43870 Federal Register / Vol. 63, No. 158 / Monday, August 17, 1998 / Rules and Regulations

U.S.C. 553) because: (1) The 1998–99 SUMMARY: The National Oceanic and effective July 1, 1997, and codified at 15 fiscal year began on July 1, 1998, and Atmospheric Administration amends CFR Part 922, Subpart P. the marketing order requires that the the regulations for the Florida Keys In September 1997, NOAA became rate of assessment for each fiscal year National Marine Sanctuary (FKNMS or aware that significant injury to, and apply to all assessable papayas handled Sanctuary) to reinstate and make destruction of, living coral on the during such fiscal year; (2) the permanent the temporary prohibition on Tortugas Bank, west of the Dry Tortugas Committee needs to have sufficient anchoring by vessels 50 meters or National Park, was being caused by the funds to pay its expenses which are greater in registered length on Tortugas anchoring of vessels 50 meters or greater incurred on a continuous basis; and (3) Bank. The preamble to this rule contains in registered length. handlers are aware of this action which an environmental assessment for this Section 922.165 of the Sanctuary was recommended by the Committee at action. The intent of this rule is to regulations provides that, where a public meeting and is similar to other protect the coral reef at Tortugas Bank. necessary to prevent or minimize the assessment rate actions issued in past The proposed rule was published on destruction of, loss of, or injury to a years. February 11, 1998 and the comment Sanctuary resources, any and all List of Subjects in 7 CFR Part 928 period ended on March 13, 1998. activities are subject to immediate DATES: The effective date of this rule is temporary regulation, including Marketing agreements, Papayas, 12:01 a.m. on August 19, 1998. prohibition, for up to 120 days. Reporting and recordkeeping ADDRESSES Emergency regulations cannot take requirements. : Requests for copies of the management plan or the complete effect until approved by the Governor of For the reasons set forth in the regulations for the Sanctuary should be the State of Florida. In accordance with preamble, 7 CFR part 928 is amended as sent to Billy Causey, Superintendent, 15 CFR 922.165, and the Co-Trustees follows: Florida Keys National Marine Agreement for Cooperative Management PART 928ÐPAPAYAS GROWN IN Sanctuary, Post Office Box 500368, between NOAA and the State of Florida, HAWAII Marathon, Florida, 33050. in October 1997, NOAA consulted with FOR FURTHER INFORMATION CONTACT: and received approval by the Governor 1. The authority citation for 7 CFR Billy Causey at (305) 743–2437. of the State of Florida to issue a part 928 continues to read as follows: SUPPLEMENTARY INFORMATION: temporary rule prohibiting the Authority: 7 U.S.C. 601–674. anchoring by vessels 50 meters or I. Background 2. Section 928.226 is revised to read greater in length on Tortugas Bank west as follows: The Sanctuary was designated by an of the Tortugas National Park within the act of Congress entitled the Florida Keys Sanctuary. The temporary rule (62 FR § 928.226 Assessment rate. National Marine Sanctuary and 54381; October 20, 1997), took effect at On and after July 1, 1998, an Protection Act (FKNMSPA, Pub. L. 101– 12:01 a.m. October 17, 1997 and assessment rate of $0.0063 per pound is 605) which was signed into law on remained in effect until February 12, established for papayas grown in November 16, 1990. The FKNMSPA 1998. Proposed regulations were printed Hawaii. directed the Secretary of Commerce to in the Federal Register on February 11, Dated: August 11, 1998. develop a comprehensive management 1998 (63 FR 6883) and the review period for the proposed regulations Eric M. Forman, plan and regulations for the Sanctuary pursuant to sections 303 and 304 of the ended on March 13, 1998. No written Acting Deputy Administrator, Fruit and Vegetable Programs. National Marine Sanctuaries Act comments were received on the (NMSA) (also known as Title III of the proposed regulations. The Florida Keys [FR Doc. 98–22024 Filed 8–14–98; 8:45 am] Marine Protection, Research and National Marine Sanctuary Advisory BILLING CODE 3410±02±P Sanctuaries Act of 1972), as amended, Council reviewed the proposed rule at 16 U.S.C. 1431 et seq. The NMSA its meeting on December 9, 1997. The authorizes the development of Council recommended approval of the DEPARTMENT OF COMMERCE management plans and regulations for regulation. The Governor and Cabinet of National Oceanic and Atmospheric national marine sanctuaries to protect the State of Florida reviewed the rule Administration their conservation, recreational, and approved it without objection on ecological, historical, research, February 10, 1998. 