Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 63467

documented facts by the railroad

representative responding to the scene.

* * * * *

7. In section 219.203, paragraph (d)(2)

is amended by revising the first

sentence to read as follows:

§ 219.203 Responsibilities of railroads and

employees.

* * * * *

(d) * * *

(2) If an injured employee is

unconscious or otherwise unable to

evidence consent to the procedure and

the treating medical facility declines to

obtain blood samples after having been

acquainted with the requirements of this

subpart, the railroad shall immediately

notify the duty officer at the National

Response Center (NRC) at (800) 424–

8802, and FRA at (202) 632–3378,

stating the employee’s name, the

medical facility, its location, the name

of the appropriate decisional authority

at the medical facility, and the

telephone number at which that person

can be reached. * * *

* * * * *

§ 219.205 [Amended]

8. In section 219.205, paragraph (c)(1)

is amended by removing the last

sentence.

9. In section 219.207, paragraph (b) is

revised as follows:

§ 219.207 Fatality.

* * * * *

(b) If the local authority or custodian

of the remains declines to cooperate in

obtaining the necessary samples, the

railroad shall immediately notify the

duty officer at the National Response

Center (NRC) at (800) 424–8802 and

FRA at (202) 632–3378 by providing the

following information:

(1) Date and location of the accident

or incident;

(2) Railroad;

(3) Name of the deceased;

(4) Name and telephone number of

custodian of the remains; and

(5) Name and telephone number of

local authority contacted.

* * * * *

10. Section 219.207(d) is amended by

removing the phrase ‘‘and/or’’ and

adding in its place the word ‘‘and.’’

11. In § 219.209, paragraph (a)(1) is

amended by revising the second

sentence as follows:

§ 219.209 Reports of tests and refusals.

(a)(1) * * * Notification shall

immediately be provided to the duty

officer at the National Response Center

(NRC) at (800) 424–8802 and to the

Office of Safety, FRA, at (202) 632–3378.

* * * * *

§ 219.303 [Amended]

12. Section 219.303 is amended by

removing and reserving paragraphs (c)

through (e).

§ 219.601 [Amended]

13. In § 219.601, paragraph (b)(2)(i) is

amended by replacing the semi-colon

with a period, paragraph (b)(2)(ii) is

removed and reserved; and paragraph

(b)(2)(iii) is removed.

§ 219.603 [Corrected]

14. In § 219.603, ‘‘§ 210.102’’ is

corrected to read ‘‘§ 219.102’’.

§ 219.703 [Amended]

15. Section 219.703 is amended by

removing paragraph (d).

§ 219.709 [Removed]

16. Section 219.709 is removed and

reserved.

§ 219.803 [Amended]

17. Section 219.803(a) is amended by

removing the phrase ‘‘with more than

400,000’’ and adding the phrase ‘‘that

has 400,000 or more’’ in its place.

Appendix—B to Part 219 [Amended]

18. In Appendix B—Designation of

Laboratory for Post-Accident

Toxicological Testing, the corporate

name, address, and telephone number of

the designated laboratory is revised to

read as follows:

Appendix—B to Part 219—Designation

of Laboratory for Post-Accident

Toxicological Testing

* * * * *

NWT Inc., 1141 E. 3900 South, Suite

A–110, Salt Lake City, UT 84124,

Telephone: (801) 268–2431 (Day), (801)

483–3383 (Night/Weekend).

PART 240—QUALIFICATIONS FOR

LOCOMOTIVE ENGINEERS

PART 240—[AMENDED]

1. The authority citation for Part 240

continues to read as follows:

Authority: 49 U.S.C. Chs. 201–213; 49 CFR

1.49.

§ 240.119 [Amended]

2. In Section 240.119 amend

paragraph (d)(3) by adding the words

‘‘alcohol and’’ before the words ‘‘drug

tests’’ and remove paragraphs (d)(4) and

(d)(5), and redesignate paragraph (d)(6)

as paragraph (d)(4).

Issued in Washington, D.C. on November

20, 1997.

Jolene M. Molitoris,

Administrator, Federal Railroad

Administration.

[FR Doc. 97–31364 Filed 11–28–97; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 222

Docket No. 97102 1250–7275–02; I.D.

092297E

RIN 0648–AK46

Endangered Fish or Wildlife; Special

Prohibitions; North Atlantic Right

Whale Protection

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule; temporary closure of

fishery.

