Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23329 

should have read July 15, 2009 instead 

of July 13, 2009. 

DATES: Effective May 19, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Roland Helvajian, Office of Managing 

Director at (202) 418–0444. 

SUPPLEMENTARY INFORMATION: This is a 

correction in the effective date of the 

Order FCC 09–21 that was published in 

the Federal Register on May 12, 2009 

(74 FR 22104). Accordingly, this 

document corrects the effective date as 

indicated below. 

In rule FR Doc. E9–10987 published 

on May 12, 2009, 74 FR 22104 make the 

following correction. On page 22104, in 

the second column, correct the DATES

section to read: 

DATES: Effective July 15, 2009, which 

pursuant to section 9(b)(3) of the 

Communications Act, is 90 days from date of 

notification to Congress. 

Marlene H. Dortch, 

Secretary, Federal Communications 

Commission. 

[FR Doc. E9–11582 Filed 5–18–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 80 

[WT Docket No. 04–344; FCC 08–208] 

Maritime Communications 

AGENCY: Final rule; announcement of 

effective date. 

SUMMARY: The Federal Communications 

Commission (Commission) announces 

that a certain rule adopted in its 

Automatic Identification Systems (AIS) 

proceeding in WT Docket No. 04–344 

published in the Federal Register of 

January 29, 2009, to the extent it 

contained an information collection 

requirement that required approval by 

the Office of Management and Budget 

(OMB) was approved, April 8, 2009. 

DATES: The amendment adding § 80.231, 

published January 29, 2009 (74 FR 5117) 

is effective May 19, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Tobias, Federal Communications 

Commission, Wireless 

Telecommunications Bureau, 445 12th 

St., SW., Washington, DC 20554 at (202) 

418–0620. 

SUPPLEMENTARY INFORMATION: 

1. On January 29, 2009 at 74 FR 5117, 

the Commission published in the 

Federal Register, the summary of a 

Second Report and Order (2nd R&O) in 

WT Docket No. 04–344; FCC 08–208. In 

that 2nd R&O, the Commission stated 

that, upon OMB approval, it would 

publish in the Federal Register a 

document announcing the effective date 

of 47 CFR 80.231. 

2. On April 8, 2009, OMB approved 

the public information collection 

associated with this rule change under 

OMB Control No. 3060–1124. 

Marlene H. Dortch, 

Secretary, Federal Communications 

Commission. 

[FR Doc. E9–11647 Filed 5–18–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 90 

[DA 09–621; WT Docket No. 04–344; FCC 

08–208] 

Maritime Communications 

AGENCY: Final rule; correction. 

SUMMARY: The Federal Communications 

Commission published in the Federal 

Register of January 29, 2009, a 

document in the Automatic 

Identification Systems (AIS) proceeding, 

WT Docket No. 04–344, which included 

a Final Rules Appendix that reflected 

the amendments adopted of certain 

rules. This document corrects the 

amendment of one of those sections as 

set forth below. 

DATES: May 19, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Tobias, Federal Communications 

Commission, Wireless 

Telecommunications Bureau, 445 12th 

St. SW., Washington, DC 20554 at (202) 

418–0620. 

SUPPLEMENTARY INFORMATION: The 

Federal Communications Commission 

published a document in the Federal 

Register of January 29, 2009 (74 FR 

5117) regarding the adoption of changes 

to rules relating to AIS, an advanced 

marine vessel tracking and navigation 

technology that can significantly 

enhance our Nation’s homeland security 

as well as maritime safety. The 

document amended a number of FCC 

rules governing the public safety pool. 

This document, released on March 18, 

2009; DA 09–621, corrects a certain rule 

in the document published in the 

Federal Register of January 29, 2009 (74 

FR 5117). This document does not 

change any of the other rule 

amendments set forth in the document 

published in the Federal Register of 

January 29, 2009 (74 FR 5117). 

List of Subjects in 47 CFR 90 

Communications equipment, radio. 

Marlene H. Dortch, 

Secretary, Federal Communications 

Commission. 

Rules Changes 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission corrects 47 CFR part 90 as 

follows: 

■ 1. The authority citation for part 90 

continues to read as follows: 

PART 90—PRIVATE LAND MOBILE 

RADIO SERVICES 

Authority: Secs. 4(i), 11, 303(g), 303(r) and 

332(c)(7) of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 161, 303(r), and 

332(c)(7). 

■ 2. In § 90.20, revise the Table C 

heading in paragraph (g)(3)(iv) to read as 

follows: 

§ 90.20 Public Safety Pool. 

* * * * * 

(g) * * * 

(3) * * * 

(iv) * * * 

Table C—Required Separation in 

Kilometers (Miles) of Base Station From 

Public Coast Stations 

* * * * * 

[FR Doc. E9–11640 Filed 5–18–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 209 and 211 

[Docket No. FRA–2009–0006; Notice No. 1] 

RIN 2130–AC02 

Miscellaneous Revisions to the 

Procedures for Handling Petitions for 

Emergency Waiver of Safety 

Regulations and the Procedures for 

Disqualifying Individuals From 

Performing Safety-Sensitive Functions 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Direct final rule. 

SUMMARY: This direct final rule makes 

miscellaneous revisions to the 

procedures for obtaining waivers from a 

safety rule, regulation, or standard 

during an emergency situation or an 

emergency event, and the procedures for 

disqualifying individuals from 

performing safety-sensitive functions. 

FRA’s purpose in revising these 


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23330 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

procedures is to make them consistent 

with sections 305 and 308 of the Rail 

Safety Improvement Act of 2008 (the 

‘‘Act’’), Public Law 110–432, Division 

A, which was signed into law on 

October 16, 2008. Interested parties may 

submit written adverse comments or 

may request an oral hearing on these 

miscellaneous revisions during the 

thirty (30) day period following 

publication of this rule. FRA anticipates 

no adverse comments. 

