47584 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Rules and Regulations

the labor unions with employees on the

affected line(s), setting forth the types

and numbers of jobs expected to be

available, the terms of employment and

principles of employee selection, and

the lines that are to be transferred.

PART 1150—CERTIFICATE TO

CONSTRUCT, ACQUIRE, OR OPERATE

RAILROAD LINES

3. The authority citation for part 1150

continues to read as follows:

Authority: 5 U.S.C. 553 and 559; 49 U.S.C.

721(a), 10502, 10901 and 10902.

4. Section 1150.32 is amended by

adding a new paragraph (e) to read as

follows:

§ 1150.32 Procedures and relevant dates—

transactions that involve creation of Class

III carriers.

* * * * *

(e) If the projected annual revenue of

the carrier to be created by a transaction

under this exemption exceeds $5

million, applicant must, at least 60 days

before the exemption becomes effective,

post a notice of intent to undertake the

proposed transaction at the workplace

of the employees on the affected line(s)

and serve a copy of the notice on the

national offices of the labor unions with

employees on the affected line(s),

setting forth the types and numbers of

jobs expected to be available, the terms

of employment and principles of

employee selection, and the lines that

are to be transferred, and certify to the

Board that it has done so.

5. Section 1150.35 is amended by

revising paragraph (a) to read as follows:

§ 1150.35 Procedures and relevant dates—

transactions that involve creation of Class

I or Class II carriers.

(a) To qualify for this exemption,

applicant must serve a notice of intent

to file a notice of exemption no later

than 14 days before the notice of

exemption is filed with the Board, and

applicant must comply with the notice

requirement of § 1150.32(e).

* * * * *

6. Section 1150.42 is amended by

adding a new paragraph (e) to read as

follows:

§ 1150.42 Procedures and relevant dates

for small line acquisitions.

* * * * *

(e) If the projected annual revenue of

the rail lines to be acquired or operated,

together with the acquiring carrier’s

projected annual revenue, exceeds $5

million, the applicant must, at least 60

days before the exemption becomes

effective, post a notice of applicant’s

intent to undertake the proposed

transaction at the workplace of the

employees on the affected line(s) and

serve a copy of the notice on the

national offices of the labor unions with

employees on the affected line(s),

setting forth the types and numbers of

jobs expected to be available, the terms

of employment and principles of

employee selection, and the lines that

are to be transferred, and certify to the

Board that it has done so.

7. Section 1150.45 is amended by

revising paragraph (a) to read as follows:

§ 1150.45 Procedures and relevant datestransactions under section 10902 that

involve creation of Class I or Class II rail

carriers.

(a) To qualify for this exemption,

applicant must serve a notice of intent

to file a notice of exemption no later

than 14 days before the notice of

exemption is filed with the Board, and

applicant must comply with the notice

requirement of § 1150.42(e).

* * * * *

[FR Doc. 97–23827 Filed 9–9–97; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 600

[Docket No. 970527125–7219–02; I.D.

032797B]

RIN 0648–AJ95

Magnuson Act Provisions;

Appointment of Regional Fishery

Management Council Members

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

amend the regulations governing the

nomination and appointment of

members of regional fishery

management councils to establish the

procedures applicable to the nomination

and appointment to the Pacific Fishery

Management Council of a representative

of an Indian tribe with federally

recognized fishing rights from

California, Oregon, Washington, or

Idaho. The purpose of this rule is to

implement certain sections of the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act) as amended by

the Sustainable Fisheries Act (SFA)

which require such an appointment.

EFFECTIVE DATE: September 5, 1997.

ADDRESSES: Comments on the collection

of information aspects of this rule

should be sent to Mr. William Stelle, Jr.,

Administrator, Northwest Region,

NMFS, 76000 Sand Point Way, BIN

C15700, Seattle, WA 98115–0070; or to

Mr. William Hogarth, Acting

Administrator, Southwest Region,

NMFS, 501 West Ocean Boulevard,

Suite 4200, Long Beach, CA 90802–

4213.

FOR FURTHER INFORMATION CONTACT:

William L. Robinson at 206–526–6142

or Rodney McInnis at 562–980–4040.

