Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30711 

Boulevard, Chicago, Illinois 60604, 

(312) 886–6524, rau.matthew@epa.gov. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: May 14, 2010. 

Walter W. Kovalick, 

Acting Regional Administrator, Region 5. 

PART 52—[AMENDED] 

■ Accordingly, the amendment to 40 

CFR 52.2570 published in the Federal 

Register on April 8, 2010 (75 FR 17865) 

on pages 17867–17868 is withdrawn as 

of June 2, 2010. 

[FR Doc. 2010–13175 Filed 6–1–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Parts 1002, 1011, 1152, and 

1180 

[STB Ex Parte No. 685] 

Removal of Delegations of Authority to 

Secretary 

AGENCY: Surface Transportation Board, 

DOT. 

ACTION: Correcting amendments. 

SUMMARY: The Surface Transportation 

Board (Board or STB) published final 

rules in this proceeding on October 15, 

2009, in the Federal Register. The rule 

amended STB regulations by 

eliminating the Secretary of the Board 

and reassigning the delegations of 

authority from the Secretary to other 

Offices of the Board. As published, the 

final regulations contained errors where 

information was inadvertently added, 

deleted, or duplicated. This document 

sets forth corrections to the final 

regulations to eliminate confusion in 

interpretation of the regulations. 

DATES: Effective on June 2, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia T. Brown at (202) 245–0350. 

[Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339.] 

SUPPLEMENTARY INFORMATION: The 

regulations at 49 CFR 1002.1, 1011.7, 

1152.21, 1152.27, and 1180.4, include 

erroneous sections that should be 

replaced with the amendments set forth 

in this document. The Surface 

Transportation Board (Board or STB) 

published final rules in this proceeding 

on October 15, 2009, in the Federal 

Register, at 74 FR 52900. 

List of Subjects 

49 CFR Part 1002 

Administrative practice and 

procedure, Common carriers, and 

Freedom of information. 

49 CFR Part 1011 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), and 

Organization and functions 

(Government agencies). 

49 CFR Part 1152 

Administrative practice and 

procedure, Railroads, Reporting and 

recordkeeping requirements, and 

Uniform system of accounts. 

49 CFR Part 1180 

Administrative practice and 

procedure, Railroads, and Reporting and 

recordkeeping requirements. 

Dated: May 26, 2010. 

Andrea Pope-Matheson, 

Clearance Clerk. 

■ Accordingly, 49 CFR parts 1002, 1011, 

1152, and 1180 are corrected by making 

the following correcting amendments: 

PART 1002—FEES 

■ 1. The authority citation for part 1002 

continues to read as follows: 

Authority: 5 U.S.C. 552(a)(4)(A) and 553; 

31 U.S.C. 9701; and 49 U.S.C. 721. Section 

1002.1(g)(11) also issued under 5 U.S.C. 5514 

and 31 U.S.C. 3717. 

■ 2. Revise § 1002.1(f)(1) to read as 

follows: 

§ 1002.1 Fees for records search, review, 

copying, certification, and related services. 

* * * * * 

(f) The fee for search and copying 

services requiring computer processing 

are as follows: 

(1) A fee of $70.00 per hour for 

professional staff time will be charged 

when it is required to fulfill a request 

for computer data. 

* * * * * 

PART 1011—BOARD ORGANIZATION; 

DELEGATIONS OF AUTHORITY 

■ 3. The authority citation for part 1011 

continues to read as follows: 

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 

U.S.C. 701, 721, 11123, 11124, 11144, 14122, 

and 15722. 

■ 4. Revise § 1011.7 to read as follows: 

§ 1011.7 Delegations of authority by the 

Board to specific offices of the Board. 

(a) Office of Proceedings. (1) The 

Director of the Office of Proceedings is 

delegated the following authority: 

(i) Whether (in consultation with 

involved Offices) to waive filing fees set 

forth at 49 CFR 1002.2(f). 