DATES: Effective Date: Unless FRA 

receives a written adverse comment or 

a request for an oral hearing on this 

direct final rule within the specified 

comment period, the effective date will 

be July 20, 2009. 

Written Comments: Comments or a 

request for an oral hearing must be 

received by June 18, 2009. 

ADDRESSES: Comments, identified by 

Docket Number FRA–2009–0006, may 

be submitted by any of the following 

methods: 

• Fax: 1–202–493–2251. 

• Mail: DOT Docket Management 

Facility; W12–140, West Building, 1200 

New Jersey Ave., SE., Washington, DC 

20590. 

• Hand Delivery: W12–140 on the 

ground level of the West Building, 1200 

New Jersey Ave., SE., Washington, DC, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

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:// 

www.regulations.gov, including any 

personal information. Please see the 

Privacy Act heading later in this 

document for more information. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

W12–140 on the ground level of the 

West Building, 1200 New Jersey Ave., 

SE., Washington, DC, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal Holidays. 

FOR FURTHER INFORMATION CONTACT: 

Grady C. Cothen, Jr., Deputy Associate 

Administrator for Safety Standards and 

Program Development, FRA, 1200 New 

Jersey Ave., SE., RRS–2, Mail Stop 25, 

Washington, DC 20590 (Telephone 202– 

493–6302), or Zeb Schorr, Trial 

Attorney, Office of Chief Counsel, FRA, 

1200 New Jersey Ave., SE., Mail Stop 

10, Washington, DC 20590 (Telephone 

202–493–6072). 

SUPPLEMENTARY INFORMATION: 

Background 

Individual Disqualification Procedures 

Section 305 of the Rail Safety 

Improvement Act of 2008 expanded the 

scope of 49 U.S.C. 20111(c), which 

concerns disqualifying individuals from 

performing safety-sensitive functions. 

Specifically, section 305 provides, in 

part, that an individual who has 

violated the Transportation of 

Hazardous Materials laws (49 U.S.C. 

Chapt. 51) or a regulation or order 

prescribed under those laws may be 

prohibited from performing safetysensitive functions in the railroad 

industry for a specified period of time 

or until specified conditions are met, if 

it is shown that the violation makes the 

individual unfit for safety-sensitive 

functions. Based on section 305 of the 

Act, FRA is revising its existing 

procedures that govern the process that 

the agency uses to disqualify 

individuals from performing safetysensitive functions. These procedures 

are intended to assure the prompt and 

efficient conduct of disqualification 

proceedings, while affording 

administrative due process to those 

against whom such proceedings are 

initiated. 

Emergency Waiver Procedures 

Section 308 of the Act includes 

specific procedures for obtaining 

waivers from a safety rule, regulation, or 

standard during an emergency situation 

or an emergency event. Based on the 

modifications contained in the Act, FRA 

is revising the existing emergency 

waiver procedures that it adopted in 

2007 to expeditiously handle waiver 

requests that are directly related to an 

emergency situation or an emergency 

event. These revisions will make the 

existing procedures consistent with the 

Act and will permit FRA to provide 

railroads necessary operational relief 

during emergencies while at the same 

time maintaining public safety. 

Due to the catastrophic and 

devastating damage inflicted on the 

southern portion of the United States in 

the aftermath of Hurricane Katrina, FRA 

published a notice in the Federal 

Register establishing a temporary means 

for handling petitions for waiver from 

the Federal rail safety regulations that 

were directly related to the effects of the 

hurricane or were necessary to 

effectively address the relief efforts 

being undertaken in the area. See 70 FR 

53413 (September 8, 2005). FRA 

recognized that these types of petitions 

had to be afforded special consideration 

and had to be handled expeditiously in 

order to ensure that the emergency 

operational needs of the railroads were 

addressed while at the same time 

ensuring the safety of the public, 

including railroad employees. Such 

emergency waivers would help ensure 

that routine safety regulations would 

not stand in the way of the railroads’ 

efforts to cope with the emergency and 

to provide timely relief and recovery 

efforts. FRA subsequently issued an 

interim final rule, and then a final rule, 

codifying those interim procedures. See 

72 FR 17438 (April 7, 2007). FRA is 

issuing this direct final rule revising 

these existing procedures so that they 

are consistent with the Act. 

Section-by-Section Analysis 

Disqualification Procedures—49 CFR 

Part 209 

Section 209.301(a). This paragraph 

discusses the scope of the rules of 

practice for disqualification proceedings 

of railroad employees and agents from 

safety-sensitive functions in the rail 

industry. A technical amendment is 

made to this paragraph so that it refers 

to the Federal railroad safety laws at 49 

U.S.C. 20111(c) rather than the laws’ 

previous incorporation at title 45 of the 

United States Code. 

Section 209.303(a). This paragraph 

makes clear that railroad employees 

who are assigned to perform service 

subject to the Hours of Service Act 

during a duty tour are subject to the 

disqualification procedures. A technical 

amendment is made so that this 

paragraph refers to 49 U.S.C. Chapt. 211 

rather than the old hours of service 

statutory citation at title 45 of the 

United States Code. 

Section 209.303(b). This paragraph 

identifies the railroad employees or 

agents that are subject to the 

disqualification procedures. These 

include railroad employees or agents 

who: (1) Inspect, install, repair, or 

maintain track and roadbed; (2) inspect, 

repair or maintain, locomotives, 

passenger cars, and freight cars; (3) 

conduct training and testing of 

employees when the training or testing 

is required by the FRA’s safety 

regulations; and (4) perform service 

subject to the Transportation of 

Hazardous Materials laws (49 U.S.C. 