15 CFR Part 922 educational, or aesthetic qualities. II. Summary of the Regulatory The authority of the Secretary to Amendment [Docket No. 971014245±8190±03] designate national marine sanctuaries RIN 0648±AK45 and implement designated sanctuaries The rule reinstates and makes is delegated to the Under Secretary of permanent the temporary prohibition on National Marine Sanctuary Program Commerce for Ocean and Atmosphere anchoring by vessels 50 meters or Regulations; Florida Keys National by the Department of Commerce, greater in registered length on the Marine Sanctuary Regulations; Organization Order 10–15, § 3.01(x) Tortugas Bank west of the Dry Tortugas Anchoring on Tortugas Bank (Jan. 26, 1996). The authority to National Park within the Sanctuary. AGENCY: Sanctuaries and Reserves administer the other provisions of the Current 15 CFR 922.163(a)(5)(ii) of the Division (SRD), Office of Ocean and NMSA is delegated to the Assistant final Sanctuary regulations prohibits Coastal Resource Management (OCRM), Administrator for Ocean Services and vessels from anchoring in the Sanctuary National Ocean Service (NOS), National Coastal Zone Management of NOAA by on living coral other than hardbottom in Oceanic and Atmospheric NOAA Circular 83–38, Directive 05–50 water depths less than 40 feet when Administration (NOAA), Department of (September 21, 1983, as amended). The visibility is such that the seabed can be Commerce (DOC). final Sanctuary regulations seen. However, that regulation does not implementing the designation were protect the coral located in the area ACTION: Final rule; environmental published in the Federal Register on covered by this rule because the water assessment. June 12, 1997, (62 FR 32154) and were there is deeper than 40 feet. Federal Register / Vol. 63, No. 158 / Monday, August 17, 1998 / Rules and Regulations 43871

Anchoring of vessels 50 meters or The recommended alternative from a recreational diver charter captain greater in registered length on Tortugas anchoring location in the vicinity of the documenting anchoring damage caused Bank has been documented as having area closed to anchoring by vessels 50 by a large, foreign-flagged vessel caused significant injury to living coral meters or greater in registered length is: anchored within state waters on the reef resources. Vessels of such size have An area approximately 2 nautical Tortugas Bank, within the Sanctuary. anchor gear (ground tackle) of massive miles west of the living coral reefs that Shortly, thereafter, Sanctuary weight and size with heavy chains form the Tortugas Bank, where biologists visited the reported anchoring hundreds of feet in length weighing as anchoring damage to the corals is site to conduct a biological assessment much as 8 to 10 tons. Proper anchoring occurring. The bottom type in this area of the injury to the living coral reef. requires that a length of chain five to is sand/mud or sand/shell. This area is When they arrived on Tortugas Bank, seven times the depth of the water be indicated on NOAA Nautical Chart there were four foreign ships ranging lowered, this act of prudent seamanship Numbers 11434 and 11420. Mariners from over 400 to 800 feet in length allows for safe anchoring under any sea should note the existence of a anchored on the 60′ deep coral reef conditions. In most circumstances, submerged shipwreck located at 24°38′ bank. Although staff was unable to much of this chain will drop to and N 83°08.00′ W. This shipwreck is a locate the original site which was remain on the bottom. The weight of the landing ship transport which was lost in reported in the video, they were able to chain holds the vessel in place. In this 1948. assess and photo-document the reef area, the heavy chain crushes the coral III. Miscellaneous Rulemaking damage caused by the four vessels. Staff noted significant damage to and sponges. In addition, as the tide Requirements changes or the wind shifts, vessels often corals, sponges, and other delicate coral change position and drag their anchor National Environmental Policy Act reef