        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 92
        [FWS-R7-MB-2008-0099; 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:
          Proposed rule.

          SUMMARY:
          The U.S. Fish and Wildlife Service (Service or we) proposes migratory bird subsistence harvest regulations in Alaska for the 2009 season. The proposed regulations would 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 proposed regulations were developed under a co-management 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 proposes region-specific regulations that would go into effect on April 2, 2009, and expire on August 31, 2009.

          DATES:

          We will accept comments received or postmarked on or before January 20, 2009. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by February 2, 2009.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: RIN 1018-AW29, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          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:
        Public Comments

        You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in the DATES section.

        We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Office of the Alaska Migratory Bird Co-management Council, 1011 E. Tudor Rd., Anchorage, AK 99503, (877) 229-2344.
        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 Co-management 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 approved.
        This rule proposes regulations for the taking of migratory birds for subsistence uses in Alaska during 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 within the Alaska Peninsula, Kodiak Archipelago, the Aleutian Islands and in areas north and west of the Alaska Range (50 CFR 92.5). These geographical restrictions opened the initial subsistence migratory bird harvest to only about 13 percent of Alaska residents. High-population areas such as Anchorage, the Matanuska-Susitna and Fairbanks North Star boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area, and Southeast Alaska were excluded from the eligible subsistence harvest areas.
        Based on petitions requesting inclusion in the harvest, in 2004, we added 13 additional communities based on criteria set forth in 50 CFR 92.5(c). These communities were Gulkana, Gakona, Tazlina, Copper Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, Port Graham, Nanwalek, Tyonek, and Hoonah, with a combined population of 2,766. In 2005, we added three additional communities for glaucous-winged gull egg gathering only, based on petitions requesting inclusion. These southeastern communities were Craig, Hydaburg, and Yakutat, with a combined population of 2,459.
        In 2007, we enacted the Alaska Department of Fish and Game's request to expand the Fairbanks North Star Borough excluded area to include the Central Interior area. This action excluded the following communities from participation in this harvest: Big Delta/Fort Greely, Healy, McKinley Park/Village and Ferry, with a combined population of 2,812. These removed communities reduced the percentage of the State population included in the subsistence harvest to 13 percent.
        How Will the Service Ensure That the Subsistence Harvest Will Not Raise Overall Migratory Bird Harvest or Threaten the Conservation of Endangered and Threatened Species?
        We have monitored subsistence harvest for the past 15 years through the use of annual household surveys in the most heavily used subsistence harvest areas, e.g., the Yukon-Kuskokwim Delta. Continuation of this monitoring enables tracking of any major changes or trends in levels of harvest and user participation after legalization of the harvest. The Service has an emergency closure provision (50 CFR 92.21), so that if any significant increases in harvest are documented for one or more species in a region, an emergency closure can be requested and implemented.
        The Service will institute emergency harvest closures in 2009 if deemed necessary to prevent an imminent threat to the conservation of Steller's eiders. Steller's eiders are divided into Atlantic and Pacific populations; the Pacific population is further divided into the Russia-breeding population along the Russian eastern arctic coastal plain, and the Alaska-breeding population. In 1997, the Alaska-breeding population of Steller's eiders was listed as threatened based on a substantial decrease in the species' breeding range in Alaska and the resulting increased vulnerability of the remaining Alaska-breeding population to extirpation (62 FR 31748; June 11, 1997).
        The Alaska-breeding population of Steller's eiders now nests primarily only on the Alaska Coastal Plain, particularly around Barrow and at very low densities from Wainwright to at least as far east as Prudhoe Bay. A few pairs also apparently remain on the Yukon-Kuskokwim Delta. The apparent reduction in breeding range in Alaska was a major reason for listing the Alaska-breeding population as threatened. Although the cause of the original decline is not known with certainty, current threats to the recovery of Steller's eiders likely include mortality from hunting, exposure to lead shot and other contaminants such as oil, changes in marine habitat, and nest failure and possibly adult mortality from avian and mammalian predators associated with human settlements and development. While we have made progress working to reduce predation, substituting steel shot for lead, and instituting eider conservation outreach programs, mortality from hunting appears to be the greatest current threat.

        A computer-based statistical model was developed by scientists to predict the prognosis for recovery or extinction of the Alaska-breeding population of Steller's eider. Although there is uncertainty surrounding the population size, survival rate, and reproductive rate estimates used to develop this model, results indicate that the Alaska-breeding population of Steller's eiders has a very high probability of becoming extirpated within 10 years without immediate concerted actions designed to reduce adult mortality. For years with available harvest survey data, it appears that possibly 10 percent or more of the Alaska-breeding population of Steller's eiders has been lost due to mortality from hunting. Regulatory and collaborative actions focused on this threat will be necessary to ensure that take is reduced in 2009. The Service will institute emergency closures if the Alaska subsistence harvest of migratory birds is deemed to cause an imminent threat to Steller's eiders in a specific geographic area during the spring migration or the summer breeding period.