Chapt. 51), or any regulation prescribed 

thereunder. This paragraph is amended 

to identify railroad employees and 

agents who perform service subject to 49 

U.S.C. Chapt. 51, and any regulation or 

order prescribed thereunder, in order to 

remain consistent with the Act. 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23331 

Section 209.303(c). This paragraph 

identifies the following railroad 

managers, supervisors, or agents as 

subject to the disqualification 

procedures. These include railroad 

managers, supervisors, or agents who: 

(1) Perform the safety-sensitive 

functions listed in paragraphs (a) and (b) 

of this section; (2) supervise and 

otherwise direct the performance of the 

safety-sensitive functions listed in 

paragraphs (a) and (b) of this section; or 

(3) are in a position to direct the 

commission of violations of any of the 

requirements of parts 213 through 241 

of this title, or of any of the 

requirements of the Transportation of 

Hazardous Materials Laws (49 U.S.C. 

Chapt. 51), or any regulation or order 

prescribed thereunder. A technical 

amendment is made to this paragraph so 

that it refers to parts 213 through 241 of 

title 49 of the Code of Federal 

Regulations. The existing provision only 

refers to parts 213 through 236. Because 

parts 238 through 241 have been added 

to the Code of Federal Regulations since 

the last amendment of this provision, it 

is necessary to make this technical 

amendment for accuracy and clarity. As 

indicated above, this paragraph is also 

amended to identify railroad managers, 

supervisors, and agents who perform, 

supervise, or direct service in violation 

of 49 U.S.C. Chapt. 51, and any 

regulation or order prescribed 

thereunder, in order to remain 

consistent with the Act. 

Section 209.327(c). Technical 

amendments are made so that this 

paragraph cross-references paragraphs 

(a) and (b). The existing provision 

contains an inaccurate cross-reference to 

paragraphs (c) and (d) of this section. 

This amendment is necessary for 

accuracy and clarity. 

Section 209.329(a). This paragraph 

provides that the proof of a respondent’s 

willful violation of one of the 

requirements of parts 213 through 241 

(excluding parts 225, 228, and 233) of 

this title, or one of the requirements of 

49 U.S.C. Chapt. 51, or any regulation or 

order prescribed thereunder, establishes 

a rebuttable presumption that the 

respondent is unfit to perform the 

safety-sensitive functions described in 

§ 209.303. A technical amendment is 

made to this paragraph so that it refers 

to parts 213 through 241 of title 49 of 

the Code of Federal Regulations. The 

existing provision only refers to parts 

213 through 236. Because parts 238 

through 241 have been added to the 

Code of Federal Regulations since the 

last amendment of this provision, it is 

necessary to make this technical 

amendment for accuracy and clarity. 

This paragraph is also amended to 

include a reference to violations of 49 

U.S.C. Chapt. 51, and any regulation or 

order prescribed thereunder, in order to 

remain consistent with the Act. 

Section 209.329(b). Minor technical 

amendments are made to this paragraph 

to correct spelling and punctuation 

errors in the existing provision. 

Processing of Emergency Waivers— 

§ 211.45 

Section 211.45(a). This paragraph 

makes clear that the emergency waiver 

procedures are intended to go into effect 

when there is an occurrence of, or 

imminent threat of, an emergency event 

or an emergency situation. The types of 

emergency events and emergency 

situations intended to be covered by this 

direct final rule could be local, regional, 

or national in scope and could include 

natural or manmade disasters, such as 

hurricanes, floods, earthquakes, 

mudslides, forest fires, snowstorms, 

terrorist acts, biological outbreaks, 

releases of dangerous radiological, 

chemical, explosive, or biological 

material, or war-related activities that 

pose a risk of death, serious illness, 

severe injury, or substantial property 

damage. In order to remain consistent 

with the Act, technical amendments are 

made so that this paragraph identifies 

relevant emergency situations. This 

direct final rule also amends the 

definition of the terms ‘‘emergency 

event’’ and ‘‘emergency situation’’ to 

make them consistent with the terms as 

used in the Act. 

Section 211.45(b). This paragraph 

contains information regarding FRA’s 

establishment of an annual Emergency 

Relief Docket (ERD). Establishing a new 

ERD each year allows FRA to receive 

petitions for emergency waivers as soon 

as the occurrence of, or imminent threat 

of, an emergency event is determined to 

have occurred. A yearly ERD is also a 

convenient way to organize the 

emergency waiver petitions and related 

documents. For reference purposes, any 

petition can be located by the year in 

which the emergency event or 

emergency situation occurred. The 

Federal eRulemaking Portal (‘‘FeP’’) 

internet site, http:// 

www.regulations.gov, that is identified 

in this final rule allows any interested 

party to request notification and to 

subsequently, without fee, be 

automatically notified via e-mail when 

documents are added to the designated 

ERD. This paragraph also makes clear 

that FRA will publish by January 31st of 

each year, a Federal Register notice 

identifying the ERD for that year. This 

will inform interested parties where to 

find petitions for emergency waiver 

during an emergency and will allow 

such parties to request e-mail 

notification. Placing a notice in the 

previous year’s ERD will allow the 

parties interested in the prior year to 

automatically receive the new docket 

number. The only changes made by this 

direct final rule to the existing 

paragraph are technical amendments so 

that this paragraph refers to the Federal 

eRulemaking Portal and http:// 

www.regulations.gov which replaced the 

DOT Docket Management System. 

Section 211.45(c). This paragraph 

identifies the FRA Administrator (the 

‘‘Administrator’’) as the individual 

responsible for determining when the 

emergency waiver procedures will be 

utilized. The Administrator is the 

appropriate person to determine 

whether a situation or set of 

circumstances constitutes an emergency 

for purposes of FRA’s use of the 

emergency waiver procedures. The 

Administrator has a unique familiarity 

with the rail-industry through oversight 

of the following: Managing 

comprehensive safety programs and 

regulatory initiatives; enforcement of 

FRA safety regulations; development 

and implementation of national freight 

and passenger rail policy; and oversight 

of diverse research and development 

activities in support of improved 

railroad safety. During significant 

emergencies the Administrator has 

extensive interaction with the 

Department of Homeland Security, 

Director of National Intelligence, the 

Federal Bureau of Investigation, the 

Surface Transportation Board and other 

Federal agencies responsible for 

addressing public safety, health, 

security and welfare. In addition, the 

Administrator maintains 

contemporaneous communication with 

relevant rail transportation entities, 

including passenger and freight 

railroads. This experience and 

interaction provides a basis from which 

the Administrator can assess whether a 

situation or set of circumstances rises to 

the level of an emergency event that 

would necessitate activation of the 

emergency waiver procedures. 