organisms. Wide swaths of barren chain over the seabed, further damaging NOAA has prepared an seabed and overturned coral heads were the reef. environmental assessment (EA), evidence of the ongoing disruption to For example, a 180 foot Coast Guard pursuant to the National Environmental the coral reef community caused by the Cutter uses a 2000 pound anchor and Policy Act of 1969, 42 U.S.C 4321 et ships’ anchors and anchor chains. chain sized appropriately to deploy it; seq., for the Florida Keys National The rule reinstates and makes whereas a Coast Guard 110 foot Patrol Marine Sanctuary on this rule. The text permanent the temporary prohibition on Boat uses an 80 pound anchor and of the EA follows. anchoring by vessels 50 meters or rather than chain, nylon line is used as greater in registered length in an area ground tackle (anchor gear). Environmental Assessment approximately 39.53 square nautical Coast Guard patrol boats regularly in A. Description of the Affected miles. Transit, fishing and all other the area around Tortugas Bank report Environment activities currently allowed in the area that they encounter either very large are not affected by this rule. The Dry Tortugas Banks are located at NOAA has identified and vessels (50 meters or greater in length), the westernmost extent of the Florida or fishing vessels or pleasure craft recommended alternative anchor sites Keys. These banks are separated from within approximately two nautical generally less than 35 meters in length. the remainder of the Keys by a 24 meter Vessels smaller than 50 meters in miles of the prohibited area. Vessels deep channel. The Banks have a rim of greater than 50 meters in registered registered length have not been Holocene coral reef development documented as having caused injury or length are already prohibited by the surrounding an inner basin containing FKNMSPA from operating in certain loss of living coral on Tortugas Bank. several sandy islands including Their anchoring gear is less massive in other areas of the Sanctuary, referred to Loggerhead Key, Garden Key, Bush Key, in that statute and Sanctuary regulations size, length and weight. Therefore, this and Hospital Key. A little-known deep- rule does not prohibit anchoring by as Areas to be Avoided (15 CFR water coral reef, informally named 922.164(a)). vessels less than 50 meters in registered Sherwood Forest, is found at Tortugas length on the Tortugas Bank. The Bank. The seabed includes corals, C. Alternatives, Including This Action location by coordinates of the sponges, and other delicate coral reef and Their Environmental Impacts prohibited anchoring area is set forth in organisms. No Action the text of the final rule. Vessels greater Human uses of the affected than 50 meters in registered length are environment includes snorkeling and One alternative is to take no action, already prohibited by the FKNMSPA diving, shrimping, day tours on charter thus maintaining the status quo. This from operating in certain other areas of boats, and pleasure boating on private alternative is not acceptable because the the Sanctuary, referred to in that statute boats. All of these vessels are less than coral reef located at Tortugas Bank and Sanctuary regulations as Areas to be 50 meters in registered length and none would continue to be injured or Avoided (15 CFR 922.164(a)). have been documented as causing destroyed by the anchoring of vessels 50 Transit, fishing and all other activities damage to the reef by anchoring. meters or greater in length. currently allowed in the area are not affected by this rule. Alternative anchor B. Need for the Rule Prohibit Anchoring by Vessels 50 Meters or Greater in Registered Length on sites for vessels 50 meters or greater in The region within the Sanctuary Tortugas Bank Within the Florida Keys length are located within approximately known as Tortugas Bank has National Marine Sanctuary two nautical miles of the prohibited traditionally been an anchoring area for area. The close proximity of these large, foreign flag vessels holding up The preferred alternative is to alternative anchoring sites should and waiting order to enter a port within reinstate and make permanent the mitigate any potential economic impact the region. However, personnel from the temporary prohibition on anchoring by on such vessels since cost of the time adjacent Dry Tortugas National Park vessels 50 meters or greater in