SUMMARY: NMFS issues this final rule to

close the Mid-Atlantic and Northeast

Coastal segments of the Atlantic pelagic

drift gillnet fishery for swordfish, tuna,

and shark through July 31, 1998. The

swordfish portion of the Atlantic pelagic

drift gillnet fishery has been closed

since December 5, 1996, under an

emergency Magnuson-Stevens Fishery

Conservation and Management Act

closure that expires on November 26,

1997. This action is necessary to avoid

the likelihood that this fishery will

jeopardize the continued existence of

the northern right whale (Eubalaena

glacialis), a species listed as endangered

under the Endangered Species Act

(ESA), until more long-term regulatory

measures are issued.

DATES: This closure is effective from

0000 hours, local time, November 27,

1997 through 2400 hours, local time,

July 31, 1998. The amendment to 50

CFR 222.34 is effective November 27,

1997 through July 31, 1998.

ADDRESSES: Copies of the May 29, 1997,

Biological Opinion (BO), the August 29,

1997, amended BO, and an

environmental assessment of this action

may be obtained from Gregory Silber,

Ph.D., Marine Mammal Division, Office

of Protected Resources, NMFS, 1315

East-West Highway, Silver Spring, MD

20910.

FOR FURTHER INFORMATION CONTACT:

Gregory Silber, Ph.D. or Michael Payne,
63468 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

Office of Protected Resources, (F/PR2),

NMFS, 1315 East-West Highway, Silver

Spring, MD 20910, 301–713–2322; or by

facsimile at 301–713–0376.

SUPPLEMENTARY INFORMATION: The

Atlantic pelagic fishery (which includes

the swordfish, tuna, and shark drift

gillnet fishery) is managed by NMFS

under the authority of the MagnusonStevens Fishery Conservation and

Management Act (Magnuson-Stevens

Act) (16 U.S.C. 1801 et seq.) and the

Atlantic Tunas Convention Act (16

U.S.C. 971 et seq.). Section 7(a)(2) of the

ESA (16 U.S.C. 1531 et seq.) requires an

agency to ensure that any agency action

is not likely to jeopardize the continued

existence of a threatened or endangered

species.

One right whale entanglement has

been documented in Atlantic pelagic

drift gillnet gear. The potential exists for

further entanglements in this gear

because the geographic distribution of

right whales, an endangered species, is

close to or overlaps with that of the

Atlantic drift gillnet fishery during part

of the year.

On May 29, 1997, NMFS issued a BO

which concluded that continued

operation of the swordfish, tuna, and

shark drift gillnet portions of the

Atlantic pelagic fishery was likely to

jeopardize the continued existence of

the northern right whale. This BO

identified reasonable and prudent

alternatives for the use of drift gillnet

gear that would avoid the likelihood of

jeopardy for the northern right whale.

Identification of these alternatives and a

further description of the basis for this

action are provided in the notice of

proposed rulemaking (62 FR 59335,

November 3, 1997).

On August 29, 1997, NMFS issued an

amended BO identifying an additional

reasonable and prudent alternative

which would avoid jeopardy to the

northern right whale from the Atlantic

pelagic drift gillnet fishery. That

alternative is 100–percent observer

coverage with expanded time/area

closures. The BO issued on August 29,

1997, requires that the driftnet fishery

for swordfish, shark, and tunas be

prohibited from operating from

November 1 to July 31 to avoid jeopardy

to northern right whales. NMFS is

implementing the time/area closure

component of the reasonable and

prudent alternative developed through

this consultation process.

NMFS, under emergency authority of

the Magnuson-Stevens Act, closed the

drift gillnet fishery for swordfish in the

Atlantic Ocean, including the Gulf of

Mexico and the Caribbean Sea, from

December 1, 1996, through May 29,

1997 (61 FR 64486, December 5, 1996).

NMFS extended that closure until

November 26, 1997 (62 FR 30775, June

5, 1997).

There is not sufficient time to

implement the alternatives identified in

the BOs under the Magnuson-Stevens

Act. Therefore, to provide necessary

protection to the northern right whale,

NMFS is implementing this measure

under the authority of the ESA on a

temporary basis pending development

and implementation of a long-term

management solution for this fishery

consistent with alternatives identified in

the BOs.

This rule prohibits vessels operating

in the North Atlantic off the coast of the

United States in waters south and east

of the 100 fathom contour from having

on board, fishing with, or otherwise

possessing or controlling drift gillnet

gear from November 1, 1997, through

July 31, 1998, except as authorized

under 50 CFR 229.32 (regulations

implementing the Atlantic Large Whale

Take Reduction Plan that allow for

restricted drift gillnet operations

targeting sharks in the Southeast United

States (62 FR 39157, July 22, 1997)).

