The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.

The Agricultural Marketing Service (AMS) received a request to update and revise the United States Standards for Grades of Peaches, the United States Standards for Grades of Fresh Plums and Prunes, and the United States Standards for Grades of Nectarines from the CTFA. The United States Standards for Grades of Peaches has not had a major revision since June 1952. There was a minor revision in 1995. The United States Standards for Grades of Fresh Plums and Prunes were last revised in June 1973, and the United States Standards for Grades of Nectarines were last revised April 1966. The CTFA is an industry association representing over 2,000 individual growers, packers and shippers. The CTFA has requested that these standards be revised to bring them into conformity with current packing, marketing and cultural practices. This request also has the support of the California Plum Marketing Board, Peach Commodity Committee, and the Nectarine Administrative Committee. The revisions will benefit all aspects of the peach, plum, prune, and nectarine industries by making the standards current with today's marketing trends and practices.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this final regulatory flexibility analysis.

This rule will revise the U.S. Standards for Grades of Peaches, the U.S. Standards for Grades of Fresh Plums and Prunes and the U.S. Standards for Grades of Nectarines that were issued under the Agricultural Marketing Act of 1946. Standards issued under the 1946 Act are voluntary.

There are approximately 400 handlers of peaches, plums, prunes, and nectarines and approximately 2,200 producers of these fruits in the United States. Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. The majority of these handlers and producers may be classified as small entities.

This rule will: delete the “Unclassified” section; establish a 25-count minimum sample; revise standard pack and size requirements for all three grade standards; develop en route or at destination tolerances for grades of peaches; define damage and serious damage by discoloration and growth cracks for grades of plums and prunes; revise color requirements for grades of nectarines.

The effects of this rule are not expected to be disproportionately greater or smaller for small handlers or producers than for larger entities.

This action will make the standards more consistent and uniform with marketing trends and practices. This action will not impose any additional reporting or recordkeeping requirements on either small or large peach, plum, prune, or nectarine producers or handlers. USDA has not identified any Federal rules that duplicate, overlap, or conflict with this rule. However, there are marketing programs which regulate the handling of nectarines and peaches under 7 CFR Parts 916 and 917. Nectarines and peaches under the marketing order have to meet certain requirements set forth in the grade standards for nectarines and peaches.

Alternatives were considered for this action. One alternative would be to not issue a rule. However, the need for revisions have increased as a result of changing marketing characteristics by industry, and the rule is the result of input from all sectors of the peach, plum, prune, and nectarine industries and government. Further, since the purpose of these standards is to facilitate the marketing of agricultural commodities in the United States, not revising the standards could result in confusion in terms of industry marketing and the proper application of the grade standards.

On December 18, 2003 (68 FR 70423), the NRC published a direct final rule amending its regulations in 10 CFR part 72 to revise the Standardized NUHOMS® System listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 7 to CoC No. 1004. This amendment incorporates changes in support of the Amergen Corporation plans to load damaged fuel and additional fuel types at its Oyster Creek Nuclear Station. Specifically, the amendment adds damaged Boiling Water Reactor spent fuel assemblies and additional fuel types to the authorized contents of the NUHOMS®-61BT Dry Shielded Canister under a general license. In addition, the amendment includes three minor changes to the Technical Specifications to correct inconsistencies and remove irrelevant references. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on March 2, 2004. The NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, this rule will become effective as scheduled.

The NCUA Board is amending parts 701 and 790 of its regulations, to conform them to the restructuring of NCUA's regional office locations. 12 CFR parts 701, 790. The NCUA is transitioning from six regional offices to five, and relocating its California office to Arizona. The new regional structure is effective January 1, 2004, but we note that the Lisle, Illinois office will remain open until April 3, 2004. In part 701, the office addresses are found in Appendix C to NCUA's Interpretive Ruling and Policy Statement (IRPS) 03-1.

The Board is also amending part 790 to reflect that, while the NCUA Board has ultimate responsibility for all equal employment opportunity programs within NCUA, the Board has delegated responsibility to NCUA's Executive Director to be Director of EEO.

The revisions made to this part are not subject to the notice and comment provisions of the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. The final rule revisions relate only to matters relating to agency management and personnel, topics exempt from APA requirements. 5 U.S.C. 553(a)(2).

NCUA also finds good cause to dispense with the 30-day delayed effective date requirement under the APA. 5 U.S.C. 553(d)(3). The rule relates only to internal agency operations. The rule will, therefore, be effective on the day the new regional structure is effective, January 1, 2004.

An initial regulatory flexibility analysis under the Regulatory Flexibility Act is required only when an agency is required to publish a general notice of proposed rulemaking for any proposed rule. 5 U.S.C. 603. As noted previously, NCUA has determined that it is unnecessary to publish a notice of proposed rulemaking for this rule. Accordingly, an initial regulatory analysis is not required. Moreover, since this final rule imposes no new requirements and makes only housekeeping amendments, NCUA has determined and certifies that this rule will not have any significant economic impact on a substantial number of small credit unions (primarily those under $10 million in assets).

Title II of the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121) provides, generally, for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by section 551 of the APA. 5 U.S.C. 551. The Office of Management and Budget has reviewed this rule and has determined that for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 it is not a major rule.

NCUA has determined that the final rule does not increase paperwork requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on State and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the Executive Order. NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the Executive Order.

The NCUA has determined that this final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

On January 8, 2004, the FAA issued Emergency AD 2004-01-51 for the specified model helicopters with less than 10 hours TIS since installing a main or combiner gearbox received from the Eurocopter Marignane, France, works. The emergency AD requires, before further flight, replacing any of these affected gearboxes with appropriate airworthy gearboxes received from another source. This is an interim action pending the results of an ongoing investigation. That action was prompted by a report of a main gearbox free-wheel unit slipping, resulting in an engine overspeed and shut-down, which occurred during the single-engine phase of an acceptance flight. This condition, if not corrected, could result in an engine overspeed, an engine shut-down, and subsequent loss of control of the helicopter.

The FAA has reviewed Eurocopter Alert Telex No. 63.00.21 R1, dated December 19, 2003, which describes procedures for contacting the manufacturer and cleaning the bevel reduction gear pending the results of an ongoing investigation.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on these helicopter models. The DGAC advises of a main gearbox free-wheel slippage with resulting engine shut-down due to overspeed, which occurred during the single-engine phase of an acceptance flight at the Eurocopter works. The DGAC classified the Alert Telex as mandatory and issued AD No. UF-2003-454, dated December 11, 2003, to ensure the continued airworthiness of these helicopters in France.

These helicopter models are manufactured in France and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.

Since the unsafe condition described is likely to exist or develop on other Eurocopter helicopters of the same type design, the FAA issued Emergency AD 2004-01-51 to prevent an engine overspeed, an engine shut-down, and subsequent loss of control of the helicopter. This AD requires, before further flight, for helicopters with less than 10 hours TIS since installing a main or a combiner gearbox received from Eurocopter, Marignane, France, works, replacing the gearbox with an appropriate airworthy gearbox received from another source. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter. Therefore, replacing any affected gearbox with an appropriate airworthy gearbox is required before further flight, and this AD must be issued immediately.

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual letters issued on January 8, 2004, to all known U.S. owners and operators of Eurocopter Model AS355E, F, F1, F2, and N helicopters. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to 14 CFR 39.13 to make it effective to all persons.

The FAA estimates that this AD will affect 104 helicopters of U.S. registry and will take approximately 1/2 work hour to determine applicability and 12 work hours to replace a gearbox at an average labor rate of $65 per work hour. Required parts will cost approximately $97,000 per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $981,180, assuming 10 gearboxes are replaced.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this 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 under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-56-AD.” The postcard will be date stamped and returned to the commenter.

