Bovine tuberculosis is a contagious, infectious, and communicable disease caused by Mycobacterium bovis . It affects cattle, bison, deer, elk, goats, and other species, including humans. Bovine tuberculosis in infected animals and humans manifests itself in lesions of the lung, bone, and other body parts, causes weight loss and general debilitation, and can be fatal.

At the beginning of this century, bovine tuberculosis caused more losses of livestock than all other livestock diseases combined. This prompted the establishment of the National Cooperative State/Federal Bovine Tuberculosis Eradication Program for bovine tuberculosis in livestock.

Federal regulations implementing this program are contained in 9 CFR part 77, “Tuberculosis” (referred to below as the regulations), and in the “Uniform Methods and Rules—Bovine Tuberculosis Eradication” (UMR), January 22, 1999, edition, which is incorporated into the regulations by reference. The regulations restrict the interstate movement of cattle, bison, and captive cervids to prevent the spread of bovine tuberculosis.

Until the Animal and Plant Health Inspection Service (APHIS) made a recent regulatory change to allow zones within a State to be assigned different risk classifications (discussed in the following paragraph), restrictions on the interstate movement of cattle and bison not known to be affected with or exposed to tuberculosis were based on whether the entire State was classified as either accredited-free, accredited-free (suspended), modified accredited, or nonmodified accredited. In determining the tuberculosis status of a State, APHIS based its classification on the State's freedom from evidence of tuberculosis, the effectiveness of the State's tuberculosis eradication program, and the degree of the State's compliance with the standards contained in the UMR.

In an interim rule published in the Federal Register on November 1, 1999 ( 64 FR 58769-58780, Docket No. 99-008-1), we amended the regulations to allow a State to be divided into two zones for the purpose of assigning risk classifications with regard to tuberculosis in cattle and bison. As a result of this change, the conditions required by the regulations for the interstate movement of cattle and bison might be different for cattle and bison from the same State, depending on the tuberculosis classification of the zone each animal is moved from.

In our interim rule, we applied the provisions for allowing for risk zones within a State only to cattle and bison and not to captive cervids. This is because the regulations did not and still do not provide for State classifications for tuberculosis based on the tuberculosis status of captive cervids; nor is the tuberculosis status of captive cervids taken into account when determining the risk classification with regard to cattle and bison. The regulations in 9 CFR part 77 are divided into subpart A for cattle and bison and subpart B for captive cervids and are applied independently of each other.

While the requirements in subpart A for the interstate movement of cattle and bison are based largely on the risk classification of the State or zone the animals move from, the requirements in subpart B for the interstate movement of captive cervids are based on the tuberculosis status of individual herds of cervids, not on the State status. Because there was no State classification system with regard to captive cervids at the time our interim rule was published, there was no reason to allow for zones with separate risk classifications for captive cervids within a State.

In this document, however, we are proposing to make a system of State and zone risk classifications applicable to captive cervids. We have several reasons for making such a proposal. First, although the current system of basing movement requirements for captive cervids on the status of individual herds has been effective in preventing tuberculosis transmission, it is a system that relies on making each herd owner responsible for having the necessary testing done for that herd. We believe that at least the same level of biosecurity can be attained, at reduced cost to individual owners, by linking interstate movement requirements to a State or zone classification that would be dependent on surveillance conducted by the State.

Second, by allowing for a system of State or zone classifications with regard to captive cervids, we would likely accelerate the eradication of tuberculosis among captive cervids. The current system of basing interstate movement requirements on individual captive cervid herd status is effective in preventing the interstate spread of tuberculosis. However, it does not contain an incentive for owners to have their herds tested if they do not intend to move those cervids interstate. As with the current State or zone classification system for cattle and bison, a State or zone classification system for captive cervids would encourage States to aggressively conduct surveillance among all captive cervid herds in that State, whether or not any particular herd is intended for interstate movement.

We are not, however, proposing to eliminate the option of basing the eligibility of captive cervids to move interstate on individual herd status. For example, an accredited herd may be located in a State or zone that is classified as modified accredited because of the presence of several affected herds in herd in the State or zone. If the accredited herd has undergone adequate surveillance under the current regulations to ensure that individual animals moved from that herd present a negligible risk of being infected with tuberculosis, we do not believe it is necessary to subject animals from that herd to movement restrictions that would otherwise apply to the entire State or zone. Many owners have invested significant resources in conducting the monitoring and surveillance required to achieve a particular herd status. We believe it is warranted and appropriate to allow such owners to continue to move their cervids under the current regulations governing such movement if those movement requirements would be less restrictive than the proposed requirements based on the risk classification of the State or zone in which the herd is located.

Conversely, we believe it would be appropriate to allow captive cervids to move interstate under the proposed requirements based on the risk classification of the State or zone in which the animals are located if such conditions would be less restrictive than those in the current regulations based on individual herd status. For all State or zone risk classifications under this proposed rule except for nonaccredited, the required compliance with the UMR means that a sufficient number of herds of captive cervids in the State or zone must be tested to ensure that tuberculosis infection at a prevalence level of 2 percent or more will be detected with a confidence level of 95 percent. If the State or zone achieves that level of certainty in the State or zone overall, we believe that an individual herd in the State or zone that is not known to be affected with tuberculosis can be moved under the interstate movement requirements established for that entire State or zone with negligible risk of spreading tuberculosis.

(It should be noted that, under the provisions of the UMR, a herd that is known to be affected with tuberculosis that is located in a State or zone that otherwise presents a low tuberculosis risk is subject to quarantine and would not be eligible for interstate movement, regardless of the State or zone's risk classification.)

Therefore, we are proposing to add language to the current captive cervid regulations to indicate that captive cervids may move interstate under the proposed movement requirements applicable to an entire State or zone if those requirements are less restrictive than those for movement based on individual herd status. This language would be added at §§ 77.32(a), 77.35(b), 77.36(b), and 77.37(b) of this proposed rule, which include the provisions set forth in §§ 77.9(a), 77.12(b), 77.13(b), and 77.14(b), respectively, of the current regulations.

We are also proposing in this document to revamp and expand the categories of tuberculosis risk classifications that apply to cattle and bison (discussed below) and to use this new classification system when determining the risk classifications of States or zones with regard to captive cervids. However, although we would use the same type of tuberculosis risk classification system for both captive cervids and cattle and bison, the specific risk classification we would apply to a State or zone with regard to cattle and bison would not necessarily be the same as that assigned to the State or zone with regard to captive cervids. Although our goal by the year 2010 is to have each State or zone have one tuberculosis classification that applies to all regulated animals in the State or zone, at this time we are keeping State and zone classifications for cattle and bison independent of the classifications for captive cervids. Our rationale for keeping these classifications separate is explained below under the heading “Captive Cervids.”

Additionally, we are proposing to make the tuberculosis provisions that apply to cattle and bison also apply to goats. The current regulations, except for limited usage as part of the term “livestock,” do not refer to goats, although the UMR does. The production of goats, however, is a rapidly growing industry, particularly with regard to dairy goats, and it has been demonstrated by incidences of tuberculosis among goats held for exhibition that goats can harbor and transmit the disease. In order to protect the goat industry in this country, and to protect other susceptible livestock from goats that might become infected with tuberculosis, we are including goats in this proposed rule in provisions that refer to cattle and bison, as appropriate. It should be noted that, although no cases of tuberculosis have been found to date in goats used as livestock in the United States, regulating the movement of goats is consistent with the regulations of the U.S. Food and Drug Administration (FDA) regarding the potential transmission of tuberculosis to humans through goat's milk. (See, for example, 21 CFR 1210.13, which requires tuberculin testing of animals whose raw milk is intended for importation into the United States, and also the FDA Pasteurized Milk Ordinance, Section 7(C), which provides that goat milk for pasteurization must be from a herd that has passed an annual tuberculin herd test.)

Each of the proposed changes noted above, and our reasons for proposing them, are discussed at greater length below.

In addition to the proposed substantive additions and revisions to the current regulations that we discuss in this supplementary information, we are proposing to make nonsubstantive changes to the current regulations to make them easier to read. The primary nonsubstantive change we are proposing is the reformatting of the regulations, discussed below under the heading “Reformatting of Part 77.”

In order to make it easier to follow our proposed reformatting changes, we set out all of part 77 in this proposal, including those provisions of the current regulations to which we are proposing no amendments, except to change section designations. Because we are proposing no changes to large parts of the current regulations, we are not soliciting public comment on those unchanged provisions. In certain other sections, we are proposing very limited changes, and are soliciting public comment only on the limited portion of the section that would be amended.

The regulatory sections addressing captive cervids that are set out in this proposed rule only for readability with no substantive changes, or with very limited changes, are §§ 77.9 through 77.18 of the current regulations (designated as proposed §§ 77.32 through 77.41). The several places we are proposing limited changes to those sections are identified and discussed in this supplementary information, below. With regard to cattle and bison, we are proposing no substantive changes to §§ 77.5 through 77.7 of the current regulations (designated as proposed §§ 77.17 through 77.19) except to apply those provisions to goats as well as to cattle and bison where applicable.

As noted above, under this proposed rule, the provisions for tuberculosis risk classification and for recognition of zones within a State would be expanded to apply to captive cervids and goats as well as to cattle and bison. Because the status classifications for captive cervids may not coincide with those for cattle, bison, and goats, we would continue to set forth most of the provisions relevant to captive cervids in a separate subpart from those relevant to cattle, bison, and goats.

In contrast, the provisions for applying for recognition of risk zones within a State will apply in the same way to captive cervids as to cattle, bison, and goats. Whatever zones are recognized will be used for captive cervids, as well as for cattle, bison, and goats, although the status of a zone may be different for captive cervids than it is for cattle, bison, and goats.

Therefore, to avoid redundancy in the regulations, we are proposing to include all provisions regarding application for recognition of zones in one subpart, rather than duplicate the information in the subparts specific to cattle, bison, and goats and specific to captive cervids. In addition, we are proposing to include in that “general” subpart the definitions that apply to all of the regulations in part 77. This “general” subpart would be subpart A. The regulations specific to cattle, bison, and goats would be set forth in subpart B, and the regulations specific to captive cervids would be set forth in subpart C. All of the current sections in part 77 would be renumbered to accommodate this reformatting.

In subpart A of this proposed rule, we are including one substantive change from the current provisions regarding application for recognition of zones. Currently, a State may have no more than two zones. In our November 1, 1999, interim rule, we explained that we were limiting the number of zones in a State to two because of the amount of monitoring and movement controls necessary for the State to adequately administer different status zones. We now believe that it is not necessary to limit a State to two zones, if the State can adequately demonstrate that each of its proposed zones meets the criteria in the current regulations for recognition of a zone.

Under these criteria, a zone must be a defined geographic land area indentifiable by geological, political, manmade, or surveyed boundaries, with mechanisms of disease spread, epidemiological characteristics, and the ability to control the movement of animals across the boundaries of the zone taken into account. Additionally, the State in question must have sufficient resources to implement and enforce a tuberculosis eradication program, and means of ensuring that State and Federal animal health authorities are notified of tuberculosis cases in domestic livestock or outbreaks in wildlife. Further, the State must maintain, in each intended zone, surveillance that allows detection of tuberculosis in the overall population of livestock at a 2 percent prevalence rate with 95 percent confidence.

We believe that if a State can meet each of the above requirements for each of the proposed zones, it is not necessary to limit the State's request to two zones. Therefore, we are not including in this proposed rule a provision limiting a State to no more than two zones.

The possible risk classifications of States and zones with regard to cattle and bison under the current regulations are accredited-free, accredited-free (suspended), modified accredited, and nonmodified accredited. Some of the current provisions governing each classification appear in the definitions in § 77.1, while the remainder of the provisions for each classification appear in other sections of part 77. We discuss below the provisions governing each of the current classifications.

Criteria for being classified as an accredited-free State or zone. An accredited-free State or zone is defined as a State or zone that complies with the UMR, has zero percent prevalence of affected cattle and bison herds, and has had no findings of tuberculosis in any cattle or bison in the State or zone for the previous 5 years, except that the requirement of freedom from tuberculosis is 2 years from the depopulation of the last affected herd in States or zones that were previously accredited-free and in which all herds affected with tuberculosis were depopulated. Compliance with the UMR includes meeting the requirement that the State demonstrates annually that an adequate amount of testing and slaughter surveillance is done in that State to discover any bovine tuberculosis that might be present.

If tuberculosis is detected in any one herd of cattle or bison in an accredited-free State or zone, the accredited-free status of the State or zone is suspended. In such a case, the State or zone may qualify for redesignation of accredited-free status after the herd in which the tuberculosis is detected has been quarantined, an epidemiological investigation has confirmed that the disease has not spread from the herd, and all reactor cattle and bison have been destroyed.

If any livestock other than cattle or bison are included in a newly assembled herd on a premises where a tuberculous herd has been depopulated, the State or zone must test those other livestock in the same way as cattle and bison when conducting a herd test according to the UMR, or else be reclassified as either a modified accredited State or zone or a nonmodified accredited State or zone.

If two or more affected herds are detected in an accredited-free State or zone within a 48-month period, the State or zone will also be reclassified.

If tuberculosis is diagnosed in an accredited-free State or zone in an animal not specifically covered by the regulations and a risk assessment conducted by APHIS determines the outbreak poses a tuberculosis risk to livestock in the State or zone, the State or zone must adopt, within 6 months of diagnosis, a tuberculosis management plan, approved jointly by the State animal health official and the APHIS Administrator, or else be reclassified.

Accredited-free State or zone status must be renewed annually.

Interstate movement from an accredited-free State or zone. Cattle and bison that originate in an accredited-free State or zone and that are not known to be infected with or exposed to tuberculosis may be moved interstate without restriction.

Criterion for being classified as an accredited-free (suspended) State or zone. An accredited-free (suspended) State or zone is defined as an accredited-free State or zone in which tuberculosis has been detected in cattle or bison.

Interstate movement from an accredited-free (suspended) State or zone. Cattle and bison that originate in an accredited-free (suspended) State or zone and that are not known to be infected with or exposed to tuberculosis may be moved interstate without restriction.

Criteria for being classified as a modified accredited State or zone. A modified accredited State or zone is defined as a State or zone that complies with the UMR and in which tuberculosis has been prevalent in less than 0.01 percent of the total number of herds of cattle and bison in the State or zone for the most recent 2 years. However, depending on the veterinary infrastructure, livestock demographics, and tuberculosis control and eradication measures in the State or zone, the Administrator may, upon review, allow modified accredited status in a State or zone that has fewer than 30,000 herds and that has had up to 3 affected herds for each of the most recent 2 years.

The same requirements apply to modified accredited States or zones as those discussed above for accredited-free States or zones regarding the testing of livestock other than cattle or bison included in a newly assembled herd on a premises where a tuberculous herd has been depopulated.

Likewise, the same requirements apply to modified accredited States or zones as those discussed above for accredited-free States or zones regarding the need to adopt a tuberculosis management plan if tuberculosis is diagnosed in the State or zone in an animal not specifically covered by the regulations and a risk assessment conducted by APHIS determines the outbreak poses a tuberculosis risk to livestock in the State or zone.

Modified accredited State or zone status must be renewed annually.

Interstate movement from a modified accredited State or zone. Cattle and bison that originate in a modified accredited State or zone and that are not known to be infected with or exposed to tuberculosis may be moved interstate without restriction.

Criterion for being classified as a nonmodified accredited State or zone. A nonmodified accredited State is defined as a State or zone that has not received accredited-free status or modified accredited status.

Conditions for interstate movement from a nonmodified accredited State or zone. Cattle and bison that originate in a nonmodified accredited State or zone and that are not known to be infected with or exposed to tuberculosis may be moved interstate only if they meet one of the following conditions:

1. The cattle or bison are moved directly to slaughter to an establishment operating under the provisions of the Federal Meat Inspection Act or to a State-inspected slaughtering establishment that has State inspection at the time of slaughter.

2. The cattle or bison are steers or spayed heifers, or are officially identified sexually intact heifers that are moved to an approved feedlot, and are accompanied by a certificate stating that they have tested negative to an official tuberculin test conducted within 30 days prior to the date of movement. If the cattle or bison moved under this condition are not individually identified by a registration name and number, they must be individually identified by an APHIS-approved metal eartag or tattoo.

3. The cattle or bison are breeding animals from an accredited herd and are accompanied by a certificate showing they are from such a herd.

4. The cattle or bison are breeding animals that are not from an accredited herd but that are accompanied by a certificate stating that they have tested negative to two official tuberculin tests conducted at least 60 days apart and no more than 6 months apart, with the second test conducted within 30 days prior to the date of movement. If the cattle or bison moved under this condition are not individually identified by a registration name and number, they must be officially identified.

Although it has undergone some refinement through the years, including the clarifications we made in our November 1, 1999, interim rule, a tuberculosis risk classification system that includes accredited free, modified accredited, and nonmodified accredited classifications has been in effect since the 1940's. It has been an integral part of the tuberculosis eradication program that has virtually eliminated the disease in U.S. livestock. Currently, all but three States are classified as accredited free in their entirety for cattle and bison, which means they contain no herds affected with tuberculosis. Two States (New Mexico and Texas) are nearing accredited-free status, and one State (Michigan) is accredited free except for a single zone in the State. Today, the national percentage of herds of cattle and bison affected with tuberculosis stands at approximately 0.0002 percent.

Although the current system of risk level classifications has been effective in helping reduce the incidence of tuberculosis in the United States to a very low level, it has not yet eliminated the disease in this country. The danger still exists that tuberculosis could spread among livestock, and we do not believe the current regulations best recognize the different levels of risk that can exist with regard to tuberculosis.

As discussed above, one of the criteria for being classified as a modified accredited State or zone is that, with certain exceptions, the State or zone is one in which tuberculosis has been prevalent in less than 0.01 percent of the total number of herds of cattle and bison in the State or zone for the most recent 2 years. The current regulations do not specifically address levels of prevalence greater than or equal to 0.01 percent of the herds in the State or zone, other than to provide that all States or zones that do not qualify for accredited-free or modified accredited will be classified as nonmodified accredited.

Although we consider the current interstate requirements for animals from nonmodified accredited States or zones to adequately address States or zones that have prevalence levels of tuberculosis close to 0.01 percent, we believe those interstate requirements are not adequate to address any States or zones that develop prevalence levels well in excess of 0.01 percent. In this proposal, we are proposing to address such higher prevalence levels by expanding the possible levels of risk classification, as discussed below.

Additionally, we believe two other factors make it necessary to change the current classification system. The first involves the captive cervid industry; the second involves international trade.

Although we believe it is necessary to begin classifying States or zones according to their tuberculosis risk with regard to captive cervids, as noted above we are proposing to keep classifications with regard to cattle, bison, and goats independent of classifications for captive cervids. We are proposing to keep these classifications separate because, in general, programs for surveillance for tuberculosis in captive cervids are not as advanced as those for cattle and bison. Although all but three States are considered accredited free with regard to cattle and bison, based on the information available to us, we believe only 24 States would qualify for accredited-free status in their entirety for captive cervids. However, we do not consider it appropriate to downgrade the status of a State or zone with regard to cattle and bison because that State or zone has a higher risk status for captive cervids. Captive cervids usually represent only a minor percentage of the livestock industry in most States, and those captive cervids that are held or transported in a State are generally raised and marketed in channels separate from cattle, bison, and goats, so there is less risk that a captive cervid that is infected with tuberculosis will transmit the disease to cattle, bison, or goats.

Another reason we believe it is necessary to refine and expand the tuberculosis risk classification system involves growing international trade. Although the majority of States are grouped at the accredited-free level and would not be affected by the changes in the risk classification system set forth in this proposal, there is a broad spectrum of risk levels among other countries. With growing international trade, we find it increasingly necessary to be able to explain to our trading partners in a transparent fashion why we consider them to be at a particular risk level for tuberculosis and why we believe particular mitigation measures are necessary to allow their animals to be imported into the United States. The risk classification system we are proposing in this document represents the same criteria we would use to assess the risk in another country and the measures necessary to mitigate any risk to a negligible level. We are in the process of developing rulemaking that will specifically address tuberculosis risk levels in foreign countries and other foreign regions.

In the following paragraphs we explain how the new classification system would work. We are proposing to provide for five risk classifications, as follows:

1. Accredited Free.

2. Modified Accredited Advanced.

3. Modified Accredited.

4. Accreditation Preparatory.

5. Nonaccredited.

It is important to keep in mind that when we refer in our discussion below to “specifically regulated animals,” we are talking exclusively about cattle, bison, and goats for subpart A and exclusively about captive cervids for subpart B. For instance, although cattle, bison, goats, and captive cervids would all be “specifically regulated” in some way under part 77, in subpart B the prevalence level of affected herds of captive cervids alone would be considered in determining the classification of States or zones and would not influence the classification of the State or zone for cattle, bison, and goats in subpart A.

We are proposing to retain the provisions in the current regulations governing accredited-free status, described above under the heading “Accredited-Free State or Zone,” with two additions and one revision.

