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Code · REGISTER · 2007-09-04 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Notices

Notices. Final rule

70,231 words·~319 min read·/register/2007/09/04/07-4297

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BILLING CODE 7710-FW-P 72 170 Tuesday, September 4, 2007 Rules and Regulations Part IV Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 679 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod Allocations in the Bering Sea and Aleutian Islands Management Area; Final Rule DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 0612242903-7445-03; I.D. 112006I] RIN 0648-AU48 Fisheries of the Exclusive Economic Zone Off Alaska;
Pacific Cod Allocations in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce ACTION: Final rule. SUMMARY: NMFS issues a final rule to implement Amendment 85 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP)as partially approved by NMFS, and to implement recent changes to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This final rule modifies the current allocations of Bering Sea and Aleutian Islands management area
(BSAI)Pacific cod total allowable catch
(TAC)among various harvest sectors and seasonal apportionments thereof, establishes a hierarchy for reallocating projected unharvested amounts of Pacific cod from certain sectors to other sectors, revises catcher/processor
(CP)sector definitions, modifies the management of Pacific cod incidental catch that occurs in other groundfish fisheries, eliminates the Pacific cod nonspecified reserve, subdivides the annual prohibited species catch
(PSC)limits currently apportioned to the Pacific cod hook-and-line gear fisheries between the catcher vessel
(CV)and CP sectors, and modifies the sideboard restrictions for American Fisheries Act
(AFA)CP vessels. In addition, this final rule increases the percentage of the BSAI Pacific cod TAC apportioned to the Community Development Quota
(CDQ)Program. The proposed rule for Amendment 85 included regulations that would have subdivided the annual PSC limits currently apportioned to the Pacific cod trawl fisheries among trawl sectors. However, NMFS disapproved these regulations. Therefore, this final rule does not subdivide the annual PSC limits for Pacific cod trawl fisheries among trawl sectors. This final rule is necessary to implement Amendment 85 and reduce uncertainty about the availability of yearly harvests within sectors caused by reallocations and maintain stability among sectors in the BSAI Pacific cod fishery. This final rule also is necessary to partially implement recent changes to the Magnuson-Stevens Act that require a total allocation of 10.7 percent of the TAC of each directed fishery to the CDQ Program starting January 1, 2008. This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Act, the FMP, and other applicable laws. DATES: Effective January 1, 2008. ADDRESSES: Copies of Amendment 85 and the Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action are available by mail from NMFS, Alaska Region, P. O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; or via the Internet at the NMFS Alaska Region website at *http://www.fakr.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228 or *becky.carls@noaa.gov* . SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the exclusive economic zone of the BSAI under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 *et seq.* Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679. Background Amendment 85 was adopted by the Council in April 2006 to modify the current allocations of BSAI Pacific cod among various harvesting sectors. Currently, the BSAI Pacific cod non-CDQ TAC is fully distributed among the following eight competing harvest sectors: jig, fixed gear (pot and hook-and-line gear) CVs less than 60 ft (<18.3 m) length overall (LOA), hook-and-line CVs greater than or equal to 60 ft (≥18.3 m) LOA, hook-and-line catcher/processor vessels (CPs), pot CVs less than 60 ft (≥18.3 m) LOA, pot CPs, trawl CPs, and trawl CVs. Several FMP amendments, implemented beginning in 1994, have allocated Pacific cod among these sectors. Additional background on the prior history of Pacific cod allocations among different fishery sectors and the development of Amendment 85 is contained in the preamble to the proposed rule (72 FR 5654; February 7, 2007). Amendment 85 modifies the non-CDQ sector allocations currently in place to better reflect historical dependency and use by sector of the Pacific cod resource. The allocations were based in part on each sector's historical retained catch in addition to socioeconomic and community concerns. One of the fundamental issues identified in the Council's problem statement was the need to revise the existing allocations to better reflect historical retained catch by sector, thus reducing the need for frequent and significant reallocations of quota toward the end of the year from sectors that are unable or otherwise do not intend to harvest their entire allocation. However, the allocations to the small boat sectors are intended to expand entry-level, local opportunities in the BSAI Pacific cod fishery. Other than providing for this expansion, the allocations of Pacific cod non-CDQ TAC are intended to formally institutionalize the historical pattern of utilization of this resource. Amendment 85 and the proposed rule to implement Amendment 85 as originally submitted by the Council included provisions for the CDQ Program that allocated 10 percent of the Pacific cod TAC to the CDQ Program as a directed fishing allocation, created an incidental catch allowance of Pacific cod for the CDQ Program, and referred to the Coast Guard and Maritime Transportation Act of 2006, Public Law 109-241 (Coast Guard Act) as the basis for changes to the CDQ Program Pacific cod allocation. These provisions were consistent with requirements set forth in the Magnuson-Stevens Act, as amended by the Coast Guard Act, at the time Amendment 85 was submitted by the Council for Secretarial review. The Notice of Availability
(NOA)for Amendment 85 was published in the **Federal Register** on December 7, 2006 (71 FR 70943), with a 60-day comment period that ended February 5, 2007. During review by the Secretary of Commerce (Secretary) of Amendment 85, the CDQ provisions in the Magnuson-Stevens Act were amended once again by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act, Public Law 109-479 (Magnuson-Stevens Reauthorization Act), enacted on January 11, 2007. The Magnuson-Stevens Act now requires that allocations to the CDQ Program, including Pacific cod, increase to “a total allocation (directed and nontarget combined) of 10.7 percent effective January 1, 2008,” and that the total allocation may not be exceeded. As a result of the Magnuson-Stevens Reauthorization Act, the portions of Amendment 85 to the FMP that addressed the CDQ Program provisions were no longer consistent with the Magnuson-Stevens Act. On March 7, 2007, the Secretary partially approved Amendment 85, disapproving the CDQ Program provisions as inconsistent with the Magnuson-Stevens Act. As approved, Amendment 85 revised the current BSAI Pacific cod allocations of TAC among various non-CDQ harvest sectors (Table 1), changed incidental catch allowances, removed the groundfish reserve for Pacific cod, and added a new appendix to the FMP. Shortly after enactment of the Magnuson-Stevens Reauthorization Act, NMFS determined that the CDQ portions of the proposed rule as submitted by the Council were inconsistent with the newly amended Magnuson-Stevens Act, and returned the rule to the Council for revision pursuant to section 304(b) of the Magnuson-Stevens Act. The Council revised the CDQ portions of the proposed rule for Amendment 85 to incorporate the changes brought about by the Magnuson-Stevens Reauthorization Act, including a 10.7-percent allocation of Pacific cod to the CDQ Program. The Council submitted the revised proposed rule to NMFS, and it was published in the **Federal Register** on February 7, 2007 (72 FR 5654). The 45-day comment period on the proposed rule ended March 26, 2007. NMFS received a total of 16 letters on Amendment 85 and the proposed rule that contained 79 unique comments. A summary of these comments and the responses by NMFS are provided under Response to Comments below. Elements of the Final Rule A detailed review of the provisions of Amendment 85 and its implementing rule is provided in the preamble to the proposed rule (72 FR 5654; February 7, 2007), and is not repeated here. The proposed rule is available via the Internet and from NMFS (see ADDRESSES). The following provides a list and brief review of the regulatory changes made by this final rule to the management of the BSAI Pacific cod fishery. NMFS' rationale for approving portions of Amendment 85 and the regulatory provisions in this final rule is contained in the agency's response to comments. • Increase the percentage of the BSAI Pacific cod TAC apportioned to the CDQ Program to 10.7 percent; • Revise the allocations of BSAI Pacific cod non-CDQ TAC among various gear sectors; • Modify the management of Pacific cod incidental catch that occurs in other groundfish fisheries; • Eliminate the Pacific cod nonspecified reserve; • Establish a hierarchy for the reallocation of projected unused sector allocations to other ectors; • Adjust the seasonal allowances of Pacific cod to various sectors; • Subdivide among sectors the annual PSC limits apportioned to the Pacific cod hook-and-line gear fisheries; • Modify the sideboard restrictions for Pacific cod that are applied to the CP vessels listed as eligible under the AFA; and • Revise the definition for AFA trawl CP and add definitions for hook-and-line CP, non-AFA trawl CP, and pot CP. As described above, the Magnuson-Stevens Act now requires that 10.7 percent of the annual Pacific cod TAC be allocated to the CDQ reserve for directed and nontarget fishing combined, effective January 1, 2008. The 10.7 percent Pacific cod allocation to the CDQ reserve will be established annually in the harvest specifications process required under § 79.20(c). The CDQ reserve will continue to be deducted from the Pacific cod TAC before the remaining Pacific cod TAC is allocated to the other fishing sectors. All catch of Pacific cod by any vessel that is groundfish CDQ fishing, and by any vessel ≥60 ft (18.3 m) LOA that is halibut CDQ fishing, will continue to accrue against the CDQ group's annual allocation of Pacific cod and the CDQ groups will continue to be prohibited from exceeding their annual allocations of Pacific cod. Nine individual non-CDQ sectors will receive separate BSAI Pacific cod allocations. The allocations to the identified sectors were selected using retained legal catch history, including fishmeal, from 1995 through 2003, and other socioeconomic and community considerations. The allocations better reflect historical dependency and use by each sector, with specific consideration to allow for additional growth in the small boat, entry-level sectors. These allocations are listed in Table 1. Because Pacific cod has been harvested by the current sectors since the beginning of 2007 under the current allocation scheme, and the number of sectors and the overall amount of Pacific cod available to those sectors as an allocation and by season will change with this amendment, the Amendment 85 sector allocations cannot be implemented mid-year. Therefore, the allocations, and the final rule implementing Amendment 85, will be effective January 1, 2008. NMFS will amend the 2007-2008 harvest specifications to reflect the changes to the Pacific cod TAC allocations. Table 1. Percent sector allocations of Pacific cod non-CDQ TAC Sector % Allocation Jig vessels 1.4 Hook-and-line/pot CV <60 ft (18.3 m) LOA 2.0 Hook-and-line CV ≥60 ft (18.3 m) LOA 0.2 Hook-and-line CP 48.7 Pot CV ≥60 ft (18.3 m) LOA 8.4 Pot CP 1.5 AFA trawl CP 2.3
(8)Non AFA trawl CP 13.4 Trawl CV 22.1 Currently, NMFS sets aside an amount of Pacific cod from some sectors' allocations as an incidental catch allowance for use by those sectors when they are directed fishing for groundfish other than Pacific cod. NMFS establishes an incidental catch allowance either through the annual harvest specifications process or inseason. Under this final rule, an incidental catch allowance for the fixed gear sectors will continue to be established at the beginning of the fishing year by the Regional Administrator during the annual harvest specifications process. The incidental catch allowance for the fixed gear sectors typically has been set at 500 mt. The trawl sectors currently do not have an incidental catch allowance established at the beginning of the fishing year. NMFS has not specified an incidental catch allowance for Pacific cod in the trawl fisheries in the recent past because the trawl sectors typically do not catch an amount of Pacific cod that would necessitate a directed fishing prohibition. Also, the seasonal apportionments to the trawl sectors have ensured that a sufficient amount of Pacific cod is left for incidental catch in groundfish trawl fisheries other than Pacific cod later in the year. However, because NMFS anticipates that the trawl sectors will fully harvest the Pacific cod allocations under Amendment 85, NMFS also anticipates it will need to establish an incidental catch allowance for each trawl sector. Under this final rule, each trawl sector will have a separate incidental catch allowance so that no trawl sector can erode another trawl sector's total allocation and NMFS will develop incidental catch allowances for the trawl sectors on an inseason basis, rather than through the annual harvest specification process. Determining incidental catch needs inseason as fisheries progress will provide NMFS with more flexibility to adjust incidental catch needs for each trawl sector as a trawl sector's needs change. Current regulations for the annual harvest specifications process require that 15 percent of the BSAI TAC for Pacific cod be placed in the nonspecified reserve. Half of the nonspecified reserve, or 7.5 percent of TAC, is apportioned to the groundfish CDQ reserve. NMFS typically apportions the remainder of the Pacific cod reserve back to the non-CDQ Pacific cod TAC because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocation. The Council and NMFS determined that the Pacific cod reserve is no longer needed because a direct allocation to the CDQ reserve is specified, and because the Pacific cod TAC is fully allocated among CDQ and non-CDQ harvesting sectors and is fully harvested. Therefore, this final rule removes regulations requiring that 15 percent of the Pacific cod TAC be placed in the nonspecified reserve during a fishing year. Under current regulations, if the Regional Administrator determines that a sector will be unable to harvest the entire amount of Pacific cod allocated to that sector, NMFS reallocates the projected unused amount of Pacific cod to other sectors to obtain optimum yield from the BSAI Pacific cod fishery. This procedure will continue under this final rule, but reallocation decisions will be based in part on the new reallocation hierarchy established in this final rule, and also will take into account the capability of a sector to harvest an additional amount of Pacific cod. The reallocation hierarchy is fully described in the proposed rule and in the regulatory text below; therefore, that description is not repeated here. In general, NMFS will reallocate projected unused allocations in any inshore sector (i.e., CV sectors) primarily to other inshore sectors before reallocating that amount to any offshore sector (i.e., CP sectors) and, secondarily, within a gear type before reallocating that amount to another gear type. This reallocation hierarchy is consistent with the Council's decision to increase harvest opportunities for fleets delivering shoreside and represents a reasonable balance of National Standard 4, that allocations should be fair and equitable to all fishermen, and National Standard 8, to consider the importance of fishery resources to fishing communities. Although the intent of Amendment 85 is to revise sector allocations to better reflect historic dependence and use by sector and thus reduce the frequency and amount of inseason reallocations, the Council and the public noted that some reallocations are likely to continue. Under existing regulations, Pacific cod allocations are further apportioned by season for most gear sectors to protect prey availability for Steller sea lions (SSLs). The overall BSAI Pacific cod fishery is limited to seasonal percentages of TAC of no more than 70 percent between January 1 and June 10, and 30 percent between June 10 and December 31. Because this final rule modifies non-CDQ sector allocations, this final rule also modifies the seasonal allowances applicable to these sectors to maintain the overall 70/30 seasonal split for all gear types combined and to maintain, to the extent possible, the current percentage of the Pacific cod TAC harvested in the first half of the year by the non-CDQ sectors. Therefore, this final rule adjusts the seasonal allowances for each sector in response to the changes in sector allocations. This final rule also changes the jig sector seasonal allowances from 40-20-40 to 60-20-20. For the Pacific cod allocation to the CDQ Program, this final rule adds a prohibition to § 679.7(d) to clarify the current management measure that the CDQ groups are prohibited from exceeding the seasonal allowances of Pacific cod that are appropriate for the gear types that they use to catch Pacific cod CDQ. Also, the regulations regarding CDQ trawl seasonal allowances are revised to maintain the division between trawl CP and trawl CV that exists in the current regulations. The BSAI Pacific cod sector allowances for each sector, including CDQ, by season, as those seasons are specified under § 679.23(e)(5), are listed in Table 2. Table 2. Seasonal allowances of BSAI Pacific cod expressed as a percentage of each sector=s total allocation Gear Type A season B season C season CDQ Trawl 60% 20% 20% CDQ Trawl CV 70% 10% 20% CDQ Trawl CP 50% 30% 20% Non-CDQ trawl CV 74% 11% 15% Non-CDQ trawl CP 75% 25% 0% CDQ Hook-and-line CP, and hook-and-line CV ≥60 ft (18.3 m) LOA 60% 40% no C season Non-CDQ hook-and-line CP, hook-and-line CV ≥60 ft (18.3 m) LOA, pot CP, and pot CV ≥60 ft (18.3 m) LOA 51% 49% no C season CDQ jig vessels 40% 20% 40% Non-CDQ jig vessels 60% 20% 20% All other nontrawl vessels no seasonal allowance no seasonal allowance no seasonal allowance Total non-CDQ percentage 1/1 - 6/10 = 68% 6/10 - 12/31 = 32% Total CDQ and non-CDQ percentage 1/1 - 6/10 = 67% 6/10 - 12/31 = 33% Any unused portion of a seasonal allowance of Pacific cod from any sector other than the jig sector will continue to be reallocated to that sector's remaining seasons during the current fishing year. The Regional Administrator will continue to reallocate any projected unused portion of a seasonal allowance of Pacific cod from the jig sector to the <60 ft (18.3 m) LOA fixed gear CV sector. Under this final rule, NMFS will reallocate a projected unused portion of the seasonal allowance for the jig sector C season on or about September 1 of each year, if possible, to provide the last rollover from the jig sector when the <60 ft (18.3 m) LOA fixed gear CV sector may still be on the fishing grounds. The total amount of nontrawl halibut PSC for the non-CDQ fisheries currently is 833 mt of mortality. Typically, 775 mt is apportioned to the hook-and-line Pacific cod fishery and 58 mt to other nontrawl groundfish fisheries. This final rule does not change the total amount of nontrawl halibut PSC mortality allocated to the hook-and-line Pacific cod sectors or to the other nontrawl groundfish fisheries. Currently, the annual Pacific cod hook-and-line halibut PSC allowance is apportioned among three seasons. A seasonal halibut PSC allowance in the second season has not been specified in recent years; thus, a hook-and-line directed fishery for Pacific cod has not operated in the summer months. Halibut bycatch rates are typically high during the second season. The hook-and-line CP sector generally supports not providing a halibut PSC limit in the second season because the high halibut bycatch rates could close the directed Pacific cod fishery prior to the allocation being fully harvested. However, the hook-and-line CV sector, which is constrained by the same PSC limit, is comprised of smaller vessels with slower catch rates and a relatively small Pacific cod allocation compared to the hook-and-line CP sector. To enable the hook-and-line CVs to fish for Pacific cod in the summer months when the weather is more favorable for these smaller vessels, this final rule divides the halibut PSC allowance annually specified for the hook-and-line Pacific cod fishery between two fishery sectors: the hook-and-line CP sector and the hook-and-line CV sector (CVs ≥60 ft (18.3 m) LOA and CVs <60 ft (18.3 m) LOA combined). NMFS can provide varying amounts of halibut PSC by season to each sector, tailoring PSC limits to suit the needs and timing of each sector. NMFS decision to disapprove the proposed subdivision of annual PSC limits apportioned to the Pacific cod trawl gear fisheries is explained below. Sideboards are harvesting and processing restrictions that were placed on AFA trawl CVs and AFA trawl CPs operating in the BSAI pollock fishery to protect the interests of other fishermen and processors that did not benefit directly from the AFA. This final rule removes the sideboard limits of BSAI Pacific cod for the AFA trawl CPs. The establishment of a separate Pacific cod allocation to this sector negates the need for the BSAI Pacific cod sideboard which protects the historic share of the non-AFA trawl CP sector from being eroded by the AFA trawl CP vessels. For the same reason, BSAI Pacific cod is added to the list of exceptions to the groundfish species or species groups for which sideboard harvest limits are calculated for the listed AFA trawl CPs. The halibut and crab PSC sideboard limits for both AFA sectors are maintained as currently specified in regulations. This final rule modifies or adds definitions for CPs in accordance with the Consolidated Appropriations Act, 2005 (Public Law 108-447). This final rule revises the definition for AFA trawl CP and adds new definitions for hook-and-line CP, non-AFA trawl CP (also known as the head-and-gut sector), and pot CP. The new definition for hook-and-line CP is substantively consistent with the Consolidated Appropriations Act's definition for the longline CP subsector. Also, the definition for “CDQ reserve” is revised to change and update terms and to generalize the cross reference. All of the various housekeeping revisions described in the proposed rule also are made by this final rule. Element of the Proposed Rule Not Approved NMFS did not approve one regulatory change recommended by the Council and included in the proposed rule. For reasons explained below, NMFS did not approve the Council's recommendation to further apportion the Pacific cod trawl fishery crab and halibut PSC allowances among the trawl sectors. PSC regulations pertain to certain species caught in the process of fishing for groundfish that must be accounted for, but cannot be retained unless the vessel participates in the halibut and salmon donation program at § 679.26. Regulations at § 679.21 establish PSC limits for Pacific halibut, three species of crab, salmon, and herring in the BSAI trawl groundfish fisheries, and a separate Pacific halibut PSC limit for nontrawl gear. These regulations also establish allocations of each PSC limit between the CDQ and non-CDQ fisheries and a process for apportioning PSC among non-CDQ fisheries. Currently, the total amount of halibut PSC mortality for trawl gear in the non-CDQ fisheries is apportioned in the annual harvest specifications process among four fisheries, including the Pacific cod fishery. The current process of fishery apportionment will continue under this final rule. Generally, about 1,400 mt of halibut PSC mortality is apportioned annually to the BSAI Pacific cod trawl fishery, but this amount and actual use can vary from year to year. Crab PSC limits fluctuate as resource abundance fluctuates. In recent years, the trawl CV and trawl CP sectors' directed Pacific cod fisheries have closed most often
(1)due to reaching the seasonal TAC,
(2)to avoid exceeding specified halibut PSC allowances, or
(3)because a fishing season has ended. Reaching a crab PSC limit results in closure of a specific area to directed fishing. Unlike reaching a halibut PSC limit, reaching a crab PSC limit typically does not close BSAI Pacific cod trawl fisheries, although occasional crab PSC closures have occurred in the past. The Council recommended that the amount of halibut and crab PSC that would be apportioned to each trawl sector for the Pacific cod trawl fishery under this action be proportional to each sector's percentage of Pacific cod harvested in the Pacific cod target fishery from 1999 through 2003, including Pacific cod retained for meal production. Accordingly, the proposed rule divided the annual PSC allowance of halibut and crab specified for the Pacific cod trawl fishery category among the trawl sectors as follows: 70.7 percent for trawl CVs; 4.4 percent for AFA trawl CPs; and 24.9 percent for non-AFA trawl CPs. Because the AFA and non-AFA trawl CVs would share a Pacific cod allocation, the Council decided that this sector also should receive combined halibut and crab PSC allowances. The Council intended the apportionment of halibut and crab PSC among the trawl gear sectors that target Pacific cod to allow each sector to better plan its operations by being able to manage its PSC use during the fishing year without its PSC being eroded by another sector. Because the Council's apportionment of halibut and crab PSC was proportional to a trawl sector's harvest of Pacific cod in a target fishery, those sectors that harvested Pacific cod primarily as a target species, rather than as a species caught incidentally in other groundfish fisheries, would have received proportionally higher PSC allowances. Under this apportionment, the trawl CV and AFA trawl CP sectors would have received higher PSC allowances than they have historically used or needed, and the non-AFA trawl CP sector would have received significantly less PSC than it has historically used or needed to optimize groundfish harvest under current PSC limits. During its deliberation on adoption of Amendment 85, the Council understood and acknowledged that the percentage of halibut and crab PSC apportioned to the non-AFA trawl CP sector could be constraining compared to average historic use, but chose not to modify its decision. The Council determined that the amount of PSC that would be apportioned to the non-AFA trawl CP sector would fall within the range of what this sector has caught historically. Under the Council's recommendation and the proposed rule, the non-AFA trawl CP sector would have received 22 percent less halibut PSC and 37 percent less Zone 1 bairdi ( *Chionoecetes bairdi* ) crab PSC than it has used historically to prosecute its directed Pacific cod fishery and only about the average amount of opilio ( *Chionoecetes opilio* ) crab PSC. Conversely, the AFA trawl CP and the trawl CV sectors would have received about 200 percent and 40 percent more halibut PSC, 19 percent and 116 percent more bairdi crab PSC, and 3,144 percent and 20,904 percent more opilio crab PSC, respectively, than these sectors have used historically. Regulations implementing the FMP must be consistent with the Magnuson-Stevens Act, including the national standards, and other applicable law. NMFS determined that further apportionment of halibut and crab PSC among Pacific cod trawl sectors as proposed by the Council is inconsistent with National Standards 1, 4, and 9 of the Magnuson-Stevens Act. National Standard 1 requires that fishery management measures prevent overfishing while maintaining optimum yield from each fishery, National Standard 4 requires allocations to be fair and equitable among affected fishermen, and National Standard 9 requires that bycatch and the mortality of any bycatch be minimized to the extent practicable. Under the existing open access management of the non-AFA Pacific cod trawl fishery, NMFS determined that the non-AFA trawl CP sector is unlikely to be able to harvest its entire allocation of Pacific cod with the significant reductions in the proposed amount of halibut and crab PSC as detailed above. This would result in a de facto reduction in the non-AFA trawl CP Pacific cod allocation and would likely reduce this sector's ability to harvest other targeted species. The Council did not provide any explanation as to why an additional reduction in this sector's harvest of Pacific cod and other target species not the subject of this final rule is appropriate or consistent with National Standard 4 or other applicable law. Additionally, because the amount of PSC allocated to the AFA trawl CP and the trawl CV sectors is so much greater than their historical needs, the proposed PSC allocations to these sectors may create a disincentive for these sectors to minimize their bycatch of prohibited species, which is not consistent with National Standard 9. Finally, because the non-AFA trawl CP sector harvests a significant majority of species other than pollock and Pacific cod, an inconsistency with National Standard 1 exists. The non-AFA trawl CP sector would likely not have PSC remaining from its Pacific cod fishery that could then be used to achieve optimum yield from its other BSAI groundfish fisheries. Based on the reasons discussed above, therefore, NMFS disapproved the apportionment of the annual PSC allowances of halibut and crab mortality among the Pacific cod trawl gear sectors. Regulations pertaining to this element are not included in this final rule. These apportionments will continue to be specified during the annual harvest specifications process. NMFS notes that a separate amendment to the FMP, Amendment 80, was approved by the Secretary on July 26, 2007. Amendment 80 primarily allocates several BSAI non-pollock trawl groundfish fisheries, halibut PSC, and crab PSC among fishing sectors, and facilitates the formation of harvesting cooperatives in the non-AFA trawl CP sector. The proposed rule to implement Amendment 80 was published in the **Federal Register** on May 30, 2007 (72 FR 30052) and was available for public comment until June 29, 2007. Changes in Regulations from the Proposed Rule to the Final Rule NMFS made several changes to the proposed regulatory text in this final rule. First, NMFS has removed proposed § 679.21(e)(3)(v) from the final rule. Proposed § 679.21(e)(3)(v) included the proposed PSC allowances for the trawl sector which NMFS disapproved for the reasons explained above. Proposed § 679.21(e)(3)(vi) reverts back to § 679.21(e)(3)(v) in this final rule as a result of removing proposed § 679.21(e)(3)(v). NMFS also has removed references to proposed § 679.21(e)(3)(v) from the final rule. Second, the proposed regulatory text at § 679.20(a)(7)(i)(B)(1) regarding CDQ seasonal allowances combined all CDQ trawl vessels into one group. This final rule revises the proposed regulatory text to maintain the division between trawl CP and trawl CV that exists in the current regulations. No changes to the CDQ Program seasonal allowances were intended by the Council. Last, the proposed regulatory text at § 679.20(a)(7)(iii)(B) inadvertently included the heading “trawl catcher/processor sectors.” This heading is changed in this final rule to “trawl gear sectors” because this part of the reallocation hierarchy applies to all trawl gear sectors, not just the trawl CP sectors. Response to Comments As mentioned above, NMFS received 16 letters containing 79 unique comments during the public comment periods. Two non-industry letters were received and 14 letters were received from the fishing industry. A summary of those comments, grouped by subject matter, and NMFS' responses follow. Comment on the Intent of Amendment 85 *Comment 1:* One commenter supports the intent of Amendment 85 to modify the allocations of Pacific cod by codifying the fishery as it is actually occurring with the goal of reducing inseason adjustments (reallocations) from the trawl sectors to the hook-and-line sectors. Another commenter supports the intent of Amendment 85 to modify the allocations of Pacific cod to various sectors to better reflect historic usage. *Response:* NMFS notes the support for Amendment 85 and clarifies that one intention of this action is to better reflect historic use, not current use, as noted in this excerpt from the Council's problem statement: “To reduce uncertainty and provide stability, allocations should be adjusted to better reflect historic use by sector. The basis for determining sector allocations will be catch history as well as consideration of socio-economic and community factors.” Comments on Data Used *Comment 2:* The catch history information used in Amendment 85 was based on the best scientific information available (1995-2003 WPR (Weekly Production Report) and fish ticket data for retained catch). Preliminary data from 2004 and 2005 were also considered. It is appropriate to use WPR data to calculate catch history by sector for the CPs because it is the only data set common to all CP vessels. The use of WPR data was well noticed to the public. The non-inclusion of fishmeal was consistent with all previous Council actions involving allocation. *Response:* NMFS agrees that the catch history information used to develop Amendment 85 and presented in the proposed rule was based on the best scientific information available, consistent with National Standard 2 of the Magnuson-Stevens Act. Only legally retained catch was used in determining harvest history to avoid rewarding sectors with a high discard rate of Pacific cod. However, data presented in the EA/RIR/initial regulatory flexibility analysis
(IRFA)and considered by NMFS in its decision to approve the non-CDQ allocations in Amendment 85 did include cod destined for fishmeal production because it is legally retained catch. The analysis used data from Federal WPRs, which include fishmeal data, and the Alaska Department of Fish and Game (ADF&G) fish tickets to calculate sector specific harvest history. These databases were used because they are consistent across all sectors and every sector's production of Pacific cod is weighed and reported on WPRs and/or fish tickets. Total harvest was calculated based on retained legal harvest (including Pacific cod that was turned into fishmeal as the primary product) from WPRs and ADF&G fish tickets. In addition, total harvest (retained and discarded cod, including fishmeal) from NMFS blend data, and the catch accounting database was provided in Section 3.3.5 (Table 3-24) of the analysis. The NMFS blend data and data from the catch accounting database (used since 2003) utilize observer data, shoreside processor landings data, and fish tickets. In the cod target fishery, blend data are calculated from partial haul samples, including discards. Observer estimates are extrapolated for some sectors because of varying levels of observer coverage. Because the AFA trawl CP sector is 100 percent observed, the best information available for that sector would be the blend data. However, not all sectors would be treated equally if blend data were used because not all sectors are 100 percent observed. Therefore, the decision by NMFS to use WPR data and ADF&G fish tickets, and to include cod destined for fishmeal in the determination of harvest history is fair and equitable, and is consistent with National Standards 2 and 4 of the Magnuson-Stevens Act. *Comment 3:* The range of dates selected seriously over-weighted the pre-Amendment 46 period, an inept historical analogue to the current fishery and a period of time for which Amendment 85 was explicitly designed to supersede in order to better reflect current use and dependence. The express purpose of Amendment 85 is to conform allocations to existing realities. The years most relevant to existing realities are the most recent years and the Council failed to consider those years. Current allocations are based on historical usage prior to 1997, and the Council's problem statement seeks to address the fact that “the current allocations do not correspond with actual dependency and use by sectors.” Allocations set in 1997 closely tracked actual usage at that time to determine what are now the current allocations. Therefore, any history prior to 1997 should not be used because it is different from the “actual use” which Amendment 85 is intended to reflect. Beginning in 1998, Pacific cod had to be retained by all vessels as long as directed fishing was open; no sector should be penalized for discarded fish that were legally discarded prior to that. Comparing sectors that only target cod with sectors that both target and have incidental catches of cod is not comparing apples to apples. The Council considered data that contained only retained catch, so they understate the amount of Pacific cod the non-AFA trawl CPs needed to prosecute other fisheries in the years prior to 1998. Under the current regulatory scheme that fish would be retained and counted. In 1999, the AFA identified a number of AFA vessels and granted them exclusive access to BSAI pollock. The non-AFA trawl CPs were excluded from targeting pollock and increased their harvest share of Pacific cod. All but one of the AFA trawl CPs ceased to target Pacific cod. Rewarding one sector over the other for legal discard activity from 10 years prior to final Council action does not correspond to dependencies developed in light of the current management era, which began with a new cod allocation in 1997, 100 percent mandatory retention in 1998, and the AFA in 1999 which preempted the head-and-gut (H&G) fleet from the largest groundfish fishery in North America. Therefore, earlier years do not indicate “present participation” or “actual use.” *Response:* As stated in the response to Comment 1, the allocations established by Amendment 85 and this final rule are intended to better reflect a sector's historic use, not current use. In referencing the Council's problem statement, the commenter appears to equate “actual” with current, but this is not what the Council meant by “actual.” The problem statement also states, “The basis for determining sector allocations will be catch history as well as consideration of socio-economic and community factors.” One year or just a few recent years is not reflective of catch history and dependence over time. No one year in the history from 1995 to 2003 was given more weight than any other. The Council had several options available in setting the allocation percentages, including the harvest histories from several specific set of years, and an option to select direct allocation percentages from within the range of analyzed percentages. The Council chose to select allocations for the non-CDQ sectors that were within the range of analyzed percentages, and that more closely represent an average of retained catch for most sectors from 1995 through 2003. Harvest history for each sector was based on annual retained catch. The data presented in the EA/RIR/FRFA include historic harvest from 1995 through 2003 as the primary basis for determining historic use of Pacific cod by sector, although data from 2004 to 2005 are provided as well. The starting year of 1995 was chosen because it includes data from the early years of sector allocations of Pacific cod TAC that began in 1994 with the implementation of BSAI Amendment 24 to the FMP (59 FR 4009, January 28, 1994). This set of years also includes changes in Pacific cod harvest due to impacts beginning in 1998 from implementation of improved retention/improved utilization measures to reduce discards, from AFA legislation in 1999, and from Steller sea lion protection measures beginning in 2001, all of which had impacts on all sectors to varying degrees. Pacific cod has been a valuable species for a long time, therefore, it is important to also consider the time period before these major legislative and regulatory programs to determine historic dependence and use. Also, consideration of just three or four recent years does not show dependency by the sectors over time and may be unduly biased because of increased market demand for Pacific cod in recent years for some products, potential decreased participation due to BSAI crab rationalization, and the likelihood of competition for Pacific cod among sectors in anticipation of this action. At the time the Amendment 85 analysis was initiated by the Council in late 2004, the data from 2003 were the most recent available. Rather than continually adding years as the action progressed, the data analyzed for the allocation options stopped with the data from 2003. The Council and NMFS considered more recent (2004 and 2005) harvest data from the NMFS catch accounting database in reviewing harvest history to illustrate recent harvest trends as that information became available, but it was not available in the same format as the data from 1995 through 2003. However, for the reasons stated above, this two-year data set was not used as the sole basis for the allocations. Additionally, the data showed that some sectors increased their harvest of Pacific cod during the recent past, compared to their 1995 through 2003 harvest, and were not constrained by their allocation in doing so because they did not harvest their entire allocation. Not all sectors had the advantage of such flexibility. Therefore, based upon all these reasons, focusing on more recent years does not provide an equitable standard upon which to assess the dependence of Pacific cod by all sectors. The use of data from 1995 through 2003 provides a more appropriate basis to determine historic harvest share. In 1994 under Amendment 24, the trawl sectors were allocated 54 percent of the Pacific cod TAC, the fixed gear sectors received 44 percent, and the jig gear sector received 2 percent. This allocation was approximately equal to the average percent of Pacific cod taken with trawl gear or fixed gear between 1991 and 1993. In 1997 under Amendment 46, the allocation to the trawl sector was reduced to 47 percent and then equally divided between trawl CPs and trawl CVs. The reduced allocation to the trawl sector was determined by an industry negotiating committee and closely represented the harvest percentages taken by trawl and fixed gear at that time while retaining the 2-percent allocation for jig gear. The split between trawl CVs and trawl CPs was agreed upon by a separate negotiation between representatives of the trawl sectors to maintain a directed fishery for trawl CVs which were more dependent on directed fishing for Pacific cod. These basic trawl and fixed gear percentage allocations of Pacific cod TAC have remained unchanged since 1997. The fixed gear sectors were divided in 2000 and the pot sectors in 2004, but the overall split between trawl and fixed gear sectors and between trawl CPs and trawl CVs did not change. The high discard rates of Pacific cod is an issue that the Council has been addressing for some time. The problem statement for Amendment 46 states: “Management measures are needed to ensure that the Pacific cod TAC is harvested in a manner which reduces discards in the target fisheries, reduces PSC mortality, reduces nontarget bycatch of Pacific cod and other groundfish species, takes into account the social and economic aspects of variable allocations and addresses impacts of the fishery on habitat.” The Council's intent under Amendment 85 was to calculate historic catch by using retained harvest of Pacific cod, because Pacific cod is required to be retained (in both the directed fishery, and up to the maximum retainable allowance when the directed Pacific cod fishery is closed) and it was not the intent to “reward” sectors that have higher discards of Pacific cod. This is why discarded Pacific cod was not included in the harvest history data. All of the harvest data provided were considered in the allocation decision by the Council and by NMFS. Most sectors have incidental catch of Pacific cod in their fisheries. The exceptions are the jig and pot gear sectors. By using historic catch over the same set of years and using the same data set for all sectors (see response to Comment 2), all sectors were treated fairly and equitably, consistent with National Standard 4 of the Magnuson-Stevens Act. *Comment 4:* The use of WPRs to calculate the round weight of cod harvested by the AFA trawl CP sector for the years after 1998 is a significant source of error in the catch history tables set forth in the draft analysis. The use of observer reports and scale weights is universally recognized as a more accurate way of calculating a vessel's total catch than the somewhat antiquated WPR approach. The use of WPR data as a basis for the AFA trawl CP catch history is inconsistent with the requirement that management measures be based on “the best scientific evidence available.” The draft analysis should be revised to clarify that observer data (not WPRs) represent the best available data for the post-1998 catch history of the AFA trawl CP sector. *Response:* The Council's and NMFS' use of WPR data rather than NMFS blend data and the catch accounting database, which both use observer data as one component, is explained in the response to Comment 2. WPR data and blend data estimate catch using different methods. WPR data represents a consistent database across all sectors; every sector's product is weighed, and landed weights are converted to round weights. The blend data estimate catch based on vessel catch reports augmented by observer data, and are used for in-season management. The blend data use observer estimates of discards, which affect the total catch estimates. In the cod target fishery, observer estimates are based primarily on partial haul sampling. In general, CPs <125 ft (38.1 m) LOA are observed 30 percent of the time, and blend data use WPR data when there are no observer data available. Finally, during the years considered to establish allocations (1995 2003), the more accurate flow scales were used more extensively in the AFA CP sector than in other sectors. Because the AFA trawl CP sector is 100 percent observed, the best information available for that sector would be the blend data. However, blend data are not available by vessel length for the CV sectors, which primarily affects the <60 ft (18.3 m) fixed gear CVs. Also, the non-AFA trawl CPs <125 ft (38.1 m) LOA are observed 30 percent of the time, so WPR data are used when there are no observer data available. These two datasets rely on different estimation methods and do not provide identical estimates of catch by sector. Use of blend data for some sectors and WPR data for other sectors would be problematic because any estimation error among sectors could be exacerbated if different datasets are used to determine sector specific allocations. Therefore, the best available data when comparing Pacific cod harvests among all sectors for the determination of harvest history is WPR data and ADF&G fish tickets (see response to Comment 2). Acknowledging that observer data are used to monitor catch for this one sector because it is 100 percent observed would not change the decision on the amendment. Therefore, no changes will be made to the analysis concerning this subject. *Comment 5:* The data used in the draft analysis excludes Pacific cod utilized in the production of meal from the AFA trawl CP's catch history. It is inappropriate for the draft analysis to exclude or otherwise discount Pacific cod used for meal production from any of the tables used to depict catch history for the AFA trawl CP sector. There is no justification for excluding the official catch data from an analysis that purportedly reflects the catch history of this sector. The combined effect of using WPR-based catch accounting to calculate the AFA trawl CP catch history and excluding the catch used to make meal results in an inaccurate estimate of the sector's catch history that understates the AFA trawl CP sector's historic use and dependency on cod. The draft analysis should be revised to clarify that meal is a “legally retainable product” insofar as that term is used in connection with Amendment 85 and other regulations governing the BSAI groundfish fishery; and that all legally retained cod taken as bycatch in the directed pollock fishery will be included in the AFA trawl CP sector's catch history for purposes of Amendment 85. *Response:* The concern about fishmeal not being included in calculations of harvest history was a result of some commenters relying on a draft analysis distributed prior to the April 2006 Council meeting. As explained in the response to Comment 2, WPR data represent the best available information for comparing Pacific cod catch across and among sectors. WPR data include Pacific cod destined for fishmeal. However, in the early development of the Amendment 85 analysis, data for Pacific cod destined for fishmeal were removed from the WPR data and Council analytical documents up to the April 2006 Council meeting continued to exclude fishmeal data. At the April 2006 Council meeting, in light of public comment, WPR data that included fishmeal data was provided for Council consideration. As explained in response to Comment 2, the history considered in setting non-CDQ allocation percentages in Amendment 85 included Pacific cod that was turned into fishmeal as the primary product. Several tables that incorporated fishmeal in the harvest history were presented to the Council in April 2006 for its consideration and similar tables were included in the Secretarial review draft analysis issued in January 2007. The analysis was not revised in light of this comment because the data on fishmeal were considered and included in setting the Pacific cod allocation to the AFA trawl CP sector and the historic catch data including fishmeal are presented in the analysis. *Comment 6:* The H&G sector allocation of 13.4 percent is 0.2 percent less than the sector's straight 95-03 average. The action was taken in 2006, however the last year considered was 2003. This sector's “historic use” and “actual dependency” are not adequately reflected if 2004 and 2005 are not taken into consideration for a final action taken in 2006. The Magnuson-Stevens Act instructs that recency must be considered as well. By allocating the H&G sector an amount of cod less than its average harvest for the historical period of 1995 to 2003, the Council simply ignored the present participation consideration. *Response:* NMFS disagrees that the non-AFA trawl CP sector was allocated an amount of Pacific cod that is less than its average historic harvest for the period 1995 to 2003 (average historic harvest). NMFS believes that the commenter's reference to 13.6 percent is likely based on data in the analysis that excludes fishmeal in the calculation of average sector harvest share (see Table 3-11 in the EA/RIR/FRFA). The Council and NMFS included fishmeal in determining historic harvest. When fishmeal is included in the calculation, the head-and-gut (non-AFA trawl CP) sector average historic harvest from 1995 to 2003 is 13.4 percent. The non-AFA trawl CP sector received exactly its 1995 to 2003 average historic harvest as its allocation under Amendment 85. The Council and NMFS also considered more recent participation in 2004 and 2005, but for reasons provided in the response to Comment 3, chose not to include more recent participation in determining historic use and dependence. *Comment 7:* The draft analysis should be revised to include at least one table (based on official catch data and including fish utilized in meal production) that clearly shows the total retained catch of cod by the AFA trawl CP sector during the period following adoption of the AFA (e.g., the years 1999-2003). *Response:* Appendix G of the analysis prepared for Amendment 85 and this rulemaking (see ADDRESSES ) includes Pacific cod catch data, including fishmeal, for the AFA trawl CP sector for the years 1995 through 2003. Therefore, NMFS does not need to revise the analysis to include this table. *Comment 8:* Neither the EA/RIR/IRFA before the Council nor the Secretarial draft had simply one table which showed the complete picture of each sectors' history. It takes three tables to complete the 1995-2005 picture. *Response:* Table 3-24 in the Secretarial review draft of the EA/RIR/IRFA gives the data for BSAI Pacific cod non-CDQ allocations, catch and reallocations by sector from 1995 through 2005. The proposed rule purposely used two tables and the Secretarial review draft analysis used three to present the historical catch data as the average share of the retained Pacific cod harvest over various time periods. Table 3-9 in the EA/RIR/IRFA was used to show the complete picture of each sector's history for the years under consideration for allocations (1995 - 2003), and Table 3-12 shows the catch history for 2004 and 2005 in a two-part table. The data from 1995 through 2003 used in Table 3 in the proposed rule were from a different source than the data for 2004 and 2005 used in Table 4. Separate tables were used to help draw attention to this fact in the proposed rule and for the same reason in the EA/RIR/FRFA. *Comment 9:* The proposed allocation to the H&G sector cannot be justified by the fact that the H&G sector had a lower harvest share in 1995-1998, nine to twelve years ago and prior to the implementation of several significant regulatory changes culminating in the AFA that fundamentally changed the dynamics of the fishery, and that as a result its “average historical” retained catch was 13.4 percent. The sector's performance in those earlier years is of no relevance to the goal that the Council was seeking to achieve. *Response:* NMFS disagrees. The reasons why data from 1995 through 1998 are included in the calculation of average historic harvest are explained in the response to Comment 3. While the data may represent a period of time when the non-AFA trawl CP sector was not maximizing its retained harvest of Pacific cod, it does represent a period of time when other sectors were maximizing their harvest. The Council's goal was to adjust allocations “to better reflect historic use by sector.” NMFS determined that the years selected by the Council are consistent with that goal. *Comment 10:* The Council was not required to use one particular set of “correct” years in conforming the allocations to existing reality, but the allocation to the non-AFA trawl CP sector was clearly beyond any rational assessment of “actual use.” Within the range of options presented to the Council in the Amendment 85 document (April draft), the period from 2000 to 2003 clearly was most reflective of actual current participation in the fishery. Under that approach, the non-AFA trawl CP sector averaged 16.2 percent. At the other extreme, under the option least reflective of actual current participation, from 1995 to 2002, the non-AFA trawl CP sector average 13.2 percent. Incredibly, the Council chose to allocate an even smaller share to the non-AFA trawl CP sector than the 1995-2003 average of 13.6 percent. The Council's proposal of 13.4 percent does not reflect the non-AFA trawl CP sector's current or even its relevant recent participation in this fishery. This reduction was not part of an across-the-board cut that treated all sectors equitably. Some sectors received an increase above their actual use and the non-AFA trawl CP sector received the largest decrease. *Response:* See the response to Comment 3 for a discussion of the years considered to determine average historic harvest. The non-AFA trawl CP sector catch history from 1995 through 2003 is 13.6 percent only if fishmeal is not included. However, the Council's allocation recommendation included Pacific cod that was turned into fishmeal as the primary product when developing the Pacific cod sector allocations because Pacific cod destined for fishmeal production is legally retained catch (see response to Comment 2). Table 3-119 of the EA/RIR/FRFA shows that when fishmeal is included in the calculation, which the Council did in taking final action, the non-AFA trawl CP sector's average from 1995 through 2003 matches exactly the new allocation: 13.4 percent of the non-CDQ Pacific cod TAC. Some sectors received allocations that are greater than their historic harvest during 1995 through 2003 and others less, but the non-AFA trawl CP sector was the only sector to receive exactly its average share of the retained harvest from 1995 through 2003. *Comment 11:* Comparing the harvest information from 2004 and 2005 with the Amendment 85 allocations reveals that the non-AFA trawl CP sector suffered nearly an order of magnitude loss greater than any other sector (most of which received allocations at or above their 2004-2005 average). Comparing the Amendment 85 allocation to the average of 1998-2003 (a range from when cod became a 100-percent retention species to the last year of data the Council had when making their decision), the non-AFA trawl CP fleet still lost far more than any other sector going from an average of 15.7 percent to 13.4 percent (relative loss of 14.5 percent). *Response:* The Council had harvest data from 2004 and 2005 available when it took final action on Amendment 85. It was not available in the same format as the years from 1995 through 2003, but it was considered by the Council. The non-AFA trawl CP sector allocation is exactly its catch history from 1995 through 2003. As stated previously (see responses to Comments 2 and 3), the Council chose to look at history and dependency over a number of years, not just one or two recent years. Although the non-AFA trawl CP sector's retention of Pacific cod has increased over the last several years, that sector always had the opportunity to retain Pacific cod in higher amounts than they historically did. For various reasons, the sector chose to focus on other species as a business decision. The Council determined that the new allocations were needed to better reflect historic use and chose not to define historic use as just the last two or three years. Comments on Allocation Issues *Comment 12:* The increase in allocation percentage to fixed gear from trawl gear is consistent with the historic trend in the way the BSAI cod fishery is prosecuted as well as with previous Council actions regarding BSAI cod allocations in Amendments 24 and 46. Stabilizing the increased historic proportion of fixed gear harvest via allocation of BSAI Pacific cod in Amendment 85 will ensure the continued experience of reduced halibut and crab bycatch, improved product quality, and reduced benthic impacts associated with fixed gear cod fisheries as compared to trawl cod fisheries. *Response:* Amendment 85 is intended to better reflect historic usage by the various harvest sectors while addressing coastal community needs. The Pacific cod allocations to the trawl and fixed gear sectors set in 1994 under Amendment 24 (54 percent and 44 percent, respectively), were approximately equal to the average percentage of Pacific cod taken with these gear types during 1991 through 1993, with a 2-percent allocation for jig gear. The Pacific cod allocations set in 1996 under Amendment 46 were arrived at by industry negotiation and were chosen to represent more closely the harvest percentage taken by trawl and fixed gear sectors at that time (47 percent and 51 percent, respectively), while maintaining the 2-percent allocation for jig gear. Under Amendment 85, if the harvest sectors were similarly grouped, the allocations would be 37.8 percent for trawl gear, 60.8 percent for fixed gear, and 1.4 percent for jig gear. NMFS has determined that the sector allocations proposed under Amendment 85 better reflect the historic use by the various harvest sectors as a whole than do the current sector allocations, and has approved them. NMFS notes the second comment. *Comment 13:* All sectors received amounts that reflect recent participation, except the AFA CPs which received more, and the small boat fleets which also received much more than their history, as a policy decision. Only the H&G fleet has suffered a set back so large that both its directed fishery and its non-cod directed fisheries are jeopardized, while the other sectors' annual fish plans were not affected. *Response:* NMFS approved the non-CDQ sector allocation percentages in Amendment 85. The following is NMFS' rationale for that decision. Amendment 85 will separate trawl CPs into two sectors, AFA and non-AFA, for purposes of Pacific cod allocations. The AFA trawl CP fleet will be restricted to a separate allocation slightly greater than its historic catch from 1995 through 2003, but 62.3 percent below its current sideboard limit for catch of Pacific cod. Separating the two sectors will protect the historic catch of the non-AFA trawl CPs better than leaving these two sectors combined with a lower shared allocation that reflects their combined history, but with the same AFA sideboard limit. Although the AFA trawl CP sector decreased its average harvest share between 2000 and 2003, this fleet is a cooperative that more likely will catch its Pacific cod allocation in a manner that minimizes the bycatch of non-target species. Bycatch is a consideration under National Standards 4, 5, and 9 of the Magnuson-Stevens Act. Because the allocation to the AFA trawl CP sector is slightly higher than this sector's historic catch, it should be sufficient for this sector to cooperatively manage its allocation and maintain a directed fishery, in addition to meeting its needs for incidental catch in its pollock and yellowfin sole fisheries. This ability to maintain the opportunity for these few directed fisheries is important because AFA sideboard provisions restrict this sector's ability to participate in other BSAI fisheries and AFA trawl CPs are prohibited from fishing in the Gulf of Alaska. Only the non-AFA trawl CP sector will receive an allocation equal to its exact average historic harvest share from 1995 through 2003. The allocation to this sector is reflective of its dependence on the Pacific cod fishery over many years. About half of its historic Pacific cod harvest occurs as incidental catch in flatfish (primarily yellowfin sole and rock sole), Atka mackerel, and rockfish fisheries. The BSAI flatfish fisheries are the primary revenue source for this sector and often incur high incidental catches of Pacific cod. Note that the trawl CP sectors combined have contributed 49.1 percent on average to the total annual reallocations of Pacific cod to other non-trawl sectors between 2000 and 2004. Based on environmental considerations, the nature of these sectors' fisheries, average historic harvest, and to protect the non-AFA trawl CP harvest, NMFS determined that the allocations under Amendment 85 to the trawl CP sectors are a reasonable balance of the National Standards under the Magnuson Act. The hook-and-line CV ≥60 ft (18.3 m) LOA sector will receive an allocation above its average historic harvest, and this allocation will no longer be shared with the hook-and-line CV <60 ft (18.3 m) LOA sector. This will allow Pacific cod to remain open to directed fishing for a longer period of time. Existing regulations governing bycatch require that all Pacific cod be retained when directed fishing is open. Thus, discard of Pacific cod by the hook-and-line CV ≥60 ft (18.3 m) LOA sector should be reduced when targeting other species, particularly Pacific halibut, and to a lesser extent in its sablefish and rockfish fisheries, an important consideration under National Standards 4, 5, and 9. The allocations are not based solely on historic harvest share, but also are based on socioeconomic considerations, consistent with National Standard 8. For this reason, the allocations are higher than the average historic harvest for the jig sector and the fixed gear CV <60 ft (18.3 m) LOA sector. Under National Standard 8, NMFS must take into account the importance of fishery resources to fishing communities to provide for the sustained participation of such communities. By maintaining allocations above the average harvest history for these two entry level sectors, Amendment 85 maintains and expands local opportunities for resident fishermen in small, coastal communities near the fishing grounds to participate in the BSAI Pacific cod fishery. The increase in the allocation to the fixed gear CV <60 ft (18.3 m) LOA sector from 0.7 to 2.0 percent of the non-CDQ Pacific cod TAC is fair and equitable. This sector has been successfully harvesting part of the allocation to the general hook-and line CV and pot CV allocations, all of its allocation since 2002, and reallocations from the jig sector since 2004. Its share of the harvest in 2004 and 2005 averaged 1.7 percent. The small CV sectors have been favored in previous allocation measures for BSAI Pacific cod to encourage growth in this entry level sector. Such actions have been successful as illustrated by the steadily increasing harvests by this small boat sector. The allocation of 2.0 percent to the fixed gear CV <60 ft (18.3 m) LOA sector is necessary to provide sufficient Pacific cod for this sector to harvest under its own direct allocation, separate from the hook-and-line and pot CV ≥60 ft (18.3 m) LOA sector allocations these small boats currently may fish under, and to allow continued growth in this small boat sector. Although the jig sector allocation of 1.4 percent of the Pacific cod TAC is 14 times higher than its historic harvest share, it is a reduction from it current allocation of 2.0 percent. The intent of this allocation is to provide for an entry level fishery. The reduced allocation to the jig sector still allows for growth in this sector and is closer to its historic harvest share than its current allocation. Additionally, this allocation serves as a “bank” for anticipated growth in the harvest of Pacific cod in all catcher vessel sectors given that unused portions of the jig gear allocation are annually reallocated first to the fixed gear <60 ft (18.3 m) LOA sector (another small boat, entry-level sector), and then to other CV fleets that deliver to fishing communities. Also, under Amendment 85, reallocations from the jig sector will be available to the fixed gear <60 ft (18.3 m) LOA sector earlier in the year. Being able to harvest the fish earlier in the year when the weather is preferable for these small boats (safety is a consideration under National Standard 10), should enable this sector to harvest more of the reallocated fish than it does currently. Therefore, in light of the likelihood of reallocations of any unused allocations to the <60 ft (18.3 m) LOA fixed gear sector, and to other CV fleets that deliver shoreside to fishing communities, the allocation of 1.4 percent of the Pacific cod TAC to the jig sector is fair and equitable and meets the purpose and need of the action to consider socio-economic and community factors. For the small boat sectors to receive allocations above their average historic harvest, some sectors must receive less than their average historic harvest. The four sectors that will receive lower allocations than their average historic harvests are the pot CV ≥60 ft (18.3 m) LOA, hook-and-line CP, pot CP, and trawl CV sectors. Their allocations represent a reasonable balancing of Magnuson-Stevens Act National Standard requirements while also meeting the purpose and need of the action. The pot CV ≥60 ft (18.3 m) LOA sector and the hook-and-line CP sector will receive allocations that are closer to their average historic harvests than are their current allocations and are only slightly less than their average historic harvests. Because the small boat sectors will receive allocations above their historic harvest it is expected that the pot CV ≥60 ft (18.3 m) LOA sector and the hook-and-line CP sector also may receive reallocations toward the end of the fishing year, which will make their share of the TAC closer to their historic share of the harvest. Additionally, the pot CV ≥60 ft (18.3 m) LOA and trawl CV sectors may receive reallocations of Pacific cod from other CVs or from CPs of the same gear type. Also, the pot sectors are primarily dependent on crab fisheries rather than on the Pacific cod fishery. The pot CP and trawl CV sectors are the only sectors, other than the fixed gear <60 ft (18.3 m) LOA sector, that will receive allocations that are less reflective of their average historic harvests between 1995 and 2003. Recent trends demonstrate that the pot CP and the trawl CV sectors' harvest shares have decreased in recent years, such that the allocations under Amendment 85 better reflect these sectors' average harvest shares between 2000 and 2003 than do the current allocations. The AFA trawl CP sector was the only other sector that decreased its average harvest share between 2000 and 2003, but was not selected to fund the increases in other sector allocations for the reasons stated above. The allocation to the pot CP sector is fair and equitable because of its more recent decreased harvest share and its greater dependence on the crab fisheries. Although the trawl CV sector allocation is reduced, a combined allocation of Pacific cod to the AFA and non-AFA trawl CVs will take advantage of the existing AFA inshore cooperative structure for discussion and agreement concerning access to fishing grounds and harvesting activities in a manner that optimizes the allocation to this sector for all CVs. Additionally, public testimony at the April 2006 Council meeting requested that the two trawl CV sectors remain combined. A combined allocation also is larger than separate allocations to either the non-AFA or AFA CVs, thus providing some protection in the event that trawl vessels that have not historically participated in the fishery choose to do so. *Comment 14:* The AFA trawl sectors would receive the largest aggregate increased share of the Pacific cod fishery under the Council proposal - 1.2 percent over the combined AFA trawl CP and trawl CV history from 1999 through 2005. *Response:* The data presented in the analysis include historic harvest from 1995 through 2003 as the primary basis for determining historic use of Pacific cod by sector, although data from 2004 to 2005 are presented as well. The Council did not make its proposal based on catch history from 1999 through 2005 based on reasons given in response to Comment 3. The trawl CV and AFA trawl CP sectors do not receive a combined allocation. The AFA trawl CP sector will receive a share of the non-CDQ Pacific cod TAC that is 0.1 percent higher than its historic share from 1995 through 2003. The AFA trawl CV sector will receive an allocation in combination with the non-AFA CV sector. That allocation will be 1.9 percent less than its historic share from 1995 through 2003. Combining the AFA trawl CP sector with the trawl CV sector results in a combined decreased share of 1.8 percent of the non-CDQ Pacific cod TAC. *Comment 15:* The proposed allocation of 13.4 percent to the non-AFA trawl CP sector is significantly less than this sector's actual dependence and use. The allocation scheme proposed by Amendment 85 will put the H&G sector in an economically precarious position, slashing its recent usage of cod by up to 30 percent based on its harvest in 2004. The APA requires agency actions, such as Amendment 85, to bear a rational relationship to the problems they are intended to address. Reducing the non-AFA trawl CP's allocation so substantially below its actual harvest levels over the past seven years does not serve the Council's “primary objective” of reducing the need for annual reallocations. The Notice of Proposed Rulemaking relies upon figures that clearly demonstrate this point. The Notice of Proposed Rulemaking specifically points out that the non-AFA trawl CP sector's retained harvest “has not been less than 15.3 percent since 2000.” There is no rational basis in the record to justify the reduction in cod TAC suffered by the H&G sector in this Council recommendation. *Response:* The allocations were based on long-term dependence and catch history over many years. The harvest history was not based on just one or two years of harvest by a particular sector (see responses to Comments 3 and 13). The Council had the option to select from six sets of specific years or to select percentages for the Pacific cod allocations that fall within the range of percentages analyzed. The Council chose the latter course of action. Thus, as the information was presented in the analysis, the focus was on Pacific cod harvest history from the years 1995 through 2003. NMFS recognizes that the selection of certain year sets will be more beneficial to some sectors than the selection of other year sets. In setting the percentages, the Council made a reasonable balance of the National Standards under the Magnuson-Stevens Act, particularly National Standards 4 and 8 which deal with allocations and community considerations respectively. In examining the Council's action, NMFS determined that the allocations reasonably reflect the historic harvest of Pacific cod by each sector between 1995 and 2003. NMFS determined that consideration of the earlier years (1995 through 1998) is reasonable and that calculating harvest history through 2003, rather than 2004 or 2005, is reasonable for the reasons given in response to Comment 3. As stated in the proposed rule, the primary objective of the Council was to reduce the level and frequency of annual reallocations, and thus enhance stability so each sector may better plan its fishing year and operate more efficiently. Annual reallocations are expected to be reduced under Amendment 85, and are thus related to the revised allocations to each sector that more closely reflect historic use by most sectors than do current allocations, while considering socioeconomic and community factors. As noted in the response to Comment 13, nearly half of the annual reallocations between 2000 and 2004 have come from the trawl CP sectors and those reallocations averaged 19.4 percent of the initial trawl CP sector allocation. *Comment 16:* National Standard 4 provides that “If it becomes necessary to allocate or assign fishing privileges among various U.S. fishermen, such allocation shall be...fair and equitable to all such fishermen...” Elaboration of this requirement under § 600.325(c)(3)(i)(A) requires that the particular allocation chosen be “rationally connected to the achievement of OY [optimum yield] or the furtherance of a legitimate FMP objective...” and that “the motive for making a particular allocation should be justified in terms of the objectives of the FMP; otherwise, the disadvantaged user groups or individuals would suffer without cause.” In this case, the objective to conform allocations to current usage (to reduce late-year reallocations of unharvested fish) and dependency cannot be rationally served by reducing the non-AFA trawl CP sector allocation to one-quarter to one-fifth below its actual recent harvest levels or by allocating more than recent harvest levels to other sectors. Under National Standard 4, an allocation may impose a hardship on one group if it is outweighed by the total benefits received by another group or groups. The Council would have had to make an estimate of the benefits and hardships imposed by the allocation and compare them to those of alternative allocation schemes, including the status quo. The Council did not do that. *Response:* NMFS has determined that the allocations are fair and equitable to all sectors. Between the two quotes from the Code of Federal Regulations is the sentence “Inherent in an allocation is the advantaging of one group to the detriment of another.” This action also is designed to increase the Pacific cod allocation to the small boat sectors which is a legitimate FMP objective. The management objectives in the FMP include promoting sustainable fisheries and communities. Because the small boat sectors deliver to fishing communities, increasing allocations to these sectors should promote these fishing communities. This action also will decrease the amount of Pacific cod that is reallocated to other sectors later in the season, facilitating these sectors' ability to achieve optimum yield by better planning their fishing year and operating more efficiently. The response to Comment 3 provides NMFS' rationale for why the years 1995 through 2003 are a reasonable, fair, and equitable set of years for determining the average historic share of the retained Pacific cod harvest. Using that set of years, the non-AFA trawl CP sector received a fair and equitable allocation which is exactly its average historic harvest share from 1995 through 2003. Please see the response to Comment 13 for a discussion of all sectors' allocations. *Comment 17:* Every sector was allocated its target and incidental cod needs, except the H&G sector. This discrepancy is not specifically highlighted in the draft Secretarial Review. The H&G fleet was allocated an insufficient amount for accommodating both a directed fishery and incidental catch needs and, by inference, was given a choice: target or bycatch, but not both. This violates National Standard 4, that allocations be fair and equitable to all fishermen. When one sector must decide between its target fishery and its other groundfish fisheries, while others have been allocated in excess of or close to their recent harvests, it is neither fair nor equitable, particularly in light of the fact that it was never addressed in the EA/RIR/IRFA. In economic terms, NMFS' inseason manager estimates that under Amendment 85, the H&G sector would lose about 10,000 metric tons of cod in 2007 compared to expected harvest under the status quo. NMFS' in-season manager also estimates that in order to account for the incidental catch needs of the fleet for its flatfish and other fisheries, the agency will only be able to allow for a directed fishery of 10 or 11 days, whereas currently, the directed cod fishery is seldom closed. Owners, employees, observer providers, support companies, and the ports the vessels call on may suffer economic hardship under Amendment 85. We respectfully request that the Secretary disapprove the allocations. *Response:* NMFS has approved the non-CDQ allocations of Pacific cod under Amendment 85. Every sector, except the small boat sector, was allocated an amount of Pacific cod that reflects its average historic harvest and dependence over many years that included target and incidental catch to the extent that incidental catch was retained. Information on the historic harvest share for the non-AFA trawl CP sector was provided in the EA/RIR/FRFA, just as it was for all the other sectors. The non-AFA trawl CP sector's allocation of 13.4 percent of the Pacific cod non-CDQ TAC is 100 percent of its average historic harvest between 1995 and 2003, an exact reflection of its historic use and reflective of this sector's dependence on the resource over many years. Its recent increase in directed fishing for Pacific cod does not reflect a long-term dependence on the fishery. NMFS acknowledges that accommodating target and incidental catch may be more difficult for the non-AFA trawl CP sector when compared to its most recent few years' harvest. The economic impacts of Amendment 85 were analyzed in the RIR and IRFA. Because this action is principally designed to reapportion access to the Pacific cod resource among current user groups, it represents tradeoffs (i.e., some entities are negatively affected while others are positively affected). The estimates referred to by the commenter were provided by NMFS a few weeks after the April 2006 Council meeting as a worst case scenario using lower acceptable biological catch
(ABC)and TAC levels than actually were established for 2007 and assuming that the non-AFA trawl CP sector would continue conducting its fisheries as it does currently. Revising the estimates for 2007 based on the actual TAC and with a CDQ allocation of 10.7 percent would yield an estimate of 19 to 20 days of directed fishing under current non-AFA trawl CP fishing practices. If incidental catch rates of Pacific cod in other groundfish fisheries are reduced below the current rates, the non-AFA trawl CP sector should be able to maintain a directed fishery for Pacific cod for an even longer period of time. As stated in the EA/RIR/FRFA on pages 294 and 295: “With a lower potential allocation compared to recent years, this sector will likely need to determine how much of its cod allocation will be used as incidental catch to other target fisheries versus to fund the directed cod fishery,” and “Absent a cooperative structure as approved [by the Council] in [proposed] Amendment 80, it is expected that compliance with the groundfish retention standards and management of a lower Pacific cod allocation to serve both directed and incidental catch needs, will be substantially more difficult.” See response to Comment 16 regarding consistency of Amendment 85 and this final rule with National Standard 4. *Comment 18:* The loss of a directed cod fishery leaves the H&G fleet with no fishery from the end of the yellowfin sole fishery (which ended in mid-April of 2006) until July, when the “B” season starts. No other fleet will see its current operations disrupted by Amendment 85 the way that the H&G sector will. *Response:* Under existing regulations, Pacific cod allocations are further apportioned by season for most gear sectors to protect prey availability for Steller sea lions. Currently, the trawl CPs, AFA and non-AFA combined, receive 50 percent of their allocation in the A season, 30 percent in the B season, and 20 percent in the C season. See the proposed rule for more details on seasonal allowances. Beginning in 2004, the trawl CP sector Pacific cod fishery has closed in mid-March due to reaching it's a season allowance. The B season for trawl CPs opens on April 1 and closes on June 10. More than half the incidental catch of Pacific cod by trawl CPs occurs after March. Amendment 85 changed the seasonal allowances for the trawl CP sectors so that 75 percent of the allocation may be harvested in the A season, with the remaining 25 percent harvested in the B season. This was done to maintain to the extent possible the current percentage of non-CDQ Pacific cod TAC available for harvest in the early part of the year when fishing for Pacific cod is more advantageous. If incidental catch rates of Pacific cod in other fisheries are kept low, the non-AFA trawl CP sector should be able to maintain a directed fishery for Pacific cod. *Comment 19:* The AFA trawl CP sector was funded with more than their recent (99-05) usage of 1.9 percent. That sector has its pollock fishery cod bycatch needs met at the all time high 1.5 million mt pollock TAC level, even as the pollock biomass and TAC are on a downward trend. With a 2.3-percent allocation, and lower pollock TAC, more cod can be used to enhance their directed fishery, which is essentially an IFQ [individual fishing quota] since only one vessel is used in the fleet to directed fish on cod. That vessel is also an AFA eligible CP, and while on the record it was stated that it has nowhere to go other than cod, the vessel has access to the yellowfin sole sideboard and the directed pollock fishery of the AFA CPs. It is the vessel owner's decision not to fish pollock or yellowfin sole with that vessel. *Response:* The AFA trawl CP sector will receive an allocation that is 0.1 percent above its average historic share of 2.2 percent of the Pacific cod harvest. NMFS provided the agency's explanation for approving the AFA trawl CP Pacific cod allocation in the response to Comment 13. NMFS agrees that it is each vessel owner's decision whether or not to harvest fish in the fisheries open to that particular vessel. However, it is a goal of this amendment to allocate Pacific cod to specific sectors based on average historic harvest, not to determine what fisheries are open to specific vessels or to establish other vessel-specific provisions for access to Pacific cod or other groundfish. Also, the AFA trawl CP sector allocation is less than its current sideboard limit for harvesting Pacific cod (see response to Comment 13). *Comment 20:* The reduced ability to target Pacific cod during the A season for the CP trawl sector has resulted in more rollovers to fixed gear; the cod that would have been caught in March when the fish are most aggregated, has not been caught. The fishery in the last two years has closed in early-mid March due to the 50 percent season limit and reduced cod TACs. This has benefitted the fixed gear sector which gets the rollover in the C season, at the end of the year. The Steller sea lion management measures drastically altered cod fishing patterns and harvests. The patterns were altered because of the seasonal apportionments, not because of changed priorities or reduced dependency on the part of the harvesters. *Response:* Almost all gear types, excluding <60 ft (18.3 m) LOA fixed gear, are restricted in their amount of Pacific cod catch in the first half of the year because of SSL protection measures, not just the trawl CP sector. A goal of Amendment 85 is to reduce the amount of reallocations due to unharvested Pacific cod left toward the end of the fishing year. The trawl CP sectors have not harvested their entire allocation in any year since that sector began receiving a separate Pacific cod allocation in 1997. The jig sector is the only other sector that has also had Pacific cod reallocated from it in every year it has received a Pacific cod allocation. Beginning in 2004, NMFS has closed the trawl CP sector Pacific cod fishery in mid-March due to reaching its “A” season allowance. The B season opens on April 1 and closes on June 10. In 2005, NMFS closed the trawl CP sector Pacific cod directed fishery on August 18 because it had reached its halibut PSC mortality limit. In 2006, NMFS closed the trawl CP sector Pacific cod directed fishery on June 8 (just before the end of the B season), opened it on July 19, and closed it on August 31 due to halibut PSC mortality considerations. So in the last two years, the trawl CP sector Pacific cod directed fishery has been closed during the C season due to reaching its halibut PSC mortality limit. Halibut PSC mortality limits and seasonal allowances to protect SSLs have affected most sectors to varying degrees. It is up to each sector to try to keep its Pacific cod incidental catch rates and PSC catch rates low if it wants to maintain a directed fishery for Pacific cod. Also note that the seasonal allowance percentages have changed under Amendment 85 (see response to Comment 22). *Comment 21:* The State waters Pacific cod fishery has taken 3 percent of the Pacific cod ABC for the past two years, to fund a fishery in Adak which is closed to trawl CPs over 100 ft. This reduces the BSAI Pacific cod TAC by 3 percent. While this is calculated by NMFS to be taken “off the top,” if one looks at the allocations to each sector, it can be argued that it's really the H&G sector that took the hit. The H&G sector's 2004-2005 harvest (Table 3-12 - retained, incl. meal) was 17.7 percent. The H&G allocation is 13.4 percent. The cumulative effect of the increased CDQ and State waters fishery, is a further reduction in TAC of 6.2 percent. The original ITAC was 92.5 percent of TAC, now it will be 86.3 percent of TAC. This reduction is spread disproportionately among sectors. *Response:* NMFS disagrees. The Council is free to choose how much of the Federal Pacific cod TAC it allocates to small vessels regardless of the existence of a State of Alaska-managed Pacific cod fishery in State waters. The State waters Pacific cod fishery is not within the Council's or NMFS' jurisdiction and can be modified by the State at any time. The amount of Pacific cod set aside for the State waters fishery has not and will not come from the non-AFA trawl CP sector allocation alone. Additionally, all trawl CPs >100 ft (>30.5 m) do not have access to the State waters Pacific cod fishery, not just the non-AFA trawl CPs. The process followed by NMFS in setting the allocations for Pacific cod each year in the annual specifications process is to first deduct the amount of Pacific cod for the State waters fishery from the ABC. The remainder is the TAC for a particular year. NMFS then deducts the amount of Pacific cod allocated to the CDQ Program. Finally, the remaining non-CDQ TAC is divided among the sectors. The reductions are taken before allocations are made to the non-CDQ sectors and, thus, affect all sectors proportionately. *Comment 22:* The EA/RIR/IRFA analyzed the impact of reallocating cod from trawl to fixed gear and determined that the trawl CP sector would have no C season cod, unless it rolled from within the sector's B season. Even with no cod TAC reductions, the trawl CPs will be severely constrained with the 50 percent limit for the A season, and this will filter through to the end of the year. The other trawl and fixed gear fleets that were well funded are in no worse position than they were prior to the Amendment 85 action. *Response:* The Council directed that allocations for the A and B seasons for trawl gear and the A season for fixed gear sectors be calculated to maintain the current seasonal percentage of the non-CDQ TAC that is allocated to those sectors. This was done to allow directed fishing for Pacific cod earlier in the year when there is less PSC bycatch, Pacific cod harvest rates are highest, and to maintain SSL protection measures. Under this action, the A season allowance for the non-CDQ trawl CP sectors will increase from 50 percent to 75, with the remaining 25 percent seasonal allowance available in the B season. That is why there would be a C season harvest only if seasonal allowances roll over from the A or B seasons to the C season. *Comment 23:* The non-AFA trawl CP fleet makes important economic contributions to remote Alaskan communities that the Council's reduced allocation to that sector may well jeopardize. The non-AFA trawl CP fleet fishes year round, using support services and relying on vendors which would normally be closed in the late spring/summer months were it not for this fleet's activities. The State of Alaska assesses all fish landed in Alaska, regardless of gear or sector designation. Whether harvested by CVs or CPs, the same landing taxes would be generated, and given back to the communities in which the fish would be offloaded. Any suggestion that community impacts support imposing the burden of funding the increased small-boat allocations solely (or even primarily) upon the non-AFA CP fleet is not based in fact or supported by the record. *Response:* NMFS acknowledges that the non-AFA trawl CP fleet makes economic contributions to the communities visited by vessels in that sector. Based on the EA/RIR/FRFA, NMFS does not expect a significant impact on remote Alaskan communities due to the non-AFA trawl CP allocation under Amendment 85. Any potential negative effects on remote Alaskan communities are likely to be outweighed by the positive impacts of the increased allocations to the small boat sectors, which are based primarily out of Alaskan communities. See response to Comment 13 regarding the “funding” of the allocations to the small boat sectors. *Comment 24:* A separate section of the Magnuson-Stevens Act, 16 U.S.C. 1853(b)(6) requires the Council and the Secretary to consider a certain set of relevant factors as a condition to establishing a limited access system for a fishery. *Response:* NMFS agrees that section 303(b)(6) of the Magnuson-Stevens Act (16 U.S.C. 1853(b)(6)) requires the Council and NMFS to take into account several factors when establishing a limited access system. However, Amendment 85 does not establish a limited access system for the Pacific cod fishery because it does not affect existing participation requirements for the BSAI Pacific cod fishery. Therefore, section 303(b)(6) is not applicable to Amendment 85. *Comment 25:* NMFS should approve Amendment 85 with a Pacific cod allocation for the AFA trawl CP sector significantly greater than the 2.3 percent proposed by the Council. Appropriately calculated, the retained legal catch of the AFA trawl CP sector averaged approximately 2.5 percent of the total retained legal catch of BSAI cod between 1999 and 2003, the relevant years following passage of the AFA in 1998. The 2.3-percent allocation recommended by the Council and contained in the proposed amendment represents the absolute minimum amount necessary to fund both the bycatch needs of the AFA trawl CP pollock fishery and the relatively small directed fishery that at least one of the AFA trawl CP vessels has been conducting in the BSAI for many years. Ultimately, the way the incidental catch allowance is established and managed will determine the extent to which these objectives can be accomplished. *Response:* The AFA trawl CP sector will receive an allocation that is slightly higher than its average historic harvest from 1995 to 2003, one of only two non-small boat sectors to do so. About 44 percent of the Pacific cod harvested by the AFA trawl CP sector during that time period was taken incidentally when these vessels were targeting BSAI pollock. See the response to Comment 3 for why these years of historical harvest are appropriate. The allocation to the AFA trawl CP sector should be sufficient for this sector to cooperatively manage its allocation and maintain a directed fishery in addition to meeting its incidental catch needs in other fisheries. The incidental catch allowance for the AFA trawl CPs will be established inseason with the intent of maintaining a directed Pacific cod fishery. *Comment 26:* We support the proposed rule's plan to manage each of the trawl sector incidental catch allowances on an inseason basis. The proposed amendment should be revised to direct NMFS to manage any incidental catch allowance established in connection with the AFA trawl CP sector's Pacific cod allocation to facilitate, to the maximum extent practicable, the prosecution of an early season directed Pacific cod fishery without jeopardizing the need to retain sufficient Pacific cod for bycatch in the directed pollock fishery later in the year. *Response:* NMFS notes the support for establishing trawl sector incidental catch allowances on an inseason basis. NMFS' existing policy for establishing incidental catch allowances is to facilitate, to the extent practicable, directed fisheries while retaining amounts needed as incidental catch in other directed fisheries. NMFS does not need regulatory authority to continue this policy, so no regulatory changes are necessary. *Comment 27:* Tables 3 and 8 of the proposed rule are inaccurate and understate the legally retained BSAI Pacific cod catch history of the AFA trawl CP sector. Table 3 does not use the “best available data” to calculate the AFA trawl CP sector's catch history for the years after 1998. In Table 8, the range for the AFA trawl CP sector includes a lower end point of 0.9 percent. That number is misleading for several reasons: first, it is derived by excluding fish utilized in the production of meal; and second, it is generated by using a WPR approach to calculate retained catch. This is inaccurate and prejudicial in that it suggests a level of usage and dependency that is significantly lower than accurately calculated catch would indicate. *Response:* Regarding Table 3 in the proposed rule, the response to Comment 2 explains why WPR data were used instead of observer data to calculate catch history. The purpose of including Table 8 was to demonstrate the wide range of allocations that were considered by the Council. The allocation to the AFA trawl CP sector is slightly above its catch history as calculated from WPR data from 1995 through 2003. Also see responses to Comments 13 and 25. *Comment 28:* We prefer to purchase all of the Pacific cod for our restaurant chain from a particular AFA trawl CP because of the high quality of the product. If the amount of Pacific cod available for that vessel to harvest were to decline, we would likely be forced to purchase lower quality processed cod from foreign commodity markets. *Response:* Under Amendment 85 and this final rule, the AFA trawl CP sector will receive an allocation of Pacific cod that is slightly above its historic harvest. Because the AFA trawl CP sector operates as a cooperative and has the ability to control its harvest, NMFS anticipates that the amount of Pacific cod allocated to the AFA trawl CP sector will be sufficient to maintain the sector's directed fishery while meeting its incidental catch needs in other fisheries. Comments on Dependency on the Pacific Cod Fishery *Comment 29:* The non-AFA trawl CP sector asserted that the Pacific cod allocation they received will be insufficient to prosecute their flatfish fisheries. However, that does not appear to be the case. From 1999 to 2003, the non-AFA trawl CP sector took 54 percent of their Pacific cod in directed Pacific cod fishing and 46 percent incidentally while targeting other species (flatfish, etc.). In 2003, 63 percent of the non-AFA trawl CP sector Pacific cod was taken in directed Pacific cod fishing and 37 percent was taken incidentally. The allocation the non-AFA trawl CP sector received is 90 percent of its 1997 to 2003 average catch history. For comparison, the pot CP sector received an allocation that is 88 percent of its 1997 to 2003 catch history. The trawl CV sector allocation was 97 percent of its 1997 to 2003 catch history. The hook-and-line CP sector received an allocation that is 97 percent of its 1997 to 2003 catch history. However the hook-and-line CP sector's dependency on BSAI Pacific cod is four times that of the non-AFA trawl CP sector and more than twice that of the pot CP sector and the trawl CV sector. *Response:* Please see the EA/RIR/FRFA for the best available data on the BSAI Pacific cod fishery. All the sectors are dependent on the BSAI Pacific cod resource, albeit to varying degrees. Based on the average annual estimated total first wholesale revenue from groundfish products between 1999 and 2003, the hook-and-line CP sector is more dependent than the other sectors on the BSAI Pacific cod resource. *Comment 30:* The proposed allocations do not correlate with actual dependency and use by sector. The non-AFA trawl CP sector is highly dependent on Pacific cod as a directed fishery and as an incidentally caught species in every target fishery the sector prosecutes. The H&G fleet will lose most of its directed cod fishery under the Amendment 85 allocation because almost half of the cod harvested by the H&G fleet is incidental cod in other groundfish fisheries. This fishery now represents over a quarter of all non-AFA trawl CP sector revenues. This aggregate figure, as large as it is, masks the fact that Pacific cod accounts for well over half of the revenues for particular non-AFA trawl CP vessels, particularly the smaller vessels in the fleet. If the Amendment 85 allocation and CDQ increases took place in 2007, and assuming a harvest equal to that of 2005, the fleet would shut down in late May due to insufficient cod. The sector would lose 34 percent of its annual 1999 to 2004 average revenues for the fleet. *Response:* NMFS acknowledges that the non-AFA trawl CP sector Pacific cod allocation under Amendment 85 is less than the percentage harvested by the sector in very recent years and that this sector's harvest has increased in recent years. However, the allocation is not based on one or two recent years, but is reflective of long-term dependence as evidenced by harvest over a longer period of time. The Council decided that long-term dependence was appropriate and NMFS determined that the record supports this approach (see response to Comment 15). Based on recent fishing practices by the fleet, NMFS has determined that this sector will maintain a directed Pacific cod fishery and will be able to prosecute other fisheries (see response to Comment 17). *Comment 31:* The analysis does not address the issue of lost revenue from low allocations on either the H&G fleet's other groundfish fisheries or from loss of the target fishery itself. Stating that 21 percent of the annual revenues of the fleet are from cod oversimplifies the picture. The information before the Council on Amendment 80 (June 2006 C-1 Supplemental to Amendment 80) states that the H&G sector's revenues from cod are actually 25 percent (99-04 avg). However, we are more realistically 100 percent dependent on cod because it is critical to all our target fisheries. Not only will we lose some percentage revenue from loss of a directed cod fishery, but we can lose the value of the non-cod groundfish target fishery as well. The Council and the analysis for Amendment 85 also failed to consider that the non-AFA trawl CP sector is dependent on Pacific cod for incidental catch in its flatfish, mackerel, and rockfish fisheries. The first real analysis of the impact of the Council's decision upon the non-AFA trawl CP sector was made by NMFS only several weeks later, and it found that impact to be severe. Substantial bycatch of Pacific cod in these fisheries is inevitable. This bycatch amounts to almost half of the non-AFA trawl CP sector's harvest of Pacific cod. We are no less dependent on our cod revenue than a cod longliner which does not engage in any other groundfish fisheries. The reduction in the Pacific cod allocation to the non-AFA trawl CP sector will affect its entire BSAI fishing effort. Without cod, no one in the H&G fleet can fish in any BSAI target. *Response:* NMFS believes that the non-AFA trawl CP sector has a sufficient Pacific cod allocation for a directed Pacific cod fishery. The size of the directed Pacific cod fishery will depend on the sector's need for Pacific cod as incidental catch in its other directed groundfish fisheries. The EA/RIR/IRFA examined this issue and concluded that the sector's directed fishery is likely to be affected by the allocation. The EA/RIR/FRFA acknowledges the need for the allocation to include incidental catch needs on page 279: “The problem statement for this amendment emphasizes that the Pacific cod allocations should be adjusted in order to reduce uncertainty in, and provide stability to, the sectors. Allocating appropriate amounts of incidentally caught cod, so that each sector's directed fisheries can be harvested, is an important concern when creating stability.” Also stated on page 293: “As mentioned above, the non-AFA trawl CP sector harvests a significant portion of its BSAI Pacific cod as incidental catch in a non-Pacific cod target fishery. Table 3-101 shows that the non-AFA trawl CP sector harvested about 54 percent of its total retained cod harvest in the target cod fishery on average during 1999 to 2003; the remaining 46 percent was harvested as incidental to all other target fisheries, primarily the flatfish fisheries (yellowfin sole, rock sole, flathead sole, Atka mackerel, and Pacific ocean perch). With a lower potential allocation compared to recent years, this sector will likely need to determine how much of its cod allocation will be used as incidental catch to other target fisheries versus to fund the directed cod fishery.” Also, see response to Comment 17. What this sector is “losing” is the opportunity to harvest an amount of Pacific cod that is larger than its historic use and dependence. The trawl CP sector has not harvested its entire allocation of Pacific cod since allocations began in 1994. The trawl CP sector has been the largest contributor to the yearly reallocations that this amendment is designed to reduce, therefore, the allocation to the trawl CPs is justified. Also see response to Comment 30. The commenter may be assuming there is hard cap management under Amendment 85, but Amendment 85 does not include this provision (see response to Comment 77). *Comment 32:* Incidental catch of Pacific cod allows harvesters to maximize the value of the other target species because it is in large part the highest valued species in each of those non-AFA trawl