Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Rules and Regulations 73661 

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 

[$132,300,000 or more (as adjusted for 

inflation)] in any one year, and before 

promulgating any final rule for which a 

general notice of proposed rulemaking 

was published, the agency shall prepare 

a written statement’’ detailing the effect 

on State, local, and tribal governments 

and the private sector. The final rule 

will not result in the expenditure, in the 

aggregate, of $132,300,000 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) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this regulatory action is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

Privacy Act 

Anyone is able to search the 

electronic form of all our comments 

received into any of our dockets 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 in 49 CFR Part 225 

Investigations, Penalties, Railroad 

safety, Reporting and recordkeeping 

requirements. 

The Rule 

■ In consideration of the foregoing, FRA 

amends part 225 of chapter II, subtitle 

B of title 49, Code of Federal 

Regulations, as follows: 

PART 225—[AMENDED] 

■ 1. The authority citation for part 225 

continues to read as follows: 

Authority: 49 U.S.C. 103, 322(a), 20103, 

20107, 20901–02, 21301, 21302, 21311; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

■ 2. Amend § 225.19 by revising the first 

sentence of paragraph (c) and revising 

paragraph (e) to read as follows: 

§ 225.19 Primary groups of accidents/ 

incidents. 

* * * * * 

(c) Group II—Rail equipment. Rail 

equipment accidents/incidents are 

collisions, derailments, fires, 

explosions, acts of God, and other 

events involving the operation of ontrack equipment (standing or moving) 

that result in damages higher than the 

current reporting threshold (i.e., $6,700 

for calendar years 2002 through 2005, 

$7,700 for calendar year 2006, $8,200 

for calendar year 2007, and $8,500 for 

calendar year 2008) to railroad on-track 

equipment, signals, tracks, track 

structures, or roadbed, including labor 

costs and the costs for acquiring new 

equipment and material. * * * 

* * * * * 

(e) The reporting threshold is $6,700 

for calendar years 2002 through 2005, 

$7,700 for calendar year 2006, $8,200 

for calendar year 2007 and $8,500 for 

calendar year 2008. The procedure for 

determining the reporting threshold for 

calendar years 2006 and beyond appears 

as paragraphs 1–8 of appendix B to part 

225. 

* * * * * 

Issued in Washington, DC, on December 

19, 2007. 

Joseph H. Boardman, 

Administrator. 

[FR Doc. E7–24999 Filed 12–27–07; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 071221883–7885–01] 

RIN 0648–XE66 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule. 

SUMMARY: The Assistant Administrator 

for Fisheries (AA), NOAA, announces 

temporary restrictions consistent with 

the requirements of the Atlantic Large 

Whale Take Reduction Plan’s 

(ALWTRP) implementing regulations. 

These regulations apply to lobster trap/ 

pot and anchored gillnet fishermen in 

an area totaling approximately 1,939 

nm2 (6,650 km2), south of Rockland, 

Maine, for 15 days. The purpose of this 

action is to provide protection to an 

aggregation of northern right whales 

(right whales). 

DATES: Effective beginning at 0001 hours 

December 30, 2007, through 2400 hours 

January 13, 2008. 

ADDRESSES: Copies of the proposed and 

final Dynamic Area Management (DAM) 

rules, Environmental Assessments 

(EAs), Atlantic Large Whale Take 

Reduction Team (ALWTRT) meeting 

summaries, and progress reports on 

implementation of the ALWTRP may 

also be obtained by writing Diane 

Borggaard, NMFS/Northeast Region, 

One Blackburn Drive, Gloucester, MA 

01930. 

FOR FURTHER INFORMATION CONTACT: 

Diane Borggaard, NMFS/Northeast 

Region, 978–281–9300 x6503; or Kristy 

Long, NMFS, Office of Protected 

Resources, 301–713–2322. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

Several of the background documents 

for the ALWTRP and the take reduction 

planning process can be downloaded 


pwalker on PROD1PC71 with RULES
73662 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Rules and Regulations 

from the ALWTRP web site at http:// 

www.nero.noaa.gov/whaletrp/. 

