Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / Rules and Regulations 15973 

op. at 17–18 (STB served June 30, 2008), some rail 

carrier commenters maintain that the Board has 

foreclosed such adjustments. The carriers are 

mistaken. While the Board did not accept the 

carrier’s adjustment factor in that case, it rejected 

the proposal because the adjustment was 

incomplete. The carriers also argue that the 

proposed rule’s prohibition on the use of nonpublic information from their files—particularly 

evidence of changes in costs or market conditions— 

hampers their ability to show that a shipper’s 

comparison group consisting of older movements is 

not comparable to the issue traffic and effectively 

precludes them from proving changed conditions as 

an ‘‘other relevant factor.’’ To the contrary, 

however, evidence outside the four years of Waybill 

Sample data provided under this rule may be used 

to attempt to demonstrate ‘‘other relevant factors.’’ 

See Simplified Standards, slip op. at 77–78. 

19Releasing the Waybill Sample for the four years 

that correspond with the most recently published 

RSAM (as opposed to five years or three years of 

data) is reasonable because (1) complainants must 

have access to that data anyway to verify the 

Board’s calculation of the RSAM and R/VC>180

benchmarks; and (2) it provides the complainant 

the ability to use the same four-year time period to 

estimate all three benchmarks used in this analysis. 

No party has demonstrated that the release of more 

Waybill Sample data is appropriate. 

Board remains the ultimate arbiter of 

which litigant’s comparison group it 

will use to assess the challenged rate(s), 

and the Board will consider the extent 

to which a party’s comparison group is 

most similar in the aggregate to the issue 

traffic on a case-by-case basis. The final 

offer process gives both parties the 

opportunity to convince the Board that 

its comparison group is most similar to 

the issue traffic. 

In addition, complainants should 

have access to multiple years of data so 

that they can make year-to-year 

comparisons of rate changes to identify 

potentially unreasonable carrier pricing 

behavior. Although the R/VC ratios of 

the issue traffic might well be similar to 

the R/VC ratios of comparable 

movements in the current year, they 

might be dramatically higher than the R/ 

VC ratios of comparable shipments from 

prior years. We see no reason why a 

complainant should be deprived at the 

outset of the case of readily available 

Waybill Sample data needed to make 

that case.19

Finally, NSR and CSXT argue that 49 

U.S.C. 10701(d)(1) compels us to use the 

most current data when evaluating the 

reasonableness of rates. They maintain 

that the statute ‘‘requires at a minimum 

that the comparison group movements 

reflect the same market conditions that 

exist when the railroad established the 

challenged rate.’’ NSR/CSXT Supp. at 7. 

Put differently, they argue that when 

asked to judge the reasonableness of a 

rate set in 2010, we cannot perform an 

analysis of whether the rate was 

comparable to rates from 2005–2008. Id. 

This statutory argument is 

unpersuasive for a number of reasons. 

First, the statute contains no such 

directive. Second, when judging the 

reasonableness of a particular rate, we 

routinely look to information beyond 

the year when the rate was established. 

For example, our SAC test does not 

judge the reasonableness of the 

challenged rate by looking only at a 

snapshot of the current financial 

circumstances. Rather, the SAC test 

requires a 10-year analysis that is 

structured to reflect the variations in the 

business cycle. See Major Issues In Rail 

Rate Cases, EP 657 (Sub-No. 1), slip op. 

at 61 (STB served Oct. 30, 1996). Some 

of the variables it takes into account are 

the annual tonnage fluctuation, change 

in tax laws, equity investor 

expectations, and inflation in the prices 

of the assets utilized by the industry. 

Coal Trading Corp. v. B&O R.R., 6 

I.C.C.2d 361, 411 (1990). Third, in their 

example above, the Three-Benchmark 

approach would not compare the rate 

set in 2010 against the rates from 2005– 

2008; it would judge the reasonableness 

of the challenged rate by comparing the 

R/VC ratio (the level of contribution to 

joint and common cost) against the 

adjusted R/VC ratios of comparable 

traffic from 2005–2008. Finally, in a rate 

case, we are not asked to determine the 

maximum lawful rate on the day the 

tariff was issued, but for a multi-year 

prescriptive period. 

This decision will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

It is ordered: 

1. The Board will adopt the rule as set 

forth in this decision. 

2. This decision is effective on the day 

of service. 

3. This decision will be published in 

the Federal Register. 

Decided: March 8, 2012. 