CP target fisheries. *Response:* NMFS acknowledges that Pacific cod is a valuable species. The non-AFA trawl CP sector will have to manage its Pacific cod allocation to accommodate target and nontarget needs to optimize the value of its harvest of BSAI groundfish. *Comment 33:* Non-AFA vessels are excluded from any access to the pollock fishery and now the Council is proposing to take away from them a significant portion of the Pacific cod fishery that, over a demonstrated period of years, they have used and are dependent upon, while at the same time augmenting the fishing privileges of AFA trawl CP vessels that have neither been using nor depending upon the cod fishery at more than a minimal level during that same relevant period. That proposal does not comport with this Council's obligation to “protect other fisheries . . . and the participants in those fisheries . . . from adverse impacts caused by [the AFA] or fishery cooperatives in the directed pollock fishery.” One final noteworthy recognition by the Notice of Proposed Rulemaking is that the Council decided to “maximize the opportunity for a directed Pacific cod fishery” for the AFA trawl CP sector, 72 FR 5662 (col. 1, top), but was content to underfund the non-AFA trawl CP sector to such an extent that it “may be constrained in its ability to conduct a directed fishery for Pacific cod in order to have sufficient Pacific cod available for incidental catch in its other fisheries.” Id. (col. 1, bottom). This turns upside down the Council's obligations under the AFA. *Response:* Sideboards are intended to prevent a sector from using advantages gained from a rationalized fishery in a fishery that is not rationalized. The current AFA CP Pacific cod sideboard prevents AFA trawl CPs from harvesting a larger share of Pacific cod than the sector harvested before the AFA. Amendment 85 will separate the trawl CPs that currently share one allocation into two sectors, AFA and non-AFA. The AFA trawl CP sector will receive 0.1 percent of non-CDQ TAC above its average harvest history under Amendment 85 and the non-AFA trawl CP sector will receive exactly its average historic harvest. The AFA trawl CP fleet will be restricted to a separate allocation slightly greater than its historic catch from 1995 through 2003, but 62.3 percent below its current sideboard limit for catch of Pacific cod. Although the non-AFA vessels are excluded from the pollock fishery in the BSAI, AFA sideboard provisions will continue to restrict those vessels from participating in other BSAI fisheries, and AFA trawl CPs will continue to be prohibited from fishing in the Gulf of Alaska. Therefore, NMFS has determined that the AFA trawl CP allocation of Pacific cod under Amendment 85 is consistent with the AFA. Also, separating the two sectors will protect the historic catch of the non-AFA trawl CPs better than leaving these two sectors combined with a lower shared allocation that reflects their combined history, but with the same AFA sideboard. NMFS believes the allocations of Pacific cod to the AFA and non-AFA trawl CP sectors are sufficient for each sector's directed Pacific cod fishery and for their incidental catch needs and that the allocation for the non-AFA trawl CP sector will be better protected under Amendment 85 than leaving the sectors combined. *Comment 34:* To whatever extent the sector's total catch history is not reflected in the initial allocation made under Amendment 85, there will be insufficient fish in the AFA trawl CP sector's allocation to meet the bycatch needs of the pollock fishery without depleting, at least to some extent, the allocation that would otherwise be available to our directed cod vessel. As a consequence, the directed cod fishery that vessel has traditionally conducted during the early part of the fishing year will likely be curtailed, if not eliminated. *Response:* Given that the allocation to the AFA trawl CP sector under Amendment 85 is slightly higher than its average historic harvest, that allocation should be sufficient for this sector to cooperatively manage its allocation and maintain a directed fishery in addition to meeting its needs for incidental catch in its pollock and yellowfin sole fisheries. *Comment 35:* The Council increased the allocation to the AFA trawl CP sector so that Pacific cod would not be a limiting factor in prosecuting the BSAI pollock fishery. From 1999 to 2003, the AFA trawl CP sector took 84 percent of its Pacific cod in directed Pacific cod fishing and only 15 percent in the pollock fishery. The proposed rule states that 44 percent of the Pacific cod taken by this sector occurs incidentally in the pollock fishery. This is in contrast to the analysis (15 percent), therefore the proposed rule must be including fishmeal and other factors. Either way, it does not appear that the allocation this sector received under Amendment 85 will be constraining in the pollock fishery. *Response:* As stated in the proposed rule, the allocation to the AFA trawl CP sector was chosen to “maximize the opportunity for a directed Pacific cod fishery and to minimize the potential for an increase in discards of Pacific cod if catch exceeds the MRA.” The commenter apparently relied on the April 2006 draft analysis and used Table 3-105 which excluded fishmeal. However, the information was revised before submission to the Secretary. The EA/RIR/FRFA includes fishmeal in the revised information in Table 3-101 and states on page 294 that, “the AFA CP sector harvested about 56 percent of its total retained cod harvest in the target cod fishery on average during 1999-2003, the remaining 44 percent was harvested as incidental to other target fisheries, primarily pollock.” Additionally, in the final Council motion from April 2006, the Council explicitly noted that in order to determine PSC, the percentage of Pacific cod harvested in the Pacific cod target fishery by the trawl sectors should be calculated on the basis of all cod catch from 1999 through 2003, including that designated for fishmeal production. *Comment 36:* Only the hook-and-line CP sector has a large and primary dependence on BSAI Pacific cod; it is the sector with the most dependence on the BSAI Pacific cod resource. Over 80 percent of the wholesale revenues of the hook-and-line CP sector come from BSAI cod. *Response:* NMFS agrees that the hook-and-line CP sector is the sector that has the highest portion of its income from its Pacific cod fishery. However, other sectors also depend on Pacific cod for a significant portion of their income. *Comment 37:* The H&G sector's Pacific cod use and dependence must be considered and accommodated by Amendment 85, just as was that of the hook-and-line CP sector. *Response:* The non-AFA trawl CP sector will receive exactly its 1995 to 2003 average historic harvest under Amendment 85. The hook-and-line CP sector will receive 48.7 percent of the non-CDQ Pacific cod TAC under Amendment 85, which is closer to its average historic harvest than its current allocation of 40.8 percent. The hook-and-line CP sector's new allocation is less in all cases than its share of the retained harvest under various year groupings: from 1995 through 2003, from 2000 through 2003, and from 2004 and 2005 (see Amendment 85 proposed rule Tables 3 and 4). However, its history is much larger than its current allocation due to reallocations of unused Pacific cod from other sectors, primarily the trawl CP sector. Amendment 85 was designed to reduce the amount and frequency of these reallocations to increase stability for all sectors. *Comment 38:* Amendment 85 will provide increased stability to the sectors with the most dependence on Pacific cod by removing the uncertainty of the amount of the potential annual harvest for each sector (i.e., reduce annual rollovers). This stability will promote efficiency and planning for those same sectors. For example, the increased stability of the BSAI Pacific cod allocation may facilitate the formation of a hook-and-line CP cooperative that can result in increased utilization and efficiency. *Response:* NMFS agrees that Amendment 85 will increase stability in the BSAI Pacific cod fishery. *Comment 39:* The Council was consistent with past allocation actions by not including fishmeal when considering dependency on the resource. *Response:* Contrary to the commenter's conclusion, the record for Amendment 85 and this final rule clearly demonstrate that the Council not only considered fishmeal data, but included fishmeal in the calculation of catch history for the AFA trawl CP sector allocation. When vessels directly affected by a proposed allocation action process fishmeal, it has been considered. It depends on what sectors or vessels are affected by an action as to whether fishmeal has been included or excluded. Fishmeal was not particularly relevant other past allocation actions. In current and proposed actions, fishmeal was excluded in the preliminary analysis for Gulf rationalization, which has been tabled. There is now an option to exclude fishmeal in the Gulf of Alaska Pacific cod sector-split analysis. However, these actions exclude the AFA trawl CPs, which are the primary producers of fishmeal. Therefore it is consistent to include fishmeal in considering a sector's dependency on Pacific cod under Amendment 85. Comments on Groundfish Retention Standard Under Amendment 79 *Comment 40:* The allocation to the H&G fleet affects the Amendment 79 groundfish retention standard
(GRS)which the H&G fleet must meet, starting in 2008. Once Pacific cod is closed to directed fishing, and is taken as an incidental catch in other fisheries, it is subject to a maximum retainable amount of 20 percent of the total groundfish catch aboard a vessel. This will make compliance with the groundfish retention standards of Amendment 79 very difficult for most vessels. The Aleutian Island cod fishery is a very high retention fishery, and it essentially is no longer an option for us. According to NMFS inseason managers, the fleet will only have enough fish to fund an early directed cod fishery, which is essential as it occurs simultaneous to the rock sole fishery. The loss of our Aleutian Islands cod target is going to pose a retention hardship for two reasons: one, we lose our March cod target fishery in lieu of bycatch needs for the rest of the year, and two, the H&G fleet's cod will be on bycatch status for the majority of the year. So the reduced allocation has put the fleet in a position of mandatory discards of a mandatory retention species, until or unless the sector is able to form cooperatives under Amendment 80. *Response:* As explained in the response to Comment 17, based on the actual TAC for 2007, but with the larger CDQ allocation of 10.7 percent, NMFS estimates there would be 19 to 20 days of directed fishing under the current practices of the non-AFA trawl CP sector. If the sector reduces its incidental catch needs for Pacific cod in its other directed fisheries, its Pacific cod directed fishery could last longer. Typically, the non-AFA trawl CP sector targets Atka mackerel, rock sole, yellowfin sole and Pacific cod in January and the Pacific cod fishery peaks in March. The non-AFA trawl CP sector usually catches 80 percent of its Pacific cod allocation in the first two seasons, which is its seasonal allowance. To meet the GRS after their directed Pacific cod fishery is closed, the non-AFA trawl CPs will need to fish in a manner that maintains incidental catch rates at levels that minimize regulatory discards. Therefore, meeting the GRS under Amendment 85 may be more difficult for the non-AFA trawl CP sector. If directed fishing for Pacific cod has not been closed to the non-AFA trawl CP sector, then this sector has had to keep their entire catch of Pacific cod, which improves their retention rate. But if the non-AFA trawl CP Pacific cod directed fishery will now be closed most of the year, the non-AFA trawl CP sector must retain up to the MRA. Any catch over the MRA must be discarded and those discards will count in the retention calculation under the GRS, potentially making it more difficult to comply with the GRS. However, compliance with the GRS should be easier for the vessels that join a cooperative under Amendment 80, which was approved by the Secretary on July 26, 2007. The non-AFA trawl CPs may form harvesting cooperatives by the start of 2008 if Amendment 80 is implemented by January 1, 2008, which also is the effective date for this final rule to implement Amendment 85. Additionally, the Council has adopted a regulatory amendment that would adjust the accounting period for MRA amounts for particular species including Pacific cod. If approved by the Secretary, this adjustment also would be effective by January 1, 2008, and would reduce regulatory discards and facilitate compliance with the GRS under Amendment 79 to the FMP. *Comment 41:* The revised Secretarial review EA/RIR/IRFA (October 2006) merely references the Groundfish Retention Standard
(GRS)in one sentence that acknowledges that Pacific cod, as a highly retained species, is important to the non-AFA trawl CP sector in meeting the GRS. Neither Section 2.3.9 (Cumulative Effects) nor Section 2.3.9.1 (Past and Present Actions) mentions the Amendment 79 GRS in relation to the sector's cod allocation and what the loss of its directed fishery and lowered allocation will do to the sector's ability to meet the retention standard. There is no attempt to estimate the impact of a reduced allocation on the ability of the sector, or small vessels in particular, to meet the GRS scheduled for implementation in 2008. The analysis should have considered the impact of the non-AFA trawl CP sector's Amendment 85 allocation on the ability of this sector to function under status quo management (no harvesting cooperatives) when the GRS is imposed in 2008. The tipping point on meeting the GRS with regard to this action is the reduced cod allocation, not the open access race for fish. *Response:* The Secretarial review draft EA/RIR/IRFA does discuss the cumulative effects of Amendment 85 in conjunction with the GRS and Amendment 80 in Section 2.3.9 “Cumulative Effects” under section 2.3.9.2 “Recent and Reasonably Foreseeable Future Actions.” Improved retention rates are the intended effect of the GRS action under Amendment 79. Implementation of Amendments 79, 80, and 85 are planned for 2008. The GRS would be phased in over a four-year period. The reduced allocation to the non-AFA trawl CP sector likely will reduce its directed fishery, but the vessels still will be retaining Pacific cod to comply with improved retention/improved utilization requirements up to the 20 percent MRA percentage established for Pacific cod after the directed fishery is closed. The catch of Pacific cod beyond the 20 percent MRA threshold must be discarded. However, a vessel's total catch of Pacific cod still would be included in the calculation used by NMFS to assess compliance with the annual GRS ratio of retained catch to total catch. Thus, NMFS expects the GRS program would provide an incentive for the sector to fish for its other targeted groundfish species in a manner that reduces the incidental catch of Pacific cod to the extent practicable. In 2008, the GRS will be at a relatively low level to reflect fleet-wide status quo. As the GRS ratio steps up over the next four years, NMFS anticipates that it will parallel other new proposed management measures that provide additional opportunity for retention of groundfish, including proposed adjustments to the MRA accounting period for some species and Amendment 80. The EA/RIR/FRFA recognizes that compliance with the GRS by the non-AFA trawl CP fleet with its new Pacific cod allocation under Amendment 85 will be more difficult. However, the purpose of Amendment 85 was to allocate Pacific cod based on historical retained catch in addition to socioeconomic and community concerns, not to allocate Pacific cod in a manner that would facilitate compliance with the GRS. There are other ways the fleet can improve its retention rates of Pacific cod without the allocation it has had in the past. For example, by avoiding fishing in areas with high bycatch rates of Pacific cod. Regarding the estimation of economic impacts, the Secretarial review draft analysis stated “The Groundfish PSEIS [Programmatic Supplemental Environmental Impact Statement] noted that the availability and consistency of data limits the ability to analyze the effects of past actions on the economic condition of selected sectors of the Alaska groundfish fishery. According to the Groundfish PSEIS, analyses are also limited by the difficulty of delineating the cause-and-effect relationships between multiple factors and the resultant economic effects. Many factors substantially affect the economic status of the Alaska groundfish fishery. Changes in markets, biological conditions and fishery management regulations can result in changes in the revenues and operating costs of firms participating in the fisheries and changes in fleet size and composition. Isolating the effects of a single factor is seldom possible.'' Amendment 80 will provide target allocations of Atka mackerel, flathead sole, Pacific ocean perch, rock sole, and yellowfin sole to the non-AFA trawl CP sector and allows the formation of harvest cooperatives. Sector allocations and associated cooperatives will allow participants to focus less on harvest maximization and more on optimizing harvest. The Secretarial review draft analysis further notes that, “Absent a cooperative structure as approved (by the Council) in Amendment 80, it is expected that compliance with the groundfish retention standards and management of a lower Pacific cod allocation to serve both directed and incidental catch needs, will be substantially more difficult.” Note that the GRS pertains only to non-AFA trawl CP vessels that are ≥125 ft (38.1 m) LOA, not to smaller vessels. However, under Amendment 80, the GRS will apply to all non-AFA trawl CP vessels regardless of length. Comments on Cumulative Effects *Comment 42:* By applying the 13.4-percent allocation to, and deducting the 3 percent State water set-aside and 10.7 percent CDQ allocation from, the 2005 TAC for Pacific cod, the H&G fleet allocation would have been 23,911 mt, a loss of 6,000 mt from the H&G actual harvest in 2005. This represents a loss of $11 million in Pacific cod alone. The H&G fleet fully harvested 23,911 mt of Pacific cod by mid-June in 2005. The fleet would have been unable to harvest its other directed fisheries after June 11th and lost $43 million in its second half of the year target fisheries. In comparing the losses of different fleets, if the longline fleet lost 6,095 mt, that would be a loss of $11 million. The same fish represents a loss of $54 million to the H&G fleet, or, roughly 35 percent of its annual revenues. This was not analyzed in any Amendment 85 document. *Response:* The non-AFA trawl CP fleet will have less Pacific cod available than it does under the current allocations, however, this scenario would not happen under Amendment 85. Because NMFS anticipates that the trawl sectors will fully harvest the Pacific cod allocations under Amendment 85, NMFS also anticipates it will need to establish an incidental catch allowance for each trawl sector. Under this final rule, NMFS will develop incidental catch allowances for each trawl sector on an inseason basis, rather than through the annual harvest specification process. The directed fishery for the non-AFA trawl CP sector will likely be shorter than in the past, thus the possible loss, but under Amendment 85 the other non-AFA trawl CP fisheries will be managed with the intent of avoiding closures for lack of sufficient Pacific cod. Also, under this final rule, the non-AFA trawl CP sector will continue to be managed under a soft cap for incidental catch of Pacific cod. *Comment 43:* The non-AFA CP fleet has not received representative allocations. We see that if these allocations were in effect in 2005, the fleet would have shut down in June, losing 35 percent of its annual revenues. This incurs economic harm not only to our fleet but also to remote communities that depend on the activities of the non-AFA CP fleet. As the sole harvesters of target fisheries that will be left in the water because of an inadequate cod allocation, communities will not receive landing tax revenues from that fish, and support service revenues from that fleet. Amendment 80 allocates 90 percent of the Atka mackerel and Pacific ocean perch to the H&G fleet. However, we saw that if Amendment 85, the State water fishery and the increased CDQ were in effect in 2005, half of the Atka mackerel would have been left in the water and all of the Pacific ocean perch, from a June 11th closure. This directly harms the residents of Atka and Adak. Stranding fish is not obtaining optimum yield. *Response:* Under this action, an incidental catch allowance of Pacific cod will be established for use in the other non-AFA trawl CP sector directed fisheries. See response to Comment 42. *Comment 44:* Effective 2007, the Central Gulf of Alaska Rockfish Pilot Program goes into effect. Originally a two-year program, it was recently extended to five years under the Magnuson-Stevens Act reauthorization. That program limits participation in the Central Gulf rockfish fisheries to 15 H&G vessels. As with Gulf cod, and BSAI pollock, entry into other fisheries by the H&G fleet, and therefore other options, is becoming more restricted. These fisheries would have provided relief in the event that the lowered cod allocation shuts down the H&G fisheries prematurely. *Response:* Amendment 85 does not contain measures that would prevent the non-AFA trawl CP sector from prosecuting its target fisheries. NMFS agrees that participation in Gulf of Alaska and BSAI fisheries is becoming more restricted as participation in these fisheries becomes more restricted. See response to Comment 42. Comments on Small Boat Sector Allocations *Comment 45:* The allocation process was reasonably fair and equitable. The jig and <60 ft (18.3 m) LOA fixed gear CV sectors received allocations larger than their respective catch histories. Accordingly, the majority of the other sectors then received allocations smaller than their respective catch histories to offset and “fund” those increases. However, the allocations in Amendment 85 were the result of a fair and equitable process and did not discriminate by residency. *Response:* Comment noted. *Comment 46:* Other considerations given to the small boat sectors under Amendment 85 include
(1)adjusting the jig trimester apportionment to put more fish in the A season,
(2)establishing a new hook-and-line CV halibut PSC category that enables longline CVs to fish in the summer months, and
(3)a new hierarchy of potential rollovers. The Council felt these considerations and the resulting allocations in Amendment 85 amply addressed National Standard 8. *Response:* Comment noted. *Comment 47:* We support the principle of adequately funding small boat, entry-level fisheries. *Response:* Comment noted. *Comment 48:* Allocations to the jig and <60 ft (18.3 m) LOA fixed gear sectors were made without consideration of either the Alaska State waters fishery in which such vessels could participate or the likelihood that those Pacific cod allocations will, in fact, be utilized. A result of this over-allocation is that much of the cod non-CDQ TAC allocated to these sectors will rollover, first through various inshore fisheries, including to the trawl catcher vessel fleet; none, however, will likely ever roll back to the H&G sector. Such a result is at odds with the Amendment 85 goal of minimizing rollovers. *Response:* NMFS disagrees. The State waters Pacific cod fishery was considered by the Council when the allocations to sectors were made. This fishery was established by the State to meet local needs in the area of Adak, Alaska, in the Aleutian Islands and is not readily accessible to small boat operators fishing in other coastal areas of the Bering Sea. Additionally, the purpose of Amendment 85 is to revise the allocations to the various sectors to more closely reflect historic harvest; a goal of the amendment is to decrease rollovers, not eliminate them. The Council's purpose in giving the small boat sectors allocations greater than their histories was to encourage the growth of these entry-level sectors in accordance with National Standard 8. Since 2001, the <60 ft (18.3 m) LOA fixed gear CV sector has harvested all of its allocation and since 2002 has harvested increasing amounts of rollovers from the jig sector, including in 2006, the first year of the State waters fishery. The allocation to the jig sector is reduced under Amendment 85. Also, the amount of the reallocations from the small boat sectors is historically much smaller than the amount of the reallocations from the trawl sectors, thus supporting the Council's goal of increasing stability. *Comment 49:* The non-AFA trawl CP sector was cut in order to fund a 4 percent small boat fishery. When asked by another Council member what was the rationale for the H&G allocation of 13.2 percent (as originally introduced) rather than the mid-point years' average, the maker of the motion stated “It was really how to fund that 4 percent and make the numbers work and that is my rationale for that number.” While creating room and incentives for growth in the small hook-and-line and pot catcher vessel and jig fisheries was a goal of Amendment 85, the cost for doing so should not fall on only one of the most cod-dependent sectors. Shifting of cod from one of the most dependent sectors (non-AFA trawl CP) to perhaps the least runs counter to the objective of matching cod allocations with use and historical dependence. During Council discussion on Amendment 85, the maker of the motion stated that the trawl sector should fund the jig set-aside since the fixed gear sector had been doing that in the past. This was given as the justification for so dramatically decreasing the non-AFA trawl catcher-processor allocation (from recent use above 18 percent to an allocation of only 13.4 percent). The record does not support the assertion that the fixed gear fleet and not the trawl fleet had historically funded increases for the small boat sector. It is not clear from the record that the (proposed) jig allocation actually came from any one sector; however, if the assumption was that the new allocation percentages represented a shift in the responsibility for the jig set-aside from fixed gear to the trawl sector, then all trawl sectors should have been similarly assessed. There was no consideration or analysis of the possibility, appropriateness, or impact of imposing the burden of funding those increases unequally. The Secretarial review draft analysis expressly acknowledges this, stating that the extra allocations to the small sector were “deducted . . . principally from the non-AFA sector amounts.” It is not fair and equitable to impose the burden on the non-AFA sectors and not on the AFA sectors, particularly given the AFA's mandate to the Council to protect the non-AFA fleet from AFA encroachment in fisheries other than pollock. There was no separate analysis, or vote, on spreading the burden of the small boat incentives unequally. What is clear is that no rationale has ever been given for disadvantaging either the non-AFA sectors generally (which the Secretarial review draft analysis asserts is the group that the Council disadvantaged) or the H&G sector in particular. The estimated cost, at 2007 TAC and 2005 harvest rates, to the H&G fleet of an estimated $46 million, or 34 percent of their annual revenues, far outweighs the benefit to a small boat fleet which has historically never harvested its allocation. We have no quarrel with the Council's decision to make those adjustments. There is no justification, however, for imposing the burden of funding them entirely or primarily upon the H&G sector. *Response:* Neither the non-AFA trawl CP sector nor any other sector exclusively funded the allocation to the small boat sectors. Despite the remarks made by the Council member and based on the average historic harvest from 1995 to 2003, it would appear that neither the AFA trawl CP sector nor the non-AFA trawl CP sector funded the small boat sector allocations because the former will receive slightly above its average historic harvest and the latter will receive exactly its average historic harvest. There is nothing in the Secretarial review draft analysis addressing the impact on other sectors because there were no specific amounts taken from any particular sector to fund the small boat sectors. For the small boat sectors to receive allocations above their average historic harvest, four sectors will receive less than their 1995 to 2003 average historic harvests: pot CV ≥60 ft (18.3 m) LOA, hook-and-line CP, pot CP, and trawl CV (see paragraph seven of the response to Comment 13). The trawl CV sector is comprised of AFA and non-AFA vessels, so considering all the sectors that will receive an allocation below their average historic harvest, most of them are non-AFA sectors. The non-AFA sectors are not disadvantaged, they merely outnumber the AFA sectors by a ratio of eight to one. *Comment 50:* The Council made a policy decision to deviate from its stated goal of conforming actual use and dependency by allocating to the jig and <60 ft (18.3 m) LOA fixed gear CV sectors a combined 2.4 percent above their historic harvest of the Pacific cod TAC. Assuming that the Council would be justified in shifting that 2.4 percent to those sectors because of the predicted salutary impact on coastal communities and related economic and social consequences, it is not legitimate to take that 2.4 percent entirely from other non-AFA sectors. In the analysis for Amendment 85, the potential impact of providing the small boat sectors with an allocation above their actual use and dependency was limited to a scenario in which the extra shares needed to fund that incentive were taken from all other sectors proportionally; no analysis was made of the disproportionate impacts that would result from the scenario, eventually chosen by the Council, of taking that extra 2.4 percent exclusively from non-AFA sectors. *Response:* The Pacific cod allocations for the jig and <60 ft (18.3 m) LOA fixed gear sectors did not come exclusively from any particular sectors. As explained in the response to Comment 49, several sectors received less than their 1995 to 2003 average historic harvest of Pacific cod to fund the small boat sectors. Comments on Reallocations *Comment 51:* Amendment 85 will not resolve the reallocation issues raised in the problem statement created by the Council for the action. By over-allocating cod to small, shore-based fisheries that have a history of under-fishing current allocations, and ignoring the important aspect of Alaska's creation of a state waters fishery, this action insures continued rollovers at or above current levels. *Response:* The problem statement does not seek to eliminate inseason reallocations, but to decrease them by adjusting Pacific cod allocations to better reflect historic use by sector. Historically, 76.6 percent of the reallocations between 2000 and 2004 resulted from the trawl sectors not harvesting their entire allocations, with a much smaller amount of unharvested Pacific cod coming from the small, shore-based fisheries. Based on this information, NMFS determined that the new allocations to the sectors will reduce reallocations in the future. Also, see response to Comment 48. *Comment 52:* NMFS will likely set the incidental catch allowance for the non-AFA trawl CP sector higher than the anticipated need, to ensure that there is enough Pacific cod available to fund other sector fisheries. The cod which is not used in the incidental catch allowance will probably not be enough to fund a separate (late-season) directed fishery, so will roll over to another sector. This will continue the very situation (rollovers) which Amendment 85 was supposed to fix. In effect, the H&G sector loses cod allocation well beyond the amounts that were rolling over in the past, and the allocation scheme ensures that more fish will roll over in the future. *Response:* As explained in response to Comment 48, Amendment 85 was not intended to eliminate rollovers. Under this final rule, NMFS will create an incidental catch allowance for the non-AFA trawl CP sector to use for Pacific cod caught incidentally in its other directed fisheries. Because the non-AFA trawl CP sector tends to target Pacific cod early in the year, NMFS will estimate an incidental catch allowance early in the year in order to close the sector's directed fishery while there is enough of the sector's Pacific cod allocation remaining for incidental catch in the other non-AFA trawl CP groundfish fisheries. Whether the allowance is set too high will depend on how well the non-AFA trawl CP sector can avoid Pacific cod incidental catch in its other fisheries. If the sector can lower its incidental catch rate, the directed fishery will have more Pacific cod available for its target fishery. Pacific cod still may be harvested and retained once the directed fishery is closed, albeit at the lower rate of 20 percent under MRA regulations. A large portion of the Pacific cod harvest in this sector historically has been taken as incidental catch. This trend is expected to continue until vessels are able to form cooperatives and opportunities to change fishing strategies present themselves. The commenter presents only one scenario. NMFS anticipates that without cooperatives, the Pacific cod fishery will be prosecuted much as it has been in the past. NMFS will do its best to ensure that each trawl sector can fully harvest its allocation. If the non-AFA trawl CP sector can reduce its incidental catch of Pacific cod, it may be that the incidental catch amount will be greater than the sector's needs, but not large enough for another directed fishery. A goal of Amendment 85 is to reduce reallocations, not eliminate them. NMFS has determined that the allocations will result in lower amounts of reallocations from all sectors. If Amendment 80 is implemented by January 1, 2008, NMFS will manage Pacific cod for the non-AFA trawl CP sector in accordance with Amendment 80. *Comment 53:* The current allocations (from the 1995 action) do not reflect actual catch by sectors of BSAI Pacific cod, principally due to rollovers of uncaught allocations from the trawl and jig sectors. The trawl sectors consistently have not caught their allocation which has resulted in rollovers from the trawl sectors to the fixed gear sectors every year since 1995 - both before and after SSL mitigation measures. The average rollover from the trawl sectors has been 16,765 mt per year (1995 - 2005). At the same time, the freezer-longliners are the only sector that consistently caught their entire allocation on an annual basis. Since 1995, the freezer-longliners have also been catching the majority of the rollover from the trawl sectors and uncaught allocations from other sectors as well (jig, pot, etc.). *Response:* The EA/RIR/FRFA contains the data concerning this issue in Table 3-24 and it represents the best scientific information available on the subject. *Comment 54:* The increasing trend in the fixed gear allocation is a reflection of trawl rollovers. Trawl sectors have not caught their allocations for a number of reasons, one of which is halibut PSC mortality. From 1995 to 2005, the combined trawl sectors caught a decreasing amount of Pacific cod while increasing the rate of halibut PSC mortality by 47 percent (mt halibut PSC per mt Pacific cod). During the same time period, the hook-and-line sectors were catching an increasing amount of Pacific cod while decreasing the rate of halibut PSC mortality by 31 percent. In 2005, the trawl rate was 3.4 times higher than the hook-and-line rate (mt halibut PSC per mt Pacific cod). *Response:* The EA/RIR/FRFA examines reallocation among gear types in Section 3.3.5.7 and it represents the best scientific information available on the subject. *Comment 55:* NMFS should disapprove the rollover (reallocation) hierarchy contained in the proposed rule because the inshore sectors already have healthy allocations and would be first in line for the rollovers. NMFS should send this portion of Amendment 85 back to the Council with instructions to give non-AFA trawl CPs priority access to the rollovers from the jig and <60 ft (18.3 m) LOA fixed gear sectors. *Response:* NMFS has determined that the reallocation hierarchy proposed by the Council is consistent with the purpose and need for Amendment 85 and that it is consistent with the Magnuson-Stevens Act and other applicable law and has approved it with this final rule. This reallocation hierarchy is consistent with the Council's decision to increase the harvest opportunities for the fleets that deliver shoreside to coastal fishing communities, a consideration under National Standard 8. *Comment 56:* Prioritizing rollovers to the AFA trawl CP sector would help accomplish the Council's goal of “maximizing to the extent practicable” the opportunity for the AFA trawl CP sector to conduct its directed cod fishery at the beginning of the year. Knowing that the surplus “C season” cod that has traditionally rolled over from the AFA trawl CP sector during the last half of the fishing year would be available to support nontarget needs in the AFA trawl CP sector during the pollock A and B seasons would help facilitate inseason incidental catch management so as to permit full funding of the directed cod fishery that one AFA trawl CP vessel conducts early in the year. *Response:* See response to Comment 55 which is applicable to the AFA CP sector as well as the non-AFA CP sector. Also see the responses to Comments 13 and 25 for more information regarding the AFA trawl CP sector allocations. Comments on Process Followed for Adoption of Amendment 85 *Comment 57:* The Council's action was taken too quickly for the regulated community to provide informed public comment. The process for consideration of Amendment 85 made it difficult, if not impossible, for the public to comment effectively on, or the Council to understand the impacts of, the decisions it was making. The Magnuson-Stevens Act generally prescribes that a regional fishery management council will hold public hearings in conjunction with the FMP amendment process. See 16 U.S.C. 1852(h)(3). The law also provides for a separate opportunity for “interested persons” to make comment at “business meetings of a Council.'' *Response:* The public was provided ample notice and opportunity to comment on Amendment 85 in accordance with APA and Magnuson-Stevens Act procedures. The public had several opportunities to comment on Pacific cod sector allocations at Council meetings prior to the Council's final action in April 2006 and during the comment period on the FMP amendment. The December 2004 Council meeting was the first opportunity the public had to comment specifically on Amendment 85 at the first presentation of the discussion paper for Amendment 85. Amendment 85 was on the agenda of every Council meeting from December 2004 until final action in April of 2006, for a total of eight Council meetings. The **Federal Register** notice for the April 2006 Council meeting included a statement that final action would be taken on Amendment 85. A draft analysis of Amendment 85 was prepared by the Council and made available for public review prior to the Council taking action. The analysis was then further refined to reflect the effects of the Council's action prior to submission for Secretarial review. *Comment 58:* The non-AFA trawl CP sector lacked the opportunity to discern and explain the implications of the Council's actions before the Council's final decision making. As a result, the non-AFA trawl CP fleet focused its public testimony in support of options that best mirrored the sector's recent use and dependence. The first indication that the Council was developing an option that included a non-AFA trawl CP sector allocation that was at the lowest end of the range under consideration and heavily weighted pre-full retention and pre-AFA years, came when the Council began their deliberations. No further public comment was allowed before final action, however. The non-AFA trawl CP sector has no representation on the Council. Without the benefit of an H&G representative on the Council to participate in the deliberations, the Council members cannot and clearly did not fully realize the impact of their actions. The result was the non-AFA trawl CP fleet was denied a reasonable opportunity to discern and explain the implications of the Council's proposed action before final action was taken. *Response:* There were many opportunities for the public to comment on Amendment 85 (see the response to Comment 57). Several allocation options were presented in the draft analysis that was released to the public in March 2006. These options included allocations to the non-AFA trawl CP sector that ranged from 12.7 to 16.2 percent of the non-CDQ BSAI Pacific cod TAC. The April draft of the EA/RIR/IRFA presented the Council with the information it needed to make the allocation decisions in various tables, with more information on fishmeal presented to the Council and the public at the April Council meeting before public testimony and final action by the Council. After receiving public comment, the Council chose the option to select percentages for Pacific cod allocated to each sector that fell within the range of percentages analyzed. Please see the response to Comment 3 for an explanation of the consideration of catch history from 1995 through 2003. No year was weighted more heavily than any other. Only the first three years of history out of a total of nine years considered were before full retention and the AFA. Not having a representative on the Council should not negatively impact a sector. The Council members take a sworn oath to manage in the best interests of all and are to act impartially. *Comment 59:* No preliminary preferred alternative was identified by the Council. As a result, the analysts, public, and the Council did not have the opportunity to fully understand, comment on, and evaluate the impacts of Amendment 85. Identifying a preliminary preferred alternative before final action may not be required, but for complicated actions it should be. *Response:* As the commenter notes, the Council was not required to identify a preliminary preferred alternative before taking final action on Amendment 85. The analysis before the Council in April 2006 provided the Council and the public with the information necessary for final action on Amendment 85. Each option under consideration for each component was fully analyzed and when an option in one component may have affected options under consideration in another component, those impacts were identified and explained in such a way that the Council and the public could understand the impacts of its decision. For example, seasonal allowances were changed to maintain to the extent possible the current percentage of non-CDQ Pacific cod TAC available for harvest in the early part of the year when fishing for Pacific cod is more advantageous. NMFS notes the commenter's statement that a preliminary preferred alternative should be identified by the Council prior to taking final actions that are complicated. *Comment 60:* The Amendment 85 decision making process was rushed, its analyses were inadequate, and the impacts of the Council decision were not well understood. When the Council chose the “mix and match” approach instead of a “packaged alternative” and moved directly to final action, rather than selecting its desired allocation as a preliminary preferred alternative for further analysis and public comment, the Council basically acted without understanding the impacts of this decision. When one aggrieved stakeholder was able to convince Council members that it suffered from certain unintended consequences, the Council took the matter up again to institute a discrete fix for one vessel. However, the law requires that all members of the public have an opportunity to understand the impacts of a proposed action and an equal opportunity to be heard in the process. As originally passed, the Council recommended that Amendment 85 allocate the H&G sector an amount of Pacific cod that was just over its average harvest, 13.7 percent during the 1995-2003 period. The telling fact that this process devolved into a matter of political compromise rather than informed decision making, in violation of National Standard 2, was that the Council decided to reconsider final action upon discovery of an “unintended consequence.” Expressing concern that the 1.5-percent allocation chosen for the AFA catcher-processor sector might disproportionately impact the one vessel in that sector that targets cod (notwithstanding the recent use of that sector in the range of 1 percent), the Council voted to increase the AFA catcher-processor sector's allocation to 2.3 percent. Part of the Pacific cod that went to “fund” that increase came from the H&G sector, which ended up with a reduced allocation of just 13.4 percent. This action should also have been analyzed in light of the statutory protections the American Fisheries Act grants to non-pollock fisheries. Such weighing and analysis was lacking in this instance. There was no opportunity for public input during the reconsideration and the Amendment 85 allocation was made without the Council having made a reasonable record of how the allocation it chose for the AFA sector “protects” the non-AFA fleets. Further, this allocation exceeds the AFA catcher-processor sector's current use (i.e., since 2001) by as much as 90 percent. It was incumbent upon the Council to make a good-faith effort to examine and fulfill its duties to the non-AFA sectors that funded this reallocation. That was not done. The stated rationale for the revision was the (highly questionable) bycatch needs of the AFA trawl CP sector. At the very least the non-AFA trawl CP fleet had far greater bycatch needs that were ignored not only in Amendment 85 and in Council discussion but were exacerbated once a table using fishmeal was presented during the Council discussion, but not analyzed in the EA/RIR/IRFA, surfaced. But no opportunity was allowed for public comment at that point, and there is no non-AFA trawl CP sector representative on the Council who would have been in a position to alert Council members to the disparity. We support full Secretarial disapproval of the amendment based on lack of adequate analysis which resulted in the Council not fully understanding the impact of their actions, and based on the fact that the Council action did not take the non-AFA trawl CP recent history into consideration. The ultimate impact has been to jeopardize the viability of the H&G fleet, in particular, the vessels which are heavily reliant on cod. *Response:* The public was notified that final action on Amendment 85 would be taken at the April 2006 Council meeting (see response to Comment 57). A draft analysis was prepared prior to that meeting. Because there were questions about including Pacific cod that was turned into fishmeal as the primary product in the calculations of retained legal harvest, tables showing that information were passed out at the Council meeting (see response to Comment 2) prior to public testimony and the Council's deliberation, so the public had an opportunity to respond to the information. The fishmeal data were included in the Secretarial review draft analysis. The Council and NMFS consider fishmeal to be part of the retained legal harvest for Pacific cod. Fishmeal is the primary product from the AFA trawl CP sector's incidental catch of Pacific cod. To exclude it from the AFA sector's history would be equivalent to excluding the non-AFA trawl CP's sector's incidental catch history from its other fisheries. Excluding fishmeal from the AFA trawl CP sector's harvest would result in a harvest share of 0.8 percent, or 65 percent below this sector's new allocation, not 90 percent. Catch history was calculated over a number of years, not just one or two recent years. The Council chose allocations from the within the range of percentages analyzed to balance catch history with consideration of socioeconomic and community factors, including allocations to the small boat sectors that were above their average historic harvest. Members of all sectors and the public at large have had an equal opportunity to comment on the Council's allocation decision, and their opinions have been considered, as evidenced by this response to comments section of the final rule. No procedural irregularity occurred during the development of Amendment 85. The information presented in the Secretarial review draft analysis for this action represents the most current, comprehensive set of information available, recognizing that some information, such as operational costs, is unavailable. The original proposal before the Council was to allocate 13.2 percent of the non-CDQ Pacific cod TAC to the non-AFA trawl CP sector. In a later motion, the jig sector allocation was cut from 2.0 percent to 1.5 percent and the non-AFA trawl CP sector allocation was increased to 13.7 percent, partly in consideration of the State waters Pacific cod fishery. This clearly shows that there were advocates on the Council for the allocation needs of the non-AFA trawl CP sector. The following day, the Council voted to reconsider its action because the AFA trawl CP “allocation of 1.5 percent was not reflective of the historic usage and that it would better lie somewhere between 2 and 2.5 percent” and “not to provide for a directed fishery for any one vessel because there is no guarantee that there will be ongoing directed fishing by any one vessel with these allocations.” The increased allocation to the AFA trawl CP sector this second day resulted in a deduction from several sectors: 0.3 percent from the non-AFA trawl CP sector, 0.3 percent from the hook-and-line CP sector, 0.1 percent from the jig sector, and 0.1 percent from the pot CV sector. As explained in previous responses, NMFS has determined that these allocations are fair and meet the goals of the problem statement. Council members are to act impartially and in the best interests of all. In fact, several members of the Council spoke on behalf of the non-AFA trawl CP sector during the Council deliberations on Amendment 85. This is one reason the original proposal of a 13.2-percent allocation to the non-AFA trawl CP was initially increased to 13.7 percent. Again, the final allocation of 13.4 percent is exactly the non-AFA trawl CP sector's average historic harvest from 1995 through 2003. Amendment 85 “protects” the non-AFA trawl CP fleet in part by separating the trawl CPs into two sectors. Also see responses to Comments 13, and 33, and 58. *Comment 61:* No detailed or legally sufficient impacts analysis of the alternatives was ever prepared. Amendment 85 and its supporting analyses were simply not ready for final decision at the April 2006 meeting. Rather, they should have been further developed and a preliminary preferred alternative specified. By choosing a set of percentages in the manner that the Council did, and taking final action in the same meeting, there was no opportunity for development of a legally sufficient analysis of the likely impacts of the hybrid alternative. The Council reserved itself the option of simply setting allocations for each sector within the range of percentages correlated with one of the baseline periods for a particular sector. However, the RIR and IRFA contained no detailed analysis of the tangible, practical impacts of these proposed allocations on the H&G fleet's fisheries and fishing strategies as they are legally required to be, and that NMFS inseason management was able to ascertain after the Council's vote on Amendment 85. The Council's deliberations regarding the factors the Magnuson-Stevens Act requires it to consider in allocation decisions was not (nor could it have been), informed