[Federal Register Volume 72, Number 149 (Friday, August 3, 2007)]
[Rules and Regulations]
[Pages 43176-43186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15145]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 070712318-7318-01; I.D. 110306A]
RIN 0648-AU81


Sea Turtle Conservation; Observer Requirement for Fisheries

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

ACTION: Final rule.

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SUMMARY: Pursuant to its authority under the Endangered Species Act of 
1973 (ESA), NMFS issues this final regulation to require fishing 
vessels subject to the jurisdiction of the United States that are 
identified through the annual determination process specified in the 
rule to take observers upon NMFS' request. The purpose of this measure 
is to learn more about sea turtle interactions with fishing operations, 
to evaluate existing measures to reduce sea turtle takes, and to 
determine whether additional measures to address prohibited sea turtle 
takes may be necessary. NMFS and/or interested cooperating entities 
will pay the direct costs of the observer. Through this rule, NMFS also 
extends the number of days from 30 to 180 (with a possible 60-day 
extension) that the agency may place observers in response to a 
determination by the Assistant Administrator that the unauthorized take 
of sea turtles may be likely to jeopardize their continued existence 
under existing regulations. This extension will help the agency address 
immediate observer needs in response to an emergency sea turtle-related 
event.

DATES: Effective September 4, 2007.

ADDRESSES: Requests for copies of the Environmental Assessment and 
Final Regulatory Impact Review (EA/RIR) prepared for this final rule 
should be addressed to the Chief, Marine Mammal and Turtle Division, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Tanya Dobrzynski (ph. 301-713-2322, 
fax 301-427-2522, email [email protected] or Therese Conant 
(ph. 301-713-2322, fax 301-427-2522, email [email protected].

SUPPLEMENTARY INFORMATION:

Purpose

    Under the ESA, 16 U.S.C. 1531 et seq., NMFS has the responsibility 
to implement programs to conserve marine life listed as endangered or 
threatened.
    All sea turtles that are found in U.S. waters are listed as either 
endangered or threatened under the ESA. The Kemp's ridley (Lepidochelys 
kempii), leatherback (Dermochelys coriacea), and hawksbill 
(Eretmochelys imbricata) sea turtles are listed as endangered. 
Loggerhead (Caretta caretta), green (Chelonia mydas), and olive ridley 
(Lepidochelys olivacea) sea turtles are listed as threatened, except 
for breeding colony populations of green sea turtles in Florida and on 
the Pacific coast of Mexico and breeding colony populations of olive 
ridleys on the Pacific coast of Mexico, which are listed as endangered. 
While some sea turtle populations have shown signs of recovery, many 
populations continue to decline.
    Incidental take, or bycatch, in fishing gear is one of the main 
sources of sea turtle injury and mortality nationwide. Section 9 of the 
ESA prohibits the take (including harassing, harming, pursuing, 
hunting, shooting, wounding, killing, trapping, capturing, or 
collecting or attempting to engage in any such conduct), including 
incidental take, of endangered sea turtles. Pursuant to section 4(d) of 
the ESA, NMFS has issued regulations extending the prohibition of take, 
with exceptions, to threatened sea turtles (50 CFR 223.205 and 
223.206). Section 11 of the ESA authorizes the issuance of regulations 
to enforce the prohibitions against take. NMFS may grant exceptions to 
the take prohibitions with an incidental take statement or an 
incidental take permit issued pursuant to section 7 or 10, 
respectively, of the ESA. To do so, NMFS must determine that the 
activity that will result in incidental take is not likely to 
jeopardize the continued existence of the affected listed species. In 
some cases, NMFS has been able to make this determination because the 
fishery is conducted with a modified gear or modified fishing practice 
that NMFS has been able to evaluate. However, for some Federal 
fisheries and most state fisheries, NMFS has not granted an exception 
primarily because we lack information about fishery-turtle 
interactions. Therefore, any incidental take of sea turtles in those 
fisheries is unlawful as it has not been exempted from the ESA 
prohibition on take.
    The most effective way for NMFS to learn more about sea turtle-
fishery interactions is to place observers aboard fishing vessels. NMFS 
issues this regulation to establish procedures through which each year 
NMFS will identify, pursuant to specified criteria and after notice and 
opportunity for comment, those fisheries in which the agency intends to 
place observers. NMFS and/or interested cooperating entities will pay 
the direct costs for observers. These include observer salary and 
insurance costs. NMFS may also evaluate other potential direct costs, 
should they arise. Once selected, a fishery will be eligible to be 
observed for five years without further action by NMFS. This will 
enable NMFS to develop an appropriate sampling protocol to investigate 
whether, how, when, where, and under what conditions incidental takes 
are occurring; to evaluate whether existing measures are minimizing or 
preventing interactions; and to determine whether additional measures 
are needed to implement ESA take prohibitions and conserve turtles.