        What Is Proposed for Change in the Region-Specific Regulations for 2009?
        Yellow-Billed Loons
        At the request of the North Slope Borough Fish and Game Management Committee, the Co-management Council recommended continuing into 2009 the provisions originally established in 2005 to allow subsistence use of yellow-billed loons inadvertently entangled in subsistence fishing (gill) nets on the North Slope. Yellow-billed loons are culturally important for the Inupiat Eskimo of the North Slope for use in traditional dance regalia. A maximum of 20 yellow-billed loons may be caught in 2009 under this provision. The intent of this provision is not to harvest yellow-billed loons, but to allow use of those loons inadvertently entangled during normal subsistence fishing activities. Individual reporting to the North Slope Borough Department of Wildlife is required by the end of each season. The North Slope Borough has asked fishermen, through announcements on the radio and through personal contact, to report inadvertent entanglements of loons to better estimate the level of mortality caused by gill nets. In 2007, 14 yellow-billed loons were reported taken in fishing nets and an additional 2 were released alive. This provision, to allow subsistence possession and use of yellow-billed loons caught in fishing gill nets, is subject to annual review and renewal by the SRC.
        Aleutian and Arctic Terns
        We are proposing to open a season May 15-June 30 for harvesting Aleutian and arctic tern eggs in the Yakutat Harvest area, from Icy Bay (Icy Cape to Pt. Riou) and the coastal islands bordering the Gulf of Alaska from Pt. Manby southeast to and including Dry Bay. The Yakutat Tlingit Tribe requested this proposal, stating that this regulation would legalize a traditional gathering of tern eggs that has occurred for hundreds of years. The Tlingit refer to the terns as “sea pigeons” and gather eggs for sustenance during the salmon fishing season. “Pigeon eggs” are considered a highly desired food by many Native households in Yakutat. Harvested eggs are shared extensively throughout the community and especially with local Native elders. The Yakutat Tlingit Tribe has agreed to monitor the harvest of tern eggs and this summer would conduct a recall survey of the spring harvest. The Yakutat Ranger Station, U.S. Forest Service, in cooperation with the Service's Alaska Office of Migratory Bird Management is developing methods for monitoring the Aleutian and arctic tern populations in the Yakutat area. Work on this project is under way.
        Steller's Eiders
        We are proposing to add local migratory bird hunting restrictions for the four communities of Barrow, Wainwright, Point Lay, and Point Hope along the North Slope of Alaska. These proposed restrictions include instituting shooting hours, an inspection requirement, a road closure, and clarification of a possession restriction. We are proposing these restrictions in response to the recent mortality of Steller's eiders on the North Slope, the loss of nests and eggs during breeding, and mortality likely associated with crippling due to hunting. We are not proposing to authorize incidental take of Steller's eiders.
        The Service has concerns that harvest pursuant to regulations from previous subsistence seasons would pose an imminent threat to the threatened Steller's eider. It is estimated that 19 (9-37, 95% Confidence Limits) Steller's eiders were harvested on the North Slope during the 2005 subsistence season; the actual reported take was 9 Steller's eiders (Co-Management Council unpublished data, 2006). In 2008, 27 Steller's eiders were found dead at Barrow between June and August 2008; of these, 74 percent were shot. The number of Steller's eiders killed from Barrow to Point Hope during the spring and summer subsistence hunt during 2004-08 requires the Service to develop and implement new regulations. The Service concludes that the subsistence hunt has resulted in an unknown amount of shooting and disturbance that has caused the direct loss of nests, eggs, young, and adults in breeding years. The Service must attempt to eliminate the take of Steller's eiders resulting from the recognition and continuation of the spring and summer subsistence migratory bird hunting in order to conserve and eventually recover this species.
        Of the regulations we are proposing, the shooting hours restriction parallels that found in 50 CFR 20.102. This regulation will help eliminate hunting under poor visibility to improve species identification and reduce the probability of mistaken shooting and crippling of Steller's eiders. We are proposing to require that hunters in the field, when asked, must present their take for species identification to enable the Service to monitor the harvest for take of closed and protected species. Because of the critical status of the Alaska-breeding Steller's eiders (the listed population), we need real-time, reliable information about the take of any Steller's eiders during the subsistence season. We are proposing to clarify, reinforce, and ensure that no person may possess migratory bird species that are not open for subsistence harvest. In Barrow, we are proposing to close a 1-mile buffer zone to migratory bird hunting around specific rural roads to protect birds from harvest and disturbance in the primary nesting area around Barrow. If there had been a 1-mile closed buffer zone for the 2008 breeding period, it would have protected 91 percent of Steller's eider nests documented.
        The goal of these proposed restrictions is to eliminate or significantly reduce the potential impact of the subsistence migratory bird hunt to Steller's eiders. In addition to the regulations, the Service is developing and implementing more effective hunter training on eider identification, harvest monitoring, law enforcement, and outreach. In the event that some or all of the conservation measures and regulations are unsuccessful, and the existing harvest is deemed to pose an imminent threat to the conservation of Steller's eiders, we will apply the emergency closure provision provided in 50 CFR 92.21. In addition, as discussed under “Endangered Species Act Consideration,” we will consult on these proposed regulations under Section 7 of the Endangered Species Act to ensure that they are not likely to jeopardize the continued existence of Steller's eiders or any other listed species.
        Statutory Authority
        We derive our authority to issue these regulations from the Migratory Bird Treaty Act of 1918, 16 U.S.C. 712(1), which authorizes the Secretary of the Interior, in accordance with the treaties with Canada, Mexico, Japan, and Russia, to “issue such regulations as may be necessary to assure that the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs, as determined by the Secretary of the Interior, during seasons established so as to provide for the preservation and maintenance of stocks of migratory birds.”
        Clarity of the Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (a) Be logically organized;

        (b) Use the active voice to address readers directly;
        (c) Use clear language rather than jargon;
        (d) Be divided into short sections and sentences; and
        (e) Use lists and tables wherever possible.

        If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        Required Determinations
        Regulatory Planning and Review (Executive Order 12866)
        The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
        (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        (b) Whether the rule will create inconsistencies with other Federal agencies' actions.
        (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
        (d) Whether the rule raises novel legal or policy issues.
        Regulatory Flexibility Act

        The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial regulatory flexibility analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. The rule legalizes a pre-existing subsistence activity, and the resources harvested will be consumed by the harvesters or persons within their local community.
        Small Business Regulatory Enforcement Fairness Act
        This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
        (a) Will not have an annual effect on the economy of $100 million or more. It will legalize and regulate a traditional subsistence activity. It will not result in a substantial increase in subsistence harvest or a significant change in harvesting patterns. The commodities being regulated under this rule are migratory birds. This rule deals with legalizing the subsistence harvest of migratory birds and, as such, does not involve commodities traded in the marketplace. A small economic benefit from this rule derives from the sale of equipment and ammunition to carry out subsistence hunting. Most, if not all, businesses that sell hunting equipment in rural Alaska would qualify as small businesses. We have no reason to believe that this rule will lead to a disproportionate distribution of benefits.
        (b) Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This rule does not deal with traded commodities and, therefore, does not have an impact on prices for consumers.
        (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule deals with the harvesting of wildlife for personal consumption. It does not regulate the marketplace in any way to generate effects on the economy or the ability of businesses to compete.
        Unfunded Mandates Reform Act

        We have determined and certified under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) that this rule will not impose a cost of $100 million or more in any given year on local, State, or tribal governments or private entities. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act is not required. Participation on regional management bodies and the Co-management Council will require travel expenses for some Alaska Native organizations and local governments. In addition, they will assume some expenses related to coordinating involvement of village councils in the regulatory process. Total coordination and travel expenses for all Alaska Native organizations are estimated to be less than $300,000 per year. In the Notice of Decision (65 FR 16405; March 28, 2000), we identified 12 partner organizations (Alaska Native nonprofits and local governments) to administer the regional programs. The Alaska Department of Fish and Game will also incur expenses for travel to Co-management Council and regional management body meetings. In addition, the State of Alaska will be required to provide technical staff support to each of the regional management bodies and to the Co-management Council. Expenses for the State's involvement may exceed $100,000 per year, but should not exceed $150,000 per year. When funding permits, we make annual grant agreements available to the partner organizations and the Alaska Department of Fish and Game to help offset their expenses.
        Takings (Executive Order 12630)
        Under the criteria in Executive Order 12630, this rule does not have significant takings implications. This rule is not specific to particular land ownership, but applies to the harvesting of migratory bird resources throughout Alaska. A takings implication assessment is not required.
        Federalism (Executive Order 13132)
        Under the criteria in Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. We discuss effects of this proposed rule on the State of Alaska in the Executive Order 12866 and Unfunded Mandates Reform Act sections above. We worked with the State of Alaska to develop these proposed regulations. Therefore, a Federalism Assessment is not required.
        Civil Justice Reform (Executive Order 12988)
        The Department, in promulgating this rule, has determined that it will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
        Government-to-Government Relations With Native American Tribal Governments

        In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), and Executive Order 13175 (65 FR 67249; November 6, 2000), concerning consultation and coordination with Indian Tribal Governments, we have consulted with Alaska tribes and evaluated the rule for possible effects on tribes or trust resources, and have determined that there are no significant effects. The rule will legally recognize the subsistence harvest of migratory birds and their eggs for tribal members, as well as for other indigenous inhabitants.
        Paperwork Reduction Act
        This rule has been examined under the Paperwork Reduction Act of 1995 and has been found to contain no information collection requirements. We have, however, received OMB approval of associated voluntary annual household surveys used to determine levels of subsistence take. The OMB control number for the information collection is 1018-0124, which expires on January 31, 2010. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
        Endangered Species Act Consideration

        Prior to issuance of annual spring and summer subsistence regulations, we will consult under section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to ensure that the 2009 subsistence harvest is not likely to jeopardize the continued existence of any species designated as endangered or threatened, or modify or destroy its critical habitats, and that the regulations are consistent with conservation programs for those species. Consultation under section 7 of the Act for the annual subsistence take regulations may cause us to change these regulations. Our biological opinion resulting from the section 7 consultation is a public document available from the person listed under FOR FURTHER INFORMATION CONTACT.
        National Environmental Policy Act Consideration

        The annual regulations and options were considered in the Environmental Assessment, “Managing Migratory Bird Subsistence Hunting in Alaska: Hunting Regulations for the 2009 Spring/Summer Harvest,” issued December 12, 2008. Copies are available from the person listed under FOR FURTHER INFORMATION CONTACT.
        Energy Supply, Distribution, or Use (Executive Order 13211)
        On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This is not a significant regulatory action under Executive Order 12866; it would allow only for traditional subsistence harvest and would improve conservation of migratory birds by allowing effective regulation of this harvest. Further, this rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action under Executive Order 13211 and no Statement of Energy Effects is required.