The Administrator’s statement 

declaring that the emergency procedures 

are in effect will be placed in the 

appropriate ERD as soon as practicable. 

The FeP Internet site that is identified 

in the rule text allows any subscribing 

interested party to request notification, 

without fee, via e-mail when documents 

are added to the appropriate ERD. In 

determining whether an emergency 

exists the Administrator may consider 

states of emergency issued by a local, 

State, or Federal official, and 

determinations by the Federal 

government that a credible threat of a 


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23332 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

terrorist attack exists. The Administrator 

will consider whether such emergencies 

significantly affect railroad operations, 

and whether it would be beneficial to 

activate the emergency waiver 

procedures. Minor technical 

amendments are being made to the 

existing provision in this final rule in 

order to make the provision consistent 

with the Act by using the term 

‘‘emergency situation,’’ and by 

correcting the cross-reference to 

paragraph (b) of this section. 

Section 211.45(d). This paragraph 

identifies the methods by which 

interested parties may be notified of 

FRA’s determination to utilize the 

emergency waiver procedures. If 

conditions permit, FRA will issue the 

Administrator’s determination on FRA’s 

Web site to quickly notify the public. 

FRA will also place the Administrator’s 

determination in the ERD as soon as 

practicable. This direct final rule makes 

technical amendments to the existing 

provision by slightly modifying the 

notification process consistent with the 

requirements of the Act. The Act does 

not require publication of the 

determination in the Federal Register 

and FRA believes that notification to 

interested parties will occur in a more 

expeditious manner if such notification 

is accomplished through the FRA Web 

site and the ERD. A minor change is also 

made in this paragraph by correcting the 

cross-reference to paragraph (c) of this 

section. 

Section 211.45(e). This paragraph 

identifies the required content of a 

petition for emergency waiver. To be 

considered under the emergency waiver 

procedures, FRA must first determine 

that the petition is directly related to the 

occurrence of, or imminent threat of, an 

emergency event or an emergency 

situation. FRA will base its 

determination on the information 

provided in the petition. Thus, the 

petition should contain information that 

sufficiently demonstrates the 

relationship between the emergency 

event or emergency situation and the 

waiver relief being sought. This direct 

final rule does not modify the existing 

provision and is included in this 

document for the convenience of 

interested parties. 

Section 211.45(f). This paragraph 

instructs the public on how to submit a 

petition under the emergency waiver 

procedures. FRA is permitting 

submission by e-mail, facsimile, or mail. 

Permitting a variety of methods for 

submitting petitions for emergency 

waiver is intended to enhance the 

convenience and effectiveness of the 

process during the occurrence of, or 

imminent threat of, an emergency event 

or emergency situation. The direct final 

rule includes a minor technical 

amendment to the existing provision by 

updating the submission information to 

include FRA’s current address which 

changed subsequent to the issuance of 

the original rule. 

Section 211.45(g). This paragraph 

contains information regarding FRA’s 

handling of waiver petitions under the 

emergency waiver procedures. After 

FRA declares that the emergency 

procedures are in effect, it will accept 

petitions for emergency waivers. 

Petitions that are determined to be 

directly related to an emergency will be 

placed in the ERD for that year. The FeP 

numbers each document that is added to 

a docket. Thus, each petition submitted 

to the ERD will have a unique document 

number. For reference purposes, this 

document number should be identified 

on all communications related to that 

particular waiver petition. The only 

change being made by this direct final 

rule to the existing provision is a 

technical amendment so that this 

paragraph refers to the Federal 

eRulemaking Portal which replaced the 

DOT Docket Management System. 

Section 211.45(h). This paragraph 

explains the comment process. During 

emergency situations and emergency 

events the public interest requires an 

expedited review process to ensure 

public safety. The Administrator may 

waive compliance with any part of a 

regulation prescribed or order issued 

without prior notice and comment. 

However, comments may be submitted 

pursuant to the direction in this 

paragraph, and FRA will consider such 

comments to the extent practicable. This 

direct final rule amends the existing 

provision by specifically stating that 

FRA’s Administrator is able to issue 

waivers in an emergency situation 

without prior notice and comment. The 

Act provides FRA with this authority. 

Thus, although interested parties are 

free to submit comments and request 

hearings, FRA is not required to address 

them or conduct such hearings prior to 

deciding a petition. The only other 

changes being made by this direct final 

rule to the existing provision are minor 

technical amendments. These include a 

reference to the Federal eRulemaking 

Portal and http://www.regulations.gov 

which replaced the DOT Docket 

Management System and a correction to 

the submission information to include 

FRA’s current address which changed 

subsequent to the issuance of the 

original rule. 

Section 211.45(i). This paragraph 

describes how FRA will handle requests 

for hearing. As noted, the Administrator 

may waive compliance with any part of 

a regulation prescribed or order issued 

without prior notice and comment. 

Pursuant to the direction in this 

paragraph, a hearing may be requested. 

FRA may arrange a telephone 

conference between interested parties, a 

public hearing pursuant to this part, or 

may determine that a public hearing is 

unnecessary. This direct final rule 

amends the existing provision by 

specifically stating that FRA’s 

Administrator is able to issue waivers in 

an emergency situation without prior 

notice and comment. The Act provides 

FRA with this authority. Thus, although 

interested parties are free to submit 

comments and request hearings, FRA is 

not required to address them or conduct 

such hearings prior to deciding a 

request for relief related to an 

emergency situation or event. 