by objective analysis. The allocation and its management to the H&G sector does not meet the objectives of the Problem Statement, and the effects were not adequately analyzed in either the Amendment 85 EA/RIR/IRFA (March draft) or the Secretarial Review Draft. Nowhere is the impact of any allocation, under any year option, analyzed as to its real operational impact on the sector: the sector's need to balance target versus incidental cod, and loss of the ability to target cod or prosecute flatfish fisheries with such a reduced allocation. With the H&G sector receiving such different treatment than other sectors, or different from what was presented in the analysis, it was virtually impossible for the sector to provide appropriate public comment. Council members did not realize the impact that such a low allocation had or the instability placed on the fleet from losing their directed fishery. Nor did they know the effect on the sector's ability to attain certain groundfish retention levels. These changes happened in the Council deliberations, so the sector could not comment. Without such analysis, and without H&G representation on the Council, Council members did not make an informed decision. The CDQ Pacific cod allocation increase from 7.5 percent to 10.7 percent and the State of Alaska 3 percent share of the ABC will affect Amendment 85's ability to minimize reallocations, and to correlate each sector's allocation with dependency and use. The amendment should be only partially approved or there should be a mandate to review the action in the near future to determine how well the problem statement was addressed. *Response:* As is the normal procedure, a draft EA/RIR/IRFA was prepared prior to the April Council meeting and was made available to the Council and the public prior to the Council taking action on Amendment 85. The analysis was then further refined to reflect the effects of the Council's action prior to submission for Secretarial review. Impacts on the non-AFA trawl CP sector and all the other sectors were well analyzed prior to Council's final action and expanded upon in the analyses that were released for public comment with the FMP and the proposed rule. The analysis and other materials provided to the Council before it took final action were more than adequate and the Secretarial review draft analysis is legally sufficient. As stated in the IRFA, “Because this action is principally designed to 'reapportion' access to the cod resource among current user groups (at the 'sector level'), by definition, it represents tradeoffs.” The Secretarial review draft analysis expects that “management of a lower Pacific cod allocation [to the non-AFA trawl CP sector] to serve both directed and incidental catch needs, will be substantially more difficult,” without a cooperative structure as approved in Amendment 80. The non-AFA trawl CP sector will receive exactly its average historic harvest. This is lower than its more recent harvests, so if the sector reduces incidental catch of Pacific cod in other directed fisheries, it will have more Pacific cod available for its directed fisheries. However, the non-AFA trawl CP sector did not receive “different treatment than other sectors, or different from what was presented in the analysis” beyond dealing with issues unique to its sector, all of which was presented in the Secretarial review draft analysis. In determining the average historic harvest of the AFA trawl CP sector, the Council chose not to include the history of nine AFA vessels (AFA 9) that were bought out under the AFA, the history of which was included when its Pacific cod sideboard was created. Therefore, under Amendment 85, the AFA trawl CP sector will have an allocation that is substantially below its former Pacific cod sideboard allocation that included AFA 9 history. By excluding from consideration the AFA 9 history, which was extinguished by section 209 of the AFA, and by separating the two sectors, Amendment 85 protects the non-AFA trawl CPs. These two sectors will no longer be sharing a single allocation that would be lower under Amendment 85 if the sectors were left together with the same sideboard for the AFA trawl CPs. The Council took note of a possible legislated increase in the Pacific cod allocation to the CDQ Program (see response to Comments 74 and 75) and of the State waters Pacific cod fishery (see response to Comment 48) when it took final action. NMFS has determined that the problem statement was well addressed by the Council. *Comment 62:* Because the analytical and public comment processes were short-circuited, the Council's decision was uninformed and arbitrary, based more on compromise than a reasoned consideration of the relevant Magnuson-Stevens Act factors and the purposes which the Amendment was intended to serve. The analysis available to the Council at the time of decision making, as well as the decision making record, is devoid of any empirical, analytical linkage between the allocation scheme chosen and the Magnuson-Stevens Act standards Congress requires a council to consider when allocating fishing privileges. The Magnuson-Stevens Act and Amendment 85 itself specify goals and requirements for this Pacific cod allocation scheme but the Council's cursory and flawed deliberative process on Amendment 85 failed to connect the Council's choices with these goals and requirements. Accordingly, the action taken by the Council on Amendment 85 represents arbitrary and capricious decision making, in violation of the Magnuson-Stevens Act and the APA. The Magnuson-Stevens Act establishes standards with respect to the relevant criteria a fishery management council must consider when, as here, it makes resource allocations. Specifically that sectors of industry are treated equally, that residents of different States are treated equally, that socioeconomic concerns are taken into consideration, that fisheries are managed to optimum yield, that allocations are for the net benefit of the Nation, current participation, historical use, dependence on the fishery, and other factors. The APA requires that the impacts of Federal regulations be understood and considered at the time decisions are made. The Council's cursory and flawed deliberative process on Amendment 85 failed to connect the Council's choices with these goals and requirements (under administrative law precepts). Accordingly, the action taken by the Council on Amendment 85 would be arbitrary and capricious decision making if implemented. *Response:* The analytical and public comment processes for Amendment 85 and this final rule were not short-circuited, as explained in response to Comment 57. The Council discussed its action in some depth with various allocation amounts presented before final action was taken, including how the Magnuson-Stevens Act National Standards were met by Amendment 85. The impacts of Amendment 85 were discussed in the analysis available to the Council and to the public before the April 2006 Council meeting. The Council's decisions were guided by its problem statement which specified the factors that would be considered in its allocation decisions. The draft EA/RIR/IRFA addressed the Magnuson-Stevens Act requirements and the Council fulfilled these requirements. The allocations chosen were within the options considered in the draft analysis. Decisions by NMFS on FMP amendments and proposed regulations recommended by the Council must be consistent with the Magnuson-Stevens Act and APA. NMFS has determined that Amendment 85 meets all APA and Magnuson-Stevens Act requirements (see response to Comment 57). *Comment 63:* The EA/RIR/IRFA states that the non-AFA trawl CP fleet does not target on pollock because the headed and gutted pollock sells for less than the cost of production. This is inaccurate. While the price of H&G pollock has been low in the past, there were several H&G vessels that had a viable pollock target and market prior to the AFA. Since the AFA, the value of H&G pollock has increased dramatically and the fleet has suffered from not having access to this vast and valuable resource, which comprised 75 percent of the total allowable 2 million mt catch in the BSAI in 2006. *Response:* The statement in the EA/RIR/IRFA was in reference to the fleet in the GOA. Given the comment, NMFS determined the statement was confusing and revised the final analysis by removing the statement. *Comment 64:* The Amendment 85 package provided for Secretarial review not only inadequately estimates the impact on the non-AFA trawl CP fleet of its dramatically reduced allocation but primarily cites Amendment 80 cooperative provisions as the tool that will help mitigate the adverse impacts of Amendment 85 and allow the sector to gain the most value out of its reduced Pacific cod allocations. This seems to violate the principal of evaluating the impacts and providing the rationale for the current proposed amendment without relying on a future action not yet implemented. *Response:* NMFS cannot find support for the commenter's assertion that the Amendment 85 package submitted to the Secretary primarily cites Amendment 80 cooperative provisions as justification for approval of Amendment 85. The response to Comment 13 explains how the analysis for Amendment 85 and this final rule adequately present information concerning the impacts of the action on all sectors, including the non-AFA trawl CP sector. NMFS partially approved Amendment 85 based on the record for Amendment 85 and not on any possible future actions that might mitigate its impacts. *Comment 65:* NMFS cannot now substitute post hoc rationalizations for the absent Council deliberation based on informed public participation on these central issues. The Council's decisional record for Amendment 85 lacks the required support for the recommendations the Council made. *Response:* NMFS is required to examine and consider the entire record before making a decision whether to approve, disapprove, or partially approve an action recommended by a council. After considering the entire record developed for Amendment 85 and the proposed rule, NMFS decided to partially approve Amendment 85 and partially approve the proposed rule for reasons provided in this preamble. *Comment 66:* By allocating cod based on rates of harvest that stretch back as far as 1995, while ignoring current use and dependence of the H&G sector, Amendment 85, as recommended by the Council, violates the substantive provisions of the Magnuson-Stevens Act (factors to take into account when allocating fishing privileges). *Response:* National Standard 4 requires allocations to be
(1)fair and equitable,
(2)reasonably calculated to promote conservation, and
(3)carried out in such manner than no particular individual, corporation, or other entity acquires an excessive share. In compliance with the requirement that the allocation be fair and equitable, the Council used catch history from 1995 through 2003. The Council also considered more recent catch history from 2004 and 2005, but chose not to develop allocations including that history. (See response to Comment 3.) The Council took into account current use and dependence of the non-AFA trawl CP sector, and all other sectors, in making its allocation recommendations, but ultimately did not use them exclusively. Nothing in the Magnuson-Stevens Act or other applicable law requires the Council or NMFS to develop allocations that include present participation, just that the information be considered and a reasonable explanation provided if it is excluded. Socioeconomic considerations and community factors, such as favoring the small boat fisheries, also were considered. Also see responses to Comments 3 and 48. *Comment 67:* The commenter believes that Amendment 85 is consistent with the National Standards of the Magnuson-Stevens Act and other applicable law. The resulting sector allocations from Amendment 85 take into account the catch history, historic dependence, and ability to engage in other fisheries by each of the sectors. Consideration was also given to the potential impacts and sustained participation of coastal communities and small-boat fishermen. *Response:* NMFS agrees that Amendment 85 as partially approved by NMFS is consistent with the Magnuson-Stevens Act and other applicable law. The remaining comments are noted. *Comment 68:* The allocations in Amendment 85 were the result of a fair and equitable process and did not discriminate by residency. *Response:* Comment noted. *Comment 69:* Amendment 85 is consistent with the Problem Statement and purpose of the action. *Response:* Comment noted. *Comment 70:* Keep the proposed rule/final rule process moving forward on the regulatory track so that Amendment 85 can be implemented prior by January 1, 2008 (i.e., in place for the 2008 season), because revisions to the allocations are long overdue. *Response:* This final rule will be published in sufficient time to be effective on January 1, 2008. Comments on Prohibited Species Catch Allowances *Comment 71:* The Secretary should disapprove the PSC allocation portion of Amendment 85. Amendment 85 would allocate PSC for Pacific cod separately to each trawl sector for use only in the Pacific cod fishery. Any sector which has PSC remaining after the cod fishery is completed will be unable to use it anywhere else. Sectors with sufficient PSC to harvest their cod allocation will have no incentive to use it carefully; there would be little incentive for minimizing bycatch rates in other sectors and could result in increased PSC use, in violation of National Standards 1 and 9 of the Magnuson-Stevens Act. After the H&G sector prosecutes its Amendment 85 directed cod fishery, which NMFS estimates will last only about 10 or 11 days, there still may not be enough cod and associated prohibited species catch
(PSC)of halibut and crab for the H&G sector to fully prosecute its other directed groundfish fisheries. Non-AFA trawl CPs will not be able to fund their PSC needs from other PSC allocations (e.g., from the yellowfin sole fishery group) because there will not be enough available. NMFS inseason management could re-allocate unused PSC to other sectors, but that would occur late in the year when it clearly was not going to be used, and would likely be too late for it to be effectively used by other trawl sectors. NMFS can simply continue to manage PSC in the trawl sectors as it does now to optimize the total catch in all trawl fisheries. *Response:* NMFS did not approve the proposed apportionment of Pacific cod trawl fishery halibut and crab PSC allowances among the trawl sectors for the reasons discussed above under the section “Element of Proposed Rule Not Approved.” NMFS did approve the hook-and-line PSC apportionment. Additionally, a detailed response to comments regarding the non-AFA trawl CP sector's directed Pacific cod fishery and incidental catch of Pacific cod is provided in response to Comments 13, 42, and 52. *Comment 72:* The PSC sideboard allocation specified for the AFA trawl CP sector's Pacific cod fishery should be treated as a “cap'' or “limit” on PSC usage in the sector's directed Pacific cod fishery--not as an allocation to that particular fishery. AFA CP sideboards on PSC species are not currently apportioned among target species. None of the AFA trawl CP PSC should be allocated in a way that might result in any of that PSC allocation being “stranded” in a particular fishery and unavailable to support other non-pollock target fisheries in which the AFA trawl CP sector's vessels may want to participate (e.g., yellowfin sole). *Response:* NMFS did not approve the proposed halibut and crab PSC apportionments for the trawl sectors. Additional explanation for this decision is provided earlier in the preamble under the section “Element of Proposed Rule Not Approved.” *Comment 73:* The Secretary should disapprove the PSC allocation method contained in Amendment 85, instead allocating PSC using current methodology or the allocation method contained in Amendment 80, depending on the implementation date for Amendment 80. *Response:* NMFS did not approve the proposed trawl PSC apportionments. PSC will be allocated under the current regulatory method until that method is changed by future rulemaking as described in response to Comment 72. NMFS notes that the proposed rule for Amendment 80 includes new provisions for PSC apportionments among trawl sectors. Comments on CDQ Allocation *Comment 74:* After Amendment 85 was passed by the Council, the CDQ allocation was modified by the Coast Guard Bill and subsequently by the Magnuson-Stevens Reauthorization Act. The commenter assumes that the 10.7 percent total allocation to the CDQ Program will be analyzed in the proposed rule. *Response:* The 10.7-percent allocation to the CDQ Program was analyzed in the EA/RIR/IRFA for the proposed rule and the EA/RIR/FRFA for this final rule. *Comment 75:* The Magnuson-Stevens Act now requires an allocation to the CDQ Program of 10.7 percent. The Council's final action on Amendment 85 adhered to the prior 7.5 percent CDQ allocation, and the Council has taken no further action since that time. Accordingly, it is not accurate to say that the “Council” proposed a 10 percent directed fishing CDQ allowance in submitting Amendment 85 to NMFS. The only proposal upon which the Council has voted chose to leave the CDQ allowance at 7.5 percent. Council staff cannot revise the CDQ allocation proposed by the Council to bring it into compliance with existing law. The Magnuson-Stevens Act requires the Secretary under such circumstances to remand the proposal to the Council, with an explanation, so that the Council may consider what appropriate corrective action to take. The proper course at this point to resolve the problem is to decline to adopt the proposed rule and to remand the sector and CDQ Program allocations to the Council for its consideration and action pursuant to the law. A remand would permit the Council to undertake a proper analysis of the unanalyzed impact of taking a larger CDQ share, before the Council finalizes new allocations. *Response:* The Council determined that no further action on Amendment 85 was needed by the Council after the Coast Guard and Maritime Transportation Act of 2006 (Public Law 109-241; Coast Guard Act) was passed because its decision in April 2006 contemplated a Congressional adjustment to the allocations of Pacific cod to the CDQ Program. The Council's intent was that the CDQ allocation under Amendment 85 would be either 7.5 percent of the Pacific cod TAC or whatever allocation was Congressionally legislated when Amendment 85 was submitted to the Secretary for review. The Council voted to maintain the status quo level of a 7.5 percent CDQ Pacific cod allocation as its preferred alternative, but inherent in that vote was the Council's acknowledgment that legislation likely would be enacted in the coming months that would overrule whatever action the Council took on the CDQ Program allocation at its April 2006 meeting. The Council clearly recognized that legislation affecting the CDQ Program was imminent and could be enacted subsequent to its decision but before Secretarial review of Amendment 85. It was recognized during Council discussion that the proposed rule would need to accommodate any legislated increase in the CDQ allocation. The President signed the Coast Guard Act into law on July 11, 2006, after the Council selected a final preferred alternative for Amendment 85. The Coast Guard Act amendments to the Magnuson-Stevens Act included a change to make the CDQ Program Pacific cod allocation a directed fishing allocation of 10 percent upon the establishment of sector allocations (Section 305(i)(1)(B)(ii)(1)). NMFS notified the Council at its October 2006 meeting that the increased CDQ allocations required under the Coast Guard Act would have to be incorporated into Amendment 85 for it to be consistent with the Magnuson-Stevens Act, and that the changes were being incorporated into the regulations implementing Amendment 85. The Council asked about its ability to review the changes being made to Amendment 85 to comply with the Coast Guard Act, and was advised by NOAA General Counsel that because Amendment 85 had not yet been submitted to the Secretary for review, the Council could request further review it if desired. The Council did not request further review of Amendment 85 at this meeting or at any other time prior to its submission of Amendment 85 to the Secretary. Subsequent to the Coast Guard Act, the Magnuson-Stevens Act was reauthorized and signed into law on January 12, 2007. These more recent changes to the Magnuson-Stevens Act increase the CDQ Program's Pacific cod allocation to 10.7 percent (directed and nontarget combined) effective January 1, 2008. (Note: A provision was also included to trigger this increase in 2007 if a sector of the BSAI Pacific cod fishery forms a fishing cooperative in 2007.) In accordance with section 304(b)(1)(B) of the Magnuson-Stevens Act, NMFS determined that the originally submitted proposed rule for Amendment 85 that contained a 10 percent Pacific cod CDQ Program allocation with an additional amount for incidental catch was inconsistent with the Magnuson-Stevens Act, and returned it to the Council to be revised. Thus, the proposed rule was revised to contain regulatory amendments to increase the CDQ Pacific cod allocation to 10.7 percent to be consistent with the Magnuson-Stevens Act. The increased allocation of Pacific cod to the CDQ Program was within the allocations to the Program analyzed in the March draft of the EA/RIR/IRFA. Although the revised submission from the Council of the proposed rule for Amendment 85 incorporated these new changes, the FMP language could not be changed because it had already been published and was available for public comment. Therefore, NMFS did not approve those parts of the FMP amendment that are now inconsistent with the Magnuson-Stevens Act and refer to a 10-percent allocation of Pacific cod TAC as a directed fishing allowance to the CDQ Program, specify the creation of an incidental catch allowance of Pacific cod for the CDQ Program, or reference changes to the CDQ Program Pacific cod allocations through the Coast Guard Act. Amendment 85 as approved by NMFS and the regulations in this final rule rely on the Magnuson-Stevens Act requirement for a 10.7-percent allocation of Pacific cod TAC to the CDQ Program rather than a specific FMP provision. See response to Comment 74 regarding the analysis of the 10.7-percent allocation of Pacific cod to the CDQ Program. *Comment 76:* The loss of Pacific cod TAC to the CDQ Program is felt by all sectors, but it is not felt proportionately to recency or dependency. Additionally, 93 percent of the CDQ cod is directed to their freezer longline partners, and half of that fleet is involved in harvesting CDQ. Therefore they get the bulk of it back as a sector, and half the sector benefits. *Response:* Because the CDQ Program allocation of Pacific cod is subtracted from the Pacific cod TAC before any allocations are made to the non-CDQ sectors, all non-CDQ sectors are affected proportionately by the CDQ Program allocation. NMFS acknowledges that many of the same hook-and-line CP vessels that fish the non-CDQ BSAI Pacific cod fishery partner with the CDQ groups to prosecute the BSAI Pacific cod CDQ fishery. While some participants in the hook-and-line CP sector will have access to the increased CDQ cod quota and receive some benefit from the harvest of CDQ cod, the cost of the royalty payment to the CDQ groups, and other program requirements, such as 200 percent observer coverage, reduce the benefit to the non-CDQ hook-and-line CP sector. Comments on Hard Cap Management of Pacific Cod Incidental Catch Allowances *Comment 77:* We support NMFS's management of the trawl sector's incidental catch allowance as outlined in the proposed rule, which is that inseason management manages each trawl sector to a soft cap. The non-AFA trawl CP sector testified in support of hard cap management, however it did so in a truly different context. It was inconceivable that the fleet would be so disenfranchised from its last seven years of catch history share. We respectfully request disapproval of hard cap management for the non-AFA trawl CP fleet and soft cap management of Pacific cod H&G incidental catch allowance under both Amendment 85 and Amendment 80. *Response:* Although representatives of the non-AFA trawl CP sector may have testified in support of hard cap management of their Pacific cod allocation, the Council did not include such a requirement in their final action on Amendment 85. Therefore, Amendment 85 and this final rule do not include such a provision. NMFS will continue soft cap management of incidental catch of Pacific cod for the non-AFA trawl CP sector under this final rule. However, NMFS notes that Amendment 80 as approved by the Secretary includes hard cap management requirements. *Comment 78:* The non-AFA trawl CP sector allocation will be managed more conservatively than other sector allocations, i.e., a “hard cap” allocation that when reached will prohibit further fishing in the BSAI. The action on Amendment 85 should not be predicated on mitigation from Amendment 80. The Secretary should disapprove that portion of Amendment 85 that specifies that the non-AFA trawl CPs will be managed under a hard cap. *Response:* Neither Amendment 85 nor this final rule require that the non-AFA trawl CP sector's Pacific cod allocation be managed as a hard cap. See response to Comment 77. Also see response to Comment 64 that NMFS' Amendment 85 decision did not rely on Amendment 80 for mitigation. Comment on Commercial Fisheries *Comment 79:* All quotas allocated should be cut in half this year and all quotas should continue to be cut by 10 percent in each succeeding year. The figures that show healthy stocks gained from the commercial fishing profiteers are a conflict of interest for them because they financially gain from telling this agency everything is great. Ban bottom trawling entirely now. *Response:* NMFS conservatively manages the BSAI Pacific cod fishery based on the best scientific information available. To ensure conservation of the resource, the status of the Pacific cod stock is reviewed by NMFS and the Council each year through a public scientific review process before the TAC is allocated. The commercial fishing industry does not set the harvest levels. This action is intended to allocate Pacific cod TAC among various gear groups. NMFS reviewed the impacts of Amendment 85 in the EA/RIR/FRFA and concluded that it would not result in a significant impact on the human environment. This action is not intended to ban specific gear types. Banning trawling or reducing harvests are not the goals of this action and would need to be addressed in a separate regulatory action developed through the Council process. Classification The Acting Administrator, Alaska Region, NMFS, determined that Amendment 85 is necessary for the conservation and management of the Pacific cod fishery 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 the purposes of Executive Order 12866. A FRFA was prepared. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. The need for and objectives of this action are contained at the beginning of the preamble and in the SUMMARY section of the preamble. The legal basis for this action is also contained in the preamble. A summary of the FRFA follows. A copy of this analysis is available from NMFS (see ADDRESSES ). No comments were received that raised significant issues in response to the IRFA specifically, therefore, no changes were made to the rule as a result of comments on the IRFA. However, several comments were received on the economic impacts of Amendment 85 on different sectors of the industry. For a summary of the comments received, refer to the section above titled “Comments and Responses.” In response to public comment, one sentence was removed from the RIR regarding the non-AFA trawl CP sector targeting pollock because it was an ambiguous statement that related to activity in the Gulf of Alaska and the statement has no bearing on any decision in the analysis. Additionally, NMFS did not approve the proposed regulatory change that would have subdivided among trawl sectors the annual PSC limits apportioned to the Pacific cod trawl gear fisheries. The reasons are discussed above under the section “Element of Proposed Rule Not Approved” and include:
(1)the Council did not provide any explanation as to why an additional reduction in this sector's harvest of Pacific cod and other target species that would result from a reduction in its halibut and crab PSC is appropriate or consistent with National Standard 4 or other applicable law,
(2)the amount of PSC allocated to the AFA trawl CP and the trawl CV sectors is much greater than their historical needs and may create a disincentive for these sectors to minimize their bycatch of prohibited species, which is not consistent with National Standard 9, and
(3)the non-AFA trawl CP sector harvests a significant majority of species other than pollock and Pacific cod, and would likely not have PSC remaining from its Pacific cod fishery to use to achieve optimum yield from its other BSAI groundfish fisheries, an inconsistency with National Standard 1. Description and Estimate of Number of Small Entities to which the Rule will Apply For purposes of the Regulatory Flexibility Act, the Small Business Administration
(SBA)has established that a business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual gross receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. Because the SBA does not have a size criterion for businesses that are involved in both the harvesting and processing of seafood products, NMFS has in the past applied and continues to apply SBA's fish harvesting criterion for these businesses because CPs are first and foremost fish harvesting businesses. Therefore, a business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. NMFS currently is reviewing its small entity size classification for all CPs in the United States. However, until new guidance is adopted, NMFS will continue to use the annual receipts standard for CPs. NMFS plans to issue new guidance in the near future. The FRFA used the most recent year of data available to conduct this analysis (2003). As stated previously, the commercial entities directly regulated by the action are divided into nine sectors for the purpose of (non-CDQ) BSAI Pacific cod allocations, and the CDQ allocation is considered a separate sector. A description of the participants in, and the eligibility requirements for, each non-CDQ sector and a description of the CDQ sector is provided in detail in the RIR. Vessels that were considered large entities, for purposes of the FRFA, were those with individual annual gross receipts greater than $4.0 million, or those affiliated under owners of multiple vessels, contractual relationships, and/or affiliated through fishing cooperative membership (e.g., AFA) that, when combined with earnings from all such affiliated operations, had aggregate annual gross revenues greater than $4.0 million. Insufficient documentation of multiple and joint-ownership structures, contractual affiliations, interlocking agreements, etc., among vessels in the various fleets of interest, herein, exist with which to confidently estimate the number of directly regulated small (and large) entities. Thus, the FRFA is understood to likely overestimate the actual number of directly regulated small entities subject to this action. The majority of the CVs in all gear sectors can be considered small entities under a conservative application of the existing threshold criterion. In 2003 only the AFA trawl CVs were considered large entities, as they are known to be party to a harvest cooperative system. The remaining 138 CVs of all gear types appear to meet the criterion for a small entity, as applied by evaluating the 2003 gross revenue data on a per vessel basis. However, as just noted, little is known about the ownership structure of the vessels in the fleets. Thus, based on the best available data, the following vessels appear to meet the application of the criterion above for a small entity in 2003: 25 hook-and-line and pot CVs <60 ft (18.3 m) LOA; 22 non-AFA trawl CVs; 15 jig CVs; 6 hook-and-line CVs ≥60 ft (18.3 m) LOA; and 70 pot CVs ≥60 ft (18.3 m) LOA. In the CP sector, the available data indicate that fewer than half meet the threshold for a small entity, as applied by evaluating the 2003 gross revenue on a per vessel basis. Thirty-one of the 81 participating vessels in 2003 had gross receipts not in excess of $4.0 million. Again, because little is known about the ownership structure of the vessels in the fleets, it is likely that the FRFA overestimates the number of small entities. Thus, based on the best available data, the following vessels meet the application of the criterion above for a small entity in 2003: 24 hook-and-line CPs; 4 non-AFA trawl CPs; and 3 pot CPs. In sum, of the 310 vessels participating in 2003, 169 vessels are estimated to be small entities directly regulated by the action. The six CDQ groups participating in the CDQ Program are not-for-profit entities that are not dominant in the overall BSAI fishing industry. Thus, the six CDQ groups directly regulated by the action are considered small entities or “small organizations” under the RFA. Therefore, under a conservative application of the SBA criterion and the best available data, the total number of small entities directly regulated by the action is estimated as 175. Recordkeeping and Reporting Requirements This regulation does not impose new recordkeeping or reporting requirements on the directly regulated small entities. Description of Significant Alternatives A FRFA should contain “a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.” The FRFA analyzed the “no action” alternative (Alternative 1) and the selected action (Alternative 2). Each of these alternatives was comprised of the same set of eight components, or issues. The eight components are discussed in detail in the RIR. Alternative 1 would continue the following:
(1)the current overall gear allocations in the BSAI Pacific cod fishery that were established under Amendment 46 in 1997;
(2)the current CDQ allocation of 7.5 percent of the BSAI Pacific cod TAC; and
(3)the current apportionment of the fixed gear portion of the BSAI Pacific cod non-CDQ TAC established under Amendment 77 in 2004. Alternative 1 also would continue a shared halibut PSC allowance to the BSAI hook-and-line Pacific cod fishery category. Before the Council made its decisions for Amendment 85, thus forming Alternative 2, it considered several options under each of the eight components. These many options are analyzed in the RIR. The combination of these options resulted in the evaluation of a multitude of potential alternatives. Amendment 85 is thus one derivation of many possible options, reflecting an effort to balance the economic and social objectives for the action against the potential burden placed on directly regulated entities (especially those which are “small”). One option was selected under each of the eight components to comprise the Council's final preferred alternative, or Alternative 2. Alternative 2 is described in detail in the RIR. Alternative 2 was selected because it accomplishes the objective of revising allocations of BSAI Pacific cod among various harvest sectors that in general more closely reflect historical use by sector than do current allocations, thus reducing the need for reallocations during the fishing year. Alternative 2 also increases the allocation of Pacific cod to the CDQ Program as required by recent changes in the Magnuson-Stevens Act. The revised allocations will reduce uncertainty about the availability of yearly harvests within sectors that is caused by reallocations, and maintain stability among sectors in the BSAI Pacific cod fishery. Alternative 1, no regulatory change, would have no direct impact on small entities. However, it also would not have increased the allocation to the <60 ft (18.3 m) LOA fixed gear sector, one of the smallest of the small entities, whose allocation is increased under Alternative 2. Alternative 1 would not revise allocations of BSAI Pacific cod among various harvest sectors that more closely reflect historical use by sector than do current allocations, thus the need for reallocations during the fishing year would not be reduced. Alternative 1 also would not increase the allocation of Pacific cod to the CDQ Program, contrary to new requirements in the Magnuson-Stevens Act. Therefore, Alternative 1 would not meet the objectives of this action and was rejected. Steps Taken to Minimize the Significant Economic Impact on Small Entities Several measures are included in the rule that will reduce impacts on small entities. Economic opportunity and stability are facilitated for small entities participating in the Pacific cod fisheries by establishing BSAI Pacific cod allocations for the smallest of the small entities (jig vessels and the <60 ft (18.3 m) LOA hook-and-line and pot CVs) that represent a net increase over their catch history. This provides for potential growth in those sectors. On average during 1995 to 2003, the combined harvest history by these sectors was about 0.5 percent of the retained BSAI Pacific cod harvest. However, in recent years it appears that the <60 ft (18.3 m) LOA fixed gear CV sector has increased its participation in the BSAI Pacific cod fishery and could benefit from additional quota, if it were made available. The BSAI Pacific cod fisheries are currently managed through a complex series of permits, gear and area endorsements, and licenses. Many are predicated on historical participation and/or performance thresholds (e.g., meeting or exceeding a specific threshold landing in a specific series of seasons, etc.). Many of these requirements result in extremely high entry costs and physical barriers for small vessels and entry level operations. To relieve these burdens and obstacles to participation, an important means of accommodating small entities can be “exemptions” from these requirements such as acquiring some specific permits, and/or meeting historical catch and participation thresholds, that are extended to particularly vulnerable or disproportionately burdened classes of smaller vessels. For example, the <60 ft (18.3 m) LOA fixed gear CV sector does not need a valid licence limitation program licence to fish Pacific cod and is not required to have a Pacific cod endorsement. Recognizing the opportunity to facilitate and sustain small entity participation, the Council incorporated a number of exemptions for small entities in the final preferred action. Treatment of these provisions is provided in the RIR. This final rule maintains the current reallocation process whereby any unused jig quota is first considered for reallocation to the <60 ft (18.3 m) LOA fixed gear CV sector before being reallocated to any other sector. The rule also changes the jig sector seasonal allowance such that 20 percent more of the jig allocation is allowed to be harvested in the first half of the year. Thus, more Pacific cod may potentially be harvested by the <60 ft (18.3 m) LOA fixed gear CV sector earlier in the year, when the weather is preferable for this small boat sector. The rule also specifies that the third trimester of the jig allocation, if it is to be reallocated, should be available to the <60 ft (18.3 m) LOA fixed gear CV sector on or about September 1. The intent of this provision is to reallocate quota between the small boat CV sectors as early in the year as possible, in order for these sectors to have an opportunity to harvest the quota under better weather conditions. Not approving the proposed regulatory change that would have subdivided among trawl sectors the annual PSC limits apportioned to the Pacific cod trawl gear fisheries, will help minimize the effects of the reduced allocation on the small entities that are members of the non-AFA trawl CP sector by reducing the chance that the non-AFA trawl CP sector's directed fishery for Pacific cod may be closed due to an insufficient PSC allowance. This action increases the BSAI Pacific cod allocation to the CDQ Program from 7.5 percent of the Pacific cod TAC to 10.7 percent, as mandated by the recent amendments to the Magnuson-Stevens Act. A tradeoff exists in terms of impacts on the small entities in the non-CDQ sectors whose allocations will be reduced (proportionally by 3.2 percent) by the increase to the CDQ Program. However, the action represents a positive effect on the six small entities that comprise the CDQ groups in terms of potential revenues resulting from an increased allocation. This increase in royalty payments is estimated as approximately $1.1 million. Nonetheless, efforts to minimize the burden on the smallest of small entities, as discussed above, by exempting them from the most onerous permit and recency requirements, and by allocating Pacific cod TAC amounts in excess of their recent Pacific cod harvest levels, reflect a sincere effort to address the needs of these small entities. In sum, many vessels in each sector directly regulated by Alternative 2 are small entities. Because this action is principally designed to reapportion access to the cod resource among current user groups, by definition, it represents tradeoffs (i.e., some small entities could be negatively affected, while others are positively affected). In addition, the six CDQ groups will receive an increased allocation under this action. Small Entity Compliance Guide Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to this final rule serves as the small entity compliance guide. This action does not require any additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS (see ADDRESSES ) and at the following website: *http://www.fakr.noaa.gov* . List of Subjects in 50 CFR Part 679 Alaska, Fisheries, Recordkeeping and reporting requirements. Dated: August 23, 2007. Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 679 is amended as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for part 679 continues to read as follows: Authority: 16 U.S.C. 773 *et seq.* ; 1801 *et seq.* ; 3631 *et seq.* ; and Pub. L. 108 199, 118 Stat. 110. 2. In § 679.2, remove the definition for “AFA catcher/processor”, revise the definition for “CDQ reserve”, and add definitions for “AFA trawl catcher/processor”, “Hook-and-line catcher/processor”, “Non-AFA trawl catcher/processor”, and “Pot catcher/processor” in alphabetical order to read as follows: § 679.2 Definitions. *AFA trawl catcher/processor* means:
(1)For purposes of BS pollock and all BSAI groundfish fisheries other than Atka mackerel, flathead sole, Greenland turbot, Pacific cod, Pacific ocean perch, rock sole, and yellowfin sole, a catcher/processor that is permitted to harvest BS pollock under § 679.4(l)(2).
(2)For purposes of BSAI Atka mackerel, flathead sole, Greenland turbot, Pacific cod, Pacific ocean perch, rock sole, and yellowfin sole, a catcher/processor that is permitted to harvest BS pollock and that is listed under § 679.4(l)(2)(i). *CDQ reserve* means the amount of each groundfish TAC apportioned under § 679.20, the amount of each catch limit for halibut, or the amount of TAC for crab that has been set aside for purposes of the CDQ Program. *Hook-and-line catcher/processor* means a catcher/processor vessel that is named on a valid LLP license that is noninterim and transferable, or that is interim and subsequently becomes noninterim and transferable, and that is endorsed for Bering Sea or Aleutian Islands catcher/processor fishing activity, catcher/processor, Pacific cod, and hook-and-line gear. *Non-AFA trawl catcher/processor* means, for purposes of BSAI Atka mackerel, flathead sole, Greenland turbot, Pacific cod, Pacific ocean perch, rock sole, and yellowfin sole, a catcher/processor vessel using trawl gear and that:
(1)Is not an AFA trawl catcher/processor listed under § 679.4(l)(2)(i);
(2)Is named on a valid LLP license that is endorsed for Bering Sea or Aleutian Islands trawl catcher/processor fishing activity; and
(3)Was used to harvest with trawl gear in the BSAI and process not less than a total of 150 mt of Atka mackerel, flathead sole, Greenland turbot, Pacific cod, Pacific ocean perch, rock sole, or yellowfin sole between January 1, 1997, and December 31, 2002. *Pot catcher/processor* means a catcher/processor vessel that is named on a valid LLP license that is noninterim and transferable, or that is interim and subsequently becomes noninterim and transferable, and that is endorsed for Bering Sea or Aleutian Islands catcher/processor fishing activity, catcher/processor, Pacific cod, and pot gear. 3. In § 679.7, revise paragraph (d)(5) and add paragraph (d)(25) to read as follows: § 679.7 Prohibitions.
(d)* * *
(5)For a CDQ group, exceed a CDQ or a halibut PSQ.
(25)For a CDQ group, exceed a seasonal allowance of Pacific cod under § 679.20(a)(7)(i)(B). 4. In § 679.20, remove paragraph (b)(1)(iv) and revise the section's introductory text and paragraph (a)(7) to read as follows: § 679.20 General limitations. This section applies to vessels engaged in directed fishing for groundfish in the GOA or the BSAI.
(a)* * *
(7)*Pacific cod TAC, BSAI* —(i) *CDQ reserve and seasonal allowances.*
(A)A total of 10.7 percent of the annual Pacific cod TAC will be allocated to the CDQ Program in the annual harvest specifications required under paragraph
(c)of this section. The Pacific cod CDQ allocation will be deducted from the annual Pacific cod TAC before allocations to the non-CDQ sectors are made under paragraph (a)(7)(ii) of this section.
(B)The BSAI Pacific cod CDQ gear allowances by season, as those seasons are specified under § 679.23(e)(5), are as follows: Gear Type A season B season C season ( *1* ) Trawl 60% 20% 20% ( *i* ) Trawl CV 70% 10% 20% ( *ii* ) Trawl CP 50% 30% 20% ( *2* ) Hook-and-line CP and hook-and-line CV ≥60 ft (18.3 m) LOA 60% 40% no C season ( *3* ) Jig 40% 20% 40% ( *4* ) All other non-trawl gear no seasonal allowance no seasonal allowance no seasonal allowance
(ii)*Non-CDQ allocations* —(A) *Sector allocations.* The remainder of the BSAI Pacific cod TAC after subtraction of the CDQ reserve for Pacific cod will be allocated to non-CDQ sectors as follows: Sector % Allocation ( *1* ) Jig vessels 1.4 ( *2* ) Hook-and-line/pot CV <60 ft (18.3 m) LOA 2 ( *3* ) Hook-and-line CV ≥60 ft (18.3 m) LOA 0.2 ( *4* ) Hook-and-line CP 48.7 ( *5* ) Pot CV ≥60 ft (18.3 m) LOA 8.4 ( *6* ) Pot CP 1.5 ( *7* ) AFA trawl CP 2.3 ( *8* ) Non AFA trawl CP 13.4 ( *9* ) Trawl CV 22.1
(B)*Incidental catch allowance.* During the annual harvest specifications process set forth at paragraph
(c)of this section, the Regional Administrator will specify an amount of Pacific cod that NMFS estimates will be taken as incidental catch in directed fisheries for groundfish other than Pacific cod by the hook-and-line and pot gear sectors. This amount will be the incidental catch allowance and will be deducted from the aggregate portion of Pacific cod TAC annually allocated to the hook-and-line and pot gear sectors before the allocations under paragraph (a)(7)(ii)(A) of this section are made to these sectors.
(iii)*Reallocation among non-CDQ sectors.* If, during a fishing year, the Regional Administrator determines that a non-CDQ sector will be unable to harvest the entire amount of Pacific cod allocated to that sector under paragraph (a)(7)(ii)(A) of this section, the Regional Administrator will reallocate the projected unused amount of Pacific cod to other sectors through notification in the **Federal Register** . Any reallocation decision by the Regional Administrator will take into account the capability of a sector to harvest the reallocated amount of Pacific cod, and the following reallocation hierarchy:
(A)*Catcher vessel sectors.* The Regional Administrator will reallocate projected unharvested amounts of Pacific cod TAC from a catcher vessel sector as follows: first to the jig sector, or to the less than 60 ft (18.3 m) LOA hook-and-line or pot catcher vessel sector, or to both of these sectors; second, to the greater than or equal to 60 ft (18.3 m) LOA hook-and-line or to the greater than or equal to 60 ft (18.3 m) LOA pot catcher vessel sectors; and third to the trawl catcher vessel sector. If the Regional Administrator determines that a projected unharvested amount from the jig sector allocation, the less than 60 ft (18.3 m) LOA hook-and-line or pot catcher vessel sector allocation, or the greater than or equal to 60 ft (18.3 m) LOA hook-and-line catcher vessel sector allocation is unlikely to be harvested through this hierarchy, the Regional Administrator will reallocate that amount to the hook-and-line catcher/processor sector. If the Regional Administrator determines that a projected unharvested amount from a greater than or equal to 60 ft (18.3 m) LOA pot catcher vessel sector allocation is unlikely to be harvested through this hierarchy, the Regional Administrator will reallocate that amount to the pot catcher/processor sector in accordance with the hierarchy set forth in paragraph (a)(7)(iii)(C) of this section. If the Regional Administrator determines that a projected unharvested amount from a trawl catcher vessel sector allocation is unlikely to be harvested through this hierarchy, the Regional Administrator will reallocate that amount to the other trawl sectors in accordance with the hierarchy set forth in paragraph (a)(7)(iii)(B) of this section.
(B)*Trawl gear sectors.* The Regional Administrator will reallocate any projected unharvested amounts of Pacific cod TAC from a trawl sector (trawl catcher vessel, AFA trawl catcher/processor, and non-AFA trawl catcher/processor sectors) to other trawl sectors before unharvested amounts are reallocated and apportioned to specified gear sectors as follows: ( *1* ) 83.1 percent to the hook-and-line catcher/processor sector, ( *2* ) 2.6 percent to the pot catcher/processor sector, and ( *3* ) 14.3 percent to the greater than or equal to 60 ft (18.3 m) LOA pot catcher vessel sector.
(C)*Pot gear sectors.* The Regional Administrator will reallocate any projected unharvested amounts of Pacific cod TAC from the pot catcher/processor sector to the greater than or equal to 60 ft (18.3 m) LOA pot catcher vessel sector, and from the greater than or equal to 60 ft (18.3 m) LOA pot catcher vessel sector to the pot catcher/processor sector before reallocating it to the hook-and-line catcher/processor sector.
(iv)*Non-CDQ seasonal allowances* —(A) *Seasonal allowances by sector.* The BSAI Pacific cod sector allowances are apportioned by season, as those seasons are specified at § 679.23(e)(5), as follows: Sector Seasonal Allowances A season B season C season ( *1* ) Trawl ( *i* ) Trawl CV 74 % 11 % 15 % ( *ii* ) Trawl CP 75 % 25 % 0 % ( *2* ) Hook-and-line CP, hook-and-line CV ≥60 ft (18.3 m) LOA, and pot gear vessels ≥60 ft (18.3 m) LOA 51 % 49 % no C season ( *3* ) Jig vessels 60 % 20 % 20 % ( *4* ) All other nontrawl vessels no seasonal allowance no seasonal allowance no seasonal allowance
(B)*Unused seasonal allowances.* Any unused portion of a seasonal allowance of Pacific cod from any sector except the jig sector will be reallocated to that sector's next season during the current fishing year unless the Regional Administrator makes a determination under paragraph (a)(7)(iii) of this section that the sector will be unable to harvest its allocation.
(C)*Jig sector.* The Regional Administrator will reallocate any projected unused portion of a seasonal allowance of Pacific cod for the jig sector under this section to the less than 60 ft (18.3 m) LOA hook-and-line or pot catcher vessel sector. The Regional Administrator will reallocate the projected unused portion of the jig sector's C season allowance on or about September 1 of each year. 5. In § 679.21, remove paragraph (e)(1)(i), redesignate paragraphs (e)(1)(ii) through (e)(1)(ix) as (e)(1)(i) through (e)(1)(viii), and revise paragraphs (e)(2), (e)(3)(i), (e)(3)(v), and (e)(4), to read as follows: § 679.21 Prohibited species bycatch management.