          List of Subjects in 50 CFR Part 92
          Exports, Hunting, Imports, Reporting and recordkeeping requirements, Subsistence, Treaties, Wildlife.

        For the reasons set out in the preamble, we propose to amend title 50, chapter I, subchapter G, of the Code of Federal Regulations as follows:

          PART 92—MIGRATORY BIRD SUBSISTENCE HARVEST IN ALASKA
          1. The authority citation for part 92 continues to read as follows:

            Authority:
            16 U.S.C. 703-712.

            Subpart D—Annual Regulations Governing Subsistence Harvest

          2. In subpart D, add § 92.31 to read as follows:

            § 92.31
            Region-specific regulations.
            The 2009 season dates for the eligible subsistence harvest areas are as follows:
            (a) Aleutian/Pribilof Islands Region.

            (1) Northern Unit (Pribilof Islands):
            (i) Season: April 2-June 30.
            (ii) Closure: July 1-August 31.
            (2) Central Unit (Aleut Region's eastern boundary on the Alaska Peninsula westward to and including Unalaska Island):
            (i) Season: April 2-June 15 and July 16-August 31.
            (ii) Closure: June 16-July 15.
            (iii) Special Black Brant Season Closure: August 16-August 31, only in Izembek and Moffet lagoons.
            (iv) Special Tundra Swan Closure: All hunting and egg gathering closed in units 9(D) and 10.
            (3) Western Unit (Umnak Island west to and including Attu Island):
            (i) Season: April 2-July 15 and August 16-August 31.
            (ii) Closure: July 16-August 15.
            (b) Yukon/Kuskokwim Delta Region.

            (1) Season: April 2-August 31.
            (2) Closure: 30-day closure dates to be announced by the Service's Alaska Regional Director or his designee, after consultation with local subsistence users, field biologists, and the Association of Village Council President's Waterfowl Conservation Committee. This 30-day period will occur between June 1 and August 15 of each year. A press release announcing the actual closure dates will be forwarded to regional newspapers and radio and television stations and posted in village post offices and stores.
            (3) Special Black Brant and Cackling Goose Season Hunting Closure: From the period when egg laying begins until young birds are fledged. Closure dates to be announced by the Service's Alaska Regional Director or his designee, after consultation with field biologists and the Association of Village Council President's Waterfowl Conservation Committee. A press release announcing the actual closure dates will be forwarded to regional newspapers and radio and television stations and posted in village post offices and stores.
            (c) Bristol Bay Region.

            (1) Season: April 2-June 14 and July 16-August 31 (general season); April 2-July 15 for seabird egg gathering only.
            (2) Closure: June 15-July 15 (general season); July 16-August 31 (seabird egg gathering).
            (d) Bering Strait/Norton Sound Region.

            (1) Stebbins/St. Michael Area (Point Romanof to Canal Point):
            (i) Season: April 15-June 14 and July 16-August 31.
            (ii) Closure: June 15-July 15.
            (2) Remainder of the region:
            (i) Season: April 2-June 14 and July 16-August 31 for waterfowl; April 2-July 19 and August 21-August 31 for all other birds.
            (ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for all other birds.
            (e) Kodiak Archipelago Region, except for the Kodiak Island roaded area, which is closed to the harvesting of migratory birds and their eggs. The closed area consists of all lands and waters (including exposed tidelands) east of a line extending from Crag Point in the north to the west end of Saltery Cove in the south and all lands and water south of a line extending from Termination Point along the north side of Cascade Lake extending to Anton Larson Bay. Waters adjacent to the closed area are closed to harvest within 500 feet from the water's edge. The offshore islands are open to harvest.
            (1) Season: April 2-June 30 and July 31-August 31 for seabirds; April 2-June 20 and July 22-August 31 for all other birds.
            (2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all other birds.
            (f) Northwest Arctic Region.

            (1) Season: April 2-June 9 and August 15-August 31 (hunting in general); waterfowl egg gathering May 20-June 9 only; seabird egg gathering May 20-July 12 only; hunting molting/non-nesting waterfowl July 1-July 31 only.

            (2) Closure: June 10-August 14, except for the taking of seabird eggs and molting/non-nesting waterfowl as provided in paragraph (f)(1) of this section.
            (g) North Slope Region.

            (1) Southern Unit (Southwestern North Slope regional boundary east to Peard Bay, everything west of the longitude line 158°30′W and south of the latitude line 70°45′N to the west bank of the Ikpikpuk River, and everything south of the latitude line 69°45′N between the west bank of the Ikpikpuk River to the east bank of Sagavinirktok River):
            (i) Season: April 2-June 29 and July 30-August 31 for seabirds; April 2-June 19 and July 20-August 31 for all other birds.
            (ii) Closure: June 30-July 29 for seabirds; June 20-July 19 for all other birds.
            (iii) Special Black Brant Hunting Opening: From June 20-July 5. The open area would consist of the coastline, from mean high water line outward to include open water, from Nokotlek Point east to longitude line 158°30′W. This includes Peard Bay, Kugrua Bay, and Wainwright Inlet, but not the Kuk and Kugrua river drainages.
            (2) Northern Unit (At Peard Bay, everything east of the longitude line 158°30′W and north of the latitude line 70°45′N to west bank of the Ikpikpuk River, and everything north of the latitude line 69°45′N between the west bank of the Ikpikpuk River to the east bank of Sagavinirktok River):
            (i) Season: April 6-June 6 and July 7-August 31 for king and common eiders; April 2-June 15 and July 16-August 31 for all other birds.
            (ii) Closure: June 7-July 6 for king and common eiders; June 16-July 15 for all other birds.
            (iii) Special Hunting Restrictions for Barrow: Migratory bird hunting is not permitted within 1 mile of either side or end of Cakeeater/Gaswell, Nunavak and Freshwater Lake roads and any spur roads.
            (3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
            (i) Season: April 2-June 19 and July 20-August 31.
            (ii) Closure: June 20-July 19.
            (4) All Units: yellow-billed loons. Annually, up to 20 yellow-billed loons total for the region may be inadvertently entangled in subsistence fishing nets in the North Slope Region and kept for subsistence use. Individuals must report each yellow-billed loon inadvertently entangled while subsistence gill net fishing to the North Slope Borough Department of Wildlife Management by the end of the season.
            (5) North Coastal Zone (Cape Thompson north to Point Hope and east along the Arctic Ocean coastline around Point Barrow to Ross Point, including Iko Bay, and 5 miles inland).
            (i) Migratory bird hunting is permitted from one-half hour before sunrise until sunset.
            (ii) No person shall at any time, by any means, or in any manner, possess or have in custody any migratory bird or part thereof, taken in violation of subpart C and D of this part.
            (iii) Upon request from a Service law enforcement officer, hunters taking, attempting to take, or transporting migratory birds taken during the subsistence harvest season must present them to the officer for species identification.
            (h) Interior Region.

