[Federal Register Volume 60, Number 156 (Monday, August 14, 1995)]
[Rules and Regulations]
[Pages 41828-41832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20024]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 640

[Docket No. 950424112-5201-02; I.D. 032095B]
RIN 0648-AF37


Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic; 
Amendment 4

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 4 to the 
Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of 
Mexico and South Atlantic (FMP). Amendment 4 allows the harvest of 
spiny lobster year-round and establishes a daily bag or possession 
limit of two spiny lobster per person in the exclusive economic zone 
off North Carolina, South Carolina, and Georgia.

EFFECTIVE DATES: September 13, 1995, except for Sec. 640.23(a) and (b) 
which will be effective [September 21, 1995. The incorporations by 
reference of certain sections of the Florida Administrative Code and 
Florida Statutes are approved by the Director of the Office of the 
Federal Register as of September 13, 1995.

FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 813-570-5305.

[[Page 41829]]

SUPPLEMENTARY INFORMATION: The FMP was prepared by the Gulf of Mexico 
and South Atlantic Fishery Management Councils (Councils). The FMP is 
implemented through regulations at 50 CFR part 640 under the authority 
of the Magnuson Fishery Conservation and Management Act (Magnuson Act).
    Detailed descriptions, backgrounds, and rationales for the 
management measures in Amendment 4 and the additional measures proposed 
by NMFS were included in the preamble to the proposed rule (60 FR 
21493, May 2, 1995) and are not repeated here.

Comments and Responses

    Four written comments were received on the proposed rule. One of 
the Councils' advisory panel members strongly supported this action.
    Three recreational divers opposed Amendment 4 because of a 
perceived risk to lobster stocks from the elimination of the spawning 
season closure. These three commenters also believe that this action 
will seriously increase recreational taking of lobsters off North 
Carolina. Two of the three commenters recommended a monitoring system 
to determine the number of recreational divers, catch, and size of 
lobsters before taking this action. One of those commenters opposed to 
Amendment 4 questioned the data contained in the amendment regarding 
the depth at which the fishery is prosecuted and the size of available 
lobsters. This commenter submitted a videotape to the South Atlantic 
Fishery Management Council office that purports to show lobsters common 
at depths from 45 to 100 ft (13.7 to 30.5 m) and significant 
populations of small lobsters in these waters, e.g., carapace lengths 
less than 1 inch (2.54 cm).
    NMFS notes that there is scientific debate regarding the biological 
status and population dynamics of spiny lobsters in waters north of 
Florida, including the issue of recruitment and the fate of larvae from 
the adult population in this area. However, based on the best available 
scientific information, NMFS and the Councils believe that allowing a 
limited year-round harvest in the subject area will have no adverse 
biological impacts on the lobster stocks.
    Some divers believe that the spawning season off North Carolina 
does not begin until July, due to the colder water temperatures. They 
reported seeing egg-bearing lobsters as late as early October. Thus, 
the current spawning season closure from April through July, based on 
data from Florida, may not be particularly relevant to the area north 
of Florida. Amendment 4 would not change the current prohibition on 
taking egg-bearing female lobsters.
    NMFS believes that a monitoring system for this fishery would not 
be cost-effective. Our surveys indicate that there are only a small 
number of participants in the spiny lobster fishery north of Florida. 
The South Atlantic Council intends to monitor the fishery to determine 
the need for further management actions, including a possible reduction 
in the bag limit.
    According to testimony at public hearings on Amendment 4, the 
fishery takes place about 30 nautical miles (55.6 km) offshore in at 
least 100 ft (30.5 m) of water. A typical dive at these depths lasts 
less than 30 minutes. Lobsters harvested ranged from 2 to 16 lb (0.9 to 
7.3 kg). Comments on the proposed rule contradicted this testimony and 
raised questions about the potential for significant increases in 
recreational take and the availability of undersized lobster in the 
area.
    If lobsters are found in relatively shallow water that is 
accessible to most recreational divers, there is a possibility of an 
increase in participation due to the year-round harvest. However, a 
recent NMFS survey indicated that only a small number of recreational 
divers harvested spiny lobster north of Florida. Comments on the 
proposed rule also indicate the possible presence of significant 
numbers of undersized lobsters, i.e., with carapace lengths less than 3 
inches (7.62 cm), increasing the possibility of taking undersized 
lobsters in this fishery. The presence of subadult lobsters was not 
reported during public hearings on Amendment 4.
    NMFS is concerned about the new information that arose during the 
public comment period on the proposed rule, since this information was 
not available to the Councils when they approved Amendment 4. However, 
NMFS has reviewed the administrative record on the Councils' decision 
and has determined that this new information does not outweigh the 
record underlying the Councils' decision. Consequently, NMFS approved 
Amendment 4 with the expectation that the Councils will consider this 
new information during development of a subsequent FMP amendment.