(ii) To issue, on written request, 

informal opinions and interpretations 

(exclusive of informal opinions and 

interpretations on carrier tariff 

provisions), which are not binding on 

the Board. In issuing informal opinions 

or interpretations, the Director of the 

Office of Proceedings shall consult with 

the Directors of the appropriate Board 

offices. Such requests must be directed 

to the Director of the Office of 

Proceedings, Surface Transportation 

Board, Washington, DC 20423–0001. 

Authority to issue informal opinions 

and interpretations on carrier tariff 

provisions is delegated at paragraph 

(b)(2) of this section to the Office of 

Public Assistance, Governmental 

Affairs, and Compliance. 

(2) In addition to the authority 

delegated at 49 CFR 1011.6(c)(3), (d), (g), 

and (h), the Director of the Office of 

Proceedings shall have authority 

initially to determine the following: 

(i) Whether to designate abandonment 

proceedings for oral hearings on request. 

(ii) Whether offers of financial 

assistance satisfy the statutory standards 

of 49 U.S.C. 10904(d) for purposes of 

negotiations or, in exemption 

proceedings, for purposes of partial 

revocation and negotiations. 

(iii) Whether: 

(A) To impose, modify, or remove 

environmental or historic preservation 

conditions; and 

(B) In abandonment proceedings, to 

impose public use conditions under 49 

U.S.C. 10905 and the implementing 

regulations at 49 CFR 1152.28. 

(iv) In abandonment proceedings, 

when a request for interim trail use/rail 

banking is filed under 49 CFR 1152.29, 

to determine whether the National 

Trails System Act, 16 U.S.C. 1247(d), is 

applicable and, where appropriate, to 

issue Certificates of Interim Trail Use or 

Abandonment (in application 

proceedings) or Notices of Interim Trail 

Use or Abandonment (in exemption 

proceedings). 

(v) In any abandonment proceeding 

where interim trail use/rail banking is 

an issue, to make such findings and 

issue decisions as may be necessary for 

the orderly administration of the 

National Trails System Act, 16 U.S.C. 

1247(d). 

(vi) Whether to institute requested 

declaratory order proceedings under 5 

U.S.C. 554(e). 

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30712 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

(vii) To issue decisions, after 60 days’ 

notice by any person discontinuing a 

subsidy established under 49 U.S.C. 

10904 and at the railroad’s request: 

(A) In application proceedings, 

immediately issuing decisions 

authorizing abandonment or 

discontinuance; and 

(B) In exemption proceedings, 

immediately vacating the decision that 

postponed the effective date of the 

exemption. 

(viii) In proceedings under the Feeder 

Railroad Development Program under 

49 U.S.C. 10907 and the implementing 

regulations at 49 CFR part 1151: 

(A) Whether to accept or reject 

primary applications under 49 CFR 

1151.2(b); competing applications under 

section 1151.2(c); and incomplete 

applications under 49 CFR 1151.2(d). 

(B) Whether to grant waivers from 

specific provisions of 49 CFR part 1151. 

(ix) In exemption proceedings subject 

to environmental or historic 

preservation reporting requirements, to 

issue a decision, under 49 CFR 

1105.10(g), making a finding of no 

significant impact where no 

environmental or historic preservation 

issues have been raised by any party or 

identified by the Board’s Section of 

Environmental Analysis. 

(x) Whether to issue notices of 

exemption under 49 U.S.C. 10502: 

(A) For acquisition, lease, and 

operation transactions under 49 U.S.C. 

10901 and 10902 and the implementing 

regulations at 49 CFR part 1150, 

subparts D and E; 

(B) For connecting track constructions 

under 49 U.S.C. 10901 and the 

implementing regulations at 49 CFR 

1150.36; 

(C) For rail transactions under 49 

U.S.C. 11323 and the implementing 

regulations at 49 CFR 1180.2(d); and 

(D) For abandonments and 

discontinuances under 49 U.S.C. 10903 

and the implementing regulations at 49 

CFR 1152.50. 

