rulemaking. The Department notes that the amounts of civil fines and civil penalties as set forth in various Federal statutes are subject to being increased, by regulation, to account for inflation, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, codified as amended at 28 U.S.C. 2461 note. That is a matter to be addressed in a separate rulemaking.

Two commenters expressed concern that the 15-day period in which to file the request for an administrative hearing under 27 CFR 478.72 to review the denial of a license, or under § 478.74 to review the revocation or suspension of a license, or the imposition of a civil fine, is too short. One commenter suggested the response period should be extended to one month from the date the applicant or licensee receives a notice of the denial, revocation, or suspension of a Federal firearms license, or imposition of a civil fine. The second commenter suggested the response period should be extended to 45 days from receipt of such notice. Both commenters argued the additional time would provide licensees and applicants with a more reasonable amount of time to respond to the notice. ATF is unaware of any evidence demonstrating that the 15-day period, which has been in place for many years, is not ample time to request a hearing.2 Moreover, if sufficient good cause is shown, the Director of Industry Operations may extend the time limit in individual cases pursuant to 27 CFR 478.22(a). Furthermore, the NPRM did not propose to change the 15-day period and the Department does not believe a change in the time period is necessary. However, the issue of notice as it pertains to firearms license administrative hearings may be addressed in a separate rulemaking, if necessary.

One commenter who supported the proposed rule suggested that ATF create a “database that ensures those who get licenses also have a photo that attaches the license and the serial number of that firearm together.” Although novel, this suggestion is not responsive to this rulemaking's request for comments regarding administrative hearings for Federal firearms licensees.

One commenter provided four comments regarding the implementation of the proposed rule. First, the commenter argued that the current “informal” hearing is only as informal as it suits ATF Counsel. Second, the commenter argued, “ATF Executives previously attempted at least the appearance of fairness in its administrative licensing proceedings by promulgating and adopting guidelines—known as the Administrative Action Order (`AAO')—which required uniformity in the handling and outcomes of ATF administrative matters, yet the AAO is ignored by ATF Counsel.” Third, the commenter argued, “[t]he false confidence generated by a system that `stacks the deck' for one-sided adjudication in ATF's favor fosters unnecessary hostility with the industry, while obstructing bona fide ATF decision-makers from entertaining or implementing common sense solutions.” Finally, the commenter argued, “[n]on-communication among ATF personnel in key positions manifests itself in situations that compromise the entire bureau's integrity and reputation, not just the integrity and reputations of individual or isolated actors, and alienates the regulated environment.”

The issues presented by the commenter, while substantive and related to the firearms license administrative hearings process, generally address a separate issue of how cases are adjudicated. First, as will be discussed further below, the Department has decided to remove the word “informal” from the regulatory text of the final rule. Second, ATF procedures are implemented to provide fairness and uniformity to all participants. Furthermore, as noted above, ATF provides a pamphlet on the hearing process with each notice, and has published a public notice of Hearing Procedures Relating to Federal Firearms Licensees, 75 FR 48362, to provide guidance on the process. Third, the regulations do not prevent common-sense solutions, but instead permit parties to make offers of settlement for review and consideration before or after the hearing. The final rule clarifies that offers of settlement will not be entertained at the hearing because the hearing is not a settlement conference but an opportunity to establish the factual record. Fourth, communication between ATF personnel is an integral part of this process, and ATF disagrees with the commenter's assertion that ATF personnel do not communicate with one another.

One commenter suggested further amendments to the proposed rule by adding and emphasizing the word “informal” in additional sections not amended in the proposed rule, including the second sentence in 27 CFR 478.71 and the section title of § 478.72. As will be discussed further below, however, the Department has decided to remove the word “informal” from the regulatory text of the final rule.

Several comments sought additional clarification of or suggested substantive changes to the proposed rule. Four commenters expressed concern that the use of the term “informal” as applied to firearms administrative license proceedings required further clarification. Additionally, one commenter argued that the proposed rule would be contrary to the requirements of the Administrative Procedure Act (APA).

As discussed in Section II of this preamble, the NPRM included language proposing to amend the regulations in subpart E of part 478 to clarify that firearms license administrative hearings are informal in nature and that adherence to civil court rules and procedures is consequently not required. See 77 FR at 5461. Some of the commenters expressed concern over the use of the term “informal,” arguing that it needed further clarification. Some of these commenters asked specifically what rules and procedures would be used in “informal” hearings, as well as whether and how “informal” proceedings would be recorded.

One commenter expressed support for the rule, but expressed the following concerns about the clarity of the term “informal”:

As the NPRM explained, the proposed rule would not change any of the procedures or rules that govern the administrative hearings provided for in §§ 478.72 and 478.74, but would merely clarify for the benefit of the licensee or applicant the opportunities afforded to the individual requesting such a hearing. In addition, ATF's published explanation of its hearing procedures already states that “[h]earing procedures in firearms licensing matters are informal in nature.” 75 FR at 48363. Nonetheless, it is clear from the response of commenters both supporting and opposing the rule that the proposal to characterize firearms administrative hearings as “informal” in this rule would not provide additional clarification to a licensee or applicant seeking such a hearing, as was the original intent of the proposed rule.

As a result of these comments, and in light of the intent to clarify as expressed in the proposed rule, the Department is modifying the final rule so that it will no longer insert the phrase “the hearing shall be informal” into the regulatory text. So modified, the final rule will inform the licensee or applicant of the option to submit supporting material for consideration during a requested firearms license administrative hearing without stating or implying that the nature of those hearings will otherwise change.

One commenter argued that the inclusion of the term “informal” in the proposed rule is directly contrary to what Congress intended for license hearings under 18 U.S.C. 923(f)(2), and that Congress intended all firearms license proceedings to be subject to the formal adjudication requirements of the APA. The commenter concluded, “[t]he Administrative Procedure Act [under 5 U.S.C. 556(d)] requires that the hearings be formal proceedings where the agency has the burden of proof, where the evidence offered must be reliable, probative, and substantial, and where the applicant may present evidence and conduct cross-examination of the agency's witnesses.”

Although the provisions of the APA generally apply to firearms license administrative hearings, ATF disagrees with the conclusion that the APA's formal adjudication provisions are applicable to firearms license administrative proceedings. Under 5 U.S.C. 554(a), the formal adjudication provisions of the APA (sections 554, 556, and 557) apply “in every case of an adjudication required by statute to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. 554(a). In order to trigger this requirement, courts have held, a statute generally must state that an agency shall provide a “hearing on the record,” rather than just a “hearing.” R.R. Comm'n of Tex. v. United States, 765 F.2d 221, 227 (D.C. Cir. 1985). Moreover, the APA's formal adjudication provisions do not apply “to the extent that there is involved . . . a matter subject to a subsequent trial of the law and the facts de novo in a court.” 5 U.S.C. 554(a)(1).

The Act does not trigger the formal adjudication provisions of the APA with respect to firearms hearings. The pertinent provisions of the Act require the Attorney General to hold “a hearing,” not a hearing “on the record,” in connection with the denial, revocation, or suspension of a license, or imposition of a civil fine. See 18 U.S.C. 922(t)(5), 923(f)(2), 924(p)(1). Moreover, 18 U.S.C. 923(f)(3) permits an aggrieved party to, at any time within sixty days after the date notice of a decision is given, “file a petition with the United States district court for the district in which he resides or has his principal place of business for a de novo judicial review of [a license] denial or revocation.” See also 27 CFR 478.78 (authorizing a dissatisfied applicant or licensee to “file a petition for judicial review . . . with the U.S. district court for the district in which the applicant or licensee resides or has his principal place of business”). Accordingly, the APA's formal adjudication procedures do not apply to ATF hearings conducted pursuant to 27 CFR 478.72 and 478.74. See Shaffer v. Holder, No. 1:09-0030, 2010 U.S. Dist. LEXIS 31415, at *10, 2010 WL 1408829, at *14 (M.D. Tenn. Mar. 30, 2010).

The commenter also cites APA procedural requirements contained in 5 U.S.C. 556. However, section 556(a) provides as follows: “This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.” Sections 553 or 554 state that the procedural requirements of section 556 apply to rules and adjudications that are “required by statute to be made [or determined] on the record after opportunity for an agency hearing.” As discussed above, the Act does not require firearms licensing hearings to be conducted “on the record.”

For the reasons discussed above, this final rule has been revised from the proposed rule to omit any references that characterize hearings concerning the denial, suspension, or revocation of a firearms license, or imposition of a civil fine, as “informal.” In addition, the Department is removing the term “or proposals of adjustment” in the final rule. The term “proposals of adjustment” is redundant when used with “offers of settlement” and is therefore unnecessary. The final rule will also clarify that during the hearing the applicant or licensee will have the opportunity to submit facts and arguments for review and consideration. Offers of settlement may be made before or after the hearing, but will not be entertained at the hearing, as the purpose of the hearing is to establish a factual record.