Incorporation by Reference of Florida Statutes and Regulations

    As explained in the proposed rule, NMFS is adding language to the 
regulatory text of the regulations implementing the FMP to ensure that 
the incorporations by reference of certain portions of the Florida 
Statutes (FS) and Florida Administrative Code (FAC) meet procedural 
specifications of the Office of the Federal Register. NMFS has 
determined that the references at 50 CFR 640.6(a)(1) to sections 370.14 
and 370.142, FS, are unnecessarily broad. The references are in the 
context of vessel and gear identification requirements applicable to 
the harvesting of spiny lobsters by traps in Florida's waters. However, 
such requirements are contained in only three paragraphs of those 
sections. Accordingly, in this final rule, the references are changed 
to sections 370.14(2)(a) and (3) and 370.142(2)(b), FS.
    The current references are to the portions of the FS and FAC as 
specified on November 30, 1992. In the proposed rule and this final 
rule the references are to the FS in effect as of July 1, 1994, and FAC 
in effect as of June 1, 1994, the dates of the currently effective 
referenced portions. This change is necessary in order for fishermen to 
have access to the referenced portions--earlier versions are not 
readily available. The following changes, none of which are 
substantive, have been made to the referenced FS and FAC since November 
30, 1992:
    Section 370.142, FS - paragraph (2)(c) has been removed. The 
paragraph contained identification requirements for recreational spiny 
lobster traps. However, those requirements were duplicative of 
requirements for all traps, as contained in FS 370.14(2)(a) and 
370.142(2)(b).
    Rule 46-24.002(2), FAC - As of November 30, 1992, this rule 
specified August 1, 1993, as the beginning date that a restricted 
species endorsement would be required on the Florida saltwater products 
license in order to be a commercial harvester of spiny lobsters. That 
date was changed to August 1, 1994. However, since the reference to 
this rule was not included in the Federal Register until October 21, 
1994, the change in date is inconsequential.
    In several paragraphs of the referenced FS and FAC ``Department of 
Natural Resources'' was changed to ``Department of Environmental 
Protection.''

Changes from the Proposed Rule

    As discussed above, the references to sections 370.14 and 370.142, 
FS, have been changed.

Classification

    The Director, Southeast Region, NMFS, determined that Amendment 4 
is necessary for the conservation and management of the spiny lobster 
fishery of the Gulf of Mexico and South 

[[Page 41830]]
Atlantic and that it is consistent with the Magnuson Act and other 
applicable law.
    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration when the proposed rule was published 
that it would not have a significant economic impact on a substantial 
number of small entities. The reasons for this certification were 
published in the preamble to the proposed rule (60 FR 21493, May 2, 
1995). As a result, a regulatory flexibility analysis was not prepared.
    The incorporation by reference of certain sections of the Florida 
Administrative Code and Florida Statutes does not constitute a 
substantive rule, as they are not changing the regulation, but, rather, 
are correcting the process by which those sections were previously 
incorporated. Thus, pursuant to 5 U.S.C. 553(d) there is no need to 
delay the effective date of those provisions. Additionally, due to the 
fact that the fishery for spiny lobster opened on August 6, 1995, the 
Assistant Administrator for Fisheries, NOAA, finds that good cause 
exists, under 5 U.S.C. 553(d)(3), to waive the 30-day delay in 
effective date with respect to the provisions of this rule that specify 
the daily bag or possession limit of spiny lobster. The conservation 
and management needs that lead NMFS to impose the limit, as described 
in the proposed rule, along with the fact that it takes little, if any, 
time to come into compliance with such a limit make a delay in 
effective date contrary to the public interest and unnecessary, 
respectively. However, in order to provide time for notice of the bag 
limit to be provided to fishermen, NMFS will delay the effective date 
of this provision for 7 days.