            (1) Season: April 2-June 14 and July 16-August 31; egg gathering May 1-June 14 only.
            (2) Closure: June 15-July 15.
            (i) Upper Copper River Region (Harvest Area: Units 11 and 13) (Eligible communities: Gulkana, Chitina, Tazlina, Copper Center, Gakona, Mentasta Lake, Chistochina and Cantwell).
            (1) Season: April 15-May 26 and June 27-August 31.
            (2) Closure: May 27-June 26.
            (3) The Copper River Basin communities listed above also documented traditional use harvesting birds in Unit 12, making them eligible to hunt in this unit using the seasons specified in paragraph (h) of this section.
            (j) Gulf of Alaska Region.
            (1) Prince William Sound Area (Harvest area: Unit 6 [D]), (Eligible Chugach communities: Chenega Bay, Tatitlek).
            (i) Season: April 2-May 31 and July 1-August 31.
            (ii) Closure: June 1-30.
            (2) Kachemak Bay Area (Harvest area: Unit 15[C] South of a line connecting the tip of Homer Spit to the mouth of Fox River) (Eligible Chugach Communities: Port Graham, Nanwalek).
            (i) Season: April 2-May 31 and July 1-August 31.
            (ii) Closure: June 1-30.
            (k) Cook Inlet (Harvest area: portions of Unit 16[B] as specified below) (Eligible communities: Tyonek only).
            (1) Season: April 2-May 31—That portion of Unit 16(B) south of the Skwentna River and west of the Yentna River, and August 1-31—That portion of Unit 16(B) south of the Beluga River, Beluga Lake, and the Triumvirate Glacier.
            (2) Closure: June 1-July 31.
            (l) Southeast Alaska.

            (1) Community of Hoonah (Harvest area: National Forest lands in Icy Strait and Cross Sound, including Middle Pass Rock near the Inian Islands, Table Rock in Cross Sound, and other traditional locations on the coast of Yakobi Island. The land and waters of Glacier Bay National Park remain closed to all subsistence harvesting [50 CFR 100.3].
            (i) Season: Glaucous-winged gull egg gathering only: May 15-June 30.
            (ii) Closure: July 1-August 31.
            (2) Communities of Craig and Hydaburg (Harvest area: Small islands and adjacent shoreline of western Prince of Wales Island from Point Baker to Cape Chacon, but also including Coronation and Warren islands).
            (i) Season: Glaucous-winged gull egg gathering only: May 15-June 30.
            (ii) Closure: July 1-August 31.
            (3) Community of Yakutat (Harvest area: Icy Bay [Icy Cape to Pt. Riou], and coastal lands and islands bordering the Gulf of Alaska from Pt. Manby southeast to Dry Bay).
            (i) Season: Glaucous-winged gull, aleutian and arctic tern egg gathering: May 15-June 30.
            (ii) Closure: July 1-August 31.
            3. In subpart D, add § 92.32 to read as follows:

            § 92.32
            Emergency regulations to protect Steller's eiders.
            Upon finding that continuation of these subsistence regulations would pose an imminent threat to the conservation of threatened Steller's eiders, the U.S. Fish and Wildlife Service Alaska Regional Director, in consultation with the Co-management Council, will immediately under § 92.21 take action as is necessary to prevent further take. Regulation changes implemented could range from a temporary closure of duck hunting in a small geographic area to large-scale regional or State-wide long-term closures of all subsistence migratory bird hunting. Such closures or temporary suspensions will remain in effect until the Regional Director, in consultation with the Co-management Council, determines that the potential for additional Steller's eiders to be taken no longer exists.

            Dated: December 10, 2008.
            Lyle Laverty,
            Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E8-30081 Filed 12-17-08; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Parts 1011, 1034, 1102, 1104, and 1115
        [Docket No. EP 697]
        Amtrak Emergency Routing Orders

          AGENCY:
          Surface Transportation Board, DOT.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Surface Transportation Board (Board or STB) proposes to establish regulations governing the issuance of emergency routing orders upon application of the National Railroad Passenger Corporation (Amtrak). Pursuant to 49 U.S.C. 24308(b), the Board has statutory authority to require rail carriers to provide facilities immediately when necessary for the movement of Amtrak trains when Amtrak cannot operate its trains via normal routings due to rail line closures or other emergencies.

          DATES:
          Comments are due by February 7, 2011. Reply comments are due by February 22, 2011.

          ADDRESSES:
          Information or questions regarding this proposed rule should reference Docket No. EP 697 and be in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001.
          Copies of written comments will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.

          FOR FURTHER INFORMATION CONTACT:
          Gabriel S. Meyer at 202-245-0389. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.

        SUPPLEMENTARY INFORMATION:
        The Board proposes to establish regulations governing the issuance of emergency routing orders upon application of the National Railroad Passenger Corporation (Amtrak). The rules will be codified at 49 CFR parts 1011, 1034, 1102, 1104, and 1115.
        Amtrak is a government-owned corporation that operates intercity passenger trains on an approximately 21,000-mile rail network, serving 46 States and 3 Canadian provinces. During its 2010 fiscal year, Amtrak carried more than 28 million passengers. With the exception of certain rail lines located primarily in the northeastern United States, Amtrak does not own the lines over which its trains operate. Most of the lines Amtrak uses are owned and operated by freight railroads, which are subject to the Board's jurisdiction.
        Periodically, an established Amtrak route becomes blocked or closed as the result of a derailment, unscheduled maintenance, severe weather, or other emergency. In these circumstances, if an alternate rail routing exists, Amtrak may seek to detour its trains around the blockage using the alternate route. If no alternate route is available, Amtrak may be forced to suspend train operations.
        In most emergency rerouting situations, Amtrak reaches a voluntary agreement governing the terms of its use with the rail carrier that owns the alternate route. Occasionally, however, Amtrak is unable to reach an agreement. In this event, Amtrak may seek relief from the Board as provided by the statute:

          Operating During Emergencies.—To facilitate operation by Amtrak during an emergency, the Board, on application by Amtrak, shall require a rail carrier to provide facilities immediately during the emergency. The Board then shall promptly prescribe reasonable terms, including indemnification of the carrier by Amtrak against personal injury risk to which the carrier may be exposed. The rail carrier shall provide the facilities for the duration of the emergency.

        49 U.S.C. 24308(b).

        Currently, there are no Board rules establishing procedures for Amtrak to obtain the relief authorized by the statute.1
           The Board therefore proposes revising its rules to remove uncertainty regarding Amtrak emergency routing order applications. The proposed rules are set forth in this decision and are discussed below.

            1 A Board order served on February 23, 1996 (Appointment of Agent to Require Emergency Routing of Amtrak Passenger Trains) (no docket number), named an agent of the Board, who was vested with authority to issue orders requiring railroads to make their facilities immediately available to Amtrak during emergencies. This continued a past practice of vesting, in named individuals, authority to issue such emergency orders. The agent named in the 1996 decision has since retired. As a result, the Board is revising its procedures for Amtrak emergency routing order requests. The Board has rarely had to issue Amtrak emergency routing orders. It last issued one in 1997. STB Passenger Train Operation No. 123, STB served Aug. 12, 1997 (no docket number).