The Department has also revised sections 478.73 and 478.74 to clarify that those sections apply to actions to revoke or suspend a license, or impose a civil fine, under 18 U.S.C. 924(p). This is a technical change that merely reiterates the requirements of the statute, see 18 U.S.C. 924(p)(1)(A) (stating that applicants are entitled to “notice and opportunity for hearing” in such actions), and codifies ATF's prior interpretation of sections 478.73 and 478.74, see 75 FR at 48362-63.

This rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1, General Principles of Regulation, and section 6, Retrospective Analyses of Existing Rules.

Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

This rule will not have an annual effect on the economy of $100 million or more, nor will it adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities. Similarly, it does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof, or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Accordingly, this proposed rule is not a “significant regulatory action” as defined by Executive Order 12866.

Section 6 of Executive Order 13563 directs agencies to develop a plan to review existing significant rules that may be “outmoded, ineffective, insufficient, or excessively burdensome,” and to make appropriate changes where warranted. The Department selected and reviewed this rule under the criteria set forth in its Plan for Retrospective Analysis of Existing Rules, and determined that this final rule merely clarifies that an applicant or licensee requesting an administrative hearing as a result of the denial, suspension, or revocation of a firearms license, or the imposition of a civil fine, will have the opportunity for the submission and consideration of facts and arguments for review and consideration by the Director, and to make offers of settlement before or after a hearing.

This regulation will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, “Federalism,” the Attorney General has determined that this regulation does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. The Attorney General has reviewed this rule and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. The amendments merely clarify that an applicant or licensee requesting an administrative hearing as a result of the denial, suspension, or revocation of a firearms license, or the imposition of a civil fine, will have the opportunity for the submission and consideration of facts and arguments for review and consideration by the Director, and to make offers of settlement before or after a hearing.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This final rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

Copies of the NPRM, all comments received in response to the NPRM, and this final rule will be available for public inspection by appointment during normal business hours at: ATF Reading Room, Room 1E-062, 99 New York Avenue NE., Washington, DC 20226; telephone: (202) 648-8740.

The author of this document is Shermaine Kenner, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Accordingly, for the reasons discussed in the preamble, 27 CFR part 478 is amended as follows:

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

Organization of this document. The following outline is provided to aid in locating information in this preamble.

This action addresses requirements associated with the transition from the 1-hour National Ambient Air Quality Standards (NAAQS) for ground-level ozone to the 1997 8-hour ozone NAAQS.

EPA has established, and periodically reviews and revises, the NAAQS for ground-level ozone. On July 18, 1997 (62 FR 38855), EPA published a final rule for a new 8-hour ozone standard of 0.08 parts per million (ppm). On April 30, 1994 (69 FR 23858), EPA designated and classified areas for the 1997 8-hour ozone NAAQS. Also, on April 30, 2004 (69 FR 23951), EPA published the Phase 1 rule for implementation of the 1997 8-hour ozone NAAQS. Among other requirements, this rule set forth requirements for anti-back sliding purposes for areas designated attainment for the 1997 8-hour ozone standard.

Subsequently, in 2008, and in 2015, EPA again revised the ozone NAAQS to 0.075 ppm and 0.070 ppm, respectively.

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of New Hampshire on March 2, 2012. The SIP revision consists of the Clean Air Act (CAA or Act) section 110(a)(1) ozone maintenance plan for the 1997 8-hour ozone standard for New Hampshire. The maintenance plan demonstrates how the state intends to maintain the 1997 8-hour National Ambient Air Quality Standard for ozone.

The CAA section 110(a)(1) maintenance plan requirement applies to areas that are designated as attainment/unclassifiable for the 1997 8-hour ozone standard and also had a designation of either nonattainment or attainment with an approved maintenance plan for the 1-hour ozone standard as of June 15, 2004, the effective date of the 1997 8-hour ozone standard designation for these areas (See 69 FR 23857). In New Hampshire, this area consists of the cities and towns listed in Table 1.

Pursuant to section 110(a)(1) of the Clean Air Act, the implementation rule for the 1997 ozone standard requires that areas that were either nonattainment or maintenance areas for the 1-hour ozone NAAQS, but attainment for the 1997 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 1997 8-hour ozone NAAQS. EPA established June 15, 2007, three years after the effective date of the initial 1997 8-hour ozone designations, as the deadline for submission of plans for these areas. See 40 CFR 51.905.

On May 20, 2005, EPA issued guidance 1 that applies, in part, to areas that are designated attainment/unclassifiable for the 1997 8-hour ozone standard and either have an approved 1-hour ozone maintenance plan or were designated nonattainment of the 1-hour ozone standard. The purpose of the guidance is to assist the states in the development of a section 110(a)(1) maintenance plan SIP. There are five components of a section 110(a)(1) maintenance plan which are: (1) An attainment inventory, which is based on actual typical summer day emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NOX) for a ten-year period from a base year as chosen by the state; (2) a maintenance demonstration which shows how the area will remain in compliance with the 1997 8-hour ozone standard for 10 years after the effective date of designations (June 15, 2004); (3) a commitment to continue to operate air quality monitors; (4) a contingency plan that will ensure that a violation of the 1997 8-hour ozone NAAQS is promptly addressed; and (5) an explanation of how the state will track the progress of the maintenance plan.

Subsequently, in the implementation rule for the 2008 ozone NAAQS (80 FR 12264; March 6, 2015), EPA revoked the 1997 8-hour ozone standard. Nevertheless, New Hampshire's March 2, 2012 SIP revision of a Section 110(a)(1) ozone maintenance plan for the 1997 8-hour ozone standard is pending before us, so we are taking action on it at this time.

EPA has determined that the New Hampshire Department of Environmental Services (NHDES) 1997 8-hour ozone maintenance plan addresses all of the necessary components of a Section 110(a)(1) 1997 8-hour ozone maintenance plan as discussed below.

An emissions inventory is an itemized list of emission estimates for sources of air pollution in a given area for a specified time period. NHDES has provided a comprehensive emissions inventory for ozone precursors (NOX and VOCs) in the area. NHDES uses 2002 as the base year from which it projects emissions. The submittal also includes an explanation of the methodology used for determining the anthropogenic emissions (point, area, and mobile sources) in the maintenance area. The inventory is based on emissions for a “typical summer day.”

With regard to demonstrating continued maintenance of the 1997 8-hour ozone standard, NHDES projects that the total emissions from the maintenance area will decrease during the ten-year maintenance period. NHDES has projected emissions from 2002 until 2014. The projected trend in emissions is downward. This clearly demonstrates that the 1997 8-hour ozone standard will be maintained for the ten year period between 2004 and 2014, which is the required test.

Table 2 shows the total VOC and NOx emissions for the maintenance area in New Hampshire for the base year (2002), an interim year (2012), and a final year (2014).2 More detailed emissions tables can be found in the NHDES submittal. The trend in emissions is downward, for each pollutant in the area. As such, the plan demonstrates that, from an emissions projections standpoint, emissions are projected to decrease.

With regard to the ambient air monitoring component of a maintenance plan, New Hampshire's submittal describes the ozone monitoring network in the maintenance area and New Hampshire commits to the continuing operation of an effective air quality monitoring network to verify the area's attainment status in accordance with the Code of Federal Regulations (CFR), specifically, 40 CFR part 58. New Hampshire's SIP revision was submitted on March 2, 2012 and includes ozone design values 3 for 2010 and 2011 which demonstrate that the maintenance area is meeting the 0.08 ppm 1997 8-hour ozone standard. In addition, based on more recent ozone data from 2014, all of New Hampshire meets the 1997 8-hour ozone standard. Furthermore, preliminary ozone data for 2015 shows that all of New Hampshire continues to meet the 1997 8-hour ozone standard. Table 3 shows the ozone design values for each monitor in the five county area listed in Table 2. As noted in Table 1, portions of these counties make up New Hampshire's maintenance area.