The additions involve the waiting period without findings of tuberculosis that a State or zone must meet before achieving accredited-free status. To achieve accredited-free status under the current regulations, a State or zone must have had no findings of tuberculosis for the previous 5 years, except that the requirement of freedom from tuberculosis is 2 years from the depopulation of the last affected herd in States or zones that were previously accredited free and in which all herds affected with tuberculosis have been depopulated.

In the definition of accredited-free State or zone in both § 77.5 for cattle, bison, and goats and § 77.20 for captive cervids, we are proposing to add two additional ways to achieve accredited-free status. First, the waiting period would be 3 years in States or zones that were not previously accredited free but that have depopulated all affected herds. We believe this shortened waiting period is appropriate in States or zones where such depopulation has been carried out because depopulation is an effective method of ensuring that infected animals are removed from a State or zone.

Alternatively, the waiting period would be 3 years in States or zones that have conducted surveillance that demonstrates that wildlife and livestock herds other than the animals specifically regulated under the subpart in question (cattle, bison, and goats in subpart A; captive cervids in subpart B) are not at risk of being infected with tuberculosis, as determined by the Administrator based on a risk assessment conducted by APHIS. We believe that including such an option in the regulations provides States and zones with an incentive to conduct increased surveillance for tuberculosis in all susceptible animals in the area of an affected herd and thus to accelerate eradication of the disease in that State or zone.

We believe it is necessary to allow the Administrator the discretion to assess the adequacy of the surveillance because there are a number of valid methods of surveying for tuberculosis, and we expect that each State will implement a surveillance program suitable to the livestock and wildlife of that State. Among the different methods of surveillance a State might implement are testing of animals at slaughter, testing for tuberculosis of any animals tested for another reason, target area testing, or epidemiological sampling of herds in a particular area.

The provision we are proposing to revise involves how we will address States or zones in which an affected herd is detected. Under § 77.3(c) of the current regulations, such a State or zone is reclassified as accredited free (suspended). However, the current regulations do not specify how long the suspension of accredited-free status can last before the State or zone is downgraded in status, nor do they specify what the State or zone must do to regain accredited-free status. To address these two areas, § 77.7(c) of this proposed rule provides for cattle, bison, and goats that if an affected herd is detected in a State or zone classified as accredited free, and the herd is depopulated and an epidemiologic investigation is completed within 90 days of the detection of the affected herd with no evidence of the spread of tuberculosis, the State or zone may retain its accredited-free status. Proposed § 77.22 includes a similar provision for States and zones classified accredited free for captive cervids, with the one difference that, in such States and zones, the depopulation and epidemiologic investigation must be completed within 120 days of the detection of the affected herd.

Based on our experience enforcing the regulations, we believe that for cattle, bison, and goats, 90 days is enough time to investigate the incidence of tuberculosis and trace the movement of animals from an affected herd. Ninety days will allow time for herd owners who have tested their livestock once with negative results to wait at least an additional 60 days before retesting to ensure valid results from the retesting. However, we believe it is warranted to allow 120 days for completion of depopulation and investigation for captive cervids, due to the longer waiting period necessary between tests of cervids than those of cattle, bison, and goats. In animals that have been tested for tuberculosis, the immune system is depressed following the test and will not respond definitively to a second test unless some time is allowed for the animal's immune system to “reset” following the first test. In cattle, bison, and goats, a valid second test can be done 60 days following the first test. For captive cervids, it is necessary to wait 90 days following the first test.

To clarify our intent with regard to what constitutes an epidemiologic investigation, we are including a definition of that term in proposed § 77.2. We would define an epidemiologic investigation as one that is conducted by the State in conjunction with APHIS representatives, in which an official test for tuberculosis is conducted on all livestock in any tuberculosis-affected herd in a State or zone, as well as on all livestock in any herd into which livestock from the affected herd have been moved.

As in the current regulations for cattle and bison, we would allow specifically regulated animals that are not known to be infected with or exposed to tuberculosis to be moved interstate without restriction from accredited-free States or zones.

Prior to our November 1, 1999, interim rule, a modified accredited State was defined as one that complied with all of the provisions of the UMR regarding modified accredited States. Because it was not always clear what standards a State needed to meet to achieve modified accredited status, in our interim rule we clarified our intent with regard to the standards that needed to be met. These standards are described above under the heading “Modified Accredited State or Zone.”

Because tuberculosis has been virtually eradicated in cattle and bison in this country, and because two of the three States not classified as accredited free in their entirety are classified as modified accredited, the standards currently set forth in subpart A of the regulations for modified accredited States are relatively stringent. We consider those standards necessary to ensure that all States maintain an aggressive program to become or stay accredited free with regard to cattle, bison, and goats.

However, because tuberculosis surveillance programs for captive cervids have not yet progressed as far as those for cattle, bison, and goats, and because not all foreign regions are as close to the eradication of tuberculosis as the United States, we believe it is necessary to provide for risk classifications that accommodate a greater disease risk than the modified accredited status of the current regulations, but at the same time give more recognition for progress toward eradication than the current nonmodified accredited classification. We believe that providing for such classifications will further the eradication of tuberculosis in this country and establish standards that we can apply in equivalent fashion to foreign regions in future rulemaking. The classifications we are proposing to add are titled modified accredited (with different standards than the modified accredited classification under the current regulations) and accreditation preparatory. Both of these classifications are discussed below under their respective headings.

With the addition of these two classifications, we believe it is necessary to make clear that the classification currently known as modified accredited describes a State or zone that is close to the eradication of tuberculosis in the animals in question. Therefore, we are proposing to rename the current modified accredited classification as modified accredited advanced. The requirements for achieving and maintaining modified accredited advanced status would be the same as those in the current regulations for achieving and maintaining modified accredited status (described above under the heading “Modified Accredited State or Zone”).

The requirements for the interstate movement of animals from a modified accredited advanced State or zone (proposed § 77.10 for cattle, bison, and goats; proposed § 77.25 for captive cervids) would differ from the current provisions for movement from a modified accredited State or zone in one significant respect. Under the current regulations, cattle and bison that originate in a modified accredited State or zone and that are not known to be infected with or exposed to tuberculosis may be moved interstate without restriction. However, because any State or zone other than an accredited-free State or zone includes at least one herd affected with tuberculosis, we consider it necessary to test animals moved from States or zones that are other than accredited free, unless certain other conditions exist that mitigate the tuberculosis risk to a negligible level. Therefore, in this document, we are proposing that specifically regulated animals may not be moved interstate from a modified accredited advanced State or zone without testing negative for tuberculosis unless they meet one of the following conditions:

1. The animals are accompanied by a certificate stating that they originated in an accredited herd that has completed the testing necessary for accredited status with negative results within 1 year prior to the date of movement.

2. The animals are moved directly for slaughter to an approved slaughtering establishment. (Currently, subpart A with regard to cattle and bison refers to movement to a slaughtering “establishment operating under the provisions of the Federal Meat Inspection Act (21 U.S.C. 601 et seq. ) or a State-inspected slaughtering establishment that has inspection by a State inspector at the time of slaughter.” Such an establishment is defined in current subpart B as an approved slaughtering establishment . In this proposed rule, wherever we refer in the regulations to such an establishment, we use the term “approved slaughtering establishment”).

3. The animals are cattle or bison that are steers or spayed heifers, or are officially identified sexually intact heifers that are moved to an approved feedlot. All cattle and bison so moved that are not individually identified by a registration name and number must be officially identified.

If the animals meet none of the above conditions, they may not be moved interstate unless they are accompanied by a certificate stating that they have been classified negative to an official tuberculin test that was conducted within 60 days prior to the date of movement for cattle, bison, and goats, and within 90 days prior to the date of movement for captive cervids.

The proposed requirement that the testing required for cattle and bison be done within 60 days prior to the date of movement differs from testing requirements in the current regulations (for nonmodified accredited States and zones), which require that the testing be done within 30 days prior to the date of movement. We are proposing to allow testing to be done within 60 days prior to movement in order to minimize disruption to standard livestock marketing practices. Under the current regulations, for example, cattle and bison tested 31 days prior to an intended date of movement could not be moved interstate. Because, as discussed above, an interval of at least 60 days is necessary between tuberculin tests for cattle, bison, and goats, under the current regulations cattle or bison tested 31 days prior to the intended date of movement would have to wait 29 days beyond the intended date of movement before being retested. We believe that this delay in movement, which can significantly impact the ability of owners to market their animals, is not warranted from an animal health perspective, because we believe the risk is negligible that an infected animal will not be detected because a test was done 60 days prior to movement rather than 30 days.

With regard to captive cervids, allowing a required test to be conducted within 90 days prior to movement would be consistent with the current provisions regarding the testing required for interstate movement from individual herds. Ninety days would be allowed for the testing of captive cervids for the same reason that 60 days would be allowed for cattle, bison, and goats— i.e. , to minimize disruption of standard livestock practices. We would allow the additional time for captive cervids, compared to cattle, bison, and goats, because of the longer waiting period that is necessary between tuberculosis tests of captive cervids.

We believe it is necessary to establish the above requirements for animals moved from modified accredited advanced States or zones to provide assurance that the tuberculosis risk from animals moving from a modified accredited advanced State or zone is no more than that from animals already in an accredited-free State or zone.

The new tuberculosis risk classification titled modified accredited would apply to States and zones whose animals represent a greater disease risk than those from States and zones classified as modified accredited advanced.

In proposed § 77.5 for cattle, bison, and goats and proposed § 77.20 for captive cervids, a modified accredited State or zone would be defined as a State or zone that is or is part of a State that has the authority to enforce and complies with the provisions of the UMR and in which tuberculosis has been prevalent in less than 0.1 percent of the total number of specifically regulated animals in the State or zone for the most recent year. However, the regulations would also provide that the Administrator, upon his or her review, may allow a State or zone with fewer than 10,000 herds of the animals in question to have up to 10 affected herds for the most recent year, depending on the veterinary infrastructure, livestock demographics, and tuberculosis control and eradication measures in the State or zone.

The provision that would allow the Administrator to give the proposed modified accredited classification to a State or zone with fewer than 10,000 herds that has up to 10 affected herds is similar to a provision in the current regulations for modified accredited States, retained in this proposed rule under the standards for achieving and maintaining modified accredited advanced status. Under the current regulations, the prevalence level of tuberculosis for modified accredited status must be less than 0.01 percent of the total number of herds, except that in States or zones with fewer than 30,000 herds, the Administrator may, upon his or her review, allow the State or zone to have up to 3 affected herds.

Although we consider a disease prevalence of less than 0.1 percent of the herds to be appropriate for the proposed modified accredited classification in most cases, we recognize that there are situations where the circumstances in a State or zone might warrant some deviation from that standard. For instance, the requirement for less than 0.1 percent prevalence means that, for every 10,000 herds in the State or zone, fewer than 10 herds may be affected. In a State or zone with fewer than 10,000 herds, the presence of fewer than 10 affected herds could cause the prevalence rate to exceed the allowable maximum. We do not necessarily consider this number of affected herds to represent a disease risk significant enough to disqualify a State or zone from the proposed modified accredited classification.

The factors the Administrator will consider in determining whether a prevalence level of 0.1 percent or more is acceptable include: (1) How effectively the veterinary infrastructure in the State or zone could detect and respond to the presence of an affected herd and (2) the risk of transmission of the disease from an affected herd to other herds, based on factors such as the density of the livestock population and the patterns of herd distribution.

As with accredited-free and modified accredited advanced States and zones, we are proposing to require for modified accredited States and zones (proposed § 77.11 for cattle, bison, and goats; proposed § 77.26 for captive cervids) that if any livestock other than cattle or bison are included in a newly assembled herd on a premises where a tuberculous herd has been depopulated, the State or zone must test those other livestock in the same way as cattle and bison when conducting a herd test according to the UMR, or else have its classification downgraded, in this case to accreditation preparatory.

Additionally, as with accredited-free and modified accredited advanced States and zones, we are proposing to require that if tuberculosis is diagnosed in a modified accredited State or zone in an animal not specifically covered by the regulations, and a risk assessment conducted by APHIS determines the outbreak poses a tuberculosis risk to livestock in the State or zone, the State or zone must implement a tuberculosis management plan, approved jointly by the State animal health official and the APHIS Administrator, within 6 months of the diagnosis, or have its classification downgraded, in this case to accreditation preparatory. It should be noted that our use of the word “implement” differs from the wording of the current regulations, which use the word “adopt.” We would use the word “implement” to make clear that a tuberculosis management plan must actually be in operation to meet the requirements of the regulations.

Modified accredited State or zone status would have to be renewed annually.

Interstate movement from proposed modified accredited States or zones: In this document, we are proposing (proposed § 77.12 for cattle, bison, and goats; proposed § 77.27 for captive cervids) that specifically regulated animals may not move interstate from a modified accredited State or zone without having to be tested for tuberculosis, unless they meet one of the following conditions:

1. The animals are accompanied by a certificate stating that they originated in an accredited herd that has completed the testing necessary for accredited status with negative results within 1 year prior to the date of movement.

2. The animals are moved directly to slaughter to an approved slaughtering establishment.

If the animals meet neither of the above conditions, they may not be moved interstate unless they meet one of the following conditions:

1. The animals are cattle or bison that are steers or spayed heifers, or are officially identified sexually intact heifers that are moved to an approved feedlot, and are accompanied by a certificate stating that they have been classified negative to an official tuberculin test conducted within 60 days prior to movement. All cattle and bison so moved that are not individually identified by a registration name and number must be officially identified.

2. If the animals are cattle, bison, or goats, they must be accompanied by a certificate stating that they have been classified negative to two official tuberculin tests conducted at least 60 days apart and no more than 6 months apart, with the second test conducted within 60 days prior to the date of movement. If the animals are captive cervids, they must be accompanied by a certificate stating that they have been classified negative to two official tuberculin tests conducted at least 90 days apart and no more than 6 months apart, with the second test conducted within 90 days prior to the date of movement. All animals that are so moved that are not individually identified by a registration name and number must be officially identified.

The proposed interstate movement requirements from modified accredited States and zones differ from those for modified accredited advanced States and zones in two ways. First, steers, spayed heifers, and officially identified sexually intact heifers moved to an approved feedlot from a modified accredited State or zone would have to test negative to one official tuberculin test (proposed § 77.12(b)). This requirement would not exist for movement from modified accredited advanced States and zones. Second, breeding animals not from an accredited herd would have to test negative to two official tuberculin tests (proposed § 77.12(d) for cattle, bison, and goats; proposed § 77.27(c) for captive cervids), rather than just one test as for movement from modified accredited advanced States and zones. We believe these additional safeguards are necessary for animals moved from modified accredited States or zones to provide assurance that the tuberculosis risk from animals moving from a modified accredited State or zone is no more than that from animals already in an accredited-free State or zone or a modified accredited advanced State or zone.

The tuberculosis risk classification titled accreditation preparatory would apply to States and zones that represent a greater disease risk than those classified as modified accredited.

In proposed § 77.5 for cattle, bison, and goats and proposed § 77.20 for captive cervids, an accreditation preparatory State or zone would be defined as a State or zone that is or is part of a State that has the authority to enforce and complies with the provisions of the UMR and in which tuberculosis is prevalent in less than 0.5 percent of the total number of herds of specifically regulated animals in the State or zone.

As with the classifications discussed above, we are proposing to require for accreditation preparatory States and zones that if any livestock other than cattle, bison, or goats are included in a newly assembled herd on a premises where a tuberculous herd has been depopulated, the State or zone must test those other livestock in the same way as cattle, bison, and goats when conducting a herd test according to the UMR, or else have its classification downgraded, in this case to nonaccredited (proposed § 77.13 for cattle, bison, and goats; proposed § 77.28 for captive cervids).

Additionally, as with the classifications discussed above, we are proposing to require that if tuberculosis is diagnosed in an accreditation preparatory State or zone in an animal not specifically covered by the regulations, and a risk assessment conducted by APHIS determines the outbreak poses a tuberculosis risk to livestock in the State or zone, the State or zone must implement a tuberculosis management plan, approved jointly by the State animal health official and the APHIS Administrator, within 6 months of the diagnosis, or else have its classification downgraded, in this case to nonaccredited.

Accreditation preparatory State or zone status would have to be renewed annually.

Interstate movement from accreditation preparatory States or zones : In this document, we are proposing (proposed § 77.14 for cattle, bison, and goats; proposed § 77.29 for captive cervids) that specifically regulated animals may not be moved interstate from an accreditation preparatory State or zone unless they meet one of the following conditions:

1. The animals are accompanied by a certificate stating that they originated in an accredited herd that has completed the testing necessary for accredited status with negative results within 1 year prior to the date of movement, and that the animals to be moved have been classified negative to an official tuberculin test conducted within 60 days prior to the date of movement for cattle, bison, and goats, and within 90 days prior to the date of movement for captive cervids. All animals that are so moved that are not individually identified by a registration name and number must be officially identified.

2. The animals are moved directly to slaughter to an approved slaughtering establishment.

3. The animals are cattle or bison that are steers or spayed heifers, or are officially identified sexually intact heifers that are moved to an approved feedlot, and are accompanied by a certificate stating that they have been classified negative to two official tuberculin tests conducted at least 60 days apart and no more than 6 months apart, with the second test conducted within 60 days prior to movement. All cattle and bison so moved that are not individually identified by a registration name and number must be officially identified.

4. The animals are accompanied by a certificate stating that they originated in a herd that has undergone a tuberculosis herd test with negative results conducted within 1 year prior to movement. Additionally, for cattle, bison, and goats, the certificate must state that the animals have been classified negative to two additional official tuberculin tests conducted at least 60 days apart and no more than 6 months apart, with the second test conducted within 60 days prior to the date of movement. For captive cervids, the certificate must state that the cervids have been classified negative to two additional official tuberculin tests conducted at least 90 days apart and no more than 6 months apart, with the second test conducted within 90 days prior to the date of movement. All animals that are so moved that are not individually identified by a registration name and number must be officially identified.

The proposed interstate movement requirements from accreditation preparatory States and zones differ from those for modified accredited States and zones in three ways. First, steers, spayed heifers, and officially identified sexually intact heifers moved to an approved feedlot from an accredited preparatory State or zone would have to test negative to two official tuberculin tests, rather than just one as for modified accredited States and zones. Second, in addition to testing negative to two additional official tuberculin tests, breeding animals not from an accredited herd would have to originate in a herd that has undergone a tuberculosis herd test with negative results. Third, animals from an accredited herd would have to originate in a herd that has completed the necessary testing for accredited status within 1 year prior to the date of movement, and test negative to an official tuberculin test within 60 days prior to movement for cattle, bison, and goats, and within 90 days prior to movement for captive cervids. We believe the additional safeguards are necessary for animals from an accreditation preparatory State or zone to provide assurance that the tuberculosis risk from animals moving from an accreditation preparatory State or zone is no more than that from animals already in an accredited-free State or zone, a modified accredited advanced State or zone, or a modified accredited State or zone.

In the current regulations, there is a tuberculosis State and zone classification called “nonmodified accredited.” The nonmodified accredited classification is a default category for all States or zones that do not qualify for accredited free, accredited free (suspended), or modified accredited. Currently, except for nonmodified accredited, modified accredited represents the highest tuberculosis risk. Therefore, any State or zone not meeting the minimum standards for modified accredited is classified as nonmodified accredited. The current criteria for modified accredited status are that the State or zone comply with the UMR and have had less than a 0.01 percent prevalence of tuberculosis among all herds in the State or zone for the most recent 2 years (with up to 3 affected herds allowed under certain conditions in States or zones with fewer than 30,000 herds). Currently, the only area that is classified as nonmodified accredited is a zone in the State of Michigan.

Under this proposal (proposed § 77.5 for cattle, bison, and goats; proposed § 77.20 for captive cervids), the nonaccredited classification would not cover as wide a risk range as the nonmodified accredited classification under the current regulations. Instead of applying to all States and zones that do not comply with the UMR or that have more than a 0.01 tuberculosis herd prevalence, as does the current nonmodified accredited, it would apply to all States and zones that do not comply with the UMR or that have a tuberculosis herd prevalence rate equal to or in excess of 0.5 percent, since 0.5 percent is the level at which a State or zone would cease to qualify for accreditation preparatory status.

Because any State or zone classified as nonaccredited would represent a relatively high tuberculosis risk, we believe it is necessary to impose stringent restrictions on interstate movement from such States or zones. Therefore, we are proposing (proposed § 77.16 for cattle, bison, and goats; proposed § 77.31 for captive cervids) that no regulated animals may be moved interstate from a nonaccredited State or zone unless they are not known to be infected with or exposed to tuberculosis and they meet one of the following conditions:

1. The animals are accompanied by a certificate stating that they originated in an accredited herd that has completed the testing necessary for accredited status with negative results within 1 year prior to the date of movement, and that they have been classified negative to an official tuberculin test conducted within 60 days prior to the date of movement for cattle, bison, and goats, and within 90 days prior to movement for captive cervids.

2. The animals are accompanied by VS Form 1-27 and are moved interstate in an officially sealed means of conveyance directly to slaughter to an approved slaughtering establishment.