        Delegations of Authority

          Section 1011.4(a)(10): Under the proposed rules, authority to issue Amtrak emergency routing orders is delegated to the Chairman of the Surface Transportation Board (Chairman). The Board proposes adding this delegation of authority to others already contained in 49 CFR 1011.4(a). Additionally, in accordance with the existing rule at 49 CFR 1011.3(a)(3), in the Chairman's absence, authority for issuance of Amtrak emergency routing orders will be vested in the Vice Chairman, and in the event of the absence of both the Chairman and Vice Chairman, authority for issuance of Amtrak emergency routing orders will be vested in the remaining Board Member.
        Filing Procedures
        The proposed rules establish procedures that Amtrak shall use when submitting emergency routing order applications. The procedures are found at 49 CFR parts 1034 and 1104.

          Section 1034.2(a). This proposed rule requires Amtrak to file emergency routing order applications in accordance with the Board's rules of practice at 49 CFR part 1104, except as otherwise provided in part 1034. The rule further requires that due to the time-sensitive nature of such applications, Amtrak shall file them with the Board in person or using the Board's e-filing option (as set forth at 49 CFR 1104.1(e)). Simultaneously, Amtrak shall send facsimile copies of applications to the Office of the Chairman at 202-245-0452 and to the Director of the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) at 202-245-0461.2

            2 The Board understands that, given Amtrak's service schedule, emergencies necessitating Board intervention under these proposed regulations may arise outside of normal business hours. As indicated by the very short response times in the proposed regulations, the Board is prepared to handle all requests quickly. If necessary, Amtrak may, during non-business hours, alert the Board via e-mail to an imminent filing by Amtrak to be made on the next business day. The Board will establish a designated e-mail address for this purpose at a later date.

          Section 1034.2(b). This proposed rule describes the required contents of Amtrak emergency routing order applications. Applications shall: (1) Describe the nature of the emergency necessitating the routing order and its expected duration; (2) identify the Amtrak operations or trains that are or will be affected by the emergency; (3) provide an exact description of the facilities required for Amtrak's use, including, if available, mileposts of the detour line(s) it intends to use; (4) describe Amtrak's efforts to reach a consensual agreement with the carrier(s) whose facilities it seeks to use, including the name(s) of the representative(s) contacted; (5) include proposed terms of the detour agreement, including indemnification of the carrier(s) by Amtrak; and (6) specify the date on which Amtrak intends to begin using the facilities.

          Section 1034.2(c). This proposed rule requires Amtrak, when filing an emergency routing order application, to make best efforts to simultaneously serve a copy of its application upon any affected rail carrier(s) via facsimile, e-mail, or in person, to confirm receipt of the application, and to certify to the Board that it has done so. Because of the emergency nature of such applications, no other means of service is sufficient to provide timely notice to affected parties. This proposed rule also requires Amtrak to comply with the general service requirements of 49 CFR 1104.12, to the extent they do not conflict with this rule. For purposes of fulfilling the requirement under this rule that Amtrak simultaneously serve affected carriers, Amtrak must serve its application upon the representative(s) of the carrier(s) contacted in its efforts to reach a consensual agreement governing Amtrak emergency routing, and upon the registered agent(s) of the carrier(s).

          Section 1034.2(d). This proposed rule establishes that any carrier potentially affected by an Amtrak emergency routing order application must file a reply with the Board within 1 business day following Amtrak's service of its application upon the carrier. However, because the language of the authorizing statute requires that the Board “promptly prescribe” emergency routing agreement terms, it may be impractical in some instances for the Board to await replies from affected carriers before acting on Amtrak's request. The Board will therefore consider replies as time permits and, if necessary, the Board may contact Amtrak or affected carriers to seek their input. (See the proposed rule at 49 CFR 1102.2(b)(4) governing ex parte communications.) When filing a reply, an affected carrier shall be governed by the same filing and service rules as those governing Amtrak's filing.

          Section 1034.2(e). This proposed rule requires the Chairman, or in the Chairman's absence, the Vice Chairman or remaining Board Member, to issue an initial decision granting or denying Amtrak's application for an emergency routing order no later than 1 business day after Amtrak files it with the Board.

          Section 1104.12(b). This rule provides for certain exceptions to the Board's rules governing service of pleadings. As modified, the rule incorporates by reference the special filing and service requirements for Amtrak emergency routing order applications and replies thereto contained in 49 CFR 1034.2(a) and (c). The rule also provides that appeals and replies thereto are subject to the requirements of 49 CFR 1034.2(a) and (c).
        Ex Parte Communications

          Section 1102.2(b)(4). The Board proposes to add this rule to the list of instances in which ex parte communications are not prohibited. This rule is necessary to allow the Board, or designated Board staff, to obtain information in situations in which it may be impractical to await formal written submissions from Amtrak or affected carriers. This rule also permits ex parte communications with Amtrak, or carrier(s) over whose lines Amtrak seeks emergency routing authority, in connection with an appeal of the Board's initial decision on an Amtrak emergency routing order application.
        Appeals

          Section 1115.2(h)(1). This proposed rule provides that parties may appeal initial Amtrak emergency routing order decisions. Under the proposed rule, any appeal must be filed within 1 business day following service of the decision.

          Section 1115.2(h)(2). Under this proposed rule, a reply to an appeal is optional. Any reply must be filed within 1 business day following the filing of the appeal, and the Board will consider replies only if time permits. If necessary, the Board may contact Amtrak or an affected carrier to seek its input regarding an appeal. (See proposed rule at 49 CFR 1102.2(b)(4) governing ex parte communications.)

          Section 1115.2(h)(3). This proposed rule requires the entire Board to issue a decision granting or denying an appeal of an initial Amtrak emergency routing order decision within 1 business day following the filing of an appeal.

          Section 1115.2(h)(4). This proposed rule provides that the filing of an appeal will not stay the effectiveness of an Amtrak emergency routing order that has already taken effect, or otherwise stay the effectiveness of an initial decision regarding Amtrak's application for an emergency routing order.

          Section 1115.2(i). This proposed rule provides that when filing appeals of initial decisions on Amtrak emergency routing applications, or replies to such appeals, parties are governed by the special service rules contained at 49 CFR 1034.2(a) and (c).

        The Board further proposes modifying, as necessary, section 1115.2(e) (time to file appeals and replies to appeals) and section 1115.2(f) (appeal staying effectiveness of decision) to reflect the addition of section 1115.2(h). Section 1115.2(e) currently permits parties to appeal decisions of an individual Board Member (including the Chairman) within 20 days following issuance, and permits parties to file replies to appeals within 20 days following the filing of an appeal. Under the proposed rules, section 1115.2(e) will establish that the 20-day appeal and reply deadlines will not apply to appeals of initial decisions on Amtrak emergency routing order applications. Section 1115.2(f) currently provides that a timely filed appeal will stay the effectiveness of a decision pending a determination of the appeal. Under the proposed rules, section 1115.2(f) will provide that the filing of an appeal will not stay the effectiveness of an initial decision on an Amtrak emergency routing order application.
        Conclusion
        With regard to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, this action directly impacts Amtrak and does not directly impact small entities as defined in the Regulatory Flexibility Act. Accordingly, pursuant to 5 U.S.C. 605(b), the Board certifies that these proposed regulations will not have a significant impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. A copy of this decision is being provided to the Chief Counsel for Advocacy, Small Business Administration.
        This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

          List of Subjects
          49 CFR Part 1011
          Administrative practice and procedure, authority delegations (Government agencies), organization and functions (Government agencies).
          49 CFR Part 1034
          Railroads.
          49 CFR Part 1102
          Communications.
          49 CFR Part 1104
          Administrative practice and procedure.
          49 CFR Part 1115
          Appellate procedures.

