[Federal Register Volume 64, Number 197 (Wednesday, October 13, 1999)]
[Rules and Regulations]
[Pages 55434-55438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26693]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 980331080-9269-02; I.D. 091799A]
RIN 0648-AK66


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Interim final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing this 
interim final rule to amend the regulations that require most shrimp 
trawlers to use turtle excluder devices (TEDs) in the southeastern 
Atlantic, including the Gulf of Mexico, to reduce the incidental 
capture of endangered and threatened sea turtles during shrimp 
trawling. Specifically, we are extending for one additional year the 
approved use of the Parker soft TED.

DATES: This rule is effective October 13, 1999. Comments on this rule 
are requested, and must be received by December 13, 1999.

ADDRESSES: Comments on this action should be addressed to the Chief, 
Endangered Species Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 727-570-5312.

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act of 1973 
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback 
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are 
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia 
mydas) turtles are listed as threatened, except for breeding 
populations of green turtles in Florida and on the Pacific coast of 
Mexico, which are listed as endangered.

[[Page 55435]]

    The incidental take and mortality of these species, as a result of 
shrimp trawling activities, have been documented in the Gulf of Mexico 
and along the Atlantic seaboard. Under the ESA and its implementing 
regulations, taking sea turtles is prohibited, with exceptions 
identified in 50 CFR 223.206. Existing sea turtle conservation 
regulations (50 CFR 223.206 and 223.207) require most shrimp trawlers 
operating in the Gulf and Atlantic Areas, defined at 50 CFR 222.102, to 
have a NMFS-approved TED installed in each net rigged for fishing, year 
round. Current TEDs approved by NMFS for shrimp trawling include 
single-grid hard TEDs, hooped hard TEDs conforming to a generic 
description, two types of special hard TEDs, and one type of soft TED-
the Parker soft TED.
    NMFS approved the Parker TED through an April 13, 1998, interim 
final rule (63 FR 17948). Without an extension, that rule would lapse 
on October 13, 1999. NMFS limited the duration of that rule to 18-
months so that if an evaluation of the effectiveness of the Parker TED 
in commercial use showed that the Parker TED was not effective at 
excluding sea turtles, NMFS could allow the Parker TED to lapse. If the 
Parker TED was found to be effective at excluding sea turtles, the 
interim rule would be adopted as final incorporating any necessary 
technical changes that might result from the TED testing and commercial 
use during the 18-month period. At this time, NMFS' data are 
inconclusive, and NMFS is unable to make a final determination 
regarding the effectiveness of Parker TEDs under commercial fishing 
condition. To provide for further data collection, NMFS is extending 
the effectiveness of the interim rule for 12 months.

Evaluation of the Parker TED

    NMFS looked at many aspects of the Parker soft TED's performance 
over the past 2 years in both the Gulf of Mexico and the South 
Atlantic. Observers placed aboard commercial trawlers have documented 
sea turtle capture rates and finfish bycatch reduction. Intensive law 
enforcement efforts have been used to ensure and document fishermen's 
compliance with the technical requirements for using the Parker TED. 
NMFS' gear specialists have traveled extensively throughout the 
Southeast to provide training to net shops and trawler fleets in the 
proper installation and use of the Parker TED. The gear specialists 
have also provided follow-up assistance to fishermen and net makers.