EPA interprets section 110(a)(1) of the CAA to require that the state develop a contingency plan that will ensure that any violation of a NAAQS is promptly corrected. Therefore, as required by section 110(a)(1) of the Act, New Hampshire has listed in its submittal possible contingency measures, as well as a protocol the state will follow, in the event of a future ozone air quality problem. As noted in New Hampshire's SIP revision, at the conclusion of each ozone season, NHDES will evaluate whether the design value for any ozone monitor in the maintenance area meets the 1997 8-hour ozone standard. If the design value is above the standard, NHDES will evaluate the potential causes of this design value increase, specifically, whether this increase is due to an increase in local in-state emissions, an increase in upwind out-of-state emissions, or an exceptional event as defined in 40 CFR 50.1. If an increase in in-state emissions is determined to be a contributing factor to the design value increase, NHDES will evaluate the projected in-state emissions for the maintenance area for the ozone season in the following year. If in-state emissions are not expected to satisfactorily decrease in the following ozone season in order to mitigate the violation, New Hampshire will implement one or more of the contingency measures listed in the submittal, or substitute other VOC or NOx control measures to achieve additional in-state emission reductions. The contingency measure(s) will be selected by the Governor, or the Governor's designee, within six months of the end of the ozone season for which contingency measures have been determined necessary. Further details on the types of possible control measures to be used as contingencies can be found in the New Hampshire submittal. New Hampshire's submittal satisfies EPA's contingency measure requirements.

New Hampshire's SIP revision notes that the State will track the maintenance of attainment by analyzing air quality trends at local monitors and annually updating the state's emissions inventories. NHDES produces comprehensive emission inventories on a three-year cycle and revises the inventories annually using updated emissions data for the largest sources.

Finally, as a practical matter, at this point in time, the 10 year maintenance period (2004-2014) has ended and, as noted by the ozone design values in Table 3 above, the area has maintained the 1997 8-hour ozone standard.

EPA is approving into the New Hampshire SIP the Clean Air Act Section 110(a)(1) 1997 8-hour ozone maintenance plan for the New Hampshire area that is required to have such a plan. This area includes the cities and towns listed in Table 1 above.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective July 22, 2016 without further notice unless the Agency receives relevant adverse comments by June 22, 2016.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on July 22, 2016 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 22, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

The background for this action is discussed in detail in our January 11, 2016 proposal. See 81 FR 1141. In that document we proposed to disapprove severable portions of the February 6, 2012 Oklahoma SIP submittal establishing GHG permitting requirements for minor sources and for sources that are classified as major, and thus, required to obtain a PSD permit based solely on their potential GHG emissions (referred to as “Step 2” PSD sources in our proposed action) because we determined that these revisions to the Oklahoma SIP establish permitting requirements that are inconsistent with federal laws resulting from recent decisions by United States Courts. We also proposed to disapprove severable portions of the November 6, 2012 Arkansas SIP submittal, the January 8, 2013 New Mexico SIP, and the January 18, 2013 Oklahoma SIP submittal that include the Biomass Deferral in the Arkansas, New Mexico, and Oklahoma PSD programs. Our analysis found that these revisions to the Arkansas, New Mexico, and Oklahoma SIPs should be disapproved because adoption or implementation of these provisions is no longer consistent with federal laws and regulations for PSD permitting.

We received one comment on our proposed action. Our response to the submitted comment is provided below.

Comment: One commenter stated that “not requiring states to continue step two of the permitting for GHG as a major source thus requiring a PSD or Title V permit is the right decisions based on law.” Additionally, the commenter stated that “GHG emission issues would be better addressed in it's [sic] own statute rather than having the supreme court [sic] dictate the regulatory framework of GHG emissions.”

Response: We acknowledge the support of the commenter in finding that our proposed disapproval action is consistent with current law. GHG emissions are regulated under the CAA 1 and the CAA includes provisions for citizens, states, and regulated entities to seek judicial review of EPA's final regulatory decisions.2 Therefore our current action to disapprove the Step 2 permitting requirements is consistent with current law and is consistent with the statutory requirements of the CAA.

We are taking this final action under section 110 and part C of the Act; as such, we are not imposing sanctions as a result of this disapproval. This final disapproval does not require the EPA to promulgate a Federal Implementation Plan because we are finding that the submitted provisions are inconsistent with federal laws for the regulation and permitting of GHG emissions.

We are disapproving the following severable portions of the February 6, 2012 Oklahoma SIP submittal that establish GHG permitting requirements for minor sources and Step 2 PSD:

• Substantive revisions to the Oklahoma SIP establishing Minor NSR GHG permitting requirements at OAC 252:100-7-2.1 as submitted on February 6, 2012; and

• Substantive revisions to the Oklahoma PSD program in OAC 252:100-8-31 establishing PSD permitting requirements for Step 2 sources at paragraph (E) of the definition of “subject to regulation” as submitted on February 6, 2012.

We are also disapproving as inconsistent with federal laws and regulations for PSD permitting, severable portions of the following SIP submittals that include the Biomass Deferral:

• Substantive revisions to the Arkansas SIP definition of “CO2 Equivalent Emissions” at Regulation 19, Chapter 2 to implement the Biomass Deferral as submitted on November 6, 2012;

• Substantive revisions to the New Mexico SIP definition of “Subject to Regulation” at 20.2.74.7 (AZ)(2)(a) NMAC to implement the Biomass Deferral as submitted on January 8, 2013; and

• Substantive revisions to the Oklahoma SIP definitions of “carbon dioxide equivalent emissions” at OAC 252:100-1-3 and “subject to regulation” at OAC 252:100-8-31 as submitted on January 18, 2013.

As a result of the final disapproval actions listed above, the EPA is also updating the “Approval status” section of the Arkansas SIP at 40 CFR 52.172, New Mexico SIP at 40 CFR 52.1622, and Oklahoma SIP at 40 CFR 52.1922. Additionally, we are renumbering 40 CFR 52.172 of the Arkansas SIP for consistency.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. We have concluded that the state choices under review in this action do not meet the criteria of the CAA. Accordingly, this action disapproves state law as not meeting Federal requirements for the regulation and permitting of GHG emissions.

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

This action does not impose an information collection burden under the PRA. There is no burden imposed under the PRA because this action disapproves submitted revisions that are no longer consistent with federal laws for the regulation and permitting of GHG emissions.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action disapproves submitted revisions that are no longer consistent with federal laws for the regulation and permitting of GHG emissions, and therefore will have no impact on small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action disapproves submitted revisions that are no longer consistent with federal laws for the regulation and permitting of GHG emissions, and therefore will have no impact on small governments.

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

This action does not have tribal implications as specified in Executive Order 13175. This action disapproves provisions of state law that are no longer consistent with federal laws for the regulation and permitting of GHG emissions; there are no requirements or responsibilities added or removed from Indian Tribal Governments. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it disapproves state permitting provisions that are inconsistent with federal laws for the regulation and permitting of GHG emissions.

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

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action is not subject to Executive Order 12898 because it disapproves state permitting provisions that are inconsistent with federal laws for the regulation and permitting of GHG emissions.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 22, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

This action presents EPA's most recent decision to list as acceptable several substitutes in the refrigeration and air conditioning sector. New substitutes are:

• CO2 in several refrigeration and air conditioning end-uses;

• Hydrofluoroolefin 1 (HFO)-1336mzz(Z) in several refrigeration and air conditioning end-uses;

• HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3) (proposed designation R-514A) in two refrigeration and air conditioning end-uses; and

• R-513A in retail food refrigeration—food processing and dispensing equipment.

For copies of the full list of acceptable substitutes for ozone depleting substances (ODS) in all industrial sectors, visit the SNAP portion of EPA's Ozone Layer Protection Web site at www.epa.gov/snap/substitutes-sector. Substitutes listed as unacceptable; acceptable, subject to narrowed use limits; or acceptable, subject to use conditions are also listed in the appendices to 40 CFR part 82, subpart G.

The sections below discuss each substitute listing in detail. Appendix A contains tables summarizing today's listing decisions for these new substitutes. The statements in the “Further Information” column in the tables provide additional information, but are not legally binding under section 612 of the Clean Air Act (CAA). In addition, the “Further Information” column may not include a comprehensive list of other legal obligations you may need to meet when using the substitute. Although you are not required to follow recommendations in the “Further Information” column of the table to use a substitute consistent with section 612 of the CAA, some of these statements may refer to obligations that are enforceable or binding under federal or state programs other than the SNAP program. In many instances, the information simply refers to standard operating practices in existing industry standards and/or building codes. When using these substitutes, EPA strongly encourages you to apply the information in this column. Many of these recommendations, if adopted, would not require significant changes to existing operating practices.

You can find submissions to EPA for the substitutes listed in this document, as well as other materials supporting the decisions in this action, in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov.

EPA's decision: EPA finds carbon dioxide (CO 2 ) acceptable as a substitute for use in:

Carbon dioxide is also known as R-744 when used as a refrigerant. Its Chemical Abstracts Service Registry Number (CAS Reg. No.) is 124-38-9.