Section 211.45(j). This paragraph 

identifies the process by which FRA 

will make decisions on emergency 

waivers including: FRA’s consideration 

of the petition; FRA’s notification of the 

decision; the limits of any relief granted 

under the procedures, and FRA’s right 

to reopen a docket and reconsider a 

decision. 

The ability to grant or deny a petition 

without delay is essential to ensuring 

public safety during an emergency. In 

addition, the opportunity to reconsider 

a petition after the initial decision is 

made will ensure a robust deliberation. 

FRA’s understanding of an emergency 

may change as the emergency event 

develops. Accordingly, the public will 

benefit from FRA’s ability to reconsider 

decisions, and make appropriate 

adjustments based on further 

information. During an emergency it is 

a priority to address petitions for 

emergency waiver and to make 

decisions without delay. 

Posting the decision letters in the 

appropriate ERD will provide notice to 

interested parties. The FeP Internet site 

that is identified in the rule text allows 

any interested party to receive, without 

fee, automatic notification via e-mail of 

ERD documents, including the 

Administrator’s determination that 

emergency waiver procedures are in 

effect. 

This paragraph also makes clear that 

any relief granted under these 

procedures may be issued for a period 

of not more than 60 days. If relief is 

needed for a period of time beyond 60 

days, such relief may only be renewed 

upon application to the Administrator, 

after notice and an opportunity for a 

hearing on the waiver. FRA will consult 

and coordinate with other Federal 

agencies, as appropriate, for matters that 

may impact such agencies. 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23333 

As discussed above, this direct final 

rule amends the existing provisions 

contained in this paragraph to make 

them consistent with the requirements 

and limitations contained in the Act. 

The final rule makes clear that FRA’s 

Administrator is able to grant and issue 

decisions on waivers in an emergency 

situation without prior notice and 

comment. This final rule also adopts the 

specific time limits related to emergency 

waivers contained in the Act by 

changing the nine month limitation on 

the effectiveness of such waivers to the 

statutorily imposed 60-day limit. This 

paragraph is also amended to note that 

FRA will consult and coordinate with 

other Federal agencies on any matters 

that may impact such agencies. This 

broad language is intended to 

incorporate the existing narrow 

language noting that FRA will consult 

with the Department of Homeland 

Security on matters that significantly 

impact the mission of that agency. 

Notice and Comment Procedures 

FRA has determined that these 

miscellaneous revisions are noncontroversial, affect FRA internal 

procedures, and/or involve nonsubstantive clarifications to existing 

rules. While FRA does not anticipate 

any adverse comment, interested parties 

may submit written comments or 

request an oral hearing on these 

amendments during the thirty (30) day 

period immediately following 

publication of this direct final rule. 

Regulatory Impact 

Executive Order 12866 and DOT 

regulatory policies and procedures 

This direct final rule has been 

evaluated in accordance with Executive 

Order 12866 and DOT policies and 

procedures. The modifications 

contained in this direct final rule are 

considered non-significant because they 

are intended to merely revise internal 

FRA procedures for handling waivers 

directly related to an emergency, and for 

individual disqualification from 

performing safety-sensitive functions, 

and to make these procedures consistent 

with §§ 305 and 308 of the Rail Safety 

Improvement Act of 2008. FRA does not 

expect a change in the number of 

emergency waivers or the level of effort 

associated with the developing or 

processing of these as a result of the 

amendments to the procedures for 

handling waivers. In addition, FRA does 

not expect the impact of the 

amendments to the procedures for 

disqualification to result in more than a 

very minimal increase in the number of 

disqualification cases, if any. In the 

nearly twenty years that existing 

disqualification procedures have been 

in effect, only sixteen disqualification 

cases have been initiated. Overall, the 

economic impact of the amendments to 

the procedures contained in this direct 

final rule may potentially increase 

compliance costs nominally. The 

benefits resulting from the prompt and 

efficient conduct of proceedings, while 

affording administrative due process, 

are expected to fully justify any 

additional burden. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires a review 

of proposed and final rules to assess 

their impact on small entities, unless 

the Secretary certifies that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. Pursuant to Section 312 of the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

FRA has issued a final policy that 

formally establishes ‘‘small entities’’ as 

including railroads that meet the linehaulage revenue requirements of a Class 

III railroad. 49 CFR part 209, app. C. For 

other entities, the same dollar limit in 

revenues governs whether a railroad, 

contractor, or other respondent is a 

small entity. Id. 

FRA certifies that this direct final rule 

will have no significant economic 

impact on a substantial number of small 

entities. FRA does not expect a change 

in the number of emergency waivers 

filed by small entities or the level of 

effort associated with the developing or 

processing of these as a result of the 

amendments to the procedures for 

handling waivers. There are 

approximately 520 railroads that are 

considered small entities. In the nearly 

twenty years that existing 

disqualification procedures have been 

in effect, only three disqualification 

cases have been initiated involving 

small railroads. Since this universe of 

railroads would be the same universe 

impacted by this rulemaking, and the 

number of overall disqualification cases 

is not expected to increase significantly, 

FRA does not expect the impact of the 

amendments to the procedures for 

disqualification involving small entities 

to impact a significant number of small 

railroads. Although there is a potential, 

FRA has concluded that there are no 

substantial economic impacts on small 

entities. To the extent that this rule has 

any impact on small entities, the impact 

will not be significant. 

Paperwork Reduction Act 

There is no additional burden 

associated with the expanded scope of 

disqualification proceedings under the 

revised requirements of Part 209 of this 

rule. Any burden associated with the 

current requirements of Part 209 is 

already covered under OMB No. 2130– 

0529, which currently expires February 

28, 2010. The burden for waiver 

petitions is included separately under 

the OMB currently approved collection 

of information associated with each 

agency rulemaking. Any burden 

associated with the requirements for 

emergency waiver petitions in this final 

rule will be included separately in each 

collection of information associated 

with that particular agency rulemaking, 

either at the time agency re-approval is 

sought from OMB or at the time an 

agency rulemaking is newly published 

or revised and the agency seeks OMB 

approval for the corresponding 

collection of information. 