Under § 77.7 of this proposed rule for cattle, bison, and goats, all States and zones currently designated as accredited free would retain that classification. In addition, the State of New Mexico, currently designated as modified accredited, would be classified as accredited free because New Mexico is a State that has had no affected herds of cattle, bison, or goats for the most recent 3 years and the Administrator has determined that New Mexico has conducted surveillance that demonstrates that wildlife and livestock herds other than cattle, bison, and goats are not infected with tuberculosis.

Under § 77.9 of this proposed rule for cattle, bison, and goats, the State of Texas, currently designated as modified accredited, would be classified as modified accredited advanced. Texas would qualify as modified accredited advanced because it complies with the UMR and, with a prevalence rate of affected herds of approximately .0002 percent, has had a tuberculous herd prevalence rate of less than 0.01 for the most recent 2 years.

The smaller zone in the State of Michigan, currently designated as nonmodified accredited, would be classified as modified accredited. (This zone, described in § 77.11(b) of this proposal with regard to cattle, bison, and goats, is the same zone as that delineated below with regard to captive cervids.) The State of Michigan complies with the UMR and, with a total of four affected herds in the past year, the zone is eligible for consideration by the Administrator for modified accredited status. Because we believe the veterinary infrastructure in the State could effectively detect and respond to the presence of an affected herd in the zone, and because of the limited number of herds in the zone (fewer than 600), it appears that modified accredited status for the smaller zone is warranted.

Under this proposed rule, we are classifying States and zones according to their tuberculosis risk with regard to captive cervids. We based the classifications we are proposing on preliminary information made available to us by State officials. This preliminary information enabled us to estimate the prevalence of tuberculosis among captive cervid herds in the States, and to determine whether the State has the authority to enforce and complies with the UMR. However, in general, the information we have received from States to date has not enabled us to document that a sufficient number of herds of captive cervids in the State or zone have been tested to ensure that tuberculosis infection at a prevalence level of 2 percent or more will be detected with a confidence level of 95 percent. This level of confidence is required by the regulations through its inclusion in the UMR.

Therefore, although we are proposing to classify States and zones according to tuberculosis risk in captive cervids as listed below, we wish to emphasize that, following the public comment period on this proposal, we will make final each proposed classification only if we have not received information demonstrating that the proposed classification should be other than that proposed, and if the State in question has provided us with the information necessary to document that surveillance in the State or zone meets the required standards. In order for each State to know exactly what information it will be required to provide under the final rule, we will allow a “grace” period for submission of the necessary information following publication of the final rule. We will not make final any State or zone classifications with regard to captive cervids until each State has had 90 days after publication of the final rule on the general requirements for State risk classification to submit the required information.

We are proposing that States and zones be classified for tuberculosis risk in captive cervids as follows:

Accredited-free States and zones. In proposed § 77.20, an accredited-free State or zone for captive cervids is defined, with certain exceptions, as a State or zone that is or is part of a State that has the authority to enforce and complies with the UMR, has zero percent prevalence of affected captive cervid herds, and has had no findings of tuberculosis in any captive cervids in the State or zone for the previous 5 years.

Based on the information available to us, we believe the following States and zones meet the conditions in the preceding paragraph and, therefore, we are proposing to classify them as accredited free: Alaska, Colorado, Hawaii, Idaho, Indiana, Louisiana, Maine, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, Wyoming, and that part of Michigan other than the zone described under “Modified accredited States and zones,” below.

Modified accredited advanced States and zones. In proposed § 77.20, a modified accredited advanced State or zone for captive cervids is defined, with one exception, as a State or zone that is or is part of a State that has the authority to enforce and complies with the UMR, and in which tuberculosis has been prevalent in less than 0.01 percent of the total number of herds of captive cervids in the State or zone for the most recent 2 years.

Based on the information available to us, we believe the following States meet the conditions in the preceding paragraph and, therefore, we are proposing to classify them as modified accredited advanced: Arizona, California, Florida, Georgia, Kansas, Kentucky, Mississippi, Missouri, New Jersey, North Carolina, Pennsylvania, Tennessee, and Wisconsin.

Modified accredited States and zones. In proposed § 77.20, a modified accredited State or zone for captive cervids is defined, with one exception, as a State or zone that is or is part of a State that has the authority to enforce and complies with the UMR, and in which tuberculosis has been prevalent in less than 0.1 percent of the total number of herds of captive cervids in the State or zone for the most recent year.

Based on the information available to us, we believe the following zone meets the conditions in the preceding paragraph and, therefore, we are proposing to classify it as modified accredited: A zone in Michigan delineated by starting at the juncture of State Route 55 and Interstate 75, then heading northwest and north along Interstate 75 to the Straits of Mackinac, then southeast and south along the shoreline of Michigan to the eastern terminus of State Route 55, then west along State Route 55 to Interstate 75.

Accreditation preparatory States and zones. In proposed § 77.20, an accreditation preparatory State or zone for captive cervids is defined as a State or zone that is or is part of a State that has the authority to enforce and complies with the UMR, and in which tuberculosis is prevalent in less than 0.5 percent of the total number of herds of captive cervids in the State or zone.

Based on the information available to us, we believe the following States meet the conditions in the preceding paragraph and, therefore, we are proposing to classify them as accreditation preparatory: Alabama, Arkansas, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, New Mexico, Ohio, Puerto Rico, Rhode Island, the Virgin Islands of the United States, and West Virginia.

Nonaccredited States and zones. In proposed § 77.20, a nonaccredited State or zone for captive cervids is defined as a State or zone that is or is part of a State that does not meet the standards of the UMR or in which tuberculosis is prevalent in 0.5 percent or more of the total number of herds of captive cervids in the State or zone.

Based on the information available to us, we do not believe that any States or zones meet the criteria for nonaccredited status.

Under the current regulations, the interstate movement requirements for captive cervids are based on the status of the herds the animals are part of. The four categories of herds for captive cervids under the current regulations are accredited, qualified, monitored, and unclassified. As noted above, we are proposing to allow captive cervids to be moved interstate according to the applicable State or zone movement requirements or the applicable individual herd requirements, whichever are less restrictive.

We are proposing however, to make a change to the provisions governing the movement from unclassified herds. Under the current regulations, cervids that are not known to be infected with or exposed to tuberculosis and that are from unclassified herds may be moved interstate if the cervids have tested negative to two official tuberculosis tests conducted no less than 90 days apart, provided the second test was conducted within 90 days prior to the date of movement.

Although we believe that the two tests currently required for unclassified herds are adequate to address the tuberculosis risk in certain States, that testing requirement would not adequately address the risk posed by animals moving from States or zones of relatively higher risk— e.g., those States or zones that would be classified as accreditation preparatory or nonaccredited with regard to captive cervids.

Therefore, we are proposing to amend the conditions for interstate movement from unclassified herds (set forth in § 77.15 of the current regulations and § 77.38 of this proposed rule) to remove the provision that captive cervids from unclassified herds may move interstate following two negative tests 90 days apart. By removing this provision, we would make cervids from an unclassified herd subject to the movement requirements for the State or zone in which the herd is located.

We are also proposing to amend the interstate movement requirements for captive cervids from a qualified herd in order to address the movement of cervids solely for exhibition. Under the regulations, to be eligible for qualified herd status, all captive cervids in the herd eligible for testing must have tested negative to an official tuberculosis test. Additionally, a captive cervid moved interstate from a qualified herd must be accompanied by a certificate that states that the cervid has tested negative to an official tuberculosis test conducted within 90 days prior to the date of movement.

Certain cervids, however, are moved interstate only for a limited period of time for exhibition and do not necessarily come into contact with other livestock. If the cervids are from a qualified herd, which means that they have already been tested negative once, and are kept isolated from other livestock after they leave the premises of origin, we believe they can be moved interstate for a limited period of time for exhibition with minimal risk of transmitting tuberculosis.

Therefore, we are proposing in § 77.36(b)(4) that captive cervids from a qualified herd moved interstate for the purpose of exhibition only may be moved without testing, provided they are returned to the premises of origin no more than 90 days after leaving the premises, have no contact with other livestock during movement and exhibition, and are accompanied by a certificate that includes a statement that the captive cervid is from a qualified herd and will meet the requirements of this paragraph.

We are proposing to revise certain of the definitions currently used in the regulations in order to clarify our intent regarding those definitions and to make those that would be used regarding cattle, bison, and goats consistent with those that would be used regarding captive cervids.

Certificate: Throughout the current regulations for both cattle and bison and captive cervids, the term “certificate” is used a number of times. Our intent is to apply the same definition to that term wherever it is used in part 77.

Currently, there is a definition of certificate in § 77.1 regarding cattle and bison. Although there is currently no definition of certificate in § 77.8 regarding captive cervids, there is a description in § 77.9(c) of the information that must be included on a certificate. Certain of the information included under the definition in § 77.1 is not included in the description in § 77.9(c). Our intent, however, is to require that the basic information supplied on a certificate regarding captive cervids be the same as that supplied regarding cattle, bison, and goats. Therefore, we are moving the definition of certificate from the current cattle and bison definitions to revised § 77.2, which would include definitions applicable to all of part 77. We would define certificate to mean an official document issued by an APHIS representative, a State representative, or an accredited veterinarian at the point of origin of a shipment of livestock to be moved under this part, which shows the identification tag, tattoo, or registration number or similar identification of each animal to be moved; the number, breed, sex, and approximate age of the animals covered by the document; the purpose for which the animals are to be moved; the date and place of issuance; the points of origin and destination; the consignor and the consignee; and which states that the animal or animals identified on the certificate meet the requirements of part 77.

Official seal. Both the current and proposed regulations refer to means of conveyance that are “officially sealed.” There is no definition of officially sealed in current § 77.8 regarding captive cervids. The definition in current § 77.1 regarding cattle and bison reads “a seal issued by a State or APHIS representative.” In 9 CFR part 78, which contains the regulations dealing with brucellosis in domestic livestock, there is a definition of “official seal” that more precisely clarifies our intent regarding that term. Therefore, we are proposing to use that definition in proposed § 77.2 to apply to all of part 77. “Official seal” as used in part 77 would mean a seal issued by a State or APHIS representative, consisting of a serially numbered, metal or plastic strip, with a self-locking device on one end and a slot on the other end, which forms a loop when the ends are engaged and that cannot be reused if opened, or a serially numbered, self-locking button that can be used for this purpose.

We are also proposing to revise the definition of officially identified. That term is currently used in the regulations regarding cattle and bison and also in this proposed rule regarding cattle, bison, goats, and captive cervids. Under the current regulations, an animal that is officially identified is identified by means of an official eartag, individual tattoo, or individual hot brand. Our intent with regard to such animals is that they be identified so as to provide unique identification of each animal, to allow for traceback of an animal to its source in the event of disease detection. We are proposing to revise the definition of officially identified to make that intent clear.

Additionally, we are proposing to revise the definition of captive cervid. In summary, the current definition includes all cervids raised or maintained in captivity for the production of meat and other agricultural products, for sport, or for exhibition. The current definition does not cover wild cervids that are not raised or maintained in captivity but that are moved interstate, such as those that are moved from one location to another in order to establish or expand a wild population in the destination location. We believe that not applying the regulations to the movement of such cervids creates an unacceptable risk of infected animals being transported interstate. Therefore, we are proposing to revise the definition of captive cervid to include all cervids, including wild cervids, that are moved interstate.

The current regulations with regard to captive cervids include definitions of official tuberculin tests. In these definitions, reference is made to “PPD” tuberculin. The acronym “PPD” stands for “purified protein derivative.” To make clear to the reader what we mean by PPD, we are adding a definition of purified protein derivative (PPD) to mean protein extract from an M. bovis culture that is resuspended in solution at a standard concentration of 1 mg protein per 1 ml of solution.

Additionally, certain other terms are used currently in both the provisions regarding cattle and bison, and those regarding captive cervids, but are defined in only one of the two current subparts in part 77. For consistency, we are adding those definitions to the new § 77.2 to apply to all of part 77. Those definitions that are applicable only to cattle, bison, and goats, or to captive cervids would be set forth in the subpart that deals specifically with the animals in question.

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

Bovine tuberculosis is a communicable disease of cattle, bison, cervids and other species, including humans, and results in losses in meat and milk production and sterility among infected animals. The Cooperative State-Federal Tuberculosis Eradication program has virtually eliminated bovine tuberculosis from the Nation's livestock population. However, we believe changes to the tuberculosis regulations are needed to further the efforts toward complete eradication.

Currently, the tuberculosis regulations define State risk status levels for cattle and bison. However, the status levels provide only for three broadly drawn classifications of risk, and two of the classifications carry no restrictions on the interstate movement of cattle and bison not known to be infected with tuberculosis. The regulations do not provide status levels for captive cervids; nor do they apply to goats. This proposed rule would increase the number of risk classifications, establish risk classifications for States and zones with regard to captive cervids, and apply the regulations to goats. The classification of a State or zone with regard to cattle, bison, and goats would not necessarily be the same as its classification with regard to captive cervids. Under this proposed rule, the five possible risk classifications would be accredited free, modified accredited advanced, modified accredited, accreditation preparatory, and nonaccredited.

In 1998, the total number of cattle and bison in the United States was approximately 99.5 million, valued at approximately $58.6 billion. That year, there were 1,115,650 U.S. operations with cattle and bison. Over 98.5 percent of these operations had a gross cash value of less than $500,000. There were 63,806 goat producers in the United States, who raised about 1.99 million animals valued at approximately $74 million. These goat holdings vary in size and degree of commercialization, with many producers relying on other sources of income. Most, if not all, goat operations are relatively small and earn less than $500,000.

The U.S. cattle industry plays a very significant role in international trade. In 1998, the total earnings from exports of live cattle, beef and veal were approximately $ 2.6 billion. The U.S. competitiveness in international markets depends to a great degree upon its reputation for producing high quality animals, a reputation that would be enhanced if bovine tuberculosis were eradicated in this country. The product, as well as purchasers' perceptions of quality, contributes to continued world market acceptance. Thus, efforts to maintain an effective tuberculosis program, to clarify the regulations, and to secure the health of the cattle industry will continue to serve the best economic interests of the Nation.

Currently, with regard to tuberculosis State or zone classification for cattle, bison, and goats, there are 47 accredited-free States, plus Puerto Rico and the Virgin Islands of the United States. As a result of this rule change, one modified accredited State (New Mexico) would become accredited free, bringing the total to 48 States that are entirely accredited free. A currently modified accredited State (Texas) would be classified as modified accredited advanced. One State (Michigan) is accredited free except for a single zone, which is nonmodified accredited. The zone in Michigan currently classified as accredited free would retain that status, and the zone in Michigan currently classified as nonmodified accredited would be classified as modified accredited.

The primary difference among the restrictions on interstate movement from the different proposed classifications is how many, if any, tuberculin tests with negative results the animal to be moved must undergo. The same test is used for cattle, bison, goats, and cervids and the cost of tuberculin testing for an average-sized herd is $380. The approximate per animal testing cost is $4.30, compared to an average value of approximately $600 for a head of cattle, $1,500 for a bison, and $40 for a goat.

Under this proposed rule, even though the status of a zone in Michigan would change, the testing requirements for cattle and bison moved interstate from that zone would be the same as under the current regulations. For Texas, the only change in testing requirements for cattle and bison moved interstate would be the addition of one test for breeding animals. Additionally, goats not from an accredited herd that are to be moved interstate would have to be tested once with negative results.

The cost of the required testing would depend on the number of animals to be moved interstate. Although we do not know how many cattle, bison, and goats are currently moved interstate from Texas from herds that are not accredited, the cost of a test per animal under this proposed rule would be less than 1 percent of the value of an average head of cattle and an even smaller percentage of the value of a bison. Although the cost of a test for a goat would constitute a greater percentage of its value, the test requirement would apply only to the fraction of animals moved interstate, and of that number, only to those animals not part of an accredited herd.

We are also proposing to establish five risk classifications for States and zones with regard to captive cervids: Accredited free, modified accredited advanced, modified accredited, accreditation preparatory, and nonaccredited. According to the new classification system, there would be 24 accredited-free States, 13 modified accredited advanced States, 12 accreditation preparatory States (and Puerto Rico and the Virgin Islands of the United States), and one State that has a modified accredited advanced zone and an accredited-free zone. There are 4,239 known herds of captive cervids in the United States, totaling about 165,200 cervids. The average market values of deer and elk, which together constitute virtually the entire population of captive cervids, are $600 and $3,500 respectively.

The proposed accredited-free States would account for approximately 77 percent of the known captive cervid population, modified accredited advanced for 11 percent, and accreditation preparatory for less than .3 percent. The State with split status would account for 12 percent. Fewer than 10 percent of captive cervids are moved interstate. Those not moved interstate would not be subject to this proposed rule. Under this proposed rule, owners of captive cervids to be moved interstate could move their animals according to the less restrictive of either the animals' herd status under the current regulations or the State or zone status under this proposed rule. Therefore, this proposed rule should have no negative economic effects on the owners of captive cervids. Owners of herds that are not accredited but that are located in accredited-free States or zones could save the cost of one or two tests per animal. The most that would be saved per animal would be less than 2 percent of the value of each deer and less than 1 percent of the value of each elk.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are in conflict with this rule will be prohibited; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 99-038-1. Please send a copy of your comments to: (1) Docket No. 99-038-1, Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

This proposed rule would establish several new levels of tuberculosis risk classifications to be applied to States and zones within States, and would classify States and zones according to their tuberculosis risk with regard to captive cervids. Additionally, it would specify that the regulations apply to goats as well as to cattle, bison, and captive cervids and increase the amount of testing that must be done before certain cattle, bison, and goats may be moved interstate.

In order to qualify for and retain a particular risk classification, a State or zone would be required to file a report with APHIS. Additionally, for movement from any State or zone other than accredited-free, certain animals to be moved would have to be tested and, in some cases, accompanied by a certificate. If tuberculosis is diagnosed in an animal not covered by the regulations within any State or zone other than one that is classified as nonaccredited, and a risk assessment conducted by APHIS determines that the outbreak poses a tuberculosis risk to livestock within the State or zone, the State or zone must adopt a tuberculosis management plan approved jointly by the State animal health official and the APHIS Administrator.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average .30608 hours per response.

Respondents: State animal health authorities, including State veterinarians and designated State tuberculosis epidemiologists.

Estimated annual number of respondents: 250.

Estimated annual number of responses per respondent: 8.416.

Estimated annual number of responses: 2,104.

Estimated total annual burden on respondents: 644 hours.

Copies of this information collection can be obtained from: Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250.

Accordingly, we propose to revise 9 CFR part 77 to read as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-ANE-56-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 99-ANE-56-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

The Federal Aviation Administration (FAA) has received a report of a cracked 1st stage high pressure turbine (HPT) disk installed on a Pratt & Whitney (PW) Model JT9D-7R4E turbofan engine. The crack was found during a routine maintenance inspection. The investigation revealed a 4-inch radial crack on the HPT 1st stage disk progressing through the web of one cooling air hole. The subject disk was returned to PW for investigation. Eddy current inspection (ECI) and fluorescent penetrant inspection (FPI) of the disk revealed axial indications on the surface of one 0.313-0.323 inch diameter cooling air hole surface that progressed completely through the web. Further examination revealed a severely worked layer extending to a maximum depth of 0.006 inch from the surface of the hole. No other cooling air hole exhibited cracks. This condition, if not corrected, could result in 1st stage HPT disk cracking, which could result in an uncontained engine failure and damage to the aircraft.

The FAA has reviewed and approved the technical contents of PW Alert Service Bulletin (ASB) JT9D-7R4-A72-563, and ASB JT9D A6367, both dated July 28, 1999, that describe procedures for detailed ECI of 1st stage HPT disks for cracks.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require initial and repetitive detailed ECI for cracks in 1st stage HPT disks, and, if necessary, replacement with serviceable parts. The actions would be required to be accomplished in accordance with the ASB described previously.

There are approximately 330 engines of the affected design in the worldwide fleet. The FAA estimates that 220 engines installed on aircraft of US registry would be affected by this proposed AD, that it would take approximately 4.5 work hours per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $165,000 per engine. Based on these figures, the total cost impact of the proposed AD on US operators is estimated to be $36,359,400.

This proposal does not have federalism implications, as defined in Executive Order No. 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposal.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order No. 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-ANE-10-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 99-ANE-10-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to Honeywell International Inc. (formerly AlliedSignal Inc. and Garrett Turbine Engine Company) high pressure compressor (HPC) impellers installed on TFE731-2, -3, -4, and -5 series turbofan engines, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on July 28, 1999 (64 FR 40789). That NPRM would have required replacing the HPC impeller with a serviceable impeller, which has been eddy-current inspected, at the next core zone inspection (CZI) or at the next access to the HPC module, and repetitive inspections at each subsequent CZI or each subsequent access to the HPC impeller for cause if the impeller has more than 1,000 cycles since the last eddy current inspection (ECI). That NPRM was prompted by a Federal Aviation Administration (FAA) determination that on May 10, 1998, a high pressure compressor (HPC) impeller, part number (P/N) 3073394-1, separated and exited from a TFE731-3R-1D turbofan engine. This impeller had accumulated 9,080 engine cycles since new (CSN) and 5,829 engine cycles since rework of the seal relief area in November, 1982, performed in accordance with Garrett Turbine Engine Company Service Bulletin (SB) TFE731-72-3239 RWK. Fracture analysis revealed a subsurface primary origin in the area of the seal relief and that the crack propagated through the bore for about 1.0 inch. No melt or forging related discrepancies were found at the fatigue origin; however, localized alpha grain colonies with an unfavorable fracture plane orientation were present. Recent low-temperature fatigue testing with a sustained peak hold time (dwell) at higher than engine-operating stresses indicate that normal cyclic fatigue lives may be influenced by dwell times and an unfavorable titanium macrostructure. The FAA has determined that low-cycle fatigue (LCF) cracking in high stressed areas of the HPC impeller may lead to an uncontained impeller separation. That condition, if not corrected, could result in an HPC impeller failure due to fatigue cracking.