Other Procedures for Observer Placement

    Prior to this final rule, NMFS established a regulatory procedure 
to place observers on vessels contingent upon a determination by the 
NMFS Assistant Administrator that the unauthorized take of sea turtles 
may be likely to jeopardize their continued existence (50 CFR 
223.206(d)(4)). In that regulation, NMFS limited observer coverage 
requirements within a fishery to 30 days, with the possibility of 
renewal for additional periods of 30 days each. NMFS has used this 
procedure to address immediate observer needs, such as when fishery 
activity and relatively high sea turtle strandings have occurred 
simultaneously in a particular area. However, these temporary observer 
requirements are designed to respond to acute problems, and not to 
implement monitoring programs that yield statistically rigorous 
information, which is one of the purposes of this rule. Further, 
because 30 days does not always provide the opportunity to investigate 
the cause of an event, such as elevated sea turtle strandings, and 
renewing the measure for additional 30-day periods can be time-
consuming and result in lost opportunities to monitor a critical event, 
through this rule, NMFS is extending the number of days the observer 
coverage requirements under 50 CFR 223.206(d)(4) may remain

[[Page 43177]]

effective from 30 to 180 days, with a possible 60-day extension. The 
combined 240 days is consistent with the emergency regulatory provision 
in section 4(b)(7) of the ESA.
    As a condition of exempting incidental take from the ESA take 
prohibition in certain fisheries, NMFS has also implemented observer 
coverage or monitoring requirements under the authority of the ESA on a 
fishery-by-fishery basis, such as in the shrimp trawl, summer flounder 
trawl, Virginia pound net, and other fisheries. These requirements were 
implemented only after data from strandings, temporary observer 
coverage, or other sources indicated that prohibited sea turtle takes 
were occurring in those fisheries.
    NMFS has also placed observers on vessels in federally-managed 
fisheries under the Magnuson-Stevens Fishery Conservation and 
Management Reauthorization Act, as amended in 1996 and 2006 (Magnuson-
Stevens Act), and the Marine Mammal Protection Act, as amended in 1994 
(MMPA), to document fish bycatch and incidental mortality and serious 
injury of marine mammals, respectively. The Magnuson-Stevens Act 
authorizes NMFS to require observers on fisheries managed under a 
Federal fishery management plan, while the MMPA allows NMFS to require 
observers in both Federal and non-federal commercial fisheries 
depending on the level of interaction between fisheries and marine 
mammals.
    Secondary to collecting information on fish and marine mammal 
bycatch through placement of observers on fishing vessels via these 
statutes, NMFS has also collected data on sea turtle interactions in 
fisheries. Nonetheless, actions taken under the MMPA and Magnuson-
Stevens Act do not provide sea turtle bycatch information on a 
sufficiently comprehensive basis. The Magnuson-Stevens Act only 
provides NMFS authority to require observers on vessels in fisheries 
managed under a Federal fishery management plan (16 U.S.C. 1853(b)(8)). 
Thus, the authority primarily covers fisheries operating in Federal 
waters, and not state fisheries where sea turtle interactions also 
occur. The MMPA allows NMFS to require observers on commercial 
fisheries that have been listed on the annual List of Fisheries as 
Category I (where incidental mortality and serious injury of marine 
mammals is considered ``frequent'') and Category II (where incidental 
mortality and serious injury of marine mammals is considered 
``occasional''), but not Category III (where there is a remote 
likelihood of or no known incidental mortality and serious injury of 
marine mammals) (16 U.S.C. 1387), under which the majority of fisheries 
are listed. Furthermore, the List of Fisheries applies to commercial 
fisheries, and observers are not placed on recreational vessels, which 
in some cases use identical gear to commercial fishermen that is known 
to incidentally take sea turtles. Given that some state, recreational, 
and Category III fisheries may cause incidental take of sea turtles, 
neither the Magnuson-Stevens Act nor the MMPA provides broad enough 
authority to monitor fisheries that may incidentally take sea turtles. 
Additionally, monitoring programs established under the Magnuson-
Stevens Act or MMPA are designed primarily to optimize observation of 
fish or marine mammal bycatch, respectively, and may only collect sea 
turtle bycatch information secondarily. This is not optimal since the 
sampling regime for other species may not adequately cover times and 
areas where sea turtle interactions are most likely to occur. Thus, to 
obtain the most representative data on sea turtle takes in various 
fisheries, NMFS needs to design sampling programs based on sea turtle 
distribution and abundance and directed toward those gear types and 
fisheries that are a priority concern for sea turtle recovery.
    NMFS has also relied on using voluntary observer coverage to obtain 
data in several non-federally managed fisheries. For example, from 
November 1 - 20, 1999, 56 dead sea turtles washed ashore in a small 
area of Pamlico Sound, North Carolina, in the vicinity of Hatteras and 
Ocracoke Inlets (64 FR 70196, December 16, 1999). Thirty-five of the 
sea turtles were Kemp's ridleys, the most endangered species of sea 
turtle. Many sink gillnet fishing vessels were operating in the 
vicinity. North Carolina state observers were placed on a limited 
number of the gillnet boats to monitor sea turtle interactions. Because 
both state and NMFS' observer placement was voluntary, many of the 
fishermen elected not to carry observers, which resulted in limited 
information on sea turtle interactions in areas where the interactions 
were most likely to occur. Adequate sampling occurred only after North 
Carolina received an ESA section 10(a)(1)(B) incidental take permit (67 
FR 67150, November 4, 2002) and observer coverage was a requirement of 
the permit. These events in North Carolina highlight that a voluntary 
observer program limits the extent of coverage and hinders the 
collection of reliable data.