registered and fuel to maneuver to this area and have noticed that vessels have begun to length on Tortugas Bank within the the additional time and labor in letting anchor on the Bank itself. Florida Keys National Marine out and pulling in the additional anchor On August 30, Florida Keys National Sanctuary. This alternative would chain should be minimal. Marine Sanctuary staff received a video protect the coral reef at Tortugas Bank 43872 Federal Register / Vol. 63, No. 158 / Monday, August 17, 1998 / Rules and Regulations while not unduly restricting the passage D. List of Agencies and Persons anchored in the prohibited area to and anchoring of vessels which have not Consulted relocate. been documented as having caused Executive Order 12866 harm in the area. In an effort to inform all affected parties of the temporary rule, NOAA The Office of Management and Budget Prohibit Anchoring by All Vessels on sent electronic mail messages to major (OMB) has concurred that this rule is Tortugas Bank Within the Florida Keys international shipping companies, and not significant within the meaning of National Marine Sanctuary notified the US Coast Guard which Section 3(f) of Executive Order 12866. resulted in a Notice to Mariners. NOAA This alternative, to prohibit anchoring issued a press release that was reported Executive Order 12612: Federalism by all vessels on Tortugas Bank within by the media throughout the area. Assessment the Florida Keys National Marine Sanctuary staff notified all international NOAA has concluded that this Sanctuary, would unduly restrict the underwriters for the relevant shipping regulatory action does not have vessels which have not been companies to apprise them of the sufficient federalism implications documented as having caused harm in temporary rule and soliciting their help sufficient to warrant preparation of a the area. Vessels smaller than 50 meters in notifying their shipping clients. federalism assessment under Executive in registered length have not been Additionally, Sanctuary staff contacted Order 12612. documented as having caused injury or all the Pilots’ Associations around the Regulatory Flexibility Act loss of living coral on Tortugas Bank. Gulf Coast and solicited their help in Their anchoring gear is less massive in spreading the word to the shipping When this rule was proposed, the size, length and weight than that of companies about the rule. In addition, Assistant General Counsel for vessels of 50 meters or greater in NOAA consulted with, and received Legislation and Regulation of the registered length. approval from the State of Florida. Department of Commerce certified to Current uses of the Tortugas Bank, NOAA continued to consult, as the Chief Counsel for Advocacy of the Small Business Administration that this west of the Dry Tortugas National Park, appropriate, with all relevant parties regulatory action would not have a include snorkeling and diving, during the development of this rule. significant economic impact on a shrimping, day tours on charter boats, [End of Environmental Assessment] substantial number of small entities and pleasure boating on private boats. Administrative Procedure Act within the meaning of the Regulatory All of these vessels are less than 50 Flexibility Act. No comments were meters in registered length and none Under 5 U.S.C. 553(d)(3), the received on the certification. have been documented as causing Assistant Administrator for Ocean Accordingly, the basis for the damage to the reef by anchoring. To Services and Coastal Zone Management, certification has not changed. prohibit anchoring by these vessels on NOAA for good cause finds that the Tortugas Bank, west of the Dry delaying the effective date for this rule Paperwork Reduction Act Tortugas National Park, would likely be for 30 days is contrary to the public This rule does not impose an an unreasonable economic burden on interest. First, substantial notice of the information collection requirement small businesses and an unnecessary temporary rule was provided via notice subject to review and approval by OMB impact on the public relative to the to mariners, Sanctuary radio under the Paperwork Reduction Act of apparently minimal environmental announcements, press releases, press 1980, 44 U.S.C. 3500 et seq. benefit of such a restriction. conferences, and with assistance by the U.S. Coast Guard and Dry Tortugas List of Subjects in 