          It is ordered:

        1. The Board proposes rules as set forth in this decision. Notice of the proposed rules will be published in the Federal Register.
        2. Comments regarding the proposed rules are due by February 7, 2011. Reply comments are due by February 22, 2011.

          Decided: December 22, 2010.

          By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.
          Andrea Pope-Matheson,
          Clearance Clerk.

        For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend parts 1011, 1034, 1102, 1104, and 1115 of title 49, chapter X, of the Code of Federal Regulations, as follows:

          PART 1011—BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
          1. The authority citation for part 1011 is revised to read as follows:

            Authority:
            5 U.S.C. 553; 31 U.S.C. 9701; and 49 U.S.C. 701, 721, 11123, 11124, 11144, 14122, 15722, and 24308(b).

          2. Amend § 1011.4 by adding paragraph (a)(10) to read as follows:

            § 1011.4
            Delegations to Individual Board Members.
            (a) * * *
            (10) Issuance of decisions on Amtrak applications for emergency routing orders, filed pursuant to 49 U.S.C. 24308(b) (Operating during emergencies).

          PART 1034—ROUTING OF TRAFFIC
          3. The authority citation for part 1034 is revised to read as follows:

            Authority:
            49 U.S.C. 721, 11123, and 24308(b).

          4. Add § 1034.2 to read as follows:

            § 1034.2
            Amtrak emergency routing orders.
            (a) Filing. All Amtrak applications for emergency routing orders shall be made in accordance with the Board's rules of practice at 49 CFR Part 1104, except to the extent otherwise provided in this paragraph (a) and paragraph (c) of this section.
            (1) Amtrak shall file any application for an emergency routing order with the Board in person or using the Board's e-filing option (as described at 49 CFR 1104.1(e)).
            (2) Simultaneously with its filing of an emergency routing order application, Amtrak shall send facsimile copies of its application to the Office of the Chairman at 202-245-0452 and to the Director of the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) at 202-245-0461.
            (b) Contents of application. Amtrak applications for emergency routing orders shall contain the following information:
            (1) A description of the nature of the emergency necessitating the routing order and its expected duration.
            (2) A description of Amtrak trains or operations that are or will be affected by the emergency.
            (3) An exact description of the facilities required for Amtrak's use, including mileposts of the detour line(s), if available.
            (4) An explanation of Amtrak's efforts to reach a consensual agreement with the carrier(s) whose facilities Amtrak seeks to use, including the name(s) of the representative(s) contacted.
            (5) Proposed terms of the detour agreement, including indemnification of the carrier(s) by Amtrak.
            (6) The date on which Amtrak intends to begin using the facilities.
            (c) Service. When filing an emergency routing order application with the Board, Amtrak shall certify to the Board that it simultaneously served, or made best efforts to serve, its application upon the affected rail carrier(s) via facsimile, e-mail, or in person, and that its application was received by the affected rail carrier(s). In serving affected rail carrier(s), Amtrak shall serve its application upon the representative(s) of the carrier(s) contacted in its efforts to reach a consensual agreement governing Amtrak emergency routing, and shall serve the registered agent(s) of the carrier(s). Amtrak shall also comply with the general service requirements of 49 CFR 1104.12 to the extent they do not conflict with this paragraph (c).
            (d) Replies. Any carrier potentially affected by an Amtrak application for an emergency routing order shall file a reply with the Board within 1 business day of the time Amtrak serves a copy of its application upon the carrier. The Board will consider replies as time permits. When filing a reply, a carrier shall comply with the filing and service requirements contained in paragraphs (a) and (c) of this section, and 49 CFR 1104.12 to the extent they do not conflict with paragraphs (a) and (c) of this section.
            (e) Decisions. An initial decision granting or denying Amtrak's application for an emergency routing order shall be issued no later than 1 business day after Amtrak files its application for an emergency routing order with the Board.

          PART 1102—COMMUNICATIONS
          5. The authority citation for part 1102 is revised to read as follows:

            Authority:
            49 U.S.C. 721 and 24308(b).

          6. Amend § 1102.2 by adding paragraph (b)(4) to read as follows:

            § 1102.2
            Ex parte communications prohibited; penalties provided.

            (b) * * *
            (4) Any communication made by the Board, any Board Member, or designated staff member, to obtain information from Amtrak or from a carrier(s) over whose lines Amtrak seeks emergency routing authority, regarding an emergency routing order application or an appeal thereof, pursuant to the Board's authority under 49 U.S.C. 24308(b).

          PART 1104—FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-PLEADINGS, GENERALLY
          7. The authority citation for part 1104 is revised to read as follows:

            Authority:
            5 U.S.C. 553 and 559; 18 U.S.C. 1621; 21 U.S.C. 862; and 49 U.S.C. 721 and 24308(b).

          8. Amend § 1104.12 by revising paragraph (b) to read as follows:

            § 1104.12
            Service of pleadings and papers.

            (b) Exceptions. (1) Copies of letters to the Board relating to oral argument under part 1116, and subpoenas under § 1113.2, need not be served on other parties of the proceeding. Service of comments in rulemaking proceedings is not required, unless specifically directed by the Board.
            (2) When filing an emergency routing order application, or reply to such application, with the Board, Amtrak and affected carriers shall comply with the special filing and service requirements contained in 49 CFR 1034.2(a) and (c). These requirements also apply to the filing of an appeal to an initial Amtrak emergency routing order decision or to a reply to such an appeal. Amtrak and affected carriers shall comply with the general service requirements of paragraph (a) of this section, to the extent they do not conflict with 49 CFR 1034.2(a) and (c).

          PART 1115—APPELLATE PROCEDURES
          9. The authority citation for part 1115 is revised to read as follows:

            Authority:
            5 U.S.C. 559, and 49 U.S.C. 721 and 24308(b).

          10. Amend § 1115.2 by revising paragraphs (e) and (f), and adding paragraphs (h) and (i) to read as follows:

            § 1115.2
            Initial decisions.

            (e) Except as provided in paragraph (h)(1) of this section, appeals must be filed within 20 days after the service date of the decision or within any further period (not to exceed 20 days) the Board may authorize. Except as provided in paragraph (h)(2) of this section, replies must be filed within 20 days of the date the appeal is filed.
            (f) Except as provided in paragraph (h)(4) of this section, the timely filing of an appeal to an initial decision will stay the effectiveness of the action pending determination of the appeal.

            (h) Appeals to initial decisions on Amtrak applications for emergency routing orders.
            (1) Any carrier potentially affected by an initial Amtrak emergency routing order decision may appeal such a decision. Any appeal must be filed within 1 business day following service of the initial decision.
            (2) A reply to an appeal of an initial Amtrak emergency routing order decision is optional. Any reply must be filed within 1 business day following the filing of the appeal. The Board will consider replies only if time permits.
            (3) The entire Board shall issue a decision granting or denying an appeal to an initial Amtrak emergency routing order decision within 1 business day following the filing of an appeal.
            (4) Filing of an appeal will not stay the effectiveness of an Amtrak emergency routing order that has already taken effect, or otherwise stay the effectiveness of an initial decision on Amtrak's application for an emergency routing order.
            (i) When filing appeals to initial decisions on Amtrak emergency routing order applications, and replies to such appeals, parties are governed by the special service rules contained at 49 CFR 1034.2(a) and (c).