Since that NPRM was published in the Federal Register , the FAA has received a number of comments that change the requirements of the original NPRM and the population of applicable HPC impellers was increased. The nature and extent of those changes were such that FAA has determined that a supplemental NPRM (SNPRM) should be issued.

The FAA has reviewed and approved the technical contents of AlliedSignal Inc. Alert Service Bulletin (ASB) TFE731-A72-3641, dated November 24, 1998, that describes procedures for removing, inspecting, and, if necessary, replacing HPC impellers, P/N's 3073393-1, 3073394-1, 3073433-1, 3073434-1 with serviceable impellers. The FAA has subsequently reviewed and approved ASB TFE731-A72-3641, Revision 1, dated October 20, 1999, that adds P/N's 3073398-All (where All denotes all dash numbers), 3073435-All, and 3075171-All.

Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design, this AD is being issued to prevent failure of the HPC impeller due to fatigue cracks. This AD requires removing and inspecting the HPC impeller, and if necessary, replacing the HPC impeller with a serviceable impeller. The removal and inspection will be conducted at the next CZI or at the next access to the HPC module, and repetitive inspections at each subsequent CZI or each subsequent access to the HPC module if the impeller has more than 1,000 cycles since the last ECI. These removals, inspections, and replacements must be done in accordance with the ASB described previously.

Since the issuance of that NPRM, the FAA has received the following four comments:

The manufacturer comments that paragraph (d) of the proposal should be deleted and recommends adding those HPC impellers identified as constituting terminating action to the applicability of the AD. During further investigation, all HPC impeller designs were found to be at risk of fatigue cracking from the same cause, and, therefore, warrant the proposed ECI. The FAA agrees. Paragraph (d) has been deleted from this supplemental NPRM (SNPRM) and HPC impellers P/N's 3073398-All, 3073435-All, and 3075171-All have been added to the applicability of the AD. At present, therefore, the proposal does not offer any terminating action to the required inspections. The FAA may undertake further rulemaking to terminate the ECI requirement.

The manufacturer also requests that proposed paragraphs (a) and (b) be reworded to state that operators must inspect the HPC impellers rather than replace the HPC impellers. The manufacturer believes that the use of the word replace may imply that operators must replace the HPC impeller with a new impeller at each time an inspection is required. The FAA agrees in part. As stated in the NPRM, only Honeywell International or persons trained by Honeywell International are properly equipped and qualified to perform this specialized ECI. The Service Bulletin directs operators to remove the HPC impeller and ship the impeller to a facility that can perform the inspection.

Using the words remove and inspect more accurately describe the actions the FAA is requiring of operators. The FAA has added a provision to both paragraphs (a) and (b), however, that operators must remove and inspect, and if necessary replace, applicable HPC impellers with “serviceable” impellers, and added a new paragraph (d) that defines “serviceable” as an impeller which complies with all applicable visual, dimensional, and fluorescent penetrant inspections requirements for the level of maintenance being accomplished, as contained in the Heavy Maintenance Manual and is either an impeller with fewer than 1000 engine operation cycles since new or an impeller with less than 1000 engine operation cycles since last ECI.

The manufacturer suggests that the words “Introduction of” should be deleted from proposed Note 2 following proposed paragraph (d). The FAA has already deleted paragraph (d) in response to the manufacturer's earlier comment, and therefore Note 2 has also been deleted in its entirety.

The manufacturer believes that the unsafe condition statements in the preamble and text of the NPRM that describes the intent of the AD should be changed. The commenter states that the AD does not prevent fatigue cracking of the HPC impeller, but rather is intended to detect fatigue cracking of the impeller. The FAA agrees in part. The unsafe condition identified as the underlying justification for this AD is failure of the HPC impeller due to fatigue cracking. The actions required by the AD are not intended to prevent the HPC from cracking, but to prevent the HPC impeller from failing, which could result in an uncontained engine failure, and damage to the airplane. Therefore, the preamble and text of this SNPRM has been changed to read that the AD is issued to prevent HPC impeller failure due to fatigue cracking.

Since these changes expand the scope and cost of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

There are approximately 7510 engines of the affected design in the worldwide fleet. The FAA estimates that 5482 engines installed on aircraft of U.S. registry would be affected by this proposed AD, that it would take approximately 3 work hours per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. The FAA also estimates that some of the impellers will be replaced, and that the impeller will cost about $45,000. Based on these figures, the FAA estimates the total cost impact of the proposed AD on U.S. operators for the next four years to be $2,201,760.

The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order (EO) 13132.

For the reasons discussed above, I certify that this proposed regulation (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); and (3) if promulgated, 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. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The current request for comments on the smokeless tobacco regulations is part of the Commission's regulatory review program, which has been implemented to review regulations and guides periodically. The regulatory review program seeks information about the costs and benefits of the Commission's rules and guides and their regulatory and economic impact. The information obtained will assist the Commission in identifying rules and guides that warrant modification or rescission.

Simultaneous with the regulatory review, the Commission is also seeking public comments on whether the regulations adequately implement the format and display requirements of the Smokeless Tobacco Act and for comment on several other issues relating to specific provisions of the regulations.

The Smokeless Tobacco Act was promulgated by Congress on February 27, 1986. The Act requires manufacturers, importers and packagers of smokeless tobacco products to display on a rotating basis one of the following healthy warning labels on product packages and in most advertisements:

The Act also directs the Commission to issue implementing regulations governing the format and display of the statutory health warnings on packaging and in most advertising for smokeless tobacco products.

On November 4, 1986, the Commission promulgated regulations specifying requirements as to the size, color, typeface, placement and rotation of those warnings, 51 FR 40015. For the most part, these provisions are set out as safe harbor provisions that state formats or displays that will be deemed to be in conformance with the Smokeless Tobacco Act rather than in terms of displays or formats that are required to conform. The Commission's regulations require manufacturers, importers and packagers to submit to the Commission for approval their plans for complying with the requirements for the display and periodic rotation of the three warnings.

The Commission amended its smokeless tobacco regulations on March 20, 1991, 56 FR 11662. 1 The 1991 amendments added a requirement for display of the warnings on “utilitarian items,” that is items other than smokeless tobacco that are sold or given to consumers for their personal use that display the name, logo, or selling message of any smokeless tobacco product. 2

The Commission is currently conducting a periodic review of the smokeless tobacco regulations as part of its periodic review of all current Commission rules and guides. Accordingly, the Commission is requesting comments about the overall costs and benefits of the regulations and their overall regulatory and economic impact.

In addition, the Commission is seeking public comment on the adequacy of the smokeless tobacco regulations in implementing the format and display provisions of the Smokeless Tobacco Act.

For labels, the regulations currently require that the warnings be displayed in a conspicuous and prominent place on the label and provide examples of places on the label of different types of smokeless tobacco packages that will be deemed to be conspicuous and prominent. For advertising, the regulations currently require that the statutorily mandated circle-and-arrow warnings be in conspicuous and legible type in contrast with all other printed material and must appear in all capital letters in a circle-and-arrow format. The regulations provide examples of display formats that will be deemed to conform to these requirements.

The Commission is interested in public comment on the effectiveness of the existing regulations in meeting the statutory format and display requirements. In particular, the Commission would like to receive comment on any consumer research, studies or other data bearing on the effectiveness of the warning requirements.

Many of the substantive provisions of the regulations are stated in terms of safe harbors, or displays that will be deemed to be in conformance with the Smokeless Tobacco Act, rather than as specific mandatory requirements. The Commission is seeking public comment on whether this safe harbor approach is sufficiently enforceable. In particular, the Commission is interested in public comment as to whether the safe harbor approach should be abandoned and if so, the costs and benefits of changing to an alternative approach.

Under the regulations as currently drafted, rectangular dispensers of individual packages of smokeless tobacco can display the label warning on any side of its packaging, provided that the dispenser can be sold in its entirety and the warning is the only printed or graphic matter on the side of the package where it appears. 16 CFR 307.6(a). It has recently come to the Commission's attention that this provision is being used to justify placement of the label warning on the back of dispensers commonly used as displays for the retail sale of individual packages of smokeless tobacco products. In this location, the warnings are not visible to the viewing public.

Accordingly, the Commission is seeking comment as to whether this provision of the Regulations should be revised to provide that any dispenser of individual smokeless tobacco packages that can be used as a retail display carry the label warning on its principal display panel.

Section 307.6(b) of the regulations currently provides that can rolls wrapped for sale as a single unit display a warning in 12-point type if the warnings on the individual cans in the roll are not completely visible. The warnings on the individual cans typically would be in 7 1/2 point type under the current regulations. One manufacturer has taken the position that the larger 12-point type requirement does not apply to can rolls consisting of only two cans. The Commission is interested in public comment on whether this provision should be amended to make it clear that the provision for a larger warning applies to any can roll consisting of two or more cans that are wrapped for sale as one unit if the warnings on the individual cans are not completely visible.

At this time, the Commission is seeking comment on various aspects of the smokeless tobacco regulations in conjunction with its regulatory review. Without limiting the scope of issues it is seeking comment on, the Commission is particularly interested in receiving comments on the questions that follow. Where commenters advocate changes to the regulations, please be specific in describing suggested changes. With respect to suggested changes to the regulations, please describe any potential costs and benefits such changes might have on industry and consumers. The Commission would also be interested in commenters providing any consumer research, studies or data that exist on issues raised in the questions.

1. Is there a continuing need for the regulations as currently promulgated?

(a) Since the regulations were issued, have changes in technology, industry structure or economic conditions affected the need for or effectiveness of the regulations?

(b) Do the regulations include provisions that are unnecessary?

(c) What are the aggregate costs or benefits of the regulations?

(d) Have the costs or benefits of the regulations dissipated over time?

2. What effect, if any, have the regulations had on smokeless tobacco purchasers, potential purchasers or the general public?

(a) What benefits have the regulations provided to smokeless tobacco purchasers, potential purchasers or the general public?

(b) What economic or other costs have the regulations imposed on smokeless tobacco purchasers, potential purchasers or the general public?

(c) What changes, if any, should be made to the regulations to increase the benefits to smokeless tobacco purchasers, potential purchasers or the general public?

(d) How would these changes affect the compliance costs the regulations impose on industry?

3. What impact, if any, have the regulations had on firms that must comply with it?

(a) What economic or other costs have the regulations imposed on industry or individual firms?

(b) What benefits have the regulations provided to the industry or to individual firms?

(c) What changes, if any, should be made to the regulations to minimize any burden or cost imposed on industry or individual firms?

(d) How would the changes affect the benefits provided by the regulations to smokeless tobacco purchasers, potential purchasers, the general public or industry?

4. Do the regulations overlap or conflict with any federal, state or local laws or regulations?

5. What significant burdens or costs, including costs of compliance, have the regulations imposed on small firms subject to their requirements?

(a) How do these burdens or costs differ from those imposed on larger firms subject to the regulations' requirements?

(b) What changes, if any, should be made to the regulations to reduce the burdens or costs imposed on small firms?

(c) How would these changes affect the benefits of the regulations?

(d) Would such changes adversely affect the competitive position of larger firms?

6. If the regulations are retained, are the size, color, typeface, or placement requirements sufficiently conspicuous and prominent within the meaning of section 3(b)(1) of the Smokeless Tobacco Act, 15 USC 4402(b)(1)? What evidence is there to show that the existing label disclosure requirements are or are not conspicuous or prominent or otherwise effective or ineffective?

7. If the regulations are retained, are the size, color, typeface, or placement requirements sufficiently conspicuous and prominent within the meaning of section 3(b)(2) of the Smokeless Tobacco Act, 15 USC 4402(b)(2)? What evidence is there to show that the existing advertising disclosure requirements are or are not conspicuous or prominent or otherwise effective or ineffective?

8. Many of the substantive provisions of the regulations are stated in terms of safe harbors, or displays that will be deemed to be in conformance with the Smokeless Tobacco Act, rather than as specific mandatory requirements. Are the regulations in this form sufficiently enforceable? Does this make it more difficult to prove that displays that do not conform to the safe harbors are not sufficiently conspicuous to conform to the requirements of the Smokeless Tobacco Act? Should the safe harbor approach be abandoned?

9. Should the regulations be revised to provide that any dispenser of individual smokeless tobacco packages that can be used as a retail display carry the advertising warning on its principal display panel?

10. Should the regulations be amended to provide that a can roll of individual smokeless tobacco packages can consist of as few as two cans?

11. Are there any other provisions of the regulations that need to be amended? If so, which provisions require change and how should they be changed?

12. What is the likely effect of any changes in the regulations suggested in response to questions 6 through 11 on costs, profitability, competitiveness, or employment in small business entities?

13. The Smokeless Tobacco Act requires that smokeless tobacco companies submit plans to the Commission specifying the method they will use to rotate, display, and distribute the required health warnings on their packaging and advertising. Making changes suggested in the regulations in response to questions 6 through 11 may require the smokeless tobacco companies to amend their plans for the display and rotation of the warning statements. What paperwork or other burdens would be imposed by any changes suggested in response to questions 6 through 11?

On October 20, 1999, the Commission issued its final Rule pursuant to the Children's Online Privacy Protection Act, 15 U.S.C. 6501 et seq. 1 The Rule requires certain website operators to post privacy policies, provide notice, and obtain parental consent prior to collecting certain personal information from children. The Rule contains a “safe harbor” provision enabling industry groups or others to submit self-regulatory guidelines that would implement the protections of the Rule to the Commission for approval. 2

Pursuant to § 312.10 of the Rule, PrivacyBot.com has submitted proposed self-regulatory guidelines to the Commission for approval. The full text of the proposed guidelines is available on the Commission's website, www.ftc.gov.

The Commission is seeking comment on various aspects of the proposed guidelines, and is particularly interested in receiving comment on the questions that follow. These questions are designed to assist the public and should not be construed as a limitation on the issues on which public comment may be submitted. Responses to these questions should cite the numbers and subsection of the questions being answered. For all comments submitted, please provide any relevant data, statistics, or any other evidence, upon which those comments are based.

1. Please provide comment on any or all of the provisions in the proposed guidelines. For each provision commented on please describe (a) the impact of the provision(s) (including any benefits and costs), if any, and (b) what alternatives, if any, PrivacyBot.com should consider, as well as the costs and benefits of those alternatives.

2. Do the provisions of the proposed guidelines governing operators' information practices provide “the same or greater protection for children” as those contained in §§ 312.2-312.8 of the Children's Online Privacy Protection Rule? Where possible, please cite the relevant sections of both the Rule and the proposed guidelines.

3. Are the mechanisms used to assess operators' compliance with the guidelines effective? See Rule § 312.10(b)(2). 3 If not, please describe (a) how the proposed guidelines could be modified to satisfy the Rule's requirements, and (b) the costs and benefits of those modifications.

4. Are the incentives for operators' compliance with the guidelines effective? See Rule § 312.10(b)(3). 4 If not, please describe (a) how the proposed guidelines could be modified to satisfy the Rule's requirements, and (b) the costs and benefits of those modifications.

5. Do the guidelines provide adequate means for resolving consumer complaints? If not, please describe (a) how the proposed guidelines could be modified to resolve consumer complaints adequately, and (b) the costs and benefits of those modifications.

6. Please comment on the effectiveness of automation in the proposed guidelines and describe other means or mechanisms, if any, PrivacyBot.com should consider for its safe harbor program.

The procedures for the hearings on the Ergonomics Program Standard follow:

1. Authority. The following procedures will be utilized in the public hearing on OSHA's proposed Ergonomics Program Standard (64 FR 65768; 65 FR 4795). OSHA rulemaking hearings are conducted in accord with Section 6(b)(3) of the OSH Act, 29 U.S.C. 655(b)(3), and the Secretary of Labor's procedural regulations in 29 CFR Part 1911. As noted in the Proposal, 64 FR 66065-66066, § 1911.4 allows the Assistant Secretary, upon reasonable notice, to specify additional or alternative procedures for good cause.

This document provides notice that the Assistant Secretary is exercising that authority in this case. In light of the very large number of parties who have filed notices of intent to appear at the hearings, the Assistant Secretary finds that good cause exists to establish additional procedures in advance to assure that the hearing proceeds in a fair, orderly, and timely manner.

2. Hearing Dates. As stated in the Federal Register document of February 1, 2000 (65 FR 4795), the hearing will begin on Monday, March 13, 2000 in the Frances Perkins Building Auditorium in the U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC. The hearing in Washington will run for 4 weeks through April 7. The hearing will resume on April 11 at the State of Illinois Building, James R. Thompson Center (Assembly Hall), 100 W. Randolph Street, in Chicago, Illinois, and will continue there until April 21. The hearing will then resume at the Mark Hatfield Federal Court House, Courtroom #16, 1000 Southwest 3rd Avenue, in Portland, Oregon on April 24 and run until May 3. The final week of the hearing will be May 8 through 12 at a location to be determined in Washington, DC. The hearing will begin at 9:30 a.m. on March 13; on subsequent days, the starting time will be 8:30 a.m. The hearing will ordinarily conclude by 6:00 p.m. each day; however, in order to assure orderly development of the record on any particular day, the Administrative Law Judge may extend the hearing that day. All questioning of public participants will be completed on the day the participants testify.

3. Nature of Hearing. This OSHA rulemaking hearing is a legislative-type hearing, not an adjudicative one. It is an informal administrative proceeding, intended for information gathering and clarification. This informal hearing is an adjunct to the written comment period, and is intended to provide interested persons with an additional opportunity to address the Agency and provide testimony and evidence for the rulemaking record. These procedural rules governing the hearing are intended to facilitate the development of a clear, accurate and complete record, while assuring fairness and due process. The rules of evidence and other procedural rules governing adjudications do not apply. Participants who have filed Notices of Intention to Appear may testify and question witnesses in accordance with these procedures (see Section II), but may not issue subpoenas or call to testify any person other than the persons who have agreed to testify for them. Motions to strike evidence will not be considered. The intent is to provide an opportunity for effective oral presentation by interested persons, and to avoid procedures which might unduly impede or protract the rulemaking process. 29 CFR 1911.15(c)(3).

4. Availability of Hearing Testimony. The February 1, 2000, Federal Register document provided that participants submitting documentary evidence or requesting more than 10 minutes for their presentations must submit their evidence and the full text of their written testimony to the docket postmarked no later than March 2, 2000 (65 FR 4795). The materials submitted have been or will be entered into the rulemaking docket (S-777) in the OSHA Docket Office, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, where they are available for inspection and copying. This affords all participants an opportunity to review the evidence and to formulate in advance questions they may wish to ask at the hearing.

1. Schedule for Testimony. The Assistant Secretary has established a schedule showing the location and date each participant will testify and be available for questions. A copy of the schedule has been provided to all participants who have filed a notice of intent to appear and is posted on OSHA's Web site (www.osha.gov). Each witness should plan to be present at the start of the day he or she is scheduled to testify. No individual witness will be allowed to present testimony in more than one location, although individuals appearing in a representative capacity may represent participants appearing at different locations. The schedule prescribes the amount of time for each participant to testify, and also allows time for other participants and OSHA representatives to question the witness. The Administrative Law Judge shall assure that the hearing proceeds in a fair and orderly manner so as to facilitate development of the record. Consistent adherence to the schedule will also allow advance planning by participants, many of whom are traveling from a considerable distance to testify.

2. OSHA Witnesses. The first witnesses at the Washington hearing on Monday March 13 will be a panel of OSHA representatives. Following the panel's presentation, participants who have filed notices of intent to appear and who wish to question the panel will be given the opportunity to do so. Initially each questioner will be given a 10 minute question period. The judge may adjust this, however, so long as the questioning is completed by March 14. The judge may allow participants additional question periods if there is time remaining after all participants have had an initial opportunity to question the panel members. The OSHA panel will testify only in Washington, and will be available for questioning only on March 13 and 14.

OSHA's expert witnesses and a panel of witnesses from NIOSH will testify and be questioned March 15 through March 21. Following each panel, participants will be allowed a period of time, as noted in the schedule, to question panel members. The Administrative Law Judge may allow additional questioning so long as the testimony and questioning of each panel is completed on the day it is scheduled.

3. Public Witnesses. Participants who have filed timely notices of intention to appear in Washington, DC, are scheduled to make their presentations and be questioned beginning March 21.

4. General. Written hearing testimony that is submitted before the hearing is already part of the rulemaking record, and participants who have submitted written testimony in advance will not be permitted to read that testimony at the hearing. Instead, they should use their oral presentation to summarize and clarify their written submissions. Participants may provide additional copies of their testimony for the convenience of other hearing participants.

