Federal Register / Vol. 63, No. 11 / Friday, January 16, 1998 / Proposed Rules 2651

twenty-four (24), a car located no less

than two-thirds (2⁄3) of the way through

the consist (counting from the first car

in the train) must be equipped with an

emergency brake valve readily

accessible to a crew member;

(iii) Prior to descending a section of

track with an average grade of two

percent or greater over a distance of two

continuous miles, the engineer of the

train shall communicate with the

conductor, to ensure that a member of

the crew with a working two-way radio

is stationed in the car with the rearmost

readily accessible emergency brake

valve on the train when the train begins

its descent; and

(iv) While the train is descending a

section of track with an average grade of

two percent or greater over a distance of

two continuous miles, a member of the

train crew shall occupy the car that

contains the rearmost readily accessible

emergency brake valve on the train and

be in constant radio communication

with the locomotive engineer. The crew

member shall remain in this car until

the train has completely traversed the

heavy grade.

* * * * *

(g) Except on passenger trains

required to be equipped with a two-way

end-of-train device (which are provided

for in paragraph (h) of this section), en

route failures of a two-way end-of-train

device shall be handled in accordance

with this paragraph. * * *

* * * * *

(2) [Reserved]

(h) A passenger train required to be

equipped with a two-way end-of-train

device that develops an en route failure

of the device (as explained in paragraph

(g) of this section) shall be operated in

accordance with the following:

(1) The train shall not operate over a

section of track with an average grade of

two percent or greater over a distance of

two continuous miles until an operable

two-way end-of-train device is installed

on the train;

(2) A member of the train crew will

be immediately positioned in the car

which contains the rearmost readily

accessible emergency brake valve on the

train and shall be equipped with an

operable two-way radio that

communicates with the locomotive

engineer;

(3) The locomotive engineer shall

periodically make running tests of the

train’s air brakes until the failure is

corrected; and

(4) Each en route failure shall be

corrected at the next location where the

necessary repairs can be conducted or at

the next location where a required brake

test is to be performed, whichever is

reached first.

3. Appendix A to Part 232, ‘‘Schedule

of Civil Penalties,’’ is amended by

revising the heading of the entry for

§ 232.23 and revising the entry for

§ 232.23(g) and adding an entry for

§ 232.23(h), to read as follows:

Appendix—A to Part 232—Schedule of

Civil Penalties

* * * * *

Section Violation Willful violation

* * * * * * *

232.23 Operating standards:

* * * * * * *

(g) En route failure, freight ........................................................................................................................................... 5,000 7,500

(h) En route failure, passenger ..................................................................................................................................... 5,000 7,500

* * * * * * *

Issued in Washington, DC, on January 12,

1998.

Jolene M. Molitoris,

Administrator.

[FR Doc. 98–1082 Filed 1–15–98; 8:45 am]

BILLING CODE 4901–06–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[I.D. 052097C]

Fisheries of the Northeastern United

States; Decision on Petition for

Rulemaking for Redistribution of the

Summer Flounder Quota

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Decision on petition for

rulemaking.

SUMMARY: NMFS announces its decision

to not undertake the rulemaking

requested in a petition submitted by the

State of Connecticut, Commissioner of

Environmental Protection (Connecticut).

Connecticut petitioned the Secretary of

Commerce (Secretary) to eliminate the

current state-specific allocation of the

commercial quota for summer flounder

and implement one of two options

specified in its place. The decision to

deny the petition at this time is based

on public comments received on this

petition for rulemaking and on the MidAtlantic Fishery Management Council’s

(Council) and on the Atlantic States

Marine Fisheries Commission’s

(Commission) decision to retain the

current state-by-state quota system for

summer flounder in Amendment 10 to

the Fishery Management Plan for the

Summer Flounder, Scup, and Black Sea

Bass Fisheries (FMP).