By the Board, Chairman Elliott, Vice 

Chairman Mulvey, and Commissioner 

Begeman. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. 2012–6551 Filed 3–16–12; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 110211137–2141–02] 

RIN 0648–BA87 

Fisheries Off West Coast States; 

Highly Migratory Species Fisheries; 

Swordfish Retention Limits 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues a final rule 

under the Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) to modify retention limits for 

swordfish harvested in the U.S. West 

Coast-based deep-set tuna longline 

(DSLL) fishery. The DSLL fishery is 

managed under the Fishery 

Management Plan for U.S. West Coast 

Fisheries for Highly Migratory Species 

(HMS FMP). The final rule implements 

the Pacific Fishery Management 

Council’s (Council) recommendation to 

modify HMS FMP regulations governing 

the possession and landing limits of 

swordfish captured in the DSLL fishery 

as follows: if a vessel without an 

observer onboard uses any J-hooks (tuna 

hooks), the trip limit is 10 swordfish; if 

a vessel without an observer onboard 

uses only circle hooks, the trip limit is 

25 swordfish; if the vessel carries a 

NMFS-approved observer during the 

entire fishing trip, there is no limit on 

swordfish retained. 

DATES: This final rule is effective April 

18, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Craig Heberer, Sustainable Fisheries 

Division, NMFS, 760–431–9440, ext. 

303. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This final rule is also accessible at 

(http://swr.nmfs.noaa.gov/). An 

electronic copy of the current HMS FMP 

and accompanying appendices are 

available on the Pacific Fishery 

Management Council’s Web site at 

http://www.pcouncil.org/hms/ 

hmsfmp.html. 

The HMS FMP was developed by the 

Council in response to the need to 

coordinate state, Federal, and 

international management of HMS 

stocks. The management unit in the 

FMP consists of highly migratory 

species (tunas, billfish, and sharks) that 


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15974 Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / Rules and Regulations 

occur within the West Coast (California, 

Oregon, and Washington) Exclusive 

Economic Zone (EEZ) and to a limited 

extent on adjacent high seas waters. 

NMFS, on behalf of the Secretary of 

Commerce, partially approved the HMS 

FMP on February 4, 2004 (69 FR 18444). 

The majority of HMS FMP 

implementing regulations became 

effective on April 7, 2004. Reporting 

and recordkeeping provisions became 

effective on February 10, 2005. 

Since being adopted in 2004, the HMS 

FMP has been amended twice. On June 

7, 2007, NMFS approved Amendment 1 

to the HMS FMP to incorporate 

recommended international measures to 

end overfishing of the Pacific stock of 

bigeye tuna, Thunnus obesus, in 

response to formal notification from 

NMFS that overfishing was occurring on 

this stock. On June 12, 2011, NMFS 

approved Amendment 2 to the HMS 

FMP (76 FR 56328) to ensure that it is 

consistent with revised guidelines to 

implement National Standard 1 of the 

MSA in order to more effectively 

prevent overfishing and rebuild 

overfished stocks, or stocks that may 

become overfished. 

This final rule modifies HMS FMP 

longline regulations at 50 CFR 660.705 

and 660.712, which prohibit U.S. 

vessels based on the West Coast from 

using longline gear to make shallow sets 

(SSLL), and which originally prohibited 

U.S. vessels using DSLL gear from 

landing more than 10 swordfish 

(Xiphias gladius) per trip. The 10- 

swordfish trip limit was intended to 

prevent vessels ostensibly fishing with 

DSLL gear targeting bigeye and 

yellowfin tuna, from switching to SSLL 

gear targeting swordfish on the same 

trip. The final rule increases the trip 

limits on swordfish in order to make the 

West Coast-based DSLL fishery 

consistent with recommendations by the 

Western Pacific Fishery Management 

Council on their Pacific Pelagics Fishery 

Ecosystem Plan (FEP) to similarly 

increase DSLL fishing retention limits 

for the Hawaii-based DSLL fishery. 

The final rule retains the 10 swordfish 

limit for DSLL vessels fishing with Jhooks (tuna hooks), because those types 

of hooks have higher sea turtle bycatch 

rates, and the trip limit acts as a 

deterrent to engaging in fishing 

practices that may result in sea turtle 

bycatch. The final rule changes the trip 

limits for vessels fishing without 

observers but using circle hooks, 

because those types of hooks are known 

to minimize the bycatch and mortality 

of sea turtles. However, for trips with a 

NMFS-approved observer, the final rule 

removes the trip limits entirely, because 

the observer acts a sufficient deterrent to 

engaging in SSLL fishing, which is 

prohibited. 

The final rule assists vessels in the 

DSLL fishery by reducing the 

unnecessary discard of swordfish 

(regulatory ‘‘bycatch’’ under the 

Magnuson Act) when a vessel employs 

DSLL fishing methods known to reduce 

the risk of incidentally catching sea 

turtles. It also benefits the DSLL vessels 

by allowing them to land a greater 

number of swordfish, which could 

result in fishermen realizing greater 

profits from DSLL fishing trips, 

especially those with NMFS-approved 

observer coverage. Furthermore, by not 

forcing fishermen to discard as many 

swordfish, bycatch levels will be 

minimized as required by National 

Standard 9 of the MSA. 

