42734 Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Proposed Rules

1 ‘‘Region’’ is defined as ‘‘the States of Maine,

New Hampshire, Vermont, Massachusetts,

Connecticut, Rhode Island, New York, New Jersey,

Pennsylvania, Delaware, Maryland, Virginia, West

Virginia, Ohio, Indiana, Michigan, and Illinois; the

The NPRM

The impetus in proposing the NPRM

was the goal, as stated in the Action

Plan, to ‘‘review the allocation of

responsibilities for the selection and

installation of warning devices and the

potential for uniform nationwide

standards.’’ The NPRM, together with

the subsequent hearings and wide range

of comments stimulated extensive

discussion and debate on the issue. FRA

notes that certain groups generated

interest and comments by claiming that

the proposed rule ‘‘would shield

railroad companies from liability when

their negligence contributes to such

accidents.’’ This and similar claims

made in mass mailings to FRA are

clearly misleading statements. FRA

believes that there are valid policy

arguments on both sides of the issue in

this debate and that resorting to

misleading statements apparently in

order to increase the volume of

comments does not lead to helpful

public airing of legitimate concerns.

Spreading such obvious misinformation

can only take advantage of well meaning

individuals who have not had the

opportunity to read the proposed rule

themselves, but who rely on the

integrity and accuracy of those

providing the information. FRA is

disappointed that such groups

apparently felt that the strength of their

legitimate objections to the rule were

insufficient.

While some of the debate surrounding

the proposal was based on incorrect

information, much of the discussion

raised valid questions regarding what

should be the proper role of railroads,

state and local governments, and the

federal government in the selection and

installation of grade crossing warning

systems. The discussion remained on a

general and conceptual level however.

The overwhelming majority of

comments were conclusory in nature

and did not add hard data which could

be helpful to FRA in its decision

making. Opponents claimed that the

rule would effectively shift tort liability

from railroads to state and local

governments. Opponents of the rule also

stated that there was no evidence that

money saved by railroads would be

spent on grade crossing safety and that

the rule would remove any incentive a

railroad may have to participate in

crossing safety programs. Rule

proponents, on the other hand, claimed

that safety would be enhanced by more

rational grade crossing planning.

Absent from virtually all rule

comments and testimony, however,

were data supporting the conclusions

drawn from the rule. In the NPRM, FRA

stated that it ‘‘believes that railroads

have many powerful incentives to

continue their longstanding policy of

voluntarily providing matching funds

for federally funded grade crossing

projects, comment is sought concerning

whether this proposal will affect the

level of railroad participation in such

projects.’’ FRA again received only

conclusory comments rather than data

on past, present or projected levels of

participation.

Termination of rulemaking

FRA continues to believe that the

proper relationship between railroads

and state and local governments in

terms of selection and installation of

warning systems is as proposed in the

NPRM: railroad should furnish

governmental authorities with sufficient

information to enable those authorities

to make rational selection and

installation decisions. However, at this

time, in light of the lack of supporting

hard data in the record and the

magnitude of other regulatory and

program safety initiatives being

undertaken by FRA, this rulemaking is

being terminated.

We note that this rulemaking has been

a worthwhile first step in addressing the

issue of allocation of responsibility for

the selection and installation of warning

devices and the potential for uniform

nationwide standards in this area. We

are confident that further steps in

addressing these issues will build upon

the information and discussion

generated by this proceeding.

In light of the foregoing, FRA is

hereby terminating this rulemaking.

Issued in Washington, D.C. on August 5,

1997.

Jolene M. Molitoris,

Administrator.

[FR Doc. 97–20991 Filed 8–7–97; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1155

[STB Ex Parte No. 566]

Rail Service Continuation Subsidy

Standards

AGENCY: Surface Transportation Board,

DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Surface Transportation

Board (Board) is proposing to remove

regulations from the Code of Federal

Regulations that concern standards for

determining subsidies for the

continuation of rail service to govern

rail properties not transferred to

Consolidated Rail Corporation (Conrail)

under the Final System Plan pursuant to

the Regional Rail Reorganization Act of

1973.