(xi) When an application or a petition 

for exemption for abandonment is filed, 

the Director will issue a notice of that 

filing pursuant to 49 CFR 1152.24(e)(2) 

and 49 CFR 1152.60, respectively. 

(xii) Whether to issue a notice of 

exemption under 49 U.S.C. 13541 for a 

transaction under 49 U.S.C. 14303 

within a motor passenger carrier 

corporate family that does not result in 

adverse changes in service levels, 

significant operational changes, or a 

change in the competitive balance with 

motor passenger carriers outside the 

corporate family. 

(xiii) Whether to issue rail modified 

certificates of public convenience and 

necessity under 49 CFR part 1150, 

subpart C. 

(xiv) Whether to waive the regulations 

at 49 CFR part 1152, subpart C, on 

appropriate petition. 

(xv) To reject applications, petitions 

for exemption, and verified notices 

(filed in class exemption proceedings) 

for noncompliance with the 

environmental rules at 49 CFR part 

1105. 

(xvi) To reject applications by BNSF 

Railway Company to abandon rail lines 

in North Dakota exceeding the 350-mile 

cap of section 402 of Public Law 97– 

102, 95 Stat. 1465 (1981), as amended 

by The Department of Transportation 

and Related Agencies Appropriations 

Act, 1992, Public Law 102–143, section 

343 (Oct. 28, 1991). 

(b) Office of Public Assistance, 

Governmental Affairs, and Compliance. 

The Office of Public Assistance, 

Governmental Affairs, and Compliance 

is delegated the authority to: 

(1) Reject tariffs and railroad 

transportation contract summaries filed 

with the Board that violate applicable 

statutes, rules, or regulations. Any 

rejection of a tariff or contract summary 

may be by letter signed by or for the 

Director, Office of Public Assistance, 

Governmental Affairs, and Compliance. 

(2) Issue, on written request, informal 

opinions and interpretations on carrier 

tariff provisions, which are not binding 

on the Board. 

(3) Grant or withhold special tariff 

authority granting relief from the 

provisions of 49 CFR part 1312. Any 

grant or withholding of such relief may 

be by letter signed by or for the Director, 

Office of Public Assistance, 

Governmental Affairs, and Compliance. 

(4) Resolve any disputes that may 

arise concerning the applicability of 

motor common carrier rates under 49 

U.S.C. 13710(a)(2). 

(5) Issue orders by the Director in an 

emergency under 49 U.S.C. 11123 and 

11124 if no Board Member is reasonably 

available. 

PART 1152—ABANDONMENT AND 

DISCONTINUANCE OF RAIL LINES 

AND RAIL TRANSPORTATION UNDER 

49 U.S.C. 10903 

■ 5. The authority citation for part 1152 

continues to read as follows: 

Authority: 11 U.S.C. 1170; 16 U.S.C. 

1247(d) and 1248; 45 U.S.C. 744; and 49 

U.S.C. 701 note (1995) (section 204 of the ICC 

Termination Act of 1995), 721(a), 10502, 

10903–10905, and 11161. 

■ 6. Revise § 1152.21 to read as follows: 

§ 1152.21 Form of notice. 

The Notice of Intent to abandon or to 

discontinue service shall be in the 

following form: 

STB No. AB lll(Sub-No. lll) 

Notice of Intent To Abandon or To 

Discontinue Service 

(Name of Applicant) gives notice that on or 

about (insert date application will be filed 

with the Board) it intends to file with the 

Surface Transportation Board, Washington, 

DC 20423, an application for permission for 

the abandonment of (the discontinuance of 

service on), a line of railroad known as 

lll extending from railroad milepost near 

(station name) to (the end of line or rail 

milepost) near (station name), which 

traverses through United States Postal 

Service ZIP Codes (ZIP Codes), a distance of 

lll miles, in [County(ies), State(s)]. The 

line includes the stations of (list all stations 

on the line in order of milepost number, 

indicating milepost location). The reason(s) 

for the proposed abandonment (or 

discontinuance) is (are) lll (explain 

briefly and clearly why the proposed action 

is being undertaken by the applicant). Based 

on information in our possession, the line 

(does) (does not) contain federally granted 

rights-of-way. Any documentation in the 

railroad’s possession will be made available 

promptly to those requesting it. This line of 

railroad has appeared on the system diagram 

map or included in the narrative in category 

1 since (insert date). 