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 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT regulatory policies and procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT regulatory policies and procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

Five operators of McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and Model MD-88 airplanes reported instances of a shock strut cylinder of a main landing gear (MLG) fracturing, resulting in the MLG collapse during landing roll out. The airplanes had a shock strut cylinder of the MLG that fractured after accumulating between a total of 6,386 and 28,100 landings. The fractures began at cracks on the outer surface of the cylinders. The cracks were created by high stresses from vibration that can occur during airplane braking. Failure of the shock strut cylinders of the MLGs due to cracking could lead to collapse of the MLGs and consequent reduced controllability of the airplane during landing.

The shock strut cylinders on certain McDonnell Douglas Model MD-90-30 airplanes are identical to those on the affected Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) airplanes; and Model MD-88 airplanes. Therefore, those Model MD-90-30 airplanes may be subject to the unsafe condition due to exchanging a shock strut cylinder of a MLG from an affected airplane.

AD 99-06-13, amendment 39-11077 (64 FR 13330, March 18, 1999), applicable to certain McDonnell Douglas Model DC-9-80 series airplanes; and Model MD-88 airplanes, requires repetitive inspections to detect fatigue cracking of the shock strut cylinder of the MLG and replacement of any cracked shock strut cylinder with a serviceable part. That AD references McDonnell Douglas Alert Service Bulletin MD80-32A286, Revision 03, dated May 28, 1998, as the applicable source of service information.

AD 96-01-09, amendment 39-9485 (61 FR 2407, January 26, 1996), applicable to certain McDonnell Douglas Model DC-9-80 series airplanes and Model MD-88 airplanes, requires installation of hydraulic brake line restrictors on the MLG, and modification of the hydraulic damper assembly of the MLG. That AD references McDonnell Douglas Service Bulletins MD80-32-276, dated March 31, 1995, and Revision 1, dated October 17, 1995; and MD80-32-278, dated March 31, 1995, and Revision 1, dated September 6, 1995; as the applicable sources of service information.

The FAA has reviewed and approved Boeing Alert Service Bulletin MD80-32A344, Revision 2, dated January 28, 2004, for McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87) airplanes; and Model MD-88 airplanes; and Boeing Alert Service Bulletin MD90-32A059, dated January 28, 2004, for McDonnell Douglas Model MD-90-30 airplanes. These alert service bulletins specify verification of airplane records to determine service history of the shock strut cylinders of the MLGs. These alert service bulletins describe procedures for repetitive inspections (including performing fluorescent dye penetrant and fluorescent dry particle non-destructive testing) to detect cracking of the shock strut cylinders of the left and right MLGs, and replacement of any cracked shock strut cylinder with a new or serviceable part. Additionally, these alert service bulletins describe certain related investigative actions (such as chemically removing cadmium coating, and repeating the fluorescent dye penetrant and fluorescent magnetic particle non-destructive test inspections, if necessary).

Accomplishment of the actions specified in the alert service bulletins is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to prevent failure of the shock strut cylinders of the MLGs due to cracking, which could result in collapse of the MLG and consequent reduced controllability during landing. This AD requires repetitive inspections to detect cracking of the shock strut cylinders of the left and right MLGs, and replacement of any cracked shock strut cylinder with a new or serviceable part. This AD also requires that, if a replacement shock strut cylinder is not new, the service history of the shock strut cylinder determines the applicability by Group definition in the applicable service bulletin described previously. This AD requires accomplishment of the actions specified in the alert service bulletins described previously, except as discussed below.

Although Boeing Alert Service Bulletin MD80-32A344, Revision 2, dated January 28, 2004, specifies that McDonnell Douglas Alert Service Bulletin MD80-32A286, Revision 03, dated May 28, 1998, be accomplished prior to Boeing Alert Service Bulletin MD80-32A344, Revision 2, this AD does not require that action. As described in the “Related Rulemaking” section, accomplishment of Boeing Alert Service Bulletin MD80-32A286, Revision 03, is already required by AD 99-06-13.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the 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 that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-122-AD.” The postcard will be date stamped and returned to the commenter.

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 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

We encourage you to submit comments and related material on the collection of information updates included in this notice. If you do so, please include your name and address, identify the docket number for this notice (USCG-2004-17086) and give the reasons for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

Viewing comments and documents. To view comments go to http://dms.dot.gov at any time and conduct a simple search using the docket number. You may also visit the Docket Management Facility in room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act. Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

Definitions. For the purposes of this notice and this program:

Administration means the government of the State whose flag the ship is authorized to fly.

Cargo vessel means a vessel propelled by mechanical means, that is not a passenger vessel, and of 500 gross tons and over. This excludes ships of war, troopships, wooden ships of primitive build, pleasure yachts not engaged in trade, and fishing vessels.

Contracting Government means a Nation-State that has become a party to the International Convention for the Safety of Life at Sea, 1974 (SOLAS), including Chapter XI as amended.

Gross Tons means gross tonnage as measured by the Tonnage Convention of 1969.

International voyage means a voyage between a country to which SOLAS applies and a port outside such country. This excludes vessels solely navigating the Great Lakes and the St. Lawrence River as far east as a straight line drawn from Cap des Rosiers to West Point, Anticosti Island and, on the north side of Anticosti Island, the 63rd meridian.

Passenger vessel means a vessel which carries more than 12 passengers.

SOLAS Chapter XI-1 (adopted by the U.S. as part of the International Ship and Port Facility Security (ISPS) Code) and 33 CFR §§ 101.115(b) and 104.297(a) require that all U.S. flag cargo vessels of 500 gross tons and over on international voyages and all U.S. flag passenger vessels carrying 12 or more passengers on international voyages must be issued and carry onboard a CSR during operations on and after July 1, 2004. Specifically, 33 CFR § 101.115(b) incorporates by reference SOLAS Chapter XI-1, as amended, and 33 CFR § 104.297(a) requires vessels on international voyages to comply with SOLAS Chapter XI-1, if applicable. Regulation 5 of SOLAS Chapter XI-1 prescribes the requirements of the CSR.

The CSR provides an onboard record of the history of the vessel with respect to its flag, owner, operator, charterer, classification society, safety management and security activities.

Key elements of Regulation 5 include the following:

In U.S. waters, vessels not in compliance with SOLAS Chapter XI-1, Regulation 5, are subject to operational control and compliance measures, as well as the civil penalties described in 33 CFR §§ 101.400, 101.410, and 101.415. U.S. vessels operating in foreign waters can be detained by a port state for not meeting the SOLAS requirement to carry a valid CSR onboard on or after July 1, 2004, in accordance with the port state control measures allowed by SOLAS.

The Coast Guard will administer the CSR program for the U.S. and will open a new CSR Desk at its National Vessel Documentation Center in Falling Waters, West Virginia, on February 25, 2004. Hours of operation will be Monday through Friday, 7:30 a.m. to 5 p.m. Eastern Time, except for Federal holidays. The toll free phone number for the CSR Desk is 1-866-603-5476. The forms needed to apply for a CSR will be available on February 25, 2004, and may be obtained from the Coast Guard from any of the means identified under ADDRESSES. The Coast Guard will be able to issue CSRs on March 1, 2004.

Copies of the Amendments and Index to CSR form CG-6038A, the Application for CSR form CG-6039, can be found as appendices at the end of this document. They may also be found in the docket for this notice (USCG-2004-17086) and at the Coast Guard's Port Security Directorate web site found under ADDRESSES.

Detailed guidance on the CSR program will be published in a future policy notice by the Coast Guard and will receive the widest possible distribution to affected parties, including publication in the Federal Register .

All U.S. flag cargo vessels of 500 gross tons and over on international voyages and all U.S. flag passenger vessels carrying 12 or more passengers on international voyages.