Background 

The ALWTRP was developed 

pursuant to section 118 of the Marine 

Mammal Protection Act (MMPA) to 

reduce the incidental mortality and 

serious injury of three endangered 

species of whales (right, fin, and 

humpback) due to incidental interaction 

with commercial fishing activities. In 

addition, the measures identified in the 

ALWTRP would provide conservation 

benefits to a fourth species (minke), 

which are neither listed as endangered 

nor threatened under the Endangered 

Species Act (ESA). The ALWTRP, 

implemented through regulations 

codified at 50 CFR 229.32, relies on a 

combination of fishing gear 

modifications and time/area closures to 

reduce the risk of whales becoming 

entangled in commercial fishing gear 

(and potentially suffering serious injury 

or mortality as a result). 

On January 9, 2002, NMFS published 

the final rule to implement the 

ALWTRP’s DAM program (67 FR 1133). 

On August 26, 2003, NMFS amended 

the regulations by publishing a final 

rule, which specifically identified gear 

modifications that may be allowed in a 

DAM zone (68 FR 51195). The DAM 

program provides specific authority for 

NMFS to restrict temporarily on an 

expedited basis the use of lobster trap/ 

pot and anchored gillnet fishing gear in 

areas north of 40° N. lat. to protect right 

whales. Under the DAM program, 

NMFS may: (1) require the removal of 

all lobster trap/pot and anchored gillnet 

fishing gear for a 15–day period; (2) 

allow lobster trap/pot and anchored 

gillnet fishing within a DAM zone with 

gear modifications determined by NMFS 

to sufficiently reduce the risk of 

entanglement; and/or (3) issue an alert 

to fishermen requesting the voluntary 

removal of all lobster trap/pot and 

anchored gillnet gear for a 15–day 

period and asking fishermen not to set 

any additional gear in the DAM zone 

during the 15–day period. 

A DAM zone is triggered when NMFS 

receives a reliable report from a 

qualified individual of three or more 

right whales sighted within an area (75 

nm2 (139 km2)) such that right whale 

density is equal to or greater than 0.04 

right whales per nm2 (1.85 km2). A 

qualified individual is an individual 

ascertained by NMFS to be reasonably 

able, through training or experience, to 

identify a right whale. Such individuals 

include, but are not limited to, NMFS 

staff, U.S. Coast Guard and Navy 

personnel trained in whale 

identification, scientific research survey 

personnel, whale watch operators and 

naturalists, and mariners trained in 

whale species identification through 

disentanglement training or some other 

training program deemed adequate by 

NMFS. A reliable report would be a 

credible right whale sighting. 

On December 19, 2007, an aerial 

survey reported an aggregation of 30 

right whales in the proximity of 43° 25′ 

N latitude and 68° 31′ W longitude. The 

position lies approximately 50nm south 

of Rockland, Maine. After conducting an 

investigation, NMFS ascertained that 

the report came from a qualified 

individual and determined that the 

report was reliable. Thus, NMFS has 

received a reliable report from a 

qualified individual of the requisite 

right whale density to trigger the DAM 

provisions of the ALWTRP. 

Once a DAM zone is triggered, NMFS 

determines whether to impose 

restrictions on fishing and/or fishing 

gear in the zone. This determination is 

based on the following factors, 

including but not limited to: the 

location of the DAM zone with respect 

to other fishery closure areas, weather 

conditions as they relate to the safety of 

human life at sea, the type and amount 

of gear already present in the area, and 

a review of recent right whale 

entanglement and mortality data. 

NMFS has reviewed the factors and 

management options noted above 

relative to the DAM under 

consideration. As a result of this review, 

NMFS prohibits lobster trap/pot and 

anchored gillnet gear in this area during 

the 15–day restricted period unless it is 

modified in the manner described in 

this temporary rule. 

The DAM Zone is bound by the 

following coordinates: 

43° 42′ N., 69° 04′ W. (NW Corner) 

43° 42′ N., 68° 02′ W. 

42° 59′ N., 68° 02′ W. 

42° 59′ N., 69° 04′ W. 

43° 42′ N., 69° 04′ W. (NW Corner) 

In addition to those gear 

modifications currently implemented 

under the ALWTRP at 50 CFR 229.32, 

the following gear modifications are 

required in the DAM zone. If the 

requirements and exceptions for gear 

modification in the DAM zone, as 

described below, differ from other 

ALWTRP requirements for any 

overlapping areas and times, then the 

more restrictive requirements will apply 

in the DAM zone. 