FOR FURTHER INFORMATION CONTACT: Gary

C. Matlock, Ph.D., Director, Office of

Sustainable Fisheries, (301) 713–2334,

or Mark R. Millikin, (301) 713–2341.

SUPPLEMENTARY INFORMATION: On June 2,

1997 (62 FR 29694), NMFS published a

notice of receipt of a petition for

rulemaking submitted by Connecticut.

The petition requested the Secretary to

implement either a commercial

allocation for summer flounder of two

winter coastwide periods and a state-bystate summer period, or a coastwide

allocation system for all three periods

(two winter periods and a summer

period). Connecticut further petitioned

that any regulation implementing a

state-by-state allocation system base the

percent shares for each state upon

landings data for the period 1990

through 1992. On behalf of the

Secretary, NMFS considered the

petition and comments received on the

petition.

In considering this petition, NMFS

also considered actions surrounding

Amendment 10 to the FMP

(Amendment 10) as they relate to the

summer flounder quota. Amendment 10

was approved by NMFS on November

21, 1997 (62 FR 63872, December 3,
2652 Federal Register / Vol. 63, No. 11 / Friday, January 16, 1998 / Proposed Rules

1997). In Amendment 10, the Council

and Commission reconsidered the

method by which the FMP allocates the

quota for the summer flounder

commercial fishery. All of the

alternatives advocated by Connecticut

in its petition were thoroughly

considered by the Council in the

development of Amendment 10. After

considering the alternatives, the Council

and Commission chose to maintain the

status quo for the commercial summer

flounder fishery and to retain the

current state-by-state allocation. The

Council and Commission noted during

the discussions of Amendment 10 that

many states have developed quota

management systems to account for

seasonal variations in abundance and in

the size of the vessels that target

summer flounder. With a coastwide

system, as suggested in Connecticut’s

petition, states would lose that

flexibility either during the winter or

over the entire year.

No alternative system was identified

that could provide the same level of

equity as the current system,

particularly between the northern and

the southern states and between the

small day boats and larger offshore

vessels. The Council and Commission

further noted that revising the years for

the baseline allocation to 1990-92 was

discussed at length during the

development of Amendment 10. This

time period was rejected under

Amendment 10 because the shorter time

period did not account adequately for

historical participation in the fishery

when summer flounder were more

abundant and generally more available

to the fishery along the entire coast. In

light of the deficiencies noted in the

alternatives, the Council and

Commission decided to maintain the

current state-by-state system.

Given that the Council and

Commission thoroughly considered

these proposed alternatives before

proposing to retain the state-by-state

allocation system and that the Council’s

actions were determined to be

consistent with the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act), the

national standards, and other applicable

laws, NMFS could find no compelling

justification for any action other than

what was approved in Amendment 10.

Since the approved commercial quota

allocation system complies with the

Magnuson-Stevens Act and other

applicable laws, NMFS believes that any

changes to the allocation system are

better handled through the FMP

amendment process, which affords all

members of the affected public an

opportunity to comment on proposed

measures. Connecticut participated in

the Amendment 10 process as a member

of the Commission but was not able to

convince the Council or the

Commission to make the modification it

advocates.

In October 1997, the Commission

attempted again to address the issue of

different minimum fish sizes in various

states over past years. The Commission

conducted public hearings on a

proposed Commission amendment

(Amendment 11) in October 1997.

Amendment 11 contained an analysis

that would be used to redistribute the

quota among the states. The

redistribution would have been

achieved for 1998 through the quota

transfer provision already contained in

the FMP. The Commission Board

disapproved Amendment 11 during the

annual meeting held on October 20–23,

1997. The disapproval noted that ‘‘the

Board could find no compromise

sufficient to resolve the many regional

differences invoked by this

Amendment.’’

Comments and Responses

A total of 74 letters; including 1 letter

from the Commonwealth of

Massachusetts, 1 letter from the State of

New Hampshire, 1 letter from the State

of Connecticut, 1 cosigned letter from

Connecticut senators and from one

representative, 1 letter from the

Southern New England Fishermen’s and

Lobstermen’s Association, and 33

individual form letters and 36

individual form postcards were received

during the comment period for this

action, which ended on August 1, 1997.