15 CFR Part 922 Extend the Area to be Avoided to National Park staff on the water within Administrative practice and Include Tortugas Bank West of the Dry the area. Since expiration of the procedure, Coastal zone, Historic Tortugas National Park temporary rule and pending this preservation, Marine resources, rulemaking, there has been voluntary Penalties, Recreation and recreation Extending the existing statutory Area compliance with the prohibition. to be Avoided to include Tortugas Bank areas, Reporting and recordkeeping However, Sanctuary staff have recently requirements, Research, Wildlife. west of the Dry Tortugas National Park received reports of vessels 50 meters or is an alternative that was considered greater in registered length returning (Federal Domestic Assistance Catalog Number 11.429, Marine Sanctuary Program) and rejected. This alternative would and anchoring on Tortugas Bank. eliminate the safe passage and transit Consequently, significant damage to the Dated: August 12, 1998. through the area by all vessels greater living resources could result if the rule Nancy Foster, than 50 meters registered length. The is delayed for 30 days. Second, 30 days Assistant Administrator for Ocean Services passage of vessels through this area has is not necessary to give notification to and Coastal Zone Management. not been determined to be detrimental vessels which might anchor in the area Accordingly, for the reasons set forth to the environment. Vessels 50 meters or in the future or for any vessel presently above, 15 CFR Part 922 is amended as greater in registered length frequently anchored to move to an alternative follows: pass through this area enroute to major anchoring site. The U.S. Coast Guard Gulf coast ports, including Galveston will give immediate notification to PART 922Ð[AMENDED] and Houston, Texas; Mobile, Alabama; vessels and they then can, in a short 1. The authority citation for part 922 New Orleans, Louisiana; Tampa, Florida period of time, move and re-anchor in continues to read as follows: and the ships transit this area enroute to the recommended location. Additional the Panama Canal. The overly broad notice will be provided in the manner Authority: 16 U.S.C. 1431 et seq. restriction that would be caused if this described above. This rule, therefore, is Subpart PÐFlorida Keys National alternative were accepted would cause a effective on 12:01 am on the second day Marine Sanctuary great economic burden to the shipping after the filing of this rule at the Office industry, and therefore was not selected of the Federal Register, to allow 2. Section 922.164 is amended by as the preferred alternative. adequate time for any vessels that are adding paragraph (g) to read as follows: Federal Register / Vol. 63, No. 158 / Monday, August 17, 1998 / Rules and Regulations 43873

§ 922.164 Additional activity regulations SUPPLEMENTARY INFORMATION: In a notice Any person who will be adversely by Sanctuary area. published in the Federal Register of affected by this regulation may at any * * * * * November 19, 1997 (62 FR 61823), FDA time on or before September 16, 1998, (g) Anchoring on Tortugas Bank. announced that a food additive petition file with the Dockets Management Vessels 50 meters or greater in (FAP 8B4566) had been filed by Ciba Branch (address above) written registered length are prohibited from Specialty Chemicals Corp., 335 Water objections thereto. Each objection shall anchoring on the Tortugas Bank. The St., Newport, DE 19804 (presently, c/o be separately numbered, and each coordinates of the area on the Tortugas Keller and Heckman, 1001 G St. NW., numbered objection shall specify with Bank, west of the Dry Tortugas National suite 500 West, Washington, DC 20001). particularity the provisions of the Park, closed to anchoring by vessels 50 The petition proposed to amend the regulation to which objection is made meters or greater in registered length food additive regulations in § 178.3297 and the grounds for the objection. Each are: Colorants for polymers (21 CFR numbered objection on which a hearing (1) 24° 45.75′N 82° 54.40′W 178.3297) to provide for the safe use of is requested shall specifically so state. (2) 24° 45.60′N 82° 54.40′W benzenesulfonic acid, 4-chloro-5- Failure to request a hearing for any (3) 24° 39.70′N 83° 00.05′W methyl-2-[[4,5-dihydro-3-methyl-5-oxo- particular objection shall constitute a (4) 24° 32.00′N 83° 