Participants who have filed Notices of Intention to Appear but have not substantially complied with the requirements for the submission of written testimony and documentary evidence will be allowed a maximum time of 10 minutes for their presentations at the hearing and will be expected to respond to questions following their presentations. If time permits, the Administrative Law Judge may allow persons who have not filed Notices of Intention to Appear an opportunity to testify at the close of the day.

5. Questioning of Public Witnesses. Participants who have filed Notices of Intention to Appear may ask questions on relevant issues following a presentation. Representatives of OSHA may also question witnesses. The Administrative Law Judge shall allocate the time allowed in the schedule among questioners. The judge may adjust this time so long as the testimony and questioning of all witnesses scheduled for each day is completed that day.

Questions must be as brief as possible and must be designed to clarify a presentation or elicit information that is within the competence or expertise of the witness. Participants may not ask questions that are outside the scope of the matters addressed by this rulemaking.

The Administrative Law Judge shall not permit duplicative, argumentative, or irrelevant questions. Questioners will not be permitted to use the question periods to present their own testimony and views on issues.

Participants having similar interests are encouraged to designate one representative who can conduct the questioning on their behalf. When an organization is represented by more than one person, only one person from that organization may question each witness or panel.

After all questioners have had an opportunity to question a witness or panel, if a questioner still has important relevant questions that have not been asked, the questioner may request permission from the Administrative Law Judge to ask additional questions. Permission may be granted based on the time available and the witness schedule.

At the close of the hearing, those participants who have filed Notices of Intention to appear will have the opportunity to file additional evidence and data relevant to the proceeding, and to file final written briefs. Additional information and data relevant to the proceeding must be postmarked within 45 days of the close of the hearing; briefs must be postmarked 90 days after the close of the hearing. No reply briefs are to be filed.

At the close of the post-hearing comment period, the hearing record will be closed and certified by the Administrative Law Judge to the Assistant Secretary of Labor for Occupational Safety and Health.

On July 29, 1982, the Secretary of the Interior conditionally approved the Indiana program. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the July 26, 1982, Federal Register (47 FR 32107). You can find later actions on the Indiana program at 30 CFR 914.10, 914.15, and 914.16.

On February 4, 2000, the Indiana Department of Natural Resources (department), Division of Reclamation (DoR), sent us a copy of revised procedural rules for adjudicatory proceedings (Administrative Record No. IND-1685). These rules are codified in the Indiana Administrative Code (IAC) at 312 IAC 3-1 and provide procedures for administrative review proceedings held before the Natural Resources Commission (commission) and its administrative law judges. We previously approved Indiana's procedural rules at 310 IAC 0.6-1 for adjudicatory proceedings under its program. In 1996, Indiana repealed the procedural rules at 310 IAC 0.6-1 and revised and recodified their substantive requirements at 312 IAC 3-1. The DoR submitted the revised procedural rules in response to a required program amendment that we codified at 30 CFR 914.16(ff) on October 20, 1994 (59 FR 52906). Below is a discussion of that portion of the revised rules that pertain to administrative review under the Indiana program.

Subsection (a) specifies that 312 IAC 3-1 controls proceedings governed by Indiana Code (IC) 4-21.5, Administrative Orders and Procedures, for which the commission, or an administrative law judge for the commission, is the ultimate authority.

Subsection (b) allows an affected person to apply for administrative review under IC 4-21.5 and 312 IAC 3-1 if he or she is aggrieved by a determination of the director or a delegate of the director.

Subsection (c) defines “division director” as the director of the division of hearings of the commission.

Subsection (a) designates the commission as the ultimate authority for the department except as provided in subsection (b).

Subsection (b) designates an administrative law judge as the ultimate authority for an administrative review under: (1) An order under Indiana's Surface Coal Mining and Reclamation Act at IC 14-34, except for a proceeding concerning the approval or disapproval of a permit application or permit renewal under IC 14-34-4-13 or for suspension or revocation of a permit under IC 14-34-15-7; (2) An order granting or denying temporary relief under IC 14-34 or an order voiding, terminating, modifying, staying, or continuing an emergency or temporary order under IC 4-21.5-4; and (3) An order designated as a final order in 312 IAC 3-1-9.

Subsection (a) provides that a proceeding before the commission under IC 4-21.5 is initiated when one of the following is filed with the Division of Hearings: (1) a petition for review under IC 4-21.5-3-7; (2) a complaint under IC 4-21.5-3-8; (3) a request for temporary relief under IC 14-34; (4) a request to issue or for review of an issued emergency or other temporary order under IC 4-21.5-4; (5) an answer to an order to show cause under 312 IAC 3-1-5; or (6) a referral by the director of a petition for and challenge to litigation expenses under 312 IAC 3-1-13(g).

Subsection (b) requires the division director to appoint an administrative law judge to conduct the proceeding as soon as practicable after the initiation of administrative review under subsection (a).

Subsection (a) specifies that except as provided in subsection (b) and in 312 IAC 3-1-5 and 13, the matters contained in a pleading described in 312 IAC 3-1-3(a) are considered automatically denied by any other party.

Subsection (b) provides that a party wishing to assert an affirmative defense, counterclaim, or cross-claim must do so, in writing, and have the document filed and served no later than the initial prehearing conference, unless otherwise ordered by the administrative law judge.

Subsection (a) provides that 312 IAC 3-1-5 governs the suspension or revocation of a permit under IC 14-34-15-7.

Subsection (b) requires the director (or a delegate of the director) to issue, to the permittee, an order of permit suspension or revocation under IC 14-34-15-7 if the director determines that a permit issued under to IC 13-4.1, IC 14-34, or 310 IAC 12 should be suspended or revoked. The order of permit suspension or revocation must state that: (1) a pattern of violations of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12 exists; and (2) the violations are either willfully caused by the permittee, or caused by the permittee's unwarranted failure to comply with IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12. Subsection (b) further provides that, for the purposes of this subsection, the unwarranted failure of the permittee to pay any fee required under IC 13-4.1, IC 14-34, or 310 IAC 12 constitutes a pattern of violations and requires the issuance of an order of permit suspension or revocation.

Subsection (c) requires the director to serve by certified mail or personal delivery an order of permit suspension or revocation. Subsection (c) also clarifies that an order of permit suspension or revocation is governed by IC 4-21.5-3-6.

Subsection (d) requires a permittee, who wants to contest an order of permit suspension or revocation, to file a petition for review under IC 4-21.5-3-7 within thirty (30) days of his or her receipt of the order of permit suspension or revocation. Subsection (d) also specifies the kind of information that must be included in a petition for review, including whether the permittee wants a hearing on the order of permit suspension or revocation.

Subsection (e) provides that if a petition for review is not filed by the permittee under subsection (d), the order of permit suspension or revocation will become an effective and final order of the commission without a proceeding under IC 14-34-15-7(c).

Subsection (f) provides that if a petition for review is filed by the permittee under subsection (d) and a hearing on the order is sought by the permittee, the matter will be assigned to an administrative law judge for a proceeding under IC 4-21.5-3. Subsection (f) also sets out the burden of proof standards for the hearing. The director has the burden of going forward with evidence demonstrating that the permit in question should be suspended or revoked. The director satisfies the burden by establishing a prima facie case that a pattern of violations exists or has existed and the violations were willfully caused by the permittee or caused by the unwarranted failure of the permittee to comply with any requirements of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit conditions required under IC 13-4.1, IC 14-34, or 310 IAC 12. If the director demonstrates that the permit should be suspended or revoked, the permittee has the ultimate burden of persuasion to show cause why the permit should not be suspended or revoked. A permittee may not challenge the fact of any violation that is the subject of a final order of the director.

Subsection (g) provides that the administrative law judge will issue a nonfinal order if he or she determines that a pattern of violations exists or has existed. In this nonfinal order, the administrative law judge must consider the factors contained in 310 IAC 12-6-6.5. The administrative law judge must find that sufficient violations occurred to establish a pattern. The nonfinal order must comply with the requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-27(d) and IC 4-21.5-3-27(g). The administrative law judge may, at any time before the conclusion of the hearing, allow the parties to submit briefs and proposed findings.

Subsection (h) requires the administrative law judge to submit the nonfinal order to the commission within ten days following the date that the hearing is closed or within ten days of the receipt of the permittee's petition for review submitted under subsection (d) if no hearing is requested by any party and it is determined that no hearing is necessary.

Subsection (i) provides that a party must object to the findings and nonfinal order in writing in order to preserve for judicial review an objection to the nonfinal order of an administrative law judge. In its written objection, a party must identify the bases of the objection. The objection must be filed with the commission within 15 days after the findings and nonfinal order are served on the party.

Subsection (j) requires the commission to enter a final order affirming, modifying, or vacating the administrative law judge's order of permit suspension or revocation. The final order of the commission must be entered within 45 days following the issuance of the nonfinal order. The final order of the commission must be issued 60 days following the date that the hearing record is closed by the administrative law judge or 60 days following the administrative law judge's receipt of the permittee's petition for review filed under subsection (d) if no hearing was requested by any party and the administrative law judge determined that no hearing was necessary.

Subsection (k) provides that the minimum suspension period is 3 working days unless the commission finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12. The commission may impose preconditions that the permittee must satisfy before the suspension is lifted.

Subsection (l) requires the commission to serve the parties with a copy of the final order. A party may then apply for judicial review under IC 4-21.5.

Subsection (a) provides for the amendment of petitions for administrative review filed under IC 4-21.5-3-7. The various types of petitions that may to be amended are described in 312 IAC 3-1-3(a). A pleading may be amended once as a matter of course before a response is filed, but not later than the initial prehearing conference or 15 days before a hearing, unless otherwise allowed by the administrative law judge.

Subsection (b) specifies the circumstances under which amendments in a pleading relate back to the date of the original pleading.

Subsection (a) requires documents to be filed with the administrative law judge and served on all other parties.

Subsection (b) allows the filing of a document to be performed by personal delivery, first class mail, certified mail, interoffice mail, fax, or electronic mail.

Subsection (c) requires service of a document to be made upon the attorney or other authorized representative when a party is represented by an attorney or another authorized representative. If a party is not represented by others, service must be made upon the individual.

Subsection (d) provides that filing or service by properly addressed, prepaid first class or certified mail is complete upon deposit in the United States mail. Filing or service by another method is complete upon receipt.

Subsection (e) specifies that 312 IAC 3-1-7 does not modify the time in which a party may file objections under IC 4-21.5-3-29 or a petition for judicial review under IC 4-21.5-5.

Subsection (a) provides that an automatic change of administrative law judge may be obtained under 312 IAC 3-1-8.

Subsection (b) provides that a party may file a written motion for change of the administrative law judge without specifically stating the ground for the request. A party must file the motion within ten days after the appointment of an administrative law judge.

Subsection (c) requires the administrative law judge to grant the motion filed under subsection (b) and to notify the division director. The division director must inform the parties of the names of two other individuals from whom a substitute administrative law judge may be selected. A party who is opposed to the party who filed the motion under subsection (b) may, within five days, select one of the individuals named by the division director to serve as the substitute administrative law judge. The division director must select a new administrative law judge if the opposing party does not make a timely selection.

Subsection (d) specifies under what circumstances an automatic change of administrative law judges under this section does not apply. This section does not apply where a previous change of administrative law judge has been requested under this section. It does not apply to a proceeding under IC 4-21.5-4 or to temporary relief under IC 13-4.1. It does not apply if an administrative law judge has issued a stay or entered an order for disposition of all or a portion of the proceeding. Finally it does not apply if the commission orders a suspension of the section because of inadequate staffing.

Subsection (a) allows an administrative law judge to enter a final order of dismissal if the party who initiated administrative review requests the proceeding be dismissed.

Subsection (b) allows an administrative law judge, on the motion of the administrative law judge or the motion of a party, to enter a proposed order of default or proposed order of dismissal under IC 4-21.5-3-24, if at least one of the following applies: (1) A party fails to attend or participate in a prehearing conference, hearing, or other stage of the proceeding; (2) The party responsible for taking action does not take action on a matter for a period of at least 60 days; (3) The person seeking administrative review does not qualify for review under IC 4-21.5-3-7; or (4) A default or dismissal could be entered in a civil action.

Subsection (c) allows a party to file a written motion requesting the order not be imposed. The party must file the motion within seven days after service of a proposed order of default or dismissal, or within a longer period allowed by the proposed order. The administrative law judge may adjourn the proceedings or conduct them without participation of the party against whom a proposed default order was issued within the same time period. The administrative law judge must consider the interest of justice and the orderly and prompt conduct of the proceeding before taking either action.

Subsection (d) requires the administrative law judge to issue an order of default or dismissal if the party fails to file a written motion under subsection (c). If the party has filed a written motion under subsection (c), the administrative law judge may either enter or refuse to enter an order of default or dismissal.

Subsection (e) requires the administrative law judge, after issuing an order of default, but before issuing a final order or disposition, to conduct any action necessary to complete the proceeding without the participation of the party in default and determine all issues in the adjudication, including those affecting the defaulting party. The administrative law judge may conduct proceedings under IC 4-21.5-3-23 to resolve any issue of fact.

Subsection (f) requires an administrative law judge to approve an agreed order entered into by the parties if it is clear and concise and lawful.

Subsection (g) allows the secretary of the commission to affirm the entry of an agreed order approved by the administrative law judge under subsection (f).

Subsection (h) provides that a final order entered under this section is made with prejudice unless otherwise specified in the order. A person may seek judicial review of the order under IC 4-21.5-5.

Section 10 allows the administrative law judge to apply the Indiana Rules of Trial Procedure or the Indiana Rules of Evidence as long as they are not inconsistent with IC 4-21.5 or 312 IAC 3-1.

Subsection (a) requires an administrative law judge to govern the conduct of a hearing and the order of proof.

Subsection (b) requires the administrative law judge to provide for a separation of witnesses on a motion by a party before the commencement of testimony.

Subsection (a) provides that 312 IAC 3-1-12 governs the disposition of objections under IC 4-21.5-3-29.

Subsection (b) requires a party who wishes to contest whether objections provide reasonable particularity, to move, in writing, for a more definite statement. The administrative law judge may rule upon a motion filed under this subsection, and any other motion filed subsequent to the entry of the nonfinal order, and enter an appropriate order (including removal of an item from the commission agenda).

Subsection (c) requires that parties schedule objections for argument before the commission simultaneously with the presentation by the administrative law judge of findings, conclusions, and a nonfinal order. Unless otherwise ordered by the commission, argument must not exceed 10 minutes for each party and 20 minutes for each side.

Subsection (d) allows a nonparty to file a brief with the commission ten days before oral argument is scheduled on objections filed under subsection (c). A copy of the brief must be served upon each party. The brief must not be more than five pages long and cannot include evidentiary matters outside the record. Unless otherwise ordered by the commission, a nonparty may also present oral argument for not more than five minutes in support of the brief. If more than one nonparty files a brief, the administrative law judge must order the consolidation of briefs if reasonably necessary to avoid injustice to a party. A nonparty who has not filed a brief at least ten days before oral argument is first scheduled on objections may participate in the argument upon the stipulation of the parties.

Subsection (e) requires the commission to provide the services of a stenographer or court reporter to record the argument upon the written request of a party. This request must be filed at least 48 hours before an oral argument to consider objections.

Subsection (f) allows the secretary of the commission, as its designee under IC 4-21.5-3-28(b), to affirm the findings and nonfinal order. The secretary has exclusive jurisdiction to affirm, remand, or submit to the commission for final action, any findings and nonfinal order subject to this subsection. No oral argument will be conducted under this subsection unless ordered by the secretary.

Subsection (g) allows a party to move to strike all or any part of objections, a brief by a nonparty, or another pleading under 312 IAC 3-1-12. The administrative law judge must act upon a motion filed under this subsection by providing relief which is consistent with IC 4-21.5 and 312 IAC 3-1.

Subsection (a) provides that 312 IAC 3-1-13 governs an award of costs and expenses reasonably incurred, including attorney fees, under IC 14-34-15-10.

Subsections (b) and (c) do not pertain to the Indiana program.

Subsection (d) provides that appropriate costs and expenses, including attorney fees, may be awarded under IC 14-34-15-10 in five instances. First, litigation expenses may be awarded to any person from the permittee. However, the person must initiate or participate in an administrative proceeding reviewing enforcement and a finding must be made by the administrative law judge or commission that a violation of IC 14-34, a rule adopted under IC 14-34, or a permit issued under IC 14-34 has occurred or that an imminent hazard existed and the person made a substantial contribution to the full and fair determination of the issues. However, a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding. Second, litigation expenses may be awarded to a person from the department, other than to a permittee or the permittee's authorized representative, who initiates or participates in a proceeding. The person must prevail in whole or in part, achieving at least some degree of success on the merits. A finding must also be made indicating that the person made a substantial contribution to a full and fair determination of the issues. Third, litigation expenses may be awarded to a permittee from the department if the permittee demonstrates that the department issued a cessation order, a notice of violation, or an order to show cause why a permit should not be suspended or revoked in bad faith and for the purpose of harassing or embarrassing the permittee. Fourth, litigation expenses may be awarded to a permittee from a person, where the permittee demonstrates that the person initiated a proceeding under IC 14-34-15 or participated in the proceeding in bad faith for the purpose of harassing or embarrassing the permittee. Finally, litigation expenses may be awarded to the department from a person, where the department demonstrates that the person sought administrative review or participated in a proceeding in bad faith and for the purpose of harassing or embarrassing the department.

Subsection (e) allows the commission to order a person requesting a hearing to pay the cost of the court reporter if the person requesting the hearing fails, after proper notice, to appear at the hearing.

Subsection (f) specifies the factors that the commission must consider in determining what is a reasonable amount of attorney fees. The factors include: (1) The nature and difficulty of the proceeding; (2) The time, skill, and effort involved; (3) The fee customarily charged for similar legal services; (4) The amount involved in the proceeding; and (5) The time limitations imposed by the circumstances. For a party whose attorney is a full-time, salaried employee of the party, consideration also must be given to the prorated cost of the salary of the attorney and of the clerical or paralegal employees of the party who assisted the attorney. The employees' benefits attributable to the time devoted to representation must also be considered.

Subsection (g) requires a party who wishes to seek litigation expenses to petition the director within 30 days after the party receives notice of the final agency action. A party wishing to challenge the petition for an award must deliver a written response to the director within 15 days of service of the petition for an award. If a petition for seeking litigation expenses and challenge of the petition for award are delivered to the director under this subsection, the director must refer the matter to the division of hearings of the commission for the conduct of a proceeding under IC 4-21.5.

Subsection (a) requires the commission to employ and engage the services of a stenographer or court reporter, either on a full-time or a part-time basis, to record evidence taken during a hearing.

Subsection (b) allows a party to obtain a transcript of the evidence by submitting a written request to the administrative law judge.

Subsection (c) requires the party who requests a transcript under subsection (b) to pay the cost of the transcript.

Subsection (d) provides that, upon a written request by a party filed at least 48 hours before a hearing, a court reporter who is not an employee of the commission will be engaged to record a hearing.

Subsection (a) allows a person to request the department to interpret a statute or rule administered by the department as applicable to a specific factual circumstance. The request must be in writing and must describe with reasonable particularity all relevant facts. The request must cite with specificity the statutory or rule sections in issue. The request must identify any other person who may be affected by a determination of the request. Finally the request must describe the relief sought.

Subsection (b) allows the director or the director's delegate to provide a written response to the request. The written response must be provided within 45 days of the request. The response may include an interpretation based upon the information provided in the request or may specify additional information needed to respond to the request. If the department needs additional information, it has an additional 45 days in which to respond.

Subsection (c) provides that if the department does not respond within the periods described in subsection (b), a general denial of the request is deemed to have resulted.

Subsection (d) allows the person who is seeking the request under subsection (a) to file a petition for administrative review under IC 4-21.5-3 if he or she is aggrieved by the response of the department under subsection (b) or a general denial under subsection (c). The department's response constitutes a determination of status under IC 4-21.5-3-5(a)(5).

Subsection (e) provides that 312 IAC 3-1-15 does not excuse a person from a requirement to exhaust another administrative remedy provided by statute or rule. A person may not void or modify a final order entered by the department in another proceeding. A request does not extend any time limitation imposed on the availability of another administrative remedy. A final order of the department under this section, which follows a contested proceeding under IC 4-21.5-3, provides the same precedent as a final order following any other contested proceeding under IC 4-21.5-3.

Subsection (a) provides that upon the motion of a party, a hearing may be continued by the administrative law judge and shall be continued upon a showing of good cause.

Subsection (b) requires a motion to continue a hearing because of the absence of evidence to be made by affidavit. The affidavit must show the materiality of the evidence expected to be obtained; that due diligence has been used to obtain the evidence; and where the evidence may be. If the motion is based on the absence of a witness, the party's affidavit must show: the name and residence of the witness, if known; the probability of procuring the testimony in a reasonable time; that absence of the witness was not procured by the party nor by others at the request, knowledge, or consent of the party; what facts the party believes to be true; and that the party is unable to prove the facts by another witness whose testimony can be readily procured.