1. Obtain an Application for CSR form CG-6039. You may obtain an Application for CSR form CG-6039 from the Coast Guard by one of the means specified under ADDRESSES.

2. Submit completed application. You may submit a completed application to the CSR Desk by one of the means specified under ADDRESSES.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are amending 40 CFR part 94 by simply renumbering paragraph 40 CFR 94.12(f) that was subject to notice and comment and issued as part of the final rule establishing emission standards for Category 3 marine diesel engines (68 FR 9746, February 28, 2003). This paragraph was inadvertantly labeled as 40 CFR 94.12(f) when a paragraph 94.12(f) already existed. A subsequent rulemaking renumbered the previously existing paragraph 94.12(f) as 94.12(h). This correction restores the numbering for the paragraph from the Category 3 marine diesel engine rule as 40 CFR 94.12(f). Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

The statutory authority for this action comes from sections 114, 213, and 301(a) of the Clean Air Act as amended (42 U.S.C. 7414, 7547, and 7601(a)). This action is a rulemaking subject to the provisions of Clean Air Act section 307(d). See 42 U.S.C. 7606(d)(1).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore neither subject to review by the Office of Management and Budget nor subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy, Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as described above, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule does not have tribal implications, as specified in Executive Order 13175 (63 FR 67249, November 9, 2000). This rule will not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the September 19, 2003 Federal Register notice (68 FR 54956).

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

1. On June 2, 2003, the Commission adopted the 2002 Biennial Regulatory Review Report and Order in this proceeding. ( In the Matter of 2002 Biennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Cross-Ownership of Broadcast Stations and Newspapers, Rules and Policies Concerning Multiple Ownership of Radio Broadcast Stations in Local Markets, Definition of Radio Markets, and Definition of Radio Markets for Areas Not Located in an Arbitron Survey Area (Report and Order), 68 FR 46286, August 5, 2003, appeal pending sub nom. Prometheus Radio Project, et al. v. FCC , Nos. 03-3388, et al. (3d Cir.). The rule changes adopted in the Report and Order were stayed by the U.S. Court of Appeals for the Third Circuit and did not go into effect.) Among other things, the Report and Order raised the Commission's national television multiple ownership limit (47 CFR 73.3555(e)) from 35 percent to 45 percent. The Report and Order also retained the Commission's 50 percent UHF discount.

2. On January 22, 2004, President Bush signed into law the Consolidated Appropriations Act, 2004, H.R. 2673. (Consolidated Appropriations Act, 2004, Public Law 108-199, section 629, 118 Stat. 3 (2004) (Appropriations Act). Section 629(1) of the Appropriations Act amends Section 202(c) of the Telecommunications Act of 1996 (Telecom Act), and directs the Commission to modify the national television ownership limit to 39 percent. Pending petitions for reconsideration ask the Commission to reconsider its decision to retain the UHF discount, urging its immediate elimination. 1 We are opening a limited comment period in order to afford petitioners and commenters an opportunity to update the record as to the effect, if any, of the Appropriations Act on our authority and decision in this area. We invite comment as to whether the enactment of the 39 percent national cap affects our authority to modify or eliminate the UHF discount. For example, does passage of the 39 percent cap signify congressional approval, adoption, or ratification of the 50 percent UHF discount?

3. Comments must be filed on or before March 19, 2004; and reply comments must be filed by March 29, 2004. Comments and reply comments may be filed using the Commission's Electronic Filing System (ECFS) or by filing paper copies (an original and four copies). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). All comments should reference MB Docket No. 02-277. The Commission incorporates by reference the Initial Regulatory Flexibility Analysis published in the Notice of Proposed Rulemaking in this proceeding. ( 2002 Biennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Cross-Ownership of Broadcast Stations and Newspapers, Rules and Policies Concerning Multiple Ownership of Radio Broadcast Stations in Local Markets, Definition of Radio Markets, 67 FR 65751, October 28, 2002, 17 FCC Rcd 18503, Appendix A.)

4. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

5. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents also will be available electronically from the Commission's Electronic Comment Filing System. Documents are available electronically in ASCII text, Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be obtained from Qualex International, Portals II, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail at qualexint@aol.com. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0531 (voice), 202-418-7365 (TTY).

Table of Contents I. Safety Problem II. Background A. August 1995 Final Rule on Upper Interior Impact Protection B. April 1997 Final Rule C. Petitions for Reconsideration D. March 31, 1998 Letter E. August 1998 Meeting F. New Vehicle Configurations G. Notice of Proposed Rulemaking H. Comments in Response to the NPRM III. Agency Analysis of Comments A. Alliance of Automobile Manufacturers B. Bornemann Products IV. Final Rule V. Effective Date VI. Rulemaking Analyses and Notices A. Regulatory Policies and Procedures B. Executive Order 13132 C. Executive Order 13045 D. Executive Order 12778 E. Regulatory Flexibility Act F. National Environmental Policy Act G. Paperwork Reduction Act H. National Technology Transfer and Advancement Act I. Unfunded Mandates Reform Act J. Regulation Identifier Number (RIN) I. Safety Problem

In an August 18, 1995 final rule (60 FR 43031) adding requirements for upper interior impact protection to Standard No. 201, “Occupant Protection in Interior Impact,” NHTSA estimated that even with air bags installed in all passenger cars, trucks, buses, and multipurpose passenger vehicles (collectively, passenger cars and LTVs) with a gross vehicle weight rating (GVWR) of 4,536 kilograms (10,000 pounds) or less, head impacts with the pillars, roof side rails, windshield header, and rear header would result in 1,591 annual passenger car occupant fatalities and 575 annual LTV occupant fatalities. We also stated that such head impacts also result in nearly 13,600 moderate to critical (but non-fatal) passenger car occupant injuries (MAIS 2 or greater), and more than 5,200 LTV occupant injuries. (The AIS or Abbreviated Injury Scale is used to rank injuries by level of severity. An AIS 1 injury is a minor one, while an AIS 6 injury is one that is currently untreatable and fatal. The Maximum Abbreviated Injury Scale or MAIS is the maximum injury per occupant.) In the August 18, 1995 final rule, we estimated that the new requirements would prevent 675 to 975 AIS 2-5 head injuries and 873 to 1,192 fatalities per year.

The August 1995 final rule amended Standard No. 201 to require passenger cars and LTVs with a gross vehicle weight rating (GVWR) of 4,536 kilograms (10,000 lbs.) or less to provide protection when an occupant's head strikes upper interior components, including pillars, side rails, headers, and the roof, during a crash. This final rule, which required compliance through a number of phase-in schedules beginning on September 1, 1998, significantly expanded the scope of Standard No. 201. Previously, the standard applied only to the portion of the vehicle interior in front of the front seat and to the backs of the front seats.

NHTSA received nine timely petitions for reconsideration of the August 1995 final rule. These petitions raised a number of issues, including: (1) Application of the new requirements to dynamic ( i.e. , crash-deployed) head protection systems, (2) variability of test results attributed to width of the drop test calibration corridor for the FMH, (3) leadtime and phase-in, (4) exclusion of certain vehicles, and (5) test procedures. We considered dynamic head protection systems to be beyond the scope of the original rulemaking and addressed the petitions filed on this issue in a final rule published in the Federal Register on August 4, 1998 (63 FR 41451).

The remaining issues were addressed through a final rule published on April 8, 1997 (62 FR 16718). The April 1997 final rule amended Standard No. 201 to add another phase-in option to the existing phase-in requirements, allowed manufacturers to carry forward credits for vehicles certified to the new requirements prior to the beginning of the phase-in period, excluded buses with a GVWR of more than 3,860 kilograms (8,500 pounds), specified that all attachments to the upper interior components are to remain in place during compliance testing, and clarified the test procedure.