Several of the letters contained

comments on the FMP in general or

offered suggestions for future

management that are not within the

scope of this action. Only comments

relevant to the proposed petition for

rulemaking that were received by NMFS

prior to the close of business on the date

specified as the close of comments were

considered for this action.

Comment: The State of New

Hampshire, the Commonwealth of

Massachusetts, and several individuals

support the petition. New Hampshire

specifically agreed with Connecticut’s

point in the petition regarding the

inequities in state quota shares based on

historical summer flounder landings

because some states had smaller

minimum fish sizes than those

implemented by Connecticut and by

other states during the base period

1980–89. Connecticut Senators

Lieberman and Dodd and

Representative Gejdenson also feel that

the current quota system did not take

into consideration the stricter

conservation requirements in some

states, including in Connecticut. New

Hampshire feels that the current system

is flawed and in need of correction.

Response: NMFS believes the Council

addressed the minimum fish size issue

clearly in Amendment 10 to the FMP.

The Council explained that landings

data reflect minimum size regulations

implemented in each of the states.

Landings do not reflect the actual sizes

of fish available to the gear, caught by

commercial fishermen, and discarded

dead. Hypothetically speaking, if more

restrictive minimum size regulations

had been implemented in southern

states during those years, more fish

would have been discarded dead and

there would have been increased

pressure on, and increased landings of,

larger fish. As such, the availability of

larger fish to the northern states could

have been reduced. Consequently, the

landings in the northern states could

have been reduced. In reality, the fact

that some northern states had a larger

minimum size than some southern

states reflects that fewer fish smaller

than that length had been traditionally

available to commercial fishermen in

the northern states.

Comment: Connecticut Senators

Lieberman and Dodd and

Representative Gejdenson support a

coastwide quota and uniform landing

limits, as described in the petition.

Response: As with the response to the

comment above, NMFS believes the

Council addressed the coastwide quota

and uniform trip limits issue clearly in

Amendment 10 to the FMP. The Council

and Commission determined, and

NMFS agrees, that a coastwide quota

would not provide the flexibility

afforded under the state-by-state system.

Since the inception of the current

system, state personnel have developed

and refined management systems to

account for seasonal variations in

abundance, as well as in the vessels that

harvest summer flounder. In addition,

the Council and Commission noted, and

NMFS agrees, that it would be difficult

to design a coastwide system that

provides for an equitable distribution

between the northern and southern

participants, as well as between the

smaller day boats and the larger offshore

vessels. Uniform landing limits, it was

noted, may not be suitable for all

vessels, gears, or areas. For these

reasons, the Council and Commission

concluded that the coastwide systems

proposed in Amendment 10, and again

proposed by this petition, were found to

not provide the same level of equity to

all user groups and areas as the existing

quota allocation system.
Federal Register / Vol. 63, No. 11 / Friday, January 16, 1998 / Proposed Rules 2653

Comment: The Commonwealth of

Massachusetts commented that, since

the commercial quota allocation and

management regimes for the related

fisheries of summer flounder, scup, and

black sea bass are all different, the stateby-state allocation system for summer

flounder discriminates between

residents of different states and violates

national standard 4.

Response: That three fisheries have

different allocation systems does not

mean that one is discriminatory. Each

system was implemented through an

FMP amendment that was found

consistent with all of the national

standards. NMFS notes that to recognize

the varying levels of historical

participation in each of the states is not

inherently discriminatory. Because each

state participated in a fishery to varying

degrees, each state receives a different

portion of the whole, reflecting its

relative level of historical participation.

The same basis for distribution is

employed for all states. Thus, there is no

discrimination between residents of

different states.