You may find the redacted submissions in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the names, “SNAP Information Notice for CO2 (R-744) in Ice Skating Rinks” and “SNAP Information Notice for CO2 (R-744) in Chillers and Industrial Process Air Conditioning.” EPA performed assessments to examine the health and environmental risks of this substitute when used in these end-uses. These assessments are available in Docket EPA-HQ-OAR-2003-0118 under the following names:

EPA previously listed CO2 as an acceptable refrigerant in a number of other refrigeration and air conditioning end-uses, including industrial process refrigeration, and in the case of motor vehicle air conditioning as acceptable subject to use conditions, (e.g., January 13, 1995, 60 FR 3318; September 30, 2009, 74 FR 50129; June 16, 2010, 75 FR 34017; June 6, 2012, 77 FR 33315; August 10, 2012, 77 FR 47768; October 21, 2014, 79 FR 62863).

Environmental information: CO2 has an ozone depletion potential (ODP) of zero.3 The 100-year global warming potential (GWP) of CO2 is one.4

EPA's regulation codified at 40 CFR part 82, subpart F exempts CO2 refrigerant from the venting prohibition under section 608(c)(2) of the CAA (March 12, 2004, 69 FR 11946).5 The CAA and EPA's venting regulations prohibit the intentional venting or release of substitutes for class I or class II ODS during the repair, maintenance, service or disposal of refrigeration and air conditioning appliances, unless EPA expressly exempts a particular substitute refrigerant from the venting prohibition, as for CO2.

CO2 is excluded from the definition of volatile organic compounds (VOC) under CAA regulations (see 40 CFR 51.100(s)) addressing the development of state implementation plans (SIPs) to attain and maintain the national ambient air quality standards (NAAQS).

Flammability information: CO2 is not flammable.

Toxicity and exposure data: Potential health effects of exposure to this substitute at lower concentrations include loss of concentration, headache and shortness of breath. The substitute may also irritate the skin or eyes or cause frostbite. At sufficiently high concentrations, it may cause central nervous system depression. The substitute could cause asphyxiation if air is displaced by vapors in a confined space. For additional information concerning potential health risks of CO2, see EPA's final rule under the SNAP program for use of CO2 as a refrigerant in motor vehicle air conditioning systems (June 6, 2012, 77 FR 33315) and EPA's risk screens in docket EPA-HQ-OAR-2003-0118.

To mitigate these potential health risks in the workplace, CO2 has an 8 hour/day, 40 hour/week permissible exposure limit (PEL) of 5,000 ppm required by the Occupational Safety and Health Administration (OSHA). It also has a 15-minute recommended short-term exposure limit (STEL) of 30,000 ppm established by the National Institute for Occupational Safety and Health (NIOSH). EPA recommends that users follow all requirements and recommendations specified in the manufacturer's safety data sheet (SDS), in the American Society for Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 15, and other safety precautions common to the refrigeration and air conditioning industry. We also recommend that users of CO2 adhere to NIOSH's STEL and to ASHRAE 15, and we expect that users will meet OSHA's PEL. EPA anticipates that users will be able to address potential health risks by complying with the PEL and by following requirements and recommendations in the SDS, in ASHRAE 15, and other safety precautions common in the refrigeration and air conditioning industry.

Comparison to other substitutes in these end-uses: CO2 has an ODP of zero, comparable 6 to or lower than other substitutes listed as acceptable in these end-uses, with ODPs ranging from zero to 0.098.

In ice skating rinks, many substitutes listed as acceptable have higher GWPs than the GWP of one for CO2. HFC-134a, R-404A, THR-03 and other HFC blends have GWPs ranging from 920 to 3,990; other substitutes listed as acceptable for ice skating rinks that have a comparable or lower GWP include ammonia absorption and ammonia vapor compression with a GWP of zero.

In centrifugal and positive displacement chillers, most other substitutes listed as acceptable have higher GWPs than CO2, such as R-450A, R-513A, HFC-134a, R-404A and other HFC blends, with GWPs ranging from approximately 600 to 3,990.7 CO2's GWP of one is comparable to or lower than that of several other acceptable substitutes for new equipment within these end-uses including ammonia absorption and ammonia vapor compression, HFO-1234ze(E), and for centrifugal chillers only, trans-1-chloro-3,3,3,-trifluoroprop-1-ene, with GWPs in the range of zero to seven.

In industrial process air conditioning, most other substitutes listed as acceptable have higher GWPs than CO2, such as R-513A, R-450A, HFC-134a, R-404A and other HFC blends with GWPs ranging from approximately 600 to 3,990. CO2's GWP of one is comparable to or lower than several other acceptable substitutes for new equipment in industrial process air conditioning including ammonia absorption and ammonia vapor compression with a GWP of zero and HFO-1234ze(E) with a GWP of one to six.

Flammability and toxicity risks of this substitute are comparable to or lower than the flammability and toxicity risks of other available substitutes in the same end-uses. Flammability risks are low, as discussed above. The toxicity risks are similar to those for many other refrigerants and, as with those other refrigerants, can be minimized by use consistent with the OSHA PEL, NIOSH STEL, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds CO2 acceptable in these end-uses listed above, because the overall environmental and human health risk posed by CO2 is lower than or comparable to the risks posed by other available substitutes in the same end-uses.

EPA's decision: EPA finds HFO-1336mzz(Z) acceptable as a substitute for use in:

HFO-1336mzz(Z) is also known as (Z)-1,1,1,4,4,4-hexafluorobut-2-ene and cis-1,1,1,4,4,4-hexafluorobut-2-ene (CAS Reg. No. 692-49-9), and goes by the trade name of Opteon® MZ.

You may find the redacted submission in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the name, “SNAP Information Notice for Opteon® MZ.” EPA performed assessments to examine the health and environmental risks of this substitute in these end-uses. These assessments are available in docket EPA-HQ-OAR-2003-0118 under the following name:

• “Risk Screen on Substitutes for Use in Chillers and Industrial Process Air Conditioning Substitute: HFO-1336mzz(Z) (Opteon® MZ).”

• “Risk Screen on Substitutes for Use in Heat Transfer Substitute: HFO-1336mzz(Z) (Opteon® MZ).”

We have previously listed HFO-1336mzz(Z) as an acceptable foam blowing agent in a number of foam blowing end-uses (October 21, 2014, 79 FR 62863; July 16, 2015, 80 FR 42053).

Environmental information: HFO-1336mzz(Z) has an ODP of zero. It has a 100-year GWP of about nine.8 HFO-1336mzz(Z) is a VOC and it is not exempted from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS. The manufacturer has petitioned EPA to exempt HFO-1336mzz(Z) from the definition of VOC under those regulations, based on its claim that the chemical exhibits low photochemical reactivity. Knowingly venting or releasing this refrigerant is limited by the venting prohibition under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1).

Flammability information: HFO-1336mzz(Z) is not flammable.

Toxicity and exposure data: Potential health effects of this substitute include skin or eye irritation or frostbite. At sufficiently high concentrations, the substitute may cause irregular heartbeat. The substitute could cause asphyxiation if air is displaced by vapors in a confined space. EPA issued a Significant New Use Rule under the Toxic Substances Control Act on June 5, 2015, to require persons to submit a Significant New Use Notice to EPA at least 90 days before they manufacture or process HFO-1336mzz(Z) for uses other than those described in the Premanufacture Notice (80 FR 32003, 32005).

EPA anticipates that HFO-1336mzz(Z) will be used consistent with the recommendations specified in the SDS. The Workplace Environmental Exposure Limit (WEEL) committee of the Occupational Alliance for Risk Science (OARS) recommends a WEEL for the workplace of 500 ppm on an 8-hour time-weighted average (TWA).9 EPA anticipates that users will be able to meet the WEEL and address potential health risks by following requirements and recommendations in the SDS and other safety precautions common to the refrigeration and air conditioning industry.

Comparison to other substitutes in these end-uses: HFO-1336mzz(Z) has an ODP of zero, comparable 10 to or lower than other acceptable substitutes in these end-uses, with ODPs ranging from 0 to 0.02.

In centrifugal and positive displacement chillers, most other substitutes listed as acceptable have higher GWPs than HFO-1336mzz(Z), such as R-450A, R-513A, HFC-134a, R-404A and other HFC blends with GWPs ranging from approximately 600 to 3,990.11 HFO-1336mzz(Z)'s GWP of about nine is comparable to or higher than several other acceptable substitutes for new equipment within these end-uses including ammonia absorption and ammonia vapor compression, HFO-1234ze(E), and for centrifugal chillers only, trans-1-chloro-3,3,3,-trifluoroprop-1-ene, with GWPs in the range of zero to seven.

In industrial process air conditioning, most other substitutes listed as acceptable have higher GWPs than HFO-1336mzz(Z), such as R-513A, R-450A, HFC-134a, R-404A and other HFC blends with GWPs ranging from approximately 600 to 3,990. HFO-1336mzz(Z)'s GWP of about nine is comparable to or higher than several other acceptable substitutes for new equipment in industrial process air conditioning including ammonia absorption and ammonia vapor compression with a GWP of zero and HFO-1234ze(E) with a GWP of one to six.