Sea Turtle/Fisheries Interactions

    Sea turtle takes have been documented for numerous gear types/
fisheries along the Atlantic, Gulf of Mexico, and Pacific coasts. Both 
commercial and recreational fisheries in state and federal waters use 
gear types that may incidentally take sea turtles. Data available on 
the extent of sea turtle interactions vary by gear type, area, and 
season. Nonetheless, certain types of gear are more prone to 
incidentally capturing sea turtles than others, depending on the way 
the gear is fished and the time and area within which it is fished.
    Fisheries that use trawls, gillnets, seines, pound nets, traps, 
pots, dredges, longlines, and hook and line, for example, are potential 
sources of sea turtle take. Incidental take has been documented in 
these gear types where the distributions of sea turtles and fisheries 
overlap. For example, alternative monitoring platforms used to monitor 
the VA pound net fishery revealed that sea turtle takes are a concern 
in this fishery. As a result, NMFS implemented management measures 
aimed at reducing sea turtle interactions in pound net leaders in the 
southern portion of the Chesapeake Bay from May 6-July 15 of each year, 
when sea turtles are known to be present and sea turtle strandings are 
known to occur (71 FR 36024, June 23, 2006). NMFS conducted an ESA 
section 7 consultation on the pound net fishery and determined that the 
fishery with the management measures was not likely to jeopardize sea 
turtles and the agency was able to exempt the fishery from the ESA 
prohibition on take. While these measures may be reducing the number of 
sea turtle takes in pound nets, sea turtle strandings in the area have 
continued despite the management measures. Other fisheries, such as 
inshore gillnet and purse seine fisheries in the area, may also be 
contributing to the problem and need to be further evaluated.
    There are similar examples in other areas around the United States 
where more comprehensive and targeted observer coverage on fishing 
vessels is needed to better understand and address the problem of 
prohibited sea turtle takes incidental to fishing activities, such as 
the shrimp fishery in the state and Federal waters of the southeast 
United States and the Gulf of Mexico. This rule would enable NMFS to 
monitor gear types, such as try nets and skimmer trawls, used in this 
fishery, which are not currently required to use turtle excluder 
devices (TEDs) but that have been documented to interact with sea 
turtles (Epperly et al. 2002; Scott-Denton et al. 2007). Both 
commercial and recreational pots/traps and gillnets have been 
documented to interact with