DATES: Comments are due on September

8, 1997.

FOR FURTHER INFORMATION CONTACT:

Beryl Gordon, (202) 565–1600. (TDD for

the hearing impaired: (202) 565–1695.)

SUPPLEMENTARY INFORMATION: Effective

January 1, 1996, the ICC Termination

Act of 1995, Pub. L. 104–88, 109 Stat.

803 (ICCTA), abolished the Interstate

Commerce Commission (ICC or

Commission) and established the Board.

Section 204(a) of the ICCTA provides

that ‘‘[t]he Board shall promptly rescind

all regulations established by the (ICC)

that are based on provisions of law

repealed and not substantively

reenacted by this Act.’’

The regulations at 49 CFR part 1155

concern subsidy standards for certain

rail lines in the region encompassed by

the Final System Plan, described infra,

that otherwise are subject to

abandonment or discontinuance. They

are the forerunner to our current offer of

financial assistance (OFA) procedures

that are national in scope. These

regulations are based, at least partially,

on statutes that are still in effect. 45

U.S.C. 744 (c) and (d). Under the ICCTA,

however, the Rail Services Planning

Office (RSPO), the statutory body that

developed the regulations, has been

abolished. See repealed 49 U.S.C.

10361–64. Moreover, the Board has in

place analogous OFA regulations

providing national subsidy standards.

49 CFR 1152.27 and 1152 subpart D.

Finally, the regional subsidy regime at

45 U.S.C. 744, which applies to ‘‘rail

service on rail properties of a railroad in

reorganization,’’ may be outdated and

may apply only to a limited number of

situations. Accordingly, we are

instituting this proceeding to determine

whether these regulations may be

eliminated, or whether they have a

continuing vitality and should be

retained.

The 3R Act and Part 1155

The Regional Rail Reorganization Act

of 1973, Pub. L. No. 93–236, 87 Stat.

985, 45 U.S.C. 701 et seq. (3R Act)

created Conrail as a for-profit

corporation to reorganize the bankrupt

rail services in the Northeast and

Midwest region.1 The 3R Act provided
Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Proposed Rules 42735

District of Columbia; and those portions of

contiguous States in which are located rail

properties owned or operated by railroads doing

business in the aforementioned jurisdictions (as

determined by [ICC] order. * * *’’ 45 U.S.C.

702(17). In Northeastern Railroad Investigation [-]

Definition of the Midwest and Northeast Region, Ex

Parte No. 293, published in the Federal Register on

January 28, 1974 (39 FR 3605), the ICC included in

the region points in the St. Louis, MO and

Louisville, KY Standard Metropolitan Statistical

Areas and Manitowoc and Kewaunee, WI. See

Regional Rail Reorganization Act Cases, 419 U.S.

102, 108 n.2 (1974).

2The current language in 45 U.S.C. 744(c)(2)(A)

differs slightly, but it is substantively the same as

the section 304(c)(2) language.

3A ‘‘railroad in reorganization’’ is defined at 45

U.S.C. 702(16) as a railroad which is subject to a

bankruptcy proceeding and which has not been

determined by a court to be reorganizable or not

subject to reorganization pursuant to this chapter as

prescribed in section 717(b) of this title. A

‘‘bankruptcy proceeding’’ includes a proceeding

pursuant to section 77 of the Bankruptcy Act and

an equity receivership or equivalent proceeding

* * * .

4The Plan was submitted to Congress on July 26,

1975. It was approved when neither the House of

Representatives nor the Senate objected to it. The

Plan was formally approved in section 601(e) of the

4R Act, discussed infra.