A final National Environmental

Protection Act document analyzing this

action has been prepared and is

available to interested parties (see

ADDRESSES).

This action closes the pelagic driftnet

fisheries described in this document

and is not intended to close coastal drift

gillnet or other gillnet fisheries in MidAtlantic or Northeast coastal waters (as

defined under 50 CFR 229.2).

Comments and Responses

NMFS received three letters of

comment in response to the notice of

proposed rulemaking.

One letter voiced support for the

closure, support for the finding that the

fishery may take right whales, and

recognized that the closure comports

with the southern closure recommended

by the Atlantic Offshore Cetacean Take

Reduction Team (AOCTRT). The second

letter indicated that certain fisheries

need to be closed in certain times of the

year as part of a comprehensive effort to

address the conservation needs of the

northern right whale, and suggested that

this action helped meet that need. The

third letter voiced concerns about the

validity and justification for the closure

and recommended, for a variety of

reasons, that the closure not be

implemented. Specific comments and

NMFS responses to them follow.

Comment: One letter noted that the

swordfish stock is weakened, and urged

NMFS to assess the impact of

condensing the drift gillnet fishery into

one season. In addition, the letter

cautioned NMFS about the increase in

longline fishing (as a consequence of

fishers departing the drift gillnet

fishery) and the potential environmental

consequences (e.g., increased bycatch)

of such a shift.

Response: NMFS has considered the

impact of drift gillnetters converting to

longline gear stated in the draft EA for

the AOCTRP. NMFS has concluded that

there will be negligible impact from the

possible conversion of 15 drift

gillnetters on the swordfish stock, while

catches of marine mammals will

decrease.

Comment: Two letters noted that

NMFS has not yet implemented an

AOCTRP and encouraged NMFS to do

so in order to implement effective

management of this and other fisheries

in accordance with that plan.

Response: NMFS regrets that an

AOCTRP has yet to be implemented.

However, the complexity of the

AOCTRT’s draft plan, and the costs to

the government to implement the draft

plan, changes in stock assessments,

concerns about impacts on right whales

and other considerations have resulted

in delays. NMFS has prepared a draft

environmental assessment on the

implementation of a AOCTRP, and an

announcement of availability of the

assessment for public comment was

issued by NMFS on November 4, 1997

(FR 59657).

Comment: One letter indicated that

due to NMFS’ inability to implement

the recommendations of the AOCTRT in

a timely manner, further closure of the

fishery is not warranted.

Response: This closure is necessary to

adequately protect northern right

whales. Closure of the fishery described

in this rule is based on a consultation

under section 7(a) of the ESA, not on

requirements of the Marine Mammal

Protection Act, or the broader marine

mammal concerns to be addressed in

the AOCTRP. The closure is

implementing a reasonable and prudent

alternative identified in a BO that

resulted from that consultation.

Comment: One letter reiterated

previous comments on a AOCTRP, in

which the commenter recommended

restricting fishing activities on Jeffrey’s

Ledge and the Great South Channel to

reduce the possibility of right whale

entanglement.

Response: As noted above, NMFS is

working to implement the AOCTRP, and

these and other comments are being

considered in that process.

Comment: One letter stated that the

conclusions of the BO issued on August

29, 1997, are flawed because the risks of

a single, additional winter fishing
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 63469

season are not great, and, therefore, the

proposed rule is not justified. Also,

because the winter fishery involves only

a single vessel, the impacts of allowing

this vessel to fish will likely have

minimal biological impacts.

Response: NMFS cannot predict how

many vessels might participate in the

winter fishery. As few as one vessel and

as many as ten vessels have fished

during the winter fishery although in

recent years between one and three

vessels have participated. The BO

considered the potential for

participation in the winter fishery in

terms of the anticipated quota which is

more directly related to the total number

of sets than the number of vessels.

Although this action is expected to

affect a small number of vessels,

perhaps only one, the fishery is such

that each vessel is capable of putting out

1.5 miles (2.4 km) of net per set and,

depending upon when the quota is

reached, has the potential for up to an

estimated 50 sets. Thus, NMFS believes

that the possibility of right whale

entanglement exists even in a small

fishery.

Comment: One letter noted that the

closure is not necessary because, in

more than 25 years of operation by drift

gillnet boats in the Mid-Atlantic

swordfish fishery, there has never been

a documented right whale encounter in

the winter fishery.