In non-mechanical heat transfer, most other substitutes listed as acceptable have higher GWPs such as HFC-245fa, HFC-134a and HFC-125 with GWPs ranging from 1,030 to 3,500. HFO-1336mzz(Z)'s GWP of about nine is comparable to or higher than those of several other acceptable substitutes in the same end-use, such as trans-1-chloro-3,3,3,-trifluoroprop-1-ene, HFO-1234ze(E), CO2 and ethane, with GWPs in the range of one to seven.

Flammability and toxicity risks of this substitute are comparable to or lower than the flammability and toxicity risks of other available substitutes in the same end-uses. Flammability risks are low, as discussed above. Toxicity risks can be minimized by use consistent with the OARS WEEL, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds HFO-1336mzz(Z) acceptable in the end-uses listed above, because the overall environmental and human health risk posed by HFO-1336mzz(Z) is lower than or comparable to the risks posed by other available substitutes in the same end-uses.

EPA's decision: EPA finds the blend HFO-1336mzz(Z)/trans-1,2-dichloroethylene (74.7/25.3) acceptable as a substitute for use in:

• Centrifugal chillers (new and retrofit equipment)

• Positive-displacement chillers (new and retrofit equipment)

This refrigerant is a weighted blend of 74.7 percent HFO-1336mzz(Z) and 25.3 percent trans-1,2-dichloroethylene (CAS Reg. No. 156-60-5). ASHRAE has proposed a designation of R-514A for this refrigerant blend. This blend is marketed under the trade name Opteon® XP30.

You may find the redacted submission in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the name, “SNAP Information Notice for Opteon® XP30.” EPA performed assessments to examine the health and environmental risks of this substitute in this end-use. These assessments are available in docket EPA-HQ-OAR-2003-0118 under the following name:

Environmental information: Environmental information on HFO-1336mzz(Z) is described above in listing A.2 of this document. Trans-1,2-dichloroethylene has an ODP of approximately 0.00024 12 and the blend would have a weighted ODP value of (approximately 0.00006). We are unaware of a calculated GWP value for trans-1,2-dichloroethylene in the peer-reviewed literature, but we expect its GWP is less than five based on its structure and its atmospheric lifetime of 12.7 days.13 The blend is expected to have a weighted 100-year GWP of approximately seven. Trans-1,2-dichloroethylene is a VOC and it is not exempted from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS. Knowingly venting or releasing this refrigerant is limited by the venting prohibition under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1).

Flammability information: Although the trans-dichloroethylene component of this blend is flammable, HFO-1336mzz(Z) is not flammable, and HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3) as formulated and in the worst-case fractionation formulation is not flammable.

Toxicity and exposure data: Potential health effects of HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3) include skin or eye irritation or frostbite. At sufficiently high concentrations, the substitute may cause irregular heartbeat. The substitute could cause asphyxiation if air is displaced by vapors in a confined space.

EPA anticipates that HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3) will be used consistent with the recommendations specified in the SDS. Trans-dichloroethylene has an 8 hour/day, 40 hour/week PEL of 200 ppm required by OSHA. The WEEL committee of OARS recommends a WEEL for the workplace of 500 ppm on an 8-hour TWA for HFO-1336mzz(Z).14 The manufacturer recommends an acceptable exposure limit (AEL) for the blend of 323 ppm on an 8-hour TWA. EPA anticipates that users will be able to meet the PEL, WEEL, and the AEL and address potential health risks by following requirements and recommendations in the SDS and other safety precautions common to the refrigeration and air conditioning industry.

Comparison to other substitutes in these end-uses: HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3) has an ODP of approximately 0.00006, comparable 15 to or lower than other acceptable substitutes in these end-uses, with ODPs ranging from zero to 0.02.

In centrifugal and positive-displacement chillers, most other substitutes listed as acceptable have higher GWPs than HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3), such as R-450A, R-513A, HFC-134a, R-404A and other HFC blends with GWPs ranging from approximately 600 to 3,990.16 HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3)'s GWP of about seven is comparable to or higher than several other acceptable substitutes for new equipment within these end-uses, including ammonia absorption and ammonia vapor compression, HFO-1234ze(E) and, for centrifugal chillers only, trans-1-chloro-3,3,3,-trifluoroprop-1-ene, with GWPs in the range of zero to seven.

Flammability and toxicity risks of this substitute are comparable to or lower than the flammability and toxicity risks of other available substitutes in the same end-uses. Flammability risks are low, as discussed above. Toxicity risks can be minimized by use consistent with the OSHA PEL, OARS WEEL, the manufacturer's recommended AEL, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds HFO-1336mzz(Z)/trans-1,2-dichloroethylene blend (74.7/25.3) acceptable in the end-uses listed above, because the overall environmental and human health risk posed by this substitute is lower than or comparable to the risks posed by other available substitutes in the same end-uses.

EPA's decision: EPA finds R-513A acceptable as a substitute for use in:

R-513A, marketed under the trade name Opteon® XP10, is a weighted blend of 44 percent HFC-134a, which is also known as 1,1,1,2 tetrafluoroethane (CAS Reg. No. 811-97-2); and 56 percent HFO-1234yf, which is also known as 2,3,3,3-tetrafluoroprop-1-ene (CAS Reg. No. 754-12-1).

You may find the redacted submission in Docket EPA-HQ-OAR-2003-0118 at www.regulations.gov under the name, “SNAP Information Notice for Opteon® XP 10.” EPA performed assessments to examine the health and environmental risks of this substitute. These assessments are available in Docket EPA-HQ-OAR-2003-0118 under the following name:

Environmental information: R-513A has an ODP of zero. Its components, HFC-134a and HFO-1234yf, have GWPs of 1,430 and one to four,17 respectively. If these values are weighted by mass percentage, then R-513A has a GWP of about 630. The components of R-513A are both excluded from the definition of VOC under CAA regulations (see 40 CFR 51.100(s)) addressing the development of SIPs to attain and maintain the NAAQS. Knowingly venting or releasing this refrigerant blend is limited by the venting prohibition under section 608(c)(2) of the CAA, codified at 40 CFR 82.154(a)(1).

Flammability information: R-513A as formulated and in the worst-case fractionation formulation is not flammable.

Toxicity and exposure data: Potential health effects of exposure to this substitute include drowsiness or dizziness. The substitute may also irritate the skin or eyes or cause frostbite. At sufficiently high concentrations, the substitute may cause irregular heartbeat. The substitute could cause asphyxiation if air is displaced by vapors in a confined space.

The AIHA has established WEELs of 1,000 ppm and 500 ppm as an 8-hour TWA for HFC-134a and HFO-1234yf, respectively, the components of R-513A. The manufacturer of R-513A recommends an AEL of 653 ppm on an 8-hour TWA for the blend. EPA anticipates that users will be able to meet each of the AIHA WEELs and the manufacturer's AEL, and address potential health risks by following requirements and recommendations in the SDS, in ASHRAE 15, and other safety precautions common to the refrigeration and air conditioning industry.

Comparison to other substitutes in this end-use: R-513A has an ODP of zero, comparable 18 to or lower than other listed substitutes in this end-use, with ODPs ranging from zero to 0.098.

R-513A's GWP of about 630 is comparable to or lower than most other substitutes in retail food refrigeration—refrigerated food processing and dispensing, including R-450A, HFC-134a, R-404A, R-407C, and a number of HFC blends, with GWPs ranging from approximately 600 to 3,920.19 R-513A's GWP of about 630 is higher than those of some other acceptable substitutes in new retail food refrigeration—refrigerated food processing and dispensing units, including ammonia vapor compression with a secondary loop and CO2 with GWPs of zero and one, respectively; these alternatives with lower GWP are not listed as acceptable for use in retrofit equipment.

Flammability and toxicity risks are comparable to or lower than flammability and toxicity risks of other available substitutes in the same end-use. Flammability risks are low, as discussed above. Toxicity risks can be minimized by use consistent with the AIHA WEELs, ASHRAE 15 and other industry standards, recommendations in the SDS, and other safety precautions common in the refrigeration and air conditioning industry.

EPA finds R-513A acceptable in the end-use listed above, because the overall environmental and human health risk posed by R-513A is lower than or comparable to the risks posed by other available substitutes in the same end-use.

Section 612 of the CAA requires EPA to develop a program for evaluating alternatives to ozone-depleting substances. EPA refers to this program as the Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I substance (CFC, halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon, and chlorobromomethane) or class II substance (HCFC) with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment, and (2) is currently or potentially available.