Lobster Trap/pot gear 

Fishermen utilizing lobster trap/pot 

gear within portions of Northern 

Nearshore Lobster Waters that overlap 

with the DAM zone are required to 

utilize all of the following gear 

modifications while the DAM zone is in 

effect: 

1. Groundlines must be made of either 

sinking or neutrally buoyant line. 

Floating groundlines are prohibited; 

2. All buoy lines must be made of 

either sinking or neutrally buoyant line, 

except the bottom portion of the line, 

which may be a section of floating line 

not to exceed one-third the overall 

length of the buoy line; 

3. Fishermen are allowed to use two 

buoy lines per trawl; and 

4. A weak link with a maximum 

breaking strength of 600 lb (272.4 kg) 

must be placed at all buoys. 

Fishermen utilizing lobster trap/pot 

gear within the portion of the Offshore 

Lobster Waters Area that overlap with 

the DAM zone are required to utilize all 

of the following gear modifications 

while the DAM zone is in effect: 

1. Groundlines must be made of either 

sinking or neutrally buoyant line. 

Floating groundlines are prohibited; 

2. All buoy lines must be made of 

either sinking or neutrally buoyant line, 

except the bottom portion of the line, 

which may be a section of floating line 

not to exceed one-third the overall 

length of the buoy line; 

3. Fishermen are allowed to use two 

buoy lines per trawl; and 

4. A weak link with a maximum 

breaking strength of 1,500 lb (680.4 kg) 

must be placed at all buoys. 

Anchored Gillnet Gear 

Fishermen utilizing anchored gillnet 

gear within the portions of the Other 

Northeast Gillnet Waters Area that 

overlap with the DAM zone are required 

to utilize all the following gear 

modifications while the DAM zone is in 

effect: 

1. Groundlines must be made of either 

sinking or neutrally buoyant line. 

Floating groundlines are prohibited; 

2. All buoy lines must be made of 

either sinking or neutrally buoyant line, 

except the bottom portion of the line, 

which may be a section of floating line 

not to exceed one-third the overall 

length of the buoy line; 

3. Fishermen are allowed to use two 

buoy lines per string; 

4. The breaking strength of each net 

panel weak link must not exceed 1,100 

lb (498.8 kg). The weak link 

requirements apply to all variations in 

net panel size. One weak link must be 

placed in the center of the floatline and 

one weak link must be placed in the 

center of each of the up and down lines 

at both ends of the net panel. 

Additionally, one weak link must be 

placed as close as possible to each end 

of the net panels on the floatline; or, one 


pwalker on PROD1PC71 with RULES
Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Rules and Regulations 73663 

weak link must be placed between 

floatline tie-loops between net panels 

and one weak link must be placed 

where the floatline tie-loops attach to 

the bridle, buoy line, or groundline at 

each end of a net string; 

5. A weak link with a maximum 

breaking strength of 1,100 lb (498.8 kg) 

must be placed at all buoys; and 

6. All anchored gillnets, regardless of 

the number of net panels, must be 

securely anchored with the holding 

power of at least a 22 lb (10.0 kg) 

Danforth-style anchor at each end of the 

net string. 

The restrictions will be in effect 

beginning at 0001 hours December 31, 

2007, through 2400 hours, January 14, 

2008, unless terminated sooner or 

extended by NMFS through another 

notification in the Federal Register. 

The restrictions will be announced to 

state officials, fishermen, ALWTRT 

members, and other interested parties 

through e-mail, phone contact, NOAA 

website, and other appropriate media 

immediately upon issuance of the rule 

by the AA. 

Classification 

In accordance with section 118(f)(9) of 

the MMPA, the Assistant Administrator 

(AA) for Fisheries has determined that 

this action is necessary to implement a 

take reduction plan to protect North 

Atlantic right whales. 

Environmental Assessments for the 

DAM program were prepared on 

December 28, 2001, and August 6, 2003. 

This action falls within the scope of the 

analyses of these EAs, which are 

available from the agency upon request. 

NMFS provided prior notice and an 

opportunity for public comment on the 

regulations establishing the criteria and 

procedures for implementing a DAM 

zone. Providing prior notice and 

opportunity for comment on this action, 

pursuant to those regulations, would be 

impracticable because it would prevent 

NMFS from executing its functions to 

protect and reduce serious injury and 

mortality of endangered right whales. 