Response: While no known right

whale entanglements have occurred in

the Mid-Atlantic portion of the fishery

during the winter months for the 16

years for which NMFS has records for

the operation of this fishery, one right

whale is known to have been entangled

in the fishery in July 1993. This

indicates that such events do occur with

this gear. Also, the timing and the area

of observed fishing effort in the MidAtlantic during the winter occurs in or

near areas of right whale aggregation

and in their migration routes. Therefore,

the risk associated with fishing in

waters off the Mid-Atlantic is higher

than fishing elsewhere due to its

proximity to the right whale migration

route.

In addition, entanglement of large

whale species other than right whales

has occurred in this fishery. This

evidence suggests that there is a risk of

interaction with this gear type whenever

the distribution of right whales occurs

in close proximity to fishing operations.

Photo-identification records indicate

that 57 percent of all living right whales

bear scars from encounters with fishing

gear. It is possible that entanglements of

right whales and other large whale

species had occurred in this fishery in

the past, but went undetected. Observer

coverage for this fishery has ranged from

8 percent in 1989 to 87 percent in 1994.

Observers have covered the majority of

the fleet only in 1994, 1995, and 1996.

Prior to 1994, however, observer

coverage of the fishery was less than 50

percent.

Comment: One letter stated that if the

closure was not in place, the fishery

would open in late November, and the

fishery would occur further north where

the shelf is farther from shore. At that

time of year and in that area there are

no large concentrations of marine

mammals.

Response: Historically, the fishery has

not opened prior to January 1. Despite

the fact that survey effort is low in many

areas, right whale sightings have

occurred in all months of the year in the

waters of the continental shelf off the

New England coast. These include

sightings near the shelf break in

October, November, and December.

NMFS has determined that the greatest

potential for interactions occurs during

from November 1 through July 31, the

period of this closure.

Comment: One letter underscored the

economic hardship on the single vessel

owner planning to fish in the winter.

Specifically, a fisherman involved in the

fishery expected the AOCTRP to be

implemented; he outfitted his longline

boat for winter drift net fishing and

made other arrangements to fish in a

fishery he assumed would be open. The

same fisherman invested in pingers and

was interested in determining if pingers

were successful in reducing marine

mammal mortality in this fishery.

Response: NMFS regrets the economic

hardship on fishermen caused by this

closure. NMFS’ mission is to ensure that

endangered species are not jeopardized

and some economic consequences may

result from management decisions made

in pursuit of this mission. NMFS notes

that implementation of the draft

AOCTRP (something the commenter

strongly supports) would likely entail

restrictions to the fishery. Therefore, the

economic hardship would also have to

be endured under that scenario.

NMFS is encouraged by efforts to

reduce marine mammal bycatch,

including efforts that involve the use of

pingers. Pingers have shown some

success in reducing entanglement of

some marine mammal species, and

NMFS is encouraged by the interest in

conducting pinger experiments in this

fishery. However, the behavior of right

whales indicates that they may be less

responsive to noise than some other

species, and the small sample size

makes it difficult to design an

experiment that would produce

statistically significant results. NMFS

notes that pinger experiments are much

more likely to produce significant

results with regard to common dolphins

where expected interaction are much

higher.

Finally, such experimentation would

be most beneficial if it had fleet-wide

participation. Data from an experiment

with a small sample (i.e., one vessel and

a relatively few fishing days) are of less

value than experiments involving

controls (e.g., side-by-side comparisons

with gear not equipped with pingers)

and replicates. That is, fleet-wide

participation is needed to ensure

samples adequate for meaningful

comparisons and statistical analyses. In

this same regard, no experiment has

been designed for this fishery or its

feasibility tested. Also, pingers are

expected to be used in other fisheries,

and worthwhile data are likely to come

from pinger experiments in those

fisheries. The vessel owner may be able

to make the pingers he purchased

available to participants in one of those

fisheries.

Comment: The company owning the

single active vessel was not notified of

the possibility of the closure.

Response: NMFS provided notice of

the conclusions of the BOs and

provided notice of NMFS’ intention to

close the fishery by publication of the

proposed rule. The commenter, the

fishing community, and the general

public were thereby notified that NMFS

is developing a long-range management

solution for the fishery.

Comment: The fishing community

was not notified that two fishing

seasons were combined into one by

NMFS.