00.05′W 1-(3-sulfophenyl)-1H-pyrazo-4-yl]azo], waiver of the right to a hearing on that (5) 24° 37.00′N 83° 06.00′W ammonium salt (C.I. Pigment Yellow objection. Each numbered objection for (6) 24° 40.00′N 83° 06.00′W 191:1) as a colorant in polymers which a hearing is requested shall intended for use in contact with food. In include a detailed description and [FR Doc. 98–22014 Filed 8–14–98; 8:45 am] this final rule the agency is using the analysis of the specific factual BILLING CODE 3510±08±M alternate name 4-chloro-2-[[5-hydroxy- information intended to be presented in 3-methyl-1-(3-sulfophenyl)-1H-pyrazol- support of the objection in the event 4-yl]azo]-5-methylbenzenesulfonic acid, that a hearing is held. Failure to include DEPARTMENT OF HEALTH AND diammonium salt (1:2), (C.I. Pigment such a description and analysis for any HUMAN SERVICES Yellow 191:1). particular objection shall constitute a FDA has evaluated data in the waiver of the right to a hearing on the Food and Drug Administration petition and other relevant material. objection. Three copies of all documents 21 CFR Part 178 Based on this information, the agency shall be submitted and shall be concludes that the proposed use of the identified with the docket number [Docket No. 97F±0467] additive is safe, that the additive will found in brackets in the heading of this achieve its intended technical effect, document. Any objections received in Indirect Food Additives: Adjuvants, and therefore, that the regulations in response to the regulation may be seen Production Aids, and Sanitizers § 178.3297 should be amended as set in the Dockets Management Branch forth below. between 9 a.m. and 4 p.m., Monday AGENCY: Food and Drug Administration, HHS. In accordance with § 171.1(h) (21 CFR through Friday. 171.1(h)), the petition and the List of Subjects in 21 CFR Part 178 ACTION: Final rule. documents that FDA considered and relied upon in reaching its decision to SUMMARY: The Food and Drug Food additives, Food packaging. approve the petition are available for Administration (FDA) is amending the Therefore, under the Federal Food, food additive regulations to provide for inspection at the Center for Food Safety and Applied Nutrition by appointment Drug, and Cosmetic Act and under the safe use of benzenesulfonic acid, 4- authority delegated to the Commissioner chloro-5-methyl-2-[[4,5-dihydro-3- with the information contact person listed above. As provided in § 171.1(h), of Food and Drugs and redelegated to methyl-5-oxo-1-(3-sulfophenyl)-1H- the Director, Center for Food Safety and pyrazo-4-yl]azo], ammonium salt (C.I. the agency will delete from the documents any materials that are not Applied Nutrition, 21 CFR part 178 is Pigment Yellow 191:1) as a colorant in amended as follows: polymers intended for use in contact available for public disclosure before with food. This action is in response to making the documents available for PART 178ÐINDIRECT FOOD a petition filed by Ciba Specialty inspection. ADDITIVES: ADJUVANTS, Chemicals Corp. The agency has carefully considered PRODUCTION AIDS, AND SANITIZERS the potential environmental effects of DATES: The regulation is effective this rule as announced in the notice of August 17, 1998. Submit written 1. The authority citation for 21 CFR filing for FAP 8B4566 (62 FR 61823). No part 178 continues to read as follows: objections and requests for a hearing by new information or comments have September 16, 1998. been received that would affect the Authority: 21 U.S.C. 321, 342, 348, 379e. ADDRESSES: Submit written objections to agency’s previous determination that 2. Section 178.3297 is amended in the the Dockets Management Branch (HFA– there is no significant impact on the table in paragraph (e) by alphabetically 305), Food and Drug Administration, human environment and that an adding an entry under the headings 5630 Fishers Lane, rm. 1061, Rockville, environmental impact statement is not ‘‘Substances’’ and ‘‘Limitations’’ to read MD 20852. required. as follows: FOR FURTHER INFORMATION CONTACT: Vir This final rule contains no collection D. Anand, Center for Food Safety and of information. Therefore, clearance by § 178.3297 Colorants for polymers. Applied Nutrition (HFS–215), Food and the Office of Management and Budget Drug Administration, 200 C St. SW., under the Paperwork Reduction Act of * * * * * Washington, DC 20204, 202–418–3081. 1995 is not required. (e) * * *