Comment: The State of Connecticut

feels that the current commercial quota

management system violates (1) national

standard 1 (overfishing) because it has

not prevented overfishing, (2) national

standard 5 (efficiency) because it does

not consider efficiency in the utilization

of the resource, (3) national standard 7

(minimize costs) because it fails to

minimize costs, and (4) national

standard 10 (safety at sea) because

fishermen travel to states with the most

favorable trip limit, increasing the risk

of mishap or disaster at sea. The

Commonwealth of Massachusetts also

feels that the current state-specific

commercial quota system violates

national standard 1 because it has been

unsuccessful in reducing fishing

mortality although it has been

implemented for 5 years. Massachusetts

urges NMFS to develop the regulations

suggested in the petition since, as the

current system has not reduced fishing

mortality, quotas are likely to get

smaller. Lastly, Massachusetts notes that

the current system forces fishermen to

travel to ports that are open to landings

or that have higher trip limits, therefore

increasing the risk to vessel and life at

sea, in violation of national standard 10

and negatively impacting New England

ports, which lose those landings while

other ports benefit from them.

Response: Since Amendment 10 to

the FMP contemplated alternatives to

the commercial quota allocation

method, the Council was required to

review all alternatives for consistency

with the national standards. As with the

minimum fish size issue, NMFS

believes the Council addressed this

issue adequately and clearly in that

document. The points of those

discussions are reiterated here.

National standard 1 - The most recent

stock assessment, completed in August

1997, indicates that the summer

flounder stock is at a medium level of

historical (1968–96) abundance and is

overexploited. The fishing mortality rate

(F) estimated for 1996 was 1.0 (an

exploitation rate of 58 percent). While

this estimate of fishing mortality is

above the overfishing definition (Fmax =

0.24), it is significantly below the peak

fishing mortality rate estimated for 1992

(F = 2.1). More importantly, the

spawning stock biomass estimate for

1996 indicated the highest level since

1983. Additionally, the age structure is

improving, with 34 percent of the

biomass age 2 and older in 1996,

compared with 17 percent in 1992. The

size of the stock older than age 2 is an

important indicator of the stock health,

as it may reflect more accurately the

number of successful spawners. While

the stock is showing signs of

improvement, the improvement is not

occurring at as high a rate as anticipated

by managers. NMFS notes that quota

overages and unaccounted for mortality

(underreporting and/or discard) are

more likely to explain the slow recovery

than the manner in which the quota is

allocated. Overall, the management

scheme is allowing a stock rebuilding

and a progression toward an end of

overfishing.

National standard 5 - The Council and

Commission have developed a system

that is intended to operate at the lowest

possible cost with regard to effort,

administration, and enforcement, given

the objectives of the FMP. NMFS has

determined that the state-by-state

allocation system makes efficient use of

fishery resources and is, therefore,

consistent with national standard 5.

National standard 7 - Amendment 10,

a joint document from both the Council

and Commission, contains management

measures that will be implemented by

the Commission as part of its interstate

management process. These measures,

called compliance criteria, include a

requirement that states document all

summer flounder commercial landings

in their states. This will aid in the

elimination of double counting of any

landings and, therefore, help keep

enforcement costs down, as much effort

is spent tracking down landings in order

to maintain the integrity of the quota.

Such costs are independent of the

allocation system. Under any other

scenario proposed in this petition, costs

are still incurred with regard to quota

monitoring, enforcement of trip limits,

and seasons.

National standard 10 - The state-bystate quota allocation system for

summer flounder is not inconsistent

with national standard 10. Many of the

New England vessels are permitted to

land in neighboring states. These and

other vessels have traditionally traveled

long distances to fish for and land

summer flounder, so risks at sea cannot

be ascribed solely to behavior resulting

from a state-by-state quota allocation.

The state-by- state quota system does

not require a vessel to travel to distant

ports, and an individual vessel operator

must weigh the benefits of landing in a

distant port versus the costs associated

with that travel with regard to steaming

time, fuel consumption, weather, and

other factors.