The interest of railroad employees will be 

protected by (specify the appropriate 

conditions). The application will include the 

applicant’s entire case for abandonment (or 

discontinuance) (case in chief). Any 

interested person, after the application is 

filed on (insert date), may file with the 

Surface Transportation Board written 

comments concerning the proposed 

abandonment (or discontinuance) or protests 

to it. These filings are due 45 days from the 

date of filing of the application. All 

interested persons should be aware that 

following any abandonment of rail service 

and salvage of the line, the line may be 

suitable for other public use, including 

interim trail use. Any request for a public use 

condition under 49 U.S.C. 10905 (§ 1152.28 

of the Board’s rules) and any request for a 

trail use condition under 16 U.S.C. 1247(d) 

(§ 1152.29 of the Board’s rules) must also be 

filed within 45 days from the date of filing 

of the application. Persons who may oppose 

the abandonment or discontinuance but who 

do not wish to participate fully in the process 

by appearing at any oral hearings or by 

submitting verified statements of witnesses, 

containing detailed evidence, should file 

comments. Persons interested only in seeking 

public use or trail use conditions should also 

file comments. Persons opposing the 

proposed abandonment or discontinuance 

that do wish to participate actively and fully 

in the process should file a protest. Protests 

must contain that party’s entire case in 

opposition (case in chief) including the 

following: 

(1) Protestant’s name, address and 

business. 

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Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 30713 

(2) A statement describing protestant’s 

interest in the proceeding including: 

(i) A description of protestant’s use of the 

line; 

(ii) If protestant does not use the line, 

information concerning the group or public 

interest it represents; and 

(iii) If protestant’s interest is limited to the 

retention of service over a portion of the line, 

a description of the portion of the line subject 

to protestant’s interest (with milepost 

designations if available) and evidence 

showing that the applicant can operate the 

portion of the line profitably, including an 

appropriate return on its investment for those 

operations. 

(3) Specific reasons why protestant 

opposes the application including 

information regarding protestant’s reliance 

on the involved service [this information 

must be supported by affidavits of persons 

with personal knowledge of the fact(s)]. 

(4) Any rebuttal of material submitted by 

applicant. 

In addition, a commenting party or 

protestant may provide a statement of 

position and evidence regarding: 

(i) Intent to offer financial assistance 

pursuant to 49 U.S.C. 10904; 

(ii) Environmental impact; 

(iii) Impact on rural and community 

development; 

(iv) Recommended provisions for 

protection of the interests of employees; 

(v) Suitability of the properties for other 

public purposes pursuant to 49 U.S.C. 10905; 

and 

(vi) Prospective use of the right-of-way for 

interim trail use and rail banking under 16 

U.S.C. 1247(d) and § 1152.29. 

A protest may demonstrate that: (1) the 

protestant filed a feeder line application 

under 49 U.S.C. 10907; (2) the feeder line 

application involves any portion of the rail 

line involved in the abandonment or 

discontinuance application; (3) the feeder 

line application was filed prior to the date 

the abandonment or discontinuance 

application was filed; and (4) the feeder line 

application is pending before the Board. 

Written comments and protests will be 

considered by the Board in determining what 

disposition to make of the application. The 

commenting party or protestant may 

participate in the proceeding as its interests 

may appear. 

If an oral hearing is desired, the requester 

must make a request for an oral hearing and 

provide reasons why an oral hearing is 

necessary. Oral hearing requests must be 

filed with the Board no later than 10 days 

after the application is filed. 