SUPPLEMENTARY INFORMATION: On

October 11, 1996, President Clinton

signed into law the Sustainable

Fisheries Act, which, in pertinent part,

amended the Magnuson-Stevens Act to

add a seat on the Pacific Fishery

Management Council (Pacific Council)

exclusively for a representative of an

Indian tribe with federally recognized

fishing rights:

The Secretary shall appoint to the Pacific

Council one representative of an Indian tribe

with Federally recognized fishing rights from

California, Oregon, Washington, or Idaho

from a list of not less than 3 individuals

submitted by the tribal governments. The

Secretary, in consultation with the Secretary

of the Interior and tribal governments, shall

establish by regulation the procedure for

submitting a list under this subparagraph

(section 302(b)(5)(A)).

Sections 302(b)(5)(B)(i), (ii), and (iii)

of the Magnuson-Stevens Act require

that representation be rotated among the

tribes taking into consideration the

qualifications of the individuals on the

list, the various rights of the Indian

tribes involved and judicial cases that

set out how those rights are to be

exercised, and the geographic area in

which the tribe of the representative is

located.

NMFS published a proposed rule to

implement these provisions of the

Magnuson-Stevens Act with a 30-day

comment period on July 1, 1997 (62 FR

35468). The comment period was

subsequently extended through August

11, 1997, at the request of the Quileute

Tribal Council.

As in the proposed rule, the final rule

requires the Secretary of Commerce

(Secretary) to consult with the Bureau of

Indian Affairs (BIA), Department of the

Interior, to determine from which

Indian tribes to solicit nominations for

the Council seat. By statute, NMFS must

solicit nominees from those Indian

tribes with federally recognized fishing

rights from California, Oregon,

Washington, or Idaho. The rule requires

the Secretary to solicit written

nominations from each tribal

government and produce a list of not

less than three individuals who are
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Rules and Regulations 47585

knowledgeable and experienced

regarding the fishery resources affected

by the recommendations of the Pacific

Council. The Secretary will appoint one

individual from this list to the Pacific

Council for a term of 3 years. Under the

rule, prior service on the Council in a

different capacity will not disqualify a

nominee proposed by a tribal

government. Also, if any tribal

representative appointed to the Council

vacates the Council seat prior to the

expiration of any term, the Secretary

may appoint a replacement for the

remainder of the vacant term from the

original list of nominees or may solicit

a new set of nominees following the

process described above. Under the rule,

no tribal representative may serve more

than three consecutive terms in the

Indian tribal seat.

The rule requires the Secretary to

rotate the appointment of a tribal

representative to the Pacific Council

among the tribes, taking into

consideration the qualifications of the

individuals nominated, the various

rights of the Indian tribes involved and

judicial cases that set out how those

rights are to be exercised, and the

geographic area in which the tribe of the

representative is located.

Comments and Responses

NMFS received five letters from tribal

organizations commenting on the

proposed rule. Two letters were

received from the Quileute Tribal

Council and one letter each from the

Hoh Tribe, the Quinault Indian Nation

and the Columbia River Inter-Tribal

Fish Commission (CRITFC) representing

the four Columbia River Treaty Tribes

(Yakama, Warm Springs, Umatilla and

Nez Perce). These comments and NMFS’

responses are summarized below.

Comment 1: NMFS did not adequately

consult with tribal governments, as

required by the Magnuson-Stevens Act,

before preparing the proposed rule. The

CRITFC suggested that final regulations

not be implemented until that

deficiency is cured by NMFS.

Response: NMFS needed to act

quickly to implement procedures to

appoint a tribal member to the Council

in order to have a tribal representative

appointed and seated on the Council for

the very important September and

November 1997 Council meetings. At

these Council meetings, decisions will

be made regarding harvestable amounts

of Pacific groundfish that will directly

affect tribal harvests. NMFS staff

consulted informally with the staffs of

the CRITFC, Northwest Indian Fisheries

Commission (NWIFC), and the Yurok

and Hoopa Valley Tribes prior to

publication of the proposed rule. NMFS

did not formally send the proposed rule

to each individual tribal government

until after the rule was published for

public comment. After the rule was

published, it was sent to each

individual tribal government to solicit

comment during the comment period.

At the request of the Quileute Tribe, the

comment period was extended until

August 11, 1997, to provide additional

time for tribal governments to comment.

NMFS is publishing the final rule

without further delay in order to

implement the new provisions for the

appointment of a tribal member to the

Council before the September Pacific

Council meeting.

Comment 2: Both the CRITFC and

Quileute Tribal Council commented that

the appointment of a tribal member to

the Council should be rotated among the

three tribal regions (U.S. v. Washington

tribes, the Columbia River-U.S. v.