The regulations establishing the DAM 

program are designed to enable the 

agency to help protect unexpected 

concentrations of right whales. In order 

to meet the goals of the DAM program, 

the agency needs to be able to create a 

DAM zone and implement restrictions 

on fishing gear as soon as possible once 

the criteria are triggered and NMFS 

determines that a DAM restricted zone 

is appropriate. If NMFS were to provide 

prior notice and an opportunity for 

public comment upon the creation of a 

DAM restricted zone, the aggregated 

right whales would be vulnerable to 

entanglement which could result in 

serious injury and mortality. 

Additionally, the right whales would 

most likely move on to another location 

before NMFS could implement the 

restrictions designed to protect them, 

thereby rendering the action obsolete. 

Therefore, pursuant to 5 U.S.C. 

553(b)(B), the AA finds that good cause 

exists to waive prior notice and an 

opportunity to comment on this action 

to implement a DAM restricted zone to 

reduce the risk of entanglement of 

endangered right whales in commercial 

lobster trap/pot and anchored gillnet 

gear as such procedures would be 

impracticable. 

For the same reasons, the AA finds 

that, under 5 U.S.C. 553(d)(3), good 

cause exists to waive the 30–day delay 

in effective date. If NMFS were to delay 

for 30 days the effective date of this 

action, the aggregated right whales 

would be vulnerable to entanglement, 

which could cause serious injury and 

mortality. Additionally, right whales 

would likely move to another location 

between the time NMFS approved the 

action creating the DAM restricted zone 

and the time it went into effect, thereby 

rendering the action obsolete and 

ineffective. Nevertheless, NMFS 

recognizes the need for fishermen to 

have time to either modify or remove (if 

not in compliance with the required 

restrictions) their gear from a DAM zone 

once one is approved. Thus, NMFS 

makes this action effective 2 days after 

the date of publication of this document 

in the Federal Register. NMFS will also 

endeavor to provide notice of this action 

to fishermen through other means upon 

issuance of the rule by the AA, thereby 

providing approximately 3 additional 

days of notice while the Office of the 

Federal Register processes the 

document for publication. 

NMFS determined that the regulations 

establishing the DAM program and 

actions such as this one taken pursuant 

to those regulations are consistent to the 

maximum extent practicable with the 

enforceable policies of the approved 

coastal management program of the U.S. 

Atlantic coastal states. This 

determination was submitted for review 

by the responsible state agencies under 

section 307 of the Coastal Zone 

Management Act. Following state 

review of the regulations creating the 

DAM program, no state disagreed with 

NMFS’ conclusion that the DAM 

program is consistent to the maximum 

extent practicable with the enforceable 

policies of the approved coastal 

management program for that state. 

The DAM program under which 

NMFS is taking this action contains 

policies with federalism implications 

warranting preparation of a federalism 

assessment under Executive Order 

13132. Accordingly, in October 2001 

and March 2003, the Assistant Secretary 

for Intergovernmental and Legislative 

Affairs, Department of Commerce, 

provided notice of the DAM program 

and its amendments to the appropriate 

elected officials in states to be affected 

by actions taken pursuant to the DAM 

program. Federalism issues raised by 

state officials were addressed in the 

final rules implementing the DAM 

program. A copy of the federalism 

Summary Impact Statement for the final 

rules is available upon request 

(ADDRESSES). 

The rule implementing the DAM 

program has been determined to be not 

significant under Executive Order 

12866. 

Authority: 16 U.S.C. 1361 et seq. and 50 

CFR 229.32(g)(3) 

Dated: December 21, 2007. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 07–6232 Filed 12–21–07; 2:53 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 071220869–7871–01] 

RIN 0648–XE62 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule. 

SUMMARY: The Assistant Administrator 

for Fisheries (AA), NOAA, announces 

temporary restrictions consistent with 

the requirements of the Atlantic Large 

Whale Take Reduction Plan’s 

(ALWTRP) implementing regulations. 

These regulations apply to lobster trap/ 

pot and anchored gillnet fishermen in 

an area totaling approximately 1,580 

nm2 (5,419 km2), south of Portland, 

Maine, for 15 days. The purpose of this 

action is to provide protection to an 

aggregation of northern right whales 

(right whales). 

DATES: Effective beginning at 0001 hours 

December 30, 2007, through 2400 hours 

January 13, 2008. 


pwalker on PROD1PC71 with RULES