Environmental Impact 

FRA has evaluated this direct 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 document 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. 64 

FR 28545, 28547, May 26, 1999. 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 

direct final rule that might trigger the 

need for a more detailed environmental 

review. As a result, FRA finds that this 

direct final rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

Federalism Implications 

FRA believes it is in compliance with 

Executive Order 13132. This rulemaking 

action has been analyzed in accordance 

with the principles and criteria 

contained in Executive Order 13132. 

This rulemaking will not have a 

substantial direct effect on States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and the 

responsibilities among the various 

levels of government, as specified in 

Executive Order 1312. Accordingly, 

FRA has determined that this 

rulemaking will not have sufficient 


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23334 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

federalism implications to warrant 

consultation with State and local 

officials or the preparation of a 

federalism assessment. Accordingly, a 

federalism assessment has not been 

prepared. 

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 

$128,100,000 or more 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. Because this direct final rule will 

not change any regulatory requirements, 

this document will not result in the 

expenditure, in the aggregate, of 

$128,100,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

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 that: (1)(i) 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) is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this direct final rule in 

accordance with Executive Order 13211. 

Because the miscellaneous revisions 

will not change any regulatory 

requirements, FRA has determined that 

this direct final rule will not 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. 

Privacy Act Information 

Interested parties should be aware 

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://www.regulations.gov. 

List of Subjects 

49 CFR Part 209 

Administrative practice and 

procedure, Hazardous materials 

transportation, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements. 

49 CFR part 211 

Administrative practice and 

procedure, Railroad safety. 

Adoption of the Amendment 

■ In consideration of the foregoing, FRA 

amends part 209 and part 211 of chapter 

II, subtitle B of title 49, Code of Federal 

Regulations, as follows: 

PART 209—[AMENDED] 

■ 1. The authority citation for part 209 

continues to read as follows: 

Authority: 49 U.S.C. 5123, 5124, 20103, 

20107, 20111, 20112, 20112, 20114; 28 U.S.C. 

2461, note; and 49 CFR 1.49. 

■ 2. Section 209.301 is amended by 

revising paragraph (a) to read as follows: 

§ 209.301 Purpose and scope. 

(a) This subpart prescribes the rules of 

practice for administrative proceedings 

relating to the determination of an 

individual’s fitness for performing 

safety-sensitive functions under the 

Federal railroad safety laws at 49 U.S.C. 

20111(c). 

* * * * * 

■ 3. Section 209.303 is revised to read 

as follows: 

§ 209.303 Coverage. 

This subpart applies to the following 

individuals: 

(a) Railroad employees who are 

assigned to perform service subject to 

the Hours of Service Act (49 U.S.C. 

Chapt. 211) during a duty tour, whether 

or not the person has performed or is 

currently performing such service, and 

any person who performs such service. 

(b) Railroad employees or agents who: 

(1) Inspect, install, repair, or maintain 

track and roadbed; 

(2) Inspect, repair or maintain, 

locomotives, passenger cars, and freight 

cars; 

(3) Conduct training and testing of 

employees when the training or testing 

is required by the FRA’s safety 

regulations; or 

(4) Perform service subject to the 

Transportation of Hazardous Materials 

laws (49 U.S.C. Chapt. 51), or any 

regulation or order prescribed 

thereunder; 

(c) Railroad managers, supervisors, or 

agents when they: 

(1) Perform the safety-sensitive 

functions listed in paragraphs (a) and (b) 

of this section; 

(2) Supervise and otherwise direct the 

performance of the safety-sensitive 

functions listed in paragraphs (a) and (b) 

of this section; or 

(3) Are in a position to direct the 

commission of violations of any of the 

requirements of parts 213 through 241 

of this title, or any of the requirements 

of 49 U.S.C. Chapt. 51, or any regulation 

or order prescribed thereunder. 

■ 4. Section 209.327 is amended by 

revising paragraph (c) to read as follows: 

§ 209.327 Appeal. 

* * * * * 

(c) The Administrator may extend the 

period for filing an appeal or a response 

for good cause shown, provided the 

written request for extension is served 

before the expiration of the applicable 

period provided in paragraph (a) or (b) 

of this section. 

* * * * * 

■ 5. Section 209.329 is revised to read 

as follows: 

§ 209.329 Assessment considerations. 

(a) Proof of a respondent’s willful 

violation of one of the requirements of 

parts 213 through 241 (excluding parts 

225, 228, and 233) of this title, or of one 

of the requirements of 49 U.S.C. Chapt. 

51, or any regulation or order prescribed 

thereunder, establishes a rebuttable 

presumption that the respondent is unfit 

to perform the safety-sensitive functions 

described in § 209.303. Where such 

presumption arises, the respondent has 

the burden of establishing that, taking 

account of the factors in paragraph (b) 

of this section, he or she is fit to perform 

the foregoing safety-sensitive functions 

for the period and under the other 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 23335 

conditions, if any, proposed in the 

notice of proposed disqualification. 