5RSPO was established as ‘‘an office in the

Interstate Commerce Commission.’’ Former 49

U.S.C. 10361. In resolving the issue of whether final

orders or regulations of RSPO were to be considered

orders or regulations of the ICC, the court held that

‘‘[a]lthough Congress gave to the RSPO final

administrative responsibility for certain

determinations, we conclude that the RSPO is

sufficiently part of the ICC so that its orders are to

be considered orders of the ICC for purposes of the

Hobbs Act.’’ Southeastern Pennsylvania Transp.

Auth. v. I.C.C., 644 F.2d 238, 240, n.3 (3rd Cir.

1981).

6Section 205 was originally codified at 45 U.S.C.

715. In 1978, the Interstate Commerce Act was

recodified without substantive change pursuant to

Pub. L. No. 95–473, Oct. 17, 1978. While 45 U.S.C.

715 was repealed, the language of section 715

concerning RSPO was codified at 49 U.S.C. 10361–

10364.

7The regulations were redesignated as part 1155

on November 1, 1982 (47 FR 49582).

8This requirement was subsequently codified at

49 U.S.C. 10362(b)(6). Section 744(d), however, still

refers to section 205(d)(6).

9As described, infra, the OFA statute is now

found at 49 U.S.C. 10904.

10 In the notice of proposed rulemaking in

Abandonment of Railroad Lines and

Discontinuance of Rail Service, Ex Parte No. 274

(Sub-No.2), 41 FR 31878, 31882 (July 30, 1976), the

ICC noted that it had already defined ‘‘revenue

attributable,’’ ‘‘avoidable costs,’’ and ‘‘reasonable

return on the value,’’ as those terms are used in the

3R Act. It stated that

[b]ecause the same basic terminology is used in

the (3R Act) and in the new abandonment and

discontinuance provisions, the Commission

believes that the Congressional intent is that the

national standards should follow the conceptual

approach of the regional standard promulgated by

(RSPO) under the (3R Act). Consequently, the

regional standards are being used to provide the

foundation upon which the national standards will

be based. However, there are several areas . . . in

which the proposed rules differ from the regional

standards.

for the development and ultimate

approval by Congress of a Final System

Plan (Plan) for the redesign of rail

services in the region. Lines that could

not be operated profitably and were not

considered essential to the rail

transportation system would not be

included in the Plan. Section 304 of the

3R Act permitted the summary

discontinuance of service over those

lines without ICC approval if 60 days’

notice is given and certain parties are

notified. However, section 304(c)(2) of

the 3R Act (codified at 45 U.S.C.

744(c)(2)(A)) stated that an

abandonment or discontinuance could

not be carried out if a shipper, or public

authority, or any responsible person

offers:

* * * a rail service continuation subsidy

which covers the difference between the

revenue attributable to such rail properties

and the avoidable costs of providing service

on such properties plus a reasonable return

on the value of such rail properties * * *.2

The use of the subsidy is limited to

rail service and rail properties of a

railroad in reorganization in the region.

45 U.S.C. 744(a).3 Moreover, the subsidy

must be made within 2 years of the

effective date of the Plan 4 or within ‘‘2

years after the date on which the final

rail service continuation payment is

received, whichever is later. * * *’’ 45

U.S.C. 744(c)(1).

The 3R Act also created RSPO, 5

which was authorized to issue standards

for defining the terms ‘‘revenue

attributable to rail properties,’’

‘‘avoidable costs of providing service,’’

and ‘‘a reasonable return on the value’’

found in section 304. Section 205(d)(3).6

In response to this directive, regulations

were issued at 49 CFR part 1125 on July

1, 1974 (39 FR 7182) and were revised

on January 8, 1975 (40 FR 1624) in Part

1125—Standards for Determining Rail

Service Continuation Subsidies, Ex

Parte No. 293 (Sub-No. 2). The

regulations, now codified in part 1155,7

define the terms noted above (revenue

attributable, avoidable costs, return on

value) for determining the subsidy

payment for the continuation of train

service over lines not included in the

Plan.

The regulations at part 1155 are quite

detailed and are more than 30 pages

long. They are largely self-executing

with little role provided for the ICC.