Subsection (c) provides that if, upon the receipt of a continuance motion under subsection (b), the adverse party stipulates to the truth of the facts which the party seeking the continuance indicated could not be presented, the hearing shall not be continued.

Subsection (a) provides that the record required to be kept by an administrative law judge under IC 4-21.5-3-14 commences when a proceeding is initiated under 312 IAC 3-1-3(a) and includes the items described in IC 4-21.5-3-33.

Subsection (b) provides that in addition to subsection (a), this subsection applies to a proceeding concerning the approval or disapproval of a permit application, permit revision application, or permit renewal under IC 14-34-4-13. However, nothing in this subsection precludes the admission of testimony or exhibits that are limited to the explanation or analysis of materials included in the record before the director. Neither does it preclude the manner in which the materials were applied, used, or relied upon in evaluating the application. Upon a timely objection made before or during a hearing, the administrative law judge shall exclude testimony or exhibits that are offered but that identify or otherwise address matters that are not part of the record before the director under IC 14-34-4-13. The record before the director includes: the permit; the permit application as defined at 310 IAC 12-0.5-10; documentation tendered or referenced, in writing, by the applicant or an interested person for the purposes of evaluating, or documentation used by the department to evaluate, the application; the analyses of the department in considering the application, including the expertise of the department's employees and references used to evaluate the application; documentation received under IC 14-34-4, including the conduct and results of any informal conference or public hearing under IC 14-34-4-6; and correspondence received or generated by the department relative to the application, including letters of notification, proofs of filing newspaper advertisements, and timely written comments from an interested person.

Subsection (a) requires a person, who wishes to take judicial review of a final agency action entered under 312 IAC 3-1, to serve copies of a petition for judicial review upon the persons described in IC 4-21.5-5-8.

Subsections (b), (c), and (d) list the names and addresses that a copy of the petition required under IC 4-21.5-5-8 must be served.

Subsection (e) provides that the commission and its administrative law judge provide the forum for administrative review under this rule. Neither the commission nor the administrative law judge is a party.

Under the provisions of 30 CFR 732.17(h), we are requesting comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Indiana program.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the administrative record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Your written comments should be specific and pertain only to the issues proposed in this rulemaking. You should explain the reason for any recommended change. In the final rulemaking, we will not necessarily consider or include in the Administrative Record any comments received after the time indicated under “DATES” or at locations other than the Indianapolis Field Office.

Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS No. IN-149-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Indianapolis Field Office at (317) 226-6700.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on March 22, 2000. We will arrange the location and time of the hearing with those persons requesting the hearing. If you are disabled and need special accommodations to attend a public hearing, contact the individual listed under FOR FURTHER INFORMATION CONTACT . The hearing will not be held if no one requests an opportunity to speak at the public hearing.

To assist the transcriber and ensure an accurate record, we request that you provide us with a written copy of your testimony. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard.

If only one person requests an opportunity to speak at a hearing, a public meeting, rather than a public hearing, may be held. If you wish to meet with us to discuss the amendment, request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We also make a written summary of each meeting a part of the Administrative Record.

The Office of Management and Budget (OMB) exempts this rule from review under Executive Order 12866 (Regulatory Planning and Review).

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 (Civil Justice Reform) and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on State regulatory programs and program amendments must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not require an environmental impact statement since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal which is the subject of this rule is based upon corresponding Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Therefore, this rule will ensure that existing requirements previously published by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the corresponding Federal regulations.

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq. ) that this rule will not impose a cost of $100 million or more in any given year on local, state, or tribal governments or private entities.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 00-35, adopted February 16, 2000, and released February 25, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800.

Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

The FMP was developed by the New England Fishery Management Council (Council) in response to concerns that the continued development and increased landings in the Atlantic herring fishery required implementation of management measures to prevent overfishing and to allow for the orderly development of the fishery. Development of the FMP was coordinated closely with the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission (Commission) to ensure that complementary management measures in both state and Federal waters were developed.

Atlantic herring were first managed by a Council fishery management plan approved by the Secretary of Commerce (Secretary) and implemented on December 28, 1978. This fishery management plan used a quota system to control catches in the fishery. The quota system, however, proved ineffective at controlling harvests because of unresolved ambiguities over catches in state waters. On September 28, 1982, the Secretary withdrew approval of that fishery management plan. Management of the resource then relied upon efforts by the States of Maine, New Hampshire, Massachusetts, and Rhode Island to adopt complementary regulations through interstate fishery management plans. In 1995, NMFS adopted a Preliminary Management Plan for the Atlantic Herring of the Northwestern Atlantic (PMP) to regulate foreign joint venture activities for Atlantic herring in the exclusive economic zone (EEZ) (60 FR 37848, July 24, 1995). In 1996, the Council and the Commission resumed the development of additional management measures. Rather than develop a joint FMP, the Council and the Commission began the process of closely coordinating separate FMPs for state and Federal waters.

The Council announced its intent to prepare an Environmental Impact Statement (EIS) for adoption, approval, and implementation of the FMP (62 FR 4384, August 2, 1997) and scoping hearings were held in Maine, Massachusetts, Rhode Island, and New Jersey in the fall of 1997. Preliminary discussions on the management measures began soon after. The Council published a draft EIS (DEIS)(63 FR 34871, June 26, 1998) and held public hearings in Maine, Massachusetts, Rhode Island, New Jersey, and Virginia in June and July 1998. These public hearings resulted in further refinements to the proposed management measures, which are presented in this proposed rule.

The Council formally submitted the FMP for Secretarial review and NMFS published a notice of availability (NOA) in the Federal Register on July 27, 1999 (64 FR 40542) requesting public comments. The public comment period for the FMP ended September 27, 1999. All comments received through September 27, 1999, were considered in the approval/disapproval decision on the FMP and will be addressed in the final rule. On October 27, 1999, NMFS, on behalf of the Secretary, approved all but four of the management measures contained in the FMP and informed the Council of its decision. The disapproved management measures were: (1) Effort limits through mandatory days out of the fishery; (2) spawning area closures; (3) adjustment of the TAC for Management Area 1A; and (4) a prohibition on specifying a total allowable level of foreign fishing (TALFF). The proposed scheme to restrict fishing to specific days based on the proportion of the TAC that is caught in a management area was disapproved because fishers could easily work around the days-out restrictions and undermine the conservation intent of National Standard 1 of the Magnuson-Stevens Act. Some fishers may fish on bad weather days to work around the days-out restrictions, raising a safety issue under National Standard 10 of the Magnuson-Stevens Act. The costs of imposing days out of the fishery outweigh the uncertain benefits. NMFS disapproved the spawning area closures because it was not demonstrated that the benefits of imposing the closures outweigh the costs. The spawning area closures would not apply to mobile, bottom-tending vessels which may disturb spawning herring, but only to purse seiners and mid-water trawlers participating in the directed fishery for Atlantic herring. The conservation benefits of this measure are uncertain. Further, the NMFS Northeast Region Office of Law Enforcement stated that spawning area closures that allow the possession of herring on board pose enforcement problems. NMFS also disapproved the in-season adjustment of the TAC for Management Area 1A because there is no real-time mechanism by which the Administrator, Northeast Regional Office, NMFS (Regional Administrator) can monitor the Canadian catch or that catch information would be provided in a timely fashion in future years. This measure is not consistent with section 303(a)(1)(A) of the Magnuson-Stevens Act as it is not a necessary and appropriate conservation and management measure because it may not work. It is also inconsistent with National Standard 7 of the Magnuson-Stevens Act because it will only impose costs to NMFS without assured benefits. Lastly, NMFS disapproved the prohibition on specifying a TALFF because this prohibition would be inconsistent with sections 201(d) and (303)(a)(4)(B) of the Magnuson-Stevens Act which require that any fishery management plan prepared by a Fishery Management Council, or by the Secretary, assess and specify the portion of optimum yield (OY) which, on an annual basis, will not be harvested by domestic fishing vessels and can be made available for foreign fishing. NMFS informed the Council that the proposed rule would provide for the annual specification of a TALFF, even if, in any given year, it is determined that the amount should be zero. Consequently, a TALFF is specified, albeit at zero, for the proposed initial specifications for the 2000 fishing year.

Herring landings have steadily increased in the last 10 years, with an increasing proportion taken in the EEZ, rather than in state waters. About 70 percent of the landings is now taken in the inshore Gulf of Maine (GOM). As recently as the late 1970s the stop seine and weir fishery accounted for the majority of the landings. Now the fishery is prosecuted primarily by purse seine and mid-water trawl vessels and the proportion of the landings taken by fixed gear in state waters is insignificant. The two major markets for herring are the bait market and sardine canneries. The lobster fishery has grown to depend almost entirely on herring for bait in the absence of an alternative, and it is estimated that 60 to 70 percent of the herring caught is used for bait in the lobster or tuna fisheries; about 30 percent is used by the sardine canneries; and some is processed into meal, frozen for use as bait in other fisheries, or used for animal feed.

The robust status of the herring resource, coupled with increasing regulation in other fisheries, has generated interest by fishermen to exploit the stock. The resource, serving as an alternative to the groundfish fishery for some fishermen, can support additional landings if spread throughout the range, but protection needs to be provided to individual spawning components. Scientists caution that the landings in the GOM inshore area should not increase; instead, any increase in landings of Atlantic herring should come from other areas.

Therefore, the FMP contains an approved measure that has target TACs, assigned by management areas, that would help prevent overfishing of components of the stock complex.

Atlantic herring is a key prey species in the North Atlantic Ocean and a food source for a wide variety of other fish species, marine mammals, and birds. If herring landings were to increase without any controls in place to prevent overfishing, there could be broad impacts on the entire ecosystem. For this reason, the Council has been cautious in setting the proposed specifications and target TACs for the fishery.

The biological, economic, and social impacts of these measures and the cumulative impacts associated with other FMPs and regulations are discussed in the FMP and FEIS.

In 1998, the 27th Northeast Regional Stock Assessment Workshop (SAW 27) was convened to examine the status of several species, including the coastal stock complex of Atlantic herring. SAW 27 reported that the abundance of herring in continental shelf waters between Cape Hatteras and the GOM has been increasing steadily since the mid-1980s, and the Georges Bank (GB)/Nantucket Shoals component has fully recovered from over-exploitation brought about by heavy foreign fishing in the 1960s and 1970s. As indicated in its June 1998 plenary report, SAW 27 estimated the current biomass of Atlantic herring as 2.9 million metric tons (mt), and spawning stock biomass as 1.8 million mt. Fishing mortality rate (F) of the entire stock complex is very low while recruitment in recent years appears to be very large. However, SAW 27 cautioned that there is considerable uncertainty over the current stock size estimate, so that any increase in landings should be allowed gradually.

SAW 27 estimated the maximum sustainable yield (MSY) as 317,000 mt, based on a conditioned run of a surplus production model. The Stock Assessment Review Committee (SARC), in reviewing this MSY estimate, expressed concern that it may be unrealistic. The SARC suggested that a yield-per-recruit model be used to estimate MSY. This model produced MSY estimates ranging from 108,000 to 290,000 mt. The SARC advised it would not be prudent to consider MSY to be above 200,000 mt until the size of recent year classes could be better estimated.

SAW 27 also considered the status of various stock components. The NMFS Northeast Fisheries Science Center fall trawl survey data were examined in order to determine the relative abundance of herring in three different areas during spawning season. SAW 27 concluded that, during spawning season, 25 percent of the stock complex occupies the GOM area, 65 percent is in the Nantucket Shoals area, and 10 percent is on GB. Analysis of this data shows that the proportion on GB appears to be increasing. While the overall complex is underutilized, SAW 27 concluded that the GOM component, which provides most of the commercial harvest, is fully utilized. The SARC recommended that any increases in Atlantic herring catches should not come from the GOM stock component.

This FMP establishes an overfishing definition for Atlantic herring in accordance with the national standards of the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of October 1996. Under the revised standards, overfishing definitions must be composed of two reference points, one for F and one for stock biomass. “Overfishing” occurs whenever a stock or stock complex is subjected to an F value that jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing basis. “Overfished” describes a stock or stock complex with a sufficiently low biomass to require a change in management practices to achieve the appropriate level or rate of stock rebuilding to the biomass target. Comments on the overfishing definition for this FMP were solicited in the NOA, because, although not codified in the regulatory text of the proposed rule, the overfishing definition is part of the FMP. The overfishing definition was approved by NMFS on October 27, 1997.

The proposed rule would establish a procedure for establishing OY that is based on the allowable biological catch (ABC). ABC would be determined by multiplying the estimate of current stock size by the target F. OY could not exceed ABC, adjusted by the Canadian GB and New Brunswick fixed gear catches, which could not exceed 20,000 mt for the Canadian New Brunswick fixed gear harvest and 10,000 mt for the Canadian GB harvest. The proposed rule would limit the amount of Canadian catch that would be considered when setting OY. OY also would not exceed MSY, unless an OY that exceeds MSY in a specific year is consistent with a control rule that ensures the achievement of MSY and OY on a continuing basis. However, OY would not exceed MSY prior to the 2001 fishing year. Because of some uncertainty in the current stock size estimates, the Council recommended, for purposes of setting the initial ABC, that the current stock size be assumed to equal B MSY (the biomass level that produces maximum sustainable yield), rather than basing it on actual estimates of current stock size, which exceed B MSY . This precautionary approach would limit catches until the estimates can be improved. The resulting ABC and OY, however, are still more than twice the amount of current landings.

The proposed rule would establish four additional specifications: Total amount allocated to processing by foreign ships (JVPt), either in state waters (IWP) or in the EEZ (JVP); amount of the domestic annual processing (DAP) allocated for at-sea processing by domestic vessels that exceed the vessel size limits established in the FMP (USAP); total amount of herring that can be taken in U.S. waters and transferred to Canadian herring carriers for transshipment to Canada (BT) as authorized by the Sustainable Fisheries Act (Pub. L. 104-297, section 105(e)); and, TALFF, if any, from that portion of OY that would not be harvested by domestic vessels. The Council and the Commission would consult annually to determine the allocation of JVPt to IWP and JVP.

This proposed rule would establish initial specifications for the 2000 fishing year. The FMP established specifications for the 1999 fishing year that would remain in effect for the 2000 fishing year, unless revised through the specification process. Because the 1999 fishing year has passed (the fishing year coincides with the calendar year), this proposed rule would establish the initial specifications for the 2000 fishing year at the levels specified in the FMP for the 1999 fishing year.

The proposed specifications include an ABC equal to 300,000 mt and an OY equal to 224,000 mt. Because the Council determined that the domestic annual harvest (DAH) is equal to the OY, TALFF would be specified at zero for the 2000 fishing year. Estimates of DAP are based on recent processing estimates and allow for possible errors in estimates of the bait market and increased development of processing capacity. No herring would be allocated to USAP for the 2000 fishing year, which would prohibit at-sea processing by domestic vessels exceeding the proposed size limits. Table 1 contains the proposed initial specifications for the 2000 Atlantic herring fishery.

The proposed rule would establish three management areas based on the existing areas established by the PMP and the Commission's FMP. However, Management Area 1 would be divided into an inshore (Area 1A) and an offshore (Area 1B) area. The Council would use the management areas as the basis for recommending the distribution of the TAC to different spawning components for the distribution of JVP allocations and could use the management areas as the basis for implementation of other management measures in the future.

The proposed rule would establish a target TAC for the 2000 fishing year. The FMP established a target TAC for the 1999 fishing year that would remain in effect for the 2000 fishing year, unless revised through the specification process. Because the 1999 fishing year has passed, this proposed rule would establish the target TAC for the 2000 fishing year at the level specified in the FMP for the 1999 fishing year. The TAC would be re-specified for each new fishing year. The TAC for a given year would be distributed to the management areas based on existing knowledge of fishing patterns, herring stock structure, and herring migration. For the 2000 fishing year the proposed percentage allocations for the various areas are: Area 1A - 20 percent; Area 1B - 11 percent; Area 2 - 22 percent; Area 3 - 22 percent; Reserve Area 2 - 24 percent. (See Table 2 for resultant management area target TACs.) Each year the Council's Herring Plan Development Team would examine available data and recommend a TAC and its distribution to the Council. The Council would then consult with the Commission before it recommends a TAC to NMFS. NMFS would review the Council's recommendations and set the TAC, publish the proposed TAC in the Federal Register for public comment, make a final determination, and publish the final TAC and responses to public comments in the Federal Register . All harvests of Atlantic herring, from both state and Federal waters, would be applied against the TAC.

The directed fishery for herring would be closed in a management area after the date on which 95 percent of the area TAC would be caught, as projected by NMFS. Closure of the directed fishery with 5 percent remaining for an area TAC would allow the incidental harvest of herring in other fisheries to continue, while minimizing the likelihood the area TAC would be exceeded. This percentage is based on estimates of the incidental harvest of herring in other fisheries. If the percentage allocated to the incidental harvest overestimates the amount caught (incidental harvests after a closure are less than 5 percent), the 5 percent remainder for a given area TAC could be reduced by NMFS during the annual specification process the following year. If the percentage allocated to the incidental harvest underestimates the amount caught (incidental harvests after a closure are more than 5 percent), the 5 percent remainder for a given area TAC could be increased the following year through a framework adjustment. After an area is closed, vessels would be allowed to possess, transfer, or land only 2,000 lb (907.2 kg) of herring, in or from, the closed area. Vessels that harvest herring in an open area would be allowed to transit the closed area, provided all gear is stowed.

The industry would be notified of the closure of the directed fishery for herring in a management area through notification published in the Federal Register and a variety of other methods, including news releases, and through state agencies.

Table 2 lists the proposed area TACs for the 2000 fishing year.

There would be no specific restrictions on transfers of herring at sea, unless a management area is closed to directed fishing for Atlantic herring and/or other restrictions in the regulations apply. When a management area is closed to directed fishing for Atlantic herring, transfers would be limited to no more than 2,000 lb (907.2 kg) of herring per day, in or from, an area subject to the closure. A vessel could not transfer more than 2,000 lb (907.2 kg) of herring taken from a closed area, nor transfer or sell any herring taken from a closed area to a joint venture vessel.

U.S. vessels could not transfer herring to Canadian herring carriers that transship U.S.-caught herring, if authorized pursuant to the Sustainable Fisheries Act (Pub. L. 104-297, section 105(e)), after the amount of herring transshipped equals the amount of the BT specification. Canadian herring carriers could not receive U.S.-caught herring after the amount transshipped equals the amount of the BT specification.

Domestic vessels " 165 feet (50.3 m) in length overall (LOA), or > 750 gross registered tons (GRT)/(680.4 mt), or > 3,000 horsepower would not be permitted to catch, take, or harvest herring in or from the EEZ. Domestic vessels > 165 feet (50.3 m) LOA, or > 750 GRT (680.4 mt) would be allowed, however, to process or receive herring in the EEZ, but would be limited to the allocated amount specified pursuant to the specification process for USAP.

NMFS notes discrepancies in the size, capacity, and/or horsepower restrictions between the Atlantic Herring and Atlantic Mackerel FMPs. However, NMFS in its October 27, 1999, letter to the Council indicated that it intends to work with the New England and Mid-Atlantic Councils to resolve inconsistencies in vessel size measures between their Atlantic Herring and Atlantic Mackerel FMPs.

The harvest of Atlantic herring for roe would be allowed, provided the carcasses are not discarded. The Council would monitor the development of a roe fishery and could, in the future, recommend a limit on the amount of herring that may be harvested for roe.

In the NOA for the FMP, NMFS identified the specification of the amount of herring to be used for roe as a measure of concern because of an erroneous interpretation of the Council's intent with respect to the manner in which limitations on the amount of herring harvested for roe would be implemented. Any restriction would be implemented through the framework adjustment process in accordance with 50 CFR § 648.206 rather than through notice action.

Foreign fishing vessel permitting and reporting requirements are established by 50 CFR 600, Subpart F, which include regulations on harvesting by foreign fishing vessels and joint ventures and internal waters processing and support. The Council would be allowed to recommend joint ventures and TALFF in all management areas, subject to an annual review. The Council could choose to determine joint venture specifications and TALFF by management area. If joint venture allocations and TALFF are specified by area, all herring supplied to the joint venture and/or TALFF would have to come from that management area.

The proposed rule would require the installation and use of a VMS unit on vessels in the directed herring fishery that caught > 500 mt in the previous year, or vessels whose owner intends to harvest > 500 mt in the current year. A VMS would help facilitate the monitoring of area-specific TACs and would assist with the enforcement of closures of management areas to directed fishing for Atlantic herring, as well as facilitate the enforcement of closures imposed under regulations implementing other FMPs. If a vessel owner does not declare the intention to harvest > 500 mt at the start of the year, and does not install a VMS unit on the vessel, the vessel may not harvest > 500 mt in that fishing year. The VMS unit must be installed prior to the beginning of the fishing year in order to land > 500 mt in that fishing year. Because in this application VMS is intended primarily to monitor areas fished as opposed to days-at-sea effort, a VMS unit would have to be operating any time an Atlantic herring vessel is underway, but would not have to be operating when a vessel is moored or maneuvering in a harbor. This would minimize communication costs to vessel operators and remove the necessity to provide power to a moored vessel with a VMS unit.