(b) In determining respondent’s lack 

of fitness to perform safety-sensitive 

functions and the duration and other 

conditions, if any, of appropriate 

disqualification orders under 

§§ 209.309, 209.323, and 209.327, the 

factors to be considered, to the extent 

each is pertinent to the respondent’s 

case, include but are not limited to the 

following: 

(1) The nature and circumstances of 

the violation, including whether the 

violation was intentional, technical, or 

inadvertent, was committed willfully, or 

was frequently repeated; 

(2) The adverse impact or the 

potentially adverse impact of the 

violation on the health and safety of 

persons and the safety of property; 

(3) The employing railroad’s operating 

rules, safety rules, and repair and 

maintenance standards; 

(4) Repair and maintenance standards 

adopted by the railroad industry; 

(5) The consistency of the conditions 

of the proposed disqualification with 

disqualification orders issued against 

other employees of the employing 

railroad for the same or similar 

violations; 

(6) Whether the respondent was on 

notice of any safety regulations that 

were violated or whether the respondent 

had been warned about the conduct in 

question; 

(7) The respondent’s past record of 

committing violations of safety 

regulations, including previous FRA 

warnings issued, disqualifications 

imposed, civil penalties assessed, 

railroad disciplinary actions, and 

criminal convictions therefor; 

(8) The civil penalty scheduled for the 

violation of the safety regulation in 

question; 

(9) Mitigating circumstances 

surrounding the violation, such as the 

existence of an emergency situation 

endangering persons or property and the 

need for the respondent to take 

immediate action; and 

(10) Such other factors as may be 

warranted in the public interest. 

PART 211—[AMENDED] 

■ 6. The authority citation for part 211 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20114, 

20306, 20502–20504, and 49 CFR 1.49. 

■ 7. Section 211.45 is revised to read as 

follows: 

* * * * * 

§ 211.45 Petitions for emergency waiver of 

safety rules. 

(a) General. This section applies only 

to petitions for waiver of a safety rule, 

regulation, or standard that FRA 

determines are directly related to the 

occurrence of, or imminent threat of, an 

emergency event or an emergency 

situation. For purposes of this section, 

the terms ‘‘emergency event’’ and 

‘‘emergency situation’’ mean a natural 

or manmade disaster, such as a 

hurricane, flood, earthquake, mudslide, 

forest fire, snowstorm, terrorist act, 

biological outbreak, release of a 

dangerous radiological, chemical, 

explosive, or biological material, or a 

war-related activity, that poses a risk of 

death, serious illness, severe injury, or 

substantial property damage. The 

disaster may be local, regional, or 

national in scope. 

(b) Emergency Relief Docket. Each 

calendar year FRA creates an Emergency 

Relief Docket (ERD) in the publicly 

accessible Federal eRulemaking Portal 

(FeP). The FeP can be accessed 24 hours 

a day, seven days a week, via the 

Internet at the docket’s Web site at 

http://www.regulations.gov. All 

documents in the FeP are available for 

inspection and copying on the Web site 

or are available for examination at the 

DOT Docket Management Facility, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Ave., SE., Washington, 

DC 20590 during regular business hours 

(9 a.m.–5 p.m.). By January 31st of each 

year, FRA publishes a notice in the 

Federal Register identifying by docket 

number the ERD for that year. A notice 

will also be placed in the previous 

year’s ERD identifying the new docket 

number. 

(c) Determining the existence of an 

emergency event or an emergency 

situation. If the Administrator 

determines that an emergency event or 

an emergency situation identified in 

paragraph (a) of this section has 

occurred, or that an imminent threat of 

it occurring exists, and determines that 

public safety or recovery efforts require 

that the provisions of this section be 

implemented, the Administrator will 

activate the Emergency Relief Docket 

identified in paragraph (b) of this 

section. In determining whether an 

emergency exists, the Administrator 

may consider declarations of emergency 

made by local, State, or Federal officials, 

and determinations by the Federal 

government that a credible threat of a 

terrorist attack exists. 

(d) Notification. When possible, FRA 

will post the FRA Administrator’s 

determination described in paragraph 

(c) of this section on its Web site at 

http://www.fra.dot.gov. FRA will also 

place the FRA Administrator’s 

determination in the ERD as soon as 

practicable. 

(e) Content of petitions for emergency 

waivers. Petitions submitted to FRA 

pursuant to this section should 

specifically address how the petition is 

related to the emergency, and to the 

extent practicable, contain the 

information required under § 211.9(a) 

and (b). The petition should at a 

minimum describe the following: how 

the petitioner or public is affected by 

the emergency (including the impact on 

railroad operations); what FRA 

regulations are implicated by the 

emergency (e.g., movement of defective 

equipment); how waiver of the 

implicated regulations would benefit 

petitioner during the emergency; and 

how long the petitioner expects to be 

affected by the emergency. 

(f) Filing requirements. Petitions filed 

under this section, shall be submitted 

using any of the following methods: 

(1) E-mail to FRA at: 

RRS.Correspondence@fra.dot.gov; 

(2) Facsimile to FRA at: 202–493– 

6309; or 

(3) Mail to FRA at: FRA Docket Clerk, 

Office of Chief Counsel, RCC–10, Mail 

Stop 10, 1200 New Jersey Ave. SE., 

Washington, DC 20590, facsimile no. 

202–493–6068. 

(g) FRA Handling and Initial Review. 

Upon receipt and initial review of a 

petition for waiver, to verify that it 

meets the criteria for use of these 

emergency procedures, FRA will add 

the petition to the ERD. The FeP 

numbers each document that is added to 

a docket. (For example, the first 

document submitted to the docket in 

2009 will be identified as FRA–2009– 

XXX–1.) Thus, each petition submitted 

to the ERD will have a unique document 

number which should be identified on 

all communications related to petitions 

contained in this docket. If FRA 

determines that the petition does not 

meet the criteria for use of these 

emergency procedures, FRA will notify 

the petitioner and will process the 

petition under normal waiver 

procedures of this subpart. 

(h) Comments. Although the 

Administrator may waive compliance 

with any part of a regulation prescribed 

or order issued without prior notice and 

comment, comments may be submitted. 

Comments should be submitted as soon 

as possible, after a petition is available 

on the FeP. Any comment received will 

be considered to the extent practicable. 

All comments should identify the 

appropriate ERD and should identify the 

specific document number of the 

petition designated by the FeP in the 

ERD. Interested parties commenting on 


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23336 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules and Regulations 

a petition under this section should also 

include in their comments to the ERD 

telephone numbers at which their 

representatives may be reached. 