However, under 49 CFR 1155.3(a), a

carrier giving notice of intent to

discontinue service shall submit an

‘‘Estimate of Subsidy Payment’’ to, inter

alia, RSPO. Under 49 CFR 1155.4(c), a

party desiring an interpretation of the

standards can file a petition with RSPO.

Under § 1155.9, if the parties cannot

agree on issues of net liquidation value

or whether properties are used and

useful, they can select a mutually

acceptable arbitrator to arbitrate the

dispute. If they cannot agree on an

arbitrator, either party may submit the

matter to the American Arbitration

Association. The ICC was not directly

involved in reviewing disputes.

Subsequent Legislation

Congress amended portions of the 3R

Act and also added new sections when

it enacted the Railroad Revitalization

and Regulatory Reform Act of 1976 (4R

Act), Pub. L. 94–210, 90 Stat. 127. As

relevant to this proceeding, the 4R Act

made two significant changes: it enacted

designated operator provisions and it

enacted OFA provisions.

First, the 4R Act amended the 3R Act

by adding a new section 45 U.S.C.

744(d), which specified that a

‘‘designated operator’’ would be the rail

carrier conducting operations when a

subsidizer guaranteed payment. The

subsidy payment was now defined as:

The difference between the revenue

attributable to such properties and the

avoidable costs of providing service on such

rail properties, together with a reasonable

management fee as determined by the Office.

(Emphasis supplied.)

Consequently, section 205(d)(6) of the

4R Act also directed RSPO to determine

the term ‘‘reasonable management fee.’’ 8

RSPO revised the regulations now found

at 49 CFR 1155 on January 11, 1978, to

define reasonable management fee. 43

FR 1692.

The second change under the 4R Act

allowed an abandonment to be

postponed for up to 6 months if a

financially responsible person offered to

purchase or subsidize the line. Section

802. In essence, the regional subsidy

provision of 45 U.S.C. 744 was

expanded to apply to all carriers. This

provision was originally codified at 49

U.S.C. 1a(6)(a) and subsequently

recodified without substantive change at

49 U.S.C. 10905.9 See Hayfield Northern

R. Co., Inc v. Chicago and North

Western Transp. Co., 467 U.S. 622, 628–

29 (1984) (Hayfield Northern).

To implement these 4R Act

provisions, the ICC and RSPO instituted

a proceeding on a joint basis. In

November 1976, the ICC promulgated

regulations and issued an explanatory

decision. Abandonment of R. Lines &

Discontinuance of Serv., 354 I.C.C. 253

(1976) and 354 I.C.C. 129 (1976). These

regulations were predicated on the part

1155 regulations, although, due to

factual and statutory differences, there

were certain variations.10 The financial

assistance procedures were originally

issued at 49 CFR 1121.38 and 1121,
42736 Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Proposed Rules

11 The 4R Act made other changes that, although

not related to this proceeding, do concern a current

Board proceeding with similar issues. Section 309

of the 4R Act amended section 205(d) of the 3R Act

to require RSPO to develop standards for the

computation of subsidies for the continuation of rail

commuter services. RSPO issued the regulations on

August 3, 1976, 41 FR 32546. These standards are

now found at 49 CFR part 1157, subpart A (subsidy

standards). By notice of proposed rulemaking

served and published in the Federal Register on

June 12, 1997 (62 FR 32068) in Commuter Rail

Service Continuation Subsidies and Discontinuance

Notices, STB Ex Parte No. 563, the Board proposed

to remove from the Code of Federal Regulations the

regulations at 49 CFR part 1157 concerning subsidy

standards and also notices of the discontinuance of

commuter rail service (subpart B).

12 The Staggers Act modifications to section

10905 were designed to ‘‘assist shippers who are

sincerely interested in improving rail service, while

. . . protecting carriers from protracted legal

proceedings which are calculated merely to

tediously extend the abandonment process.’’ H.R.

Conf. Rep. No. 96–1430, p. 125, (1980), U.S. Code

Cong. & Admin. News. 1980, pp. 3978, 4157. See

Hayfield Northern at 630, n. 8.