Section 612(c) requires EPA to publish a list of the substitutes unacceptable for specific uses and to publish a corresponding list of acceptable alternatives for specific uses. The list of “acceptable” substitutes is found at www.epa.gov/snap/substitutes-sector and the lists of “unacceptable,” “acceptable subject to use conditions,” and “acceptable subject to narrowed use limits” substitutes are found in the appendices to 40 CFR part 82 subpart G.

Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c). The Agency has 90 days to grant or deny a petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional six months.

Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.

Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications.

Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances.

On March 18, 1994, EPA published the initial SNAP rule (59 FR 13044) which established the process for administering the SNAP program and issued EPA's first lists identifying acceptable and unacceptable substitutes in the major industrial use sectors (subpart G of 40 CFR part 82). These sectors are the following: Refrigeration and air conditioning; foam blowing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed the largest volumes of ODS.

Section 612 of the CAA requires EPA to list as acceptable those substitutes that do not present a significantly greater risk to human health and the environment as compared with other substitutes that are currently or potentially available.

Under the SNAP regulations, anyone who plans to market or produce a substitute to replace a class I substance or class II substance in one of the eight major industrial use sectors must provide the Agency with notice and the required health and safety information on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative (40 CFR 82.176(a)). While this requirement typically applies to chemical manufacturers as the entity likely to be planning to introduce the substitute into interstate commerce,20 it may also apply to importers, formulators, equipment manufacturers, and end users 21 when they are responsible for introducing a substitute into commerce. The 90-day SNAP review process begins once EPA receives the submission and determines that the submission includes complete and adequate data (40 CFR 82.180(a)). The CAA and the SNAP regulations, 40 CFR 82.174(a), prohibit use of a substitute earlier than 90 days after notice has been provided to the agency.

The Agency has identified four possible decision categories for substitute submissions: Acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable (40 CFR 82.180(b)).22 Use conditions and narrowed use limits are both considered “use restrictions” and are explained below. Substitutes that are deemed acceptable without use conditions may be used for all applications within the relevant end-uses within the sector and without limits under SNAP on how they may be used. Substitutes that are acceptable subject to use restrictions may be used only in accordance with those restrictions. Substitutes that are found to be unacceptable may not be used after the date specified in the rulemaking adding such substitute to the list of unacceptable substitutes.23

After reviewing a substitute, the Agency may make a determination that a substitute is acceptable only if certain conditions in the way that the substitute is used are met to minimize risks to human health and the environment. EPA describes such substitutes as “acceptable subject to use conditions.” Entities that use these substitutes without meeting the associated use conditions are in violation of EPA's SNAP regulations (40 CFR 82.174(c)).

For some substitutes, the Agency may permit a narrowed range of use within an end-use or sector. For example, the Agency may limit the use of a substitute to certain end-uses or specific applications within an industry sector. The Agency generally requires a user of a substitute subject to narrowed use limits to demonstrate that no other acceptable substitutes are available for their specific application.24 EPA describes these substitutes as “acceptable subject to narrowed use limits.” A person using a substitute that is acceptable subject to narrowed use limits in applications and end-uses that are not consistent with the narrowed use limit is using the substitute in violation of section 612 of the CAA and EPA's SNAP regulations (40 CFR 82.174(c)).

The section 612 mandate for EPA to prohibit the use of a substitute that may present risk to human health or the environment where a lower risk alternative is available or potentially available 25 provides EPA with the authority to change the listing status of a particular substitute if such a change is justified by new information or changed circumstance.

As described in this document and elsewhere, including the initial SNAP rule published in the Federal Register at 59 FR 13044 on March 18, 1994, the SNAP program evaluates substitutes within a comparative risk framework. The SNAP program compares new substitutes both to the ozone-depleting substances being phased out under the Montreal Protocol on Substances that Deplete the Ozone Layer and the CAA, and to other available or potentially available alternatives for the same end-uses. The environmental and health risk factors that the SNAP program considers include ozone depletion potential, flammability, toxicity, occupational and consumer health and safety, as well as contributions to global warming and other environmental factors. Environmental and human health exposures can vary significantly depending on the particular application of a substitute—and over time, information applicable to a substitute can change. This approach does not imply fundamental tradeoffs with respect to different types of risk, either to the environment or to human health. Over the past twenty years, the menu of substitutes has become much broader and a great deal of new information has been developed on many substitutes. Because the overall goal of the SNAP program is to ensure that substitutes listed as acceptable do not pose significantly greater risk to human health and the environment than other available substitutes, the SNAP criteria should be informed by our current overall understanding of environmental and human health impacts and our experience with and current knowledge about available and potentially available substitutes. Over time, the range of substitutes reviewed by SNAP has changed, and, at the same time, scientific approaches have evolved to more accurately assess the potential environmental and human health impacts of these chemicals and alternative technologies. The Agency publishes its SNAP program decisions in the Federal Register. EPA uses notice-and-comment rulemaking to place any alternative on the list of prohibited substitutes, to list a substitute as acceptable only subject to use conditions or narrowed use limits, or to remove a substitute from either the list of prohibited or acceptable substitutes.

In contrast, EPA publishes “notices of acceptability” or “determinations of acceptability,” to notify the public of substitutes that are deemed acceptable with no restrictions. As described in the preamble to the rule initially implementing the SNAP program (59 FR 13044; March 18, 1994), EPA does not believe that rulemaking procedures are necessary to list alternatives that are acceptable without restrictions because such listings neither impose any sanction nor prevent anyone from using a substitute.

Many SNAP listings include “comments” or “further information” to provide additional information on substitutes. Since this additional information is not part of the regulatory decision, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements so listed are binding under other regulatory programs (e.g., worker protection regulations promulgated by OSHA). The “further information” classification does not necessarily include all other legal obligations pertaining to the use of the substitute. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “further information” column in their use of these substitutes. In many instances, the information simply refers to sound operating practices that have already been identified in existing industry and/or building codes or standards. Thus many of the statements, if adopted, would not require the affected user to make significant changes in existing operating practices.

For copies of the comprehensive SNAP lists of substitutes or additional information on SNAP, refer to EPA's Ozone Depletion Web site at: www.epa.gov/snap. For more information on the agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the initial SNAP rulemaking published March 18, 1994 (59 FR 13044), codified at 40 CFR part 82, subpart G. SNAP decisions and the appropriate Federal Register citations are found at: www.epa.gov/snap/snap-regulations.

The snapper-grouper fishery of the South Atlantic is managed under the FMP, and includes black snapper, mahogany snapper, dog snapper, schoolmaster, and golden tilefish. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On February 5, 2016, NMFS published a notice of availability for Amendment 35 and requested public comment (81 FR 6222). On March 4, 2016, NMFS published a proposed rule for Amendment 35 and requested public comment (81 FR 11502). The Secretary of Commerce approved Amendment 35 on May 4, 2016. The proposed rule and Amendment 35 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by Amendment 35 and this final rule is provided below.

Amendment 35 and this final rule removes black snapper, mahogany snapper, dog snapper, and schoolmaster from the FMP and the regulations, and revises the golden tilefish longline endorsement regulations to be consistent with the Council's original intent for establishing the longline endorsement program.

The Council determined in Amendment 35 that black snapper, mahogany snapper, dog snapper, and schoolmaster should be removed from the FMP, to ensure that only species requiring Federal management are included in the FMP. While these species are currently in the FMP, they have extremely low commercial landings in state and Federal waters, and almost all harvest (recreational and commercial) occurs in waters off the coast of South Florida. Currently, NMFS does not manage these species in Federal waters of the Gulf of Mexico (Gulf); however, the species are subject to regulations in Florida state waters. As described in Amendment 35, there are currently different regulations for recreational bag limits, size limits, and catch levels for these species in South Atlantic Federal waters and Florida state waters. Inconsistent regulations make enforcement difficult and can be confusing to the public. Amendment 35 and this final rule removes black snapper, mahogany snapper, dog snapper, and schoolmaster from the FMP and the regulations and NMFS will not manage these species in Federal waters of the South Atlantic. At its April 2016 meeting, the Florida Fish and Wildlife Conservation Commission approved extending state regulation of these species into Federal waters off Florida for Florida-state registered fishing vessels, consistent with section 306(a)(3)(A) of the Magnuson-Stevens Act, to provide consistent regulations for these species across state and Federal jurisdictional boundaries.

Black snapper is part of the deep-water complex within the FMP. The deep-water complex currently includes black snapper, yellowedge grouper, silk snapper, misty grouper, queen snapper, sand tilefish, and blackfin snapper. With black snapper removed from the FMP, the annual catch limit (ACL) for the deep-water complex is reduced from 170,278 lb (77,237 kg), round weight, to 169,896 lb (77,063 kg), round weight, a difference of 382 lb (173 kg), round weight.