[[Page 43178]]

sea turtles in U.S. waters (Dwyer et al. 2002; 67 FR 71895, December 3, 
2002; NMFS SEFSC Beaufort Laboratory 2007, unpubl. data); therefore, 
more information is needed on potential sea turtle interactions in 
these gear types/fisheries to better evaluate them. In addition, long-
term, comprehensive coverage is needed to fill information gaps on sea 
turtle takes in these and other fisheries and gear types.
    Thus, through this final rule, NMFS issues ESA regulations to 
specify that NMFS may place observers on U.S. fishing vessels, either 
recreational or commercial, operating in U.S. territorial waters, the 
U.S. exclusive economic zone (EEZ), or on the high seas, or on vessels 
that are otherwise subject to the jurisdiction of the U.S. Consistent, 
regular monitoring via placement of observers on fishing vessels is 
needed to gather data on sea turtle takes and, where necessary, to 
evaluate existing measures and develop new management measures in 
certain gear types and/or fisheries to implement the prohibition on 
take of sea turtles. This action, issued under the authority of the 
ESA, is a necessary step in the process of implementing the prohibition 
on take of listed species and to conserve sea turtles listed as 
threatened or endangered.

Observer Program Design

    The design of any observer program implemented under this rule, 
including how observers would be allocated to individual vessels, would 
vary among fisheries, fishing sectors, gear types, and geographic 
regions and would ultimately be determined by the individual NMFS 
Regional Office, Science Center, and/or observer program. During the 
program design, NMFS would be guided by the following standards in the 
distribution and placement of observers among fisheries identified in 
annual determinations and vessels in those particular fisheries:
    (1) The requirements to obtain the best available scientific 
information;
    (2) The requirement that observers be assigned fairly and equitably 
among fisheries and among vessels in a fishery;
    (3) The requirement that no individual person or vessel, or group 
of persons or vessels, be subject to inappropriate, excessive observer 
coverage; and
    (4) The need to minimize costs and avoid duplication, where 
practicable.
    Consistent with 16 U.S.C. 1881(b), vessels where the facilities for 
accommodating an observer or carrying out observer functions are so 
inadequate or unsafe (due to size or quality of equipment, for example) 
that the health or safety of the observer or the safe operation of the 
vessel would be jeopardized, would not be required to take observers 
under this rule. Nonetheless, per 50 CFR 600.746, a vessel that would 
otherwise be required to carry an observer, but is inadequate or unsafe 
for purposes of carrying an observer and for allowing operation of 
normal observer functions, is prohibited from fishing without observer 
coverage. Failure to comply with the requirements under this rule may 
result in civil or criminal penalties under the ESA.
    Observer programs designed or carried out in accordance with this 
regulation would be required to be consistent with existing observer-
related NOAA policies and regulations, such as those under the Fair 
Labor and Standards Act (29 U.S.C. 201 et seq.), the Service Contract 
Act (41 U.S.C. 351 et seq.), Observer Health and Safety regulations (50 
CFR 600), and other relevant policies.