Response: In a final rule published in

the Federal Register on October 24,

1997 (62 FR 55361), establishing

regulations on annual quotas for the

Atlantic swordfish fishery, NMFS

indicated that ‘‘[o]n August 29, 1997, an

amendment to the BO was issued,

which identified a new reasonable and

prudent alternative including time/area

closures and 100–percent observer

coverage. Pending implementation of a

modification to the emergency closure,

if such is warranted by the preferred

option when identified, NMFS has

taken action in this final rule to

establish a single season quota for the

driftnet swordfish fishery.’’

Changes From the Proposed Rule

Based on comments received, there

were no substantive changes to the

proposed rule. However, the regulatory

text of the proposed rule contained an

error. While the preamble to the

proposed rule clearly stated that the

closure would be effective on November
63470 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

27, 1997, the regulatory text stated that

the effective date of the closure would

be November 1, 1997. The closure is in

effect starting November 27, 1997. This

change is reflected in the regulatory text

of the final rule.

Classification

This final rule is necessary to protect

the northern right whale in accordance

with the requirements of the ESA.

NMFS prepared an EA for this final

rule with a finding of no significant

impact on the human environment. The

Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for the Advocacy of

the Small Business Administration that

this rule will not have a significant

economic impact on a substantial

number of small entities. No comments

were received that changed the basis for

the original certification. As a result, no

Regulatory Flexibility Analysis has been

prepared.

NMFS has determined that this rule

will be implemented in a manner that

is consistent, to the maximum extent

practicable, with the coastal zone

management programs of the Atlantic

and Gulf of Mexico states that have

approved programs. This determination

was submitted for review by the

responsible agencies under section 307

of the Coastal Zone Management Act.

As noted above, this rule implements

an alternative identified in a BO, and is

necessary to avoid jeopardy to the

northern right whale. Therefore, failure

to implement the closure identified in

this action expeditiously would be

contrary to the public’s interest. Also as

noted above, the swordfish portion of

the Atlantic pelagic drift gillnet fishery

has been closed since December 5, 1996,

under an emergency Magnuson-Stevens

Fishery Conservation and Management

Act closure. Thus, this portion of the

fishery has not been active since that

time. This action would have no impact

on drift gillnetters directly fishing for

sharks in the Southeast because

participants in the directed shark

fishery are covered by regulations

implementing the Atlantic Large Whale

Take Reduction Plan and would not be

further restricted by this action. In

addition, the fishery for large coastal

sharks was closed on July 21, 1997,

through December 31, 1997, because

that fishery reached its allowable quota

(62 FR 32942, July 21, 1997). Based on

recent records and the lack of requests

for observer coverage as required under

the Marine Mammal Protection Act,

there is no history of a directed gillnet

fishery for tunas in the winter and early

summer. NMFS will rapidly

communicate the dates of this closure to

fishing interests through the FAX

network and NOAA weather radio.

Accordingly, the Assistant

Administrator for Fisheries finds good

cause, under 5 U.S.C. 553(d)(3), to

waive the 30-day delay in the effective

date normally required by section

553(d) of the Administrative Procedures

Act.

This rule does not contain policies

with federalism implications to warrant

preparation of a federalism assessment

under Executive Order 12612. In

addition, this rule does not contain new

collection-of-information requirements

subject to the Paperwork Reduction Act.

This final rule has been determined to

be not significant for purposes of E.O.

12866.

List of Subjects in 50 CFR Part 222

Administrative practice and

procedure, Endangered and threatened

species, Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set forth in the

preamble, 50 CFR Part 222 is amended

as follows:

PART 222—ENDANGERED FISH OR

WILDLIFE

1. The authority citation for part 222

continues to read as follows:

Authority: 16 U.S.C. 1531–1543; subpart D,

§ 222.32 also issued under 16 U.S.C. et seq.

2. In subpart D, a new § 222.34 is

added to read as follows:

§ 222.34 Restrictions on taking right

whales incidental to fishery operations.

From November 27, 1997, through

July 31, 1998, it is unlawful for any

person or vessel subject to the

jurisdiction of the United States to have

on board a vessel, to fish with, or

otherwise to posses or control drift

gillnet gear, as defined in 50 CFR 229.2,

in the North Atlantic Ocean in waters

off the coast of the eastern United States

south and east of the 100 fathom

contour except that such gear may be

used in southeast waters, as defined

under 50 CFR 229.2, if that gear is used

in compliance with the requirements of

50 CFR 229.32(f).

[FR Doc. 97–31472 Filed 11–25–97; 4:32 pm]

BILLING CODE 3510–22–F