List of Subjects in 50 CFR Part 640

    Fisheries, Fishing, Incorporation by reference, Reporting and 
recordkeeping requirements.

    Dated: August 9, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 640 is amended 
as follows:

PART 640--SPINY LOBSTER FISHERY OF THE GULF OF MEXICO AND SOUTH 
ATLANTIC

    1. The authority citation for part 640 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec. 640.2, definitions for ``Off the Gulf states, other than 
Florida'' and ``Off the southern Atlantic states, other than Florida'' 
are added, in alphabetical order, to read as follows:


Sec. 640.2  Definitions.

* * * * *
    Off the Gulf states, other than Florida means the area from the 
coast to the outer limit of the EEZ between the Texas/Mexico border to 
the Alabama/Florida boundary (87 deg.31'06'' W. long.).
    Off the southern Atlantic states, other than Florida means the area 
from the coast to the outer limit of the EEZ between the Virginia/North 
Carolina boundary (36 deg.34'55'' N. lat.) to the Georgia/Florida 
boundary (30 deg.42'45.6'' N. lat.).
* * * * *
    3. In Sec. 640.4, paragraph (a)(1) is revised to read as follows:


Sec. 640.4  Permits and fees.

    (a) * * *
    (1) Licenses, certificates, and permits--(i) EEZ off Florida and 
spiny lobster landed in Florida. For a person to sell, trade, or 
barter, or attempt to sell, trade, or barter, a spiny lobster harvested 
or possessed in the EEZ off Florida, or harvested in the EEZ other than 
off Florida and landed from a fishing vessel in Florida, or for a 
person to be exempt from the daily bag and possession limit specified 
in Sec. 640.23(b)(1) for such spiny lobster, such person must have the 
licenses and certificates specified to be a ``commercial harvester,'' 
as defined in Rule 46-24.002(2), Florida Administrative Code, in effect 
as of June 1, 1994. This incorporation by reference was approved by the 
Director of the Office of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the 
Florida Marine Fisheries Commission, 2540 Executive Center Circle West, 
Suite 106, Tallahassee, FL 32301; telephone: 904-487-0554. Copies may 
be inspected at the Office of the Regional Director; the Office of 
Fisheries Conservation and Management, NMFS, 1315 East-West Highway, 
Silver Spring, MD; or the Office of the Federal Register, 800 North 
Capitol Street NW, Suite 700, Washington, DC.
    (ii) EEZ other than off Florida. For a person to sell, trade, or 
barter, or attempt to sell, trade, or barter, a spiny lobster harvested 
in the EEZ other than off Florida or for a person to be exempt from the 
daily bag and possession limit specified in Sec. 640.23(b)(1) for such 
spiny lobster, a Federal vessel permit must be issued to the harvesting 
vessel and must be on board. However, see paragraph (a)(1)(i) of this 
section for the licenses and certificates required for a person to 
possess or land spiny lobster harvested in the EEZ other than off 
Florida and subsequently possessed in the EEZ off Florida or landed 
from a fishing vessel in Florida.
* * * * *
    4. In Sec. 640.6, in paragraph (c), the word ``Secretary'' is 
revised to read ``Assistant Administrator'' and paragraph (a) is 
revised to read as follows:


Sec. 640.6  Vessel and gear identification.