Those parties filing protests to the 

proposed abandonment (or discontinuance) 

should be prepared to participate actively 

either in an oral hearing or through the 

submission of their entire opposition case in 

the form of verified statements and 

arguments at the time they file a protest. 

Parties seeking information concerning the 

filing of protests should refer to § 1152.25. 

Written comments and protests, including 

all requests for public use and trail use 

conditions, should indicate the proceeding 

designation STB No. AB lll (Sub-No. 

lll) and must be filed with the Chief, 

Section of Administration, Office of 

Proceedings, Surface Transportation Board, 

Washington, DC 20423–0001, no later than 

(insert the date 45 days after the date 

applicant intends to file its application). 

Interested persons may file a written 

comment or protest with the Board to become 

a party to this abandonment (or 

discontinuance) proceeding. A copy of each 

written comment or protest shall be served 

upon the representative of the applicant 

(insert name, address, and phone number). 

The original and 10 copies of all comments 

or protests shall be filed with the Board with 

a certificate of service. Except as otherwise 

set forth in part 1152, each document filed 

with the Board must be served on all parties 

to the abandonment proceeding. 49 CFR 

1104.12(a). 

The line sought to be abandoned (or 

discontinued) will be available for subsidy or 

sale for continued rail use, if the Board 

decides to permit the abandonment (or 

discontinuance), in accordance with 

applicable laws and regulations (49 U.S.C. 

10904 and 49 CFR 1152.27). No subsidy 

arrangement approved under 49 U.S.C. 10904 

shall remain in effect for more than 1 year 

unless otherwise mutually agreed by the 

parties (49 U.S.C. 10904(f)(4)(B)). Applicant 

will promptly provide upon request to each 

interested party an estimate of the subsidy 

and minimum purchase price required to 

keep the line in operation. The carrier’s 

representative to whom inquiries may be 

made concerning sale or subsidy terms is 

(insert name and business address). Persons 

seeking further information concerning 

abandonment procedures may contact the 

Surface Transportation Board or refer to the 

full abandonment or discontinuance 

regulations at 49 CFR part 1152. Questions 

concerning environmental issues may be 

directed to the Board’s Section of 

Environmental Analysis. 

A copy of the application will be available 

for public inspection on or after (insert date 

abandonment application is to be filed with 

Board) at each agency station or terminal on 

the line proposed to be abandoned or 

discontinued [if there is no agency station on 

the line, the application shall be deposited at 

any agency station through which business 

for the line is received or forwarded (insert 

name, address, location, and business 

hours)]. The carrier shall furnish a copy of 

the application to any interested person 

proposing to file a protest or comment, upon 

request. 

An environmental assessment (EA) (or 

environmental impact statement (EIS), if 

necessary) prepared by the Section of 

Environmental Analysis will be served upon 

all parties of record and upon any agencies 

or other persons who commented during its 

preparation. Any other persons who would 

like to obtain a copy of the EA (or EIS) may 

contact the Section of Environmental 

Analysis. EAs in these abandonment 

proceedings normally will be made available 

within 33 days of the filing of the 

application. The deadline for submission of 

comments on the EA will generally be within 

30 days of its service. The comments 

received will be addressed in the Board’s 

decision. A supplemental EA or EIS may be 

issued where appropriate. 

■ 7. Amend § 1152.27 by adding 

paragraphs (c)(2)(ii)(A), (B), (C), and (D) 

to read as follows: 

§ 1152.27 Financial assistance 

procedures. 

* * * * * 

(c) * * * 

(2) * * * 

(ii) * * * 

(A) An offer may be filed and served 

at any time after the filing of the notice 

of exemption. Once a notice of 

exemption is published in the Federal 

Register, however, the Board must be 

notified that an offer has previously 

been submitted. 

(B) An offer, or notification of a 

previously filed offer, must be filed and 

served no later than 30 days after the 

Federal Register publication described 

in paragraph (b)(2)(ii) of this section. 

This filing and service is subject to the 

requirements of 49 CFR 1152.25(d)(1), 

(d)(2), and (d)(4). 