Oregon and Idaho tribes, and the

California tribes). The Quileute stated

that the Secretary ‘‘shall’’ rotate the

appointment every three years, and

proposed that no tribal representative

may serve more than one term. CRITFC

commented only that it was their

expectation that the ‘‘appointments

would rotate among the three Regions.’’

The Quinault opposed the required

rotation among the three areas every

three years and the one-term limit.

Response: The Magnuson-Stevens

Act, section 302(b)(5)(B), states only that

‘‘Representation shall be rotated among

the tribes taking into consideration—(i)

the qualifications of the individuals on

the list referred to in subparagraph (A),

(ii) the various rights of the Indian tribes

involved and judicial cases that set forth

how those rights are to be exercised, and

(iii) the geographic area in which the

tribe of the representative is located.’’

Although not specifically identifying

the areas/regions or tribes among which

the appointment shall be rotated, the

statute provides the Secretary with the

discretion to rotate the appointment

among the three regions identified by

the two commentators. In addition, as

pointed out by the Quinault Indian

Nation, requiring rotation of the Council

seat each 3 years and limiting the tribal

representative to one term appears

inconsistent with the provision of the

Act that limits the number of times a

single individual can hold a Council

seat to three consecutive terms. The

three term limitation implicitly

recognizes the value of experience

gained by longer term service. In

addition, the statute lists two additional

criteria the Secretary must take into

account when rotating the seat: The

qualifications of the nominees and the

rights of the tribes. Therefore, the

regulations use the plain language of the

statute in the belief that Congress

wanted the Secretary to have some

discretion in rotating the appointments

consistent with the guidance contained

in the statute. If Congress had intended

the appointment to rotate among three

specific regions without exception, the

statutory language would have been

more specific. Comment 3: Both the

CRITFC and the Quileute Tribal Council

proposed modification of the NMFSproposed process for appointing a tribal

member to the Council. This

modification would add an additional

step to the process where, after NMFS

has solicited initial nominations from

each individual tribal government,

NMFS would send the list of nominees

back to each tribal government so that

the tribes could select a preferred

nominee from each of the three regions.

The Quileute proposal suggested that

each tribe would vote for one of the

nominees in its area. The Secretary

would be required to make the Council

appointment from a list of the three

nominees with the most votes from each

area. The nominees with the most votes

from the other two areas would serve as

alternates. The CRITFC proposal was

similar to the Quileute proposal but not

as detailed. CRITFC suggested the same

process by which NMFS would return

the list of nominees to the tribal

governments for them to choose a

preferred nominee from each area, but

CRITFC would expect the Secretary to

‘‘defer to the tribes in each respective

area where there is a consensus on their

nominee.’’ CRITFC also suggested that

the BIA should provide to the NMFS a

list of tribes with federally recognized

rights and contacts at that tribe, and that

the list be provided to each tribe on the

list.

Response: NMFS believes the idea of

providing the list of nominees to the

affected Indian tribes is worth further

consideration and intends to consult

further with the tribes regarding a

process by which all of the affected

Indian tribes might have an opportunity

to comment on the list of nominees.

NMFS notes, however, that the tribes

have the ability to consult among

themselves primarily through the InterTribal fish commissions (Northwest

Indian Fish Commission and CRITFC) at

the time that nominations are initially

solicited. Thus, the tribes from each area

initially could coordinate the

nomination of a single individual

without the need for coordination

through NMFS. While NMFS believes

this is a suggestion worth exploring for

the long term, its consideration should

not hold up the promulgation of a final
47586 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Rules and Regulations

rule governing the appointment for the

upcoming term while NMFS further

explores this proposal. Consequently,

NMFS is adopting the process as

proposed in the proposed rule but will

formally consult with each Indian tribe

with federally recognized fishing rights,

from which nominations were initially

solicited, regarding the consultation

process proposed by the Quileute and

CRITFC. If, after consultation with all of

the tribes, NMFS determines that a

different process should be adopted for

the future, NMFS will amend this

regulation. Regardless of what process is

selected for consulting with the tribes,

NMFS cannot adopt a rule whereby the

Secretary would be bound by a vote

among the tribes, as suggested by the

Quileute comments. Such a rule would

eliminate the Secretary’s discretion in

making appointments and the

Secretary’s ability to take into account

the statutory criteria discussed above in

response to comment 2. The Secretary

will, however, take into account the

breadth of support from other tribes

when selecting the tribal Council

member.