(e)* * *
(2)*Nontrawl gear, halibut.* The PSC limit of halibut caught while conducting any nontrawl fishery for groundfish in the BSAI during any fishing year is the amount of halibut equivalent to 900 mt of halibut mortality.
(3)* * *
(i)*General.*
(A)An amount equivalent to 7.5 percent of each PSC limit set forth in paragraphs (e)(1)(i) through
(iv)and paragraphs (e)(1)(vi) through
(viii)of this section is allocated to the groundfish CDQ Program as PSQ reserve. The PSQ reserve is not apportioned by gear or fishery.
(B)NMFS, after consultation with the Council and after subtraction of the PSQ reserve, will apportion each PSC limit set forth in paragraphs (e)(1)(i) through
(vii)of this section into bycatch allowances for the fishery categories defined in paragraph (e)(3)(iv) of this section, based on each category's proportional share of the anticipated incidental catch during a fishing year of prohibited species for which a PSC limit is specified and the need to optimize the amount of total groundfish harvested under established PSC limits.
(v)*AFA prohibited species catch limitations.* Halibut and crab PSC limits for the AFA trawl catcher/processor sector and the AFA trawl catcher vessel sector will be established according to the procedures and formulas set out in § 679.64(a) and
(b)and managed through directed fishing closures for the AFA trawl catcher/processor sector and the AFA trawl catcher vessel sector in the groundfish fisheries for which the PSC limit applies.
(4)*Halibut apportionment to nontrawl fishery categories* —(i) *General.*
(A)An amount equivalent to 7.5 percent of the nontrawl gear halibut PSC limit set forth in paragraph (e)(2) of this section is allocated to the groundfish CDQ Program as PSQ reserve. The PSQ reserve is not apportioned by gear or fishery.
(B)NMFS, after consultation with the Council and after subtraction of the PSQ reserve, will apportion the halibut PSC limit for nontrawl gear set forth under paragraph (e)(2) of this section into bycatch allowances for the nontrawl fishery categories defined under paragraph (e)(4)(ii) of this section.
(C)Apportionment of the nontrawl halibut PSC limit among the nontrawl fishery categories will be based on each category's proportional share of the anticipated bycatch mortality of halibut during a fishing year and the need to optimize the amount of total groundfish harvested under the nontrawl halibut PSC limit.
(D)The sum of all bycatch allowances of any prohibited species will equal its PSC limit.
(ii)*Nontrawl fishery categories.* For purposes of apportioning the nontrawl halibut PSC limit among fisheries, the following fishery categories are specified and defined in terms of round-weight equivalents of those BSAI groundfish species for which a TAC has been specified under § 679.20.
(A)*Pacific cod hook-and-line catcher vessel fishery.* Catcher vessels fishing with hook-and-line gear during any weekly reporting period that results in a retained catch of Pacific cod that is greater than the retained amount of any other groundfish species.
(B)*Pacific cod hook-and-line catcher/processor fishery.* Catcher/processors fishing with hook-and-line gear during any weekly reporting period that results in a retained catch of Pacific cod that is greater than the retained amount of any other groundfish species.
(C)*Sablefish hook-and-line fishery.* Fishing with hook-and-line gear during any weekly reporting period that results in a retained catch of sablefish that is greater than the retained amount of any other groundfish species.
(D)*Groundfish jig gear fishery.* Fishing with jig gear during any weekly reporting period that results in a retained catch of groundfish.
(E)*Groundfish pot gear fishery.* Fishing with pot gear under restrictions set forth in § 679.24(b) during any weekly reporting period that results in a retained catch of groundfish.
(F)*Other nontrawl fisheries.* Fishing for groundfish with nontrawl gear during any weekly reporting period that results in a retained catch of groundfish and does not qualify as a Pacific cod hook-and-line catcher vessel fishery, a Pacific cod hook-and-line catcher/processor fishery, a sablefish hook-and-line fishery, a jig gear fishery, or a groundfish pot gear fishery as defined under this paragraph (e)(4)(ii). § 679.23 [Amended] 6. In § 679.23, remove paragraphs (e)(6) and (e)(7). 7. In § 679.64: A. Remove paragraph (a)(1) introductory text. B. Redesignate paragraph (a)(1)(i) as paragraph (a)(1) introductory text. C. Redesignate paragraph (a)(2) introductory text as paragraph (a)(1)(i). D. Redesignate paragraphs (a)(2)(i) and
(ii)as paragraphs (a)(1)(i)(A) and(B), respectively. E. Redesignate paragraph (a)(3) introductory text as paragraph (a)(1)(ii). F. Redesignate paragraphs (a)(3)(i) through
(iii)as paragraphs (a)(1)(ii)(A) through (C), respectively. G. Redesignate paragraph (a)(4) introductory text as paragraph (a)(1)(iii). H. Redesignate paragraphs (a)(4)(i) and
(ii)as paragraphs (a)(1)(iii)(A) and (B), respectively. I. Redesignate paragraph (a)(5) as paragraph (a)(2). J. Redesignate paragraph (a)(6) as paragraph (a)(3), and K. Revise newly redesignated paragraphs (a)(1) introductory text and (a)(3). The revisions read as follows: § 679.64 Harvesting sideboards limits in other fisheries.
(a)* * *
(1)*How will groundfish sideboard limits for AFA listed catcher/processors be calculated?* Except for Aleutian Islands pollock and BSAI Pacific cod, the Regional Administrator will establish annual AFA catcher/processor harvest limits for each groundfish species or species group in which a TAC is specified for an area or subarea of the BSAI as follows:
(3)*How will AFA catcher/processor sideboard limits be managed?* The Regional Administrator will manage groundfish harvest limits and PSC bycatch limits for AFA catcher/processors through directed fishing closures in fisheries established under paragraph (a)(1) of this section in accordance with the procedures set out in §§ 679.20(d)(1)(iv) and 679.21(e)(3)(v). §§ 679.20, 679.21, 679.31, 679.32, 679.50, and 679.64 [Amended] 8. In the table below, for each of the paragraphs shown under the “Paragraph” column, remove the phrase indicated under the “Remove” column and replace it with the phrase indicated under the “Add” column for the number of times indicated in the “Frequency” column. Paragraph(s) Remove Add Frequency § 679.20(b)(1)(i) except pollock and the except pollock, Pacific cod, and the 2 Newly redesignated § 679.21(e)(1)(i) introductory text paragraphs (e)(1)(iii)(A) through paragraphs (e)(1)(i)(A) through 1 Newly redesignated § 679.21(e)(1)(ii) introductory text paragraphs (e)(1)(iii)(A) and paragraphs (e)(1)(ii)(A) and 1 Paragraph heading of newly redesignated § 679.21(e)(1)(vi) *Chinook salmon* *BS Chinook salmon* 1 § 679.21(e)(3)(ii)(B)(2) paragraph (e)(1)(ii) of paragraph (e)(1)(i) of 1 § 679.21(e)(7)(viii) introductory text paragraphs (e)(1)(vii) and (e)(1)(ix) of paragraphs (e)(1)(vi) and (e)(1)(viii) of 1 § 679.21(e)(7)(viii)(A) introductory text paragraph (e)(1)(vii) of paragraph (e)(1)(vi) of 1 § 679.21(e)(7)(viii)(B) introductory text paragraph (e)(1)(ix) of paragraph (e)(1)(viii) of 1 § 679.31(c) (See § 679.20(b)(1)(iii)) (See § 679.20(a)(7)(i) and (b)(1)(iii).) 1 § 679.31(e) (See § 679.21(e)(1)(i) and (e)(2)(ii)). (See § 679.21(e)(3)(i)(A) and (e)(4)(i)(A).) 1 § 679.32(b) under § 679.21(e)(5) in under § 679.21(e)(4) in 1 § 679.50(c)(1)(iii) under § 679.21(e)(7)(vi), or under § 679.21(e)(7)(vii), or 1 Newly redesignated § 679.64(a)(1)(i)(B) paragraph (a)(2)(i) of paragraph (a)(1)(i)(A) of 1 Newly redesignated § 679.64(a)(1)(iii)(A) paragraphs (a)(1)(ii) through (a)(3) of paragraphs (a)(1)(i) through (a)(1)(ii) of 1 Newly redesignated § 679.64(a)(1)(iii)(B) paragraph (a)(4)(i) of paragraph (a)(1)(iii)(A) of 1 [FR Doc. E7-17140 Filed 8-31-07; 8:45 am] BILLING CODE 3510-22-S 72 170 Tuesday, September 4, 2007 Proposed Rules Part V Department of Transportation Federal Railroad Administration 49 CFR Parts 229, 232, and 238 Electronically Controlled Pneumatic Brake System; Proposed Rule DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 229, 232, and 238 [Docket No. FRA-2006-26175, Notice No. 1] RIN 2130-AB84 Electronically Controlled Pneumatic Brake Systems AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: FRA proposes revisions to the regulations governing freight power brakes and equipment by adding a new subpart addressing electronically controlled pneumatic
(ECP)brake systems. The proposed regulations are designed to provide for and encourage the safe implementation and use of ECP brake system technologies. The proposal contains specific requirements relating to design, interoperability, training, inspection, testing, handling defective equipment, and periodic maintenance related to ECP brake systems. The document also identifies provisions of the existing regulations and statutes where FRA is proposing to provide flexibility to facilitate the introduction of this advanced brake system technology. DATES:
(1)Written comments must be received by November 5, 2007. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays.
(2)FRA will hold an oral public hearing on a date to be announced in a forthcoming notice. ADDRESSES: *Comments:* Comments related to Docket No. FRA-2006-26175, may be submitted by any of the following methods: • *Web site:* Until September 28, 2007, comments should be filed at *http://dms.dot.gov* . After September 28, 2007, comments should be filed at the Federal eRulemaking Portal, *http://www.regulations.gov* . At each site, follow the online instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 20590. • *Hand Delivery:* Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number
(RIN)for this rulemaking. Note that all comments received will be posted without change to *http://dms.dot.gov* including any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* until September 28, 2007, to *http://www.regulations.gov* after September 28, 2007, or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: James Wilson, Office of Safety Assurance and Compliance, Motive Power and Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6259); or Jason Schlosberg, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6032). SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Background II. Conventional Brake Operations III. ECP Brake Operations IV. Interoperability V. Advantages of ECP Brakes Over Conventional Pneumatic Brakes A. Simultaneous Brake Application B. Continuous Brake Pipe Charging C. Graduated Brake Application and Release D. Train Management E. Improved Performance VI. Standards, Approval, and Testing A. AAR Standards and Approval Process B. FMECA VII. Market Maturity and Implementation VIII. Related Proceeding IX. Legal Impediments and Proposed Relief X. Additional Issues A. Part 229 B. Dynamic Brake Requirements C. Single Car Air Brake Test Approval Procedures and Single Car Air Brake Tests D. Train Handling Information E. Piston Travel Limits F. Extended Haul Trains G. Part 238 XI. Section-by-Section Analysis XII. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism Implications E. Environmental Impact F. Unfunded Mandates Reform Act of 1995 G. Energy Impact H. Privacy Act I. Background Since the inception of automatic air brakes by George Westinghouse in the 1870s, brake signal propagation has been limited by the nature of air and the speed of sound. Other adjustments have sought to alleviate this deficiency, but have left the basic system unaltered. As early as 1990, the Association of American Railroads
(AAR)has investigated more advanced braking concepts for freight railroads, including ECP brake systems, which promise to radically improve brake propagation by using electrical transmissions of the braking signal through the train while still using air pressure in the cylinder to apply the force of the brake shoe. During the past 15 years, ECP brake technology has progressed rapidly and has been field tested and used on various railroads' revenue trains. FRA has been an active and consistent advocate of ECP brake system implementation. In 1997, FRA participated in an AAR initiative to develop ECP brake standards and in 1999, FRA funded, through Transportation Technology Center, Inc., a Failure Modes, Effects, and Criticality Analysis (FMECA) of ECP brake systems based on the AAR standards. FRA also took part in programs to develop and enhance advanced components for ECP brake systems. To assess the benefits and costs of ECP brakes for the U.S. rail freight industry, FRA contracted Booz Allen Hamilton
(BAH)in 2005 to conduct a study. BAH engaged an expert panel consisting of principle stakeholders in ECP brake technology conversion to participate in the study. The expert panel made various conclusions relating to technological standards, safety, and efficiency. In addition, the final BAH report provided a comprehensive analysis and comparison of ECP and conventional air brake systems. On August 17, 2006, FRA announced in a press release its intention to issue a notice of proposed rulemaking to revise the federal brake safety standards to encourage railroads to invest in and deploy ECP brake technology. In the press release, FRA encouraged railroads to submit ECP brake plans before the proposed rule changes are completed. In a petition dated November 15, 2006, and filed November 21, 2006, two railroads—the BNSF Railway Company
(BNSF)and the Norfolk Southern Corporation (NS)—jointly requested that FRA waive various sections in parts 229 and 232 as it relates to those railroads' operation of ECP brake pilot trains. *See* Docket No. FRA-2006-26435. FRA held a fact-finding hearing on this matter on January 16, 2007, featuring testimony from representatives of the petitioners, air brake manufacturers, and labor unions and issued a conditional waiver on March 21, 2007. *See id* . In drafting this proceeding's proposed rules, FRA has considered information filed and decisions made in the related, but separate, proceeding concerning the petition for waiver filed by BNSF and NS. II. Conventional Brake Operations While the basic operational concept of the automatic air brake system, originally conceived by George Westinghouse in the 1870s, remains the same, it has seen continuous improvement in practice. An air compressor in the locomotive charges a main reservoir to about 140 pounds per square inch (psi). With controls located in the locomotive, the locomotive engineer uses the main reservoir to charge the brake pipe—a 1 1/4 inch diameter pipe—that runs the length of the train and is connected between cars with hoses. The brake pipe's compressed air—used as the communication medium to signal brake operations and the power source for braking action—then charges each car's two-compartment reservoir to a pressure of 90 psi. Braking occurs through a reduction of air pressure in the brake pipe, which signals the valves on each car to direct compressed air from the reservoir on each car to its respective brake cylinder for an application of brakes. When air pressure is supplied to the brake cylinder—which is connected to a series of rods and levers that apply and release the brakes—the resulting force presses the brake shoes against the wheel, slowing the car's speed. While brake applications were initially directed by George Westinghouse's triple valve, modern applications direct a control valve, which directs air from the brake pipe into the air reservoir when air pressure is rising in the brake pipe in order to charge the auxiliary and emergency reservoir and be ready for a brake application. To perform a brake application, the locomotive automatic brake valve reduces pressure in the brake pipe by exhausting air, causing the car's control valve to direct air from the auxiliary reservoir into the brake cylinder. The increase in pressure to the brake cylinder is approximately proportional to the drop in brake pipe pressure. A 26 psi reduction in brake pipe pressure is equal to a full service brake application on a fully charged brake pipe, and should result in a brake cylinder pressure adequate to achieve a full service braking effort (brake force). While the control valve is directing air into the brake cylinder, or holding air in the brake cylinder, it is unable to recharge the auxiliary reservoir on each car. The engineer can apply the brakes in increments, at few psi at a time, go directly to a full service application of 26 psi reduction, or initiate an emergency application of the brakes, as explained below. Unlike a brake application, the incremental release of brakes on a freight train cannot be accomplished. Brakes can only be fully released, called a direct release, and the auxiliary reservoirs then begin to charge. Brake applications are possible, but are more complicated, from undercharged brake pipe and reservoirs. Recharging takes more time for a longer train, because the air has to be sent down the length of the train's brake pipe—which can be up to a mile and a half. In addition, on extremely long trains, the brake pipe pressure on the last car may not reach 90 psi due to small leaks throughout the brake pipe, and there may be problems getting enough brake pipe pressure to fully release the brakes during cold weather. Brake pipe pressure is measured by an end-of-train
(EOT)device, which is electrically and pneumatically connected to the rear of a train equipped with conventional pneumatic brakes and sends signals (EOT Beacon) via radio indicating the brake pipe pressure to the lead locomotive. Current Federal regulations specify the design and performance standards for both one-way and two-way EOT devices. *See* Part 232, subpart E. Both EOT device designs comprise of a rear unit pneumatically connected to the rear of the train's last car that an EOT Beacon to a Head End Unit (HEU)—a brake system control device mounted within the locomotive and used to control the ECP brake system by the locomotive engineer and containing the fail-safe software for certain undesirable conditions. One-way EOT devices can transmit information from the rear unit to the HEU. At a minimum, the one-way device must transmit the brake pipe pressure to the HEU and display the reading to the locomotive engineer. Two-way EOT devices transmit and receive information from both the rear end unit and the HEU. An emergency brake application can be initiated in several ways. The locomotive engineer can initiate the application by moving the brake handle to the emergency position, which exhausts air from the locomotive end at a faster rate than the service application. Emergency brake applications can also be initiated by opening the conductor's valve, located in the cab of the locomotive, or by a break-in-two, where the train separates between cars and the brake pipe hoses separate, exhausting brake pipe pressure. While performing an emergency brake application from the locomotive, a locomotive engineer can also use a two-way EOT to initiate an emergency brake application at the rear of the train. This permits the emergency application to be simultaneously initiated from both the front and rear of the trains and ensures that the brakes on the cars at the rear of the train apply in the event a brake pipe blockage occurs. III. ECP Brake Operations As early as 1990, AAR began investigating a more advanced braking concept for freight railroads, the ECP brake system. The ECP brake system radically improves the operation of the automatic air brake by using electrical transmissions to signal the application and release of brakes on each car in a train while still using compressed air to apply the force of the brake shoe against the wheel. ECP brakes also greatly simplify the brake system by eliminating multiple pneumatic valves used by conventional brakes and replacing them with a printed circuit board with microprocessor, one electrically activated application valve, and one electrically activated release valve, with feedback on brake cylinder pressure for control. ECP brake technology requires equipping locomotives and cars with special valves and equipment that are unique to the operation of ECP brakes. While this system still requires a brake pipe to supply compressed air from the locomotive to each car's reservoir in a train, there are currently two known methods to send the electronic signal for ECP brake operations from the locomotive to each car in the train. These methods include using a hard wire electrical cable running the length of the train or a radio-based technology requiring a transmitter and a receiver installed on the cars and locomotives. At this time, it appears that the railroad industry has chosen to use a cable-based system for ECP brake operation. Therefore, the proposed rules will be limited to operations involving cable-based ECP brake systems. ECP brake systems still employ the automatic air brake system's basic concept where the locomotive supplies compressed air to each car's reservoir via the conventional brake pipe. Each car's brake valve reacts to a signal to apply the brakes by directing compressed air from the reservoir to the brake cylinder or to release the brakes by releasing air from the brake cylinder. The similarities between the conventional pneumatic and ECP brake systems end here. Instead of utilizing reductions and increases of the brake pipe pressure to convey application and release signals to each car in the train, ECP brake technology uses electronic signals, resulting in an almost instantaneous application and release of brakes on each car in the entire train. Since the brake pipe pressure no longer serves as the communication medium in ECP braked trains, the brake pipe is constantly supplied or charged with compressed air from the locomotive regardless of whether the brakes are applied or released. In addition, ECP brake equipped trains offer graduated release, where a partial brake release command provides a partial, proportional brake release. The basic ECP brake system is controlled from the HEU and each car is equipped with a Car Control Device (CCD), an electronic control device that replaces the function of the conventional pneumatic service and emergency portions during electronic braking. The CCD acknowledges and interprets the electronic signals from the HEU and controls the car's service and emergency braking functions and brake releases. The CCD also controls reservoir charging and sends a warning signal to the locomotive in the event any component fails to appropriately respond to a braking command. Each CCD has a unique electronic address located in the Car ID Module, which is keyed to a car's reporting mark and number. Each car connects to the locomotive via special connectors and junction boxes. More specifically, an ECP brake equipped train's train line cable—a two-conductor electric cable (#8 A-WG and a shield)—connects the locomotive and cars and carries train line power to operate all CCDs and ECP brake system's end-of-train (ECP-EOT) device and communicates network signals via the power voltage. A Power Supply Controller (PSC)—mounted within the locomotive and providing 230 VDC of electricity—interfaces with the train line cable's communication network, provides power to all connected CCDs and ECP-EOT devices, and controls the train line power supply as commanded by the HEU. Under the AAR standards, a single power supply shall be capable of supplying power to an ECP brake equipped train consisting of at least 160 CCDs and an ECP-EOT device. Under the existing regulations, the conventional pneumatic brake system's EOT device can lose communication for 16 minutes and 30 seconds before the locomotive engineer is alerted. *See* 49 CFR 232.407(g). After the message is displayed, the engineer must restrict the speed of the train to 30 mph or stop the train if a defined heavy grade is involved. Per the regulations, railroads must calibrate each conventional two-way EOT devices every 365 days and would likely incur additional maintenance and cost expenses while replacing its batteries. Further, a conventional EOT device is heavy and presents a potential for personal injury when applied to the rear of the train. By contrast, an ECP-EOT device uniquely monitors both brake pipe pressure and operating voltages and sends an EOT Beacon every second from its rear unit to its HEU on the controlling locomotive. The HEU will initiate a full service brake application should brake pipe pressure fall below 50 psi or an emergency brake application should a communication loss occur for five consecutive seconds or the electrical connection break. An ECP-EOT device may not require calibration and its battery, only a back-up for the computer, is charged by the train line cable and is much lighter in weight than the conventional EOT device battery. Physically the last network node in the train, the ECP-EOT device also contains an electronic train line cable circuit—a 50 ohm resistor in series with 0.47 micro-farad capacitor—and must be connected to the network and transmit status messages to the HEU before the train line cable can be powered continuously. ECP brake systems have a great advantage of real-time monitoring the brake system's health. In normal operation, the HEU transmits a message/status down the train line cable to each car. If an individual car's brakes do not respond properly to the HEU's brake command, or if air pressures are not within the specified limits for operation, a message indicating the problem and the applicable car number is sent back to the HEU, which in turn notifies the locomotive engineer. The ECP brake system can identify various faults, including, but not limited to: low brake pipe pressure; low reservoir pressure; low train line cable voltage; low battery charge; incorrect brake cylinder pressure; and offline or cut out CCDs. Emergency or full service brake applications—enabled by compressed air propagating pneumatic pressure signals through the brake pipe—automatically occur when the ECP brake system software detects certain faults. For instance, if the HEU detects that the percentage of operative brakes falls below 85 percent, a full service brake application will automatically occur. In addition, the brakes will automatically apply when the following occurs:
(1)Two CCDs or the ECP-EOT report a “Critical Loss” within 5 seconds;
(2)the train line cable indicates low voltage with less than 90 percent operative brakes;
(3)the ECP-EOT reports a low battery charge;
(4)the train moves during set-up;
(5)the train line cable becomes disconnected; or
(6)the train exceeds 20 mph in Switch Mode. Under the AAR standards, the ECP brake system shall also have a pneumatic back-up system on each car for an emergency brake application in the event of a vented brake pipe or a train separation. These features preserve the fail safe feature of conventional pneumatic brake systems. IV. Interoperability Due to control methodology differences, ECP brake systems are not functionally compatible with conventional pneumatic air brake systems. For instance, while conventional pneumatic air brake systems command a brake application by reducing the air pressure in the brake pipe, ECP brake systems command a brake application through a digital communications link transmitted on the electrical train line cable. Further, conventional freight cars are not equipped with an electrical train line cable and must depend on the pneumatic brake pipe for the brake command. Manufacturers have developed application strategies to address issues relating to car and locomotive fleet interchangeability. In particular, they have proposed three major schemes of ECP brake design: stand-alone systems using only ECP brakes; overlay (dual mode) systems capable of operating in either conventional or ECP brake mode; and emulation systems, also capable of operating in either conventional or ECP brake mode. Since cars with stand-alone ECP brake systems do not include a fully pneumatic brake control valve, they are incompatible with conventionally braked cars and must be operated in complete ECP brake equipped train sets. Stand-alone ECP brake systems cannot intermix in the same train with conventional pneumatic braked cars unless those cars are transported as cars with inoperative brakes. While the stand-alone ECP brake system is the least expensive alternative of the three design types, its incompatibility with conventional pneumatic brake systems requires train segregation, potentially posing significant operational problems until the entire car fleet is converted to ECP brakes. Overlay configurations—cars equipped with both ECP CCDs and conventional pneumatic control valve portions—allow cars to operate with either ECP or conventional pneumatic air brakes. To operate in ECP brake mode, compatible ECP equipment must be installed on the locomotive as well as on the freight car. While an overlay system's dual mode capability provides significant flexibility, railroad operators must purchase, install, and maintain equipment to support both types of brake systems for as long as dual mode capability is required. Emulation configurations use a CCD capable of operating in either ECP or conventional mode without requiring conventional pneumatic controls. One manufacturer has provided an emulation ECP brake valve that monitors both the digital communications cable and the brake pipe for a brake command. If an electrical signal is present, the ECP brake valve operates in ECP brake mode. If the electrical brake command signal is not present, then the valve will monitor the changes in the brake pipe pressure like a conventional pneumatic control valve and the CCD will use a software program to emulate the function and response of a conventional pneumatic valve. This mode is called limited emulation and is meant to be used for small cuts of cars hauled short distances at slow speeds with a non-ECP brake equipped locomotive. An emulation ECP brake system can be operated in any train with any mix of emulation ECP and conventional brake systems. In a mixed train, the emulation ECP brake system will monitor the brake pipe for pressure changes and set up brake cylinder pressure like a conventional pneumatic valve. Currently, FRA does not propose any rules uniquely regulating trains or cars equipped with emulation ECP brake systems. However, FRA seeks comments on whether or how it should regulate such systems differently than what is proposed herein. Manufacturers have also addressed ECP brake compatibility with conventional pneumatic brake equipped locomotives, which must be equipped with a HEU unit to operate the brakes on ECP brake equipped cars. For instance, one manufacturer has developed a portable unit that will allow a non-ECP brake equipped locomotive to operate an ECP brake equipped train by converting the air pressure changes in the brake pipe to digital command signals that are transmitted to the freight cars through the electrical train line cable. The locomotive engineer operates the brakes with the conventional automatic brake valve in the control cab. The brakes, however, will respond instantaneously and provide all of the benefits of an ECP brake system. V. Advantages of ECP Brakes Over Conventional Pneumatic Brakes ECP brake technology overcomes many of the physical limitations inherent in conventional pneumatic brake technology. Field testing of AAR compliant ECP brake systems over the past decade has not revealed any indication of a catastrophic event that could be caused by an ECP brake system malfunctioning. With a high level of confidence, the ECP brake stake holders support the implementation of ECP brake systems on the Nation's railroads. FRA concludes that the advantages of ECP brake technology will significantly improve the safety and the performance of train operations. Examples of such benefits include better train handling through simultaneous brake applications, continuous brake pipe charging, and graduated brake operation. ECP brake benefits also include electronic train management and improved performance. A. Simultaneous Brake Application The conventional pneumatic brake system uses compressed air as the source for braking power and as the medium for communicating brake application and release commands and communicates brake commands by changing brake pipe pressure through the use of the locomotive automatic brake control valve. These commands begin at the front of the train and propagate to the rear of the train at the speed of the air pressure moving from car to car. This slow propagation of the brake command contributes to uneven braking, excessive in-train and run-in forces, train handling challenges, longer stopping distances, safety risks of prematurely depleting air brake reservoirs, and a corresponding low brake rate until all cars in the train receive and fully respond to the brake command. FRA recognizes that the slow application and release of brakes in a train causes excessive in-train forces, which have the potential to cause derailments when they occur in curves, cross-overs, or when heavier cars are placed at the rear of the train. When the brakes on the rear of the train release much more slowly than the brakes on the front of the train, the potential for a “string-line” derailment—where the train stretches out until one or more wheels are lifted off the inside of a curve—increases. The ECP brake system reduces these problems by enabling cars to brake simultaneously at the command of an electronic signal. The electronic signal's speed ensures an instantaneous, simultaneous, and even activation of each car's brake valves, significantly reducing braking distances—40 to 60 percent for the longest trains—and minimizing the consequences of collisions or derailments by reducing the collision speed and slowing the non-derailed portion of the train. B. Continuous Brake Pipe Charging Propagating a brake command signal through the induction or reduction of air pressure in the brake pipe represents a significant limitation of conventional pneumatic brakes. The same brake pipe air used to propagate brake commands also charges reservoirs on each freight car. As a result, the brake pipe must be fully charged to restore full braking capacity to depleted reservoirs. Partially depleted air from the brake pipe, which occurs during the initial stage of braking, prohibits repeat applications of brakes until the brake pipe can be recharged. A brake pipe can only be recharged once the brakes have been fully released. This characteristic of conventional pneumatic brakes contributes to the risk of run-away trains caused by prematurely depleted brake pipe pressure, particularly on steep grades. The ECP brake system reduces this risk by continuously charging the brake pipe. Since ECP brakes do not use the brake pipe as a brake command medium, the brake pipe is constantly being charged, allowing the locomotive engineer to operate the brake system more aggressively. With ECP brake systems, it is unnecessary to apply hand brakes on steep grades to recharge the brake pipe after the train stops on the grade. C. Graduated Brake Application and Release The conventional pneumatic brake system's inability to operate freight trains in graduated release has long hampered train operations and has increased fuel consumption. The conventional pneumatic brake system can only operate in direct release, preventing locomotive engineers from reducing the braking effort without completely releasing and resetting the brakes. In other words, after a direct release brake application with a conventional pneumatic brake system, braking effort can be increased but not decreased without fully releasing the brakes. In many cases, direct release leads to unnecessary train stops and insufficient initial brake applications. ECP brake systems overcome this deficiency by operating in graduated release, which enables the operator to reduce braking effort to a lower level after making an initial brake application without fully releasing the brakes. As a result, the operator can accurately adjust the braking level as each situation requires, eliminating the stops required to recharge and reset the brakes after excessive brake applications and prior to negotiating hills and valleys. D. Train Management The use of a train line cable allows real-time self-diagnostic functions to be incorporated in the brake system. The initial check of brake system conditions on each car and continuous monitoring of each car's braking functions provides immediate communication to the locomotive engineer of certain brake failures. The continuous monitoring of each car's braking functions and real-time diagnostics of the train's brake system is a significant advantage to the locomotive engineer for the operation of the train and provides justification to eliminate the need for some of the required physical inspections of the train and supports regulatory change to operate cars with non-functioning brakes out of the initial terminal. When the ECP brake system diagnostics detect a serious problem, including when the brake pipe pressure falls below 50 psi, the ECP brake system will automatically command a penalty brake application. ECP brake systems also eliminate the conventional pneumatic brake system's inability to apply all brakes in the train when there is a blockage in a brake pipe, which is handled through the use of a two-way EOT telemetry device not required by all trains. This failure will not affect brake applications in ECP brake systems, because each car is provided a braking command through a train line cable, not solely through the reduction of brake pipe pressure, which would not be propagated through the consist if the brake pipe is blocked. Therefore, ECP brake systems incorporate features that make them inherently safer than conventional pneumatic brakes. Using sensor-based technology to maintain a continuous feedback loop on train conditions for the crew and any centralized monitoring, the electrical communication cable network can also serve as a platform for the gradual addition of other train performance monitoring and management controls, including distributed power locomotive control, automatic activation of hand brakes, hot bearing detection, and truck oscillation and vibration. These and other train management features will increase the reliability and overall safety of train operations. E. Improved Performance Ultimately, ECP brake technology also provides improved performance, which will contribute to safer train operations and significant cost savings over time. Since ECP brake operated trains can operate in graduated release, instead of direct release, of the brakes, fuel will not be wasted while dragging trains against a brake application. Further, because all of the cars' ECP brakes release instantaneously, fuel will not be wasted on initial start-ups and power-ups after a brake application. Operations utilizing ECP brake systems also promise increased average train speeds and decreased trip times. ECP brake systems allow the locomotive engineer to modulate the brake applications in territories with descending grades, thus increasing overall trip average speeds and reaching destinations sooner. While the slow release of the rear cars' brakes on conventional pneumatic braked trains cause drag, the brakes on ECP brake equipped trains release simultaneously, improving start-up and acceleration times. Further, due to its shorter stopping distances, trains equipped solely with ECP brake systems may potentially permit higher train speeds within existing signal spacing, which will increase average system velocity, or permit use of shorter “blocks” between signals, facilitating greater system capacity. The instantaneous application and release of ECP brakes will result in more uniform braking, thus improving wheel wear and lengthening brake shoe life. In a conventional pneumatically braked train, the brake pipe gradient and slower response time causes the first third of the train's cars to provide the majority of the braking action, thus applying additional pressure and heat on those cars' wheels. Since ECP brake systems provide instantaneous braking on all cars, such pressure will be more uniformly distributed along the train, thus eliminating the uneven braking force on the wheels of those leading cars. The ECP brake system also self-monitors each car's brake cylinder pressure and maintains the prescribed pressure, thus reducing the potential for creating shelling and flat spots on wheels. Due to minimized wheel defects, and their accompanying vibrations, freight cars and brake components will enjoy increased life. Further, instantaneous braking will also prevent draft gear assemblies from receiving the constant pressure caused by trains equipped with conventional pneumatic brake systems and will reduce lading damage by eliminating slack action and in-train forces caused by uneven braking. ECP brake systems will also reduce the number of brake parts and rubber diaphragms required by conventional pneumatic brake systems. VI. Standards, Approval, and Testing During the past 17 years, FRA has monitored the progression of ECP brake technology and has observed field testing on various revenue trains, both freight and passenger. In 1997, FRA participated in an AAR initiative to develop ECP brake standards and in 1999, FRA funded, through the Transportation Technology Center, Inc., an FMECA of the ECP brake system based on AAR's Standards and Recommended Practices, S-4200 Series. FRA also participated in programs to develop and enhance advanced components for ECP brake systems. After all of these efforts, FRA has decided that the AAR S-4200 Series of standards is appropriate substantively and legally for adoption by reference in this rule and that the AAR Air Brake Systems Committee is an appropriate vehicle to rely upon in the implementation of ECP brake technology and this rule. FRA acknowledges that ECP brakes are an attractive, viable, and enabling technology with the potential to substantially improve the operational efficiency of trains and that by complying with AAR Standard S-4200, ECP-braked trains offer significant safety and efficiency benefits in freight train handling, car maintenance, fuel savings, network capacity, self-monitoring, and fail-safe operation. FRA proposes that all suppliers obtain AAR approval for ECP brake-equipped-trains intended for use on U.S. railroads. AAR administers the existing industry ECP brake standards through its Air Brake Systems Committee—consisting of representatives from the major railroads, brake manufacturers, and FRA—which requires demonstrated proof of compatibility, safety, and reliability of air brake systems to receive AAR approval. FRA is satisfied that the existing AAR S-4200 specifications, AAR approval procedures, and continuing oversight by the AAR Air Brake Systems Committee will best ensure the safety and reliability of ECP brake systems. An ECP brake monitoring system complying with AAR Standard S-4200 Series increases safety by communicating information on the location and quantity of defective equipment and by providing for the safe movement of equipment over longer distances and periods of time. A. AAR Standards and Approval Process In order to assure the safety and the interoperability of ECP brake system designs, AAR developed the S-4200 Series of standards. The first five standards (S-4200, S-4210, S-4220, S-4230, and S-4250)—issued in 1999 and updated in 2002 and 2004—specify the functional, operational, and interface requirements for cable-based ECP brake systems. AAR issued two additional standards in January 2007, specifying ECP brake equipment approval procedures (S-4240) and interoperability testing requirements (S-4260). AAR has not completed specifications for radio-based ECP brakes, which it considers technically immature and unsuitable. The purposes of the standards are to ensure that AAR-approved electronic brake systems are interoperable between different manufacturers and meet high standards of safety and reliability. The analysis of the S-4200 Series of standards indicates that the performance specifications for the cable-based ECP brake concept are complete. The AAR Manual of Standards and Recommended Practices
(MSRP)contains the following standards for cable-based ECP brake systems: • S-4200, ECP Cable-Based Brake Systems—Performance Requirements; • S-4210, ECP Cable-Based Brake System Cable, Connectors, and Junctions Boxes—Performance Specifications; • S-4220, ECP Cable-Based Brake DC Power Supply—Performance Specification; • S-4230, Intratrain Communication Specification for Cable-Based Freight Train Control System; • S-4240, ECP Brake Equipment—Approval Procedure; • S-4250, Performance Requirements for ITC Controlled Cable-Based Distributed Power Systems; and • S-4260, ECP Brake and Wire Distributed Power Interoperability Test Procedures. The main standard, S-4200, ensures that the functionality and performance of freight ECP brake systems are uniform and consistent among equipment from different manufacturers, that cars equipped with AAR-approved ECP brake systems from different manufacturers are interoperable, and that AAR-approved electronic brake systems meet a high standard of safety and reliability. This standard defines ECP brake system elements, specifies their functionality in different implementation schemes—such as stand-alone, overlays, and emulators— and sets the requirements for all system functions. It covers all primary functions of ECP brakes, including graduated brake application and releases, continuous reservoir charging, adjustment of braking level to car load, continuous fault detection, equipment status monitoring, and pneumatic backup. It also specifies requirements for all modes of train operation and provides an extensive description of fault response and recovery functions for all possible faults of the system components. The standard also establishes environmental requirements for the designed systems, in-service testing, and rigorous approval procedures for certification process of new ECP brake equipment. Other standards in the AAR S-4200 Series (S-4210, S-4220, S-4230, S-4250, and S-4260) contain requirements for critical ECP brake system components and communication protocols. Standard S-4210 contains the performance specifications and qualification test procedures for ECP brake system cables, connectors, and end-of-car junction boxes. The required testing verifies that the designed components have high reliability, will withstand harsh environmental conditions, and will have at least an 8-year operating life. Standard S-4220 contains performance specifications for the DC power supply system through the hard-wired train line cable for ECP brake controllers and other electronic freight car components. Since a DC power supply conductor will also send communication control commands between a locomotive and its attached cars, the standard requires reliable separation and absence of interference between the DC power supply and the communication circuits. Standard S-4230 contains the requirements related to intra-train communication systems on freight equipment used in revenue interchange service. The standard facilitates interoperability between freight cars and locomotives without limiting the proprietary design approaches used by individual suppliers. The communication protocol was developed for control of ECP brakes and multiple remote units, including distributed power locomotives, and for safety reporting of various car and locomotive components. Standard S-4250 contains the methodology and communication flow requirements for controlling the operation of multiple locomotives in a freight consist through the intra-train communication network that is shared with the ECP brake system. The locomotive control through the intra-train communication line is an alternative method of locomotive control, which was not available before the introduction of ECP brake system technology. The controlled locomotives can either trail a lead locomotive or be remotely located (i.e., separated by cars) in a train. The standard establishes protocols for different types of locomotive controls through the intra-train line cable, depending on the location of the consist's multiple locomotives. Standard S-4260 contains the test procedures that must be completed by ECP brake suppliers to establish interoperability baselines among ECP brake and wire distributed power
(WDP)systems in compliance with the S-4200 standards series. The test procedures validate the functional interoperability of ECP brake and WDP systems developed by different manufacturers. The AAR approval process and the work of the Air Brake Systems Committee has been the primary method of ensuring the safety and reliability of railroad brake systems and components for decades. FRA proposes that meeting all the requirements of the AAR ECP brake standards and obtaining AAR approval will be a prerequisite for any new ECP brake system to be employed on U.S. railroads. Through its participation on the Air Brake Systems Committee, FRA can monitor any safety or reliability issues that may develop with ECP brake systems. In the event of a serious safety issue with a supplier's ECP brake system, FRA can appropriately respond by invoking its authority to intervene with additional rulemaking or an emergency order. FRA does not expect to use this authority, because the AAR Air Brake Systems Committee already has the authority to rescind AAR approval for brake systems that do not perform safely or reliably. Standard S-4240 contains the acceptance procedure for seeking AAR approval of ECP brake equipment. The standard requires a manufacturer to apply for approval by submitting certain information under Administrative Standard S-060. Following review and approval of the initial application data and test plan by the AAR Air Brake Systems Committee, a manufacturer maintains the burden of establishing compliance with Standards S-4200, S-4210, S-4220, S-4230, S-4250, and S-4260 to obtain conditional approval. For laboratory testing, an AAR representative will select 150 CCDs from a lot of 200 and will select HEUs, train power supplying units (TPSs), and ECP-EOTs from lots of four each. The testing will be performed on a 150-car test rack configured in accordance with AAR specifications. The manufacturer will provide for AAR evaluation of the test results, which shall include a requirements traceability and compliance matrix for each AAR standard and all necessary test reports, and then conduct interoperability laboratory testing between new ECP brake equipment and AAR-approved ECP brake equipment in accordance with standard S-4260. Upon satisfactory completion of the aforementioned laboratory tests, AAR will consider conditional approval for field testing of ECP brake equipment. If conditional approval is granted, 150 ECP brake CCDs shall be selected from a production lot of 200 test-approved CCDs, and 100 of those selected, plus at least two ECP brake equipped locomotives and one ECP-EOT device, must be placed in railroad service for 24 months. Under conditional approval, at least 1,000 cars must be allotted for use. Within those 24 months, all in-service tests must be conducted. After those 24 months, the Air Brake Systems Committee continues to monitor the product for reliability and safety concerns. If a problem with any brake component is discovered, the Committee will discuss the issue and may either demand further tests or withdraw AAR approval. Full AAR approval shall be provided after 4 years if during that time a manufacturer furnishes AAR at specified intervals various service reports, which must include accurate ECP brake equipment malfunction records. FRA agrees with AAR's assessment that 4 years are needed to collect a history of reliable data with minimum failures. In addition, the manufacturer must provide to AAR a semiannual report containing any repair material for the test ECP brake equipment. Under the draft standard, AAR reserves the right to withdraw conditional test approval if it determines that safety is impaired, reliability degrades, or incompatibility of ECP brake operation develops, and may require any additional testing or performance evaluations it deems necessary. Standard S-4240 also contains specific procedures that must be followed when a manufacturer intends to change certain ECP brake equipment physical characteristics, software, or electronics. FRA supports this effort as a timely measure for AAR to strengthen the regulatory package for ECP brake systems. Overall, FRA considers AAR approval a valuable step to ensure the reliability and safety of ECP brake systems and a minimum requirement for initial application of ECP brake systems on the Nation's railroads. However, FRA fully intends to monitor the application and safety of ECP and may, at its discretion, require additional safety analysis to be performed to confirm the safety of ECP brake systems installed and operating in revenue service. FRA reserves the right to witness the AAR approval testing of the product. B. FMECA AAR Standard S-4200 Series was developed to support the design of a safer, more reliable ECP braking system when compared with conventional air brakes. Once the standard was created, the railroad industry identified the need to perform a safety and reliability assessment of an ECP brake system built in accordance with this standard. Since actual S-4200 ECP brake systems did not yet exist, the industry decided to conduct a FMECA for a hypothetical ECP brake system that satisfied all the requirements of the standard. At FRA's insistence, the FMECA on AAR Standard S-4200 was performed in 1999 by DEL Engineering with participation of AAR, FRA and a number of experts with significant experience in the development and application of ECP brake systems. The FMECA team began the analysis by identifying all major ECP brake system components and their intended functions. The analysis examined each component and function and identified associated failure modes and effects. The failure modes were analyzed to determine severity, frequency of occurrence, and effectiveness of detection. The FMECA team created a numeric ranking criterion and determined and prioritized the level of risk posed by each failure mode. High risk failure modes were identified and appropriate mitigation strategies were developed to decrease the risk. The FMECA team analyzed the failure modes of all ECP brake components, including: CCDs with the battery; HEUs on the head locomotive; ECP-EOT devices; train line cables, communication and power supplies; power supply controllers; head end line terminators; car ID modules; locomotive ID modules; and operative brakes. The analysis included different types of ECP brake systems, including stand alone, overlay (dual mode), and emulator and all system functional requirements and operating modes, including Initialization, Switch, Run, and Cut-out. The FMECA failure log contained about 1,500 failure modes. For each high-risk failure mode, the FMECA team identified action items and offered recommendations on how to mitigate the consequences of component failures or system functional failures. The team primarily examined single-point failures but also identified and evaluated some cases of combined failures that had significant safety consequences. The FMECA results confirmed that the ECP brake concept offers the potential for improved performance, reliability, and safety over that of conventional pneumatic brake systems. The FMECA concluded that no failure mode of an AAR-compliant ECP brake system exists that can cause a catastrophic accident due to single-point failure of the system itself. The AAR standards, as written, eliminate or mitigate critical outcomes of single-point failure of ECP brake systems. The FMECA team encouraged manufacturers to pursue ECP brake technology, because the potential safety and efficiency benefits will far outweigh any disadvantages. If designed and maintained properly, ECP brakes will be substantially safer and more reliable than the conventional pneumatic brake system they are intended to replace. AAR and the brake manufacturers indicated that they were completely satisfied that ECP brake systems are significantly safer than conventional pneumatic systems. They accepted the results of the FMECA and concluded that no modifications were necessary to the AAR standards related to ECP brake systems. VII. Market Maturity and Implementation The U.S. market for ECP brake systems is mature enough to begin implementation of ECP brake technology. The equipment manufacturers have made a significant investment in the technology and have completed the preliminary design work and field testing of ECP brakes. For instance, they have provided technical solutions for different ECP brake implementation strategies, enabling non-ECP and ECP brake equipped cars to run in combined trains and, in some cases, allowing ECP-equipped freight cars to run in ECP brake mode using locomotives with conventional pneumatic brake systems. In addition, they are ready to supply fully operational stand-alone ECP brake systems, overlays, and emulators for the U.S. market, easing the industry's migration process. A commitment by the railroad industry to change over to ECP brakes is necessary to inspire additional technological initiatives by the manufacturers. ECP brake systems from three U.S. manufacturers—all in different stages of AAR approval and testing in revenue service—have been built with the intention of complying with the AAR S-4200 Series of standards, proven safe through field testing, designed using fail-safe principles, and accommodated the industry's need for a different implementation scheme. The AAR S-4200 Series standards are intended to assure the necessary level of safety, reliability, interoperability, and, ultimately, the applicability of this equipment in the U.S. market. The equipment of all three suppliers relies on the conventional pneumatic emergency brake system as a backup in case of failure of the ECP brake control. In most cases, ECP brake systems will support enhanced safety even if the electronics fail, because continuous recharging of the brake pipe will ensure availability of an emergency application. Therefore, the ECP brake system reduces the risk caused by depleted air in the case of an emergency. There is no instance of a malfunctioning ECP brake system that resulted in a catastrophic or critical event. To assess the benefits and costs of ECP brakes for the U.S. rail freight industry, FRA contracted BAH in 2005 to conduct a study. An ECP brake expert panel of principal stakeholders in the conversion of the U.S. freight car fleet to ECP brake technology, including suppliers, railroads, private car owners, AAR, and FRA was assembled to participate in the study. The expert panel supports the conclusion that the AAR standards are sufficient for the ECP brake system designer to achieve a system safety level adequate for a safety-critical system. In particular, an AAR-compliant system, while providing a significant increase in safety and efficiency, does not introduce extra risks associated with single-point failure of the ECP system itself. The final BAH report provided a comprehensive analysis and comparison of ECP and conventional air brake systems. BAH acknowledged that while trains with ECP brake systems have been run in North America, South America, and Australia, U.S. implementation has been stalled due to the absence of an acceptable implementation plan for conversion and hard data to support a sound economic analysis, limited interoperability with traditionally braked trains, and insufficient capital investment required for conversion. It concluded that although the barriers to implementation are formidable, ECP brake systems are economically and technically ripe for adoption and should be implemented in phases over the course of 2 to 4 years to collect hard data supporting further implementation. BAH posits that implementing ECP brakes on 2,800 locomotives and 80,000 cars in the Powder River Basin