13 Under section 10904, there are changes in time

limits and the way OFAs are handled. However,

when the Board is requested to establish the

amount of a subsidy, the amount of compensation

is ‘‘the difference between the revenues attributable

to that part of the railroad line and the avoidable

cost of providing rail freight transportation on the

line, plus a reasonable return on the value of the

line.’’ 49 U.S.C. 10904(f)(1)(C).

14 Under the regulations, that now-abolished

office has continuing responsibilities (issuing

interpretations, receiving estimates of subsidy

payments).

15 Section 744(d)(1) states that the terms

‘‘revenue attributable,’’ ‘‘avoidable costs,’’ and

‘‘reasonable management fee’’ are to be determined

by ‘‘the Office,’’ defined at 45 U.S.C. 702(12) as

RSPO.

16 Prior to the promulgation of its OFA

regulations, the ICC issued a notice of interim

procedures for handling abandonment and

discontinuance cases. It stated that it would ‘‘adopt

the same conceptual approach developed by (RSPO)

in connection with the regional subsidy program

authorized by the (3R Act) for the purposes of

issuing the subsidy payment.’’ Chicago and North

Western Transp. Co.-Abandonment, 348 I.C.C. 445,

454 (1976). The ICC noted that there were statutory

differences in two programs pertaining ‘‘to the

exclusion of a management fee in the national

program, the inclusion of certain additional

costs. . ., and the basis upon which a reasonable

return is to be calculated.’’ Id.

17 The court noted (Id. at 1323, n.2) the following

consummation dates: Erie Lackawanna, Inc.

(November 30, 1982); Reading Co. (December 31,

1980); Penn Central Transportation Co. (October 24,

1978); Lehigh Valley Railroad Co. (September 1,

1982); and the Central of New Jersey (September 14,

1979).

18 There is currently pending before the Board a

proceeding in which relief is sought under 49 CFR

Part 1155. RailAmerica, Inc., and the Delaware

Valley Railway Company, Petition to Set Subsidy

Terms Under 45 U.S.C. 744(c) and 49 CFR part

1155, STB Finance Docket No. 33285. In response

to the petition, the Reading Company claims that

the Board has no authority to set a subsidy because

the Reading Company is not a ‘‘railroad in

reorganization.’’

subpart D, and are now found at 49 CFR

1152.27 and 1152, subpart D.11

The Staggers Rail Act of 1980, Pub. L.

No. 96–448, 94 Stat. 1895, further

revised section 10905. Section 402. The

6-month negotiating period was

shortened and when a carrier and

shipper could not agree to terms, the

ICC would set, and the carrier was

bound by, the purchase or subsidy

price. Hayfield Northern at 630–31.12

The ICCTA was the final legislative

action applicable to these regulations.

There was no change to 45 U.S.C.

744(c). The changes to section 744(d) do

not affect part 1155. The RSPO

statutes—49 U.S.C. 10361–64—were

repealed. Former 49 U.S.C. 10905 was

changed and is now found at 49 U.S.C.

10904, but the changes there do not

affect our analysis.13

Discussion and Conclusions

We are reexamining part 1155 because

of the changes made by the ICCTA, the

availability of our national subsidy

standards, and the likelihood that few

situations fall within the regional

subsidy framework. We propose to

remove these regulations.

As indicated, 45 U.S.C. 744 (c) and

(d), which pertain to the subsidies for

the continuation of rail freight service,

have not been repealed. Nevertheless,

the regulations at part 1155

implementing the statute were issued by

an office (RSPO) that has been abolished

by the ICCTA.14 Further complicating

matters is the fact that under 45 U.S.C.

744(d)(1), the defunct RSPO is to

determine the terms a subsidizer is to

pay a designated operator.15 Moreover,

under 45 U.S.C. 744(d)(2), the term

reasonable return on value is to be

developed according to the standards of

205(d)(6) of the 3R Act, which, as noted,

was codified at the now repealed RSPO

statute, 49 U.S.C. 10362.