An issue considered in both the petitions for reconsideration and the April 8, 1997 final rule was the appropriate minimum separation distance between tested target areas within the same vehicle. S8.14(c) of the Standard provides that, in the event that target areas are located in near proximity to each other, no test impact may occur within 150 mm (6 inches) of any other impact. This provision forbids testing of target areas that are so close together that the FMH would impact two or more targets in a single impact, and that damage resulting from the one test impact may impair countermeasures located at the nearby target area. In the petitions submitted in response to the August 1995 rule, manufacturers argued that the 150 mm (6 inch) distance provided in the Standard was inadequate, particularly in those instances in which the installed countermeasure did not use padding, but instead relied on another means. However, because the petitioners did not submit any data substantiating their claim that the 150 mm (6 inch) distance was inadequate, NHTSA rejected their request to increase this distance when it issued the April 1997 final rule.

American Automobile Manufacturers Association (AAMA) and ASC, Incorporated (ASC) filed petitions for reconsideration of the April 8, 1997 final rule. ASC's petition expressed concerns about the impact of the final rule on the integrated convertible roof and frame designs and requested a further amendment to the definition of “convertible roof frame system.” AAMA's petition requested that NHTSA reconsider and modify the final rule in reference to approach angles, moveable side glazing, multiple impacts, the procedure for locating CG-F (a reference point corresponding to the location of a front seat occupant's head), and the definition of “forehead impact zone.”

In a notice published on April 22, 1998, (63 FR 19839) we denied these petitions for reconsideration. In regard to approach angles, NHTSA rejected AAMA's request for the exclusion of targets that cannot be tested using the existing approach angles contained in S8.13.4. We concluded that targets that cannot be tested using the existing approach angles can be relocated under the protocols found in S10(b) or S10(c). Thus, excluding the targets would not be necessary. We denied AAMA's request that hinges and latches for sunroofs and moveable side glazing be excluded from the FMH test requirements, as we concluded that it was feasible to pad these components. The April 1998 notice also explained that AAMA's concern regarding the location of CG-F had been resolved by an amendment to Standard No. 201 and that we believed that the organization's concerns about the proper definition of the forehead impact zone resulted from a misunderstanding of the terms of that definition. Accordingly, we declined to modify the definition.

The April 1998 notice also set forth our reasoning for rejecting AAMA's request that we reconsider our decision not to expand the minimum separation distance between two target areas. Without providing supporting test data, AAMA argued that the existing 150 mm (6 inch) distance was not sufficient because test damage to one target could affect the performance of a nearby target, depending on the type of countermeasure, the target location, the size of the target component, the approach angles used and the effects of chin loading on one target when another is struck. We rejected AAMA's arguments, explaining that we were satisfied that existing evidence showed that the 150 mm (6 inch) separation distance was adequate. As the maximum width of the FMH is 150 mm (6 inches) and the forehead impact zone on the FMH was smaller, we concluded that the existing difference was sufficient to prevent FMH impact overlap between targets. We also noted that Standard No. 201 allowed testing of targets on both the right and left side of the vehicle interior and that manufacturers could use this as an opportunity to ensure that target areas were much farther apart from each other than 150 mm (6 inches) when actual testing is performed.

AAMA also requested that we consider limiting impacts to one impact per component. Again, AAMA did not submit any data indicating that limiting tests to one impact per component was necessary. We therefore rejected this request because there was not any test data indicating that such a limitation was realistic and necessary.

As noted below, AAMA sent a letter to NHTSA on March 31, 1998 which discussed several of the issues addressed in the agency's April 22, 1998 notice denying the AAMA and ASC petitions for reconsideration. As this letter arrived shortly before the agency issued the April 22, 1998 notice, the issues raised by AAMA in this letter were not considered or discussed in that notice. They are addressed below.

On December 18, 2001, NHTSA issued a final rule, Response to Petitions for Reconsideration of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant Crash Protection” (66 FR 65376). The December 18, 2001, final rule was in response to petitions for reconsideration of the May 12, 2000, final rule (65 FR 30680), which, among other things, added advanced air bag requirements to FMVSS No. 208. By February 6, 2002, NHTSA received 10 petitions for reconsideration of the December 18, 2001, rule. On January 6, 2003, the agency published a Final Rule (68 FR 504), which responded, in part, to these petitions for reconsideration of the December 18, 2001, final rule. The January 6, 2003, final rule specifically addressed several issues. These were the length of time data are collected during low risk deployment (LRD) tests for the three-year-old (3YO) and six-year-old (6YO) dummy positions, a change in dummy positioning procedure for one of the driver position LRD tests, and issues related to the air bag warning labels and the telltale that indicates when the passenger air bag has been automatically suppressed.

The Association of International Automobile Manufacturers (AIAM), the Alliance of Automobile Manufacturers (Alliance), and Honda submitted petitions for reconsideration of the January 6, 2003, final rule. The petitions addressed the following issues.

In the January 6, 2003, final rule (68 FR 504) the agency modified the LRD test procedure using the 3YO and 6YO dummies such that the data acquisition would be limited to 100 ms after initiation of the first stage of air bag deployment. Previously, the data acquisition period was 125 ms after initiation of the final stage of air bag deployment. We stated our rational for modifying the data acquisition period for the 3YO and 6YO tests as follows:

The Alliance and Honda subsequently requested that the agency reconsider its decision not to reduce the time duration for the 5th percentile female driver LRD test to 100 ms. Both the Alliance and Honda provided test data from a single LRD test using a 5th percentile female dummy. The Alliance further requested that the same duration be set for the rear-facing infant LRD test.

In its petition, the Alliance characterized the data previously provided for the 3YO and 6YO LRD tests as follows:

For the rear-facing infant test, the Alliance argued that the agency's previous justification, that the infant in a rear-facing child restraint system will not have significant momentum, is not correct. It contended:

In the agency's original analysis that led to the reduction in the data acquisition period for the 3YO and 6YO dummy tests, we also considered reducing the duration for the LRD tests using the rear-facing infant and 5th percentile female driver dummies (68 FR 508). We decided against doing so for the following reasons:

With respect to an infant in a rear-facing child restraint, the agency disagrees with the petitioner's arguments that “significant” momentum remains once the rear-facing child seat begins to interact with the air bag. We still believe, as previously argued, that the belted infant seat limits the momentum effects. In addition, the proximity of the infant seat to the instrument panel does not allow generation of significant velocity relative to the vehicle. Therefore, the static LRD test with the infant is a sufficiently representative approximation of the real world crash event so there is no need for the test to be truncated at 100 ms. Therefore this aspect of the petition is denied.

The petition pertaining to the 5th percentile female LRD test is denied for the following reasons. In the real world, small stature drivers are generally in close proximity to the air bag prior to pre-impact braking due to their need to reach the gas pedal or see over the instrument panel. Thus, in a crash they have little travel space to generate significant velocity relative to the vehicle. Therefore, the static LRD test with the 5th percentile female dummy is a sufficiently representative approximation of the real world crash event for small stature occupants, so again, there is no need for the test to be truncated at 100 ms.

Also, once a driver is out-of-position and is up against the undeployed air bag, that driver rides down the impact with the vehicle until the air bag deploys, and thus generates no velocity relative to the occupant compartment. Unlike a child that does not have his/her feet planted on the floorboard or has its knees braced against the knee bolsters and thus may move forward under the instrument panel, the driver is likely to remain in contact with the steering wheel until the air bag deploys. Therefore, once again, the static LRD test with the 5th percentile female dummy is a sufficiently representative approximation of the real world crash event for small stature occupants, and the test should not be truncated at 100 ms.

Finally, more than 40 advanced air bag compliant vehicle models were available before the end of 2003, with more than 20 available on October 1, 2003. In order to sell these vehicles, the manufacturers had to certify compliance with the driver LRD performance requirements. This indicates that compliance to the 5th percentile female dummy LRD performance requirements does not appear to be a problem, and relief is not necessary.