NMFS received four public comments 

on the proposed rule, two in support of 

the action and two critical of the action. 

The first critical comment asserted, 

without providing substantive evidence, 

that the fisherman regulated under these 

rules could be earning more than five 

million dollars a year and therefore 

should not be considered a small 

(business) entity for purposes of 

analysis under the Regulatory 

Flexibility Act (RFA). Based on the 

average observed annual catches by this 

vessel and the market values for that 

catch, it is extremely unlikely that the 

regulated fisherman is realizing annual 

revenues anywhere near five million 

dollars. NMFS has not changed its 

certification or undertaken a regulatory 

flexibility analysis due to this comment. 

The second critical comment, 

submitted on behalf of the Turtle Island 

Restoration Network and the Center for 

Biological Diversity, recommended that 

NMFS disapprove the action altogether. 

The recommendation was based on the 

commenters’ perceptions of: a lack of 

need for the regulation; adverse effects 

on federally protected sea turtles, 

marine mammals and bycatch species; 

adverse impacts to Pacific swordfish 

populations; and providing the 

foundation for opening the West Coast 

High Seas to a surface longline fishery 

(i.e., shallow-set fishery for swordfish) 

under the guise of regulatory 

consistency. The rationale for the rule is 

explained above, and is not related to 

opening a SSLL fishery. NMFS has 

analyzed the DSLL fishery (on the high 

seas outside the West Coast EEZ) under 

the National Environmental Policy Act 

(NEPA) and section 7 of the Endangered 

Species Act. This final rule will result 

in no additional adverse impacts to the 

marine environment, including sea 

turtles and marine mammals, or any 

aspect of the human social and 

economic environment that was not 

previously analyzed. The action is not 

expected to increase either the fishing 

effort or manner of operations in the 

DSLL fishery (which is an open-access 

fishery). Furthermore, the North Pacific 

swordfish stock is currently healthy and 

not approaching an overfished or 

overfishing condition. 

There are no changes to the rule text 

from those that NMFS originally 

proposed. 

Classification 

The Administrator of the Southwest 

Region, NMFS, determined that the final 

rule is necessary for the conservation 

and management of the U.S. West Coast 

Fisheries for Highly Migratory Species 

and that it is consistent with the 

Magnuson-Stevens Fishery 

Conservation and Management Act and 

other applicable laws. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

A single comment was received 

questioning the determination that the 

one vessel affected by this rule is a 

‘‘small entity.’’ As explained above, in 

the response to comments under the 

Supplementary Section of this final 

rule, the commenter did not supply any 

substantive evidence to support that 

claim, and it is extremely unlikely that 

the regulated fisherman is realizing 

annual revenues anywhere near five 

million dollars. As a result, a regulatory 

flexibility analysis was not required and 

none was prepared. 

List of Subjects in 50 CFR Part 660 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: March 14, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, 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 

■ 1. The authority citation for part 660 

continues to read as follows: 

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


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Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / Rules and Regulations 15975 

■ 2. In § 660.705, revise paragraphs (s) 

and (mm) to read as follows: 

§ 660.705 Prohibitions. 

* * * * * 

(s) If no observer is on the vessel and 

J-type fishing hooks are used, possess 

more than 10 swordfish; if no observer 

on the vessel and only circle-type 

fishing hooks are used, possess more 

than 25 swordfish on board a longline 

vessel from a fishing trip where any part 

of the trip included fishing west of 150° 

W. long. and north of the equator (0° 

lat.) in violation of § 660.712(a)(9). 

* * * * * 

(mm) Except when fishing under a 

western Pacific longline limited entry 

permit issued under § 660.21, possess 

more than 10 swordfish on board a 

longline vessel from a fishing trip where 

any part of the trip included fishing on 

the high seas of the Pacific Ocean west 

of 150° W. long. north of the equator in 

violation of § 660.720(a)(3). 

* * * * * 

■ 3. In § 660.712, revise paragraphs 

(a)(10) and (a)(11) to read as follows: 

§ 660.712 Longline fishery. 

(a) * * * 

(10) If no observer is on board the 

vessel, owners and operators of longline 

vessels registered for use of longline 

gear may land or possess no more than 

10 swordfish from a fishing trip when 

using any J-type fishing hooks, and no 

more than 25 swordfish from a fishing 

trip when using only circle hook-type 

fishing hooks. If a NMFS-approved 

observer is on board the vessel for the 

duration of the fishing trip, there is no 

limit on the amount of swordfish 

retained. 

(11) Owners and operators of longline 

vessels registered for use of longline 

gear are subject to the provisions at 50 

CFR part 223 prohibiting shallow sets to 

target swordfish in waters beyond the 

U.S. EEZ and east of 150° W. long. 

* * * * * 

[FR Doc. 2012–6577 Filed 3–16–12; 8:45 am] 

BILLING CODE 3510–22–P 


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