Comment: Connecticut’s petition

stated that, should the alternative

embracing a state-by-state summer

allocation be implemented, the percent

shares for each state should be based

upon landings data for the period 1990

through 1992.

Response: When the quota allocation

system was developed, the Council and

Commission reviewed the history of the

fishery and recommended a 10-year

time frame as the appropriate historical

period upon which quotas would be

based. This decision was discussed

thoroughly. While proposals were made

to shorten the period to as little as 3

years, it was recognized that short-term

variations in landings did occur and

that quotas based on a short time series

would penalize one segment of the

fishery while granting others what was

considered an excessive share. The

states, through the Commission,

approved the 10-year time period and

the method of allocating the quota.

Comment: One form letter requests

the Secretary to use his office to assure

that Council plans comply with the

requirements of the Magnuson-Stevens

Act which, the letter states, the plans do

not currently do.

Response: The Magnuson-Stevens Act

requires that any management plan

prepared, and any regulation

promulgated to implement any such

plan, shall be consistent with the 10

national standards for fishery

conservation and management, other

provisions of the Magnuson-Stevens

Act, and other applicable laws. Indeed,

any Council regulatory submission

adopted by NMFS has been thoroughly

reviewed for its consistency with every

applicable legal requirement. There is

no exception to this requirement.

Authority: 16 U.S.C. 1801 et seq.
2654 Federal Register / Vol. 63, No. 11 / Friday, January 16, 1998 / Proposed Rules

Dated: January 9, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 98–1154 Filed 1–15–98; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 971231319–7319–01; I.D.

112697A]

RIN 0648–AK09

Fisheries of the Exclusive Economic

Zone Off Alaska; Maximum Retainable

Bycatch Percentages

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS proposes a regulatory

amendment to separate shortraker

rockfish and rougheye rockfish (SR/RE)

from the aggregated rockfish bycatch

species group and reduce maximum

retainable bycatch (MRB) percentages

for SR/RE in the Aleutian Islands

Subarea (AI) groundfish fisheries. This

action is necessary to slow the harvest

rate of SR/RE thereby reducing the

potential for overfishing. This action is

intended to further the objectives of the

Fishery Management Plan for the

Groundfish Fishery of the Bering Sea

and Aleutian Islands (FMP).

DATES: Comments must be received at

the following address by February 17,

1998.

ADDRESSES: Comments may be sent to

Sue Salveson, Assistant Regional

Administrator, Sustainable Fisheries

Division, Alaska Region, NMFS, P.O.

Box 21668, Juneau, AK 99802, Attn:

Lori Gravel or delivered to the Federal

Building, 709 West 9th Street, Juneau,

AK. Copies of the Environmental

Assessment/Regulatory Impact Review

(EA/RIR) prepared for this action may

be obtained from the same address or by

calling the Alaska Region, NMFS, at

907–586–7228.

FOR FURTHER INFORMATION CONTACT:

Alan Kinsolving, 907–586–7228.

SUPPLEMENTARY INFORMATION: Fishing

for groundfish by U.S. vessels in the

exclusive economic zone of the Bering

Sea and Aleutian Islands management

area (BSAI) is managed by NMFS

according to the FMP. The FMP was

prepared by the North Pacific Fishery

Management Council (Council) under

authority of the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act). Fishing by

U.S. vessels is governed by regulations

implementing the FMP at subpart H of

50 CFR part 600 and 50 CFR part 679.

Regulations at 50 CFR 679.20(e)

establish MRB percentages for

groundfish species or species groups

that are closed to directed fishing. The

MRB amount is calculated as a

percentage of the species on bycatch

status relative to the amount of other

species retained onboard the vessel that

are open for directed fishing. MRB

percentages serve as a management tool

to slow down the harvest rates of

bycatch species by limiting the amount

that can be retained on board a vessel.