Interested parties may submit their 

comments using any of the following 

methods: 

(1) E-mail to FRA at: 

RRS.Correspondence@fra.dot.gov. 

(2) Facsimile to FRA at: 202–493– 

6309. 

(3) Mail to the Docket Clerk, DOT 

Docket Management Facility, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Ave., SE., Washington, 

DC 20590 or electronically via the 

internet at http://www.regulations.gov. 

Any comments or information sent 

directly to FRA will be immediately 

provided to the DOT FeP for inclusion 

in the ERD. 

(i) Request for hearing. Although the 

Administrator may waive compliance 

with any part of a regulation prescribed 

or order issued without prior notice and 

comment, parties desiring a public 

hearing on any petition being processed 

under this section must notify FRA 

through the comment process identified 

in paragraph (h) of this section within 

72 hours from the close of business on 

the day that the petition is entered into 

and available on the FeP. In response to 

a request for a public hearing, FRA may: 

(1) Arrange a telephone conference 

between all interested parties to provide 

an opportunity for oral comment; 

(2) Arrange a public hearing pursuant 

to the provisions contained in 49 CFR 

part 211; or 

(3) Determine that a public hearing is 

unnecessary, inconsistent with safety, or 

not in the public interest. 

(j) Decisions. FRA may grant a 

petition for waiver without prior notice 

and comment if the Administrator 

determines that it is in the public 

interest to grant the waiver; the waiver 

is not inconsistent with railroad safety; 

and the waiver is necessary to address 

an actual or impending emergency 

situation or emergency event. The 

Administrator will state in the decision 

issued under this section the reasons for 

granting the waiver. 

(1) FRA reserves the right to reopen 

any docket and reconsider any decision 

made pursuant to these emergency 

procedures based upon its own 

initiative or based upon information or 

comments otherwise received. 

(2) FRA decision letters, either 

granting or denying a petition, will be 

posted in the appropriate ERD and will 

reference the document number of the 

petition to which it relates. 

(3) A waiver under this section may 

be issued for a period of not more that 

60 days and may be renewed upon 

application to the Administrator only 

after notice and an opportunity for a 

hearing on the waiver. The 

Administrator will immediately revoke 

the waiver if continuation of the waiver 

would not be consistent with the goals 

and objectives of this part. 

(4) In granting a waiver under this 

section, the Administrator will consult 

and coordinate with other Federal 

agencies, as appropriate, for matters that 

may significantly impact such agencies. 

Issued in Washington, DC, on May 13, 

2009. 

Joseph Szabo, 

Administrator, Federal Railroad 

Administration. 

[FR Doc. E9–11598 Filed 5–18–09; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 92 

[FWS–R7–MB–2008–0126; 91200–1231– 

9BPP–L2] 

RIN 1018–AW29 

Migratory Bird Subsistence Harvest in 

Alaska; Harvest Regulations for 

Migratory Birds in Alaska During the 

2009 Season 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (Service or we) establishes 

migratory bird subsistence harvest 

regulations in Alaska for the 2009 

season. These regulations will enable 

the continuation of customary and 

traditional subsistence uses of migratory 

birds in Alaska and prescribe regional 

information on when and where the 

harvesting of birds may occur. These 

regulations were developed under a comanagement process involving the 

Service, the Alaska Department of Fish 

and Game, and Alaska Native 

representatives. The rulemaking is 

necessary because the regulations 

governing the subsistence harvest of 

migratory birds in Alaska are subject to 

annual review. This rulemaking 

establishes region-specific regulations 

that go into effect on the date of 

publication in the Federal Register and 

expire on August 31, 2009. 

DATES: The amendments to subpart D of 

50 CFR part 92 are effective May 19, 

2009, through August 31, 2009. 

FOR FURTHER INFORMATION CONTACT: Fred 

Armstrong, (907) 786-3887, or 

Donna Dewhurst, (907) 786-3499, U.S. 

Fish and Wildlife Service, 1011 E. 

Tudor Road, Mail Stop 201, Anchorage, 

AK 99503. 

SUPPLEMENTARY INFORMATION: 

Why Is This Current Rulemaking 

Necessary? 

This current rulemaking is necessary 

because, by law, the migratory bird 

harvest season is closed unless opened 

by the Secretary of the Interior, and the 

regulations governing subsistence 

harvest of migratory birds in Alaska are 

subject to public review and annual 

approval. The Alaska Migratory Bird Comanagement Council (Co-management 

Council) held a meeting in April 2008 

to develop recommendations for 

changes effective for the 2009 harvest 

season. These recommendations were 

presented to the Service Regulations 

Committee (SRC) on July 30 and 31, 

2008, and were subsequently proposed 

in a December 18, 2008, Federal 

Register (73 FR 76994). 

This rule finalizes regulations for the 

taking of migratory birds for subsistence 

uses in Alaska during the spring and 

summer of 2009. This rule lists 

migratory bird season openings and 

closures by region. 

How Do I Find the History of These 

Regulations? 

Background information, including 

past events leading to this action, 

accomplishments since the Migratory 

Bird Treaties with Canada and Mexico 

were amended, and a history addressing 

conservation issues can be found in the 

following Federal Register documents: 

Date Federal Register 

Citation 

August 16, 2002 67 FR 53511 

July 21, 2003 68 FR 43010 

April 2, 2004 69 FR 17318 

April 8, 2005 70 FR 18244 

February 28, 2006 71 FR 10404 

April 11, 2007 72 FR 18318 

March 14, 2008 73 FR 13788 

These documents, which are all final 

rules setting forth the annual harvest 

regulations, are available at http:// 

alaska.fws.gov/ambcc/regulations.htm. 

Who Is Eligible To Hunt Under These 

Regulations? 

Eligibility to harvest under the 

regulations established in 2003 was 

limited to permanent residents, 

regardless of race, in villages located 


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