Dog snapper and mahogany snapper are part of the other snappers complex within the FMP. The other snappers complex currently includes cubera snapper, gray snapper, lane snapper, dog snapper, and mahogany snapper. Removal of dog snapper and mahogany snapper from the FMP reduces the other snappers complex ACL from 1,517,716 lb (688,424 kg), round weight, to 1,513,883 lb (686,688 kg), round weight, a difference of 3,833 lb (1,739 kg), round weight.

Schoolmaster is currently designated as an ecosystem component (EC) species in the FMP. The Council chose not to retain dog snapper, mahogany snapper, and black snapper in the FMP as EC species because the objective of the amendment is to establish a consistent regulatory environment across jurisdictional boundaries in Gulf and South Atlantic Federal waters and Florida state waters. Because NMFS does not manage these species in Gulf Federal waters, the Council determined that retaining them as EC species would continue inconsistent regulations across jurisdictional boundaries. Additionally, if these species were designated as EC species, the state of Florida would not be able to extend their management authority for these species into Federal waters, because states may not generally manage species in Federal waters if those species are included in Federal fishery management plans, as per section 306(a)(3)(A) of the Magnuson-Stevens Act.

Removing these species from the FMP and the regulations is not expected to result in any adverse biological effects.

The final rule to implement Amendment 18B to the FMP (78 FR 23858, April 23, 2013) established a longline endorsement program for the commercial golden tilefish component of the snapper-grouper fishery. A longline endorsement is required to fish for golden tilefish with longline gear. Amendment 18B also established a golden tilefish hook-and-line quota and modified the golden tilefish commercial trip limits. The Council established the longline endorsement program and gear specific commercial quotas to help ensure that fishermen fishing with each gear type have a fair and equitable allocation of the commercial quota. The Council did not intend for longline endorsement holders to fish on the hook-and-line quota, or for non-endorsement holders to fish on the longline quota.

The Council and NMFS are aware that since Amendment 18B was implemented, some longline endorsement holders are transferring their golden tilefish longline endorsement to another vessel and then fishing for golden tilefish using hook-and-line gear under the hook-and-line quota. Other endorsement holders are renewing their Federal commercial snapper-grouper vessel permit but are waiting to renew their golden tilefish longline endorsement, so that they are able to fish for golden tilefish using hook-and-line gear under the hook-and-line quota while their longline endorsement is not valid. Neither scenario is consistent with the original intent of the Council in Amendment 18B. The Council decided to clarify their intent for golden tilefish longline endorsement holders in Amendment 35. Currently, as described at § 622.191(a)(2)(ii), the regulations state that “Vessels with a golden tilefish longline endorsement are not eligible to fish for golden tilefish using hook-and-line gear under this 500-lb (227-kg), gutted weight, trip limit.” This final rule revises the regulations to state that “Vessels that have valid or renewable golden tilefish longline endorsements anytime during the fishing year, are not eligible to fish for golden tilefish using hook-and-line gear under this 500-lb (227-kg), gutted weight, trip limit.” Thus, a fisherman who owns a vessel with a valid or renewable golden tilefish longline endorsement would not be eligible to fish for golden tilefish using hook-and-line gear under the 500-lb (227-kg), gutted weight, hook-and-line trip limit during that fishing year.

In the part 622 regulations, NMFS would revise “allowable biological catch” to read “acceptable biological catch” wherever it occurs. In the part 600 regulations, “ABC” is defined as “acceptable biological catch;” however, in the part 622 regulations, “ABC” is defined as “acceptable biological catch” in three places and “allowable biological catch” in four places. NMFS has determined that “acceptable biological catch” is the more precise definition for “ABC”. Therefore, to be consistent with the part 600 regulations and to use the more precise terminology, NMFS changes the definition of “ABC” to “acceptable biological catch,” and accordingly revise “allowable biological catch,” wherever it occurs in the part 622 regulations.

A total of 11 comments were received on the proposed rule and Amendment 35 from individuals, a recreational fishing organization, the state of Florida, and a Federal agency. One individual and the state of Florida supported the removal of the four species from the Snapper-Grouper FMP. Two comments were not related to the actions in the Amendment 35. The Federal agency stated that it had no comment on the proposed rule or Amendment 35. The remaining comments that specifically relate to the actions contained in the amendment and the rule as well as NMFS' respective responses, are summarized below.

Comment 1: NMFS should wait for stock assessments for black snapper, mahogany snapper, dog snapper, and schoolmaster, before removing these species from the FMP.

Response: NMFS disagrees that it is necessary to complete stock assessments before removing these species from the FMP. Although a stock assessment has not been performed for any of these species, there is no indication that these stocks are depleted. Black snapper, mahogany snapper, dog snapper, and schoolmaster are currently in the FMP, but have extremely low landings in state and Federal waters, and almost all harvest (recreational and commercial) occurs in waters off south Florida. While NMFS does not manage these species in the Federal waters of the Gulf, these species are subject to regulations in Florida state waters in both the Gulf and South Atlantic. Further, as anticipated in Amendment 35 and the state of Florida's comment on the proposed rule, the Florida Fish and Wildlife Conservation Commission has approved extending state regulations for these species for Florida-state registered vessels into Federal waters of the South Atlantic and Gulf off Florida. Based on these factors, the Council and NMFS determined that removing these species from the FMP is not expected to result in any adverse biological effects. Further, the Council has the ability to add these species back into the FMP at any time, if such an action is warranted in the future.

Comment 2: NMFS should allow a fisher to continue fishing for golden tilefish using hook-and-line gear once the commercial quota for the longline gear component is met, because the golden tilefish portion of the snapper-grouper fishery has separate commercial quotas for both hook-and-line and longline gear. It is discriminatory and unfair not to allow fishers with longline endorsements to fish under the hook-and-line quota.

Response: NMFS disagrees. Amendment 35 clarifies the intent of the Council in Amendment 18B to the FMP (78 FR 23858, April 23, 2013), which established a golden tilefish longline endorsement program. Amendment 18B also established golden tilefish commercial quotas for both the hook-and-line and longline components and revised the golden tilefish commercial trip limits. As explained in Amendment 35, the golden tilefish longline endorsement, separate quotas by gear type, and trip limits, were established because the golden tilefish commercial ACL was being harvested so rapidly by fishermen using longline gear, that fishermen who had historically used hook-and-line gear to target golden tilefish were not able to participate in the golden tilefish portion of the snapper-grouper fishery as a result of the commercial ACL being met early in the fishing year through primarily longline effort. The Council established the longline endorsement program and gear-specific commercial quotas to help ensure that fishermen using each gear type have a fair and equitable allocation of the commercial quota. In Amendment 18B, the Council determined that allocating 75 percent of the overall commercial ACL to longline gear (endorsement holders) and 25 percent of the commercial ACL to hook-and-line gear resulted in a fair and equitable distribution of the golden tilefish resource in the South Atlantic. The separate quota for longline gear is greater than the quota for hook-and-line gear because longline gear can harvest more fish than hook-and-line gear can per commercial trip. When establishing gear-specific quotas, the Council never intended for longline endorsement holders to harvest golden tilefish under the hook-and-line quota, or for non-endorsement holders (hook-and-line) to fish under the longline quota.

However, the Council and NMFS are aware that since Amendment 18B was implemented, some longline endorsement holders have been transferring their golden tilefish longline endorsement to another vessel and then fishing for golden tilefish using hook-and-line gear under the hook-and-line quota. Other endorsement holders are renewing their Federal commercial snapper-grouper vessel permit but are waiting to renew their golden tilefish longline endorsement, thereby fishing for golden tilefish using hook-and-line gear under the hook-and-line quota while their longline endorsement is not valid. Neither scenario is consistent with the original intent of the Council in Amendment 18B. Through Amendment 35, the Council clarified and reaffirmed their intent for the golden tilefish longline endorsement program in the snapper-grouper fishery, to ensure that fishermen using both gear types can participate in harvesting the golden tilefish resource.

Comment 3: Revision of the golden tilefish longline endorsement regulations will create an economic hardship for the current 22 golden tilefish longline endorsement holders.

Response: NMFS acknowledges that there may be potential negative economic effects to the 22 longline endorsement holders, as further discussed in the Classification section to this final rule. The Council considered these effects in Amendment 18B and Amendment 35, and NMFS has determined that the actions in Amendment 35 are consistent with the National Standards in the Magnuson-Stevens Act. In Amendment 18B, the Council considered the negative effects to longline vessels resulting from the allocation of the golden tilefish commercial ACL between longline endorsement holders and those without longline endorsements. Since the implementation of Amendment 18B, and contrary to the original intent of the Council, some longline endorsement holders have received economic benefits by harvesting golden tilefish under the hook-and-line quota, in addition to harvesting under the longline quota. Amendment 35 and this final rule will remove these unanticipated economic benefits.