By not placing the bycatch species on

‘‘prohibited’’ status, thereby prohibiting

all retention, MRB’s also serve to

minimize regulatory discard of bycatch

species when they are taken incidental

to other directed fisheries. MRB

percentages reflect a balance between

the need to slow harvest rates while at

the same time, minimizing the potential

for undesirable discard. Although MRB

percentages limit the incentive to target

on a bycatch species, fishermen can

‘‘top off’’ their retained catch with these

species up to the MRB amount by

deliberately targeting the bycatch

species.

At its June 1997 meeting, the Council

requested that NMFS initiate a

regulatory amendment to reduce the

MRB percentages for SR/RE to reduce

harvest rates of SR/RE in the groundfish

fisheries, thereby reducing the potential

for overfishing and minimizing industry

incentives to top off retained catch with

SR/RE. Based on the analysis presented

to the Council at its September 1997

meeting, the Council recommended that

SR/RE be separated from the aggregated

rockfish bycatch species group, and that

MRB percentages for SR/RE in the AI be

reduced to 7 percent relative to deepwater complex species (primarily POP)

and to 2 percent relative to shallowwater complex species (primarily Atka

mackerel). The MRB percentage relative

to arrowtooth flounder would remain at

0 percent. Further justification for these

MRB adjustments is discussed below.

Separation of SR/RE From Aggregated

Rockfish

MRB percentages are established for

aggregate rockfish species that are

closed to directed fishing. Rockfish

species were aggregated because of

concerns that separate MRB percentages

for each rockfish TAC category would

increase the overall amount of rockfish

that could be retained and increase

incentives to vessel operators to ‘‘top

off’’ their retained catch of target species

with rockfish. As part of the aggregate

rockfish MRB, the combined amounts of

rockfish on bycatch status must not

exceed specified percentages of other

retained species that are open to

directed fishing. These percentages are

15 percent relative to deep-water

complex species (other rockfish species,

sablefish, Greenland turbot, and

flathead sole) and 5 percent relative to

shallow-water complex species (Atka

mackerel, pollock, Pacific cod,

yellowfin sole, rock sole, ‘‘other

flatfish’’, squid, and other species).

SR/RE are highly valued, but amounts

available to the commercial fisheries are

limited by a relatively small TAC

amount that is fully needed to support

bycatch needs in other groundfish

fisheries. As a result, the directed

fishery for SR/RE typically is closed at

the beginning of the fishing year.

Nonetheless, bycatch amounts of SR/RE

can exceed TAC and approach the

overfishing level. In 1997, the SR/RE

bycatch in the Pacific ocean perch (POP)

and Atka mackerel trawl fisheries (778

mt and 162 mt, respectively) exceeded

the acceptable biological catch and

caused overfishing concerns. This

resulted in the closure of these and

other trawl fisheries in the AI, as well

as the hook-and-line gear fisheries for

Pacific cod and Greenland turbot.

Although closure of the individual

fishing quota (IFQ) fisheries for AI

sablefish and halibut was a possibility,

SR/RE bycatch did not reach the

overfishing level and those fisheries

remained open.

Based on the discussion above, NMFS

proposes to remove SR/RE from the

aggregated rockfish bycatch species

group and establish an SR/RE bycatch

species group for the AI.

Reduction of the SR/RE MRB

Percentages

The majority of SR/RE bycatch is

taken in the POP and Atka mackerel

fisheries. Based on data reported by the

industry since 1995, the amount of

retained SR/RE bycatch in the POP

fishery has ranged from 4.5 to 5.7

percent. During the same time period,

the retained amount of SR/RE in the

Atka mackerel fishery relative to other

retained catch has ranged from 0.08 to

0.2 percent.

Analyses of 1995–1996 observer data

from observed hauls in the AI Atka

mackerel and POP fisheries indicate that

most SR/RE bycatch is taken in the

minority of hauls. In the Atka mackerel

fishery during 1995 and 1996, only 2

percent of observed hauls had bycatch