(PRB)would cost the industry approximately $432 million. However, according to BAH, the annual $157 million in anticipated benefits—resulting from saved fuel, improved wheel and brake shoe life, and a reduction in necessary brake inspections—will allow railroads to recover those costs in less than three years. To justify the investment, the BAH report says, conversion must be focused first on the high-mileage, unit-train-type services that would most benefit from its use. FRA acknowledges that BAH's fuel cost estimates are substantially underestimated due to subsequently rising prices and that the benefits from improved wheel life require re-evaluation since BAH was privy to insufficient hard data. It is notable that BAH did not attempt to quantify potential savings relating to capacity increases or emissions decreases due to the difficulty in arriving at acceptable values. Accordingly, the report's estimated internal rate of return should be viewed as conservative. VIII. Related Proceeding In a petition dated November 15, 2006, and filed November 21, 2006, BNSF and NS jointly requested that FRA waive various sections in parts 229 and 232 as it relates to those railroads' operation of ECP brake pilot trains. *See* Docket No. FRA-2006-26435. The FRA Safety Board held a fact-finding hearing on this matter on January 16, 2007, featuring testimony from representatives of the petitioners, air brake manufacturers, and labor unions. On March 21, 2007, the Safety Board granted the petitioners' request, in part, subject to various conditions designed to ensure that trains subject to the waiver will be as safe as trains operated without benefit of the waiver. *See Id.* FRA will closely monitor compliance with the waiver and verify brake system and component performance characteristics using unannounced inspections of trains subject to the waiver. IX. Legal Impediments and Proposed Relief ECP brake operation provides for continuous electronic monitoring of air brake system components condition and brake pipe pressure, potentially limiting the need for certain physical brake inspections currently required under part 232. Accordingly, FRA proposes modifying, relaxing, or removing certain requirements, including intermediate terminal inspections (§ 232.209), single-car air brake tests (§ 232.305), and the required percent of operable brakes at initial terminal departure (§ 232.103(d)), as they apply to trains operating in ECP brake mode. The rail industry's implementation of ECP brakes is frustrated by such inapplicable and inefficient statutory and regulatory requirements. Without a large-scale proliferation and implementation of ECP brake technologies, the industry will not be able to enjoy economies of scale and to overcome the industry-wide limits caused by interoperability problems. FRA seeks to improve market efficiency by providing reliable and suitable standards and procedures that will support investments in ECP brake technology. The current statutory and regulatory requirements, however—including those concerning brake inspections and the operation of trains with defective equipment—may reduce or eliminate incentives for railroads to implement new ECP brake technology and take advantage of its operational and safety benefits. For example, 49 U.S.C. 20303 presents an obstacle to cost-saving, safe, and efficient long hauls promised by ECP brakes. To avoid incurring civil penalties, operators are required under 49 U.S.C. 20303 to transport rail vehicles with defective or insecure equipment “from the place at which the defect or insecurity was first discovered to the nearest available place at which the repairs can be made.'' When the defective equipment is an ECP brake, stopping for a physical inspection is not necessary, as it does not increase the safe operation of the train. If more than 15 percent of the train's AAR approved ECP brakes become inoperable, the train automatically stops. A train with 85 percent operative ECP brakes will have 15 percent less overall braking capacity than a conventional pneumatic train with 100 percent operative brakes—an important concern when operating on long grades. However, a train with 85 percent operative ECP brakes will still have shorter stopping distances than a conventional pneumatic braked train with 100 percent operative brakes. Considering the technology's continuous self-monitoring and constant communication with the engineer, it is highly unlikely that a train will ever reach such a level of inoperability. Further, FRA believes that an ECP brake operated freight train may travel non-stop to its destination, not to exceed 3,500 miles, because foundation brake rigging and brake shoes will safely operate over this distance and redundant intermediate brake inspections for an ECP brake operated train moving that distance do not increase ECP brake system safety. As an added benefit, the increased mileage allowance would provide for coast-to-coast travel. In the related proceeding, Docket No. FRA-2006-26435, FRA's Safety Board granted the request of BNSF and NS to allow the non-stop movement of an ECP brake operated train to its destination, each not to exceed 3,500 miles. FRA believes that the proposed rule should codify this regulatory relief so that it applies universally. Nevertheless, 49 U.S.C. 20303 requires trains with defective equipment, including brakes, to travel to the nearest repair location. If the nearest available repair location is in a direction other than that in which the train is traveling, the train with defective equipment must switch the defective car out of the train and add it to another train traveling in the direction of the repair location, sometimes requiring a ``backhaul.'' ECP brake implementation has been complicated by the ECP brakes system's technological incompatibility with conventional pneumatic brake systems. To switch a car equipped with ECP brakes into a technologically incompatible train operating with conventional pneumatic brakes, however, will create additional safety hazards for that train. The potential risks involved in combining cars with incompatible braking systems coupled with the hazards normally associated with switching cars in the field, likely outweigh the potential harm of keeping the defective car in its existing ECP braked train and traveling to a repair location that is further away. In circumstances where the defective safety appliance is a non-brake defect, it may be safer and more efficient to allow ECP brake equipped trains with non-brake defective equipment to travel to the nearest forward repair station. Moreover, due to the ability of ECP brake systems to continuously monitor the brakes on each car in a train and to provide specific information to the locomotive engineer regarding the location of any car with inoperative brakes and the inherent design of such systems to prohibit operation with less than 85 percent operative brakes, the need to immediately set-out and handle cars with defective brakes for repair is unnecessary. There is also no safety need to require a railroad to incur the expense and delay involved with cutting the defective car out of the train. Currently, freight cars with defective mechanical conditions are permitted to be hauled long-distances for repair. *See* 49 CFR 215.9. In light of the technological advances provided by ECP brake systems, it appears logical and necessary to permit more flexibility in moving equipment with defective brakes when equipped with ECP brakes and hauled in a train operating in ECP brake mode. However, the language of 49 U.S.C. 20303, prevents FRA from providing this flexibility. The aforementioned requirements governing conventional pneumatic braked trains may offset the increased safety and efficiency benefits afforded by ECP brakes, thus eliminating the incentives for rail operators to implement ECP brake technologies. To encourage implementation without hindering safety, FRA proposes to invoke its discretionary authority under 49 U.S.C. 20306 to exempt ECP brake equipped trains from the specific statutory requirements contained in 49 U.S.C. 20303. The requirements for moving defective equipment were created over a century ago, during the infancy of pneumatic brakes and before all cars were equipped with power brakes. With many more reasons to stop train operation along tracks with frequent repair shops and exponentially more employees, the legislative drafters of that time could not have envisioned the type of safer and more efficient technologies available today. Recognizing the importance of upgrading rail technologies, Congress in 1980 passed the Rock Island Railroad Transition and Employee Assistance Act (the “Rock Island Act”), which, inter alia, provides statutory relief for the implementation of new technologies. More specifically, when certain statutory requirements preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations, the applicable section of the Rock Island Act, currently codified at 49 U.S.C. 20306, provides the Secretary of Transportation with the authority to grant an exemption to those requirements based on evidence received and findings developed at a hearing. According to Senate Report No. 96-614, “This section fosters rail technological improvements by giving the Federal Railroad Administration *discretionary* authority to grant exemptions from the Safety Appliances Acts' mandatory requirements *when those requirements preclude the development or implementation of new rail technology.* ” Senate Comm. on Commerce, Science, and Transportation, S. Rep. No. 96-614, at 8-9 (Mar. 4, 1980) (emphases added). The House version of the bill includes no similar provision, but the Conference substitute adds that the authority granted FRA in this section must be exercised after a hearing, absent an agreement between labor representatives and the developers or operators of the new equipment or technology. Joint Explanatory Statement of the Committee of Conference, H. Conf. Rep. No. 96-1041, § 117, at 30 (May 20, 1980). Under 49 CFR 1.49(v), the Federal Railroad Administrator is delegated authority to carry out the functions vested in the Secretary by the Rock Island Act. Under this authority, FRA intends to schedule a hearing to be set at a date established in a forthcoming notice, at which the Administrator or his delegated representative may preside, to receive evidence and develop findings to determine whether FRA should invoke 49 U.S.C. 20306. The scope of the hearing will include the following questions: • Will allowing an ECP braked train with defective brakes to travel to its destination, not to exceed 3,500 miles, decrease, maintain, or exceed the level of safety provided for a conventional pneumatic braked train receiving a Class 1A brake inspections every 1,000 miles? • What safety hazards, if any, will be caused by switching an ECP braked car into a technologically incompatible train equipped with conventional pneumatic brakes? • What is safer for an ECP braked car with defective non-brake parts: Switching it into a train equipped with conventional pneumatic brakes—rendering the switched car's ECP brakes ineffective—for backhauling to the nearest repair station or allowing it to continue to the nearest forward repair location in the ECP brake equipped train with more than 85 percent effective and operative brakes? • Does 49 U.S.C. 20303 provide a disincentive sufficient to preclude implementation of ECP brake technology? X. Additional Issues A. Part 229 In the related proceeding, Docket No. FRA-2006-26435, BNSF and NS seek relief from various provisions of parts 229 and 232. In relation to part 229, BNSF and NS seek relief from the requirements relating to daily locomotive inspections and electronic record keeping. At this point in time, FRA believes that there is insufficient information available to consider any exceptions to part 229 for operations using ECP brake systems. In any event, FRA seeks comments and information relating to this issue. B. Dynamic Brake Requirements At the public hearing conducted in the related proceeding, BNSF requested relief from some of the dynamic brake requirements contained in 49 CFR part 232. FRA is unclear of what specific relief is requested regarding dynamic brakes. Section 232.109 provides for the continued operation of a locomotive found with inoperative dynamic brakes for a period of up to 30 calendar days. FRA does not see how more flexibility in this area is necessary. However, FRA invites interested parties to comment on the requested relief or clarify the necessity of such relief. C. Single Car Air Brake Test Approval Procedures and Single Car Air Brake Tests The proposed rules include a provision requiring the submission and approval of single car air brake test procedures for cars with ECP brake systems in accordance with the special approval procedures in § 232.17. At this time, the proposed rules do not modify § 232.17. However, FRA reserves the right to modify § 232.17 to make clear the applicability of proposed subpart G, including, but not limited to, adding cross-references. Section 232.305(a) provides that a single car air brake test may be performed partially in accordance with ``Section 4.0, `Special Tests,' of the Association of American Railroads Standard S-486-01, `Code of Air Brake System Tests for Freight Equipment,' contained in the AAR Manual of Standards and Recommended Practices, Section E (January 1, 2001).'' That standard has since been amended and FRA has approved the use of the new Standard S-486-04 as the procedure to use when performing a single car air brake test. Accordingly, FRA proposes to amend § 232.305(a) by replacing the directly preceding quoted text with the following: ``Section 4.0, `Special Tests,' of the Association of American Railroads Standard S-486-04, `Code of Air Brake System Tests for Freight Equipment,' contained in the AAR Manual of Standards and Recommended Practices, Section E (January 1, 2004).'' D. Train Handling Information Section 232.111 requires railroads to adopt and comply with written procedures ensuring that railroad train crews receiving trains are provided accurate information concerning the train's condition. The continuous monitoring capabilities of ECP brake systems provide information regarding the location of equipment with inoperative or cut out brakes. At this time, however, FRA does not see any reason for excepting any portion of or provision contained in § 232.111. FRA believes that, if anything, ECP brake systems' continuous monitoring capabilities will assist railroads in complying with the train handling information rules in § 232.111 by monitoring defects and potentially allowing for the manual input of defects not monitored electronically and then electronically providing such information to subsequent train crews. FRA seeks comments and information on this issue. E. Piston Travel Limits For cars equipped with 8 1/2 -inch or 10-inch diameter brake cylinders receiving either a Class I brake test or a periodic inspection while on a shop or repair track, §§ 232.205(c)(5) and 232.303(c) currently limit piston travel to 7 to 9 inches. An industry-wide waiver currently in effect, however, permits piston travel limits to range from 6 to 9 inches. FRA proposes to incorporate that waiver into the rules by amending §§ 232.205(c)(5) and 232.303(c) accordingly. FRA seeks comments and information on this issue. F. Extended Haul Trains Section 232.213(a)(6) requires inbound inspections for extended haul trains and states that, ``After April 1, 2007, the inbound inspection described in this paragraph shall not be required unless FRA provides notification to the industry extending the requirement to perform inbound inspections on extended haul trains.'' Section 232.213(a)(7) requires railroads to maintain a record of all defective, inoperative, or ineffective brakes and all conditions not in compliance with parts 215 and 231 of discovered during train movement. In addition, that section says that, ``After April 1, 2007, the records described in this paragraph need not be maintained unless FRA provides the notification required in paragraph (a)(6) of this section extending the requirement to conduct inbound inspections on extended haul trains.'' FRA proposes to amend Part 232 by deleting §§ 232.213(a)(6) and (a)(7) from the regulations. These regulations ``sunsetted'' on April 1, 2007, without further FRA action. Accordingly, they serve no purpose remaining in the CFR. FRA seeks comments on this proposal. G. Part 238 Amtrak has informally expressed interest in potentially using ECP brake system technology for its Auto Train that runs from Lorton, Virginia to Sanford, Florida. Amtrak has previously employed overlay ECP braking on that train, and presumably would benefit from some additional flexibility with respect to the conduct of intermediate inspections. However, since FRA does not currently have sufficient information regarding the use of ECP brake systems on passenger trains and passenger equipment, FRA does not propose in this rulemaking to amend 49 CFR part 238. The functions of freight and passenger trains and cars, evidenced by the varied rules applicable to each, are too disparate to provide a one-size-fits-all solution for ECP brake integration and use. FRA may consider Part 238's applicability to ECP brake systems in another rulemaking or in other proceedings. If comments appropriate to this rulemaking are submitted, FRA reserves the right to include provisions addressing those issues at the final rule stage. Further, FRA would consider requests for waivers relating to the regulation of freight trains and freight cars equipped with ECP brake systems for passenger trains on a case-by-case basis. XI. Section-by-Section Analysis Proposed Amendments to 49 CFR Part 232 Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR). FRA seeks comments on all proposals made in this NPRM. Subpart A—General This subpart of the proposal contains amendments to the definitions listed in subpart A of part 232. Section 232.5 Definitions FRA proposes to amend § 232.5 by adding an extensive set of definitions to introduce the regulatory relief and regulations applicable to ECP brake systems. FRA has worded these definitions to mirror, to the extent possible, the definitions provided in existing AAR standards. FRA intends these definitions to clarify the meaning of important terms that are used in the text of the proposed rule. The proposed definitions are carefully worded in an attempt to minimize the potential for misinterpretation of the rule. Some of the definitions introduce new concepts or new technologies which require further discussion. The proposed definitions acknowledge the two general types of ECP brake systems—dual mode and stand-alone. The definition of a dual mode ECP brake system, which means a brake system that can work either as a conventional pneumatic brake system or an ECP brake system, intends to cover both an overlay ECP brake system and an ECP brake system equipped with an emulator CCD. The definition of CCD is intended to describe an important and necessary part of ECP brake system technology. Subpart G—Electronically Controlled Pneumatic
(ECP)Braking Systems FRA proposes to add a new subpart G to Part 232. This proposed subpart contains the design and operational requirements that will provide regulatory relief and modifications to allow implementation of ECP brake systems on the Nation's railroads and to ensure the safety of such operations. Section 232.601 Scope This section contains a formal statement of the proposed rules' purpose and scope. The proposed rules contain specific requirements relating to the operation of freight trains and freight cars equipped with ECP brake systems and operating in ECP brake mode. The proposed provisions also intend to provide specific exceptions from various requirements contained in part 232 for ECP brake equipped freight trains and freight cars. Section 232.602 Applicability As a general matter, this section proposes that these rules apply to all railroads that operate ECP brake equipped freight trains or freight cars on track which is part of the general railroad system of transportation. The proposed rules will apply to freight trains operating in ECP brake mode, freight cars equipped with ECP brake systems, and conventionally braked freight trains and freight cars when operated in conjunction with ECP brake equipment. The regulatory relief contemplated by this NPRM and the need to ensure the safe operation of trains and vehicles equipped with this advanced technology requires that exception of certain existing Part 232 provisions be afforded. Many of the provisions for which FRA proposes an exception either apply awkwardly or should otherwise not apply to ECP brake systems due to the new technology's design or additional safety benefits. Similarly, the addition of various requirements directly related to ECP brake systems is necessary to ensure that the equipment is properly inspected, tested, maintained, and safe to operate. To fulfill these goals and to avoid an excess of confusing cross-references, FRA proposes to except specific provisions and an entire subpart of Part 232 from application to ECP brake systems. Each section of this proposed subpart contains specific exceptions from various provisions contained in other portions of Part 232 or contain appropriately rewritten provisions directly applicable to ECP brake systems. Those portions and sections of Part 232 not specifically excepted by the provisions proposed in this NPRM remain applicable to ECP brake equipped freight trains and freight cars. Section 232.603 Design, Interoperability, and Configuration Management Requirements In order to ensure the safety and interoperability of ECP brake systems, this section proposes to incorporate by reference the existing AAR standards and approval procedures for ECP brake systems. The AAR, its member railroads, and various brake manufacturers have invested considerable time and effort in developing industry standards addressing the design, performance, and interoperability of ECP brake systems. FRA has reviewed the industry standards it proposes to incorporate in this rule and has determined that the standards effectively address and ensure the safe and proper operation of the brake system technology. As noted in the preamble, FRA funded a FMECA, which validated the safety and applicability of AAR's ECP brake system standards for freight railroads. FRA believes that compliance with the AAR standards identified in proposed paragraph
(a)will ensure the safety and efficiency of ECP brake equipped freight trains and freight cars. Implementation of ECP braking systems complying with these standards will bring benefits and efficiencies encompassing train handling, car maintenance, fuel savings, network capacity, self-monitoring, fail-safe operation, accurate and instantaneous brake commands throughout the train, and continuous, real-time self-diagnostics. Paragraph
(a)proposes to require all suppliers to meet existing AAR standards when developing and installing ECP brake systems. Paragraph
(a)proposes the incorporation of the most recent AAR standards related to ECP brake systems. FRA recognizes that ECP brake systems are a growing technology and realizes that the existing AAR standards may need to change as the technology advances. Accordingly, FRA proposes two methods the incorporated industry standards may be changed. Proposed paragraph
(a)permits the submission of an alternate standard under the special approval procedures contained in § 232.17. In addition, proposed paragraph
(f)permits the AAR or other authorized representative of the railroad industry to seek modification of the incorporated industry standards through the modification procedures contained in § 232.307. The modification procedures in § 232.307 were developed to permit modification of the incorporated AAR single car test standard and FRA believes that the procedures are equally applicable to these proposed regulations. The industry has successfully utilized both these methods to change or modify other industry standards incorporated in part 232 and FRA believes it is appropriate and necessary to provide this latitude for the standards related to ECP brake systems and components. Paragraph
(b)proposes that all ECP brake systems receive conditional or final approval under AAR's recently adopted Standard S-4240 prior to use and that they maintain such approval while in use. In this paragraph, FRA intends to prohibit the use of ECP brake systems that do not receive conditional or final AAR approval or that cease to comply with the incorporated AAR standards relating to ECP brake systems. FRA has reviewed the approval procedures contained in AAR Standard S-4240 and believes that they provide an appropriate review process to ensure the safe and proper operation of ECP brake systems. FRA believes that AAR is in the best position to approve those ECP brake systems that will be used by its member railroads and, over time, other non-member railroads interchanging traffic on the general rail system. In paragraph (c), FRA proposes that all ECP brake systems meet the configuration management requirements contained in an FRA-recognized industry approved standard. FRA believes that configuration management of ECP brake system hardware and software components is an absolute requirement to ensure the interchangeability, interoperability, compatibility and continued proper and safe operation of ECP brake systems. Compatibility of ECP hardware and software will have a direct effect on the safety and reliability of ECP brake systems running on the Nation's railroads. The AAR approval process and Air Brake Systems Committee requires various procedures to ensure the interoperability and interchangeability of AAR approved ECP brake systems and their components. These same requirements and procedures have been used for many years to successfully manage the configuration of conventional pneumatic AAR approved air brake valves. Therefore, FRA believes that responsibility for the configuration management of AAR approved brake systems and their components should continue to reside with AAR and its Air Brake Systems Committee. AAR standards, including its S-4200 Series of standards for ECP brake systems, however, do not provide requirements for hardware and software configuration management plans. AAR is in the process of developing standards related to ECP brake system configuration management, as evidenced by, among other things, standards S-4240, §§ 5.1 and 5.2, which require ECP brake manufacturers to obtain AAR approval for changes to approved hardware and software. If a configuration management standard is completed and issued prior to the publication of this notice, FRA seeks comments during this proposed rule's comment period on the incorporation of the respective standard into the rules by reference. If it is published subsequent to the publication of this notice, FRA still seeks comments during this proposed rule's comment period and FRA will also consider other forums for receiving comments, including, but not limited to, the public hearing that will be held in connection with this proposal or by issuance of a supplemental notice informing interested parties of the standard's availability. In anticipation of AAR issuing such a standard in the near future, FRA proposes to incorporate that standard by reference in the final rule; provided FRA's review of the standard determines it is acceptable. Although FRA prefers that the industry develop, adopt, and comply with a recognized industry configuration management standard, FRA recognizes that such a standard does not yet exist. Accordingly, paragraph
(c)proposes that, in lieu of compliance with an AAR software configuration management standard, railroads may submit to FRA an alternate configuration management plan for approval. FRA seeks comments and information on what minimum requirements or guidelines should be considered for such submitted plans. FRA believes that configuration plans must be submitted for approval under § 232.17 and must be structured in accordance with accepted configuration management standards such as IEEE Std 28-1990, IEEE Standard for Software Configuration Management Plans, American National Standards Institute, 1990; or IEEE Std 1042-1987, IEEE Guide to Software Configuration Management, American National Standards Institute, 1987. FRA seeks comments on these suggested structures or any other standard structures. FRA intends that no train shall be operated in ECP brake mode in revenue service unless it is using an ECP brake system that complies with a configuration management plan incorporated into the final rule or another configuration management plan otherwise approved by FRA. FRA believes that any ECP brake configuration standards should consider issues beyond initial approval. For instance, use of improper or out-of-date software versions for microprocessor controlled systems has been an issue in a variety of industries. Therefore, FRA cautions that more robust configuration management processes beyond those already included in AAR standard S-4200 may be needed to adequately control ECP brake system components, especially as more manufacturers apply for AAR approval of ECP brake systems. Further, safety or reliability issues may dictate that hardware or software configurations be changed once ECP brake systems are put in service on a large scale in the U.S. FRA encourages AAR, railroads, and manufacturers to ensure their ability to continually monitor and respond to hardware and software issues affecting ECP brake systems after initial approval. FRA believes that AAR is capable of setting appropriate configuration management standards and related approval procedures. FRA intends to rely on AAR to monitor ECP brake component approval, configuration and compatibility. However, FRA, in its federal oversight role will monitor the activities of the Air Brake Systems Committee and the AAR ECP brake approval process to ensure that any safety or reliability issues that may emerge are addressed promptly and comprehensively. FRA will also issue additional configuration management requirements for the operation of ECP brake systems if, in the sole opinion of the FRA, the oversight of the AAR and the AAR Air Brake Systems Committee proves inadequate for the continued safe operation of ECP brake systems. In this case, FRA may take a variety of approaches including requiring railroads and car owners to develop their own configuration management plans for monitoring ECP brake system interchangeability, interoperability and compatibility. FRA seeks comments on how the rules can ensure continued monitoring of hardware and software issues affecting ECP brake systems after initial approval. Paragraph
(d)of this section proposes to except a freight car or freight train equipped with ECP brakes from certain existing provisions contained in Part 232. FRA recognizes that Part 232 requires compliance with other AAR standards not applicable to ECP brake systems. For instance, section 232.103(l) requires compliance with AAR Standard S-469-47 (“Performance Specification for Freight Brakes”), which specifies a train's air brakes must respond to the decrease and increase of brake pipe pressure. However, ECP brake systems respond to an electronic signal, not brake pipe pressure, rendering S-469-47 inapplicable to ECP brake systems. Accordingly, paragraph
(d)proposes to except ECP brake systems from the requirements of AAR Standard S-469-47. Subpart F of part 232 contains general requirements for introducing new brake system technologies. More specifically, it requires, *inter alia* , a pre-revenue acceptance testing plan. As FRA views existing ECP brake system technology to be a fully mature and well tested technology, FRA does not believe the provisions contained in subpart F are applicable to this existing technology. When subpart F was originally added to part 232, ECP brake technology was just beginning to gain prominence. Since that time, experience with the technology is far more developed and the technology is being used on many different trains around the world. Moreover, FRA believes that its proposal to require ECP brake systems to initially and continually comply with AAR standards and to be approved in accordance with AAR's approval procedures prior to being placed in service obviates the need for existing ECP brake system technology to comply with the requirements under subpart F. Accordingly, paragraph (d)(2) proposes an exception from the requirements contained in subpart F freight trains and freight cars equipped with existing ECP brake system technology that has been conditionally or finally approved by AAR in accordance with its approval procedures prior to the effective date of the final rule in this proceeding. FRA has limited the exception to ECP brake system technologies approved by AAR as of the effective date of a final rule to provide an incentive to the industry to move the introduction of the technology along in a timely fashion. In anticipation of future ECP brake technologies not currently contemplated within the scope of the incorporated AAR standards or not approved by AAR prior to the effective date of a final rule in this proceeding, FRA proposes paragraph (e), which provides a procedure for introducing such technologies without going through the pre-revenue testing procedures contained in subpart F. Paragraph
(e)permits a party interested in using new ECP brake system technologies or using an ECP brake system technology not approved by AAR prior to the effective date of a final rule in this matter to file a written request with the FRA seeking an exception from subpart F. FRA would expect any such request to include a comprehensive narrative statement and any evidence or facts justifying the exception of the new ECP brake technology from the testing and demonstration requirements of subpart F. The material should fully explain the testing or demonstration that will be conducted pursuant to an FRA-recognized industry standard and ensure that FRA is able to monitor such testing or demonstration. FRA's Associate Administrator may revoke the exception in writing for any reason after providing an opportunity for the affected party or parties to respond. Section 232.605 Training Requirements The general training requirements for railroad and contractor employees for performing the inspection, testing, and maintenance on brake systems are contained in § 232.203. FRA proposes paragraph
(a)of this section to make clear that the training requirements contained in § 232.203 are applicable to ECP brake system operations and to ensure that railroads update their training, qualification, and designation programs to include provisions for these operations. Thus, FRA proposes to require that railroad and contract personnel responsible for performing brake system inspections, tests, and maintenance on ECP brake systems be trained, tested, and designated in accordance with the requirements contained in § 232.203 on the ECP brake systems they will be required to inspect, test, and maintain. FRA continues to believe that railroads and contractors are in the best position to determine the precise method of training that is required for the personnel they use to conduct required brake system inspections, tests, and maintenance. Although FRA provides railroads and contractors with broad discretion to develop training programs specifically tailored to their operations and personnel, FRA will expect railroads and contractors to fully comply with the training and qualification plans they adopt as they apply to ECP brake operations. A critical component of this training requires ensuring that employees have knowledge of the specific Federal requirements that govern their work. Accordingly, FRA proposes to require the training and qualification plans mandated under § 232.203 to include provisions applicable to the inspection, testing, and maintenance of ECP brake systems. Section 232.203(c) contains general requirements or elements which must be part of any training and qualification plan adopted by a railroad or contractor. FRA continues to believe that the elements contained in this section are specific enough to ensure high quality training and broad enough to permit a railroad or contractor to adopt a training plan that is best suited to its particular operation. FRA continues to believe that the required training must provide employees with the necessary knowledge, skills, and abilities to perform the tasks required for the various types of brake systems the individual employee will be required to inspect, test, or maintain. Since FRA expects only a limited number of employees will be involved with ECP brake operations, a railroad or contractor may tailor its training programs only for those individuals involved with ECP brake systems, based on the tasks that employee will be required to perform on those specific systems. Section 232.203(e) contains record keeping requirements, the cornerstone of the training requirements. FRA continues to believe that such records should be kept for employees inspecting, testing, and maintaining ECP brake equipped freight cars and freight trains. Because § 232.203 and proposed § 232.605 allow each railroad and contractor the flexibility to develop a training program that best fits its operation and does not impose specific curriculum or experience requirements, FRA continues to believe it is vital for railroads and contractors to maintain detailed records on the training they provide. Such documentation will allow FRA to judge the effectiveness of the training provided and will provide FRA with the ability to independently assess whether the training provided to a specific individual adequately addresses the skills and knowledge required to perform the tasks that the person is deemed qualified to perform. Moreover, requiring these records will deter railroads and contractors from circumventing the training requirements and discourage them from attempting to utilize insufficiently trained personnel to perform the inspections and tests required by this rule. FRA also intends to make clear that the required records may be maintained either electronically or on paper in the same manner as required under § 232.203. Paragraph
(a)also proposes continued compliance with § 232.203(f), which requires that each railroad or contractor adopt and comply with a plan to periodically assess the effectiveness of its training program. Although FRA agrees that a formal audit process may not be necessary, FRA also continues to believe that railroads and contractors should periodically assess the effectiveness of their training programs that would include an assessment of the training related to ECP brake systems. FRA continues to believe that periodic assessments may be conducted through a number of different means and each railroad or contractor may have a need to conduct the assessment in a different manner. Paragraph
(a)proposes that a railroad or contractor institute a plan to periodically assess its training program regarding ECP brake systems and permit the use of efficiency tests or periodic review of employee performance as methods for conducting such review. FRA continues to believe that many railroads, due to their small size, are capable of assessing the quality of the training their employees receive by conducting periodic supervisory spot checks or efficiency tests of their employees' performance. However, FRA also continues to believe that on larger railroads the periodic assessment of a training program should involve all segments of the workforce involved in the training. FRA believes it is vital that labor be intrinsically involved in the assessment process, from beginning to end. For example, evaluation of training techniques might best be approached through a “team” method, where several observers, including labor representatives, periodically evaluate course or “hands-on” training content and presentation. Paragraph
(b)proposes to require each railroad to appropriately amend or modify its operating rules to include safe train handling procedures when utilizing ECP braking systems. The developed operating rules should address the equipment and territory operated by the railroad. FRA continues to believe that training on proper train handling procedures is essential to ensuring that locomotive engineers can properly handle their trains with or without ECP braking systems. FRA also continues to believe that it should not specify the specific knowledge, skill, and ability criteria that a railroad must adopt into its locomotive engineer training program. FRA believes that each railroad is in the best position to determine what these criteria should be and what training is necessary to provide that knowledge, skill, and ability to its employees operating ECP brake equipped trains. However, to ensure that the railroads and contractors provide and complete training, paragraph
(c)proposes to require each to adopt and comply with such criteria and training procedures and to incorporate them into its locomotive engineer certification program required by 49 CFR part 240. Section 232.607 Inspection and Testing Requirements Except for transfer trains, the existing Part 232 regulations require that a train receive a Class I brake test at its initial terminal and when certain events occur en route, a Class IA brake test every 1,000 miles and Class III brake tests when the train line cable continuity is interrupted. When operating as an extended haul train, the existing regulations require that a Class I brake test be performed at the train's initial terminal and at the train's 1,500-mile location consist, if operating further than 1,500 miles. In addition, under certain circumstances, cars and solid blocks of cars are required to receive either a Class I or a Class II brake test when they are added to a train. Each of these inspections is expensive and time-consuming. An ECP brake system's self-monitoring capabilities, fail-safe operation, and enhanced safety and performance provide railroads the ability to reduce the number of physical inspections on a train and will reduce the number of repairs to the brake system. In a letter dated January 26, 2007, filed in the related waiver proceeding, BNSF and NS assert that “This performance-based technology supercedes [sic] the need for a scheduled inspection based on the amount of mileage that can be accumulated within the boundaries of the U.S. rail system.” Docket No. FRA-2006-26435. Similarly, in the same docket, two ECP brake manufacturers, Wabtec and New York Air Brake, state that when a ECP brake system enters “Run” mode, it provides diagnostics, continuous monitoring, and fault reporting to the locomotive display. According to the manufacturers, ECP brakes provide to the locomotive monitoring and feedback of the most important brake data and “while it is not economically practical to monitor for all potential brake system failures, the increased level of monitoring and data reporting should allow safely extending the distance between inspection points, coupled with revised railroad procedures.” Letter dated January 29, 2007 in Docket No. FRA-2006-26435. FRA continues to believe that if a train is properly and thoroughly inspected, with as many defective conditions being eliminated as possible, then the train is capable of traveling distances much greater than 1,000 miles between brake inspections. FRA's experience with extended haul trains over the last three years has established that trains with conventional pneumatic brake systems that are inspected by highly qualified individuals can safely operate up to 1,500 miles between brake inspections. FRA is not aware of any significant incident or derailment related to a brake or mechanical component on an extended haul train. Accordingly, in paragraph (g), FRA proposes to except trains operating exclusively in ECP brake mode from the Class IA and Class II brake inspections currently required under §§ 232.207 and 232.209. FRA also proposes to except such trains from en route Class I inspections under § 232.205(a) and (b). Paragraph
(g)also proposes to except § 232.211(a), which governs the locations where Class III brake inspections must be performed. For clarity, FRA proposes to include the events requiring the performance of a Class III brake test for trains operating in ECP brake mode in this section of the regulation. Accordingly, FRA proposes to except that section and instead include paragraph (e), which is analyzed below. Paragraph
(a)proposes continued compliance with § 232.205(c)—which describes the tasks and requirements of a Class I brake test—for an ECP brake equipped train at its initial terminal. To offset safety concerns regarding the proposed exceptions to intermediate inspections, FRA proposes that Class I brake tests at initial terminals be performed by a qualified mechanical inspector. FRA continues to believe that a Class I brake test performed on a train at its initial terminal needs to be as in-depth and comprehensive as possible and, thus, should be performed by an individual possessing the knowledge not only to identify and detect a defective condition in all of the brake equipment required to be inspected, but also to recognize the interrelated workings of the equipment and the ability to trouble-shoot and repair the equipment. Similarly, FRA proposes that all of the mechanical inspections required to be performed on a train at its initial terminal be conducted by an inspector designated pursuant to 49 CFR 215.11 in order to ensure that all mechanical components are in proper condition prior to the train's departure. FRA believes that the regulatory relief proposed by paragraph
(g)is justified by the increased safety level provided by ECP brake technologies and the proposed requirement under paragraph
(a)that a Class I brake test of an ECP brake equipped car be performed by a qualified mechanical inspector at its initial terminal. The exceptions proposed in paragraph (g), in conjunction with the requirements of paragraph (a), would allow most ECP brake equipped and operated trains to travel to their destinations without stopping for any required intermediate inspections. The regulatory relief provided by the proposed elimination of intermediate brake tests would significantly reduce operating and train delay costs. In paragraph (b), FRA proposes to permit a train operating in ECP brake mode to travel up to 3,500 miles or to its destination, whichever is less, without an additional Class I brake inspection. FRA believes that 3,500 miles allows virtually all ECP brake operated trains to travel to their respective destinations and provides for coast-to-coast travel. FRA also bases this mileage amount on the facts that foundation brake rigging and brake shoes will safety operate this distance and redundant intermediate inspections would not increase ECP brake system safety. Because many unit or cycle trains operate in a continuous loop with multiple loading and unloading locations, FRA has not included the destination of the train as a limiting factor for them. FRA is specifically making this distinction in order to prevent misinterpretation of the proposal as it relates to unit or cycle trains. As these trains may have multiple destinations, a strict application of destination could result in Class I brake tests being performed more frequently than intended by this proposed rule. Thus, in paragraph (b)(2), FRA proposes to treat unit and cycle trains differently by only requiring them to receive Class I brake inspections by qualified mechanical inspectors at least once every 3,500 miles. To be clear, under the proposed rules, no ECP brake equipped freight car or freight train would be allowed to travel more than 3,500 miles without receiving a Class I brake inspection by a qualified mechanical inspector. Currently, no extended haul train is permitted to travel more than 1,500 miles without receiving a brake inspection. For ECP brake equipped trains, FRA proposes to more than double the currently allowed distance to 3,500 miles. FRA acknowledges that in the related proceeding, Docket No. FRA-2006-26435, the Safety Board has provided for the movement of ECP brake equipped trains up to 3,500 miles. FRA proposes to codify this relief so that it would apply universally. Accordingly, during the pendency of this rulemaking, FRA will closely monitor those trains' operations and will collect information on the equipment operated in those trains. FRA reserves the right to make appropriate modifications in the final rule based on any further data then available. FRA acknowledges, however, that notwithstanding the proposed allowance of an ECP brake equipped and operated train to travel up to 3,500 miles without an additional brake inspection, instances exist where certain trains would require the performance of a Class I brake inspection en route. For instance, the current regulations require that certain tests be performed when a car is off a source of compressed air for more than 4 hours. FRA acknowledges that an ECP brake equipped train's on board diagnostics reduce concerns relating to cars remaining off air for too long a period. Accordingly, FRA believes that an expansion of the time allowed off air is justified and proposes to modify this requirement for ECP brake equipped cars. For trains operating in ECP brake mode, FRA proposes in paragraph