In the January 6, 2003, final rule (68 FR 508), the agency modified S26.2.6, as requested by the manufacturers, to position the dummy chin at the top of the module. This was a reversion back to the May 12, 2000, final rule from the December 18, 2001, final rule, which had placed the target at the air bag opening. We provided the following explanation:

The Alliance and AIAM petitioned the agency to allow either test position until September 1, 2004. The Alliance stated:

The agency is denying the petition to allow manufacturers to certify compliance at either of the two chin-on-module positions until September 1, 2004. Compliance and certification test results show very little difference between the results using the two test positions, which indicates that there is no need for the requested change.

For the LRD test using the rear-facing infant dummy, NHTSA continues to believe that the belted infant seat limits the momentum effects and that the proximity of the infant seat to the instrument panel does not allow generation of significant velocity relative to the vehicle. Therefore, the agency is denying the petition to truncate the LRD test for the rear facing infant dummy at 100 ms after initiation of air bag deployment.

With respect to the LRD test using the 5th percentile female dummy, small stature drivers have little travel space to generate significant velocity relative to the vehicle, and once a driver is out-of-position and is up against the undeployed air bag, the driver rides down the impact with the vehicle until the air bag deploys, thus generating no velocity relative to occupant compartment. Additionally, more than 40 advanced air bag compliant vehicle models were available before the end of 2003, with more than 20 available on October 1, 2003. This indicates that assuring compliance with the 5th percentile female dummy LRD test requirements is not a problem, and relief is unnecessary. Therefore, we are denying the petition to truncate the 5th percentile female dummy LRD test at 100 ms.

Finally, the agency is denying the petition to allow manufacturers to test at either chin-on-module test position until September 1, 2004. Compliance and certification test results show very little difference between either test position and, therefore, relief is unnecessary.

The IPHC has promulgated regulations governing the Pacific halibut fishery in 2004 under the Convention Between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC., on March 29, 1979). The IPHC regulations have been approved by the Secretary of State of the United States under section 4 of the Northern Pacific Halibut Act (Halibut Act, 16 U.S.C. 773-773k). Pursuant to regulations at 50 CFR 300.62, the approved IPHC regulations setting forth the 2004 IPHC annual management measures are published in the Federal Register to provide notice of their effectiveness, and to inform persons subject to the regulations of the restrictions and requirements. These management measures are effective until superceded by the 2005 management measures, which NMFS will publish in the Federal Register .

The IPHC held its annual meeting in Juneau, Alaska, on January 19-23, 2004, and adopted regulations for 2004. The substantive changes to the previous IPHC regulations (68 FR 10989, March 7, 2003) include:

1. New commercial fishery opening date of February 29, 2004, in IPHC areas other than Area 2A;

2. Opening dates for the Area 2A commercial directed halibut fishery;

3. Season dates for the Area 2A tribal fishery;

4. Revising the provisions for retention of tagged halibut;

5. Removing the requirement to mark setline or skate marker buoys with the vessel name;

6. Revising the regulation referring to the Prohibited Species Donation Program administered by NMFS to state that a person may “retain, possess, and dispose” of halibut from this program; and

7. Removing an obsolete regulation that made implementation of the Customary and Traditional Fishery Regulations in Alaska contingent on NMFS' publication of regulations governing this fishery.

The IPHC recommended to the governments of Canada and the United States catch limits for 2004 totaling 76,505,000 lbs (34,702,100 kg). The IPHC staff reported on the assessment of the Pacific halibut stock in 2003. Some significant changes occurred in the assessment, including the first separate assessment of the male and female components of the stock. Lower growth rates of halibut in recent years and different growth rates for the sexes prompted the staff to perform the separate assessments to ensure that mortality of the females was not excessive. Staff also undertook the first analytical assessments of Areas 3B, 4A, and 4B. Changes in the rate at which fish, especially males, recruit to the fishery will require additional analyses over the coming year to determine if the existing 32-inch (81.3 cm) size limit is still appropriate. Over the coming year, the Commission staff will continue to investigate a new harvest policy that may result in greater stability in the yield from the fishery and insulate the process of setting catch limits from technological changes in the assessment. A joint industry-Commission working group will address and report on this issue during 2004. The halibut stock is healthy in the central and southern portions of the range (Areas 3A through 2A) but is believed to have declined in Areas 3B through Area 4, and lower catch limits are required in those areas.

The PFMC develops the Area 2A CSP under authority of the Halibut Act, although the IPHC ultimately approves the CSP and any modifications to it. Section 5 of the Halibut Act (16 U.S.C. 773c) provides the Secretary of Commerce (Secretary) with general responsibility to carry out the Convention and to adopt such regulations as may be necessary to implement the purposes and objectives of the Convention and the Halibut Act. The Secretary's authority has been delegated to the Assistant Administrator for Fisheries, NOAA. Section 5 of the Halibut Act (16 U.S.C. 773c(c)) also authorizes the Regional Fishery Management Council having authority for the geographic area concerned to develop regulations governing the Pacific halibut catch in United States Convention waters that are in addition to, but not in conflict with, regulations of the IPHC. Pursuant to this authority, NMFS requested that the PFMC allocate halibut catches should such allocation be necessary. The PFMC's Area 2A CSP allocates the halibut catch limit for Area 2A among treaty Indian, non-treaty commercial, and non-treaty sport fisheries in and off Washington, Oregon, and California.

This action approves, but does not implement, the CSP for regulatory Area 2A. On February 23, 2004, (69 FR 8162), NMFS published a proposed rule to implement the CSP changes for 2004 and to implement the 2004 Area 2A sport fishing season regulations. The 2004 Area 2A CSP and the Area 2A sport fishing season regulations will be implemented by a final rule separate from this action. Sections 24(4)(b), 24(10), and 25 through 27 are not revised by this action, but will be revised by publication of the separate final rule implementing the Area 2A CSP. These sections primarily address the Area 2A sport fisheries. None of the 2004 changes to the CSP affect either the tribal fisheries or the non-tribal commercial fisheries. Therefore, IPHC management measures for those fisheries are implemented through this final rule.

The annual management measures that follow for the 2004 Pacific halibut fishery are those adopted by the IPHC and approved by the Secretary of State.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and CFR part 679.

The interim 2004 halibut bycatch allowance specified for the trawl rock sole/flathead sole/“other flatfish” fishery category in the BSAI is 195 metric tons as established by the interim 2004 harvest specifications for groundfish of the BSAI (68 FR 68265, December 8, 2003).

In accordance with § 679.21(e)(7)(v), the Administrator, Alaska Region, NMFS, has determined that the amount of the interim 2004 halibut bycatch allowance specified for the trawl rock sole/flathead sole/“other flatfish” fishery category in the BSAI has been caught. Consequently, NMFS is closing directed fishing for species in the rock sole/flathead sole/“other flatfish” fishery category by vessels using trawl gear in the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent the Agency from responding to the most recent fisheries data in a timely fashion and would delay the closure under the 2004 interim specifications of directed fishing for species in the rock sole/flathead sole/“other flatfish” fishery category by vessels using trawl gear in the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS issued a prohibition to directed fishing for pollock effective January 21, 2004, for Statistical Area 630, in accordance with § 679.20(d)(1)(iii), (see 69 FR 2850, January 21, 2004).