Observer Information

    NMFS' observer information generally shows that the Parker TED does 
not have a problem with sea turtle captures. In 1997-1998, observers 
documented three turtle captures in nets equipped with Parker TEDs in 
nearshore waters in the South Atlantic area. A total of 190 tows were 
observed, for 515 hours of trawling. The resulting turtle catch rate 
(Catch per unit effort, or CPUE) was 0.005 turtles per 100 ft. (30.5 m) 
headrope-hour. In 1997, observers documented 62 tows in the South 
Atlantic area aboard trawlers equipped with hard TEDs. One turtle was 
observed captured in 161 hours of trawling, for a CPUE of 0.005 turtles 
per 100 ft (30.5 m) headrope-hour. Observations in the Gulf of Mexico 
revealed a similar situation, although turtle catch rates in the Gulf 
are much lower overall. In 1998, 133 tows using Parker TEDs, totaling 
1,352 trawl hours, were observed in the offshore waters of the Gulf of 
Mexico: no turtle captures were observed. We also observed 2,081 
offshore shrimp tows using hard TEDs, for a total of 9,632 hours. Two 
turtles were captured, representing a CPUE of 0.0001. The observed 
catch rates for shrimp trawlers using hard TEDs and Parker TEDs are 
small and, therefore, it is difficult to make definitive comparisons. 
Observers experienced difficulty in finding vessels using Parker TEDs 
to make trips with, contributing somewhat to the small number of Parker 
TED tows observed. Still, the available observer data indicates that 
the Parker TED's turtle catch rate is probably comparable to the catch 
rates of hard TEDs.
    Several observer trips have also been made specifically to test the 
Parker TED's potential as a bycatch reduction device (BRD). The tests 
are made by comparing the catches from two nets pulled simultaneously 
by a trawler--one net is equipped with a Parker TED and the other with 
a hard TED. The Gulf and South Atlantic Fisheries Development 
Foundation (GSAFDF) and the South Carolina Department of Natural 
Resources (SCDNR) conducted independent tests of the Parker TED in the 
Atlantic in the fall of 1997. The GSAFDF and SCDNR tests showed a 
greater shrimp loss compared to standard tests in for hard TED-equipped 
net. The bycatch reduction rates for weakfish and Spanish mackerel, the 
two primary bycatch species of concern in the Atlantic, were 32.1 and 
45.96 percent from the GSAFDF data and 25.02 and 79.78 percent from the 
SCDNR data. These tests showed that the Parker TED is effective for 
excluding Spanish mackerel but does not meet the 40 percent exclusion 
rate for weakfish that is a criterion for certification as a BRD under 
the South Atlantic Shrimp Fishery Management Plan. The GSAFDF also did 
considerable testing of the Parker TED in 1998 and 1999 in the Gulf of 
Mexico where red snapper is the bycatch species of concern. That 
testing revealed a 7 percent shrimp loss, compared to a hard TED. A 
preliminary analysis of the red snapper catch rate shows a 33 percent 
reduction, which would not meet the criterion for certification as a 
BRD in the Gulf. Currently a modified Parker TED, using a 4 x 6 inch 
(10.2 X 15.2 cm) panel, is being tested as a BRD off South Carolina 
through a permit issued by NMFS, to determine whether the smaller-mesh 
panel can increase the bycatch reduction rate.

Observations by Law Enforcement

    The Protected Resources Enforcement Team (PRET) is a specially-
equipped team of NMFS law enforcement officers that was formed to focus 
enforcement attention on protected resources issues-primarily TEDs-in 
the Southeast. The PRET has placed priority on ensuring compliance with 
the requirements for the newly introduced Parker TED. The PRET has not 
encountered many shrimp trawlers actually using the Parker TED, despite 
intensive patrol efforts. In 1998, the PRET's first year in operation, 
the team logged 488 hours of at-sea patrols, boarding 261 vessels as 
part of the TED compliance project. PRET boardings in 1998 focused on 
nearshore shrimping grounds along the coasts of Texas, Louisiana, 
Georgia, and South Carolina. A large portion of the PRET's efforts in 
1999 have been dedicated to patrols along the Texas coast, due to the 
continuing concern over the number of dead sea turtles that strand on 
Texas beaches. From March 16, 1999, through August 19, 1999, the PRET 
boarded 241 vessels along the Texas and Louisiana coasts.
    Only two boats using Parker TEDs have been encountered by the PRET 
during 449 boardings in the Gulf of Mexico over 2 years. Both boats 
were operated by the same company which had installed Parker TEDs on 
its boats in 1998. When one of the boats was encountered in the summer 
of 1998, the recently-installed Parker TEDs were in good condition and 
in full compliance with the regulations. When the second boat was 
boarded in the summer of 1999, the boat's Parker TEDs were in bad 
disrepair and had apparently received no maintenance in a long time, 
possibly not since being installed a year

[[Page 55436]]

earlier. The boat was cited for the violation.
    Enforcement efforts in the South Atlantic also indicate that use of 
the Parker TED in the shrimp fleet may be very low. The PRET only 
documented one trawler equipped with Parker TEDs during 53 boardings in 
1998. NMFS gear specialists accompanied SCDNR enforcement officers on 
patrols of state waters during May 1999. Out of approximately 40 
trawlers boarded at sea, two were using Parker TEDs. The U.S. Coast 
Guard Group in Charleston, SC, reports boarding only 4 boats with 
Parker TEDs over the past 2 years. No violations were reported from 
these seven boardings.

Observations of Gear Specialists

    The installation specifications for the Parker TED included an 
unprecedented level of technical detail compared to previous soft TED 
regulations. The specifications included new requirements such as 
limiting installation to only certain styles of nets, exact mesh counts 
for fixing the location of the soft TED panel in the net, and detailed 
sewing instructions for attaching the panel to the net. As discussed in 
the April 13, 1998 interim final rule (63 FR 17948), NMFS believes that 
this level of technical specificity is required for the Parker TED to 
achieve a proper shape and exclude turtles effectively.
    NMFS provided intensive technical training to assist the shrimp 
industry to adopt these stringent technical requirements. During 1998 
and 1999, NMFS gear specialists held training sessions throughout the 
southeastern United States to improve TED technical operation and 
compliance. Technology transfer methodology included the development of 
improved training and educational materials which were distributed 
through the Coast Guard, Sea Grant, by direct mailouts, and through TED 
skill building workshops. Workshops included multimedia presentations 
and hands-on instruction which have proven highly effective in 
transferring technical information. TED operational manuals were 
distributed to assist fishermen in complying with TED regulations and 
to assist in solving TED operational problems. In spring 1998, the 
training specifically focused on net shops around the entire Atlantic 
and Gulf coasts. Those training sessions reviewed the new Parker TED 
regulatory requirements and included hands-on training installing 
Parker TEDs. Generally, the net makers were able to learn how to 
install the Parker TED according to the regulations quickly. Gear 
specialists provided follow-up visits to work with some net makers who 
had difficulties. Subsequent workshops in 1998 and 1999 have been 
primarily addressed to the fishermen and to ensuring proper commercial 
use of TEDs.
    The gear specialists also held workshops for NMFS, Coast Guard, and 
state law enforcement personnel. The purpose of these workshops was to 
review the complete enforcement process for TEDs, including 
descriptions of TEDs, establishing at-sea protocols for boarding 
vessels, checking Parker TEDs and hard TEDs for correct installation, 
and conducting training of new enforcement officers. NMFS gear experts 
also accompanied NMFS, Coast Guard, and state law enforcement personnel 
during at-sea and dockside boardings to provide hands-on technical 
training and assistance and to collect information on TED technical 
performance and compliance. This assistance was provided in North 
Carolina, South Carolina, Georgia, Florida, Alabama and Louisiana, and 
Texas.
    During the period May-July 1999, three NMFS gear specialists 
provided 22 days of assistance to fishermen in North Carolina, South 
Carolina and Georgia in modifying their TEDs to comply with actions 
implemented under the leatherback turtle contingency plan (64 FR 25460, 
May 12, 1999; 64 FR 27206, May 19, 1999; 64 FR 28761, May 27, 1999; 64 
FR 29805, June 3, 1999). Although almost all fishermen used hard TEDs 
with a large escape opening to comply with the leatherback contingency 
plan, the gear specialists found 10 vessels in McClellanville, SC, that 
were equipped with Parker TEDs modified to use the leatherback escape 
opening. The fishermen reported little difficulty in successfully 
making the leatherback modification to their Parker TEDs.
    During the months of March, April and May, 1999, NMFS gear 
specialists visited net shops along the Texas coast to provide follow-
up Parker TED training if necessary, but found no net shops still 
making Parker TEDs in Texas. On the East Coast, the gear specialists 
have confirmed with one net shop in each state (Florida, Georgia, South 
Carolina, and North Carolina) that they were still installing Parker 
TEDs in 1999. Those shops reported no ongoing technical problems. One 
of those net shops has also made a practice of selling uninstalled TED 
excluder panels directly to fishermen. NMFS has not encountered any 
trawlers, however, that had one of these do-it-yourself Parker TEDs.

Comments on the April 13, 1998 Interim Final Rule

    NMFS received one letter on the April 13, 1998, interim final rule 
that allowed the use of the Parker soft TED. The commenter supported 
the approval of the Parker TED, but expressed several qualifying 
concerns.
    Comment 1: The commenter questioned whether the TED testing 
conducted on the Parker TED was risk-averse enough, considering the 
known problems with testing soft TEDs. Specifically, NMFS had not 
tested every net-TED combination with a full sample of 25 test turtles.
    Response: The April 13, 1998, interim final rule provided a 
detailed discussion of the two TED testing sessions that were used to 
approve the Parker soft TED. Those TED testing sessions included 
several changes to the testing protocol from previous tests that 
significantly increased the test's risk-aversion for approving new 
TEDs. The most significant change was to limit the approval of 
successful candidate soft TEDs to demonstrably compatible net sizes and 
styles. The 1998 TED tests included 107 turtle exposures to Parker TEDs 
in various net configurations. All 107 turtles escaped the nets. NMFS 
also considered the installation compatibility of the Parker TED in 
various nets. On that basis, NMFS excluded 2-seam, balloon trawls with 
bibs and trawls in which the body taper is greater than 4 bars - 1 
point from use with the Parker TED. Parker TEDs installed in those 
trawl styles were observed to curl upwards into the 8-inch (20.3-cm) 
mesh section of the excluder panel, creating an area where turtles 
might become entangled. NMFS also excluded triple-wing trawls, which 
were not tested. The current testing protocol, which combines diver 
observations with exposure of small turtles to candidate TEDs, provides 
a risk-averse method for approving new soft TED candidates, such as the 
Parker TED, in a variety of appropriate net combinations.
    The experimental TED testing conducted in 1998 provides a further 
example of that risk-averse approach. NMFS conducted additional testing 
on the Parker TED in net styles that had previously been excluded from 
approval with the Parker TED. A triple-wing net and two sizes of 
mongoose nets, all with 6 bars - 1 point (6b1p) body tapers, were 
tested. All three net-TED combinations had a strong rolling-up of the 
outer edges of the 4 inch (10.2 cm) and the 8 inch (20.3 cm) mesh of 
the Parker TED excluder panel. In a test with a 68 ft (20.7 m) 
headrope-length the 6b1p

[[Page 55437]]

mongoose net, no turtles were captured. Additional industry and 
possibly NMFS' testing will be required, however, before this design 
can be approved.
    Comment 2: The commenter was concerned that the turtles used for 
TED testing in 1997 may not have been properly conditioned and that 
standardized physiological tests to confirm the turtles' fitness were 
not conducted.
    Response: NMFS agrees that proper conditioning of the turtles used 
for TED testing is important. More vigorous escape behaviors by the 
test turtles are probably more representative of natural turtle 
behavior. The current practice is to try to condition the turtles in 
large, free-swimming pens for at least 4 weeks prior to using the 
turtles for TED testing. Physiological data have been collected to help 
determine how different conditioning regimes affect the turtles' stress 
response to the TED tests, such as blood pH and blood lactate levels. 
The analysis of those data, however, has not been completed, and we do 
not know whether different conditioning regimes result in different 
physiological stress levels. The goals in conducting the TED test are 
to provide a meaningful examination of candidate TEDs while minimizing 
stress and risk to the turtles. Current practices, which include 5-
minute limits on the exposure to TEDs, limits on the safe water 
temperatures, and full-time care from animal husbandry experts, have 
resulted in a perfect safety record for the turtles used in TED 
testing. Even with these practices, there will always be natural 
variability in the environmental conditions and the fitness of the 
turtles. For that reason, every TED testing session is based on the 
performance of the turtles in a control TED, not on comparisons with 
previous TED testing sessions. While NMFS continues to investigate the 
role of various physiological measures on the turtles' fitness and 
behavior, the controls ensure that the 1997 TED tests, as well as 
future tests, are a rigorous examination of candidate TEDs.
    Comment 3: The commenter recommended that NMFS adopt a regulatory 
certification process for net installers, stating this would be a more 
efficient way of ensuring proper installation of the Parker TED than 
NMFS proposed use of technical assistance to fishermen and net makers 
and enforcement surveillance for correct TED use.
    Response: NMFS explicitly considered adopting a net maker 
certification program in the Environmental Assessment/Regulatory Impact 
Review (EA/RIR) for the interim final rule. In summary, NMFS determined 
that a certification program would create a large administrative and 
bureaucratic burden on the government and a clumsy regulatory 
requirement affecting the net makers and the fishermen. The TED 
regulations already include prohibitions on selling or using non-
approved TEDs (50 CFR 223.250(b)). Also, the technical specifications 
for what constitutes an approved Parker TED are extremely detailed. 
Therefore, there would be little advantage for enforcement from an 
additional regulatory certification requirement. NMFS believes that the 
limited enforcement resources for ensuring compliance with the TED 
regulations are best spent by conducting at-sea patrols and boardings 
of actively fishing trawlers and by providing dockside assistance to 
fishermen.
    Comment 4: The commenter was concerned about the durability of soft 
TEDs and their installation over time.
    Response: The commenter is referring to two separate problems with 
soft TEDs that inherently result from the use of soft, flexible webbing 
for the TED. The first is the soft TED's fragile material relative to 
hard TEDs. The webbing in a soft TED may easily be cut or damaged 
during normal trawling activities; for example, from encountering small 
sharks, shell fragments, rocks, corals, and wood debris. The second is 
that tensions on the soft TED and the net during trawling may 
eventually stretch the net or the excluder panel so that pockets or 
slack webbing appear and cause turtle entanglements.
    NMFS is also aware of, and concerned by, these problems which, in 
part, is why the Parker TED was approved for a limited, 18-month 
period. Part of the goal of the enforcement and training programs has 
been to document the extent to which these problems do occur with the 
Parker TED in commercial use. NMFS believes that the design of the 
Parker TED and its stringent installation requirements make it much 
less susceptible to losing its shape than previous styles of soft TEDs. 
NMFS enforcement and training programs, in fact, have not discovered 
that stretching has been a problem with Parker TEDs. NMFS has only 
observed a few Parker TEDs in commercial use, however, and further 
evaluation of the durability and installation of this design over time 
is needed.
    NMFS recognized from the outset that no soft TED, constructed of 
polyethylene or polypropylene webbing, would be immune to routine 
damage. Shrimpers who use soft TEDs must continually inspect their TEDs 
and repair holes and damage as soon as they appear. Inspecting the 
panel of a soft TED is a difficult and time-consuming task, especially 
compared to inspecting a hard TED. Most shrimpers can check the 
condition of their hard TEDs visually before every tow, but a soft TED 
cannot be inspected through the outside of a wet trawl. The one boat 
using a Parker TED in the Gulf of Mexico that NMFS encountered 
apparently did not perform proper maintenance on the soft TEDs, and 
these TEDs had deteriorated badly over the course of a year. Even with 
proper maintenance, NMFS estimates that soft TED panels need to be 
replaced once a year, on average. Anecdotal reports from fishermen and 
net makers in Texas indicate that virtually no one uses Parker TEDs in 
that area because the fishermen do not want the time burden or the 
responsibility of checking and repairing the panels. In the Atlantic, 
the few Parker TEDs observed did not have problems with holes or damage 
and likely were receiving proper maintenance.

Provisions of this Interim Final Rule

    This interim final rule extends the approved use of the Parker TED 
through October 13, 2000. This interim final rule makes no changes to 
the technical requirements for the Parker TED nor to the restrictions 
on the styles of net in which it may be installed.
    NMFS initially limited the approval of the Parker TED to an 18-
month period for two reasons. First, NMFS limited the duration so that 
if an evaluation of the effectiveness of the Parker TED in commercial 
use showed that the Parker TED was not effective at excluding sea 
turtles, NMFS could allow the approval to lapse. If the Parker TED was 
found to be effective at excluding sea turtles, the interim rule would 
be adopted as final incorporating any necessary technical changes that 
might result from the TED testing and commercial use during the 18-
month period. Second, NMFS expected that there would be additional 
commercial testing by industry of the Parker TED in other net sizes and 
styles, under NMFS authorization. If additional net sizes and styles 
were found to be compatible with the Parker TED, NMFS would expand the 
authorized use of the Parker TED in finalizing the rule. NMFS 
observations of commercial use of the Parker TED do generally indicate 
that it effectively excludes turtles. This conclusion is tempered, 
however, by the small number of vessels with Parker TEDs that have 
actually been observed and by the troubling lack of maintenance seen in 
one of those cases. The anticipated commercial testing of

[[Page 55438]]

additional net sizes and styles has also not taken place. One vessel is 
currently collecting information on a Parker TED with a modified panel, 
to determine whether the modified panel excludes more finfish bycatch. 
NMFS believes that extending the approved use of the Parker TED for an 
additional year will allow additional information to be collected for a 
better final decision. This extension will allow fishermen currently 
using Parker TEDs to continue to do so and will give more time for 
testing additional modifications. The small number of fishermen using 
Parker TEDs and the apparently high effectiveness of the Parker TED 
mean that this extension will not unnecessarily impact sea turtles.

Request for Comments

    NMFS is requesting input and will accept written comments (see 
ADDRESSES) on this interim final rule until December 13, 1999. Any 
comments, suggestions, or additional data and information on this 
action will be taken into consideration before a final determination is 
made on a final rule.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA (AA), finds that 
good cause exists, under 5 U.S.C. 553(b)(B), to waive prior notice and 
an opportunity for public comment on this rule. It is impracticable and 
contrary to the public interest to provide prior notice and opportunity 
for comment because the shrimp fishery is currently underway in the 
offshore and eastern Gulf of Mexico with virtually all of those shrimp 
trawlers required to use TEDs. The provisions of this rule allow those 
fishermen the continued option of a soft TED design, to comply with the 
TED requirement. In addition, a small number of fishermen are presently 
using the Parker TED. This rule will allow those fishermen to continue 
to use their existing gear beyond October 12, 1999. Otherwise, they 
would be forced to remove their soft TEDs by that date and replace them 
with hard TEDs. Because this final rule does not create any new 
regulatory burden, but instead relieves regulatory restrictions by 
continuing an additional option for complying with existing sea turtle 
conservation requirements, under 5 U.S.C. 553(d)(1) it is not subject 
to a 30-day delay in effective date.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
     The AA prepared an EA/RIR for the April 13, 1998, interim final 
rule (63 FR 17948) that approved the use of the Parker TED. The EA 
concluded that the rule will have no significant impact on the human 
environment. A copy of the EA/RIR is available (see ADDRESSES).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: October 7, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 - 1543; subpart B, Sec. 223.12 also 
issued under 16 U.S.C. 1361 et seq.




Sec. 223.207  [Amended]

    2. In Sec. 223.207, paragraph (c) introductory text, remove the 
text ``October 13, 1999'' and add in its place, ``October 13, 2000''.
[FR Doc. 99-26693 Filed 10-12-99; 8:45 am]
BILLING CODE 3510-22-F