4118 Federal Register / Vol. 73, No. 16 / Thursday, January 24, 2008 / Rules and Regulations 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. This interim rule implements 

Section 818 of the National Defense 

Authorization Act for Fiscal Year 2007 

(Pub. L. 109–364). Section 818 requires 

DoD to modify regulations regarding the 

determination of contract type for major 

development programs to address 

requirements for selection of the 

contract type that is consistent with the 

level of program risk. Comments 

received in response to this interim rule 

will be considered in the formation of 

the final rule. 

List of Subjects in 48 CFR Parts 234 and 

235 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 234 and 235 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 234 and 235 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

Chapter 1. 

PART 234—MAJOR SYSTEM 

ACQUISITION 

■ 2. Section 234.004 is revised to read 

as follows: 

234.004 Acquisition strategy. 

(1) See 209.570 for policy applicable 

to acquisition strategies that consider 

the use of lead system integrators. 

(2) In accordance with Section 818 of 

the National Defense Authorization Act 

for Fiscal Year 2007 (Pub. L. 109–364), 

for major defense acquisition programs 

as defined in 10 U.S.C. 2430—

(i) The Milestone Decision Authority 

shall select, with the advice of the 

contracting officer, the contract type for 

a development program at the time of 

Milestone B approval or, in the case of 

a space program, Key Decision Point B 

approval; 

(ii) The basis for the contract type 

selection shall be documented in the 

acquisition strategy. The 

documentation—

(A) Shall include an explanation of 

the level of program risk; and 

(B) If program risk is determined to be 

high, shall outline the steps taken to 

reduce program risk and the reasons for 

proceeding with Milestone B approval 

despite the high level of program risk; 

and 

(iii) If a cost-type contract is selected, 

the contract file shall include the 

Milestone Decision Authority’s written 

determination that—

(A) The program is so complex and 

technically challenging that it would 

not be practicable to reduce program 

risk to a level that would permit the use 

of a fixed-price type contract; and 

(B) The complexity and technical 

challenge of the program is not the 

result of a failure to meet the 

requirements of 10 U.S.C. 2366a. 

PART 235—RESEARCH AND 

DEVELOPMENT CONTRACTING 

■ 3. Section 235.006 is revised to read 

as follows: 

235.006 Contracting methods and contract 

type. 

(b)(i) For major defense acquisition 

programs as defined in 10 U.S.C. 2430—

(A) Follow the procedures at 234.004; 

and 

(B) Notify the Under Secretary of 

Defense (Acquisition, Technology, and 

Logistics) (USD(AT&L)) of an intent not 

to exercise a fixed-price production 

option on a development contract for a 

major weapon system reasonably in 

advance of the expiration of the option 

exercise period. 

(ii) For other than major defense 

acquisition programs—

(A) Do not award a fixed-price type 

contract for a development program 

effort unless—

(1) The level of program risk permits 

realistic pricing; 

(2) The use of a fixed-price type 

contract permits an equitable and 

sensible allocation of program risk 

between the Government and the 

contractor; and 

(3) A written determination that the 

criteria of paragraphs (b)(ii)(A)(1) and 

(2) of this section have been met is 

executed—

(i) By the USD(AT&L) if the contract 

is over $25 million and is for: research 

and development for a non-major 

system; the development of a major 

system (as defined in FAR 2.101); or the 

development of a subsystem of a major 

system; or 

(ii) By the contracting officer for any 

development not covered by paragraph 

(b)(ii)(A)(3)(i) of this section. 

(B) Obtain USD(AT&L) approval of 

the Government’s prenegotiation 

position before negotiations begin, and 

obtain USD(AT&L) approval of the 

negotiated agreement with the 

contractor before the agreement is 

executed, for any action that is—

(1) An increase of more than $250 

million in the price or ceiling price of 

a fixed-price type development contract, 

or a fixed-price type contract for the 

lead ship of a class; 

(2) A reduction in the amount of work 

under a fixed-price type development 

contract or a fixed-price type contract 

for the lead ship of a class, when the 

value of the work deleted is $100 

million or more; or 

(3) A repricing of fixed-price type 

production options to a development 

contract, or a contract for the lead ship 

of a class, that increases the price or 

ceiling price by more than $250 million 

for equivalent quantities. 

[FR Doc. E8–1092 Filed 1–23–08; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 080117051–8053–01] 

RIN 0648–XF17 

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 2,251 

nm2 (7,720 km2), southeast of 

Portsmouth, New Hampshire, 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 

January 26, 2008, through 2400 hours 

February 9, 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 


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Federal Register / Vol. 73, No. 16 / Thursday, January 24, 2008 / Rules and Regulations 4119 

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 

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 January 13, 2008, an aerial survey 

reported two aggregations of right 

whales, totaling seven individuals: four 

whales in the proximity of 42° 37′ N. 

latitude and 70° 01′ W. longitude, and 

three whales in the proximity of 42° 51′ 

N. latitude and 70° 04′ W. longitude. 

These positions lie northeast of Boston, 

Massachusetts, and southeast of 

Portsmouth, New Hampshire, 

respectively. 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° 09′ N., 70° 29′ W. (NW Corner) 

43° 09′ N., 69° 39′ W. 

42° 56′ N., 69° 39′ W. 

42° 56′ N., 69° 33′ W. 

42° 16′ N., 69° 33′ W. 

42° 16′ N., 70° 33′ W. 

42° 56′ N., 70° 33′ W. 

42° 56′ N., 70° 29′ W. 

43° 09′ N., 70° 29′ 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 the portions of Northern 

Nearshore Lobster Waters, Northern 

Inshore State Lobster Waters, and the 

Stellwagen Bank/Jeffrey’s Ledge 

Restricted 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 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 Other 

Northeast Gillnet Waters and the 


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4120 Federal Register / Vol. 73, No. 16 / Thursday, January 24, 2008 / Rules and Regulations 

Stellwagen Bank/Jeffrey’s Ledge 

Restricted 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 

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 January 26, 

2008, through 2400 hours February 9, 

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: January 17, 2008. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

[FR Doc. 08–262 Filed 1–18–08; 2:32 pm] 

BILLING CODE 3510–22–S 


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