    (a) EEZ off Florida. (1) An owner or operator of a vessel that is 
used to harvest spiny lobsters by traps in the EEZ off Florida must 
comply with the vessel and gear identification requirements applicable 
to the harvesting of spiny lobsters by traps in Florida's waters in 
sections 370.14(2)(a) and (3) and 370.142(2)(b), Florida Statutes, in 
effect as of July 1, 1994, and in Rule 46-24.006(3), (4), and (5), 
Florida Administrative Code, in effect as of June 1, 1994.
    (2) An owner or operator of a vessel that is used to harvest spiny 
lobsters by diving in the EEZ off Florida must comply with the vessel 
identification requirements applicable to the harvesting of spiny 
lobsters by diving in Florida's waters in Rule 46-24.006(6), Florida 
Administrative Code, in effect as of June 1, 1994.
    (3) The incorporation by reference in paragraphs (a)(1) and (a)(2) 
of this section of sections 370.14(2)(a) and (3) and 370.142(2)(b), 
Florida Statutes, and Rule 46-24.006(3), (4), (5), and (6), Florida 
Administrative Code, was approved by the Director of the Office of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
Copies may be obtained from the Florida Marine Fisheries Commission, 
2540 Executive Center Circle West, Suite 106, Tallahassee, FL 32301; 
telephone: 904-487-0554. Copies may be inspected at the Office of the 
Regional Director; the Office of Fisheries Conservation and Management, 
NMFS, 1315 East-West Highway, Silver Spring, MD; or the Office of the 
Federal Register, 800 North Capitol Street NW, Suite 700, Washington, 
DC.
* * * * *

[[Page 41831]]



Sec. 640.7  [Amended]

    5. In Sec. 640.7, in paragraph (e), the reference to ``Sec. 640.20 
(c)(1) and (c)(2)'' is revised to read ``Sec. 640.20(b)(3)(i) and 
(b)(3)(ii)''; in paragraph (f), the reference to ``Sec. 640.20(d)'' is 
revised to read ``Sec. 640.20(b)(4)''; in paragraph (p), the reference 
to ``Sec. 640.23(a) or (b)'' is revised to read ``Sec. 640.23(a), 
(b)(1), or (b)(2)'' and the reference to ``Sec. 640.23(c) and (d)'' is 
revised to read ``Sec. 640.23(b)(3) and (b)(4)''; in paragraph (q), the 
reference to ``Sec. 640.23(d)'' is revised to read 
``Sec. 640.23(b)(4)''; in paragraph (r), the reference to 
``Sec. 640.23(g)'' is revised to read ``Sec. 640.23(d)''; and in 
paragraph (s), the reference to ``Sec. 640.23(h)'' is revised to read 
``Sec. 640.23(e)''.
    6. Section 640.20 is revised to read as follows:


Sec. 640.20  Seasons.