As of February 19, 2004, 1,200 metric tons (mt) of pollock remain in the 2004 interim TAC of the pollock specified for Statistical Area 630 of the GOA. Regulations at § 679.23(b) specify that the time of all openings and closures of fishing seasons other than the beginning and end of the calendar fishing year is 1200 hrs, A.l.t. Current information shows the catching capacity of vessels catching pollock for processing by the inshore component in Statistical Area 630 of the GOA is about 2,500 mt per day. The Administrator, Alaska Region, NMFS, has determined that the 2004 interim TAC of pollock could be exceeded if a 24-hour fishery were allowed to occur. NMFS intends that the seasonal allowance not be exceeded and, therefore, will not allow a 24-hour directed fishery. NMFS, in accordance with § 679.25(a)(1)(i)and § 679.25(a)(2)(i)(A) and (C), is adjusting directed fishery for pollock in Statistical Area 630 of the GOA by opening the fishery at 1200 hrs, A.l.t., February 24, 2004, and closing the fishery at 2400 hrs, A.l.t., February 24, 2004, at which time directed fishing for pollock will be prohibited. This action has the effect of opening the fishery for 12 hours.

NMFS is taking this action to allow a controlled fishery to occur, thereby preventing the overharvest of the 2004 interim TAC of pollock designated in accordance with the interim 2004 harvest specifications for groundfish in the GOA (68 FR 67964, December 5, 2004) and § 679.20(a)(5)(iii). In accordance with § 679.25(a)(2)(iii), NMFS has determined that prohibiting directed fishing at 2400 hrs, A.l.t., February 24, 2004, after a 12 hour opening is the least restrictive management adjustment to achieve the 2004 interim TAC of pollock in Statistical Area 630 of the GOA. Pursuant to § 679.25(b)(2), NMFS has considered data regarding catch per unit of effort and rate of harvest in making this adjustment.

Federal regulations at 50 CFR part 679 that implement the FMP govern the groundfish fisheries in the BSAI. The Council prepared the FMP and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield range of 1.4 million to 2.0 million metric tons (mt) ( see § 679.20(a)(1)(i)). Also specified are apportionments of TACs, and Community Development Quota (CDQ) reserve amounts, PSC allowances, and prohibited species quota (PSQ) reserve amounts. Regulations at § 679.20(c)(3) further require NMFS to consider public comment on the proposed annual TACs and apportionments thereof and the proposed PSC allowances, and to publish final specifications in the Federal Register . The final specifications set forth in Tables 1 through 17 of this action satisfy these requirements. For 2004, the sum of TACs is 2 million mt.

The proposed BSAI groundfish specifications and PSC allowances for the groundfish fishery of the BSAI were published in the Federal Register on December 3, 2003 (68 FR 67642). Comments were invited and accepted through January 2, 2004. NMFS received one letter of comment on the proposed specifications. This letter of comment is summarized and responded to in the Response to Comments section. NMFS consulted with the Council during the December 2003 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2004 groundfish harvest specifications as recommended by the Council.

Regulations at § 679.20(c)(2)(ii) establish the interim amounts of each proposed initial TAC (ITAC) and allocations thereof, of each CDQ reserve established by § 679.20(b)(1)(iii), and of the proposed PSC allowances and PSQ reserves established by § 679.21 that become available at 0001 hours, A.l.t., January 1, and remain available until superseded by the final specifications. NMFS published the interim 2004 groundfish harvest specifications in the Federal Register on December 8, 2003 (68 FR 68265). Regulations at § 679.20(c)(2)(ii) do not provide for an interim specification for either the hook-and-line or pot gear sablefish CDQ reserve or for sablefish managed under the Individual Fishing Quota (IFQ) management plan. The final 2004 groundfish harvest specifications, PSC allowances and PSQ reserves contained in this action supersede the interim 2004 groundfish harvest specifications.

The final ABC levels are based on the best available scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations and is based on a successive series of 6 levels, or tiers, of reliable information available to fishery scientists. Tier one represents the highest level of information and tier six the lowest level of information available.

In December 2003, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological information about the condition of groundfish stocks in the BSAI. This information was compiled by the Council's Plan Team and is presented in the final 2003 SAFE report for the BSAI groundfish fisheries, dated November 2003. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species or species category.

In December 2003, the SSC, AP, and Council reviewed the Plan Team's recommendations. Except for Bogoslof pollock, northern rockfish, and the “other species” category, the SSC, AP, and Council endorsed the Plan Team's ABC recommendations. For 2004, shortraker and rougheye rockfish will be managed as separate species with OFLs, ABCs and TACs at the BSAI-wide management area. For northern rockfish, the SSC recommended a BSAI-wide ABC instead of separate ABCs for the Bering Sea subarea and the Aleutian Islands subarea based on the limited genetic evidence to support separate stocks by subarea. For Bogoslof pollock, the SSC recommended using a procedure that reduces the ABC proportionately to the ratio of current stock biomass to target stock biomass. For “other species”, the SSC recommended using tier 6 management for the sharks and octopus species, which calculated lower ABCs, instead of the Plan Team recommended tier 5 management. The Plan Team also recommended separate OFLs and ABCs for the species in the “other species” category, however, the current FMP specifies management at the group level. For the 6th year, the SSC recommended a procedure that moves gradually to a higher ABC for “other species” over a 10-year period instead of a large increase in one year. For all species, the AP endorsed the ABCs recommended by the SSC, and the Council adopted them.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socio-economic considerations, including maintaining the total TAC within the required optimum yield (OY) range of 1.4 million to 2.0 million mt. The Council adopted the AP's TAC recommendations, except for pollock in the Bering Sea subarea and Aleutian Islands subarea, Pacific cod and the “other species”category. The Council increased the Bering Sea subarea pollock TAC by 240 mt, the Pacific cod TAC by 500 mt, the “other species” TAC by 500 mt and decreased the Aleutian Islands subarea pollock TAC by 1,240 mt. None of the Council's recommended TACs for 2004 exceed the final ABC for any species category. NMFS finds that the recommended OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as described in the 2003 SAFE report that was approved by the Council.

In October 2003 the Council's recommendations for the proposed 2004 harvest specifications (68 FR 67642, December 3, 2003) were based largely upon information contained in the final 2002 SAFE report for the BSAI groundfish fisheries, dated November 2002. The Council recommended that OFLs and ABCs for stocks in tiers 3 and above be based on biomass projections as set forth in the 2002 SAFE report and estimates of groundfish harvests through the 2003 fishing year. For stocks in tiers 4 and below, for which projections could not be made, the Council recommended that OFL and ABC levels be unchanged from 2003 until the final 2003 SAFE report could be completed. The final 2003 SAFE report (dated November 2003), which was not available when the Council made its recommendations in October 2003, contains the best and most recent scientific information on the condition of the groundfish stocks and was considered in December by the Council in making its recommendations for the final 2004 harvest specifications. Based on the final 2003 SAFE report, the sum of the 2004 recommended final TACs for the BSAI (2,000,000 mt) is greater by 1,557 mt than the sum of the proposed TACs (1,998,443 mt). This represents a .08-percent increase overall. Those fisheries for which the final 2004 TACs are lower than the proposed 2004 TAC are rock sole (decreased to 41,000 mt from 44,000 mt), greenland turbot (decreased to 3,500 mt from 4,000 mt), flathead sole (decreased to 19,000 mt from 20,000 mt), Pacific ocean perch (decreased to 12,580 mt from 13,932 mt), northern rockfish (decreased to 5,000 mt from 6,000 mt), “other rockfish” (decreased to 1,094 mt from 1,594 mt), squid (decreased to 1,275 mt from 1,970 mt), and “other species” (decreased to 27,205 mt from 32,309 mt). Those species for which the final 2004 TACs are higher than the proposed 2004 TAC are pollock (increased to 1,493,050 from 1,492,810 mt), Pacific cod (increased to 215,500 mt from 207,500 mt), sablefish (increased to 6,000 mt from 5,500 mt), Atka mackerel (increased to 63,000 mt from 59,111 mt), yellowfin sole (increased to 86,075 mt from 83,750 mt). Also, the Zone 1 red king crab limit increased to 197,000 crab from 97,000 crab. As mentioned in the 2004 proposed specifications, NMFS is separating the shortraker and rougheye rockfish group and apportioning the amounts shown in Table 2 from the non-specified reserve to increase several target species.