(c)to require a Class I brake test by a qualified person if that train is off air for more than 24 hours. FRA continues to believe that dangers, although reduced, remain when an ECP brake equipped train remains off air for too long. FRA proposes to limit off-air time to 24 hours since cars moving in service generally have a dwell time of 24 hours or less and to provide sufficient flexibility while allowing the industry to move equipment without impacting timely inspections and maintaining an acceptable level of safety. FRA also proposes that, for trains operating in ECP brake mode and off air for more than 24 hours, the Class I brake inspection be performed by a qualified person. FRA acknowledges that while a qualified mechanical inspector may be stationed at each route's initial terminal and destination, it may not be favorable at this time to require one at each location a train operating in ECP brake mode is off air for more than 24 hours. Requiring a qualified mechanical inspector at each point such a train is off air for more than 24 hours may provide a significant disincentive for a railroad to equip its trains with ECP brake systems. FRA intends this requirement to also apply to trains operating in ECP brake mode, located at its initial terminal, and off air for more than 24 hours. In other words, under proposed paragraph (c), if at an initial terminal a qualified mechanical inspector performs a Class I brake test on a train operating in ECP brake mode and that train then goes off air for more than 24 hours before departing from the initial terminal, a qualified person must perform another Class I brake test prior to departure. FRA believes that requiring a qualified mechanical inspector at an initial terminal to perform a Class I brake test twice on the same train would be unnecessary, since the second testing would merely be a verification of the previous inspection, and possibly too onerous. FRA does not expect this situation to occur often, since trains rarely sit off air for more than 24 hours at its initial terminal after receiving a Class I brake test. FRA's intent in proposing this narrow expansion of the 4-hour rule is not to alter the basic tenet that equipment should be retested when it is removed from a source of compressed air for any lengthy period of time. The proposed 24 hour off-air requirement would apply equally to any ECP brake equipped train, regardless of whether it is a unit or cycle train, and would replace the 4 hour off-air requirement under § 232.205(a), which would be excepted under proposed paragraph (g), as discussed above. This proposed 24-hour allowance gives railroads flexibility to perform switching operations while ECP brake equipped trains are en route and provides flexibility to efficiently move cars from one ECP brake equipped train to another when necessary, yet retains the concept that such be retested when left disconnected from a source of compressed air for longer periods of time. The 24-hour time frame is also consistent with the general dwell time that cars experience while en route. FRA further believes that a limitation on the amount of time that such equipment may be off air is necessary for ensuring that such equipment is inspected in a timely and predictable manner. If no time limit were imposed or if too much time was permitted, an ECP brake equipped car could lawfully sit for days at various locations while en route to its destination and be switched in and out of numerous trains without ever being reinspected. Such an approach would drastically reduce the number of times that the brake systems on such equipment would ever be given a visual inspection from what is currently required and, in FRA's view, would seriously degrade the safety of the trains operating with such equipment in its consist. Furthermore, if an ECP brake equipped train was allowed to be off-air for an excessive amount of time, it would be virtually impossible for FRA to ensure that equipment is being properly retested as it would be extremely difficult for FRA to determine how long a particular piece of equipment was disconnected from a source of compressed air. In order to make such a determination, FRA would have to maintain observation of the equipment for days at a time. Consequently, the proposed rule proposes a 24-hour limit on the amount of time equipment can be disconnected from a source of compressed air as it maintains current levels of safety and provides an enforceable and verifiable time limit that FRA believes provides the railroads some additional benefit over what is currently required both in terms of operational efficiency and cost savings. In paragraph (d), FRA proposes to require that a Class I brake test be performed by a qualified person on ECP brake equipped cars added en route to a train operating in ECP brake mode. However, FRA believes that this requirement may not be necessary if other safety precautions are taken. Thus, FRA also proposes to allow such cars to not receive a Class I brake test when being added to a train operating in ECP brake mode if the car had previously received a Class I brake test, the train crew is provided documentation of that test, the car has not been off air for more than 24 hours, and a proper visual inspection is performed prior to use or departure. Except in limited circumstances, the current regulations require a Class I brake test on each car added to a train at the location it is added to a train. *See* 49 CFR 232.205(b). Although FRA proposes to except ECP brake equipped trains and cars from § 232.205(b), as discussed above, FRA also proposes to retain the basic requirement that all cars added en route shall receive a Class I test by a qualified person unless they have previously received a Class I brake test by a qualified mechanical inspector. A proper Class I brake test ensures that a car is in proper working condition and is capable of traveling to its destination with minimal problems en route. Accordingly, if a ECP brake equipped car has received a Class I brake test by a qualified mechanical inspector within the last 3,500 miles, documentation of that test is provided to the train crew, the car has not been off air for more than 24 hours, and a proper visual inspection is conducted when the car is added to the train, FRA proposes with paragraph
(d)that it would be unnecessary to require an additional Class I brake test when that car is added to an en route train operating in ECP brake mode. However, to account for those cars that have not received a Class I brake test by a qualified mechanical inspector within the last 3,500 miles and that will be added to a train operating in ECP brake mode, FRA proposes paragraph (d), which would require a Class I brake test under those circumstances. Paragraph
(d)would be necessary in light of proposed paragraph
(g)excepting compliance with section 232.205(b). FRA contemplates that this requirement would likely only apply to cars with overlay ECP brake equipment that had been operating in pneumatic mode. Unless a car operating in ECP brake mode is off air for more than 24 hours, it would not require a Class I brake test when it is added to a new train, since the proposed rules contemplate that the car would have already received a Class I brake test within the previous 3,500 miles or at its initial terminal. The documentation would be required to ensure that a Class I brake test by a qualified mechanical inspector will be performed every 3,500 miles. Under paragraph (d), any ECP brake equipped car being added to a train operating in ECP brake mode would require a Class I brake test when the car has been off air for more than 24 hours for the same reasons stated above concerning proposed paragraph (c). FRA believes that a visual inspection of the car's brake components is a suitable replacement for an additional Class I brake test when the car or cars added in these circumstances have received a Class I brake test by a qualified mechanical inspector within the last 3,500 miles. The visual inspection proposed in this paragraph could be performed while the car is off air and could be conducted in conjunction with the mechanical inspection required under part 215 whenever a car is added to a train. Thus, FRA believes that the visual inspection proposed in this paragraph would not impose any significant burden on the railroads as they are already required to visually inspect the mechanical components on any car added to a train under part 215. FRA also acknowledges that the brake systems on cars not equipped with ECP brakes would be inoperative after being added to a train operating in ECP brake mode. To ensure the safe operation of such equipment and trains, FRA proposes that the transfer of cars equipped solely with conventional brake systems into trains operating in ECP brake mode also be given a visual inspection to ensure their safe operation and to ensure compliance with § 232.15. FRA anticipates that placing a car equipped with conventional pneumatic brakes into an ECP brake equipped train may be awkward at best, requiring use of an electrical “run around cable” and manual inputs into the locomotive control system. In a letter dated February 5, 2007, AAR provided a list of recommended “enhancements and modifications” to Part 232 to facilitate the use of ECP brakes. A copy of this document has been placed in the docket of this rulemaking. In that communication, the AAR stated that railroads “do not plan to commingle non-ECP equipment in stand-alone ECP trains.” However, FRA believes that foreseeable—though rare—circumstances should be considered in this rulemaking to the extent possible. Accordingly, FRA seeks comments and information on what requirements may be necessary to safely allow the addition of cars equipped with conventional pneumatic brakes into an ECP brake equipped train, including, but not limited to, the placement and securement of cables along cars equipped with conventional pneumatic brakes to preserve their continuity between non-consecutive cars equipped with ECP brakes and the appropriate placement in the consist of cars equipped with conventional pneumatic brakes. In the event that a car would be required to receive a Class I brake test when added to an en route train, FRA proposes that the Class I brake test be performed by a qualified person for the same reasons stated in the above analysis. To be clear, although any car added to a train en route may receive a Class I inspection by a qualified person, the entire train's travel distance is limited to its destination or the distance remaining until the train or any individual car picked up en route has traveled 3,500 miles since its last Class I brake inspection performed by a qualified mechanical inspector, whichever is less. A Class I brake inspection by a qualified person does not reset the mileage clock for the entire train. FRA intends to continue to require Class III brake tests for trains operating in ECP brake mode. However, due to the changes related to adding cars en route and for purposes of clarity, FRA is including the triggering events for when a Class III brake test would be required in paragraph
(e)of this section. As previously mentioned, for trains operating in ECP brake mode, FRA proposes in paragraph
(g)to except § 232.211(a), which governs the locations where Class III brake inspections must be performed. Through paragraph (e), FRA intends to require Class III tests on trains operating in ECP brake mode where a locomotive or caboose is changed, a car or block of cars is added to or removed from the train, and whenever the ECP brake system's continuity is compromised when the train consist has not changed. FRA acknowledges that there has been confusion in unique circumstances where a Class III brake test may or may not be required. For instance, a Class III brake test would not be required when a consist is cut in half, but otherwise may remain unchanged, such as when blocking a crossing. Further, a block of cars could be added to the rear of a train without breaking the train line cable's continuity. Accordingly, to avoid any misunderstanding, FRA proposes to specifically detail when a Class III brake inspection will be required on trains operating in ECP brake mode. All other trains, including ECP brake equipped trains operating in conventional pneumatic mode, would remain subject to the provisions contained in § 232.211(a). Paragraph
(f)proposes to modify certain elements of the brake tests applicable to ECP brake equipped cars and trains operating in ECP brake mode. Under the current regulations, tests and inspections include brake pipe service reductions and designate specific psi specifications. FRA believes that modifications to the brake pipe reduction standard are appropriate to reflect the differences between ECP brakes and conventional pneumatic brakes. For instance, control of ECP brakes is not dependent on brake pipe pressure and ECP brake equipped trains have a nominal brake pipe pressure of 90 psi. Further, since brakes need only remain applied until the release signal is received and the ECP brake system communicates through an immediate electronic control signal, the requirement to keep the brakes applied for a period of three minutes is unnecessary. Since the ECP brake tests include an equivalent electronic full service reduction with immediately provided results, the time consuming 20-psi brake pipe reduction required in the Class I and Class III brake tests and 15-psi brake pipe reduction required in the transfer train brake test and yard air test may no longer be necessary. In addition, the ECP brake system's electronic equivalent to a full service reduction may increase safety and testing efficiency. In any event, brake pipe pressure remains important, since ECP brake equipped trains rely on the pneumatic backup system for safety purposes. Accordingly, for trains equipped with ECP brake systems, FRA proposes in paragraph (f)(1) to replace the existing brake pipe service reductions and increases with an alternative requirement for an electronic signal that provides an equivalent application or release of the brakes. FRA believes that any alternative test procedures must include, at a minimum, either the electronic equivalent to each existing test's brake pipe reduction requirements or the equivalent of a full service brake pipe reduction initiated by an electronic signal. FRA seeks comments on this proposal, including the appropriate type of alternative test. In light of how the brake pipe's use in an ECP brake train will be limited to charging brake air reservoirs, FRA seeks comments on how the existing regulatory brake pipe leakage limits should be modified, if at all, for ECP brakes and whether changes in the leakage requirements will affect the pneumatic backup capability of the ECP brake system. In addition, comments should address the need to include the specific electronic reduction that is to be made on ECP equipped trains during the required brake tests and what type of electronic signals would be suitable equivalents to the currently mandated 20-psi and 15-psi brake reduction. Paragraph (f)(2) proposes to modify certain regulatory requirements related to piston travel limits and adjustments during Class I brake inspections. For instance, under § 232.205(c)(5) a person performing a Class I brake test must ensure that piston travel be adjusted to specific distances. Although FRA believes that ECP brake operations require specific piston travel limits, FRA recognizes that the minimum piston travel limits contained in § 232.205(c)(5) may not be fully applicable to ECP brake systems. Since the ECP brake system precisely measures the amount of brake cylinder pressure for each specified application and maintains that pressure, piston travel tolerances for ECP brakes may not require the level of specificity as those for conventional pneumatic brake operations. Further, FRA acknowledges that a “one-size-fits-all” requirement for ECP brake system piston travel may not be ideal or applicable. Accordingly, paragraph (f)(2) proposes to except the minimum piston travel limits in § 232.205(c)(5) as they apply to ECP brake systems. In place of the minimum piston travel limits required by § 232.205(c), paragraph (f)(2) proposes to require railroads, while performing Class I brake tests, to adhere to the minimum piston travel limits or distances recommended by the applicable manufacturer. FRA anticipates that a recommended minimum piston travel limit for each ECP brake system will be determined by the car's design, weight, and engineered brake ratio. FRA's basis for evaluation of manufacturer recommendations for the minimum piston travel limits will be based on the equivalent brake shoe force on the wheel as shown in the appropriate calculations or tests. At this time, FRA intends to retain the standard nominal adjustment of 7 1/2 inches and the maximum piston travel limit of 9 inches in accordance with of § 232.205(c)(5). In any event, FRA seeks comments on whether and how the nominal piston travel adjustment limit should be flexible. FRA proposes to require such limits be stenciled or marked on the car or badge plate in the same fashion FRA requires for systems and equipment subject to § 232.103(g). FRA believes that requiring the affixation of a legible decal, stencil, or sticker or the equipping of a badge plate displaying the permissible brake cylinder pistol travel range will effectively communicate the acceptable range to train crew members and will ensure the proper operation of a car's brakes after being inspected. FRA believes that this information is essential in order for a person to properly perform the required brake inspections. FRA believes that all vehicles equipped with ECP brake systems require marking in order to avoid confusion by those individuals responsible for inspecting and maintaining the equipment. Section 232.609 Handling of Defective Equipment With ECP Brake Systems In § 232.609, FRA proposes to modify certain part 232 requirements as they apply to freight cars and freight trains equipped with ECP brake systems and hauling defective equipment. In particular, for such trains and cars, FRA proposes in paragraph
(k)to except certain existing requirements and in paragraphs
(a)through
(j)to provide alternative requirements. Under § 232.15 and 49 U.S.C. 20303, railroads may be immune to civil penalty liability if a car or train with certain inoperative or defective equipment is hauled under certain conditions. Section 232.15(a) contains various parameters which must exist in order for a railroad to be deemed to be hauling a piece of equipment with defective brakes for repairs without civil penalty liability. The vast majority of the requirements contained in § 232.15(a) are a codification of the existing statutory requirements contained in 49 U.S.C. 20403 and are based on the voluminous case law interpreting those provisions. The statutory provisions require hauling defective equipment only to the nearest place where necessary repairs can be made and require 100 percent operative brakes from any location where such repairs can be effectuated. Thus, because many locations where trains are initiated with any frequency are also locations where brake system repairs can be effectuated, the statutory provisions essentially require 100 percent operative brakes from a train's initial terminal. FRA continues to believe that the proposed requirements relating to the movement of equipment with defective ECP brakes are generally consistent with the statutory requirements, ensure the safe and proper movement of defective equipment, and clarify the duties imposed on a railroad when moving such equipment. In light of the increased safety levels produced by ECP brake systems, FRA proposes to use its discretionary authority under 49 U.S.C. 20306 to provide an exception from the rigid statutory provisions and modify the regulations concomitant to 49 U.S.C. 20303 governing the movement of defective equipment. Under certain circumstances, the statute and related regulations provide immunity from civil penalty when a train with defective equipment is hauled to the nearest location where the necessary repairs can be made, regardless of direction. Since a train equipped with an ECP brake system and operating in ECP brake mode with a minimum percentage of cars with defective ECP brakes is capable of traveling safely for long distances, FRA proposes to permit the operation of such a train and any cars with defective ECP brakes to its destination, not to exceed 3,500 miles, for repair without civil penalty. While FRA believes that a train operating in ECP brake mode with some ineffective or inoperative ECP brakes may continue to travel safely, concerns remain if such a train includes cars with defective non-brake or conventional pneumatic brake equipment. ECP brake systems do not reduce the danger of traveling with such defects. However, as previously noted, the switching and potential backhauling of ECP equipped cars into incompatible trains for the purposes of complying with 49 U.S.C. 20303 and 49 CFR 232.15 outweigh the danger of hauling such cars to the nearest repair location. FRA is also cognizant of the need for logistical flexibility to efficiently accomplish repairs during the transition from conventional pneumatic to ECP brake operations. Furthermore, requiring strict adherence to the statutory requirements related to moving defective equipment ignores the safety features provided by ECP brake system technology and could potentially stifle the industry's ability and desire to implement the technology. Accordingly, FRA will hold a public hearing to determine whether it can and should invoke its discretionary authority under 49 U.S.C. 20306 to except certain operations involving freight cars and trains equipped with ECP brake systems from the stringent statutory movement-for-repair provision. The hearing will also address FRA's exception of trains operating in ECP brake mode from the de facto statutory requirement for 100 percent operative brakes at an initial terminal as discussed above. At this time, FRA proposes to invoke such statutory and regulatory relief in paragraph
(k)of this document, including exceptions from §§ 232.15(a)(2), (a)(5), (a)(6), (a)(7), (a)(8), and 232.103(d)-(e). Under § 232.103(d), no train may depart a location where a Class I brake test is required to be performed on the entire train with any inoperative or ineffective brakes. Since trains equipped with ECP brakes and operating in ECP brake mode provide higher levels of safety, including shorter stopping distances and constant real-time monitoring of the brake system, than trains operating with conventional pneumatic brakes, FRA believes that some leeway needs to be provided for trains operating in ECP brake mode. However, FRA also acknowledges allowing a car to depart an initial terminal with inoperative or ineffective brakes may permit such equipment to move indefinitely without receiving the proper repairs. Accordingly, FRA proposes to limit the types and number of cars that may depart in a train operating in ECP brake mode from a location where the train is required to receive a Class I brake test. Paragraph
(a)proposes to allow a train operating in ECP brake mode to depart from its initial terminal with ninety-five percent effective and operative brakes under certain circumstances. Per paragraph (k), a train operating in ECP brake mode is excepted from § 232.103(d), which requires that one-hundred percent of the brakes on a train shall be effective and operative prior to use or departure from any location where a Class I brake test is required to be performed on the train pursuant to § 232.205. For ECP brake equipped trains, this requirement is replaced by the ninety-five percent effective and operative brake requirement proposed in paragraph (a). FRA believes that this requirement provides flexibility from the rules governing conventional pneumatic braking systems while rendering a sufficient brake failure buffer between departing an initial terminal with ninety-five percent effective and operative brakes and experiencing a penalty stop upon reaching eighty-five percent effective and operative brakes, as proposed by paragraph (d). The one-hundred percent effective and operative brake requirement under § 232.103(d) is based on FRA's long-standing interpretation and application of AAR's inspection and testing standards as they existed in 1958 as well as the statutory provisions related to the use of power brakes and the movement of equipment with defective safety appliances. See 66 FR 4104, 4124, 4128 (Jan. 7, 2001). However, the design, operation, and safety benefits derived from the use of ECP brake systems dictate a need to modify this long-standing requirement. Under the AAR standards, if at any time the ECP brakes on a train become less than eight-five percent operative, the train will automatically stop via a penalty brake application. In addition, it has been determined that a train with eight-five percent operative ECP brakes will have better stopping distances than a conventional pneumatic braked train with one-hundred percent operative brakes. Moreover, ECP brake system technology provides the ability to continuously monitor the real-time status of the braking system on each car in a train. This allows a locomotive engineer to always know the exact status of his train's braking system. In light of this increased level of safety, FRA believes a partial reduction in the percentage of operative brakes is justified. FRA proposes modifying the requirement to 95 percent effective and operative brakes, which it believes strikes a balance between the current regulation and the need to allow for in-transit failures that could compromise the operation of the train or otherwise automatically shut it down when it reaches 85 percent effective or operative brakes. Under paragraph (a), a train could only leave its initial terminal if a Class I brake test is performed by a qualified mechanical inspector and all ECP braked cars that are known to have arrived at the location with ineffective or inoperative brakes are repaired or handled accordingly. The proposed rule intends to ensure that at least 95 percent of the ECP brake equipped cars have effective and operative brakes prior to departure from an initial terminal and that cars are repaired in a timely fashion. The purpose of the ninety-five percent threshold is to prevent the delay or disassembly of a train for the removal or repair of a very small percentage of cars that are discovered to be defective for the first time while the railroad is conducting its in-depth inspections required at a train's initial terminal. The 95 percent requirement also acknowledges that some initial terminals may not initially have the capabilities of repairing ineffective or inoperative ECP braking systems. Accordingly, paragraph
(b)proposes to allow the movement of cars with such defects known to exist upon arrival at its destination to be moved only to the nearest forward location where repairs may be performed and restricts the car from being loaded or unloaded while being so moved. However, to ensure the safe operation of trains operating in ECP brake mode, operators are reminded that, under the proposal, the inclusion of such defective cars cannot make the train have less than ninety-five percent effective or operative brakes. Paragraph
(b)also proposes that a car with ineffective or inoperative ECP brakes shall be tagged in accordance with § 232.15(b). FRA believes that § 232.15(b) should equally apply to trains operating in ECP brake mode and should be a prerequisite for the movement from the initial terminal of any car with defective brakes. Section 232.15(b) contains the specific requirements regarding the tagging of equipment found with defective brake components and recognizes that the industry may attempt to develop some type of automated tracking system capable of retaining the information required by that section and tracking defective equipment electronically. Thus, paragraph (b), through § 232.15(b), proposes to permit the use of an automated tracking system in lieu of directly tagging the equipment if the automated system is approved for use by FRA. FRA continues to believe that these provisions are necessary to ensure the agency's ability to monitor such systems and potentially prohibit the use of the system if it is found deficient. The proposed rule makes clear that, by ensuring application of section 232.15(b) to ECP brake systems, an automated tracking system approved for use by FRA be capable of being reviewed and monitored by FRA at any time. This paragraph also notifies the railroads that FRA reserves the right to prohibit the use of a previously approved automated tracking system if FRA subsequently finds it to be insecure, inaccessible, or inadequate. Such a determination would have to be in writing and include the basis for taking such action. Paragraph
(c)proposes permitting, with certain limitations, trains operating in ECP brake mode to move cars equipped with conventional pneumatic brakes. If a freight car equipped with only conventional pneumatic brakes would have effective and operable brakes in a train equipped with a “stand-alone” conventional pneumatic brake system, FRA proposes to permit a freight train operating in ECP brake mode to move such a car. If a car has defective conventional pneumatic brakes—which would be ineffective or inoperative in a train with a “stand-alone” conventional pneumatic brake system—FRA also proposes to permit its movement by a freight train operating in ECP brake mode, but only if the movement is made in accordance with § 232.15. By referring to § 232.15, paragraph
(c)intends to, amongst other things, include the exceptions delineated in paragraph
(k)and limit the movement of such cars to the nearest location where repairs can be made. Paragraph
(c)also reminds regulated parties to comply with the tagging requirements of § 232.15(b) for the same reasons as paragraph (b). FRA notes that the inclusion of cars with defective or non-defective conventional pneumatic brakes into a train operating in ECP brake mode shall not cause the train to have less than ninety-five percent effective and operative brakes in accordance with paragraph (a). FRA believes that permitting a limited inclusion of cars equipped with conventional pneumatic brakes will provide some flexibility as operators transition their fleets from conventional pneumatic to ECP brake systems while ensuring a satisfactory level of safety. Once an ECP brake system detects that the train has less than eight-five percent operative brakes, AAR standard S-4200 requires an automatic and immediate full service brake application. Paragraph
(d)mirrors S-4200 by requiring a train operating in ECP brake mode to cease moving once less than eight-five percent of the train’s cars have effective and operative brakes. In other words, under paragraph (d), no train shall move with more than fifteen percent of its brakes being defective or otherwise inoperative or ineffective. Recognizing, however, that foundation brake rigging defects may not be detected by the electronic system, and that calculation of the percentage may require an accurate manual entry of the total cars in the train by the train crew, FRA proposes paragraph
(d)to continually ensure the safe operation of trains operating in ECP brake mode with ineffective or inoperative brakes. Although there is no explicit statutory limit regarding the number of cars with inoperative brake equipment that may be hauled in a train, the fifteen percent limitation is a longstanding industry and agency interpretation of the hauling-for-repair provision currently codified at 49 U.S.C. 20303, and has withstood the test of time. This interpretation is extrapolated from another statutory requirement which permits a railroad to use a train only if “at least 50 percent of the vehicles in the train are equipped with power or train brakes and the engineer is using the power or train brakes on those vehicles and on all other vehicles equipped with them that are associated with those vehicles in a train.” 49 U.S.C. 20302(a)(5)(B). As originally enacted in 1903, section 20302, also granted the Interstate Commerce Commission
(ICC)the authority to increase this percentage, and in 1910 the ICC issued an order increasing the minimum percentage to 85 percent. *See* 49 CFR 232.103(e), which codifies the ICC order. FRA believes that if the rule is read in its entirety there should be no confusion as to the movement of defective equipment, and that this provision merely sets an outside limit on the percentage of cars that may be hauled in any train with inoperative brakes. Consequently, FRA will continue to require that equipment with inoperative air brakes make up no more than 15 percent of any train. FRA acknowledges that § 232.103(e) already prevents a train's movement “if less than 85 percent of the cars in that train have effective and operative brakes.” However, FRA has also stated that § 232.103(e) “contains a clear and absolute prohibition on train movement if more than 15 percent of the cars in a train have their brakes cut out or have otherwise inoperative brakes.” Because ECP brake systems are designed to automatically stop the train whenever and wherever the brake system has less than 15 percent operative brakes, FRA recognizes that some flexibility is needed to ensure that such trains are not stranded on the main track. To provide flexibility in those rare instances where a train experiences a penalty brake application as a result of having less than 85 percent operative brakes, paragraph
(d)proposes to include requirements to ensure the safe movement of such trains. FRA recognizes the need for some trains operating in ECP brake mode to continue to an appropriate repair facility or nearest siding after experiencing a penalty brake application. Since ECP brake implementation is in its infant stages, FRA acknowledges that a railroad may not initially have a significant number of repair facilities beyond the initial terminals of ECP equipped cars. Accordingly, paragraph
(d)proposes to permit limited movement of such trains for repair or consist modification purposes. In any event, in light of the Class I inspection required under proposed § 232.607 and an ECP brake system's continuous monitoring and diagnostics functions, FRA believes that trains operating in ECP brake mode will rarely, if ever, reach fifteen percent inoperative or ineffective brakes. However, FRA believes that paragraph (d)—in an abundance of caution and in anticipation of such a possibility occurring—ensures safe and efficient operations. In order to move a train operating in ECP brake mode that experiences a penalty brake application (i.e., an automatic and immediate emergency or full brake application made by the ECP brake system in accordance with the current AAR standards) due to having less than 85 percent effective and operative brakes, proposed paragraph
(d)would require the train crew to perform a visual inspection of the entire train, ensure the safe operation of the train, and determine that it is safe to move the train. Under the current regulations, visual inspections are generally performed when moving defective equipment since a “qualified person” must determine that the car is safe to move. It is FRA's understanding that most, if not all, railroads require a crew member to make a visual inspection of a car when a problem occurs en route. A proper visual inspection ensures that the brakes are cut out and eliminates the possibility of dragging or stuck brakes. A dragging or loose part or piece of equipment can find its way under a wheel, causing a derailment. A brake that will not release—due to bent or fouled brake rigging or a problematic control valve—will cause the wheel to slide. A sliding wheel will not properly traverse a switch or cross-over, setting up a potential derailment. A sliding wheel may also cause a severe flat spot to occur on the wheel, which can also lead to a derailment. By requiring that the train crew ensure the safe operation of the train and determine that it is safe to move the train, FRA intends to make clear that it is the railroad's responsibility, through its crew, to do whatever is necessary to ensure safe train operation under the flexibility provided by paragraph (d). Any deviation from the requirements under paragraph
(d)while moving a train with less than eight-five effective or ineffective brakes would pose a significant safety hazard and violate the rule. In addition, under paragraph (d), the train's subsequent movement must be made in a restricted ECP brake Switch Mode to the nearest forward location where necessary repairs or changes to the consist can be made. Under AAR Standard S-4200 § 4.2.6.2.2, the speed of an ECP brake equipped train in Switch Mode shall not exceed 20 mph. The purpose of the 20 mph restriction, among Switch Mode's other restrictions, is to ensure the safe movement of the train with less than ideal brake operations while allowing the train to operate to a location where defective braking systems can be repaired or where cars can be added or removed from the train so that it will have at least eighty-five percent effective and operative brakes. Paragraph
(e)proposes to permit trains operating in ECP brake mode with defective ECP brakes to be used or hauled without civil penalty liability under part 232 to its destination, not to exceed 3,500 miles. Such defects must be found for the first time during a Class I brake test or en route. As previously mentioned, FRA believes that a train operating in ECP brake mode can safely continue to its destination with some ineffective or inoperative brakes. Accordingly, paragraph
(e)proposes that all such trains be permitted to travel to its destination, not to exceed 3,500 miles, without incurring civil penalty liability in relation to the use of those brakes. Paragraph
(e)also proposes that this civil penalty immunity be extended to such trains with ECP brake defects found at the initial terminal. If such defects are found after a train is put together in preparation for its next departure, it may be overly burdensome to require that the train be taken apart for repair. If a brake repair may be performed without taking the train apart, FRA acknowledges that the repair may cause undue delay. If the ECP brake defect is found at the location where a Class I inspection is performed, FRA believes that such burdens and delays may be avoided in light of the increased safety afforded by ECP brake systems. FRA believes that this flexibility needs to be afforded differently to defects that are known to exist upon a car's arrival at its destination or at a location where a Class I brake test will be required on the train than to defects found for the first time at the location where a Class I brake test is performed. If a freight car equipped with an ECP brake system is known to have arrived with ineffective or inoperative brakes at the location of a train's initial terminal or at a location where a Class I brake test is required under § 232.607(b), that car is subject to the limitations in paragraph (b), not paragraph (e). Paragraph
(b)intends to ensure that known defects be repaired before continued use and to prevent trains operating in ECP brake mode from traveling indefinitely without repairing their defective ECP brakes. On the other hand, by proposing paragraph (e), FRA recognizes the burden placed on operators to comply with such a rule when it discovers the defect when it is in the process of putting a train together or after a train is already put together and inspected. Paragraph
(e)intends to recognize that burden by treating the train similarly to a train that detects a defective ECP brake while it is en route. Paragraph
(f)proposes providing limited flexibility for trains operating in ECP brake mode with a non-brake safety appliance defect on an ECP brake equipped car. To enjoy such flexibility under paragraph (f), the car may only be used or hauled to the nearest forward location for repairs. As noted above, in light of the increased safety levels afforded by ECP brake system technologies, FRA proposes to allow trains operating in ECP brake mode with defective ECP brakes to travel to its destination, not to exceed 3,500 miles. FRA does not believe it prudent to provide the same level of flexibility to cars operating in ECP equipped trains with non-brake safety appliance defects, since an ECP brake system's increased safety level does not reduce the dangers of such defects. However, FRA does believe that flexibility should be afforded to such equipment hauled directly to the nearest forward repair location. To require the hauling of ECP brake equipment to the nearest location where necessary repairs can be effectuated, rather than the nearest forward location, could create unnecessary safety hazards. As there will only be a limited number of ECP brake equipped trains in operation at any given time, the ability to switch cars from one ECP train to another, merely for the purposes of getting the car to a closer repair facility, will be severely limited. Rather than requiring ECP brake equipped cars to be hauled in non-ECP brake trains, where their brakes will be inoperative, FRA believes it is safer to permit the car to continue in the ECP brake equipped train with operative brakes to the next forward location where the necessary non-brake safety appliance repairs can be made. In the event trains must include cars equipped with brake systems not compatible with the train's brake system, FRA proposes requirements to ensure the safe operation of such trains. FRA proposes to allow a train operating with a conventional pneumatic brake system—regardless of whether it is a train with “stand-alone” conventional pneumatic brakes or an ECP brake equipped train operating in conventional pneumatic brake mode—to include cars with stand-alone ECP brake systems. To maintain an acceptable level of safety, however, FRA proposes that such trains must have at least 95 percent effective and operative brakes at the conclusion of a Class I brake test, inclusive of all cars regardless of braking systems. Further, to meet the same level of safety intended by 49 CFR 232.103(d), FRA proposes to continue to require that the train have 100 percent effective and operative conventional pneumatic brakes at the Class I brake test site when operating in conventional pneumatic mode. Accordingly, paragraph
(g)proposes to allow trains equipped with a conventional pneumatic brake system—or with ECP brake systems and operating in conventional pneumatic brake mode—to operate with freight cars equipped with stand-alone ECP brake systems under limited circumstances. Under paragraph (g), any such train not in compliance with those circumstances shall not be operated. The purpose of these limitations is to ensure the safe operation of such trains that contain cars with incompatible stand-alone ECP brake systems. FRA understands that some trains operating with conventional pneumatic brakes may need to carry cars with incompatible stand-alone ECP brake systems, especially when the implementation of ECP brake system technology is in its infant stages. For instance, FRA anticipates that a need may arise to move a new ECP brake equipped car in a train operating with conventional pneumatic brakes from the car building facility or a repair shop to a location where the railroad operates ECP brake equipped trains. FRA also anticipates that a dual mode ECP brake system operating in ECP brake mode may incur a malfunction—such as a broken train line cable or locomotive controller—forcing the operator to switch the train's operation to conventional pneumatic brake mode. As long as the train's total number of cars with ineffective or inoperative brakes does not fall below the threshold percentage proposed by paragraph (g)—via reference to paragraph (d)—FRA believes that the train may safely include cars with incompatible stand-alone ECP brake systems. Paragraph
(g)includes requirements for the subject train and each of its stand-alone ECP brake equipped cars. For such a train to operate, it must comply with the minimum percentage of operative brakes required by paragraph
(h)when at an initial terminal—which will be discussed below—or paragraph
(d)when en route for the same reasons discussed in paragraph (d). Under paragraph (g), a stand-alone ECP brake equipped car in a train operating with conventional pneumatic brakes can only be moved for delivery to a railroad receiving the equipment or to a location where the car may be added to a train operating in ECP brake mode. Otherwise, the movement of the car is restricted to the nearest available location where necessary repairs can be effectuated. In addition, such cars must be tagged in accordance with § 232.15(b) for the same reasons as stated for the analysis of paragraph
(b)and placed in the train in accordance with § 232.15(e). Section 232.15(e) contains the requirements regarding the placement of cars in a train that have inoperative brakes. The requirements contained in that paragraph are consistent with the current industry practice and are part of almost every major railroad's operating rules. By incorporating § 232.15(e) by reference, paragraph
(g)proposes to prohibit the placing of a vehicle with inoperative brakes at the rear of the train and the consecutive placing of more than two vehicles with inoperative brakes, as test track demonstrations have indicated that when three consecutive cars in a train operating with conventional pneumatic brakes have their brakes cut-out, it is not always possible to obtain an emergency brake application on trailing cars. To remain consistent with existing industry practice, paragraph
(g)proposes, by referencing § 232.15(e), to require that such equipment shall not be placed in a train if it has more than two consecutive individual control valves cut out or if the brakes controlled by the valve are inoperative. Paragraph
(h)proposes additional requirements for freight trains equipped and operating with conventional pneumatic brakes when departing an initial terminal with freight cars equipped with stand-alone ECP brake systems. On such trains, paragraph
(h)proposes to require that each car equipped with conventional pneumatic brake systems have effective and operative brakes. Paragraph
(h)proposes to allow the train to depart its initial terminal with ninety-five percent effective and operative brakes. The five percent of cars with potentially defective brakes may only be cars equipped with stand-alone ECP brake systems. All cars equipped with dual mode ECP brake systems must operate in conventional pneumatic brake mode and have effective and operative conventional pneumatic brakes. Various paragraphs of proposed § 232.609 require the tagging of defective equipment. Paragraph
(i)proposes to provide for the electronic tagging of defective ECP brake equipment when being moved in a train operating in ECP brake mode. FRA recognizes that § 232.15(b) already provides requirements for electronic tagging of defective equipment. However, in view of the ECP brake system's unique characteristics, it is not entirely clear how § 232.15(b) would appropriately apply to electronic records developed, retained, and maintained by ECP brake systems. Accordingly, paragraph
(i)contains the proposed criteria for determining whether an ECP brake system complies with § 232.15(b). In order for an ECP brake system to provide electronic tagging of equipment with defective safety appliances, the ECP brake system must provide appropriate, constant, and accurate information to the crew via a display in the cab of the lead locomotive, and ensure that the information is securely stored and is accessible to FRA and appropriate operating and inspection personnel. To allow electronic tagging of defective ECP brake equipment, paragraph
(i)proposes to ensure that the train crew be notified of such defects. FRA believes that the most logical and efficient communications medium is the ECP brake system's display monitor in the lead locomotive cab. FRA also believes that any such notification should include descriptive information suitable to identify the defect and its location in the train consist. FRA acknowledges that locomotive engineers may be distracted or subjected to information overload by multiple monitors or displays in the locomotive cab, thus potentially endangering the safe operation of the train. At this time, FRA does not have sufficient information to propose rules concerning display or monitor placement or the merging of various data into a smaller number of displays. In any event, FRA seeks comments on this issue. To ensure the integrity of electronic tagging, the ECP brake system must securely store the information. FRA seeks comment on how secure a system must be. While the information must be secure, it must also be accessible for safety and oversight purposes. Paragraph
(i)makes clear that an automated tracking system approved for use by FRA and its secured information must be capable of being reviewed and monitored by FRA at any time. The information should also be accessible to subsequent train crews that require notification of defects. FRA acknowledges that some railroads may also desire to use the ECP brake system to electronically tag defective non-ECP brake equipment. FRA anticipates that such electronic tagging must be manually entered into the system. FRA seeks comments on whether the proposed rules should include provisions allowing for the manual input of non-ECP brake defects into ECP brake systems for electronic tagging purposes. FRA also seeks comments on what requirements and allowances should be made in consideration of that interest, including means to associate or merge ECP brake system information with information not monitored electronically by the ECP brake system. Paragraph
(j)proposes that railroads adopt and comply with written procedures governing the movement of defective equipment. The procedures must comply with the related regulatory requirements, including those proposed in these rules. FRA intends for each railroad to develop appropriate procedures regarding its handling and repair of defective equipment containing ECP brake systems or hauled in trains operating in ECP brake mode. FRA acknowledges that many railroads may already have such procedures in place. FRA believes that the establishment of these procedures is the most effective means by which to minimize the possibility of future accidents caused by the movement of defective equipment on cars and trains equipped with ECP brake systems or operating in ECP brake mode. Given the introduction of new technology and its partial incompatibility with existing systems, FRA believes the need for adoption and compliance with such procedures is critical for continued safety in the rail industry. To ensure compliance with the proposed requirements concerning the performance of ECP brake system repairs, paragraph
(j)proposes to require railroads to submit to FRA a list identifying locations where such repairs may be made. FRA believes that the list should encompass a sufficient number of locations to ensure that Class I brake tests are performed at appropriate intervals and that trains equipped with ECP brake systems do not travel further than their destination or 3,500 miles without being inspected and repaired in Class I inspection and repair facilities. If a railroad adds or removes any repair facility from its system, paragraph
(j)proposes that the railroad amend or modify that list by timely notifying FRA of those changes. Paragraph
(k)proposes explicit exceptions to other portions of part 232. Paragraph
(k)proposes that §§ 232.15(a)(2) and (a)(5) through (a)(7) not apply to freight cars and freight trains with ECP brake systems. These sections generally require that equipment with defective safety appliances be repaired at the location where they are first discovered to be defective or that they be moved only to the nearest available location where necessary repairs can be performed. As noted above, FRA believes that freight cars equipped with ECP brakes and freight trains operating in ECP brake mode need to be provided some flexibility in being handled for repair and when moving equipment with defective safety appliances. The provisions contained in § 232.15(a) for which FRA is proposing an exception would, in many circumstances, frustrate the purpose of FRA's proposal and ignore the safety advances provided by ECP braking systems. Paragraph
(k)also proposes to except § 232.15(a)(8), which prohibits the movement of a defective car or locomotive in a train required to receive a Class I brake test at that location. As discussed in detail above, FRA proposes to allow a leave its initial terminal with only ninety-five percent operative brakes after a Class I brake test. Similarly, § 232.103(d) prohibits a train from departing from its initial terminal with any inoperative or ineffective brakes, but paragraph
(a)proposes to allow a train operating in ECP brake mode to depart from its initial terminal with ninety-five percent effective and operative brakes under certain circumstances. Paragraph
(a)implicitly excepts trains operating in ECP brake mode from § 232.103(d). Paragraph
(k)intends to clearly and explicitly except § 232.103(d). An explicit exception in this rule does not imply that there are no independent and implicit exceptions. Finally, § 232.103(e) ``contains a clear and absolute prohibition on train movement if more than 15 percent of the cars in a train have their brakes cut out or have otherwise inoperative brakes,'' thus preventing a train's movement ``if less than 85 percent of the cars in that train have effective and operative brakes.'' Due to relief proposed by this section, however, the strict limits imposed by § 232.103(e) would no longer be applicable to trains regulated under these proposed rules. Accordingly, paragraph
(k)proposes excepting § 232.103(e). Section 232.611 Periodic Maintenance FRA intends that all unexcepted rules under part 232 apply to ECP brake operations. For the purposes of further clarity, however, paragraph
(a)reminds the operators of equipment with ECP brake systems to comply with the maintenance requirements contained in § 232.303(b) through (d), which require the performance of certain tests and inspections whenever a car is on a shop or repair track. FRA continues to believe that a repair or shop track provides an ideal setting for railroads to conduct an individualized inspection on a car's brake system to ensure its proper operation. FRA also continues to believe that such inspections are necessary to reduce the potential of overlooking cars with excessive piston travel during the performance of ordinary brake inspections. If any problems are detected at that location, the personnel needed to make any necessary corrections are already present. Furthermore, performing these inspections at this time ensures proper operation of the cars' brakes and eliminates the potential of having to cut cars out of an assembled train and, thus, should reduce inspection times and make for more efficient operations. FRA continues to believe that §§ 232.303(b) and