We also question the need for two sets

of subsidy regulations given the

similarities between the regional and

national standards.16 Given that the role

of the ICC in part 1155 was passive

(RSPO was to issue interpretations of its

standards and the parties were to

arbitrate certain disputes), using the

OFA standards for guidance in any

regional subsidy situations that might

arise may be sufficient. We seek

comments as to whether this is in fact

the case and the regional subsidy

standards can be eliminated in light of

the national standards, whether parts of

the regional subsidy standards should

be transferred to the national standards

to the extent that they are still pertinent,

or whether the regional subsidy

standards should be maintained as

currently codified.

Finally, there may be little, if any,

need for the regulations. Under 45

U.S.C. 744(a)(1) and (c)(1), the regional

subsidy program applies to a ‘‘rail

service on rail properties of a railroad in

reorganization’’ and is not available

‘‘after 2 years from the effective date of

the [Plan] or more than 2 years after the

last rail service continuation payment is

received, whichever is later. * * *’’ We

question whether there are any railroads

in reorganization as defined by the

statute. In Consolidated Rail Corp. v.

Reading Co., 654 F. Supp. 1318, 1323

(Sp. Ct. RRRA 1987), a case involving

personal injury suits under the Federal

Employer’s Liability Act, the court

stated that certain predecessor railroads

of Conrail were not railroads in

reorganization because they were no

longer ‘‘subject to a bankruptcy

proceeding.’’ These carriers had

undergone reorganization, final

consummation orders had been entered,

and the carriers had been discharged in

bankruptcy.17

If, on the other hand, there are still

railroads in reorganization, or if the

focus of section 744 is rail service and

rail property, and not the status of the

entity owning the property, we must

still determine whether a regional

subsidy qualifies under section 744(c).

Because more than 20 years have passed

since the effective date of the Plan, the

issue also becomes whether any rail

service continuation payments are still

in effect or have expired within the last

2 years. As there might be some carriers

in this situation, we seek comment on

this issue.18

The Board preliminarily concludes

that the proposed removal of the rules,

if adopted, would not have a significant

effect on a substantial number of small

entities. The rules removal may be

necessary in light of the ICCTA.

Moreover, it appears that these rules do

not apply to many (if any) situations

and that there are other regulations

which may be useful to potential parties

interested in subsidizing the

continuation of rail service. The Board,

however, seeks comments on whether

there would be effects on small entities

that should be considered.

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

List of Subjects in 49 CFR Part 1155

Railroads, Uniform System of

Accounts.

Decided: July 29, 1997.
Federal Register / Vol. 62, No. 153 / Friday, August 8, 1997 / Proposed Rules 42737

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

PART 1155 [REMOVED]

For the reasons set forth in the

preamble and under the authority of 49

U.S.C. 721(a), title 49, chapter X of the

Code of Federal Regulations is proposed

to be amended by removing part 1155.

[FR Doc. 97–20993 Filed 8–7–97; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 970725179–7179–01; I.D.

071497A]

RIN 0648–AK33

Taking and Importing Marine

Mammals; Taking Ringed Seals

Incidental to On-Ice Seismic Activities

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Advance notice of proposed

rulemaking; receipt of a petition for

regulations and an application for a

small take exemption; request for

comment and information.

SUMMARY: NMFS has received an

application for renewal of a small take

exemption and implementing

regulations from BP Exploration

(Alaska) (BPXA), on behalf of itself and

several other oil exploration companies,

for a small take of marine mammals

incidental to winter seismic operations

in the Beaufort Sea, Alaska. As a result

of that application, NMFS is considering

whether to propose regulations that

would renew an authorization for the

incidental taking of a small number of

marine mammals. In order to decide

whether to promulgate these

regulations, NMFS must determine that

the takings will have a negligible impact

on the affected species and stocks of

marine mammals. NMFS invites

comment on the application and

suggestions on the structure and content

of regulations, if the application is

accepted.