All commercial vessels meeting certain eligibility requirements fishing for, possessing, or landing herring in or from the EEZ would be required to obtain a Federal Atlantic herring permit. Domestic vessels " 165 feet (50.3 m) LOA, or > than 750 GRT (680.4 mt), or > 3,000 horsepower would not be eligible to be issued a permit to harvest or take herring. However, domestic vessels > 165 feet (50.3 m) LOA, or > 750 GRT (680.4 mt), regardless of horsepower, would be eligible to obtain a processing permit to process or receive herring in the EEZ, limited to the amount allocated for USAP pursuant to the specification process. Other than this restriction on vessel size, there would be no restrictions or qualification criteria necessary for a domestic vessel to receive a permit. A vessel with a Federal Atlantic herring fishing permit would have to be marked in accordance with 50 CFR 648.8.

An Atlantic herring carrier vessel would be required to obtain, in addition to a Federal Atlantic herring permit, a letter of authorization from the Regional Administrator that would allow such vessel to transport herring caught by another fishing vessel.

Operators of vessels issued an Atlantic herring fishing or processing permit would be required to obtain an operator permit. There would be no qualification or test for this permit. Dealers of Atlantic herring would be required to obtain a dealer permit and to comply with reporting requirements. To limit the number of entities that would have to comply with dealer permitting and reporting requirements, given the nature of herring fishing and processing, this rule narrowly defines Atlantic herring dealers as persons owning or operating a shore-based pump that offloads herring from vessels with a Federal Atlantic herring permit, persons that purchase herring that is offloaded directly from vessels with a Federal Atlantic herring permit other than for their own use as bait, and persons owning or operating a processing vessel that receive Atlantic herring from vessels with a Federal Atlantic herring permit. The purpose of narrowly defining who is a dealer is to minimize the burden of dealer reporting requirements. Many persons purchase the herring that is offloaded through a shore-based pump from one vessel. Under these circumstances, this definition would require only the pump operator to obtain a dealer permit and to file dealer reports, rather than all the persons who receive herring from the pump operator.

This proposed rule would require Atlantic herring processors to obtain a processing permit and to comply with reporting requirements. Atlantic herring processors are defined as persons who receive or obtain unprocessed Atlantic herring for the purposes of rendering it suitable for human consumption, bait, commercial uses, industrial uses, or long-term storage. These requirements could result in a person needing both a dealer and a processor permit. For example, a person who purchases herring directly from a vessel and then sells it as bait would need both permits.

This proposed rule would extend the existing Vessel Trip Report (VTR) system to vessels with Atlantic herring permits. This would require the owner/operator to submit monthly reports on fishing effort, landings, and discards on forms supplied by the Regional Administrator. In addition, in order to improve real-time monitoring of the harvest, an Interactive Voice Response (IVR) system would be required to be used. The FMP uses area-specific TACs to control fishing mortality. To be effective, harvests need to be closely monitored to ensure that the TAC is not exceeded. Since only vessel operators can identify where they harvest herring, the area specific TACs could not be monitored effectively through only the dealer reporting system. The VTR system relies on monthly reports, on paper, that are entered into a database. Accurate harvest statistics from this system are typically not available until 30 to 45 days after fish are landed. Given the high harvest rates in the herring fishery at certain times of the year, this would make it difficult to accurately project landings in a timely way. In order to improve the timely collection of harvest information, this proposed rule would require that an owner/operator of a vessel required to be equipped with a VMS unit report its harvest (landings and discards), by area, on a weekly basis. These reports would be called in (using a toll free number) to an automated response system. An owner/operator of a vessel with a VMS unit would have to call in a report for each week of the year, even if still at sea, including weeks they do not harvest herring. In addition, an owner/operator of a vessel that harvests " 2,000 lb (907.2 kg) of herring on a trip would also call in a report by Tuesday of the following week, even if the herring had not yet been landed. This system would improve the timeliness of information on harvests of herring, which would facilitate more accurate predictions about when the TAC will be attained.

Atlantic herring dealers would be required to submit weekly dealer reports by mail. Although dealers are required to submit a weekly report to an IVR system for other Northeast Region quota managed species, Atlantic herring dealers would not be required to submit a weekly report to an IVR system unless the Regional Administrator determines that there is a need for such reports.

Atlantic herring processors would be required to submit annually the Fishery Products Report, U.S. Processors, Annual Survey, (NOAA Form 88-13). This report, collecting information on the uses of herring, would facilitate the management of the fishery to achieve OY.

The Council submitted an omnibus essential fish habitat (EFH) amendment to address EFH provisions for several FMPs for Northeastern fisheries. The omnibus EFH amendment document also included the EFH components of the proposed FMP, which was then still under development by the Council. Although the Atlantic herring EFH components were included in the omnibus EFH amendment, they were not considered during Secretarial review of the omnibus EFH amendment. For Atlantic herring, the NOA for the omnibus EFH amendment (63 FR 66110, December 1, 1998) stated that “the omnibus amendment includes the EFH components of the FMP that is being developed by the [NEFMC Council]. The EFH information for Atlantic Herring will be incorporated by reference into the FMP when that FMP is submitted for Secretarial approval.” The NOA for the FMP invited comment on the approvability of the herring EFH provisions in the Council's omnibus EFH amendment. Under the proposed framework adjustment process for Atlantic herring, measures could be added or adjusted to describe, identify, and protect EFH and designate habitat areas of particular concern within EFH.

The FMP will be monitored on an annual basis. The status of the resource and the fishery will be reviewed by the Council's Atlantic Herring Oversight Committee in consultation with the Commission's Atlantic Herring Section. Recommendations on specifications will be developed, as well as any suggested changes to the management measures. These will be forwarded by the Herring Oversight Committee to the Council, which will take appropriate action. Specifications will be recommended to NMFS, and changes to management measures could be adopted through a framework adjustment or FMP amendment, as appropriate. This process will begin in July of each year so that changes could be implemented by January 1 of the following fishing year. The Commission will be expected to implement any corresponding changes in state waters.

The framework adjustment process adopted in the FMP is identical to that used in other Northeast Region fisheries. This process allows changes to be made to the regulations in a timely manner without going through the plan amendment process, as appropriate. It provides a formal opportunity for public comment that substitutes for the customary public comment period provided by publishing a proposed rule. If changes to the management measures were contemplated in the FMP and if sufficient opportunity for public comment on the framework action existed, NMFS could bypass the proposed rule stage and publish a final rule in the Federal Register . The management measures that could be implemented and adjusted through the framework process include the following: (1) Management area boundaries; (2) size, timing, or location of spawning area closures; (3) closed areas other than a spawning closures; (4) restrictions in the amount of fishing time; (5) a days-at-sea system; (6) adjustments to specifications; (7) adjustments to the Canadian catch deducted when determining specifications; (8) distribution of the TAC; (9) gear restrictions (such as mesh size) or requirements (such as bycatch-reduction devices); (10) vessel size or horsepower restrictions; (11) closed seasons; (12) minimum fish size; (13) trip limits; (14) seasonal, area, or industry sector quotas; (15) measures to describe EFH, fishing gear management measures to protect EFH, and designation of habitat areas of particular concern within EFH; (16) measures to facilitate aquaculture, such as minimum fish sizes, gear restrictions, minimum mesh sizes, possession limits, tagging requirements, monitoring requirements, reporting requirements, permit restrictions, area closures, establishment of special management areas or zones, and any other measures included in the FMP; (17) changes to the overfishing definition; (18) vessel monitoring system requirements; (19) limits or restrictions on the harvest of herring for specific uses; (20) quota monitoring tools, such as vessel, operator, or dealer reporting requirements; (21) permit and vessel upgrading restrictions; (22) implementation of measures to reduce gear conflicts, such as mandatory monitoring of a radio channel by fishing vessels, gear location reporting by fixed gear fishermen, mandatory plotting of gear by mobile fishermen, standards of operation when conflict occurs, fixed gear marking or setting practices; gear restrictions for certain areas, vessel monitoring systems, restrictions on the maximum number of fishing vessels, and special permitting conditions; (23) limited entry or controlled access system; (24) specification of the amount of herring to be used for roe; and (25) any other measure currently included in the FMP.

The Council, in its discussion of specifications for the Herring FMP, referred to an initial “fishing-up” period in which OY would not exceed MSY. A complete discussion is contained in section 3.2 of Volume I of the FMP.

NMFS interprets the initial “fishing-up” period to mean the 2000 fishing year.

On July 24, 1995 (60 FR 37848), NMFS announced approval of the PMP to regulate foreign joint venture activities for Atlantic herring in the EEZ. The PMP, which set the initial specification for Atlantic herring, provided joint venture opportunities in the exclusive economic zone by allocating a portion of the allowable biological catch for joint venture processing. The PMP also established permit conditions and restrictions for foreign vessels that participate in joint ventures. Because the FMP addresses issues related to Atlantic herring foreign joint venture activities, NMFS proposes to withdraw approval of the PMP and to remove existing regulations related to Atlantic herring (50 CFR 600.525) at the time the final rule implementing the FMP becomes effective.

The Regional Administrator determined that the FMP is necessary for the conservation and management of the Atlantic herring fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This action has been determined to be significant for the purposes of E.O. 12866.

The Council prepared an FEIS for the FMP; a notice of availability was published on September 24, 1999 (64 FR 51753). A copy of the FEIS may be obtained from the Council (see ADDRESSES ).

In compliance with the Regulatory Flexibility Act, the Council has prepared an IRFA that describes the economic impacts of the proposed measures on a substantial number of small entities. Reasons why the action is considered, as well as the objectives and legal basis of the rule, are described in the preamble to this rule and are not repeated here. The impacts on small entities attributable to the preferred management measures for approved measures and alternative management measures to the approved measures are discussed below. The IRFA and Supplement to the IRFA also contain information on the impacts on small entities of the measures disapproved by NMFS.

The identification of the number of small entities affected by this rule is complicated in two ways. First, vessels fishing for herring are not currently required to possess Federal herring permits. Second, while many vessels currently landing herring possess other Federal permits or letters of authorization, there are some vessels that fish for herring only in state waters that do not possess such permits or authorizations. Only those vessels that have another Federal permit are required to submit vessel trip reports and can be readily identified in the permit, vessel trip report, and dealer weighout databases.

Because some vessels may target herring for a small number of trips each year, vessels were identified as participating in a “directed” fishery for herring if they landed at least one trip of one metric ton (2,205 lb) or more of herring during 1997. There were only 61 vessels, which landed 97,300 mt, amounting to 99 percent of all herring landings in the Northeast, while 140 vessels landing herring during 1997 accounted for less than 71 mt. Expressed in terms of revenues, the 61 vessels derived about $10.7 million from herring fishing while the remaining vessels' total herring revenues did not exceed $8,000. Therefore, for IRFA purposes, the set of affected vessels is limited to these 61 vessels in the directed herring fishery.

Of the 61 vessels, 17 of them derived, on average, less than $1,000 in herring revenues in 1997. The remaining 44 vessels were divided into two groups. The first group of 25 vessels derived, on average, $5,534 from herring revenues in 1997. The remaining group of 19 vessels earned, on average, $524,000 from herring revenues in 1997. The 44 vessels constitute 22 percent of the 201 vessels that landed some herring in 1997 and 72 percent of the 61 vessels in the directed herring fishery. The regulations would mostly affect the group of 19 vessels that, on average, earned $524,000 from herring revenues in 1997. These vessels alone represent 31 percent of all business entities in the directed herring fishery. Whether the affected set of vessels is defined to include only 61 vessels or all of the 201 vessels that landed herring in 1997, the regulations would affect a substantial number, i.e., more than 20 percent, of the small entities in the fishery.

The Council also considered adopting a limited entry or controlled access system alternative. The Council considered a comprehensive system that could be adopted for either the entire management unit or for specific management areas. This alternative included the possibility of using limited entry in the GOM where there is a desire to restrict harvests, but not in the offshore areas where there is a desire to increase fishing effort. The Council did not choose this approach, because it felt that it would limit the ability of some smaller vessels in rebuilding fisheries to shift into the herring fishery.

The Council did not perform a detailed analysis of the impact of a limited entry or controlled access system on small businesses because this alternative was not pursued. The impacts of a controlled access or limited entry system on small businesses in the herring fishery depends on the qualification criteria used to limit the number of participants. It also depends on whether the limited entry system applied to all management areas or only particular management areas. The Council decided not to pursue the controlled access alternative because it conflicted with FMP goals and the full details of the proposal were not defined. The Council did provide the public an opportunity to comment on a wide variety of possible qualification criteria, and illustrated how those criteria would limit participants in the fishery. These criteria and their impacts illustrate the number of small businesses that would be affected by a limited entry program. At one extreme, the fishery would have been limited to 15 vessels that fished in Management Area 1 in 1996 or 1997 and possessed a letter of authorization to use small mesh nets in the GOM. If this qualification criteria were adopted for all management areas, 46 vessels that participated in the directed herring fishery in 1997 would be eliminated from the fishery. If only applied to Management Area 1A, it would eliminate 3-5 vessels that fished in this area but did not obtain a letter of authorization. It would also prevent vessels in other fisheries from participating in the herring fishery. At the other extreme, a proposed criteria would have issued a limited entry permit to any vessel that possessed a squid, mackerel, or butterfish permit. This would have qualified over 2,800 vessels for the fishery. The impacts of a large number of participants in the fishery on small businesses would be little different than the impacts from the open access alternative proposed by the Council.

The management areas adopted by the FMP are based on knowledge of the various spawning components. This allows the development of management measures that specifically target a particular spawning component. The management areas further provide the basis for TAC distribution and have been established to avoid the over-exploitation of individual spawning components that are included within the stock complex. The designation of management areas is not expected to have any direct economic impacts. The establishment of the areas would not impose any additional requirements on vessel operators, would not directly limit participation in the fishery, and would not restrict catches. The areas are, however, used to guide the distribution of the TACs, which would have economic impacts on vessels that are discussed in the following section.

Under the existing management scheme, there are no limits on the domestic harvest of herring. While overall revenues could increase under the FMP, there would be changes in which management areas supply those revenues. Historically, most domestic herring landings have come from the inshore GOM, defined now as Management Area 1A. The proposed management measures are not intended to reduce herring landings overall, but rather to reduce herring landings from Management Area 1A only. However, other TAC options considered by the Council also reduce the expected landings from Management Area 1A from current levels. The proposed TAC exceeds overall landings, and the proposed TAC by management area for Areas 1B, 2, and 3 exceed current landings from each of those management areas. Since specification of TACs in Areas 1B, 2 and 3 that are greater than current landing levels would not constrain fishing activity, reduce revenues, or impact small businesses, the Council focused on analyzing the economic impacts of the TAC t in Management Area 1A.

The range of options considered by the Council provided different levels of protection to individual spawning components. When considering the TAC distribution options, the Council did not just consider different TAC levels for the various management areas.

Each option also identified a different process for distributing the TACs. While some of the options have less economic impact on Management Area 1A revenues than the proposed action (based on catches in 1997 and 1998), the rejected options included methods of distributing the TAC that were determined not to meet the conservation goals and objectives of the FMP.

Option 1 proposed assigning a TAC to each of Management Areas 1A, 1B, 2A and 2B/3. (The proposed Area 2A - the northern part of Area 2 - is not adopted by this FMP.) The seasonal (winter) TAC assigned to Area 2A would have explicitly considered the mixing of GOM and GB/Nova Scotia fish in this area. By limiting the catch in this area, some control would have been exercised over the amount of GOM herring caught during the winter months. If the catch in this area during this time period was unlimited, it is possible that the GOM spawning component could be rapidly depleted without notice. Similarly, the TAC in Area 1A protects the GOM herring in this area during the remainder of the year. TACs for the other areas insure that the overall catch does not exceed the OY. This option was rejected because of uncertainty over the migration of GOM herring into the proposed Management Area 2. While the migration patterns can be estimated based on the location of herring in this area during the winter months when the GB stock had collapsed, the exact location of herring in this area is unknown.

Option 2 proposed assigning a TAC to each of Management Areas 1A and 3. A TAC was also to be assigned to Management Areas 1B and 2 combined (the TAC could be taken from these two areas regardless of catch location). TACs are assigned based on knowledge of stock structure and migration of herring. By limiting the catch in Management Area 1A, protection is provided to the GOM spawning component. Using a TAC to limit catches in Management Area 3 provides some protection to GB/Nantucket Shoals spawning component fish. The combined TAC in Management Areas 1B and 2 would simplify the administration of the TAC system. This option was rejected because the combined TAC for Management Areas 1B and 2 increases the risk of overfishing those herring in Management Area 1B in the summer months. Herring in this area are believed to come from both the GOM and GB/Nantucket Shoals spawning components. Large catches (in theory, at least, of up to the total TAC for these two areas) would unacceptably risk damaging these spawning components. While catches of this magnitude may be unlikely given recent landings in Area 1B, the strong market demand during the summer months when herring are in this area could result in an unacceptably high catch. By combining the TAC for this area with the TAC for Area 2, there is little protection provided to herring in Management Area 1B.

Option 3 proposed assigning TACs to all four areas for each of three seasons. It makes explicit use of knowledge of stock structure and relative stock sizes to control catch in each area and time period so that individual spawning components are not damaged. In theory, this option provided the greatest protection to individual spawning components of herring. This option was rejected however because, in practice, it relied on a level of detail on stock structure that is lacking. The complexity of the scheme also made it less likely that it could be accurately monitored and implemented, reducing its effectiveness.

Option 4 proposed assigning TACs to the three major management areas based on an estimate of the amount of fish that is present in these areas on an annual basis. It does not have as close a relationship to current knowledge on stock structure. It does provide some measure of protection to the individual spawning components, primarily through the use of conservative TACs. Because this method places less emphasis on seasonal migrations of herring, any amount of herring assigned to Management Area 1B reduces the amount of herring available for Management Area 1A. TACs must be set at conservative levels to prevent overfishing of specific spawning components. This option was rejected because of its reliance on historic fishing patterns that may change.

Option 5 proposed assigning one overall TAC to the entire coastal stock complex based on the ABC and OY. This option was rejected because it ignores any information on stock structure, and assumed that the entire coastal stock complex is one homogenous stock. For this reason, it provides no protection whatsoever to individual spawning components. In theory, the entire OY could be taken from the GOM in the summer months. Harvests at this level far exceed historical catches from this area and could not be supported. This approach could decimate herring stocks if all fishing effort is concentrated in one management area.

The proposed TAC alternative would result in a greater decline in landings from 1996-97 levels in the in-shore GOM than the non-selected alternatives. (The potential changes in revenue under the various TAC options in Management Area 1A may be seen in Table E.58 of the FMP.) These rejected alternatives would increase the risk of overfishing the inshore herring resource. In general, the rejected options did not provide sufficient protection to specific spawning components of herring - specifically, the GOM spawning component of herring. ( Note : The proposed options were developed prior to issuance of the report of the 27th SAW, which evaluated GOM herring as fully exploited.) The 27th SAW noted that current levels of F in the GOM may not be sustainable. The Council considered this report in selecting and determining its TAC distribution method and initial TACs.

Sixty-one vessels participated in the directed herring fishery in 1997. The negative impacts of the reduction in Area 1A TAC would not be uniform for all vessels or all sectors on the 61 vessels. It would most heavily impact those vessels that fished only in this area. Because almost 70 percent of the landings and 67 percent of the revenues from the entire herring fishery came from Area 1A in 1997, vessels that fish for herring exclusively or primarily within Area 1A are expected to experience the greatest negative impacts of the TACs established under the FMP. Of the 61 vessels in the entire directed fishery in 1997, 39 fished at least a portion of the year in Area 1A. Of these, 9 had annual herring revenues of less than $1,000 per vessel, 13 had annual herring revenues of between $1,000-$29,000 per vessel; and 17 had annual herring revenues of more than $30,000 per vessel. Based on the 1997 fishery (the most recent year landings data were available at the time the analysis was prepared), the imposition of the Area 1A TAC established under the FMP could reduce herring landings from this area by as much as 36.5 percent. Therefore, assuming proportional impacts of the TACs across all vessels fishing in Area 1A, 9 vessels could experience reductions in revenue of up to $365 per vessel, 13 could experience reductions of up to $10,843 per vessel, and 17 could experience reductions of more than $11,000 per vessel. Since about 67 percent of revenues from the entire herring fishery in 1997 came from Area 1A, the TAC could result in a decline in total revenues to the fishery of as much as 25 percent.

Actual impacts of the TAC are expected to be less than described above. The FMP establishes a TAC for the entire herring fishery at a level that would allow total landings to double over 1997 levels. Given that there is at least some flexibility for a portion of the 39 vessels that fished in Area 1A in 1997 to fish outside Area 1A for some or all of the fishing year, those vessels could harvest herring in other management areas and thereby replace some or all of the revenues lost to them due to Area 1A harvest restrictions. The extent of this revenue replacement depends on the willingness and ability of vessel owners to change ports or to travel farther to locate herring in other management areas, their ability to market their catch, and any ex-vessel price changes that might result. Furthermore, of the 39 vessels that fished in Area 1A in 1997, only 3 or 4 (purse seiners) fished exclusively within Area 1A. Although it is not possible to quantify the extent to which the other 35 or 36 vessels fished outside Area 1A, their dependence on Area 1A, and the precise impacts of Area 1A TAC restrictions on their revenues are likely less than those described above.