The 2004 final TAC recommendations for the BSAI are within the OY range established for the BSAI and do not exceed ABCs for any single species/complexes. Compared to the proposed 2004 harvest specifications, the Council's final 2004 TAC recommendations increase fishing opportunities for species for which the Council had sufficient information to raise TAC levels, most notably, pollock, Pacific cod, sablefish, Atka mackerel, and yellowfin sole, while providing greater protection for several species, most notably rockfish, squid and “other species”, by lowering TAC levels. The changes recommended by the Council were based on the best scientific information available, consistent with National Standard 2 of the Magnuson-Stevens Act, and within a reasonable range of variation from the proposed TAC recommendations.

Table 1 lists the final 2004 OFL, ABC, TAC, ITAC and CDQ reserve amounts of groundfish in the BSAI. The apportionment of TAC amounts among fisheries and seasons is discussed below.

NMFS manages the groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt) (see § 679.20(a)(1)(ii)). Regulations at § 679.20(c)(3)(i) further require NMFS to publish annually the final annual TACs, halibut PSC amounts, and seasonal allowances of pollock and inshore/offshore Pacific cod. The final specifications set forth in Tables 1 to 11 of this document satisfy these requirements. For 2004, the sum of the TAC amounts is 264,433 mt.

The proposed GOA groundfish specifications and Pacific halibut PSC allowances for the groundfish fishery of the GOA were published in the Federal Register on December 5, 2003 (68 FR 68002). Comments were invited and accepted through January 5, 2004. NMFS received one letter of comment on the proposed specifications. This letter of comment is summarized and responded to in the “Response to Comments” section of this action. NMFS consulted with the Council during the December 2003 Council meeting in Anchorage, AK. After considering public comments received, as well as biological and economic data that were available at the Council's December 2003 meeting, NMFS is implementing the final 2004 groundfish specifications as recommended by the Council.

Regulations at § 679.20(c)(2)(i) establish interim amounts of each proposed TAC and allocations thereof, and proposed PSC allowances established under § 679.21 that become available at 0001 hours, A.l.t., January 1, and remain available until superceded by the final specifications. NMFS published the interim 2004 groundfish harvest specifications in the Federal Register on December 5, 2003 (68 FR 67964). The final 2004 groundfish harvest specifications, apportionments, and halibut PSC allowances contained in this action supercede the interim 2004 groundfish harvest specifications.

The final ABC levels are based on the best available scientific information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used in computing ABCs and overfishing levels (OFLs). The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers with tier one representing the highest level of information and tier six the lowest level of information.

The Council, its Advisory Panel (AP), and its Scientific and Statistical Committee (SSC) reviewed the current biological information about the condition of GOA groundfish stocks in December 2003. This information was compiled by the Council's GOA Plan Team and was presented in the final 2003 SAFE report for the GOA groundfish fisheries, dated November 2003.

The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species or species category.

The SSC, AP, and Council adopted the Plan Team's ABC recommendations for all groundfish species categories except for shortraker/rougheye rockfish. For shortraker/rougheye rockfish, the SSC recommended decreasing the ABC from the Plan Team's recommendation. The SSC based its recommended ABC on the recent average catch of shortraker rockfish in this species group. Shortraker rockfish has been harvested in disproportionately high amounts relative to the biomass estimates of shortraker/rougheye rockfish. The SSC believes that the ABC for shortraker/rougheye rockfish should be decreased in order to prevent the overharvest of shortraker rockfish, which is preferentially targeted to rougheye rockfish in the groundfish fisheries. The AP endorsed the ABC for shortraker/rougheye rockfish recommended by the SSC, and the Council adopted the ABC. For all species, the AP endorsed the ABCs recommended by the SSC, and the Council adopted them. The final ABCs, as adopted by the Council are listed in Table 1.

As in 2003, the SSC's, AP's and Council's recommendation for the method of apportioning the sablefish ABC among management areas includes commercial fishery data as well as survey data. NMFS stock assessment scientists believe that the use of unbiased commercial fishery data reflecting catch-per-unit effort provides a desirable input for stock distribution assessments. The use of commercial fishery data will be evaluated annually to ensure that unbiased information is included in stock distribution models. The Council's recommendation for sablefish area apportionments also takes into account the prohibition on the use of trawl gear in the Southeast Outside (SEO) District of the Eastern GOA and makes available 5 percent of the combined Eastern GOA ABCs to trawl gear for use as incidental catch in other directed groundfish fisheries in the West Yakutat District (see § 679.20(a)(4)(i)).

The AP and Council recommended that the ABC for Pacific cod in the GOA be apportioned among regulatory areas based on the three most recent NMFS summer trawl surveys. As in previous years, the Plan Team, SSC, and Council recommended that total removals of Pacific cod from the GOA not exceed ABC recommendations. Accordingly, the AP and Council recommended that the TACs be adjusted downward from the ABCs by amounts equal to the 2004 guideline harvest levels (GHL) established for Pacific cod by the State of Alaska (State) for fisheries that occur in State waters in the GOA. The effect of the State's GHL on the Pacific cod TAC is discussed in greater detail below.

In October 2003, the Council took final action on Amendment 63 to the FMP. The Council has submitted Amendment 63 to the Secretary of Commerce for approval. If approved, Amendment 63 would move skates from the “other species” group to the “target species” group in the FMP. By listing skates as a target species, the fishery for skates in the GOA can be managed to reduce the potential for overfishing skates. NMFS published a Notice of Availability for Amendment 63 (68 FR 67390, December 2, 2003) inviting public comment through February 2, 2004. In December 2003, the Council made specific recommendations for the management of skates in the 2004 fishing year in the GOA, pending approval of Amendment 63 by the Secretary. These recommendations included OFL, ABC, and TAC levels for skates by target and management area in the GOA. NMFS will publish in the Federal Register proposed and final rules, pending approval of Amendment 63, that would amend these harvest specifications and provide management measures for the skate fishery in 2004.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range of 116,000 to 800,000 mt. The Council adopted the AP's TAC recommendations. None of the Council's recommended TACs for 2004 exceeds the final ABC for any species category. NMFS finds that the recommended ABCs and TACs are consistent with the biological condition of the groundfish stocks as described in the 2003 SAFE report and approved by the Council.

Table 1 lists the final 2004 OFL, ABC, TAC, and area apportionments of groundfish in the GOA. The sum of 2004 ABCs for all assessed groundfish is 498,948 mt, which is higher than the 2003 ABC total of 416,600 mt. The apportionment of TAC amounts among gear types, processing sectors, and seasons is discussed below.

The Council adopted the AP's proposals for the 2004 GOA TAC amounts. The Council recommended TACs that are equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, shortraker/rougheye rockfish, northern rockfish, Pacific ocean perch, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, and Atka mackerel. The Council recommended TACs that are less than the ABC for Pacific cod, flathead sole, shallow-water flatfish, arrowtooth flounder, and other rockfish.

The apportionment of annual pollock TAC reflects the seasonal biomass distribution and is discussed in greater detail below. The annual TAC in the Western and Central Regulatory Areas of the GOA is apportioned among Statistical Areas 610, 620, and 630 as well as equally among each of the following four seasons: the A season (January 20 through February 25), the B season (March 10 through May 31), the C season (August 25 through September 15), and the D season (October 1 through November 1) (see §§ 679.23(d)(2)(i) through (iv) and 679.20(a)(5)(iii)(B)).