(C) If, after a bona fide request, 

applicant has failed to provide a 

potential offeror promptly with the 

information required under paragraph 

(a) of this section and if that information 

is not contained in the notice of 

exemption, the Board will entertain 

petitions to toll the 30-day period for 

submitting offers of financial assistance 

under paragraph (c)(2) of this section. 

Petitions must be filed with the Board 

within 25 days after publication in the 

Federal Register (as described in 

paragraph (b)(2)(ii) of this section). 

Petitions should include copies of the 

prior written request for information or 

an accurate outline of the specific 

information that was orally requested. 

Replies to these petitions must be filed 

within 30 days after publication. These 

petitions and replies must be filed on or 

before their actual due date under 49 

CFR 1152.25(d)(4). The Board will issue 

a decision on petitions to toll the offer 

period within 35 days after publication. 

(D) Upon receipt of a formal 

expression of intent to file an offer 

under paragraph (c)(2)(i) of this section, 

the rail carrier applicant may advise the 

Board and the potential offeror that 

additional time is needed to develop the 

information required under paragraph 

(a) of this section. Applicant shall 

expressly indicate the amount of time it 

considers necessary (not to exceed 60 

days) to develop and submit the 

required information to the potential 

offeror. For the duration of the time 

period so indicated by the applicant, the 

30-day period for submitting offers of 

financial assistance under paragraph 

(c)(2) of this section shall be tolled 

without formal Board action. 

* * * * * 

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30714 Federal Register / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations 

PART 1180–RAILROAD ACQUISITION, 

CONTROL, MERGER, 

CONSOLIDATION PROJECT, 

TRACKAGE RIGHTS, AND LEASE 

PROCEDURES 

■ 8. The authority citation for part 1180 

continues to read as follows: 

Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 

1172; 49 U.S.C. 721, 10502, 11323–11325. 

■ 9. Revise § 1180.4(g)(2)(i) and (g)(2)(ii) 

to read as follows: 

§ 1180.4 Procedures. 

* * * * * 

(g) * * * 

* * * * * 

(2)(i) To qualify for an exemption 

under § 1180.2(d)(7) (acquisition or 

renewal of trackage rights agreements), 

in addition to the notice, the railroad 

must file a caption summary suitable for 

publication in the Federal Register. The 

caption summary must be in the 

following form: 

Surface Transportation Board 

Notice of Exemption 

Finance Docket No. 

(1)—Trackage Rights—(2) 

(2) (3) to grant (4) trackage rights to (1) 

between (5). The trackage rights will be 

effective on (6). 

This notice is filed under § 1180.2(d)(7). 

Petitions to revoke the exemption under 49 

U.S.C. 10502(d) may be filed at any time. The 

filing of a petition to revoke will not stay the 

transaction. 

Dated: 

By the Board. 

[Insert name], 

Director, Office of Proceedings. 

The following key identifies the 

information symbolized in the summary. 

(1) Name of the tenant railroad. 

(2) Name of the landlord railroad. 

(3) If an agreement has been entered use 

‘‘has agreed’’, but if an agreement has been 

reached but not entered use ‘‘will agree.’’ 

(4) Indicate whether ‘‘overhead’’ or ‘‘local’’ 

trackage rights are involved. 

(5) Describe the trackage rights. 

(6) State the date the trackage rights 

agreement is proposed to be consummated. 

(ii) To qualify for an exemption under 

§ 1180.2(d)(8) (acquisition of temporary 

trackage rights), in addition to the 

notice, the railroad must file a caption 

summary suitable for publication in the 

Federal Register. The caption summary 

must be in the following form: 

Surface Transportation Board 

Notice of Exemption 

STB Finance Docket No. 

(1)—Temporary Trackage Rights—(2) 

(2) (3) to grant overhead temporary 

trackage rights to (1) between (4). The 

temporary trackage rights will be effective on 

(5). The authorization will expire on (6). 

This notice is filed under § 1180.2(d)(8). 