Comment 4: The Quileute, the Hoh,

and CRITFC all suggested that the

regulations should provide for regional

‘‘alternates’’ or ‘‘designees.’’ The

designees would be allowed to occupy

the Council seat and vote on matters

primarily affecting the region that they

represent. The Quinault agreed this was

a good idea, but acknowledged the

statute probably does not permit this.

Response: The Magnuson-Stevens Act

includes as voting members of Council

the state director or designee and the

NMFS Regional Director or designee.

For all other council members, the

statute does not authorize voting by

designees. Without statutory

authorization NMFS cannot provide the

ability for ‘‘designees’’ to vote.

Comment 5: The Quileute Tribe

commented that prior service by a tribal

member who has served three

consecutive terms on the Council, in a

position where the tribal member was

nominated by a State Governor to fill

one of the State Council seats, should

disqualify the individual for

appointment to the Tribal Council seat.

The Quinault Indian Nation commented

that the three-term prohibition applies

to three terms in the same Council seat

and that the proposed rule correctly

interprets the SFA.

Response: NMFS agrees with the

Quinault Indian Nation comment. In the

proposed rule NMFS states that prior

service will not disqualify a nominee

proposed by a tribal government from

serving in the newly-created tribal seat.

Thus, the three-term consecutive limit

prohibition applies to service time in

the new Council seat that Congress

established specifically to represent

tribal governments. Prior service in a

state governor-nominated Council seat

does not disqualify a tribal

government’s nominee for the newly

established tribal Council seat.

Classification

Since this rule is procedural or

interpretative in its entirety, under 5

U.S.C. 553(d) it is not subject to a 30-

day delay in effectiveness date.

This final rule has been determined to

be not significant for purposes of E.O.

12866.

Because prior notice and opportunity

for public comment is not required for

this rule by 5 U.S.C. 553 or by any other

law, under 5 U.S.C. 603(a) and 604(a)

this rule is not subject to the analytical

requirements of the Regulatory

Flexibility Act.

This rule contains a collection-ofinformation requirement subject to the

Paperwork Reduction Act (PRA). The

reporting burden for Indian tribal

government nominations for the Council

appointments is estimated to average

120 hours per response, including the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection-of-information.

Notwithstanding any other provision

of the law, no person is required to

respond to, nor shall any person be

subject to a penalty for failure to comply

with, a collection-of-information subject

to the PRA, unless that collection-ofinformation displays a currently valid

OMB control number. The collection of

this information has been approved by

the OMB under Control Number 0648–

0314. Send comments on the collection

of information aspects of this rule to the

NMFS Northwest or Southwest Regional

Administrators (see ADDRESSES) or to

OMB at the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Washington,

DC 20503 (Attention: NOAA Desk

Officer).

List of Subjects in 50 CFR Part 600

Administrative practice and

procedure, Fisheries, Fishing,

Intergovernmental relations.

Dated: September 4, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 600 is amended

as follows:

PART 600—MAGNUSON ACT

PROVISIONS

1. The authority citation for part 600

continues to read as follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801

et seq.

2. In § 600.215, the introductory text

is removed, paragraphs (a) through (g)

are redesignated as paragraphs (a)(1)

through (a)(7) respectively, paragraphs

(c)(1) through (c)(6) are redesignated as

paragraphs (a)(3)(i) through (a)(3)(vi)

respectively, paragraphs (f)(1) and (f)(2)

are redesignated (a)(6)(i) and (a)(6)(ii)

respectively, paragraphs (g)(1) through

(g)(6) are redesignated (a)(7)(i) through

(a)(7)(vi) respectively, and paragraphs

(a) introductory text and (b) are added

to read as follows:

§ 600.215 Appointments.

(a) Members appointed from

Governors’ lists. This paragraph applies

to council members selected by the

Secretary from lists submitted by

Governors pursuant to section

302(b)(2)(C) of the Magnuson-Stevens

Act.

* * * * *

(b) Tribal Member. This paragraph

applies to the selection of the Pacific

Fishery Management Council’s tribal

member as required by section 302(b)(5)

of the Magnuson-Stevens Act.

(1) The Secretary shall appoint to the

Pacific Fishery Management Council

one representative of an Indian tribe

with federally recognized fishing rights

from California, Oregon, Washington, or

Idaho from a list of not less than three

individuals submitted by the tribal

Governments.

(2) The Secretary shall solicit

nominations of individuals for the list

referred to in paragraph (b)(1) of this

section only from those Indian tribes

with federally recognized fishing rights

from California, Oregon, Washington, or

Idaho. The Secretary will consult with

the Bureau of Indian Affairs,

Department of the Interior, to determine

which Indian tribes may submit

nominations.