    (a) EEZ off the southern Atlantic states, other than Florida. In 
the EEZ off the southern Atlantic states, other than Florida, there are 
no seasonal restrictions on the harvest of spiny lobster or on the 
possession of traps.
    (b) EEZ off Florida and off the Gulf states, other than Florida--
(1) Commercial and recreational fishing season. The commercial and 
recreational fishing season for spiny lobster in the EEZ off Florida 
and the EEZ off the Gulf states, other than Florida, begins on August 6 
and ends on March 31.
    (2) Special recreational fishing seasons--(i) EEZ off Florida. 
There is a 2-day special recreational fishing season in the EEZ off 
Florida on the last Wednesday and successive Thursday of July each year 
during which fishing for spiny lobster is limited to diving or use of a 
bully net or hoop net. (See Sec. 640.22(a) for general prohibitions on 
gear and methods.) In the EEZ off Monroe County, Florida, no person may 
harvest spiny lobster by diving at night, that is, from 1 hour after 
official sunset to 1 hour before official sunrise, during this 2-day 
special recreational fishing season.
    (ii) EEZ off the Gulf states, other than Florida. There is a 2-day 
special recreational fishing season in the EEZ off the Gulf states, 
other than Florida, during the last Saturday and successive Sunday of 
July each year during which fishing for spiny lobster may be conducted 
by authorized gear and methods other than traps. (See Sec. 640.22(a) 
for general prohibitions on gear and methods.)
    (3) Possession of traps. (i) In the EEZ off Florida, the rules and 
regulations applicable to the possession of spiny lobster traps in 
Florida's waters in Rule 46-24.005(3), (4), and (5), Florida 
Administrative Code, in effect as of June 1, 1994, apply in their 
entirety to the possession of spiny lobster traps in the EEZ off 
Florida. This incorporation by reference was approved by the Director 
of the Office of the Federal Register in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. Copies may be obtained from the Florida 
Marine Fisheries Commission, 2540 Executive Center Circle West, Suite 
106, Tallahassee, FL 32301; telephone: 904-487-0554. Copies may be 
inspected at the Office of the Regional Director; the Office of 
Fisheries Conservation and Management, NMFS, 1315 East-West Highway, 
Silver Spring, MD; or the Office of the Federal Register, 800 North 
Capitol Street NW, Suite 700, Washington, DC.
    (ii) In the EEZ off the Gulf states, other than Florida, a spiny 
lobster trap may be placed in the water prior to the commercial and 
recreational fishing season, which is specified in paragraph (b)(1) of 
this section beginning on August 1 and must be removed from the water 
after such season not later than April 5.
    (iii) A spiny lobster trap, buoy, or rope in the EEZ off Florida or 
in the EEZ off the Gulf states, other than Florida, during periods not 
authorized in paragraphs (b)(3)(i) and (b)(3)(ii) of this section will 
be considered unclaimed or abandoned property and may be disposed of in 
any manner considered appropriate by the Assistant Administrator or an 
authorized officer. An owner of such trap, buoy, or rope remains 
subject to appropriate civil penalties.
    (4) Possession of spiny lobsters. In the EEZ off Florida and the 
Gulf states, a whole or a part of a spiny lobster subject to these 
regulations may only be possessed during the commercial and 
recreational fishing season and the special recreational fishing season 
specified in Sec. 640.20, unless accompanied by proof of lawful harvest 
in the waters of a foreign nation. Consistent with the provisions of 
paragraphs (b)(3)(i) and (ii) of this section, a spiny lobster in a 
trap in this area will not be deemed to be possessed provided such 
spiny lobster is returned immediately to the water unharmed when a trap 
is removed from the water between March 31 and April 15.
    (c) Primacy of seasonal restrictions in the EEZ off Florida. The 
seasonal restrictions applicable in the EEZ off Florida apply to all 
spiny lobsters and traps in the EEZ off Florida, without regard to 
harvest or use elsewhere, unless accompanied by proof of lawful harvest 
elsewhere.
    7. In Sec. 640.22, a sentence is added to the end of paragraph 
(a)(1) and paragraph (b)(3)(i) is revised to read as follows:


Sec. 640.22  Gear and diving restrictions.

    (a) * * *
    (1) * * * Hook, as used in this paragraph (a)(1), does not include 
a hook in a hook-and-line fishery for species other than spiny lobster; 
and possession of a spiny lobster that has been speared, pierced, or 
punctured by such hook is not considered evidence that prohibited gear 
was used to take the spiny lobster, provided no prohibited gear is on 
board the vessel.
* * * * *
    (b) * * *
    (3) * * *
    (i) For traps in the EEZ off Florida, by the Florida Division of 
Law Enforcement, Department of Environmental Protection, in accordance 
with the procedures in Rule 46-24.006(7), Florida Administrative Code, 
in effect as of June 1, 1994. This incorporation by reference was 
approved by the Director of the Office of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
obtained from the Florida Marine Fisheries Commission, 2540 Executive 
Center Circle West, Suite 106, Tallahassee, FL 32301; telephone: 904-
487-0554. Copies may be inspected at the Office of the Regional 
Director; the Office of Fisheries Conservation and Management, NMFS, 
1315 East-West Highway, Silver Spring, MD; or the Office of the Federal 
Register, 800 North Capitol Street NW, Suite 700, Washington, DC.
* * * * *
    8. Section 640.23 is revised to read as follows:


Sec. 640.23  Bag/possession limits.