In addition, the Council's analysis was based on the best available landings-related information for 1997. While the proposed TAC would reduce landings from the 1997 high levels, 1998 landings information available for Area 1A indicate that only 43,000 mt were landed. This amount is 2,000 mt less than the proposed 45,000 mt TAC for this area. However, because of wide variations in Atlantic herring landings over the past 20 years, it cannot be determined that the decrease in the 1998 landings reflects a trend in the fishery. It is possible that other exogenous factors could have factored in the reduced 1998 landings.

Vessels, dealers, and processors would be required to obtain permits and comply with reporting requirements. Some participants in the fishery already have a federal permit and comply with reporting requirements for another fishery. The compliance costs are primarily due to the time required to complete and submit the necessary forms. The annual costs to comply with these requirements are estimated at $7.80 for vessel permits, $25.32 for operator permits, $27.00 for vessel trip reports, and $52.00 (maximum) for interactive voice reports. Total annual compliance costs per vessel are thus $112 per vessel for these measures. The total annual cost for dealers is estimated to be $1.58 for permits and $78.70 for weekly landing reports, for an annual total of about $80 per dealer. The annual compliance costs for processors is also estimated to be $1.58 for permits and $7.83 for an annual report, or a total of $9.41 per processor. These costs are considered insignificant.

The Council's rationale for requiring permits, as opposed to taking no action in this regard, is to identify participants in the fishery. Currently, no comprehensive reporting requirements for vessels fishing for herring exist. When permitted, participants in the fishery would be identified and landings and purchases of herring would be reported. With the level of detailed reporting required, catches would be better monitored, enabling managers to more accurately calculate estimates of F and resource status.

Vessels that intend to harvest > 500 mt of herring, or that harvested > 500 mt of herring in the previous year, would be required to operate a VMS unit. The annual cost per vessel to purchase, install, and operate a VMS unit is estimated to be $2,700. Additional costs would be incurred due to burden-hour estimates of the requirements associated with VMS, estimated at an additional $111 per vessel per year. At the > 500 mt threshold, this would be approximately 4 percent of annual revenues from herring. When compared to the average herring revenues of the 19 vessels that landed most of the herring in 1997 and who would be required to have a VMS based on 1997 landings, this cost is equal to approximately 0.5 percent of the average revenues for this group.

The Council considered requiring all vessels in the herring fishery to have a VMS. This alternative was rejected, as there seemed to be little justification to require a VMS on those vessels that land only a small amount of herring. The costs of installing and operating a VMS would exceed herring revenues for many of the vessels that landed only a small amount of herring, particularly those that did not participate in the directed fishery. The Council also considered not requiring a VMS on any herring fishing vessels. This alternative would have eased the burden on the small businesses in the herring fishery because they would not have had to pay for the installation and maintenance of the equipment. This option was rejected by the Council because it determined that it was crucial to require a VMS for administration and enforcement of the FMP. The FMP uses area-specific TACs to control F in the fishery. In order for there to be confidence in reported catch locations, there is a need for an independent method to verify fishing vessel location. The U.S. Coast Guard surveillance flights and aircraft could provide this verification, but are limited in number and could not cover the entire fishing area due to limited assets. A VMS system, on the other hand, would provide the ability to monitor vessel location whenever the vessel is underway. The VMS system would generate a record of each trip that could be compared to reported catch locations to make sure that catches were reported in the correct management areas. VMS would also make it easy for patrolling cutters and aircraft to locate herring fishing vessels and verify their activity. In addition, VMS would provide an additional capability to verify that vessels were not fishing in a management area when the area is closed because the TAC was exceeded. The Council determined that the benefits of a VMS requirement would exceed the costs imposed on small businesses.

With a no action alternative, the entire area closure would require surveillance. The > 500 mt threshold requirement to use a VMS unit insures that the majority of herring landings would be monitored, while minimizing costs to the industry by only requiring a VMS unit for a small number of specific vessels.

The compliance costs for the FMP would not result in an increase in the total costs of production by more than 5 percent.

The FMP establishes a size limit on domestic harvesting vessels in the herring fishery. The Council recommended a size limit < 165 feet LOA, and no more than 750 GRT. Such vessels also must have no more than 3,000 shaft horsepower. The Commission first adopted such restrictions in a Commission emergency action in 1997 (reacting to the interest of large factory trawler owners to exploit the herring resource) and the Council voted at that time to support the Commission's action. Congress further addressed the issue in the NMFS appropriations bill for fiscal year 1998, and again in 1999, restricting NMFS from using any of its funds to issue permits or other authorization letters to vessels exceeding like size restrictions. The size limit restrictions, established by the Commission and later in several congressional bills, are larger than any of the vessels that landed herring in 1996 or 1997. No vessels larger than the restrictions have participated in the herring fishery in the past. (For vessels identified as having caught herring in 1997, the maximum LOA was 126 ft., the maximum horsepower was 2,100, and the maximum GRTs was 246.) The size limits will maintain the existing industry structure. This restriction would not have a negative impact on the small businesses in the herring fishery.

Because the herring resource is underutilized, there would be some room for growth in harvesting and processing capacity. The Council feels that a number of large vessels would rapidly reach the proposed limits on the TAC. The resultant rapid attainment of the TAC would reduce the supply of fresh herring to the bait and cannery markets. There is also the possibility that large catcher/processors would monopolize the resource.

The Council is also limiting processing by large, domestic vessels to an amount specified on an annual basis. These two restrictions comprise the preferred alternative of the Council and are intended to provide some control over the development of excess fishing capacity in the region, and to take into account the concerns of fishing communities and historic herring fishery participants.

One of the objectives of the FMP is to provide controlled opportunities for fishers in other fisheries in New England and the mid-Atlantic regions. Many fishers are facing additional restrictions in the groundfish, scallop, monkfish, dogfish, and whiting fisheries due to poor resource conditions. The ability to enter the herring fishery would provide an opportunity for them to shift their effort onto a robust resource until rebuilding plans in these fisheries can be accomplished. The number of vessels that can enter this fishery is dependent on each vessel's share of the resource. The limits on vessel size would encourage more small vessels to enter the fishery and harvest a share of the available TAC, ameliorating the impacts of restrictions in other fisheries.

For the first year of the FMP, the recommended specification for large at-sea domestic processors is 0 mt. This is a precautionary approach that would give the Council time to evaluate the impacts of the management program before introducing large domestic processors into the fishery. The proposed specification would minimize impacts on the small businesses in the fishery. Existing small businesses would compete within the existing industry structure, with established markets clearly identified. One possible negative impact of the proposed specification on small businesses is that it would limit the market available to existing markets, depriving small vessels of an additional venue (the large vessel) to sell their catch. This measure explicitly considers the concerns of those communities and small entities in the northeast region that are dependent on the herring fishing industry and the possible impacts that may result from the uncontrolled entry of large domestic processors. The “no action” alternative would allow large domestic vessels to enter the fishery unfettered. The most likely role would be as processing vessels. While the impacts of allowing such large domestic processors into the fishery are not clearly understood, they could result in displacement of shoreside processors that depend on herring and may limit the development of additional shoreside processing capacity.

One possible benefit of the “no action” alternative, however, is if large domestic processing vessels enter the fishery and hire local catcher vessels to supply them herring. The increased revenues from this activity could benefit small entities and communities suffering from reduced revenues caused by resource shortfalls and increasing regulation of the fishing industry. Some are concerned, however, that the companies that own these vessels may bring their own catcher vessels into the region. As a result, the benefits would then accrue to the regions that are less dependent on the fishing industry.

The FMP specifies zero TALFF, which would preclude directed foreign fishing and result in benefits from the fishery accruing to domestic fishers. The expansion of the herring fishery would require domestic fishers to develop markets and invest in the vessels and processing capability to enter those markets.

However, the FMP provides for foreign participation in the fishery in the EEZ through joint venture processing (just as the states provide for such participation through internal waters processing). In the EEZ, these vessels are permitted into the fishery only when it suits the needs of the U.S., and such vessels are limited to processing fish in excess of the capacity needed for domestic processors. The total allocations (DAP, JVPt, BT and the Reserve) in any one management area or subarea would not exceed the TAC set for that area or subarea during the fishing year. A figure of 40,000 mt is recommended for JVPt after reviewing recent foreign processing performance. While this level is lower than the 80,000 mt allocated by the Commission for the 1998/1999 IWP season, it is over three times higher than the highest actual combined JVP and IWP performance in the last 10 years and allows for substantial temporary participation by foreign vessels in the U.S. fishery. This would allow foreign vessels to purchase herring from U.S. harvesting vessels, providing an additional market for them. Not only would this benefit the small entities currently in the fishery, it could provide additional opportunities for some vessels to target herring rather than species that may be overfished. It would also allow those fishers that participate in mackerel joint ventures to sell herring when it is caught along with mackerel.

In the event of a closure to a directed herring fishery in any one area or subarea, BT, JVP and IWP (the Council and the Commission agree on the recommended allocation of JVPt to JVP and IWP) operations would cease to receive any herring caught from a closed area or subarea. A key element in the review of JV activities is the impact on domestic processing activity - specifically, on the east coast, shoreside processors (since there have not been any large domestic at-sea processors in east coast fisheries).

In recent years there has been little interest by foreign vessels to participate in herring joint ventures and the actual performance of herring JVs has been insignificant, occurring only in connection with mackerel JVs. (Confidentiality restrictions prevent listing actual JV herring catches in 1997.) The demand for herring JVs is directly linked to world herring prices, most notably herring prices from the North Sea herring fishery.

The domestic Atlantic herring fishery has not been subject to limits on catch by a Federal FMP since 1982. Because of the lack of current permitting and reporting systems, there is some uncertainty in the current levels of fishing effort and the actual harvest of Atlantic herring. There is also uncertainty in the ability of U.S. fishers to develop new markets for the increased catch levels that are possible, and for U.S. processors to process increased catches of herring that may occur under this FMP.

These uncertainties make it difficult to predict exactly how the fishery would develop. The Council has adopted a precautionary approach to many elements of the management program in order to account for these uncertainties.

DAP is based on existing processing capacity with the addition of nearly 80,000 mt to account for the introduction of new capacity, possible misreporting in the bait fishery, and increases in processing by existing processors.

The amount allocated to BT is about 10 percent larger than the highest amount reported transferred to Canadian canneries in any of the last 10 years. These transfers are part of a traditional cross-border trade in raw herring that helps U.S. sardine canneries obtain herring during periods of low resource abundance in U.S. waters.

The zero amount specified for USAP would prevent large domestic processing vessels from entering the fishery in 1999. Concern has been expressed that this results in unfair treatment to such vessels, which could not participate in at-sea processing while large foreign vessels could (through JVs). The Council's initial recommendation to specify USAP at zero was because of a desire to maintain the status quo in the industry until the effectiveness of the FMP could be evaluated. By contrast to JVs, large domestic processing vessels would have a great deal of flexibility once allowed into the fishery. They could compete in the same markets as other processors without restraints. Once allowed into a fishery, there is a perception that they would have earned permanent “rights” to participate. The possible impacts of large at-sea processors in the Atlantic herring fishery are not clearly understood, arguing for a cautious approach to their introduction into the fishery. While the specification for USAP may be set at a level other than zero mt in the future, the Council's recommendation to allocate zero mt initially is within the Council's discretion.

Allowing a vessel to transfer herring at sea during a closure complicates the enforcement of the 2,000-lb (907.2-kg) trip/possession limit. A complete prohibition on all transfers, however, would unnecessarily restrict the lobster and tuna fisheries. Vessels in these fisheries frequently obtain fresh bait through transfers (sales) at-sea. Allowing these transfers thus benefits the small businesses that sell the herring and those small businesses who purchase it for bait (i.e., lobster and tuna fishers). Enabling these small entities to obtain fresh bait at sea minimizes their costs since they wouldn't have to travel into port for it. It also benefits them by assuring that the bait is of higher quality in that it is more likely to be fresh.

This measure would place some controls on transfers at-sea to prevent wide scale violations of the trip limit.

On October 27, 1999, NMFS disapproved the proposed spawning area closures and the proposed scheme to restrict fishing to specific days based on the proportion of the TAC caught in a management area (mandatory days out provision). The reason for the disapproval of these measures is described elsewhere in this preamble. These measures are contained in the IRFA and supplement to the IRFA and, therefore, are also discussed in this classification section.

At the time the Council prepared the IRFA, the Council determined that the proposed spawning closures were expected to have an impact on herring landings and revenues, subject to the ability of fishers to locate herring in other areas or at other times. The total impacts of these closures were estimated to be a reduction of 10,332 mt in herring landings and $1.1 million in revenues. The actual decline in landings and reduction in revenues due to the spawning closures was likely to be less, however. The displacement of effort to other areas, opening of a large area south of 42°30'N. latitude to fishing by the proposed action, and the interaction of the spawning closures with the Management Area 1A TAC would have reduced the negative impacts on landings and revenues. Further, spawning closures were not established in Management Areas 2 and 3 because the Council wanted to promote interest in developing the offshore fishery.

The Council considered other spawning area closure alternatives. It originally considered four areas that, through complementary Commission action, may have extended to the shore. These proposed restrictions would not have allowed any directed fishing subject to the limitation on catch of spawning fish and would have created an offshore boundary, providing a limited opportunity for fishers to move into offshore areas. Small herring vessels in Maine ports would have been disadvantaged by this. Such vessels would have been at risk of losing their market, and may not have been able to regain it when the closed areas reopened. The expected result of the original Council proposal would have been the potential loss of all herring landed during the Commission's existing closures, which would have been mitigated by the opportunity of fishers to fish seaward of the closure boundaries. Also, fishers may have been able to harvest the herring after the closure - a delay in the catch, rather than a complete loss.

The preferred alternative differed from the above option significantly. All closure areas would have applied only to Federal waters. The closure area off Massachusetts and New Hampshire had been significantly reduced in size. The impact of this change would have significantly reduced the negative economic impacts of the spawning closures. By reducing the area covered by the closures, the impact of the closures on landings was expected to have been reduced. The action also proposed to open an area that had previously been limited to an incidental catch limit. While the amount of catch in this area cannot be predicted due to a lack of information on harvest rates and effort in this area, this should have resulted in higher catches of herring further reducing the economic impact of the closures. This would have significantly reduced the negative economic impacts of the spawning closures. In a qualitative sense, the proposed alternative should have also reduced impacts on smaller vessels, as it would have provided options to fish seaward of the boundary, in state waters, or in areas of Federal waters that remained opened, and would have reduced the necessity for any vessel to fish seaward of the closure boundaries.

The Council also considered a number of variations for determining the starting dates of the closures. These variations were predicated on the biological condition of spawning herring. While the economic impacts would not likely have differed significantly from the preferred alternative, this approach would have introduced uncertainty into the timing of the closures. The fixed date selected by the Council in the preferred alternative would have allowed vessels and dealers to plan fishing operations around known closure dates and was initially preferred by many in the industry. It also would have avoided the administrative costs necessary to operate a sampling program that would have been a required part of determining the closure dates.

Finally, the Council also considered the option of not establishing any spawning restrictions in Management Areas 1A or 1B. In the short term, landings and revenues would increase if this option were selected. Over a longer period, the practice of fishing on spawning aggregations in this intensely fished area would be expected to have a negative impact on the biological condition of the resource. Failure to provide protection during the spawning periods could result in the elimination of individual spawning components, even while remaining within overall mortality goals set by the TAC. This would result in either lower TACs to reduce effort on spawning fish, or, in the extreme, could damage the resource sufficiently so that fishing would have to be prohibited in the area. Either result would reduce revenues from this area. As vessels moved into other areas to find herring, operating costs would be expected to increase with the additional transit time offshore.

The Council determined that fishing effort would have been reduced as the TAC was approached by requiring vessels to take mandatory days out of the fishery. The number of days taken out of the fishery would have been determined by how close the catch was to approaching the TAC. This measure would have been expected to reduce catch rates as the TAC is approached. This would have helped prevent the TAC from being exceeded before the fishing year was over.

This measure also would have redistributed fishing effort to other areas. As the number of days out of the fishery increased, some vessels may have chosen to relocate to areas that remain open. The Council selected this measure over other alternatives because it would have minimized impacts on the industry while extending the season. It would have allowed fishing activity to continue unfettered in management areas where landings were at a lower level and were not approaching the TAC. This would have encouraged a shift in effort from areas with restrictions into other open areas, particularly when three or four days were closed to the directed fishery. Shifting effort would not have been without cost however. As fishing days were restricted, vessels would have incurred higher operating costs if they chose to fish in other areas further from their home port.

The major reason for this measure was to provide a supply of herring to the market for a longer period of time than if there were no controls put into place until the overall TAC was reached and the fishery was closed. For this reason, the Council rejected the no controls approach.

The Council also considered trip limits as an alternative, but rejected the idea because of concerns over discards, enforcement difficulties, and difficulty in creating an equitable system.

The Council also considered apportioning the TAC over a shorter time period - rather than an annual basis. See Option 3 under ‘Impacts of TAC Distribution’, above . It rejected this alternative because it would have resulted in unacceptable administrative costs to monitor the TAC.

The proposed regulations would allow increased landings of herring, the extent of which may depend more on market conditions than on the regulations. The FMP could, however, change fishing patterns, particularly in the GOM. The restrictive TAC in the inshore GOM could force fishing effort into other areas where harvest rates may not be as high, possibly increasing operating costs.

A copy of the IRFA and the Supplement to the IRFA are available from the Council (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection-of-information displays a currently valid OMB control number.

This proposed rule references foreign fishing vessel activity reports, which is a collection-of-information requirement subject to the PRA that was previously approved by OMB under control number 0648-0075. These reports are estimated at 6 minutes/response.

This proposed rule also contains 12 new collection-of-information requirements subject to the PRA, which have been submitted to OMB for approval. The public reporting burden for each collection of information per response is indicated in parentheses in the following list of new requirements, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments regarding these reporting burden estimates or any other aspect of the collection of information, including suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES ).

The new requirements are:

Open access Atlantic herring permits (30 minutes/response).

Operator permits (60 minutes/response).

Dealer permits (5 minutes/response(trip)).

Processor permits (5 minutes/response).

Vessel trip reports (5 minutes/response).

Interactive voice response system reports (4 minutes/response).

Dealer logbooks reports (2 minutes/response).

Annual processor reports (30 minutes/response).

Vessel monitoring system verification requirement (2 minutes/response).

Vessel monitoring system reports (5 seconds/response).

Vessel monitoring system installation (60 minutes/response).

Herring carrier exemption from VMS requirements authorization letter (2 minutes/response).

For the reasons set forth in the preamble, 50 CFR parts 600 and 648 are proposed to be amended as follows:

NMFS declared the Bering Sea stock of Tanner ( Chionoecetes bairdi ) crab overfished on March 3, 1999, because the spawning stock biomass was below the minimum stock size threshold defined in Amendment 7 to the FMP (64 FR 11390). Amendment 7 specified objective and measurable criteria for identifying when all of the crab fisheries covered by the FMP are overfished or when overfishing is occurring. NMFS notified the Council once NMFS determined that the stock was overfished (64 FR 15308, March 31, 1999). The Council then took action to develop a rebuilding plan within 1 year. Amendment 11, the rebuilding plan, is an FMP amendment designed to accomplish the purposes outlined in the national standard guidelines to rebuild the overfished stock. Furthermore, Amendment 11 specifies a time period for rebuilding the stock intended to satisfy the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The rebuilding plan approved by the Council in October 1999 contains the following three components to improve the status of this stock: A harvest strategy, bycatch control measures, and habitat protection measures. The rebuilding plan is estimated to allow the Bering Sea Tanner crab stock to rebuild, with a 50 percent probability, in 10 years. The stock will be considered “0rebuilt” when the stock reaches the maximum sustainable yield stock size level in 2 consecutive years. The revised harvest strategy should result in more spawning biomass, because more larger male crab would be conserved and fewer juveniles and females would die due to discarding. This higher spawning biomass would be expected to produce good year-classes when environmental conditions are favorable. Protection of habitat and reduction of bycatch will reduce mortality on juvenile crabs, thus allowing a higher percentage of each year-class to contribute to spawning (and future landings).

The Council prepared an Environmental Assessment (EA) for Amendment 11 that describes the management background, the purpose and need for action, the management alternatives, and the environmental and the socio-economic impacts of the alternatives. A copy of the EA can be obtained from the Council (see ADDRESSES ).

The Magnuson-Stevens Act requires that each regional fishery management council submit each FMP or FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or FMP amendment, immediately publish a notification in the Federal Register that the amendment is available for public review and comment. This action constitutes such notice for FMP Amendment 11. NMFS will consider the public comments received during the comment period in determining whether to approve this FMP amendment. To be considered, a comment must be received by close of business on the last day of the comment period (see DATES), regardless of the comment's postmark or transmission date.