(3) To assist in assessing the

qualifications of each nominee, each

tribal government must furnish to the

NMFS Office of Sustainable Fisheries a

current resume, or equivalent,

describing the nominee’s qualifications

with emphasis on knowledge and

experience related to the fishery

resources affected by recommendations

of the Pacific Council. Prior service on

the Council in a different capacity will

not disqualify nominees proposed by

tribal governments.

(4) Nominations must be provided to

NMFS by March 15 of the year in which
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Rules and Regulations 47587

the term of the current tribal member

expires.

(5) The Secretary shall rotate the

appointment among the tribes taking

into consideration:

(i) The qualifications of the

individuals on the list referred to in

paragraph (b)(1) of this section.

(ii) The various rights of the Indian

tribes involved and judicial cases that

set out how those rights are to be

exercised.

(iii) The geographic area in which the

tribe of the representative is located.

(iv) No tribal representative shall

serve more than three consecutive terms

in the Indian tribal seat.

(6) Any vacancy occurring prior to the

expiration of any term shall be filled in

the same manner as described above

except that the Secretary may use the

list referred to in paragraph (b)(1) of this

section from which the vacating

member was chosen.

* * * * *

[FR Doc. 97–23940 Filed 9–5–97; 10:40 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket Number; 970903221–7221–01; I.D.

081297C]

RIN 0648–XX89

Fisheries off West Coast States and in

the Western Pacific; Precious Corals

Fisheries; Technical Amendment

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Correcting amendment.

SUMMARY: This document contains a

correction to the regulations

implementing the Fishery Management

Plan for Precious Corals Fisheries of the

Western Pacific Region (FMP) which

were published in the Federal Register

on July 2, 1996. This amendment

corrects the coordinates for the location

of the Makapuu bed of precious corals

appearing under the category of

‘‘Established beds’’ in the definition of

‘‘Precious coral permit area’’.

DATES: Effective September 10, 1997.

FOR FURTHER INFORMATION CONTACT:

Svein Fougner, 562–980–4034; or Alvin

Katekaru, 808–973–2985.

SUPPLEMENTARY INFORMATION: In the

original FMP the coordinates for the

center of the Makapuu bed contained a

typographical error. Instead of the

longitude being listed as 157° 32.5’ W.

it was incorrectly listed as 157° 35.5’ W.

longitude. This error placed the location

of the bed approximately three miles

away from its actual location.

There has been almost no fishing

under the FMP since its

implementation, and this error was only

recently discovered. This technical

amendment corrects the regulations

implementing the FMP (August 30,

1983, 48 FR 3923; consolidated by July

2, 1996, 61 FR 34570) to list the

coordinates for the center of the

Makapuu bed.

Classification

The Assistant Administrator for

Fisheries, NOAA (AA), under 5 U.S.C.

553(b)(B) finds that providing prior

notice and an opportunity for public

comment on this rule is unnecessary,

because the rule merely corrects

coordinates for the location of a

resource, and such notice and

opportunity for comment would serve

no useful purpose. Similarly, the AA,

under 5 U.S.C. 553 (d)(3) finds that

delaying the effective date of the

correction for 30 days is unnecessary

because the location of the bed is fixed.

Because prior notice and opportunity

for public comment are not required for

this rule by 5 U.S.C. 553, or by any other

law, the analytical requirements of the

Regulatory Flexibility Act, 5 U.S.C. 601

et seq., are inapplicable. This rule is

exempt from review under E.O. 12866.

List of Subjects in 50 CFR Part 660

Fisheries, Fishing, Indians, Reporting

and recordkeeping requirements,

Administrative practice and procedure,

American Samoa, Guam, Hawaiian

Natives, Northern Mariana Islands.

Dated: September 4, 1997.

David L. Evans,

Deputy Assistant Administrator for

Fisheries,National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR Part 660 is amended

as follows:

PART 660—FISHERIES OFF WEST

COAST STATES AND THE WESTERN

PACIFIC

1. The authority citation for part 660

continues to read as follows:

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

2. In § 660.12, the category for’’

Established beds ‘‘under the definition

of ‘‘Precious coral permit area‘‘ is

corrected by revising the coordinates of

the point specified therein to read ‘‘21°

18.0’ N. lat, 157° 32.5’ W. long.’’

[FR Doc. 97–23941 Filed 9-9-97; 8:45 am]

BILLING CODE 3510–22–F