    (a) EEZ off the southern Atlantic states, other than Florida. The 
daily bag or possession limit for spiny lobster in or from the EEZ off 
the southern Atlantic states, other than Florida, is two per person for 
commercial and recreational fishing, year-round.
    (b) EEZ off Florida and off the Gulf states, other than Florida--
(1) Commercial and recreational fishing season. Except as specified in 
paragraphs (b)(3) and (b)(4) of this section, during the commercial and 
recreational fishing season specified in Sec. 640.20(b)(1), the daily 
bag or possession limit of spiny lobster in or from the EEZ off Florida 
and off the Gulf states, other than Florida, is six per person.
    (2) Special recreational fishing seasons. During the special 
recreational 

[[Page 41832]]
fishing seasons specified in Sec. 640.20(b)(2), the daily bag or 
possession limit of spiny lobster--
    (i) In or from the EEZ off the Gulf states, other than Florida, is 
six per person;
    (ii) In or from the EEZ off Florida other than off Monroe County, 
Florida, is twelve per person; and
    (iii) In or from the EEZ off Monroe County, Florida, is six per 
person.
    (3) Exemption from the bag/possession limit. During the commercial 
and recreational fishing season specified in Sec. 640.20(b)(1), a 
person is exempt from the bag and possession limit specified in 
paragraph (a) of this section, provided--
    (i) The harvest of spiny lobsters is by diving, or by the use of a 
bully net, hoop net, or spiny lobster trap; and
    (ii) The vessel from which the person is operating has on board the 
required licenses, certificates, or permits, as specified in 
Sec. 640.4(a)(1).
    (4) Harvest by net or trawl. During the commercial and recreational 
fishing season specified in Sec. 640.20(b)(1), aboard a vessel with the 
required licenses, certificates, or permits specified in 
Sec. 640.4(a)(1) that harvests spiny lobster by net or trawl or has on 
board a net or trawl, the possession of spiny lobster in or from the 
EEZ off Florida and off the Gulf states, other than Florida, may not 
exceed at any time 5 percent, whole weight, of the total whole weight 
of all fish lawfully in possession on board such vessel. If such vessel 
lawfully possesses a separated spiny lobster tail, the possession of 
spiny lobster in or from the EEZ may not exceed at any time 1.6 
percent, by weight of the spiny lobster or parts thereof, of the total 
whole weight of all fish lawfully in possession on board such vessel. 
For the purposes of this paragraph (b)(4), the term ``net or trawl'' 
does not include a hand-held net, a loading or dip net, a bully net, or 
a hoop net.
    (5) Diving at night. The provisions of paragraph (b)(3) of this 
section notwithstanding, a person who harvests spiny lobster in the EEZ 
by diving at night, that is, from 1 hour after official sunset to 1 
hour before official sunrise, is limited to the bag limit specified in 
paragraph (b)(1) of this section, whether or not a Federal vessel 
permit specified in Sec. 640.4(a)(1) has been issued to and is on board 
the vessel from which the diver is operating.
    (c) Combination of bag/possession limits. A person who fishes for 
or possesses spiny lobster in or from the EEZ under a bag or possession 
limit specified in paragraph (a) or (b) of this section may not combine 
the bag or possession limits of those paragraphs or combine such bag or 
possession limit with a bag or possession limit applicable to state 
waters.
    (d) Responsibility for bag/possession limits. The operator of a 
vessel that fishes for or possesses spiny lobster in or from the EEZ is 
responsible for the cumulative bag or possession limit specified in 
paragraphs (a) and (b) of this section applicable to that vessel, based 
on the number of persons aboard.
    (e) Transfer at sea. A person who fishes for or possesses spiny 
lobster in or from the EEZ under a bag or possession limit specified in 
paragraph (a) or (b) of this section may not transfer a spiny lobster 
at sea from a fishing vessel to any other vessel, and no person may 
receive at sea such spiny lobster.


Sec. 640.24  [Amended]

    9. In Sec. 640.24, the word ``Secretary'' is revised to read 
``Assistant Administrator''.
[FR Doc. 95-20024 Filed 8-11-95; 8:45 am]
BILLING CODE 3510-22-F