DATES: Comments and information must

be postmarked no later than September

8, 1997.

ADDRESSES: Comments should be

addressed to Chief, Marine Mammal

Division, Office of Protected Resources,

NMFS, 1315 East-West Highway, Silver

Spring, MD 20910–3226. A copy of the

application may be obtained by writing

to the above address, or by telephoning

one of the persons below (see FOR

FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead (301) 713–

2055 or Brad Smith, Western Alaska

Field Office, NMFS, (907) 271–5006.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Marine

Mammal Protection Act (16 U.S.C. 1361

et seq.) (MMPA) directs the Secretary of

Commerce (Secretary) to allow, upon

request, the incidental, but not

intentional, taking of marine mammals

by U.S. citizens who engage in a

specified activity (other than

commercial fishing) within a specified

geographical region if certain findings

are made and regulations are issued.

Permission may be granted for periods

of 5 years or less if the Secretary finds

that the taking will have a negligible

impact on the species or stock(s), will

not have an unmitigable adverse impact

on the availability of the species or

stock(s) for subsistence uses, and

regulations are prescribed setting forth

the permissible methods of taking and

the requirements pertaining to the

monitoring and reporting of such taking.

Summary of Application

On July 11, 1997, NMFS received an

application for an incidental, small take

exemption under section 101(a)(5)(A) of

the MMPA from BPXA, on behalf of

itself, ARCO Alaska, Inc., Northern

Geophysical of America, Inc. and

Western Geophysical Co. to renew the

incidental take regulations found in 50

CFR part 216, subpart J, that govern the

taking of ringed seals (Phoca hispida)

incidental to seismic activities on the

ice, offshore Alaska, for a period of 5

years. The applicants state that these

activities are not likely to result in

physical injuries to, and/or death of, any

individual seals. Because seals are

expected to avoid the immediate area

around seismic operations, they are not

expected to be subject to potential

hearing damage from exposure to

underwater or in-air sounds from the

operations. Any takings of ringed seals

are anticipated to result from short-term

disturbance by noise and physical

activity associated with the seismic

operations.

The scope of the petition is limited to

pre-lease and post-lease seismic

exploration activities in state waters and

the Outer Continental Shelf in the

Beaufort Sea, offshore Alaska, during

the ice-covered seasons. Operations are

usually confined to January through

May. These seismic surveys will be

conducted using two types of energy

sources: (1) Vibroseis, which uses large

trucks with vibrators mounted on them,

that systematically put variable

frequency energy into the earth and (2)

waterguns or airguns carried by a sleigh

or other vehicle. Over the next 5-year

period, the applicants expect that on-ice

seismic activity will cover

approximately 22,500 line miles (4,500

line miles/year). This compares to

13,247 line miles in the aggegate, during

the past 5-year period.

Information Solicited

NMFS requests interested persons to

submit comments, information, and

suggestions concerning the application

for a small take exemption and the

structure and content of regulations if

the application is accepted. NMFS will

consider this information in

determining whether to accept the

application and, if so, in developing

proposed regulations to authorize the

taking. If NMFS proposes regulations to

allow this take, interested parties will be

given ample time and opportunity to

comment.

Dated: August 4, 1997.

Patricia A. Montanio,

Deputy Director, Office of Protected

Resources, National Marine Fisheries Service.

[FR Doc. 97–20926 Filed 8-7-97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[I.D. 073197B]

New England Fishery Management

Council; Public Meeting

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Public meeting.

SUMMARY: The New England Fishery

Management Council (Council) will

hold a 2-day public meeting to consider

actions affecting New England fisheries

in the exclusive economic zone.

DATES: The meeting will be held on

Wednesday, August 20, 1997, at 10 a.m.,

and on Thursday, August 21, 1997, at

8:30 a.m.

ADDRESSES: The meeting will be held at

the Colonial Hilton, 427 Walnut Street