      [FR Doc. 2010-33284 Filed 1-5-11; 8:45 am]
      BILLING CODE 4915-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 020612146-2146-01; I.D. 042602F]
        RIN 0648-AP90
        Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Quota Specifications and General Category Effort Controls

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed initial 2002 quota specifications and General category effort controls; public hearings; request for comments.

          SUMMARY:
          NMFS proposes initial specifications for the Atlantic bluefin tuna (BFT) fishery to set BFT quota and General category effort controls for the fishing year beginning June 1, 2002.  The proposed initial quota specifications and effort controls are necessary to implement the 1998 recommendation of the International Commission for the Conservation of Atlantic Tunas (ICCAT) establishing a rebuilding program for Western Atlantic BFT,  which is required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).  NMFS will hold public hearings to receive comments from fishery participants and other members of the public regarding the proposed initial quota specifications and effort controls.

          DATES:
          Written comments must be received on or before July 24, 2002.
          The public hearings dates are:
          1.  July 8, 2002, 7 p.m.—9 p.m., Gloucester, MA.
          2.  July 9, 2002, 2 p.m.—4 p.m., Silver Spring, MD.
          3.  July 10, 2002, 7 p.m.—9 p.m., Atlantic Beach, NC.

          ADDRESSES:

          Written comments on the proposed initial quota specifications and General category effort controls should be sent to Christopher Rogers, Chief, Highly Migratory Species Management Division, Office of Sustainable Fisheries (F/SF1), NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3282.  Comments also may be sent via facsimile (fax) to (301) 713-1917.  Comments will not be accepted if submitted via e-mail or the Internet.
          The public hearing locations are:
          1. Fuller Elementary School, 4 School House Road, Gloucester, MA 01930.
          2.  Silver Spring NOAA Science Center, 1301 East-West Highway, Silver Spring, MD 20910.
          3.  Atlantic Beach Sheraton Atlantic Beach Oceanfront Hotel, 2717 W. Fort Macon Road, Atlantic Beach, NC 28512.

          FOR FURTHER INFORMATION CONTACT:
          Brad McHale (978) 281-9260.

        SUPPLEMENTARY INFORMATION:
        Atlantic tunas are managed under the dual authority of the Magnuson-Stevens Act and ATCA.  ATCA authorizes the Secretary of Commerce (Secretary) to implement binding recommendations of ICCAT.  The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).
        Background
        On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) final regulations, effective July 1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP) that was adopted and made available to the public in April 1999.  The proposed initial specifications are necessary to implement the 1998 ICCAT recommendation, establishing a rebuilding program for Western Atlantic BFT,  which is required by ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act.  The proposed initial quota specifications would allocate the total ICCAT-recommended quota among the several established fishing categories, would carryover any unharvested 2001 fishing year quota, and would be consistent with the BFT rebuilding program as set forth in the HMS FMP.

        NMFS proposes the 2002 fishing year (June 1, 2002—May 31, 2003) BFT initial quota specifications under the annual and inseason adjustment procedures of the HMS FMP.  Also, in accordance with the HMS FMP, NMFS proposes the General category effort control schedule, including time-period subquotas and restricted fishing days (RFDs), for the upcoming fishing season.  After consideration of public comment, NMFS will issue final initial specifications and publish them in the Federal Register.  The final initial quota specifications may subsequently be adjusted during the course of the fishing year, consistent with the provisions of the HMS FMP.  Notice of any such adjustments will be published in the Federal Register.
        Domestic Quota Allocation
        The HMS FMP and the implementing regulations established baseline percentage quota shares of the ICCAT-recommended U.S. BFT quota for each of the domestic fishing categories.  These percentage shares were based on allocation procedures that had been developed by NMFS over several years.  The baseline percentage quota shares established in the HMS FMP for fishing years beginning June 1, 1999 are as follows:  General category— 47.1 percent; Harpoon category—3.9 percent; Purse Seine category—18.6 percent; Angling category—19.7 percent; Longline category—8.1 percent; Trap category—0.1 percent; and Reserve —2.5 percent.
        The current ICCAT BFT quota recommendation allows, and U.S. regulations require, the addition or subtraction, as appropriate, of any underharvest or overharvest in a fishing year to the following fishing year, provided that such carryover does not result in overharvest of the total annual quota and is consistent with all applicable ICCAT recommendations, including restrictions on landings of school BFT.  Therefore, NMFS proposes to adjust the 2002 fishing year quota specifications for the BFT fishery to account for underharvest and overharvest in the 2001 fishing year.
        The General and Purse Seine category fisheries for BFT have been  closed for the remainder of the 2001 fishing year (June 1, 2001 - May 31, 2002).  The landings figures are still preliminary, however, and may be updated before the 2002 specifications are finalized.  For the 2001 fishing year, NMFS has preliminarily determined that General category landings were higher than the adjusted General category quota by 13.0 mt and Purse Seine category landings were fewer than the adjusted Purse Seine category quota by 59.7 mt.  Based on the estimated amount of Reserve that NMFS is maintaining for the landing of BFT taken during ongoing scientific research projects, NMFS estimates that 6.9 mt of Reserve remains unharvested from the 2001 fishing year.  This remaining Reserve quota will be used to partially cover the General category overharvest in 2001.

        Given estimated catch rates and available quota, the Angling Longline, Trap, and Harpoon category fisheries will remain open through May 31, 2002.  As NMFS anticipates publication of final BFT quota specifications for the 2002 fishing year prior to the availability of final 2001 landings figures for these three categories, best estimates will be used to determine carryover amounts, if any.  To date, Harpoon category landings are less than the adjusted Harpoon category quota by 22.0 mt and the Angling category has the following underharvests for the 2001 fishing year:  School BFT—84.6 mt; large school/small medium BFT—70.3 mt; and large medium/giant BFT—1.0 mt.  In addition, 20.1 mt remains in the school reserve.  To date, 56.6 mt remain in the Longline category.  The final initial 2002 BFT quota specifications will be issued based on updated 2001 landings.  Should adjustments to the final initial 2002 BFT quota specifications be required based on the final 2001 BFT landings figures, NMFS will publish a Federal Register notice adjusting the final initial 2002 fishing year quota specifications.
        In accordance with the regulations regarding annual adjustments at § 635.27(a)(9)(ii), NMFS proposes specifications for the 2002 fishing year that include carryover adjustments.  The proposed quotas are: General category—647.2 mt; Harpoon category—76.1 mt; Purse Seine category—317.7 mt; Angling category—429.1 mt; Longline category—148.9 mt; and Trap category—2.3 mt.  Additionally, 75.3 mt would be reserved for inseason allocations or to cover scientific research collection and potential overharvest in any category except the Purse Seine category.  Regulations at 50 CFR 635.27(a)(9)(i) require Purse Seine category under or overharvests be subtracted from or added to each individual vessel's quota allocation, as appropriate.  These proposed quotas include provisions for each category to carry forward any underharvest from 2001 to the 2002 fishing year.  The exception to this is that the unused school reserve (approximately 20.1 mt) from 2001, along with an additional 20.0 mt of unused Longline South subcategory quota would be placed into the Reserve.  This additional reserve quota would be allocated among the domestic fishing categories, as appropriate during the 2002 fishing year, in accordance with the inseason transfer criteria in the HMS regulations.

        As part of the BFT rebuilding program, ICCAT recommended an allowance for dead discards.  The U.S. dead discard allowance is 68 mt.  The 2000 preliminary estimate of U.S. dead discards, as reported in pelagic longline vessel logbooks, totaled 67.0 mt (U.S. National Report to ICCAT 2001).  As estimates of BFT dead discards for the 2001 fishing year will not be available for some time, the estimate for the 2000 calendar year was used to calculate the amount to be added to, or subtracted from, the U.S. BFT landings quota for 2002 as a result of dead discards.  Estimates of dead discards from other gear types and fishing sectors that do not use the pelagic longline vessel logbook are unavailable at this time and thus are not included in this calculation.  As U.S. fishing activity is estimated to have resulted in less dead discards than its allowance, the ICCAT recommendation and U.S. regulations state that the U.S. may add one half of the difference between the amount of dead discards and the allowance (i.e., 68.0 mt - 67.0 mt = 1.0 mt, 1.0 mt/2 = 0.5 mt) to its total allowed landings for the following year, or to individual fishing categories or to the Reserve.  NMFS proposes to allocate the 0.5 mt to the Reserve quota, which could than be allocated to individual fishing categories as necessary during the fishing year.
        Based on the proposed initial specifications, the Angling category quota of 429.1 mt would be divided as follows:  School BFT—175.1 mt, with 98.1 mt to the northern area (north of 39° 18′ N. latitude), 77.0 mt to the southern area (south of 39°  18′ N. latitude), plus 20.5 mt held in reserve; large school/small medium BFT— 226.2 mt, with 120.5 mt to the northern area and 105.7 mt to the southern area; and large medium/giant BFT—7.3 mt, with 3.1 mt to the northern area and 4.2 mt to the southern area.  These subquotas reflect the adjusted north-south dividing line (39° 18′ N. latitude) and percentage quota allocations in the northern and southern areas for the Angling category, as implemented by NMFS through a final rule on August 15, 2001 (66 FR 42801).
        The Longline category quota of 148.9 mt would be subdivided as follows: 30.9 mt to longline vessels landing BFT north of 34°  N. latitude and 118.0 mt to longline vessels landing BFT south of 34°  N. latitude.
        General Category Effort Controls
        For the last several years, NMFS has implemented General category time-period subquotas to increase the likelihood that fishing would continue throughout the late summer and early fall fishing seasons.  The subquotas are consistent with the objectives of the HMS FMP and are designed to address concerns regarding allocation of fishing opportunities, to assist with distribution and achievement of optimum yield, to allow for a late season fishery, and to improve market conditions and scientific monitoring.
        The HMS FMP divides the annual General category quota into three time-period subquotas as follows:  60 percent for June-August, 30 percent for September, and 10 percent for October-December.  These percentages would be applied to the adjusted 2002 coastwide quota for the General category of 637.2 mt, with the remaining 10.0 mt being reserved for the New York Bight fishery.  Therefore, coastwide, 382.3 mt would be available in the period beginning June 1 and ending August 31; 191.2 mt would be available in the period beginning September 1 and ending September 30; and 63.7 mt would be available in the period beginning October 1 and ending December 31, 2001.
        In addition to time period subquotas, NMFS also has implemented General category RFDs to extend the fishing season throughout the summer and fall.  The RFDs are consistent with the objectives of the HMS FMP and are designed to address the same issues addressed by time-period subquotas.  For the 2002 fishing year, NMFS proposes a schedule of RFDs that is similar to that implemented in 2001, adjusted as necessary to coordinate with Japanese market holidays.
        As proposed, persons aboard vessels permitted in the General category would be prohibited from fishing, including tag-and-release, for BFT of all sizes on the following days:  August 10, 11, and 12; September 1, 2, 4, 8, 9, 11, 15, 16, 18, 22, 23, 25, 29, and 30; October 2, 6, 7, and 9.  These proposed RFDs would improve distribution of fishing opportunities without increasing BFT mortality.
        Public Hearings and Special Accommodations
        The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately.  At the beginning of each public hearing, a NMFS representative will explain the ground rules (e.g., alcohol is prohibited from the hearing room; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; and attendees should not interrupt one another).  The NMFS representative will attempt to structure the hearing so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s).  Attendees are expected to respect the ground rules, and, if they do not, they will be asked to leave the hearing.

        The public hearing sites are physically accessible to people with disabilities.  Requests for sign language interpretation or other auxiliary aids should be directed to Brad McHale (see FOR FURTHER INFORMATION CONTACT) at least 7 days prior to the hearing.
        Classification

        These proposed specifications and effort controls are published under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq. Preliminarily, the AA has determined that the proposed specifications and the effort controls are consistent with the HMS FMP, the Magnuson-Stevens Act, and the 1998 ICCAT BFT catch recommendation.
        The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed specifications and effort controls would not have a significant economic impact on a substantial number of small entities as follows:

          The current level of participation in the Atlantic BFT fisheries has remained relatively consistent over the last couple of years since the HMS FMP was finalized.  For instance, in 2001 there were 22,289 vessels that possessed either an Atlantic tunas permit or a HMS CHB permit.  In 2000 and in 1999 there were 24,845 and 23,005 vessel permits respectively.  The number of Atlantic tunas permit holders in each quota category has also remained relatively consistent since the HMS FMP was finalized.  For example, in 2000 there were 9,468 vessels that possessed either a General category Atlantic tunas permit or a HMS Charter/Headboat permit, in 2001 there were 9,332 vessels permitted in either the General category Atlantic tunas permit or the HMS Charter/Headboat permit category.  The similarity in number of vessels participating in a particular quota category from year to year holds true for the remaining category types (Angling, Longline, Harpoon, Purse Seine, and Trap) as well.  In addition, according to the 2002 SAFE report, the value of the BFT fishery has increased from $17,488,624 in 1996 to $18,810,704 in 2000.

          Due to the fact that the value of the BFT fishery is increasing, the overall U.S. Atlantic baseline BFT quota has not changed, the domestic breakdown of the U.S. Atlantic baseline BFT quota has not changed, and the level of participation in the U.S. Atlantic BFT fishery has remained relatively consistent since the original economic analyses were conducted in the HMS FMP, as reflected more recently in the 2002 SAFE report, NMFS has determined the Proposed Initial 2002 Quota Specifications and General Category Effort Controls, if implemented, would not have a significant economic impact on a substantial number of small entities.
          As mentioned above, NMFS has certified to the Small Business Administration that the proposed rule is not significant.  As a result of this certification, an Initial Regulatory Flexibility Analysis was not prepared for this action.

        Because of this certification, an Initial Regulatory Flexibility Analysis was not prepared.
        These proposed quota specifications and General category effort controls have been determined to be not significant for purposes of Executive Order 12866.
        On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the Endangered Species Act.  A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction.  NMFS is currently implementing the reasonable and prudent alternative required by the BiOp.  These proposed quota specifications and effort controls would not have any additional impact on sea turtles as these actions would not likely increase or decrease pelagic longline effort, nor are they expected to shift effort into other fishing areas.  No irreversible or irretrievable commitments of resources are expected from this proposed action that would have the effect of foreclosing the implementation of the requirements of the BiOp.
        The area in which this proposed action is planned has been identified as EFH for species managed by the New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the South Atlantic Fishery Management Council, the Gulf of Mexico Fishery Management Council, the Caribbean Fishery Management Council, and the Highly Migratory Species Division of the Office of Sustainable Fisheries at NMFS.  It is not anticipated that this action will have any adverse impacts to EFH and, therefore, no consultation is required.

          Dated:  June 24, 2002.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 02-16264  Filed 6-24-02; 3:07 pm]
      BILLING CODE 3510-22-S