The 2004 Pacific cod TAC is affected by the State's developing fishery for Pacific cod in State waters in the Central and Western Regulatory Areas in the GOA, as well as Prince William Sound (PWS). The SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals should not exceed the ABC. Accordingly, the Council recommended that Pacific cod TAC be reduced from ABC levels to account for State GHLs in each regulatory area of the GOA. Respective TACs, therefore, are reduced from ABCs as follows: (1) Eastern GOA 440 mt, (2) Central Regulatory Area 8,684 mt, and (3) Western Regulatory Area 5,653 mt. These amounts reflect the sum of the State's 2004 GHLs in these areas which are 10 percent, 24.25 percent, and 25 percent of the Eastern, Central, and Western Regulatory Area ABCs, respectively. Compared to 2003, the State's GHL for Pacific cod is decreased in 2004 to 10 percent from 25 percent of the Eastern Regulatory Area ABC, increased in 2004 to 24.25 percent from 21.75 percent of the Central Regulatory Area ABC and, unchanged at 25 percent of the Western Regulatory Area ABC.

NMFS is also establishing seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for hook-and-line, pot and jig gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (see § 679.23(d)(3) and § 679.20(a)(11)). These seasonal apportionments of the annual Pacific cod TAC are discussed in greater detail below.

The FMP specifies that the amount for the “other species” category is calculated as 5 percent of the combined TAC amounts for target species. The 2004 GOA-wide “other species” TAC is 12,592 mt, which is 5 percent of the sum of the combined TAC amounts (251,841 mt) for the assessed target species. The sum of the TACs for all GOA groundfish is 264,433 mt, which is within the OY range specified by the FMP. The sum of the 2004 TACs is higher than the 2003 TAC sum of 236,400 mt.

NMFS finds that the Council's recommendations for OFL, ABC, and TAC amounts are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range of 116,000 to 800,000 mt. NMFS has reviewed the Council's recommended TAC specifications and apportionments and hereby approves these specifications under § 679.20(c)(3)(ii). The final 2004 ABCs, TACs, and OFLs are shown in Table 1.

In October 2003 the Council's recommendations for the proposed 2004 harvest specifications (68 FR 68002, December 5, 2003) were based largely upon information contained in the final 2002 SAFE report for the GOA groundfish fisheries, dated November 2002. The Council recommended that OFLs and ABCs for stocks in tiers 3 and above, except for pollock, be based on biomass projections as set forth in the 2002 SAFE report and estimates of groundfish harvests through the 2003 fishing year. For stocks in tiers 4 and below, for which projections could not be made, the Council recommended that OFL and ABC levels be unchanged from 2003 until the final 2003 SAFE report could be completed. The final 2003 SAFE report (dated November 2003), which was not available when the Council made its recommendations in October 2003, contains the best and most recent scientific information on the condition of the groundfish stocks and was considered in December by the Council in making its recommendations for the final 2004 harvest specifications. Based on the final 2003 SAFE report, the sum of the 2004 recommended final TACs for the GOA (264,433 mt) is 36,636 mt more than the proposed sum of TACs (227,797 mt), representing a 16 percent increase overall. The largest increases occurred for pollock, from 54,350 mt to 71,260 mt (31 percent increase); sablefish, from 11,400 mt to 16,550 (45 percent increase); and Pacific cod, from 36,809 mt to 48,033 mt (30 percent increase). The largest decreases occurred for other slope rockfish, from 990 mt to 670 mt (32 percent decrease); pelagic shelf rockfish, from 5,490 mt to 4,470 mt (19 percent decrease); and shortraker/rougheye, from 1,620 mt to 1,318 mt (19 percent decrease). Other increases or decreases are within these ranges. The 2004 final TAC recommendations for the GOA are within the OY range established for the GOA and do not exceed ABCs for any single species/complexes. Compared to the proposed 2004 harvest specifications, the Council's final 2004 TAC recommendations increase fishing opportunities for species for which the Council had sufficient information to raise TAC levels, most notably, pollock, Pacific cod and sablefish, while providing greater protection for several species, most notably rockfish, by lowering TAC levels. The changes recommended by the Council were based on the best scientific information available, consistent with National Standard 2 of the Magnuson-Stevens Act, and within a reasonable range of variation from the proposed TAC recommendations.

Regulations at § 679.20(b)(2) implementing the FMP require 20 percent of each TAC for pollock, Pacific cod, flatfish, and the “other species” category be set aside in reserves for possible apportionment at a later date. In 2003, NMFS reapportioned all of the reserves in the final harvest specifications. NMFS proposed reapportionment of all reserves for 2004 in the proposed GOA groundfish specifications published in the Federal Register on December 5, 2003 (68 FR 68002). NMFS received no public comments on the proposed reapportionments. For the final 2004 GOA harvest specifications, NMFS has reapportioned all of the reserve for pollock, Pacific cod, flatfish, and “other species.” Specifications of TAC shown in Table 1 reflect apportionment of reserve amounts for these species and species groups.

Under § 679.20(a)(4)(i) and (ii), sablefish TACs for each of the regulatory areas and districts are allocated to hook-and-line and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to hook-and-line gear and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to hook-and-line gear and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish in directed fisheries for other target species (see § 679.20(a)(1)). In recognition of the trawl ban in the SEO District of the Eastern Regulatory Area, the Council recommended, and NMFS concurs, that 5 percent of the combined Eastern GOA sablefish be allocated to trawl gear in the WYK District and the remainder to vessels using hook-and-line gear. This recommendation results in an allocation of 316 mt to trawl gear and 2,234 mt to hook-and-line gear in the WYK District and 3,770 mt to hook-and-line gear in the SEO District. In the SEO District, 100 percent of the sablefish TAC is allocated to vessels using hook-and-line gear, resulting in the 3,770 mt allocation. Table 2 shows the allocations of the 2004 sablefish TACs between hook-and-line and trawl gear.

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Under regulations at § 679.20(a)(5)(iii)(B) the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is divided into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 through February 25, March 10 through May 31, August 25 through September 15, and October 1 through November 1, respectively.

Pollock TACs in the Western and Central Regulatory Areas of the GOA in the A and B seasons are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of pollock biomass as determined by a composite of NMFS winter surveys, and in the C and D seasons in proportion to the distribution of pollock biomass as determined by the four most recent NMFS summer surveys. The Plan Team recommended an adjustment to the distribution of pollock in the Central Regulatory Area during the A season. The Plan Team recommended that during the A season the winter and summer distribution of pollock be averaged in the Central Regulatory Area to reflect the distribution of pollock and the performance of the fishery in the area during the A season. The SSC, AP, and Council concurred with the Plan Team's recommendation. Within any fishing year, underage or overage of a seasonal allowance may be added to or subtracted from subsequent seasonal allowances in a manner to be determined by the Administrator, Alaska Region, NMFS, (Regional Administrator), provided that the sum of the revised seasonal allowances does not exceed 30 percent of the annual TAC apportionment for the Central and Western Regulatory Areas (see § 679.20(a)(5)(iii)(B)). For 2004, 30 percent of the annual TAC for the Central and Western Regulatory Areas is 19,038 mt. The WYK and SEO District pollock TACs of 1,280 mt and 6,520 mt, respectively, are not allocated by season.

Regulations at § 679.20(a)(6)(i) require that 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances thereof be allocated to vessels catching pollock for processing by the inshore component after subtraction of amounts that are projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. The amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount actually taken as bycatch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed under regulations at § 679.20(e) and (f). At this time, these bycatch amounts are unknown and will be determined during the fishing year.

The seasonal biomass distribution of pollock in the Western and Central Regulatory Areas, area apportionments, and seasonal apportionments for the A, B, C, and D seasons are summarized in Table 3, except that amounts of pollock for processing by the inshore and offshore components are not shown.