If a commercial fishermen with a longline endorsement wishes to continue fishing for golden tilefish under the hook-and-line commercial trip limit during a specific fishing year after the effective date of this final rule, they would need to do so on a different vessel with a different commercial snapper-grouper permit. This is consistent with the Council's original intent in Amendment 18B, which was reaffirmed by the Council in Amendment 35. NMFS notes that it would likely not be economically feasible to purchase a new vessel and permit for the sole purpose of harvesting golden tilefish under the hook-and-line trip limit; however, NMFS assumes commercial fishers will only purchase new assets if they expect to result in a profit. Therefore, the negative economic effects of this final rule are limited in scope to a potential reduction in golden tilefish revenue for the 22 longline endorsement holders, most of whom did not harvest golden tilefish under both the longline and hook-and-line quotas on a single vessel in 2014.

Comment 4: Changing the golden tilefish endorsement regulations will limit the availability of golden tilefish. It is important to have golden tilefish available to local restaurants and seafood dealers during the January through March grouper spawning season closure.

Response: If the harvest of golden tilefish is closed to longline endorsement holders during a fishing year as a result of reaching the longline quota, golden tilefish could still be available to seafood restaurants and dealers through fishers who harvest golden tilefish under the hook-and-line quota. Furthermore, during the January through March spawning season closure that is in place for most grouper species, other species such as blueline tilefish, snowy grouper, black sea bass, greater amberjack, and vermilion snapper could still be available to seafood restaurants and dealers when the longline quota for golden tilefish had been met.

The Regional Administrator, Southeast Region, NMFS, has determined that this final rule is consistent with Amendment 35, the FMP, the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Magnuson-Stevens Act provides the statutory basis for this rule. The proposed rule and the preamble to this final rule provide a statement of the need for and objectives of this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule.

In compliance with section 604 of the RFA, NMFS prepared a final regulatory flexibility analysis (FRFA) for this final rule. The FRFA follows.

Public comments relating to socio-economic implications and potential impacts on small businesses are addressed in the responses to comments 2, 3, and 4 in the Comments and Responses section of this final rule. No changes to this final rule were made in response to public comments. No comments were received from the Office of Advocacy for the Small Business Administration.

NMFS agrees that the Council's choice of preferred alternatives will best achieve the Council's objectives for Amendment 35 while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities.

This final rule will directly affect all commercial vessels that harvest black snapper, dog snapper, mahogany snapper, schoolmaster and/or golden tilefish under the FMP. The removal of the four snapper-grouper species discussed in this final rule will not directly apply to or affect charter vessel and headboat (for-hire) businesses. Any impact to the profitability or competitiveness of for-hire fishing businesses will be the result of changes in for-hire angler demand and will therefore be indirect in nature. Currently, federally permitted charter and headboat captains and crew can retain black snapper, dog snapper, mahogany snapper, schoolmaster and golden tilefish under the recreational bag limit; however, they cannot sell these fish. As such, charter and headboat captains and crew will only be affected as recreational anglers. The RFA does not consider recreational anglers, who will be directly affected by this final rule, to be small entities, so they are outside the scope of this analysis and only the effects on commercial vessels were analyzed.

As of April 27, 2016, there were 553 vessels with valid or renewable Federal South Atlantic snapper-grouper unlimited permits, 116 vessels with valid or renewable 225-lb (102-kg) trip-limited permits and 22 vessels with valid or renewable longline endorsements for golden tilefish. Data from the years of 2009 through 2013, supplemented by partial 2014 data, were used in Amendment 35, as well as the initial regulatory flexibility analysis (IRFA), and this data provided the basis for the Council's decision. Although all commercial snapper-grouper permit holders have the opportunity to fish for black snapper, dog snapper, mahogany snapper, and/or schoolmaster, on average, there were only four federally permitted vessels identified from 2009 through 2013 that commercially landed one or more of these species each year. The average annual vessel-level revenue for all species harvested by these four vessels over this period was approximately $101,000 (2013 dollars), of which $32 was from black snapper, dog snapper, mahogany snapper, and/or schoolmaster. During the same time period, on average, 22 vessels per year commercially harvested golden tilefish using longline gear and their annual average vessel-level revenue for all species was approximately $95,000 (2013 dollars), of which $55,000 was from golden tilefish. Thirty-seven vessels, on average (2009 through 2013), commercially harvested golden tilefish exclusively with non-longline gear and they earned an average of approximately $46,000 (2013 dollars) per vessel for all species harvested, of which $2,000 was from golden tilefish.

No other small entities that will be directly affected by this final rule have been identified.

The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting 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 combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide. All of the vessels directly regulated by this final rule are believed to be small entities based on the SBA size criteria.

There are currently 669 vessels eligible to fish for the snapper-grouper species managed under the FMP. Based on the analysis included in the IRFA, NMFS expects only 63 of them will be affected by this final rule (approximately 9 percent). Because all of these commercial fishing businesses are believed to be small entities, the issue of disproportionate effects on small versus large entities does not arise in the present case.

Amendment 35 and this final rule remove black snapper, dog snapper, mahogany snapper, and schoolmaster from the FMP and the regulations. The state of Florida will subsequently extend its management of these species into Federal waters off Florida, for Florida-state registered vessels. Average revenues per vessel from 2009 through 2013 for these four snapper-grouper species accounted for less than 1 percent of average total revenues received by the vessels that commercially harvested these species. Almost all harvest (recreational and commercial) of these species occurs in state and Federal waters off the coast of south Florida. The level of harvest of these species is not expected to change under management by the state of Florida, thus no reduction in associated ex-vessel revenue or profit is expected from this final rule.

This final rule will also modify the golden tilefish longline endorsement regulations. Vessels that have Federal commercial snapper-grouper permits with golden tilefish longline endorsements, specifically those that harvest golden tilefish using both longline and hook-and-line gear, are expected to be negatively affected by this action because they will no longer be able to harvest golden tilefish using hook-and-line gear under the hook-and-line commercial quota. This will result in reduced revenues if they are unable to substitute the harvest of other species. A total of four vessels were identified in 2014 that had a valid or renewable golden tilefish longline endorsement during some part of the year and also harvested golden tilefish under the hook-and-line 500-lb (227-kg) commercial trip limit. On average, these four vessels earned an estimated $8,142 (2013 dollars) per vessel from golden tilefish landings using hook-and-line gear in 2014. This accounts for approximately 9.2 percent of their average total revenue per vessel (2009 through 2013). Therefore, assuming no substitution of other species and constant prices, this final rule is expected to result in an estimated recurring annual loss of $8,142 (2013 dollars) per vessel for the four vessels that harvested golden tilefish using both longline and hook-and-line gear. Conversely, vessels that do not have longline endorsements are expected to indirectly benefit from this final rule, because they will no longer have to compete with longline endorsement holders under the hook-and-line quota. On average, the 37 non-longline endorsement holders identified earlier in this analysis are expected to experience an annual per-vessel increase in revenue of approximately $880 (2013 dollars) or less than 2 percent of their annual average vessel-level revenue.

The following discussion analyzes the alternatives that were not selected as preferred by the Council. Only actions that would have direct economic effects on small entities merit inclusion in the following discussion.

Five alternatives were considered to remove species from the FMP. The first alternative, the no action alternative, would retain all current species in the FMP and would not be expected to have any economic effects. Under the no action alternative, species that do not require Federal management would remain in the FMP and potential cost savings and/or efficiency gains of management would go unrealized. All of the other alternatives were selected as preferred and will result in the removal of black snapper, dog snapper, mahogany snapper, and schoolmaster from Federal management.

Three alternatives, including the preferred alternative, were considered for modifying the golden tilefish endorsement regulations. The first alternative, the no action alternative, would not be expected to have any economic effects. The current golden tilefish endorsement regulations are, however, contrary to the original intent of the Council and unintentionally limit golden tilefish harvest opportunities and economic benefits for hook-and-line fishermen. The second alternative would revise the golden tilefish endorsement regulations so that any vessel with a valid or renewable Federal longline endorsement would not be permitted to harvest golden tilefish under the hook-and-line quota. Under the second alternative, longline endorsement holders that operate more than one vessel (with a Federal snapper-grouper vessel permit) would be able to transfer their golden tilefish longline endorsement to a different vessel and then continue to fish for golden tilefish under the hook-and-line quota in a single year. Only one vessel exhibited this behavior in 2014. Under the second alternative, the negative economic effects on the longline endorsement holders would be less than that expected through this final rule, as would the positive effects experienced by the hook-and-line component of the commercial sector. However, this alternative would be inconsistent with the original Council intent of establishing the longline endorsement in Amendment 18B, which was that vessels with a golden tile longline endorsement would not be eligible to fish for golden tilefish under the hook-and-line gear quota.

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 shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall 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, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: