For purposes of Executive Order 12866, this rule was determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

The Regulatory Flexibility Act is not applicable to this interim rule because neither the Farm Service Agency (FSA) nor the Commodity Credit Corporation (CCC) is required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

It has been determined by an environmental evaluation that this action will have no significant impact on the quality of the human environment. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The title and number of the Federal Assistance Program, as found in the Catalog of Federal Domestic Assistance, to which this interim rule applies are: Commodity Loans and Purchases—10.051.

This program is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

This rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule do not preempt State laws except to the extent that such laws are inconsistent with the provisions of this rule. Before any legal action may be brought regarding determinations of this rule, the administrative appeal provisions set forth at 7 CFR part 780 must be exhausted.

The procedures set out in 7 CFR parts 11 and 780 apply to appeals of adverse decisions made under the regulations adopted in this notice.

The information reporting requirements contained in the regulations at 7 CFR parts 729 and 1446 include OMB Control Numbers 0560-0006 and 0560-0014 assigned by OMB. The 0560-0006 collection requirements have been approved by OMB and the 0560-0014 collection requirements have been forwarded for approval. The provisions of this rule do not impose new reporting requirements or changes in existing information collection requirements.

This rule amends regulations at 7 CFR part 718 to reinstate a tolerance rule for peanuts that was erroneously omitted when this part was revised in 1996 to implement the provisions of the Federal Agriculture Improvement and Reform Act of 1996.

This rule addresses amendments to the peanut poundage quota regulations at 7 CFR part 729 regarding the following issues:

Clarifying the definition of considered produced credit. This rule clarifies in § 729.103 the definition of “considered produced credit.” The current regulatory language could be interpreted to infer that if considered produced credit was granted for one criterion, no other criterion would apply. The change corrects this potential misinterpretation.

National quota reserve. In §§ 729.202 and 729.208(b), this rule clarifies that the Director, Tobacco and Peanuts Division, will hold and allocate the national quota reserve. Historically, each State held a quota reserve which the State FSA office could allocate to correct errors. The current regulations require that FSA hold a national quota reserve but do not specify who will be responsible for holding the reserve and for allocating the reserve when deemed appropriate. Also, the reference to “State reserve” in § 729.208, which provides for allocating quota for experimental and research purposes, is eliminated so that this reserve may be better monitored and allocated for greater flexibility and consistency.

Adjusting the tolerance for certification of peanut acreage for calculating temporary seed quota (TSQ) allocation. This rule changes the reporting tolerance in § 729.204(e) for certification of acres planted to peanuts. The reported acreage is used in § 729.204(e) to determine the amount of TSQ allocated to the farm. This change provides a less restrictive reporting tolerance. Under the current regulations, if the certified acreage on which the temporary seed quota allocation is made is greater than the acreage FSA determines was planted to peanuts by more than the smaller of 2 percent of the certified acreage or 5 acres, the producer is subject to a penalty assessment. The new tolerance would be the larger of 1.0 acre or 5 percent of the certified acreage, but not to exceed 10 acres. The new tolerance will provide a fairer line of demarcation between those certification errors which are inadvertent and those that are not. Intentional mis-certifications can be actionable even if committed within the tolerance but those errors within the tolerance will be presumed inadvertent. Adjustments were also made to § 729.305 so that the penalties for false certification could be addressed more clearly.

Tenants sharing in an increased quota. Under the provisions of the regulations, a farm owned by a municipality or a person who is not a peanut producer and is not a resident of the State in which the quota is allocated is ineligible to receive a quota allocation. This rule, by amendment to § 729.207, clarifies where a farm is ineligible to receive a quota allocation, that the farm is ineligible to receive increased quota allocation and any tenants on the farm are also ineligible to receive increased quota allocation.

Witnessing of signatures required to transfer quota. This rule amends § 729.214(b)(4) to specify that FSA county office personnel must witness both signatures for transfers requiring the signature of both the operator and owner on the transferring farm.

Transfer of quota by sale, lease, owner, or operator. This rule changes restrictions on owner transfers in § 729.214(f)(3) that prevent a permanent transfer of peanut quota from a farm if the quota was transferred to the farm during the 3 years preceding the current year. Under the amended provision, the FSA county committee may approve permanent transfer of quota from a farm that includes quota that was transferred to the farm by an owner-to-owner permanent transfer even during the 3-year base period. The provision in § 729.214(f)(3) is designed to discourage brokerage which is not implicated in owner-to-owner transfers.

References to other CFR parts. In § 729.103, the reference to part 704 in paragraph (v) of the definition of “Considered produced credit” is amended to reflect that provisions formerly in 7 CFR part 704 for the Conservation Reserve Program are now found in 7 CFR part 1410.

Definitions and references. In the definitions in § 1446.103, other references to CFR parts that have been deleted or incorporated into other CFR parts are deleted or corrected to reflect the proper references. Also, to reflect Departmental reorganization, the title of the Deputy Administrator responsible for the administration of the regulations at 7 CFR part 1446 was changed in the same section from “Deputy Administrator, State and County Operations” (DASCO) to “Deputy Administrator for Farm Programs” (DAFP).

Also, the term “ASCS” is changed to read “FSA” in each place it appears in part 1446 to reflect the reorganization of the Department. Likewise, in § 1446.801, the acronym “ASC” is removed and the acronym “FSA” is added in its place. That change in acronyms also reflects the reorganization of the Agriculture Stabilization and Conservation Service into the Farm Service Agency.

Immediate buyback restriction. The provisions of § 1446.309 provide that a producer may not market peanuts through the “buyback” provisions of the regulations until all peanuts of the same type contracted for export or crushing are delivered under the terms of the contract. Under the buyback provisions, “additional” peanuts can be purchased out of the loan inventory at quota peanut prices to be used like quota peanuts. This rule modifies the buyback provision to prohibit a buyback of additional peanuts only if the producer has a contract for export or crushing of the same type and segregation. This action gives producers and handlers greater marketing flexibility and reflects that different segregations can have distinct contracts and markets.

Because these amendments are technical in nature and provide greater flexibility to producers and handlers without harm to third parties and because of the approach of the next marketing year, we have determined that this rule should be issued as an interim as a delay in implementation would be, for the reasons given, impracticable and contrary to the public interest.

(b) * * * In addition, in the case of a false certification, the sanctions provided for in § 729.204(e) shall apply except to the extent that it may be determined by the Deputy Administrator that a second assessment would be unduly redundant.

This rule is issued under Marketing Agreement No. 125 and Order No. 966 (7 CFR part 966), both as amended, regulating the handling of tomatoes grown in Florida, hereinafter referred to as the “order.” The marketing agreement and order are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule 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.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Under the order, tomatoes produced in the production area and shipped to fresh market channels outside the regulated area are required to meet grade, size, inspection, and container requirements. These requirements apply during the period October 10 through June 15 each year. Current requirements include a minimum grade of U.S. No. 2 and a minimum size of 2 9/32 ; inches in diameter. Current pack and container requirements outline the types of information that need to appear on a container, weight restrictions the packed containers must meet, and that the containers must be packed at a registered handler's facility.

Section 966.52 of the order provides authority for the modification, suspension, and termination of regulations. It includes the authority to establish and modify pack and container requirements for tomatoes grown in the defined production area and handled under the order.

The order's handling regulation, § 966.323, specifies the regulations for Florida tomatoes. Section 966.323(a)(3)(i) requires that certain types of tomatoes packed by registered handlers be packed in containers of 10, 20, and 25 pounds designated net weights. The net weight cannot be less than the designated weight or exceed the designated weight by more than two pounds. Section 966.323(a)(3)(ii) currently requires that certain types of tomatoes be packed by registered handlers in containers that are marked with the designated net weight and with the name and address of the registered handler, and that such containers must be packed at the registered handler's facilities.

This rule continues in effect changes to the handling regulation under the order. This rule continues to define producer field-packed tomatoes and allows handlers to ship field-packed tomatoes exempt from the net weight requirements. This rule also continues to exempt producer field-packed tomatoes from the requirement that all tomatoes be packed at a registered handler's facility.

In addition, this rule continues to exempt shipments of certain-sized producer field-packed tomatoes from a maximum diameter requirement specified in the handling regulation. Specifically, field-packed tomatoes designated as size “6 x 6” may be larger than 2 27/32 ; inches in diameter. This rule continues to make a related change to the labeling requirement for 6 x 6-sized field-packed tomatoes. The field-packed tomato exemption also was revised for clarity, and is continued in effect.

These tomatoes will still be subject to all other provisions of the handling regulation, including established grade, size, container, pack, and inspection requirements. These tomatoes also will continue to be subject to assessments. The committee met September 11, 1998, and May 26, 1999, and unanimously recommended these changes.

In its discussion of this rule, the committee recognized that the market for red, ripe tomatoes or vine-ripes is continuing to grow. Place packed vine-ripe tomatoes are shipped from many foreign and domestic growing areas, and currently maintain a strong and growing market share. Committee members stated that the popularity of the red, ripe tomato is evident in the increasing popularity of greenhouse and hydroponic tomatoes. These tomatoes tend to be marketed at a red, mature stage. Customer studies have shown that consumers prefer tomatoes that are of high color, and that are mature and ready to eat. According to a committee study, retailers believe that the vine-ripe tomato is the tomato of the future. The committee stated that this is the fastest growing market segment.

Currently, the majority of Florida tomatoes are shipped at the mature green stage. Vine-ripe tomatoes represent only about 15.5 percent of total fresh shipments (8,791,389 of 56,706,685 25-pound containers shipped during the 1998-99 season). In an effort to put the industry in a more advantageous position to take advantage of this growing market, and to improve returns to producers, the committee recommended changes to the order's handling regulation. These changes were recommended to help facilitate the movement of more vine-ripe tomatoes from Florida. To accomplish this, the committee recommended changes to the regulations to define a producer field-packed tomato and provide exemptions for such tomatoes to facilitate their movement. Producer field-packed tomatoes are defined as tomatoes which at the time of inspection are No. 3 color or higher (according to color classification requirements in the U.S. tomato standards), that are picked and place packed in new containers in the field by a producer as defined in § 966.150 of the rules and regulations. The tomatoes are then transferred to the registered handler's facilities for final preparation for market and for inspection.

Shipments of mature green tomatoes represented approximately 84.5 percent of total fresh shipments during the 1998-99 season. Tomatoes are picked and packed at the mature green stage to facilitate handling. The vast majority of mature green tomatoes are packed using a mechanized process. The tomatoes are brought to the packing house where they are washed, run across sizing equipment, and then are packed in volume fill containers. At the mature green stage, the tomatoes are firm and are able to handle the packing process. This is an efficient process that facilitates packing in volume.

However, when trying to pack a tomato that is more ripe and mature, the process used to pack mature greens is not as effective. This is because as the tomato begins to ripen it begins to soften. Tomatoes of No. 3 color and above cannot handle the rigors of the mechanized handling process. This packing process bruises and damages more mature tomatoes, increasing the volume of culls and those that fail inspection for grade.

To provide a better way to handle mature tomatoes, and to provide for a greater volume of such tomatoes from Florida, the committee recommended developing a producer field-packed tomato. To facilitate the handling of this tomato, the committee recommended that it be exempt from certain parts of the handling regulations. This rule continues to exempt producer field-packed tomatoes from the requirement that tomatoes be packed at a registered handler's facility, and the designated net weight requirements. It also continues in effect the requirement that 6 × 6-sized producer field-packed tomatoes be exempt from the 2 27/32 inch maximum diameter.

Section 966.323(a)(3)(ii) specifies, in part, that all tomatoes are to be packed at a registered handler's facilities. This rule continues to exempt producer field-packed tomatoes from this requirement. By providing this exemption, the number of times the tomato is handled is reduced. Mature green tomatoes can withstand the multiple handling involved in this process, a more mature tomato cannot. Under this exemption, the producer field-packed tomato only needs to be handled once, when it is picked and packed in the field. It is not subjected to the rigors of a mechanical process. Under the producer field-packed process, the tomatoes are sized, cleaned, and packed by hand. This process of picking and packing in the field makes it substantially easier to pack a tomato of higher color and maturity. All tomatoes for shipment outside the regulated area must be packed in new boxes. The tomatoes are delivered to a registered handler for final preparation for market. The tomatoes are inspected for grade, size, and proper pack after delivery to the registered handler's facility.

This rule also continues to exempt producer field-packed tomatoes from the net weight requirements specified in the rules and regulations. Section 966.323(a)(3)(i) currently requires that certain types of tomatoes packed by registered handlers be packed in containers of 10, 20, and 25 pounds designated net weights. The net weight cannot be less than the designated weight or exceed the designated weight by more than two pounds.

By definition, producer field-packed tomatoes will be place packed in the field. Place packing a container requires a fixed number of tomatoes to fill the container. In place packing, the tomatoes are packed in layers, with the fill determined by the size of the tomato, dimensions of the container, and the way the tomatoes are positioned in the box. To facilitate this type of pack, most handlers use plastic cells, cardboard partitions, or trays to position the tomatoes. The majority of place-packed tomatoes are sold by count per container rather than by weight.

Most tomatoes shipped in Florida are shipped at the mature green stage, and are packed in volume fill containers. When volume fill containers are packed, the tomatoes are placed by hand or machine into the container until the required net weight is reached. Mature green tomatoes are not as susceptible to bruising and other damage during packing and transport as are producer field-packed tomatoes. If volume fill was used to pack producer field-packed tomatoes, serious product bruising would result which would detract from the appearance and marketability of these tomatoes.

However, place packing does not lend itself well to meeting a required net weight. The tomatoes have to be properly sized and placed to fit snugly in the container. During the harvesting season, the weight of equal size tomatoes may vary dramatically. When tomatoes are place-packed, the handler cannot add extra tomatoes when the container weight is light. Because the tomatoes are packed in layers, when a layer is complete there are no spaces for additional tomatoes. Similarly, when the tomatoes are heavy, the handler cannot remove a tomato to meet a weight requirement. Buyers expect a full pack with no spaces, and a missing tomato could result in a loose pack which could allow shifting or bruising during transport and would be a marketing problem. To overcome this problem, the committee recommended that shipments of producer field-packed tomatoes as defined herein, be exempt from the container net weight requirements of the rules and regulations.

Because the tomatoes are packed in the field, the tomatoes are sized by hand, not using the precision of sizing belts. While field-packed tomatoes are successfully meeting minimum size requirements, some lots were having difficulty meeting the maximum size requirements as specified for the 6 × 6 size designation.

Currently, section 966.323(a)(2)(i) specifies that all tomatoes packed by a registered handler must meet a minimum size requirement of 2 9/32 inches in diameter. That section also requires that all such tomatoes must be sized with proper equipment in one of three specified ranges of diameter. For example, tomatoes designated as “6 × 7” must be a minimum of 2 9/32 inches in diameter and a maximum of 2 19/32 . Tomatoes, other than producer field-packed tomatoes, designated as “6 × 6” must be a minimum of 2 17/32 inches in diameter and a maximum of 2 27/32 inches in diameter. Tomatoes designated as “5 × 6” must be a minimum of 2 25/32 inches in diameter with no maximum size requirement. Finally, to allow for variation incident to proper sizing, not more than a total of 10 percent, by count, of the tomatoes in the lot may be smaller than the specified minimum diameter or larger than the maximum diameter.

Since the handling regulation was changed in October 1998 to exempt field-packed tomatoes from certain handling requirements, some 6 × 6-sized lots failed inspection due to oversized tomatoes in the pack. As stated above, 6 × 6-sized lots of tomatoes previously had to meet both minimum and maximum size requirements, within specified tolerances. Tomatoes that are run over a sizing belt in a packing house have little difficulty in meeting these requirements. However, producers packing tomatoes in the field must use hand-sizers. It is relatively easy to pick to a minimum size. However, it is much more difficult to pick tomatoes within a range of fractions of an inch.

Presenting a packed lot of tomatoes for inspection, and having it fail is costly. The handler can either find an outlet other than the fresh market for the tomatoes or rework the lot so it passes inspection. In the case of field-packed tomatoes, reworking a lot is substantially more difficult. The tomatoes cannot be dumped then run across the machinery again to ensure that they meet inspection, but must be sorted through by hand. This is extremely time-consuming, and because the fruit is ripe, can cause additional bruising. In most cases, it is one or two tomatoes in a box that cause it to fail for size. Thus, the committee met in May 1999 and recommended the change for producer field-packed tomatoes.

The committee recommended that 6 x 6-sized producer field-packed tomatoes be exempt from the 2 27/32 inch maximum diameter requirement specified in § 966.323(a)(2)(i) of the handling regulation. The amended interim final rule published on August 20, 1999 (64 FR 45409) implemented the recommendation and this action continues to allow for additional oversized tomatoes, without the lot failing for size. While this change does allow for additional larger tomatoes to be included in the 6 x 6 pack, there is still a distinction between it and the 5 x 6. The 6 x 6 pack is an opportunity to sell a smaller tomato. This change provides some additional flexibility to address sizing problems relating to packing in the field. The 5 x 6 tomato is still the premium size, demanding the higher price. For this reason, the vast majority of tomatoes that meet the size requirements for 5 x 6 will continue to be packed in a 5 x 6 container. Also according to the committee, buyers should not object to oversized fruit in the 6 x 6 pack because they have the option of grading it out for a premium product or passing it on to their customers as a larger tomato at a less expensive price.

The committee also recommended a related change in the labeling requirement specified in § 966.323(a)(2)(iii) of the handling regulation. Previously, that section required that only “6 x 7,” “6 x 6,” or “5 x 6” be used to indicate the respective size designation on containers of tomatoes. The committee recommended that shipments of 6 x 6-sized producer field-packed tomatoes be marked as “6 x 6 and larger” to more accurately reflect the contents of the container which could include 5 x 6-sized tomatoes. The words “and larger” are not required on 5 x 6-sized field-packed tomatoes because that is the largest designated size defined by a minimum diameter and includes all sizes above the minimum.

In evaluating alternatives to this change, such as increasing the percentage tolerance for oversize, it was concluded that the changes provided in the amended interim final rule are the better and more effective way to accomplish the committee's goal. Containers will be marked “6 x 6 and larger” which will separate them from the standard 6 x 6 and will tell buyers that the package includes some larger tomatoes. And, as stated earlier, while this does provide for additional larger tomatoes to be packed in a 6 x 6 pack, it should not blur the distinction between a 6 x 6 and 5 x 6.

The committee continues to focus on ways to be competitive, develop new markets, and increase grower returns. The committee believes these changes will continue to provide the industry with more flexibility and additional marketing opportunities.

The committee continues to believe that producer field-packed tomatoes will increase the volume of vine-ripe tomatoes available from Florida. This has been a market that has been expanding and not traditionally served by much volume from the Florida tomato industry. The committee also continues to believe that this change will allow producers to harvest tomatoes that might otherwise have been left in the field. There is also an indication that handlers will be willing to pay a higher price for producer field-packed tomatoes. The committee continues to believe that the higher prices combined with additional tomato sales should continue to increase returns to producers.

Other changes are continued by this rule. Yellow meated tomatoes, specialty packed red ripe tomatoes, single layer and two layer place packed tomatoes, and now producer field-packed tomatoes as well, are exempt from the container net weight requirement in § 966.323(a)(3)(i). In its discussions, the committee said that § 966.323(a)(3)(ii) states that each container or lid shall be marked to indicate the designated net weight. They said that in the past, there had been some confusion as to how this applies to those tomatoes exempt from net weight. The committee voted unanimously to exempt those tomatoes exempt from net weight from the requirement that net weight appear on the container or lid to rectify this problem. This rule continues to make this change. Also, the deletion of unnecessary language in the first sentence of § 966.323(d)(1) continues in effect.

In addition, a minor change is being made in § 966.140 of the order's rules and regulations. The change removes the reference to the form number (FV-418) for the transfer clearance receipt. This form may accompany truck shipments of tomatoes, in place of an inspection certificate. This is a Florida State form, not a Committee form, used in verifying that the load of tomatoes had been previously inspected and certified. The form now has a different number from that referenced in § 966.140 and the number could change again without the committee's knowledge. Thus, the reference to the form number is being removed.

Section 8e of the Act requires that whenever grade, size, quality or maturity requirements are in effect for certain commodities under a domestic marketing order, including tomatoes, imports of that commodity must meet the same or comparable requirements. However, the Act does not authorize the imposition of container requirements on imports, when such requirements are in effect under a domestic marketing order. Therefore, no change is necessary in the tomato import regulation as a result of this action.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 65 handlers of Florida tomatoes who are subject to regulation under the order and approximately 75 tomato producers in the regulated area. Small agricultural service firms, which include handlers, have been defined by the Small Business Administration (SBA) 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 $500,000 (13 CFR 121.601).

Based on the industry and committee data, the average annual f.o.b. price for fresh Florida tomatoes during the 1998-99 season was around $7.40 per 25-pound carton or equivalent, and total fresh shipments for the 1998-99 season were 56,706,685 25-pound equivalent cartons of tomatoes. Based on this information, the shipment information for the 1998-99 season, and the 1998-99 season average price, the majority of handlers would be classified as small entities as defined by the SBA. The majority of producers of Florida tomatoes also may be classified as small entities.

Under § 966.52 of the Florida tomato marketing order, the committee, among other things, has authority to establish and modify pack and container requirements for tomatoes grown in the defined production area and handled under the order. This rule continues to define a producer field-packed tomato and provide exemptions for such tomatoes from the net weight requirements and the requirements that tomatoes be packed at a registered handler's facilities. This rule continues to allow for the place packing of ripe tomatoes in the field. Vine ripe tomatoes represent only about 15.5 percent of total fresh shipments (8,791,389 of 56,706,685 25-pound containers shipped during the 1998-99 season).

In addition, this rule continues to exempt shipments of field-packed tomatoes designated as size 6 x 6 from a maximum diameter requirement of 2 27/32 inches specified in § 966.323(a)(2)(i). This rule continues to make a related change in the labeling requirement specified in § 966.323(a)(2)(iii) whereby shipments of 6 x 6-sized producer field-packed tomatoes must be marked as “6 x 6 and larger” to more accurately reflect the contents of the container. It also continues to clarify net weight labeling requirements. Authority for these changes also is provided in § 966.52 of the order.

The committee recommended these changes to improve the marketing of Florida tomatoes and follow the trend of increased demand for red, mature tomatoes. This trend is in response to a strong consumer demand for such tomatoes. This rule continues to allow the industry to pack a higher colored, riper tomato to meet the demand of the expanding market for vine-ripe tomatoes. This action will continue to facilitate the movement of Florida tomatoes and should continue to improve returns to producers.

Producer field-packed tomatoes are defined as tomatoes which at the time of inspection are No. 3 color or higher (according to color classification requirements in the U.S. tomato standards), that are picked and place packed in new containers in the field by a producer as defined in § 966.150 of the rules and regulations. The tomatoes are then transferred to the registered handler's facilities for final preparation for market and for inspection.

This rule will continue to have a positive impact on affected entities. The changes were recommended to provide additional flexibility in the packing of tomatoes of higher color and maturity.

Providing an exemption for producer field-packed tomatoes from the requirement that tomatoes be packed at a registered handler's facilities, reduces the number of times the tomato is handled. It also facilitates the packing of producer field-packed tomatoes free from the mechanized process of grading and sizing used for mature green tomatoes. Tomatoes of No. 3 color and above cannot handle the rigors of the mechanized handling process. This packing process bruises and damages more mature tomatoes, increasing the volume of culls and those that fail inspection for grade. By providing this exemption, the producer field-packed tomato will only be handled once, when it is picked and packed in the field. This exemption will continue to make it substantially easier to pack a tomato of higher color and maturity in the field.

The exemption from the net weight requirements will continue to allow producer field-packed tomatoes to be place packed. It is very difficult to pack to a specified weight when place packing containers. Place packing a container requires a fixed number of tomatoes to fill the container. In place packing, the tomatoes are packed in layers, with the fill determined by the size of the tomato, dimensions of the container, and the way the tomatoes are positioned in the box. The majority of place packed tomatoes are sold by count per container rather than by weight. However, the place pack method of packaging does not lend itself well when packing to meet a required net weight.

During the harvesting season, the weight of equal size tomatoes may vary dramatically. If the producer field-packed tomatoes are light in weight, handlers cannot add extra tomatoes to meet net weight because the pack is full, or if the tomatoes are heavier than normal, removing a tomato to meet net weight would mean leaving an empty space. Buyers expect a full pack with no spaces, and a missing tomato could result in a loose pack which could allow shifting or bruising during transport and would be a marketing problem. To overcome this problem, the committee recommended that shipments of producer field-packed tomatoes as defined herein, be exempt from the container net weight requirements of the rules and regulations, and this action continues that exemption.

Continuing to provide an exemption for field-packed tomatoes designated as size 6 × 6 from a maximum diameter requirement of 2 27/32 inches will allow handlers of field-packed tomatoes to successfully meet minimum size requirements. Currently, tomatoes (other than those field-packed by producers) designated as ″6 × 6″ must be a minimum of 2 17/32 inches in diameter and a maximum of 2 27/32 inches in diameter. Tomatoes that are run over a sizing belt in a packing house have little difficulty in meeting these requirements. However, producers packing tomatoes in the field must use hand-sizers. It is relatively easy to pick to a minimum size. However, it is much more difficult to pick tomatoes within a range of fractions of an inch. Presenting a packed lot of tomatoes for inspection, and having it fail is costly. The handler can either find an outlet other than the fresh market for the tomatoes or rework the lot so it passes inspection. In the case of field-packed tomatoes, reworking a lot is substantially more difficult. The tomatoes cannot be dumped then run across the machinery again to ensure that they meet inspection, but must be sorted through by hand. This is costly and time-consuming, and because the fruit is ripe, can cause additional bruising. This change will continue to allow for additional oversized tomatoes, without the lot failing for size, providing additional flexibility and reducing reworking costs.

This rule also continues to make a related change in the labeling requirement specified in § 966.323(a)(2)(iii) whereby shipments of 6 × 6-sized producer field-packed tomatoes must be marked as “6 × 6 and larger” to more accurately reflect the contents of the container. The clarification of container net weight labeling also is continued in effect. Authority for these changes is provided in § 966.52 of the order.

In an effort to put the industry in a more advantageous position to take advantage of this growing market, and to improve returns to producers, the committee recommended these changes. According to committee funded research, retailers consider vine-ripe tomatoes to be the tomato type of the future. The vine-ripe tomato market has been expanding and it is a market where the Florida tomato industry has room to grow and expand its market share. The committee continues to believe that producer field-packed tomatoes will continue to increase the volume of vine-ripe tomatoes available from Florida and that it will allow producers to harvest tomatoes that might otherwise have been left in the field. There is also an indication that handlers will be willing to pay a higher price for producer field-packed tomatoes. The higher prices combined with additional tomato sales would continue to increase returns to producers.

There are some additional costs associated with packing in the field. Picking, grading, and sizing by hand is more time consuming and costly than by machine. However, there are indications that producer field-packed tomatoes will command a higher price as the market grows. Also, the regulated industry is not required to use this exemption. Therefore, the additional costs are voluntary.

These changes are intended to provide additional flexibility for all those covered under the order. The opportunities and benefits of this rule are expected to be equally available to all tomato handlers and growers regardless of their size of operation. This action will continue to have a beneficial impact on producers and handlers since it will allow tomato handlers to make additional supplies of tomatoes available to meet consumer needs consistent with crop and market conditions.

Regarding alternatives to the recommended actions, the committee concluded that providing certain exemptions for shipments of field-packed tomatoes will allow the Florida tomato industry to meet a growing consumer demand for vine-ripe tomatoes. The exemptions from the net weight container requirement and the requirement that all tomatoes must be packed at registered handler facilities have been working well. In addition, the committee concluded that continuing to require 6 × 6-sized field-packed tomatoes to meet a maximum size requirement could discourage producers from packing such fruit because some of the packs would fail inspection. In evaluating alternatives to this change, such as increasing the percentage tolerance for oversize, it was concluded that the changes provided in the amended interim final rule were the better and more effective way to accomplish the committee's goal. Containers are marked “6 × 6 and larger” which separates them from the standard 6 × 6 and tells buyers that the package includes some larger tomatoes. And, as stated earlier, while this does provide for additional larger tomatoes to be packed in a 6 × 6 pack, it does not blur the distinction between a 6 × 6 and 5 × 6. Thus, the changes regarding the field packing of 6 × 6 and larger tomatoes and marking the containers were determined to be the most viable course of action.

A minor change in § 966.140 of the order's rules and regulations is also being made to remove the reference to the form number for the transfer clearance receipt which accompanies truck shipments of tomatoes. This is a Florida State form, not a committee form. The form now has a different number from that referenced and the number could change again without the committee's knowledge. Removing the reference to the number will prevent this from happening. Further, a reference to the form number is not necessary.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large tomato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors. In addition, the Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the committee's meetings were widely publicized throughout the tomato industry and all interested persons were invited to attend the meetings and participate in committee deliberations. Like all committee meetings, the September 11, 1998, and May 23, 1999, meetings were public meetings and all entities, both large and small, were able to express their views on these issues.

The interim final rule and an amended interim final rule concerning this action were published in the Federal Register on October 13, 1998 (63 FR 54556), and August 20, 1999 (64 FR 45409), respectively. Copies of the rules were mailed by the committee's staff to all committee members and tomato handlers. In addition, the rules were made available through the Internet by the Office of the Federal Register. Both rules provided for a 60-day comment period which ended December 14, 1998, and October 19, 1999, respectively.

Three comments to the interim final rule were received supporting the rule, and two comments to the amended interim final rule were received, also in support of the rule. In addition, an E-mail expressing a concern about cleanliness was received by the Department prior to publication of the October 1998 rule. The Department considered this in this rulemaking action.

In summary, the three commenters supporting the committee's September 1998 recommendation and the two commenters supporting the August 1999 amendment commented on the increasing demand for field-packed tomatoes. Three of the commenters stated that consumers prefer a full, red ripe tomato, and that tomatoes with color are the fastest growing segment of all types of fresh tomatoes offered for sale at the retail level.

Another commenter mentioned that growers are benefiting from the rule because, prior to the October 1998 action, field-packed tomatoes could only be sold within the regulated area and most were not inspected. According to the commenter, market gluts of poor quality field-packed tomatoes were common in the regulated area and prices were low. Since October 1998, the quality of field-packed tomatoes has greatly improved because such tomatoes can be shipped outside the regulated area, provided they meet all of the order's requirements except for net weight. Even failed lots of field-packed tomatoes shipped within the regulated area are returning higher prices because of improved quality and increased demand.

Lastly, with regard to the issue of cleanliness and food safety as expressed in the E-mail, although vine-ripe tomatoes are place-packed in the field, final preparation includes inspection and certification by Federal-State Inspection Service fresh products inspectors to assure that the tomatoes meet the minimum grade and size requirements implemented under the order. One of the quality factors against which tomatoes are scored is cleanliness. The tomatoes must be clean. According to the U.S. tomato standards, the term “clean” means that the tomato is practically free from dirt or other foreign material. Further, applicable Federal, State, or local food and sanitary laws and regulations would be applicable to the extent appropriate.

A small business guide on complying with fruit, vegetable, and speciality crop marketing agreements and orders may be viewed at the following web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address for the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the committee's recommendation, the comments received in response to the October 1998 and August 1999 interim final rules, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (63 FR 54556, October 13, 1998) and the amended interim final rule, with a change, as published in the Federal Register (64 FR 45409, August 29, 1999) will tend to effectuate the declared policy of the Act.

On September 27, 1999, the Finance Board published a proposed rule to reorganize and renumber the agency's existing regulations, delete obsolete regulations and make certain technical amendments to the renumbered regulations. See 64 FR 52148 (Sept. 27, 1999). The amendments set forth in the proposed rule were intended to implement a more logical and efficient presentation of the rules governing the Banks and Bank System, as well as to achieve greater consistency in terminology and greater conformity with current stylistic conventions of the Code of Federal Regulations. The proposed rule was published with a 90-day comment period that ended on December 27, 1999. The Finance Board received no comment letters.

Simultaneously with the proposed reorganization rule, the Finance Board published its proposed Financial Management and Mission Achievement (FMMA) rule, under which extensive substantive additions and amendments to the Finance Board's regulations were proposed. See 64 FR 52163 (Sept. 27, 1999). The proposed reorganization rule, although itself making primarily only technical and organizational changes to the existing regulations, was developed with the assumption that it would be finalized concurrently with the FMMA rule. As such, it was expected that, when the reorganization rule was finalized: (1) The finalized FMMA provisions would be contained within the new organizational framework; and (2) outmoded existing regulations would be either deleted, or updated through amendments contained in FMMA to fit logically within the new framework.

However, on November 17, 1999, in response to the recent enactment of the Federal Home Loan Bank System Modernization Act of 1999  1 (Modernization Act), Public Law 106-102, Title VI (1999), the Finance Board withdrew the proposed FMMA rule. See 64 FR 66115 (Nov. 24, 1999). Although the Finance Board expects in the coming year to promulgate separately modified versions of many of the regulations proposed in the FMMA rule, these new regulations and substantive amendments to existing regulations are not being finalized concurrently with this final reorganization rule as was originally anticipated. As a result, in this final rule, it is necessary for the Finance Board to carry over certain existing regulations that would have been superceded by FMMA—most notably on investments and deposits—until the agency promulgates new regulations to govern these Bank activities. Although these largely outmoded regulations do not fit perfectly within the regulatory structure contemplated by the reorganization, they have been placed in the most logical parts of 12 CFR chapter IX pending their anticipated deletion later in 2000. For areas in which the FMMA rule would have created new regulations, and in which the Finance Board still intends to promulgate new regulations ( e.g ., capital requirements and regulations governing member mortgage assets), appropriate part numbers have been reserved in order to make clear where these regulations will fit into the organizational structure of chapter IX as they are adopted.

Since the publication of the proposed reorganization rule, the Finance Board has promulgated two final rules, see 64 FR 55125 (Oct. 12, 1999) (allocation of joint and several liability on consolidated obligations among the Banks); 64 FR 61016 (Nov. 9, 1999) (availability of unpublished information), and one interim final rule, see 64 FR 71275 (Dec. 21, 1999) (devolution of corporate governance authorities as required by the Modernization Act) that affected text in the Code of Federal Regulations (CFR). The final reorganization rule accounts for these CFR text changes and places new material logically within the organizational structure.

Finally, although the overall structure of the regulations under the final rule will be identical to that which was proposed, certain part numbers appear differently in the final rule. In renumbering the parts, the Finance Board has attempted to group together topics within each subchapter and to leave unused part numbers at the end of each topic sequence so that any future regulations (including those that are not now foreseen) may be placed logically within the appropriate subchapter of chapter IX without the necessity of further renumbering of existing parts.

So that new regulations implementing various statutory changes made by the Modernization Act may be promulgated quickly and efficiently within the new structure, the final reorganization rule is effective immediately upon publication in the Federal Register .

This final rule deletes the existing subchapter headings for the Finance Board's regulations and establishes an entirely new set of subchapter headings. Within this structure, existing parts and sections have been re-ordered into logical subject-matter groupings under the subchapter headings. Generally, existing parts remain intact and have simply been given a new part number, with each section and paragraph retaining the same designation ( e.g ., § 935.9(a) is now § 950.9(a); § 933.11(b)(3)(i)(A) is now § 925.11(b)(3)(i)(A), etc.). In some cases, however, longer sections covering more complex subject matter have been redesignated as parts in order to allow the material to be presented more clearly without the need for excessive sub-paragraph designations ( e.g . the material that previously appeared in §§ 932.16 and .17 is now set forth as part 918).

New part 900 has been created to contain definitions of terms that are used throughout the regulations ( i.e., Act, Bank, Board of Directors, consolidated obligations, Finance Board and member). In conjunction with this, the definitions of these terms and synonymous terms have been removed from the definitional sections of the individual parts. It is anticipated that more terms may eventually be consolidated into part 900 as regulations are added, or as existing regulations undergo substantive revision in the future. Other terms requiring definition that are not used throughout the regulations would continue to be defined in the definitional provisions of the parts in which they are used.

The following derivation table shows the origin of the material that is contained in each of the proposed newly designated parts (or sections, as appropriate). “Future rulemaking” is shown where a part or section has been reserved in anticipation of a future rulemaking.

Although the amendments made by the rule are otherwise entirely technical and organizational, the final rule deletes several regulatory provisions that either are now entirely obsolete, or involve the Finance Board in Bank governance and are therefore inappropriate since the enactment of the Modernization Act. While not literally obsolete, the regulations falling into the latter category have been essentially obsolete as a practical matter for several years or more. The following chart enumerates the sections that have been deleted:

With the renumbering of the Finance Board's regulations, reflected in the charts above, all cross-references to old part or section numbers within the Finance Board's regulations must also be changed. As such, much of the amendatory instruction set forth below addresses the revision of the hundreds of cross-references in the regulations to reflect accurately the new part and section numbers.

In order to conform to the current stylistic conventions used in the Code of Federal Regulations, the rule also removes all paragraph designations from alphabetical definition sections of the individual parts, where feasible.

All remaining changes merely correct typographical errors that came to the attention of the Finance Board during its review of the regulations.

This is a technical rule that reorganizes the Finance Board's regulations without substantive change. The rule will not impose any regulatory requirements on small entities. Thus, in accordance with the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , the Finance Board hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b).

The final rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted any information to the Office of Management and Budget for review.

On Friday, December 3, 1999, the FAA proposed to amend 14 CFR part 71 to modify Class D airspace at Grand Forks AFB, ND (64 FR 67810). The proposal was to amend the effective hours to coincide with the ATCT hours of operation for Grand Forks AFB. Controlled airspace extending upward from the surface is needed to contain Instrument Flight Rules (IFR) operations during portions of the terminal operation and while transiting between the enroute and terminal environments. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class D airspace at Grand Forks AFB, ND, by amending the effective hours to coincide with the ATCT hours of operation for Grand Forks AFB. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Monday, November 22, 1999, the FAA proposed to amend 14 CFR part 71 to modify Class E airspace at Connersville, IN (64 FR 63767). The proposal was to modify controlled airspace extending upward from 700 feet above the surface to contain Instrument Flight Rules (IFR) operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9G dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR 71.1 The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class E airspace at Connersville, IN, to accommodate aircraft executing the proposed GPS Rwy 18 SIAP and GPS Rwy 36 SIAP for Mettel Field Airport by modifying the existing controlled airspace. The area will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On December 29, 1999, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71), by establishing Class E airspace at Atmore, AL, (64 FR 72970). This action provides adequate Class E airspace for IFR operations at Atmore Municipal Airport. Designations for Class E airspace extending upward from 700 feet or more above the surface of the Earth are published in FAA Order Order 7400.9G, dated September 1, 1999, and effective September 16, 1999, which is incorporated by reference in 14 CFR part 71.1. The Class E designation listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal was received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E airspace at Atmore, AL. A GPS RWY 36 SIAP has been developed for Atmore Municipal Airport. Controlled airspace extending upward from 700 feet AGL is needed to accommodate the SIAP and for IFR operations at Atmore Municipal Airport. The operating status of the airport will change from VRF to include IFR operations concurrent with the publication of the SIAP.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation, as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Rule

This action amends 14 CFR part 71 by changing the legal descriptions of four Federal airways that have “Bellingham VORTAC” included as part of their route structure. Currently, the VORTAC and the International Airport share the “Bellingham” name. The fact that the VORTAC is approximately nine NM north of the airport has led to confusion among users. To eliminate this confusion, the Bellingham VORTAC will be renamed the “Whatcom VORTAC,” and all the airways with “Bellingham VORTAC” included in their legal descriptions will be amended to reflect the VORTAC's name change. The name change of the VORTAC will coincide with the effective date of this rulemaking action.

Since this action merely involves editorial changes to the legal descriptions of the four Federal airways, and does not involve a change in the dimensions or operating requirements of the airways, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

Domestic VOR Federal Airways are published in paragraph 610(a) of FAA Order 7400.9G, Airspace Designations and Reporting Points, dated September 1, 1999 and effective September 16, 1999.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In a notice published in the Federal Register of April 8, 1992 (57 FR 11958), FDA announced that three food additive petitions (FAP 9B4133, 9B4131, and 9B4132) had been filed on behalf of The Lubrizol Corp., 29400 Lakeland Blvd., Wickliffe, OH 44092-2298. The petitions proposed, respectively, that the food additive regulations in § 175.105 Adhesives (21 CFR 175.105), § 176.170 Components of paper and paperboard in contact with aqueous and fatty foods (21 CFR 176.170), and § 176.180 Components of paper and paperboard in contact with dry food (21 CFR 176.180) be amended to provide for the safe use of poly(sodium 2-acrylamido-2-methylpropanesulfonate) in adhesives and as components of paper and paperboard intended to contact food.

In the filing notice, FDA used the common name to identify the additive. However, in the final rule, the Chemical Abstract Service name, 2-acrylamido-2-methyl-propanesulfonic acid, homopolymer, sodium salt, is used because the structure of the food additive is more readily understood from this name. In addition, FDA believes that listing the additive under both §§ 176.170 and 176.180 is redundant because § 176.180(b)(1) (21 CFR 176.180(b)(1)) permits the use of those substances listed in § 176.170 (21 CFR 176.170) as components of paper and paperboard in contact with dry food. Therefore, FDA is listing the proposed uses of the additive only under §§ 176.170 and 175.105.

In FDA's evaluation of the safety of 2-acrylamido-2-methyl-propanesulfonic acid, homopolymer, sodium salt, the agency reviewed the safety of the additive itself and the chemical impurities that may be present in the additive resulting from its manufacturing process. Although the additive itself has not been shown to cause cancer, it may contain minute amounts of acrylamide and acrylonitrile as impurities resulting from its manufacture. These chemicals have been shown to cause cancer in test animals. Residual amounts of impurities are commonly found as constituents of chemical products, including food additives.

Under the general safety standard of the Federal Food, Drug, and Cosmetic Act (the act), (21 U.S.C. 348(c)(3)(A)), a food additive cannot be approved for a particular use unless a fair evaluation of the data available to FDA establishes that the additive is safe for that use. FDA's food additive regulations (21 CFR 170.3(i)) define safe as “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use.”

The food additives anticancer, or Delaney, clause of the act (21 U.S.C. 348(c)(3)(A)) provides that no food additive shall be deemed safe if it is found to induce cancer when ingested by man or animal. Importantly, however, the Delaney clause applies to the additive itself and not to impurities in the additive. That is, where an additive itself has not been shown to cause cancer, but contains a carcinogenic impurity, the additive is properly evaluated under the general safety standard using risk assessment procedures to determine whether there is a reasonable certainty that no harm will result from the intended use of the additive. Scott v. FDA , 728 F.2d 322 (6th Cir. 1984).

FDA estimates that the petitioned uses of the additive, 2-acrylamido-2-methyl-propanesulfonic acid, homopolymer, sodium salt, will result in exposure to no greater than 100 parts per billion (ppb) of the additive in the daily diet (3 kilograms (kg)) or an estimated daily intake (EDI) of no more than 300 micrograms per person per day (μg/p/d)(Ref. 1).

FDA does not ordinarily consider chronic toxicological studies to be necessary to determine the safety of an additive whose use will result in such low exposure levels (Ref. 2), and the agency has not required such testing here. However, the agency has reviewed the available toxicological data on the additive and concludes that the estimated small dietary exposure resulting from the petitioned uses of this additive is safe.

FDA has evaluated the safety of this additive under the general safety standard, considering all available data and using risk assessment procedures to estimate the upper-bound limit of lifetime human risk presented by acrylamide and acrylonitrile, the carcinogenic chemicals that may be present as impurities in the additive. The risk evaluation of acrylamide and acrylonitrile has two aspects: (1) Assessment of exposure to the impurities from the petitioned uses of the additive; and (2) extrapolation of the risk observed in the animal bioassays to the conditions of exposure to humans.

FDA has estimated the exposure to acrylamide from the petitioned uses of the additive as a component of adhesives and of paper and paperboard in contact with food to be no more than 0.15 part per trillion (ppt) in the daily diet (3 kg), or 0.45 nanogram per person per day (ng/p/d) (Ref. 3). The agency used published data from a long-term rat bioassay on acrylamide conducted by Johnson et al. (Ref. 4), in addition to unpublished data from this bioassay contained in FAP 9B4131, to estimate the upper-bound limit of lifetime human risk from exposure to this chemical resulting from the petitioned uses of the additive. The authors reported that the test material caused significantly increased incidences of thyroid follicular adenomas and testicular mesotheliomas in male rats, and mammary tumors (adenomas or adenocarcinomas; fibromas or fibroadenomas; adenocarcinomas alone), central nervous system tumors (brain astrocytomas, brain or spinal cord glial tumors) and uterine tumors in female rats.

Based on the agency's estimate that exposure to acrylamide will not exceed 0.45 ng/p/d, FDA estimates that the upper-bound limit of lifetime human risk from the petitioned uses of the subject additive is 5.4 × 10 −9 , or 5.4 in a billion (Refs. 5 and 6). Because of the numerous conservative assumptions used in calculating the exposure estimate, the actual lifetime-averaged individual exposure to acrylamide is likely to be substantially less than the estimated exposure, and therefore, the probable lifetime human risk would be less than the upper-bound limit of lifetime human risk. Thus, the agency concludes that there is reasonable certainty that no harm from exposure to acrylamide would result from the petitioned uses of the additive.

FDA has estimated the exposure to acrylonitrile from the petitioned uses of the additive as a component of adhesives and of paper and paperboard in contact with food to be no more than 0.3 ppt in the daily diet (3 kg), or 0.9 ng/p/d (Ref. 3). The agency used data from a long-term rodent bioassay on acrylonitrile conducted by Quast et al. (Ref. 7), to estimate the upper-bound limit of lifetime human risk from exposure to this chemical resulting from the petitioned uses of the additive. The authors reported that the test material caused astrocytomas of the nervous system, papillomas and carcinomas of the tongue, papillomas and carcinomas of the stomach, and Zymbal's gland carcinomas in male and female rats. The authors also reported carcinomas of the small intestine and the mammary gland in female rats.

Based on the agency's estimate that exposure to acrylonitrile will not exceed 0.9 ng/p/d, FDA estimates that the upper-bound limit of lifetime human risk from the petitioned uses of the subject additive is 1.6 × 10 −9 , or 1.6 in a billion (Refs. 8 and 9). Because of the numerous conservative assumptions used in calculating the exposure estimate, the actual lifetime-averaged individual exposure to acrylonitrile is likely to be substantially less than the estimated exposure, and therefore, the probable lifetime human risk would be less than the upper-bound limit of lifetime human risk. Thus, the agency concludes that there is reasonable certainty that no harm from exposure to acrylonitrile would result from the petitioned uses of the additive.

The agency has also considered whether specifications are necessary to control the amount of acrylamide and acrylonitrile as impurities in the food additive. The agency finds that specifications are not necessary for the following reasons: (1) Because of the low levels at which acrylamide and acrylonitrile may be expected to remain as impurities following production of the additive, the agency would not expect these impurities to become components of food at other than extremely low levels; and (2) the upper-bound limits of lifetime human risk from exposure to acrylamide and acrylonitrile are very low, 5.4 in a billion and 1.6 in a billion, respectively.

FDA has evaluated data in the three petitions and other relevant material. Based on this information, the agency concludes that: (1) The proposed uses of the additive as a component of adhesives, and paper and paperboard in contact with food are safe, (2) the additive will achieve its intended technical effect, and therefore, (3) the regulations in §§ 175.105 and 176.170 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has determined under 21 CFR 25.32(i) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time on or before March 20, 2000 file with the Dockets Management Branch (address above) written objections thereto. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents shall be submitted and shall be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch (address above) between 9 a.m. and 4 p.m., Monday through Friday.

The following references have been placed on display in the Dockets Management Branch (address above) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

Adhesives, Food additives, Food packaging.

Food additives, Food packaging.

On September 5, 1997, EPA published a direct final rule (62 FR 47114) and accompanying notice of proposed rule (62 FR 46937) making amendments to the test procedures for heavy-duty engines and light duty vehicles and trucks. Although EPA believed that the action was non-controversial, adverse comments were received from the Engine Manufacturers Association (EMA) and from the American Automobile Manufacturers Association (AAMA). As a result of receiving the adverse comments, EPA published a final rule (63 FR 24446) on May 4, 1998 that withdrew the three provisions on which adverse comments were received. After taking into consideration EMA and AAMA's comments and also discussing the issues and options, today's action addresses the three provisions. The paragraphs below describe the comments received for each issue, followed by EPA's response.

Both of the comments received by EPA referred to changes made to § 86.1333-90. In § 86.1333-90 EPA provided a new requirement for cycle verification at idle conditions. The new requirement stated that for idle segments that are seven seconds or longer, the average feedback torque must fall within ±10 ft-lb of the Curb Idle Transmission Torque (CITT). Both EMA and AAMA commented that current dynamometer systems utilized might not be capable of controlling torque to this specification and thus the time period might have to be lengthened or modifications made to dynamometer control systems. Both EMA and AAMA recommended to change the idle segment specification from seven to ten seconds. According to EMA and AAMA, such change would not impact emissions and would allow manufacturers to comply with the CITT requirements without having to make extensive modifications to engine dynamometers control systems.

EPA agrees that making modifications to engine dynamometer systems to meet the proposed CITT requirements would be not only burdensome but also very costly. Furthermore, EPA agrees that increasing the idle segment length specification from seven to ten seconds will not impact emissions. Thus, EPA agrees with EMA and AAMA's recommendation and the final rule will apply the CITT requirement to segments of ten seconds or longer.

In the September 5, 1997 final rule (62 FR 47114) EPA revised sections 86.119-90, 86.1319-84 and 86.1319-90 to require manufacturers to verify that the critical flow venturi is achieving critical flow when using a CFV-CVS sampling system during the emissions test. Both EMA and AAMA commented that, even though they agree with the technical merits of such requirement, more lead time would be needed to make the software and hardware changes necessary. Thus EMA and AAMA recommended that, in order to provide sufficient time for the implementation of this new requirement, that EPA provides an 18 month lead time.

EPA recognizes that this new requirement will require software changes to current testing facilities and that more lead time would be needed to ensure that all the manufacturer's testing facilities comply at the same time. Thus, EPA will not require that this provision be met until August 20, 2001 to allow manufacturers to make the software and hardware changes needed for compliance. EPA is not finalizing the change to § 86.1319-84 because this section is not applicable to future model years.

On August 21, 1990 (55 FR 34120), EPA promulgated a final rule that established new requirements related to the quality of diesel fuel. As part of that rule EPA changed the cetane number specification to 40-48 and established a cetane index specification of 40-48. In the 1994 Gaseous Fuels Rule (59 FR 48472), modifications to the section specifying certification fuel parameters for light-duty vehicles and trucks resulted in inadvertent changes to the cetane number specifications from 40-48 to 42-50. In the September 5, 1997 notice, EPA proposed to correct the light-duty diesel fuel cetane specifications contained in section 86.113-94. In its comments, AAMA expressed concern that proposed correction would not provide sufficient lead time for manufacturers to comply. In addition, they stated that since diesel hydrocarbon emissions are sensitive to cetane levels, changing the cetane level of the test fuel could cause in-use compliance issues in the future. EMA and AAMA recommended EPA to keep the current 42-50 cetane specification for light-duty certification fuel.

EPA continues to believe that the current cetane number specification of 42-50 is not correct since it does not include fuels with cetane numbers/indices in the range of 40 to 42. Such fuels represent a significant portion of in-use fuels, and should be included as potential test fuels. EPA believes that it is necessary to change the specifications to include this lower range. However, EPA has analyzed the most recently available data for in-use fuels and has determined that fuels with cetane numbers/indices in the range of 48 to 50 are also representative of in-use fuels. As a result, EPA is finalizing a broad specification that includes both fuels with cetane numbers/indices in the range of 40 to 42 and fuels with cetane numbers/indices in the range of 48 to 50. EPA is applying this broad specification to both light-duty and heavy-duty fuels.

Under Executive Order 12866, the Agency must determine whether this regulatory action is “significant and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant” regulatory action as one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, EPA has determined that this action is not a “significant” regulatory action within the meaning of the Executive Order an is therefore not subject to OMB review.

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. In support of its proposed rule entitled Control of Emissions of Air Pollution from Highway Heavy-Duty Engines (61 FR 33421, June 27, 1996), EPA characterized the heavy-duty engine manufacturing industry in Chapter 3 of its Regulatory Impact Analysis (RIA). Based on that characterization, EPA has determined that this action will not have a significant impact on a substantial number of small entities.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a written statement to accompany any rule where the estimated costs to State, local, or tribal governments, or to the private sector will be $100 million or more in any one year. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objective of the rule and that is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly and uniquely impacted by the rule. EPA has determined that the costs to State, local, or tribal governments, or the private sector, from this rule will be less than $100 million.

The technical amendments promulgated by this action do not create or change the information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Office of Management and Budget (OMB) has previously approved the information collection requirements already contained in all the Part 86 sections amended by this action and has assigned OMB control numbers 2060-0104 and 2060-0064.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a report which includes a copy of the rule, to each House of 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 General Accounting Office prior to publication of this rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule only revises the emissions testing requirements that are part of EPA's existing regulation of new motor vehicles and new motor vehicle engines and only affects the manufacturers of such vehicles and engines. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62FR19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

EPA has continued to incorporate ASTM test methods in this rule. EPA is not aware of any voluntary consensus standards which are inconsistent with the regulations promulgated in this rule.

Electronic copies of the preamble and the regulatory text of this rule are available via the Internet on the Office of Mobile Sources (OMS) Home Page (http://www.epa.gov/oms). This service is free of charge, except for any cost you already incur for Internet connectivity. The official Federal Register version is made available on the day of publication on the primary Web site (http://www.epa.gov/docs/fedrgstr/EPA-AIR/).

Please note that due to differences between the software used to develop the documents and the software into which the documents may be downloaded, changes in format, page length, etc., may occur.

For the reasons set forth in the preamble, part 86 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:

On December 22, 1999, the Office of Management and Budget (OMB) approved the amendments to the public file rules pursuant to OMB control No. 3060-0848. Accordingly, the rules in § 51.5, 51.319(a)(1) through (7), 51.230, 51.231 and 51.232 became effective on January 10, 2000.

Additional information is contained in the Board's decision. To obtain a copy of the full decision, write to, call or pick up in person from Da -To-Da Office Solutions, Mercury Building, 1925 K Street, N.W., Room 210, Washington, DC 20006. Until further notice, Da -To-Da Office Solutions' telephone number in the Mercury Building will be (202) 289-4357. In addition, Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”

The Board concludes that these rules will not have a significant economic effect on a substantial number of small entities. The procedures established are simple and expeditious and impose no new reporting requirements on small entities. The rules protect all parties by providing for revoking the exemption for violations of the rules or the statute.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

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.

In accordance with § 679.20(d)(1)(i), if the Administrator, Alaska Region, NMFS (Regional Administrator), determines that the amount of a target species or “other species” category apportioned to a fishery or, with respect to pollock and Pacific cod, to an inshore or offshore component allocation, will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified GOA Regulatory Area or district (§ 697.20(d)(1)(iii)).

NMFS published final 2000 harvest specifications for these groundfish fisheries in the Federal Register . The Regional Administrator has determined that the following TAC amounts are necessary as incidental catch to support other anticipated groundfish fisheries for the 2000 fishing year:

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the above species or species groups as zero.

Therefore, in accordance with § 679.20(d)(1)(iii) NMFS is prohibiting directed fishing for these species in the specified areas. These closures will be in effect from February 15, 2000 until 12 midnight, Alaska local time, December 31, 2000.

Under authority of the interim 2000 GOA specifications (65 FR 65, January 3, 2000), pollock fishing opened on January 1, 2000, for amounts specified in that notice. NMFS has since closed Statistical Area 610 to directed fishing for pollock effective 1200 hrs, A.l.t., January 31, 2000 (65 FR 5285, February 3, 2000), Statistical Area 620 outside the Shelikof Strait conservation area to directed fishing for pollock effective 1200 hrs, A.l.t., January 27, 2000 (65 FR 5283, February 3, 2000), Statistical Area 630 outside the Shelikof Strait conservation area to directed fishing for pollock effective 1200 hrs, A.l.t., January 25, 2000 (65 FR 4891, February 2, 2000), and directed fishing for Pacific cod by vessels catching Pacific cod for processing by the offshore component in the Western Regulatory Area, effective 1200 hrs, February 7, 2000 (65 FR 6561, February 10, 2000). The closures for Statistical Areas 610, 620 and 630 will remain in effect until 1200 hrs, A.l.t., March 15, 2000.

These closures supersede the closures announced in the interim 2000 GOA harvest specifications (65 FR 65, January 3, 2000). While these closures are in effect, the maximum retainable bycatch amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 679. Refer to § 679.2 for definitions of areas. The definitions of GOA deep-water flatfish and “Other rockfish” species categories are provided in the Federal Register publication of the Final 2000 Harvest Specifications.

NMFS may implement other closures during the 2000 fishing year, as necessary for effective conservation and management.

This action is required by § 679.20 and is exempt from review under E.O. 12866.

This action responds to the TAC limitations and other restrictions on the fisheries established in the Final 2000 Harvest Specifications for Groundfish for the GOA. It must be implemented immediately to prevent overharvesting the 2000 TACs for several groundfish species in the GOA. A delay in the effective date is impracticable and contrary to the public interest. The fleet is currently harvesting groundfish, and further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

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) (§ 679.20(a)(1)(i)). Regulations at § 679.20(c)(3) further require NMFS to consider public comments received on proposed annual TACs and apportionments thereof and on proposed prohibited species catch (PSC) allowances and to publish final specifications in the Federal Register . The final specifications set forth in Tables 1 through 8 of this action satisfy these requirements. For 2000, the sum of TACs is 2 million mt.

The proposed BSAI groundfish specifications and prohibited species bycatch allowances for the groundfish fishery of the BSAI were published in the Federal Register on December 13, 1999 (64 FR 69464). Comments were invited and accepted through January 12, 2000. NMFS received one letter of comment on the proposed specifications. This comment is summarized and responded to in the Response to Comments section. Public consultation with the Council occurred during the December 1999 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 meeting, NMFS is implementing the final 2000 groundfish specifications as recommended by the Council.

In accordance with regulations at § 679.20(c)(2)(ii), NMFS established interim amounts of each proposed initial TAC (ITAC), and allocations thereof, and proposed PSC allowances established under § 679.21 that become available at 0001 hours Alaska local time (A.l.t.), January 1, and remain available until superseded by the final specifications. NMFS published the interim 2000 groundfish harvest specifications in the Federal Register on January 3, 2000 (65 FR 60). The interim TACs for pollock subsequently were revised by an emergency interim rule effective January 20, 2000 (65 FR 3892; January 25, 2000). Regulations at § 679.20(c)(2)(ii) do not provide for an interim specification for either the hook-and-line and pot gear sablefish CDQ reserve or for sablefish managed under the Individual Fishing Quota management plan.

With the exception of the sideboard provisions for groundfish and prohibited species under the American Fisheries Act (AFA), the final 2000 groundfish harvest specifications and prohibited species bycatch allowances contained in this action supersede the interim 2000 groundfish harvest specifications. The emergency interim rule implementing AFA cooperative harvest limit provisions (65 FR 4520; January 28, 2000) specified allocations of inshore pollock between cooperative and vessels not participating in cooperatives, as well as harvest amounts and PSC limits for AFA catcher/processors and catcher vessels. These specifications will remain effective for the duration of the AFA emergency interim rule or until superseded by completion of a notice and comment rulemaking to implement the AFA.

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. The FMP specifies the formulas, or tiers, to be used in computing ABCs and overfishing levels. The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fishery scientists. This information is categorized into a successive series of six tiers.

At its December 1999 meeting, the Council's Scientific and Statistical Committee (SSC), the Council's Advisory Panel (AP), and Council itself 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 2000 SAFE report for the BSAI groundfish fisheries, dated November 1999. 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 1999, the SSC, AP, and Council reviewed the Plan Team's recommendations. Except for pollock and the “other species” category, the SSC, AP, and Council endorsed the Plan Team's ABC recommendations. Based on the best available information, the SSC recommended slightly higher ABCs for pollock and “other species” than the Plan Team recommended. For pollock, the maximum ABC under the overfishing definition results in an amount of 1.2 million mt. The Plan Team recommended using a lower fishing mortality to account for uncertainties in recruitment because there is a limited range of age-classes supporting the fishery. The SSC agreed with the Plan Team's rationale, but disagreed with the extent of the decrease in the fishing mortality rate. The SSC adopted a mortality rate lower than the maximum permissible, but higher than the Plan Team's, resulting in an ABC of 1.139 million mt. For “other species”, the Plan Team recommended an ABC based on mean catch since 1977. The SSC disagreed with this approach and recommended using a Tier 5 approach under the FMP. 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.

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 1.4 million to 2.0 million mt. The Council adopted the AP's TAC recommendations. None of the Council's recommended TACs for 2000 exceeds the final ABC for any species category. NMFS finds that the recommended TACs are consistent with the biological condition of groundfish stocks as described in the 2000 SAFE document and approved by the Council.

Table 1 lists the 2000 ABC, TAC, ITAC and Community Development Quota (CDQ) reserve amounts, overfishing levels, and initial apportionments of groundfish in the BSAI. The apportionment of TAC amounts among fisheries and seasons is discussed in the following sections.

Regulations at § 679.20(b)(1)(i) require that 15 percent of the TAC for each target species or species group, except for the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. The AFA supersedes this provision for pollock by requiring that the 2000 TAC for this species be fully allocated among the CDQ program, the ICA, inshore, catcher/processor, and mothership directed fishery allowances.

Regulations at § 679.20(b)(1)(iii) require that one-half of each TAC amount placed in the non-specified reserve be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Section 206(a) of the AFA requires that 10 percent of the pollock TAC be allocated to the pollock CDQ reserve. With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear. Regulations at § 679.21(e)(1)(i) also require that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a prohibited species quota (PSQ) reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Pursuant to section 206(b) of the AFA, NMFS allocates a pollock ICA of 5 percent of the pollock TAC after subtraction of the 10-percent CDQ reserve. This allowance is based on an examination of the incidental catch of pollock in non-pollock target fisheries from 1996 through 1999. During this 4-year period, the incidental catch of pollock ranged from a low of 3 percent in 1998 to a high of about 6 percent in 1997, with a 4-year average of 5 percent.

The regulations do not designate the remainder of the non-specified reserve by species or species group, and any amount of the reserve may be reapportioned to a target species or to the “other species” category during the year, providing that such reapportionments do not result in overfishing. The Regional Administrator has determined that the ITACs specified for the species listed in Table 2 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to harvest their full TAC allocations. Therefore, in accordance with § 679.20(b)(3), NMFS is apportioning the amounts shown in Table 2 from the nonspecified reserve to increase the ITAC to an amount that is equal to the TAC minus the CDQ reserve.

Regulations at § 679.20(a)(5)(i)(B) authorize NMFS, in consultation with the Council, to limit the amount of pollock that may be taken in the directed fishery for pollock using nonpelagic trawl gear. In June 1998, the Council adopted management measures that, if approved by NMFS, would prohibit the use of nonpelagic trawl gear in the directed fishery for pollock and reduce specified prohibited species bycatch limits by amounts equal to anticipated savings in bycatch or bycatch mortality that would be expected from this prohibition. These measures could be effective by mid-2000. Therefore, NMFS allocates zero mt of pollock to non-pelagic trawl gear.

Section 206(a) of the AFA requires the allocation of 10 percent of the BSAI pollock TAC as a directed fishing allowance to the CDQ program. The remainder of the BSAI pollock TAC, after the subtraction of an allowance for the incidental catch of pollock by vessels, including CDQ vessels, harvesting other groundfish species, must be allocated as follows: 50 percent to catcher vessels harvesting pollock for processing by the inshore component, 40 percent to catcher/processors and catcher vessels harvesting pollock for processing by catcher/processors in the offshore component, and 10 percent to catcher vessels harvesting pollock for processing by motherships in the offshore component. These amounts are listed in Table 3.

The AFA also contains several specific requirements concerning pollock and pollock allocations. First, paragraph 210(c) of the AFA requires that not less than 8.5 percent of the pollock allocated to vessels for processing by offshore catcher/processors be available for harvest by offshore catcher vessels listed in section 208(b) harvesting pollock for processing by offshore catcher/processors listed in paragraph 208(e). Second, paragraph 208(e)(21) of the AFA specifies that catcher/processors eligible to fish for pollock under such paragraph are prohibited from harvesting in the aggregate a total of more than one-half of a percent (0.5) of the pollock allocated to vessels for processing by offshore catcher/processors. Other provisions of the AFA, including inshore pollock cooperative allocations, AFA catcher vessel harvest limitations, and excessive harvest and processing shares as well as their rationale are described in the emergency interim rule that implements the AFA (65 FR 4520; January 28, 2000). Table 3 lists the 2000 allocations of pollock TAC as described by the AFA.

In an emergency interim rule published January 25, 2000 (65 FR 3892), NMFS implemented revised final reasonable and prudent alternatives (RFRPAs) to avoid the likelihood that the pollock fisheries off Alaska will jeopardize the continued existence of the western population of Steller sea lions or adversely modify its critical habitat. The emergency interim rule implements three types of management measures for the pollock fisheries of the BSAI and GOA: (1) Measures to temporally disperse fishing effort, (2) measures to spatially disperse fishing effort, and (3) measures to provide sufficient protection from competition with pollock fisheries for prey in waters immediately adjacent to rookeries and important haulouts.

The emergency rule established a Steller Sea Lion Conservation Area (SCA) to facilitate regulation of total removals of pollock in an area considered to be critical to the recovery of the endangered western population of Steller sea lions. This area was referred to as the Critical Habitat/Catcher Vessel Operational Area (CH/CVOA) in previous emergency rulemaking and in the 1999 specifications. The emergency rule restricts pollock harvests within the SCA to a percentage of each sector's seasonal allocation as recommended by the Council. The seasonal apportionments and SCA limits described in Table 3 are consistent with the requirements of the RFRPAs in order to avoid jeopardy and adverse modification of critical habitat.

Additionally, directed fishing for pollock is prohibited within the Aleutian Islands subarea. The amounts of pollock specified are for incidental catch only. NMFS determined that this region is especially sensitive to the recovery of the western population of Steller sea lions because of the significant reductions in the population over the past 20 years. The emergency rule also implements fishing closures or partial closures for 25 sites in the Bering Sea subarea. These fishing closures alleviate competition for pollock prey resources in critical foraging areas around Steller sea lion rookeries and haulouts.

NMFS has concluded that these harvest specifications are not an irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives that might be developed as part of the biological opinion that is currently under development for the BSAI and GOA groundfish fishery management plans. This conclusion is based on the best scientific and commercial data available on population dynamics, fish stock dynamics, fishery management measures, the population dynamics of groundfish stocks in the Aleutian Islands, Bering Sea, and Gulf of Alaska, and interactions between these fisheries and the endangered western population of Steller sea lions. In reaching the conclusion that the year 2000 groundfish fisheries in the BSAI and GOA can proceed as approved at the levels contained in the final harvest specifications for the BSAI and GOA, and as dictated by the groundfish FMPs for the BSAI and GOA, we considered factors pertinent to section 7(d) of the ESA.

Our concerns about the effect of these groundfish fisheries on the Steller sea lions' likelihood of survival and recovery in the wild has resulted from apparent competition between some of the fisheries and sea lions when and where sea lions forage. The total number or biomass of the groundfish species ( e.g. , pollock, Pacific cod, Atka mackerel, and flatfish) has not been, and does not appear to be, an issue with these fish stocks: the high recruitment rates, relatively short life-histories, and migratory patterns of these species throughout the BSAI and GOA should allow these species to recover relatively quickly. The substantial basis for this assumption comes from the scientific literature on sustainable harvest rates ( e.g. , Beddington and Cooke, 1983; Clarke, 1991; Sissenwine and Shepard, 1987). The issue is whether the way these fisheries are managed allows the fish stocks to recover and become available again to foraging Steller sea lions before the fishery can compete with the sea lions.

The spatial and temporal distribution of the groundfish fisheries, as opposed to the allowable catch, has been the essence of our concern for Steller sea lions, which was also expressed by the National Research Council in its 1996 review of these issues in the Bering Sea (National Research Council, Committee on the Bering Sea Ecosystem: The Bering Sea Ecosystem, 1996). The need for spatial and temporal distribution has also been the foundation for our development and implementation of management measures that avoid competition between the fisheries and foraging Stellar sea lions.

The TAC-setting process, specified in the FMPs, is very conservative with respect to harvest rate by internationally accepted scientific standards ( e.g., Precautionary Approach to Capture Fisheries and Species Introductions, FAO, 1996; Code of Conduct for Responsible Fisheries, FAO, 1995). Harvesting of the TACs established by this process is not expected to deplete groundfish resources. Conducting a fishery in 2000 should not irreversibly or irretrievably alter the ability of these groundfish species to recover from the proposed harvest. A fishery in 2000 would not alter recruitment rates for any of these species and it would not alter their ability to redistribute throughout the area of concern in a way that would reduce their availability for foraging Steller sea lions. While the biological opinion will examine the TAC setting process, we do not believe that the 2000 TAC specifications will threaten the survival and recovery of Stellar sea lions or diminish the value of designated critical habitat for sea lions. Groundfish species should be able to recover quickly enough after the 2000 harvest to effect reasonable and prudent alternatives that avoid the likelihood of jeopardizing Steller sea lions or adversely modifying critical habitat designated for them.

The conduct of this fishery, therefore, would not foreclose any of our options to develop and implement reasonable and prudent alternatives that avoid the likelihood of jeopardizing the sea lions. We intend to complete the comprehensive biological opinion, which will evaluate all activities that govern the groundfish fisheries authorized and managed under the current fishery management plans, prior to the start of the 2001 fisheries. These same activities are also being evaluated in the programmatic supplemental environmental impact statement that we currently are drafting.

NMFS manages the groundfish fishery in the BSAI 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 50 CFR part 679.

In accordance with § 679.20(d)(1)(i), if the Administrator, Alaska Region, NMFS (Regional Administrator) determines that any allocation or apportionment of a target species or “other species” category has been or will be reached, the Regional Administrator may establish a directed fishing allowance for that species or species group. If the Regional Administrator establishes a directed fishing allowance, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified subarea or district (§ 697.20(d)(1)(iii)). Similarly, under § 679.21(e), if the Regional Administrator determines that a fishery category's bycatch allowance of halibut, red king crab, or C. bairdi Tanner crab for a specified area has been reached, the Regional Administrator will prohibit directed fishing for each species in the category in the specified area.

The Regional Administrator has determined that the following remaining allocation amounts will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2000 fishing year:

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowances for the listed species or species groups as zero.

Therefore, in accordance with § 679.20(d)(1)(iii) NMFS is prohibiting directed fishing for these species in the specified areas and these closures will remain in effect through 2400 hrs, Alaska local time (A.l.t), December 31, 2000.

In addition, the BSAI, Zone 1, annual red king crab allowance specified for the trawl rockfish fishery (§ 679.21(e)(3)(iv)(D)) is 0 mt and the BSAI first seasonal halibut bycatch allowance specified for the trawl rockfish is 0 mt. The BSAI annual halibut bycatch allowance specified for the trawl Greenland turbot/arrowtooth flounder/sablefish fishery categories, (§ 679.21(e)(3)(iv)(C)) is 0 mt. Therefore, in accordance with § 679.21(e)(7)(ii) and (v), NMFS is prohibiting directed fishing for rockfish by vessels using trawl gear in Zone 1 of the BSAI, directed fishing for rockfish by vessels using trawl gear in the entire BSAI and directed fishing for Greenland turbot/arrowtooth flounder/sablefish by vessels using trawl gear in the BSAI. These closures will remain in effect through 2400 hrs, A.l.t., December 31, 2000, for directed fishing for Greenland turbot/arrowtooth flounder/sablefish by vessels using trawl gear in the BSAI, and for directed fishing for rockfish by vessels using trawl gear in Zone 1 in the BSAI, and the 1200 hrs, A.l.t., July 4, 2000, for directed fishing for rockfish by vessels using trawl gear in the entire BSAI.

Under authority of the interim 2000 harvest specifications (65 FR 60, January 3, 2000), NMFS closed directed fishing for Atka mackerel for gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI effective 1200 hrs, A.l.t., January 29, 2000, through 2400 hrs, A.l.t., September 1, 2000 (65 FR 4893, February 2, 2000); directed fishing for pollock by vessels, not participating in cooperatives, greater than 99 ft (30.2 m) LOA catching pollock for processing by the inshore component in the SCA of the BSAI effective 12 noon, A.l.t., January 30, 2000, until 1200 hrs, A.l.t., April 1, 2000 (65 FR 5284, February 3, 2000); and prohibited trawling within Steller sea lion critical habitat in the Central Aleutian District of the BSAI, effective 12 noon, A.l.t., February 10, 2000, until the directed fishery for Atka mackerel closes within the entire Central Aleutian District (65 FR xxxx, February x, 2000). The amount of available TAC remaining for these fisheries under the final 2000 harvest specifications for groundfish, following the closures under the interim 2000 harvest specifications for groundfish, will be taken as incidental catch in directed fishing for other species. Thus, these closures remain effective under authority of final 2000 harvest specifications.

These closures supersede the closures announced in the interim 2000 harvest specifications (65 FR 60, January 3, 2000). While these closures are in effect, the maximum retainable bycatch amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 679. Refer to § 679.2 for definitions of areas. In the BSAI, “Other rockfish” includes Sebastes and Sebastolobus species except for Pacific ocean perch, shortraker, rougheye, sharpchin, and northern rockfish.

This action is required by § 679.20 and § 679.21 and is exempt from review under E.O. 12866.

This action responds to the TAC limitations and other restrictions on the fisheries established in the Final 2000 Harvest Specification for Groundfish for the BSAI. It must be implemented immediately to prevent overharvesting the 2000 TAC of several groundfish species in the BSAI. A delay in the effective date is impracticable and contrary to the public interest. The fleet is currently harvesting groundfish, and further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the GOA. The North Pacific Fishery Management Council (Council) prepared the FMP and NMFS approved it under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations that also pertain to the U.S. fisheries appear at 50 CFR part 600 and 50 CFR part 679.

NMFS announces for the 2000 fishing year: (1) Specifications of total allowable catch (TAC) amounts for each groundfish species category in the GOA, and reserves; (2) apportionments of reserves; (3) allocations of the sablefish TAC to vessels using hook-and-line and trawl gear; (4) apportionments of pollock TAC among regulatory areas, seasons, and allocations for processing between inshore and offshore components; (5) allocations for processing of Pacific cod TAC between inshore and offshore components; (6) Pacific halibut PSC limits; (7) fishery and seasonal apportionments of the Pacific halibut PSC limits; and (8) Pacific halibut assumed discard mortality rates. A discussion of each of these measures follows.

Regulations implementing the FMP establish the process of determining TACs for groundfish species in the GOA. Pursuant to § 679.20(a)(2), the sum of the TACs for all species must fall within the combined optimum yield (OY) range of 116,000-800,000 metric tons (mt) established for these species at § 679.20(a)(1)(ii).

The Council met from October 12 through 18, 1999, and developed recommendations for proposed 2000 TAC specifications for each species category of groundfish on the basis of the best available scientific information. The Council also recommended associated management measures pertaining to the 2000 fishing year. The Council proposed rolling over all the 1999 final specifications for 2000, pending an update of the preliminary 1999 SAFE report to include new information collected during 1999 and revised stock assessments to be incorporated in the final SAFE report. Pursuant to § 679.20(c)(1)(ii), the proposed 2000 harvest specifications for the GOA groundfish fishery were published in the Federal Register on December 13, 1999 (64 FR 69457), and comments were accepted through January 12, 2000. NMFS received one letter of comment on the proposed 2000 GOA specifications, which is responded to in the following text. Interim TAC and PSC amounts equal to one-fourth of the proposed amounts were published in the Federal Register on January 3, 2000 (65 FR 65). The interim TACs for pollock subsequently were revised by an emergency interim rule effective January 20, 2000 (65 FR 3892, January 25, 2000), that implemented revised final reasonable and prudent alternatives (RFRPAs) to avoid the likelihood the pollock fisheries off Alaska will jeopardize the continued existence of the western population of Steller sea lions or adversely modify its critical habitat. The emergency interim rule implements three types of management measures for the pollock fisheries of the Bering Sea and Aleutian Islands Management Area (BSAI) and GOA: (1) Measures to temporally disperse fishing effort, (2) measures to spatially disperse fishing effort, and (3) measures to provide full protection from pollock fisheries that compete with Steller sea lions for prey in waters immediately adjacent to rookeries and important haulouts.

The interim TACs were revised further under a second emergency interim rule effective January 20, 2000 (65 FR 4520, January 28, 2000), that established GOA groundfish and PSC limits for specified catcher vessels authorized to harvest BSAI pollock under the American Fisheries Act (AFA).

With the exception of the pollock harvest specifications implementing the RFRPAs and the AFA harvest limits, the final 2000 groundfish harvest specifications and PSC limits contained in this action supersede the interim 2000 specifications.

The Council met December 7 through 12, 1999, to review the best available scientific information concerning groundfish stocks, and to consider public testimony regarding 2000 groundfish fisheries. The best available scientific information is contained in the current SAFE report, dated November 1999. The SAFE report includes the most recent information concerning the status of groundfish stocks based on the most recent catch data, survey data, and biomass projections using alternative modeling approaches or assumptions. The Council's GOA Plan Team prepared the SAFE report and presented it to the Council and the Council's Scientific and Statistical Committee (SSC) and Advisory Panel (AP) at the December 1999 Council meeting. The Plan Team's recommendations for acceptable biological catch (ABC) levels and overfishing levels (OFL) are contained in the SAFE report along with the rationale supporting those recommendations.

For establishment of the ABCs and TACs, the Council considered the ecological, socioeconomic, and ecosystem information in the SAFE report, recommendations from its SSC and AP, as well as public testimony. The SSC adopted the OFL recommendations from the Plan Team, which were provided in the SAFE report, for all groundfish species categories. The SSC also adopted the ABC recommendations from the Plan Team, which were provided in the SAFE report, for all of the groundfish species categories, except pollock in the combined Western, Central, West Yakutat (W/C/WYK) area.

The SSC did not adopt the Plan Team's recommendation of ABC for pollock in the W/C/WYK area of the GOA. The Plan Team's recommendation was to roll over the 1999 ABCs for the area in consideration of: (1) The pollock stock biomass level is in a downward trend, (2) projected year 2000 biomass will be at an all time low, and (3) high variability about the 1999 trawl survey abundance estimate. The SSC shared these concerns with the Plan Team, but recommended that the year 2000 ABC be explicitly based on the current stock assessment. The SSC recommended setting the 2000 ABC for the W/C/WYK area at an adjusted F45 percent exploitation strategy, resulting in an ABC of 93,540 mt for the area.

The Council adopted the SSC's ABC and AP's TAC recommendations for all species except sablefish. The SSC's ABC recommendation for sablefish area apportionments were based on the Plan Team's 5-year weighted average of hook- and-line survey relative abundance. The AP's recommendations were to set TAC equal to ABC in these areas. The Council recommended ABCs and TACs based on an alternative model for apportionment of ABC among management areas, which includes commercial fishery as well as survey data. The fishery and survey data were combined by computing a weighted average of the survey and fishery estimates, with the weight inversely proportional to the variability of each data source. 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 (WYK) District.

NMFS agrees with the Council's approach for the 2000 harvest specifications. 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 would need to be evaluated annually to assure that unbiased information is included in stock distribution models.

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 Council recommended that the TACs be adjusted downward from the ABCs by amounts equal to the 2000 guideline harvest levels (GHL) established for Pacific cod by the State of Alaska (State) for a State-managed fishery in State waters. The effect of the State's GHL on the Pacific cod TAC is discussed in greater detail below.

The Council's recommended ABCs, listed in Table 1, reflect harvest amounts that are less than the specified overfishing amounts. The sum of 2000 ABCs for all groundfish is 448,010 mt, which is lower than the 1999 ABC total of 532,590 mt.

The Council recommended TACs equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, shortraker and rougheye rockfish, other slope rockfish, northern rockfish, Pacific ocean perch, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, and Atka mackerel. The Council recommended TACs less than the ABC for Pacific cod, flathead sole, shallow-water flatfish, and arrowtooth flounder (Table 1).

The TAC for pollock has decreased in the combined W/C/WYK areas of the GOA from 94,590 mt in 1999 to 93,540 mt in 2000. It has increased from 6,330 mt in 1999 to 6,460 mt in 2000 in the SEO District of the Eastern GOA. The apportionment of TAC in the W/C/WYK area of the GOA reflects the current biomass distribution.

Under the January 25, 2000, emergency interim rule implementing the RFRPAs for Steller sea lions (65 FR 3892), the annual pollock TAC in the Western and Central GOA is divided into four seasonal apportionments. Thirty percent of the annual TAC in the Western and Central Regulatory Areas in the GOA is apportioned to the A season (January 20 through March 1) in the Western GOA, Shelikof Strait, and Statistical Areas 620 and 630 (outside of Shelikof Strait) in the Central GOA (§ 679.20(a)(5)(ii)); 15 percent to the B season (March 15 through May 31) in the Western GOA, Shelikof Strait, and Statistical Areas 620 and 630 (outside of Shelikof Strait) in the Central GOA; 30 percent to the C season (August 20 through September 15) in the Western GOA and Statistical Areas 620 and 630 in the Central GOA; and 25 percent to the D season (October 1 through November 1) in the Western GOA and Statistical Areas 620 and 630 in the Central GOA (§ 679.23(d)(3)(i) through (iv)). The Shelikof area (defined at § 679.22(a)(3)(iii)(B)) apportionments during the A and B seasons are derived from the estimate of pollock biomass (489,900 mt) in the critical habitat of the Shelikof Strait divided by the pollock biomass (933,000 mt) estimated for the entire GOA multiplied by the A and B seasonal apportionments of pollock TAC ( i.e., 30 percent of the annual TACs (27,361 mt) in the A season and 15 percent of the annual TACs in the B season (13,680 mt) in the GOA (§ 679.22(a)(3)(iii)(C))). These specifications under the emergency rule expire July 19, 2000. NMFS anticipates that a final rule permanently implementing these management measures will be in effect prior to the expiration of the emergency rule. This final rule would revise the annual specifications to establish pollock harvest specifications for the remainder of 2000 consistent with the RFRPAs.

NMFS has concluded that these harvest specifications are not an irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives that might be developed as part of the biological opinion that is currently under development for the BSAI and GOA groundfish fishery management plans. This conclusion is based on the best scientific and commercial data available on population dynamics, fish stock dynamics, fishery management measures, the population dynamics of groundfish stocks in the Aleutian Islands, Bering Sea, and Gulf of Alaska, and interactions between these fisheries and the endangered western population of Steller sea lions. In reaching the conclusion that the year 2000 groundfish fisheries in the BSAI and GOA can proceed as approved at the levels contained in the final harvest specifications for the BSAI and GOA, and as dictated by the groundfish FMPs for the BSAI and GOA, NMFS considered factors pertinent to section 7(d) of the ESA.

Our concerns about the effect of these groundfish fisheries on the Steller sea lions' likelihood of survival and recovery in the wild has resulted from apparent competition between some of the fisheries and sea lions when and where sea lions forage. The total number or biomass of the groundfish species ( e.g., pollock, Pacific cod, Atka mackerel, and flatfish) has not been, and does not appear to be, an issue with these fish stocks: the high recruitment rates, relatively short life-histories, and migratory patterns of these species throughout the BSAI and GOA should allow these species to recover relatively quickly. The substantial basis for this assumption comes from the scientific literature on sustainable harvest rates ( e.g., Beddington and Cooke, 1983; Clarke, 1991; Sissenwine and Shepard, 1987). The issue is whether the way these fisheries are managed allows the fish stocks to recover and become available again to foraging Steller sea lions before the fishery can compete with the sea lions.

The spatial and temporal distribution of the groundfish fisheries, as opposed to the allowable catch, has been the essence of concern for Steller sea lions, which was also expressed by the National Research Council in its 1996 review of these issues in the Bering Sea (National Research Council, Committee on the Bering Sea Ecosystem: The Bering Sea Ecosystem, 1996). The need for spatial and temporal distribution has also been the foundation for the development and implementation of management measures that avoid competition between the fisheries and foraging Steller sea lions.

The TAC-setting process, specified in the FMPs, is very conservative with respect to harvest rate by internationally accepted scientific standards ( e.g., Precautionary Approach to Capture Fisheries and Species Introductions, FAO, 1996; Code of Conduct for Responsible Fisheries, FAO, 1995). Harvesting of the TACs established by this process is not expected to deplete groundfish resources. Conducting a fishery in 2000 should not irreversibly or irretrievably alter the ability of these groundfish species to recover from the proposed harvest. A fishery in 2000 would not alter recruitment rates for any of these species and it would not alter their ability to redistribute throughout the area of concern in a way that would reduce their availability for foraging Steller sea lions. While the biological opinion will examine the TAC setting process, we do not believe that the 2000 TAC specifications will threaten the survival and recovery of Steller sea lions or diminish the value of designated critical habitat for sea lions. Groundfish species should be able to recover quickly enough after the 2000 harvest to effect reasonable and prudent alternatives that avoid the likelihood of jeopardizing Steller sea lions or adversely modifying critical habitat designated for them.

The conduct of this fishery, therefore, would not foreclose any of our options to develop and implement reasonable and prudent alternatives that avoid the likelihood of jeopardizing the sea lions. NMFS intends to complete the comprehensive biological opinion, which will evaluate all activities that govern the groundfish fisheries authorized and managed under the current fishery management plans, prior to the start of the 2001 fisheries. These same activities are also being evaluated in the programmatic supplemental environmental impact statement that we currently are drafting.

The 2000 Pacific cod TAC is affected by the State's developing fishery for Pacific cod in State waters in the Central and Western GOA, as well as Prince William Sound. 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 so that the TAC for: (1) The Eastern GOA be lower than the ABC by 1,340 mt, (2) the Central GOA be lower than the ABC by 8,385 mt, and (3) the Western GOA be lower than the ABC by 6,875 mt.

Subsequent to the Council's December 1999 meeting, harvests of Pacific cod in State waters of the Kodiak District in the Central GOA increased to over 90 percent of the 1999 GHL for the area. This results in an unanticipated increase in the 2000 GHL for the Kodiak District ( i.e., from 10 percent to 12.5 percent of the Central GOA ABC for a total of 21.75 percent of the Central GOA ABC). NMFS is adjusting the Council's recommended Pacific cod TAC downward for the Central GOA from 35,615 mt to 34,080 mt to reflect the increased 2000 GHLs in the Central GOA. These amounts reflect the increased percentages the State has established for GHLs in these areas. In the Western GOA, the State Pacific cod GHL has increased from 20 percent in 1999, to 25 percent in 2000. The Pacific cod GHL in the Central GOA has increased from 19.25 percent in 1999 to 21.75 percent in 2000. The State's Pacific cod GHL of 1,340 mt for PWS is based on 25 percent of the 2000 Eastern GOA ABC.

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 GOA-wide “other species” TAC is 14,215 mt, which is 5 percent of the sum of the combined TAC amounts for the target species. The sum of the TACs for all GOA groundfish is 298,510 mt, which is within the OY range specified by the FMP. The sum of the TACs is lower than the 1999 TAC sum of 306,535 mt. NMFS has reviewed the Council's recommended TAC specifications and apportionments and hereby approves these specifications under § 679.20(c)(3)(ii). The 2000 ABCs, TACs, and OFLs are shown in Table 1. The initial TAC amounts shown for Pacific cod reflect the reserve of 20 percent of the TACs in this fishery.

Regulations 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 (§ 679.20(b)(2)). For the preceding 12 years, including 1999, NMFS reapportioned all of the reserves in the final harvest specifications except for Pacific cod. Beginning in 1997, NMFS retained the Pacific cod reserve. NMFS proposed reapportionment of all reserves for 2000, except for Pacific cod, in the proposed GOA groundfish specifications published in the Federal Register on December 13, 1999 (64 FR 69457). NMFS received no public comments on the proposed reapportionments. For 2000, NMFS has reapportioned all of the reserve for pollock, flatfish, and “other species.” NMFS is retaining the Pacific cod reserve at this time to provide for a management buffer to account for excessive fishing effort and/or incomplete or late catch reporting. In recent years, unpredictable increases in fishing effort and harvests, uncertainty of incidental catch needs in other directed fisheries throughout the year, and untimely submission and revision of weekly processing reports have resulted in early and late closures of the Pacific cod fishery. NMFS believes that retention of the Pacific cod reserve to provide for TAC management difficulties later in the year is a conservative approach that will lead to a more orderly fishery and provide greater assurance that incidental catch of Pacific cod may be retained throughout the year. Specifications of TAC shown in Table 1 reflect apportionment of reserve amounts for pollock, flatfish species, and “other species.” Table 1 also lists the initial TACs for Pacific cod, which reflect the withholding of the Pacific cod TAC reserve.

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. In recognition of the trawl ban in the SEO District of the Eastern Regulatory Area, the Council recommended 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. In the SEO District, 100 percent of the sablefish TAC is allocated to vessels using hook-and-line gear. This recommendation results in an allocation of 288 mt to trawl gear and 1,919 mt to hook-and-line gear in the WYK District. Table 2 shows the allocations of the 2000 sablefish TACs between hook-and-line gear 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 the emergency interim rule published January 25, 2000 (65 FR 3892), implementing the RFRPAs, the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four seasonal allowances of 30, 15, 30, and 25 percent, respectively (§ 679.20(a)(5)(ii)(B)). As established by § 679.23(d)(2), the A, B, C, and D season allowances are available from January 20 through March 1, from March 15 through May 31, from August 20 through September 15, and from October 1 through November 1 respectively.

To prevent localized depletions of pollock outside the Shelikof Strait conservation area (defined at § 679.20(b)(2)(iii)(B)), the emergency rule also establishes seasonal TACs of pollock within Shelikof Strait during the A and B seasons. The derivation of these harvest limits is explained here and listed in Tables 1 and 3.

The remainder of the A and B seasonal allowances of pollock TAC in the Western and Central Regulatory Areas are apportioned among statistical area 610, and statistical areas 620 and 630 outside Shelikof Strait conservation area in proportion to the distribution of pollock biomass as determined by the four most recent NMFS surveys. Pollock TACs in the Western and Central Regulatory Areas in the C and D seasons are apportioned among statistical areas 610, 620, and 630 in proportion to the distribution of pollock biomass as determined by the four most recent NMFS surveys. 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 Regional Administrator, Alaska Region, NMFS, provided that a revised seasonal allowance does not exceed 30 percent of the annual TAC apportionment (§ 679.20(a)(5)(ii)(C)). The WYK and SEO District pollock TACs of 2,340 mt and 6,460 mt, respectively, are not allocated seasonally.

Regulations at § 679.20(a)(6)(ii) 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 bycatch 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 biomass distribution of pollock in the Western and Central GOA, area apportionments, and seasonal apportionments for the A and B seasons are summarized in Table 3 and for the C and D seasons in Table 4, except that amounts of pollock for processing by the inshore and offshore component are not shown.