Petitions to revoke the exemption under 49 

U.S.C. 10502(d) may be filed at any time. The 

filing of a petition to revoke will not stay the 

transaction. 

Dated: 

By the Board. 

[Insert name] 

Director, Office of Proceedings. 

The following key identifies the 

information symbolized in the summary. 

(1) Name of the tenant railroad. 

(2) Name of the landlord railroad. 

(3) If an agreement has been entered use 

‘‘has agreed,’’ but if an agreement has been 

reached but not entered use ‘‘will agree.’’ 

(4) Describe the temporary trackage rights. 

(5) State the date the temporary trackage 

rights agreement is proposed to be 

consummated. 

(6) State the date the authorization will 

expire (not to exceed 1 year from the date the 

trackage rights will become effective). 

[FR Doc. 2010–13130 Filed 6–1–10; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 070910507–0037–02] 

RIN 0648–AV94 

Endangered and Threatened Wildlife 

and Plants: Final Rulemaking To 

Establish Take Prohibitions for the 

Threatened Southern Distinct 

Population Segment of North American 

Green Sturgeon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule and notice of 

availability of a final environmental 

assessment. 

SUMMARY: This final ESA section 4(d) 

rule represents the regulations that we, 

the National Marine Fisheries Service 

(NMFS), believe necessary and 

advisable to conserve the threatened 

Southern Distinct Population Segment 

of North American green sturgeon 

(Acipenser medirostris; hereafter 

Southern DPS). We apply the 

prohibitions listed under ESA section 9 

for the Southern DPS, and we highlight 

specific categories of activities that are 

likely to result in take of Southern DPS 

fish. We do not find it necessary and 

advisable to apply the take prohibitions 

to certain categories of activities that 

contribute to conserving the Southern 

DPS. We also provide a variety of 

methods by which take of the Southern 

DPS may be authorized. This document 

also announces the availability of a final 

draft environmental assessment (EA) 

that analyzes the environmental impacts 

of promulgating the 4(d) regulations for 

the Southern DPS. 

DATES: The effective date of this final 

rule is July 2, 2010. 

ADDRESSES: Reference materials 

regarding this final rule can be obtained 

via the Internet at http:// 

www.swr.nmfs.noaa.gov or by 

submitting a request to the Assistant 

Regional Administrator, Protected 

Resources Division, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115, or Lisa 

Manning, NMFS, Office of Protected 

Resources (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

We determined that the Southern DPS 

is at risk of extinction in the foreseeable 

future throughout all or a significant 

portion of its range and listed the 

species as threatened under the ESA on 

April 7, 2006 (71 FR 17757). At that 

time we summarized the process for 

considering the application of ESA 

section 9 prohibitions to the threatened 

Southern DPS. In the case of threatened 

species, ESA section 4(d) states that the 

Secretary shall decide whether, and to 

what extent, to extend the ESA section 

9(a) prohibitions, including those 

regarding take of the species, and 

authorizes us to issue regulations we 

consider necessary and advisable for the 

conservation of the species. Such 

regulations may include any or all of the 

prohibitions that automatically apply to 

endangered species. Those prohibitions, 

in part, make it illegal for any person 

subject to the jurisdiction of the United 

States to take the listed species. The 

term ‘‘take’’ means to harass, harm, 

pursue, hunt, shoot, wound, kill, trap, 

capture, or collect, or attempt to engage 

in any such conduct. (16 U.S.C. 

1532(19)). The term ‘‘harm’’ is defined as 

any act which actually kills or injures 

fish or wildlife. Such an act may 

include significant habitat modification 

or degradation which actually kills or 

injures fish or wildlife by significantly 

impairing essential behavioral patterns, 

including breeding, spawning, rearing, 

migrating, feeding, or sheltering. (50 

CFR 222.102). 

Whether take prohibitions or other 

protective regulations are necessary or 

advisable is in large part dependent on 

WReier-Aviles on DSKGBLS3C1PROD with RULES