(c)should apply to all operations, including those with ECP brake systems. Section 232.303(b) requires testing of each car on a shop or repair track to determine that its air brakes apply and remain applied until a release is initiated. If the brakes fail to apply or remained applied until a release is initiated, the car must be repaired and retested. Section 232.303(c) requires piston travel to be inspected and, if necessary, adjusted. FRA intends for this to be accomplished in accordance with the stencil or badge plate on cars equipped with ECP brakes. FRA also continues to believe that § 232.303(d) should apply to all operations, including those with ECP brake systems. Section 232.303(d) lists brake system components requiring inspection prior to releasing a car from a shop or repair track. This section requires inspection of a car's hand brakes, angle cocks to ensure proper positioning to allow maximum air flow, and brake indicators, if equipped, to ensure their accuracy and proper operation. A periodic inspection is an ideal time for the railroad to inspect these items while imposing the least burden on the railroad's inspection and repair forces. In addition to requiring continued compliance with §§ 232.303(b) through (d), paragraph
(a)proposes to require further inspections of freight cars equipped with ECP brake systems prior to release from a shop or repair track. These additional inspections afford the inspector the opportunity to look at each car more thoroughly and take into consideration ECP brake systems' unique characteristics. For instance, while § 232.303(d) requires inspectors to ensure that brake pipes are securely clamped, paragraph
(a)proposes the equivalent for ECP brake systems by requiring the secured clamping of ECP brake system wires. Accordingly, paragraph
(a)proposes requiring inspectors to check the ECP brake system's wiring and brackets, electrical connections, electrical grounds and impedance, and any car mounted ECP brake system component. During such inspections, inspectors are expected to look for problems such as frayed wiring, loose or damaged brackets, and wires that have become loose due to a fallen bracket. FRA believes that a missing bracket may not cause concern during a regular train yard inspection or Class I brake test and FRA has proposed requiring shop or repair track inspections of such ECP brake related components to ensure their safe operation. Paragraph
(b)proposes requiring railroads to submit periodic single car air brake test procedures to FRA for approval and paragraph
(c)proposes that railroads comply with such submitted and approved procedures whenever they perform a single car air brake test. FRA must be given an opportunity to review and comment on any revision of the procedures by which these tests are performed to ensure that there is no degradation in safety resulting from any such modification and to ensure consistency in how the tests are performed. FRA notes that the review and approval proposed by paragraph
(b)are necessary to prevent railroads from making unilateral changes to the test procedures. Paragraph
(b)proposes to require the industry to follow the special approval process contained in § 232.17 in order to initially submit the procedures to FRA for approval. FRA understands that AAR and ECP brake manufacturers are currently in the process of developing single car air brake test procedures for ECP brake equipped freight cars. Should such procedures be formalized in an AAR approved and published standard prior to issuance of a final rule in this proceeding, FRA will consider incorporating that standard into the final rule. Paragraph
(c)proposes to require that single car air brake tests be performed upon the occurrence of any of the events identified in § 232.305, except for § 232.305(b)(2). Section 232.305(b)(2) requires railroads to perform a single car air brake test when a car is on a shop or repair track for any reason and has not received a single car air brake test within the previous 12-month period. The single car air brake test is critical to ensuring the safe and proper operation of the brake equipment on the Nation's fleet of freight cars. When FRA issued § 232.305(b)(2), the single car air brake test was the sole method by which air brake equipment on freight cars is periodically tested to identify potential problems before they result in the brake's becoming inoperative. Due to the ECP brake system's ability to continuously monitor the condition of a car's air brakes, FRA believes that less frequent single car air brake tests are justified on such equipment. FRA acknowledges that railroads may retrofit ECP brake systems on existing cars equipped with conventional pneumatic brake systems. While § 232.305(e) requires a single car air brake test on each new or rebuilt car prior to placing or using it in revenue service, it is unclear whether this rule applies to cars retrofitted with ECP brake systems. Accordingly, to ensure the proper and safe operation of cars with newly installed ECP brake systems, paragraph
(d)proposes to require the performance of a single car air brake test prior to returning the car to revenue service. FRA believes that it is essential for retrofitted cars to receive this test prior to returning to revenue service in order to ensure the proper operation of the vehicle's new brake system. Most railroads already require this attention when installing a new brake system; thus the cost of this requirement is minimal and merely incorporates the industry's current best practices. FRA acknowledges that, after receiving approval of the single car air brake test standard from FRA in accordance with paragraph (b), a railroad or an industry representative may—through its experience—subsequently determine better procedures applicable to single car air brake tests of cars equipped with ECP brake systems. Accordingly, FRA recognizes that the industry may find it necessary to modify the single car air brake test procedures from time to time. Section 232.307 provides regulatory procedures for those seeking modification of an approved single car air brake test procedure. Paragraph
(b)proposes extending the application of § 232.307 to single car air brake test procedures for cars equipped with ECP brake systems. FRA believes that § 232.307 provides the industry with a quick and efficient procedure to seek modification of an incorporated or approved testing procedure and provides both FRA and other interested parties an opportunity to review potential changes prior to their becoming effective. The process under § 232.307 permits the industry to modify the single car air brake test procedures and permits those modifications to become effective 75 days from the date that FRA publishes the requested modification in the **Federal Register** , if no objection to the requested modification is raised by either FRA or any other interested party. The process allows FRA and other interested parties 60 days to review and raise objections to any proposed modification requested by the industry and submitted to FRA. FRA believes the process established in § 232.307 will meet the needs of AAR and the industry to expeditiously modify the single car air brake test procedures required by and approved under paragraph (b). FRA continues to believe that, for the process to work at optimum efficiency, the AAR and the industry would be best served if they ensure that there is open communication regarding any modifications with both FRA and the representatives of affected employees prior to requesting any modification of the procedures. This will ensure that interested parties are fully informed of any potential modification and their concerns are addressed or allayed before a request for modification is submitted to FRA. This information and dialogue will eliminate the potential for objections being submitted when the requested modification is officially sought. FRA acknowledges that the self-monitoring capabilities of ECP brake systems may eliminate the need to perform single car air brake tests on a time-specific basis. Accordingly, paragraph
(f)proposes to except § 232.305(b)(2) as it applies to single car air brake tests for cars with stand-alone ECP brake systems. Since cars with dual mode ECP brake systems include all of the components of a conventional pneumatic brake system and may be operated in conventional pneumatic brake mode at any time, FRA does not intend paragraph
(f)to provide those cars relief from section 232.305(b)(2). At this time, FRA does not believe sufficient information exists to completely eliminate the need to conduct periodic single car air brake tests on ECP brake equipped cars. Paragraph
(f)also proposes to except the application of § 232.305(f) to cars equipped with stand-alone ECP brake systems. Section 232.305(f) concerns cars that had received their last single car air brake tests prior to January 1, 2001. Section 232.305(e), incorporated by reference from paragraph (c), requires that all new or rebuilt ECP brake equipped cars receive a single car air brake test prior to being placed or used in revenue service. Proposed paragraph
(d)requires a single car air brake test be performed on all cars retrofitted with ECP brake systems prior to being placed or used in revenue service. Thus, the last time a stand-alone ECP brake equipped car would have received a single car air brake test would have been after it was built, rebuilt, or retrofitted. Accordingly, § 232.305(f) would no longer be applicable. For similar reasons, FRA also seeks comments and information on whether § 232.305(f) should be eliminated altogether. Section 232.613 End-of-Train Devices Current FRA regulations specify design and performance standards for one-way and two-way EOT telemetry devices, which, at a minimum, have the capability of determining rear-of-train brake pipe pressure and of transmitting this information by radio to a receiving unit in the controlling locomotive. Most rear units in service are battery operated and also incorporate a rear end marker required under 49 CFR part 221. Optional features include transmission of information regarding rear end motion and battery status. Most units operate on the same ultra high frequency (UHF), but each rear unit has a discrete identification code which must be recognized by the HEU before the message is acknowledged. The more modern two-way EOT device, in addition to the features of the one-way EOT device, has the ability of activating the emergency air valve at the rear of the train upon receiving an emergency brake application command from the HEU. This is a desirable feature in event of a blockage in the brake pipe that would prevent the pneumatic transmission of the emergency brake application throughout the entire train. Provisions governing the use of one-way EOT telemetry devices were initially incorporated into the power brake regulations in 1986. Pursuant to the Rail Safety Enforcement and Review Act, Pub. Law No. 102-365 (Sept. 3, 1992), which amends the Federal Rail Safety Act
(FRSA)of 1970 (45 U.S.C. 421, 431 et seq.), FRA held rulemakings to amend the power brake regulations, including those concerning one-way and two-way EOTs. 62 FR 278 (Jan. 2, 1997); 66 FR 4104 (Jan. 17, 2001). The resulting regulations, contained in subpart E of part 232, specify the requirements related to the performance, operation, and testing of EOT devices for conventional pneumatic braking. The new ECP-EOT devices—which must comply with AAR standards such as S-4200 and S-4220—will provide more and more varied functions than the EOT devices used on trains with conventional pneumatic brakes. In addition to serving as the final node on the ECP brake system's train line cable termination circuit and as the system's “heart beat” monitoring and confirming train, brake pipe, power supply line, and digital communications cable continuity, the ECP-EOT device transmits to the HEU a status message that includes the brake pipe pressure, the train line cable's voltage, and the ECP-EOT device's battery power level. Since the ECP-EOT device—unlike a conventional EOT device—will communicate with the HEU exclusively through the digital communications cable and not via a radio signal, it does not need to perform the function of venting the brake pipe to atmospheric pressure to engage an emergency brake application. However, ECP-EOT devices do verify the integrity of the train line cable and provide a means of monitoring the pressure and gradient, providing the basis for an automatic—rather than engineer-commanded—response if the system is not adequately charged. In the case of ECP brakes, the brake pipe becomes a redundant—rather than primary—path for sending emergency brake application commands. Under certain communication breakdowns between the ECP-EOT device, the HEU, and any number of CCDs, the system will self-initiate an emergency brake application. FRA acknowledges that ECP-EOT devices, with their additional and changed features, may not comply with the rules under subpart E. FRA, however, is unclear what additional unique and varied features manufacturers of ECP-EOT devices may want to include beyond the functions specified in the AAR standard. Accordingly, FRA proposes in paragraph
(a)that a railroad or a duly authorized representative of the railroad industry submit to FRA proposed design, testing, and calibration standards related to ECP-EOT devices used on freight trains operating in ECP brake mode. Paragraph
(a)proposes that the submission comport with the special approval procedures contained in § 232.17 and be subject to FRA approval. FRA acknowledges that ECP-EOT devices may not require calibration. FRA seeks comments and information on this proposal and issue. Once FRA approves those standards, paragraph
(b)requires that each railroad operating trains in ECP brake mode adopt and comply with those standards. A railroad shall not operate a train in ECP brake mode until after FRA approves those standards. Paragraph
(c)further ensures that ECP brake equipped trains properly connect and use an ECP-EOT device approved and complying with paragraphs
(a)and
(b)of this section. Because paragraph
(a)proposes requirements for ECP-EOT device design, testing, and calibration standards applicable only to ECP brake systems and because subpart E of part 232 contains requirements not necessarily applicable to ECP-EOT devices, paragraph
(d)proposes to except trains operating in ECP brake mode from having to comply with subpart E of part 232. XII. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). FRA has prepared and placed in the docket a Regulatory Analysis addressing the economic impact of this proposed rule. Document inspection and copying facilities are available at the DOT Central Docket Management Facility located in Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590. Access to the docket may also be obtained electronically through the DOT Docket Management System Web site at *http://dms.dot.gov* until September 28, 2007, and the Federal eRulemaking Portal at *http://www.regulations.gov* after September 28, 2007. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. FRA-2006-26175. The Regulatory Analysis prepared by the FRA in conjunction with this NPRM contains many assumptions and analyses on which we specifically request comments from interested parties. These specific questions can be found throughout that document, particularly in sections II.B., V.D., V.E., V.F., and VI.A. Anyone who wishes to examine the analysis and provide relevant data or arguments may request a copy of the Regulatory Analysis through the person listed under FOR FURTHER INFORMATION CONTACT above. FRA invites comments on the Regulatory Analysis. For purposes of analysis, FRA has assumed that the proposed rule, if adopted, would support business decisions by Class I railroads to convert unit train service, such as coal and intermodal, to ECP brake operations over a 10-year period. This type of service is characterized by intensive utilization of assets and is reasonably discrete in terms of operational requirements. Although carload service is dispersed over the national rail network, unit train service tends to be concentrated in certain corridors. Locomotives are or could be dedicated to this service (e.g., as in the extensive use of high traction alternating current
(AC)locomotives in coal service). FRA believes that, as costs and benefits are validated and the technology's market enjoys economies of scale, additional markets will benefit from ECP brake technology. However, based on available information, FRA is not able to determine whether or under what circumstances that may occur. If the industry was to take advantage of the proposed relief to the extent estimated, it would cost it approximately $1.5 billion (discounted at 7%). The largest portion of these costs, $1 billion, is the cost to convert freight cars to ECP brakes and the remaining costs relate to locomotive conversion and training. The total benefits of the proposed rule are approximately $3.2 billion (discounted at 7%). Of those benefits, the $1.1 billion in regulatory relief or the $1.2 billion in fuel savings almost individually pay the costs or together substantially exceed the costs. The remaining benefits include wheel replacement savings and safety benefits. The information currently available suggests that additional substantial benefits not included in the $3.2 billion referenced above may be realized. The most significant benefit of conversion of mainline corridors to all-ECP brake service is enhanced capacity, without the need for major new equipment or infrastructure investment. Although the FRA cannot predict the specific effect that ECP brakes will have in increasing velocity across the national rail network, the FRA believes that the adoption of ECP brake technology will increase train speed and this hypothesis is supported by the BAH analysis. Given sharply growing demand for rail freight service, and based on the enhanced features that ECP brake systems offer, including
(1)reduced stopping distances,
(2)shorter start times,
(3)reduction of undesired emergencies,
(4)continuous brake pipe charging,
(5)graduated brake application and release,
(6)self-diagnostic train management, and
(7)potential increase in the total number of cars per train, an increase in average train velocity will likely result. For instance, the BAH report cites a Union Pacific Railroad
(UP)estimate that, for each 1 mph (or 5 percent) improvement in its overall system average velocity, UP saves 250 locomotives and 5,000 freight cars that would otherwise be required. At a cost of $2 million per locomotive and an average of $50,000 per freight car, this savings represents $750 million for UP alone. The UP fleet is representative of the industry's Class I railroads and comprises approximately one-third of all Class I railroad owned locomotives and one-fourth of all Class I railroad owned freight cars. Assuming that other Class I railroads have similar equipment utilization rates, it could be possible to extrapolate the $750 million in UP savings to the other Class I railroads, which could realize $2.5 billion in savings from a 1 mph increase in network velocity. Any savings realized would increase accordingly if there are speed gains of greater than 1 mph. However, the unit and unit-like trains covered by this analysis only cover a portion of the industry-wide train total. Given that unit coal trains, which are among the slowest moving trains on any given network, could experience velocity gains significantly greater than 1 mph and that all Class I railroads transport a significant amount of coal on their main lines, this estimate is likely a lower bound estimate. Thus, due to the number and variability of factors that would determine the actual level of savings realized due to network velocity improvements, such benefits are not included in the total benefits. The expected benefits of ECP braking technology appear to justify the investment, provided that the conversion is focused first on the high-mileage, unit and unit-like train services that would most benefit from its use. As presented in the following tables, FRA estimates that the present value
(PV)of the total 20-year benefits and costs which the industry would be expected to incur if it elected to comply with the alternative requirements proposed in this rule is $3.2 billion and $1.5 billion, respectively: Total Twenty-Year Benefits and Discounted Benefits Benefits 3% Discount 7% Discount Regulatory Relief $2,485,337,443 $1,726,315,620 $1,112,844,715 Rail Accident Risk Reduction 228,105,462 158,224,002 101,783,196 Highway-Rail Accident Risk Reduction 14,036,032 9,736,101 6,263,034 Fuel Savings 2,745,000,000 1,904,052,986 1,224,849,552 Wheel Replacement Savings 1,601,250,000 714,495,572 714,495,572 Total Benefits 7,073,728,937 4,909,026,194 3,160,236,069 Total Twenty-Year Costs and Discounted Costs Costs 3% Discount 7% Discount Freight Car Costs $1,455,272,000 $1,241,376,534 $1,022,122,156 Locomotive Costs 485,520,000 414,158,408 341,008,931 Employee Training 196,425,710 161,710,759 96,152,211 Total Costs 2,137,217,710 1,817,245,701 1,459,283,298 B. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive Order 13272 require a review of proposed and final rules to assess their impact on small entities. FRA has prepared and placed in the docket an Analysis of Impact on Small Entities
(AISE)that assesses the small entity impact of this proposed rule. Document inspection and copying facilities are available at the Department of Transportation Central Docket Management Facility located in Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is also available on the DOT Docket Management System Web site at *http://dms.dot.gov* until September 28, 2007, and the Federal eRulemaking Portal at *http://www.regulations.gov* after September 28, 2007. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. FRA-2006-26175. “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration
(SBA)has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a railroad business “line-haul operation” that has fewer than 1,500 employees and a “switching and terminal” establishment with fewer than 500 employees. SBA's “size standards” may be altered by Federal agencies, in consultation with SBA and in conjunction with public comment. Pursuant to that authority FRA has published a final statement of agency policy that formally establishes “small entities” as being railroads that meet the line-haulage revenue requirements of a Class III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue requirements are $20 million or less in annual operating revenue. The $20 million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment (49 CFR part 1201). The same dollar limit on revenues is established to determine whether a railroad, shipper, or contractor is a small entity. FRA uses this alternative definition of “small entity” for this rulemaking. Implementation and use of ECP brake technology under the proposed rules is voluntary. In addition, the impacts for those who may choose to implement and use ECP brake technology and comply with the proposed rules are primarily a result of the conversion to ECP brake technology. These costs include locomotive crew and inspector training, freight car conversion costs, and locomotive conversion costs. The AISE developed in connection with this NPRM concludes that this NPRM will only impact four Class I railroads and therefore should not have any economic impact on small entities. Smaller railroads that carry unit and unit-like commodities often operate and transport trains owned by other parties over relatively short distances and turn them over to larger systems that, in turn, transport those trains relatively long distances to their ultimate destination or to another small railroad for final delivery. The FRA recognizes that small entities may, in some cases, be involved in specific route segments for trains that originate or terminate on a Class I railroad. In these cases, the cars involved are more likely to be owned or provided by shippers or a Class I railroad. Mutual support arrangements and shared power practices are likely to ensure that the smaller railroad will not require ECP brake equipped trains for this service. Further, FRA anticipates that ECP brake equipped train operations will be limited to long hauls of commodities such as intermodal, coal, ore, non-metallic minerals, motor vehicle parts, and grain. Since small railroads do not handle such commodities, they will not likely receive large blocks of cars equipped with ECP brakes from Class I railroads. Since FRA does not expect small railroads to convert to ECP brake technology within the period of the analysis, this proposal is not anticipated to affect any small entities. Thus, FRA certifies that this NPRM is not expected to have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act or Executive Order 13272. C. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget
(OMB)for review and approval in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows: BILLING CODE 4910-06-P EP04SE07.007 EP04SE07.008 EP04SE07.009 BILLING CODE 4910-06-C All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-493-6292 or Ms. Gina Christodoulou at 202-493-6139. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590, or Ms. Gina Christodoulou, Office of Support Systems Staff, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590. Alternatively, comments may be transmitted via facsimile to
(202)493-6230 or
(202)493-6170, or via e-mail to Mr. Brogan at *robert.brogan@dot.gov* , or to Ms. Christodoulou at *gina.christodoulou@dot.gov* . OMB is required to make a decision concerning the collection of information requirements contained in this NPRM between 30 and 60 days after publication of this document in the **Federal Register** . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of a final rule. The OMB control number, when assigned, will be announced by separate notice in the **Federal Register** . D. Federalism Implications Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the proposed regulation. Where a regulation has Federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. This proposed rule has preemptive effect. Subject to a limited exception for essentially local safety or security hazards, its requirements will establish a uniform Federal safety standard that must be met, and state requirements covering the same subject are displaced, whether those standards are in the form of state statutes, regulations, local ordinances, or other forms of state law, including state common law. Section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. This is consistent with past practice at FRA, and within the Department of Transportation. FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. This proposed rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. FRA concludes that this proposed rule will not impose any direct compliance costs on State and local governments and has no federalism implications, other than the preemption of state laws covering the subject matter of this final rule, which occurs by operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or order. Elements of the final rule dealing with safety appliances affect an area of safety that has been pervasively regulated at the Federal level for over a century. Accordingly, the final rule amendments in that area will involve no impacts on Federal relationships. E. Environmental Impact FRA has evaluated this final rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this proposed rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:
(c)Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. * * * The following classes of FRA actions are categorically excluded: * * *
(20)Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation. In accordance with section 4(c) and
(e)of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed rule is not a major Federal action significantly affecting the quality of the human environment. F. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120,700,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The proposed rule, if enacted, may result in the expenditure, in the aggregate, of $120,700,000 or more in any one year. However, those expenses are not mandated and would only be incurred by the private sector if it wishes to take advantage of the regulatory relief provided by the proposed rule. Although the preparation of such a statement is not required, the analytical requirements under Executive Order 12866 are similar to the analytical requirements under the Unfunded Mandates Reform Act of 1995 and, thus, the same analysis complies with both analytical requirements. G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the **Federal Register** ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and
(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this final rule in accordance with Executive Order 13211. FRA has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant energy action” within the meaning of Executive Order 13211. H. Privacy Act FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov. * List of Subjects in 49 CFR Part 232 Electronically controlled pneumatic brakes, Incorporation by reference, Penalties, Railroad power brakes, Railroad safety, Two-way end-of-train devices. The Proposal In consideration of the foregoing, FRA proposes to amend chapter II, subtitle B of title 49, Code of Federal Regulations as follows: 1. The authority citation for Part 232 continues to read as follows: Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49. 2. Section 232.5 is amended by adding definitions for ``car control device (CCD)'', ``dual mode ECP brake system'', ``ECP'', `` ECP brake mode'', ``ECP brake system'', ``ECP-EOT device'', ``emulator CCD'', ``overlay ECP brake system'', ``stand-alone CCD'', ``stand-alone ECP brake system'', ``switch mode'', and ``train line cable''; and by revising the definitions for ``train, unit or train, cycle'' and ``yard limits'' as follows in alphabetical order: § 232.5 Definitions. *Car control device (CCD)* means an electronic control device that replaces the function of the conventional pneumatic service and emergency portions of a car's air brake control valve during electronic braking and provides for electronically controlled service and emergency brake applications. *Dual mode ECP brake system* means an ECP brake system that is equipped with either an emulator CCD or an overlay ECP brake system on each car which can be operated in either ECP brake mode or conventional pneumatic brake mode. *ECP* means ``electronically controlled pneumatic'' when applied to a brake or brakes. *ECP brake mode* means the power braking system on a car or an entire train that is actuated by compressed air, controlled by electronic signals originating at the locomotive or an ECP-EOT for service and emergency applications, and whose brake pipe is used to provide a constant supply of compressed air to the reservoirs on each car but does not convey service braking signals to the car. *ECP brake system* means a train power braking system actuated by compressed air and controlled by electronic signals from the locomotive or an ECP-EOT to the cars in the consist for service and emergency applications in which the brake pipe is used to provide a constant supply of air to the reservoirs on each car but does not convey braking signals to the car. ECP brake systems include dual mode and stand-alone ECP brake systems. *ECP-EOT device* means the end-of-train device for ECP brake systems that is physically the last network node in the train, pneumatically and electrically connected at the end of the train to the train line cable operating with an ECP brake system. It shall transmit a status message (EOT Beacon) at least once per second and contain a means of communicating with the HEU, a brake pipe pressure transducer, and a battery that charges off the train line cable. *Emulator CCD* means a CCD that is capable of optionally emulating the function of the pneumatic control valve while in a conventionally braked train. *Overlay ECP brake system* means a brake system that has both conventional pneumatic brake valves and ECP brake components, making it capable of operating as either a conventional pneumatic brake system or an ECP brake system, which can continue to operate as a conventional pneumatic brake system using conventional control valves when its ECP brake functions fail or are placed in cutout mode. *Stand-alone CCD* means a CCD that can operate properly only in a train operating in ECP brake mode and cannot operate in a conventional pneumatically braked train. *Stand-alone ECP brake system* means a brake system equipped with a CCD that can only operate the brakes on the car properly in ECP brake mode. *Switch Mode* means a mode of a train equipped with an ECP brake system that provides a means to allow operation of that train when the train's ECP—EOT device is not communicating with the lead locomotive's HEU or when the train is separated during road switching operations. Many of the ECP brake system's fault detection/response procedures are suspended during Switch Mode. A train operating in Switch Mode shall not exceed 20 miles per hour. *Train line cable* is a two-conductor electric wire spanning the train and carrying both electrical power to operate all CCDs and ECP—EOT devices and communications network signals. *Train, unit or train, cycle* means a train that, except for the changing of locomotive power ore for the removal or replacement of defective equipment, remains coupled as a consist and operates in a continuous loop or continuous loops without a destination. *Yard limits* means a system of tracks, not including main tracks and sidings, used for classifying cars, making-up and inspecting trains, or storing cars and equipment. 3. Part 232 is amended by adding a new subpart G to read as follows: Subpart G—Electronically Controlled Pneumatic
(ECP)Braking Systems Sec. 232.601 Scope. 232.602 Applicability. 232.603 Design, interoperability, and configuration management requirements. 232.605 Training requirements. 232.607 Inspection and testing requirements. 232.609 Handling of defective equipment with ECP brake systems. 232.611 Periodic maintenance. 232.613 End-of-train devices. Subpart G—Electronically Controlled Pneumatic
(ECP)Braking Systems § 232.601 Scope. This subpart contains specific requirements applicable to freight trains and freight cars equipped with ECP brake systems. This subpart also contains specific exceptions from various requirements contained in this part for freight trains and freight cars equipped with ECP brake systems. § 232.602 Applicability. This subpart applies to all railroads that operate a freight car or freight train governed by this part and equipped with an ECP brake system. Unless specifically excepted or modified in this section, all of the other requirements contained in this part are applicable to a freight car or freight train equipped with an ECP brake system. § 232.603 Design, interoperability, and configuration management requirements.
(a)*General.* A freight car or freight train equipped with an ECP brake system shall, at a minimum, meet the Association of American Railroads
(AAR)standards contained in the AAR Manual of Standards and Recommended Practices related to ECP brake systems listed below; an alternate standard approved by FRA pursuant to § 232.17; or a modified standard approved in accordance with the provisions contained in paragraph
(f)of this section. Copies of the standards identified in this section may be obtained from the Association of American Railroads, 50 F Street, NW., Washington, DC 20001. The applicable standards, which are incorporated into this regulation by reference, include the following:
(1)AAR S-4200, ``ECP Cable-Based Brake Systems—Performance Requirements'' (2004);
(2)AAR S-4210, ``ECP Cable-Based Brake System Cable, Connectors, and Junction Boxes—Performance Specifications'' (2002);
(3)AAR S-4220, ``ECP Cable-Based Brake DC Power Supply—Performance Specification'' (2002);
(4)AAR S-4230, ``Intratrain Communication
(ITC)Specification for Cable-Based Freight Train Control System'' (2004);
(5)AAR S-4250, ``Performance Requirements for ITC Controlled Cable-Based Distributed Power Systems'' (2004); and
(6)AAR S-4260, ``ECP Brake and Wire Distributed Power Interoperability Test Procedures'' (2007);
(b)*Approval.* A freight train or freight car equipped with an ECP brake system and equipment covered by the AAR standards incorporated by reference in this section shall not be used without conditional or final approval by AAR in accordance with AAR Standard S-4240, ``ECP Brake Equipment—Approval Procedures'' (2007).
(c)*Configuration management.*
(1)ECP brake systems shall meet the configuration management plan requirements contained in:
(i)An industry recognized standard approved by FRA, or
(ii)A configuration management plan submitted to and approved by FRA.
(2)To receive approval in accordance with paragraph (c)(1)(ii) of this section, a configuration management plan must:
(i)Be submitted in accordance with * 232.17;
(ii)Be structured in accordance with accepted configuration management standards; and
(iii)Define all of the purposes, procedures, organizational responsibilities, and tools to be used for ECP brake system hardware and software configuration management including: The purpose and scope of the application; control activities to be performed; responsibilities and authorities for accomplishing the activities; implementation schedules; tools and resources for executing the plan; and periodic updating of the plan to maintain currency.
(3)A railroad operating a freight train or freight car equipped with ECP brake systems shall adopt and comply with the configuration management plan required under paragraphs (c)(1) and (c)(2) of this section.
(d)*Exceptions.*
(1)A freight car or freight train equipped with a stand-alone ECP brake system shall be excepted from the requirement in § 232.103(l) referencing AAR Standard S-469-47, “Performance Specification for Freight Brakes.”
(2)The provisions addressing the introduction of new brake system technology contained in subpart F of this part are not applicable to a freight car or freight train equipped with an ECP brake system approved by AAR in accordance with paragraph
(b)of this section, conditionally or otherwise, as of the effective date of this rule.
(e)*New technology.* Upon written request supported by suitable justification, the Associate Administrator may except from the requirements of subpart F of this part the testing of new ECP brake technology, demonstration of new ECP brake technology, or both, where testing or demonstration, or both, will be conducted pursuant to an FRA-recognized industry standard and FRA is invited to monitor the testing or demonstration, or both. FRA's Associate Administrator may revoke any such exception in writing after providing an opportunity for response by the affected parties.
(f)*Modification of standards.* The AAR or other authorized representative of the railroad industry may seek modification of the industry standards identified in paragraphs
(a)and
(b)of this section. The request for modification will be handled and shall be submitted in accordance with the modification procedures contained in § 232.307. § 232.605 Training requirements.
(a)*Inspection, testing and maintenance.* A railroad that operates a freight car or freight train equipped with an ECP brake system and each contractor that performs inspection, testing, or maintenance on a freight car or freight train equipped with an ECP brake system shall adopt and comply with a training, qualification, and designation program for its employees that perform inspection, testing or maintenance of ECP brake systems. The training program required by this section shall meet the requirements in *§ 232.203(a), (b), (e), and (f).
(b)*Operating rules.* A railroad operating a freight train or freight car equipped with an ECP brake system shall amend its operating rules to govern safe train handling procedures related to ECP brake systems and equipment under all operating conditions, which shall be tailored to the specific equipment and territory of the railroad.
(c)*Locomotive engineers.* A railroad operating a freight car or freight train equipped with an ECP brake system shall adopt and comply with specific knowledge, skill, and ability criteria to ensure that its locomotive engineers are fully trained with the operating rules governing safe train handling procedures related to ECP brake systems and equipment under all operating conditions, which shall be tailored to the specific equipment and territory of the railroad. The railroad shall incorporate the specific knowledge, skill, and ability criteria into its locomotive engineer certification program pursuant to part 240 of this chapter. § 232.607 Inspection and testing requirements.
(a)*Initial terminal.* A freight train operating in ECP brake mode shall receive a Class I brake test as described in § 232.205(c) by a qualified mechanical inspector
(QMI)and shall receive a pre-departure freight inspection pursuant to part 215 of this chapter by an inspector designated under § 215.11 of this chapter at its point of origin (initial terminal).
(b)*Distance.*
(1)Except for a unit or cycle train, a train operating in ECP brake mode shall not operate a distance that exceeds its destination or 3,500 miles, whichever is less, unless another inspection meeting the requirements of paragraph
(a)of this section is performed on the train.
(2)A unit or cycle train operating in ECP brake mode shall receive the inspections required in paragraph
(a)of this section at least every 3,500 miles.
(3)The distance that any car in a train has traveled since receiving a Class I brake test by a qualified mechanical inspector will determine the distance that the train has traveled.
(c)*Trains off air.* A freight train operating in ECP brake mode shall receive a Class I brake test as described in § 232.205(c) by a qualified person at a location where the train is off air for a period of more than 24 hours.
(d)*Cars added en route.*
(1)Each car equipped with an ECP brake system that is added to a train operating in ECP brake mode shall receive a Class I brake test as described in § 232.205(c) by a qualified person, unless all of the following are met:
(i)The car has received a Class I brake test by a qualified mechanical inspector within the last 3,500 miles;
(ii)Information identified in § 232.205(e) relating to the performance of the previously received Class I brake test is provided to the train crew;
(iii)The car has not been off air for more than 24 hours; and
(iv)A visual inspection of the car's brake systems is conducted to ensure that the brake equipment is intact and properly secured. This may be accomplished as part of the inspection required under § 215.13 of this chapter and may be conducted while the car is off air.
(2)Each car and each solid block of cars not equipped with an ECP brake system that is added to a train operating in ECP brake mode shall receive a visual inspection to ensure it is properly placed in the train and safe to operate and shall be moved and tagged in accordance with the provisions contained in § 232.15.
(e)*Class III brake tests.* A freight train operating in ECP brake mode shall receive a Class III brake test as described in § 232.211(b), (c), and
(d)at the location where the configuration of the train is changed, including:
(1)Where a locomotive or caboose is changed;
(2)Where a car or solid block of cars is added to the train;
(3)Where a car or solid block of cars is removed from the train; and
(4)Whenever the continuity of the brake pipe or electrical connections is broken or interrupted with the train consist otherwise remaining unchanged.
(f)*Modification to existing brake tests.*
(1)In lieu of the specific brake pipe service reductions and increases required in subpart C of this part, an electronic signal that provides an equivalent application and release of the brakes shall be utilized when conducting any required inspection or test on a freight car or freight train equipped with an ECP brake system and operating in ECP brake mode.
(2)In lieu of the specific minimum piston travel ranges contained in § 232.205(c)(5), the piston travel on freight cars equipped with ECP brake systems shall be within the piston travel limits stenciled or marked on the car or badge plate consistent with the manufacturers recommended limits, if so stenciled or marked.
(g)*Exceptions.* A freight car or a freight train shall be exempt from the requirements contained in §§ 232.205(a) and (b), 232.207, 232.209, and 232.211(a) when it is equipped with an ECP brake system and operating in ECP brake mode. § 232.609 Handling of defective equipment with ECP brake systems.
(a)Ninety-five percent of the cars in a train operating in ECP brake mode shall have effective and operative brakes prior to use or departure from the train's initial terminal or any location where a Class I brake test is required to be performed on the entire train by a qualified mechanical inspector pursuant to § 232.607.
(b)A freight car equipped with an ECP brake system that is known to have arrived with ineffective or inoperative brakes at the location of a train's initial terminal or at a location where a Class I brake test is required under § 232.607(b) shall not depart that location with ineffective or inoperative brakes in a train operating in ECP brake mode unless:
(i)The location does not have the ability to conduct the necessary repairs;
(ii)The car is hauled only for the purpose of repair to the nearest forward location where the necessary repairs can be performed consistent with the guidance contained in § 232.15(f);
(iii)The car is not being placed for loading or unloading while being moved for repair unless unloading is necessary for the safe repair of the car; and
(iv)The car is properly tagged in accordance with § 232.15(b).
(c)A freight car equipped with only conventional pneumatic brakes shall not move in a freight train operating in ECP brake mode unless it would otherwise have effective and operative brakes if it were part of a conventional pneumatic brake equipped train or could be moved from the location in defective condition under the provisions contained in § 232.15 and is tagged in accordance with § 232.15(b).
(d)A freight train operating in ECP brake mode shall not move if less than 85 percent of the cars in the train have operative and effective brakes. However, after experiencing a penalty stop for having less than 85 percent operative and effective brakes, a freight train operating in ECP brake mode may be moved if all of the following are met:
(1)The train is visually inspected;
(2)Appropriate measures are taken to ensure that the train is safely operated to the location where necessary repairs or changes to the consist can be made;
(3)A qualified person determines that it is safe to move the train; and
(4)The train is moved in ECP brake Switch Mode to the nearest forward location where necessary repairs or changes to the consist can be made.
(e)A freight car or locomotive equipped with an ECP brake system that is found with inoperative or ineffective brakes for the first time during the performance of a Class I brake test or while en route may be used or hauled without civil penalty liability under this part to its destination, not to exceed 3,500 miles; provided, all applicable provisions of this section are met and the defective car or locomotive is hauled in a train operating in ECP brake mode.
(f)A freight car equipped with an ECP brake system that is part of a train operating in ECP brake mode that is found with a defective non-brake safety appliance may be used or hauled without civil penalty under this part to the nearest forward location where the necessary repairs can be performed consistent with the guidance contained in § 232.15(f).
(g)A train operating with conventional pneumatic brakes shall not operate with freight cars equipped with stand-alone ECP brake systems unless:
(1)The train has at least the minimum percentage of operative brakes required by paragraph
(h)of this section when at an initial terminal or paragraph
(d)of this section when en route; and
(2)The stand-alone ECP brake equipped cars are:
(i)Moved for the purpose of delivery to a railroad receiving the equipment or to a location for placement in a train operating in ECP brake mode or being moved for repair to the nearest available location where the necessary repairs can be made in accordance with §§ 232.15(a)(7) and (f);
(ii)Tagged in accordance with § 232.15(b); and
(iii)Placed in the train in accordance with § 232.15(e).
(h)A train equipped and operated with conventional pneumatic brakes may depart an initial terminal with freight cars that are equipped with stand-alone ECP brake systems provided all of the following are met:
(1)The train has 100 percent effective and operative brakes on all cars equipped with conventional pneumatic brake systems;
(2)The train has at least 95 percent effective and operative brakes when including the freight cars equipped with stand-alone ECP brake systems; and
(3)The requirements contained in paragraph
(g)of this section are met.
(i)*Tagging of defective equipment.* A freight car equipped with an ECP brake system that is found with ineffective or inoperative brakes will be considered electronically tagged under § 232.15(b)(1) and (b)(5) if the car is used or hauled in a train operating in ECP brake mode and the ECP brake system meets the following:
(1)The ECP brake system is able to display information in the cab of the lead locomotive regarding the location and identification of the car with defective brakes;
(2)The information is stored or downloaded, is secure, and is accessible to FRA and appropriate operating and inspection personnel; and
(3)An electronic or written record of the stored or downloaded information is retained and maintained in accordance with § 232.15(b)(3).
(j)*Procedures for handling ECP brake system repairs and designation of repair locations.*
(1)Each railroad operating freight cars equipped with ECP brake systems shall adopt and comply with specific procedures developed in accordance with the requirements related to the movement of defective equipment contained in this subpart. These procedures shall be made available to FRA upon request.
(2)Each railroad operating freight trains in ECP brake mode shall submit to FRA's Associate Administrator for Safety a list of locations on its system where ECP brake system repairs will be performed. A railroad shall notify FRA's Associate Administrator for Safety in writing 30 days prior to any change in the locations designated for such repairs. A sufficient number of locations shall be identified to ensure compliance with the requirements related to the handling of defective equipment contained in this part.
(k)*Exceptions:* All freight cars and trains that are specifically identified, operated, and handled in accordance with this section are excepted from the movement of defective equipment requirements contained in § 232.15(a)(2), (a)(5) through (a)(8), and 232.103(d) and (e). § 232.611 Periodic maintenance.
(a)In addition to the maintenance requirements contained in § 232.303(b) through (d), a freight car equipped with an ECP brake system shall be inspected before being released from a shop or repair track to ensure the proper and safe condition of the following:
(1)ECP brake system wiring and brackets;
(2)ECP brake system electrical connections;
(3)Electrical grounds and impedance; and
(4)Car mounted ECP brake system components.
(b)Prior to placing a freight car equipped with an ECP brake system in revenue service, a railroad or a duly authorized representative of the railroad industry shall submit a procedure for conducting periodic single car tests to FRA for its approval pursuant to the special approval procedures contained in § 232.17.
(c)Except as provided in § 232.303(e), a single car air brake test conducted in accordance with the procedure submitted and approved in accordance with paragraph
(b)of this section shall be performed on a freight car equipped with an ECP brake system whenever any of the events identified in § 232.305(e) occur, except for those paragraphs identified in paragraph
(f)of this section.
(d)A single car air brake test conducted in accordance with the procedure submitted and approved in accordance with paragraph
(b)of this section shall be performed on each freight car retrofitted with a newly installed ECP brake system prior to placing or using the car in revenue service.
(e)*Modification of single car test standard.* A railroad or a duly authorized representative of the railroad industry may seek modification of the single car test standard approved in accordance with paragraph
(b)of this section. The request for modification will be handled and shall be submitted in accordance with the modification procedures contained in § 232.307.
(f)*Exception.* A freight car equipped with a stand-alone ECP brake system is excepted from the single car test requirements contained in § 232.305(b)(2) and (f). § 232.613 End-of-train devices.
(a)Prior to operating a freight train in ECP brake mode, a railroad, an ECP-EOT device manufacturer, or a duly authorized representative of the railroad industry may submit design, testing, and calibration standards related to ECP-EOT devices used on freight trains operating in ECP brake mode to FRA for its approval pursuant to the special approval procedures contained in § 232.17. An ECP-EOT shall, at a minimum, serve as the final node on the ECP brake circuit, provide a cable terminal circuit, and monitor, confirm, and report train, brake pipe, and train line cable continuity, cable voltage, brake pipe pressure, and the status of the ECP-EOT device battery charge.
(b)A railroad shall adopt and comply with the design, testing, and calibration standards approved pursuant to paragraph
(a)of this section.
(c)A railroad shall not move or use a freight train equipped with an ECP brake system unless that train is equipped with a functioning ECP-EOT device approved pursuant to paragraph
(a)of this section and the railroad complies with paragraph
(b)of this section. The ECP-EOT device must be properly connected to the network and to the train line cable at the end of the train.
(d)*Exception.* A freight train operating in ECP brake mode is excepted from the end-of-train device requirements contained in subpart E of this part, provided that it is equipped with an ECP-EOT device complying with this section. Issued in Washington, DC, on August 23, 2007. Joseph H. Boardman, Federal Railroad Administrator. [FR Doc. 07-4297 Filed 8-30-07; 8:45 am]
Connectionstraces to 20
23 references not yet in our index
  • 50 CFR 679
  • Pub. L. 109-241
  • Pub. L. 109-479
  • Pub. L. 108-447
  • 118 Stat. 110
  • 49 CFR 232.407(g)
  • 49 CFR 215.9
  • 49 CFR 1.49(v)
  • 49 CFR 232
  • 49 CFR 238
  • 49 CFR 240
  • 49 CFR 215.11
  • 49 CFR 232.205(b)
  • 49 USC 20403
  • 49 CFR 232.15
  • 49 CFR 232.103(e)
  • 49 CFR 232.103(d)
  • 49 CFR 221
  • Pub. L. 102-365
  • 49 CFR 1201
  • Pub. L. 104-4
  • 49 USC 20102-20103
  • 49 CFR 1.49
Citation graph
cites case law
Notices
Final rule
U.S.C.§ 1801
U.S.C.§ 1853
U.S.C.§ 1852
Fed. Reg.Notices
U.S.C.§ 773
Fed. Reg.Notices
U.S.C.§ 20303
U.S.C.§ 20306
U.S.C.§ 20302
Cite50 CFR 679
Pub. L.Pub. L. 109-241
Pub. L.Pub. L. 109-479
Cites 43 · showing 12Cited by 0 across 0 sources
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