Annual Determination Process

    The Assistant Administrator for Fisheries, NOAA (AA), in 
consultation with Regional Administrators and Fisheries Science Center 
Directors, will make an annual proposed determination identifying which 
fisheries are required to carry observers, if requested, to monitor 
potential interactions with sea turtles. Any final determination will 
be made after an opportunity for public comment. The determination will 
be based on the best available scientific, commercial, or other 
information regarding sea turtle-fishery interactions; sea turtle 
distribution; sea turtle strandings; fishing techniques, gears used, 
target species, seasons and areas fished; or qualitative data from 
logbooks or fisher reports.
    The AA will use the most recent version of the annually published 
MMPA List of Fisheries (LOF) as the comprehensive list of commercial 
fisheries for consideration in addition to known information on non-
commercial fisheries in a given area. The LOF includes all known state 
and federal commercial fisheries that occur in U.S. waters. The 
categorization scheme of fisheries on the LOF would not be relevant to 
this process. Unlike the LOF process, recreational fisheries likely to 
interact with sea turtles on the basis of the best available 
information may also be included in the determination of fisheries to 
be monitored under this rule. NMFS will consult with appropriate state 
or federal fisheries officials and other entities to identify which 
recreational fisheries should be considered in the annual 
determination.
    Notice of the final determination will be made in writing to 
individuals permitted for each fishery identified for monitoring. NMFS 
will also notify state agencies and provide notification through 
publication in local newspapers, radio broadcasts, and other means, as 
appropriate. Once included in the final determination, a fishery will 
remain eligible for observer coverage for five years to enable the 
design of an appropriate sampling program and to ensure collection of 
sufficient scientific data for analysis. If NMFS determines that more 
than five years are needed to obtain sufficient scientific data, NMFS 
will include the fishery in the AA's annual proposed determination 
again prior to the end of the fifth year. As part of its annual 
determination, NMFS will include, to the extent practicable, 
information on the fisheries or gear types to be sampled, geographic 
and seasonal scope of coverage, or any other relevant information. A 
30-day delay in effective date for implementing observer coverage will 
follow the annual determination, except for those fisheries included in 
earlier annual determinations within the previous five years or where 
the AA has determined that there is good cause pursuant to the 
Administrative Procedure Act to make the rule effective without a 30-
day delay.
    The timing of this process should be coordinated to the extent 
possible with the annual LOF publication process, as specified in 50 
CFR 229.8.

Comments and Responses

    NMFS received fourteen substantive comment letters during the 
comment period on the ESA observer proposed rule. These letters came 
from commercial fishing industry organizations, conservation 
organizations, states, and private individuals. In addition, 
approximately twenty letters of similar content were received from 
concerned citizens.

Comments in Support of the Rule

    Comment 1: Several commenters stated that the flexibility provided 
in this rule would lead to better understanding of the impact of 
bycatch on sea turtles, particularly in state waters, where it is 
currently lacking. Many commenters also agreed with the need to extend 
the maximum number of monitoring days after declaration of an 
``emergency'' event (e.g., a stranding) from 30 to 180, stating that 
greater sampling levels would provide more accurate estimates of 
interaction rates.
    Response: For the reasons stated in the preamble, NMFS has decided 
to

[[Page 43179]]

proceed with development of a final rule for this action.
    Comment 2: One commenter supported the broadest application of this 
rule, including to all commercial and recreational fishing vessels 
operating in state and federal waters, as well as U.S. fishing vessels 
operating outside the territorial seas and exclusive economic zone of 
the U.S.
    Response: Section 9 of the ESA, and its implementing regulations, 
prohibits the take of endangered or threatened species by any person 
subject to the jurisdiction of the U.S. Accordingly, this regulation 
applies to U.S. commercial or recreational fishing vessels, or vessels 
otherwise subject to the jurisdiction of the U.S., operating in U.S. 
territorial waters, in the U.S. exclusive economic zone, or on the high 
seas. NMFS has clarified the preamble and regulatory text to reflect 
this.

Comments Concerning Try Nets

    Comment 3: One commenter stated that increasing observer coverage 
for try nets should not be a priority because: (a) try nets larger than 
12 feet require TEDs, and smaller try nets have a low probability of 
catching a turtle; (b) the shrimp fishery has declined by over 58 
percent in recent years due to increasing fuel costs, shrimp imports, 
and hurricane effects; and there is a moratorium on federal shrimp 
permits.
    Response: The annual determination process specified in this final 
rule requires NMFS to identify those fisheries it intends to observe. 
The selection criteria include the extent of overlap between the 
fishing operation and sea turtle presence, type of gear used, 
documented or reported interactions, and available funds. Given limited 
resources, NMFS will prioritize fisheries to observe, including the 
shrimp fishery and trynets. Factors such as the probability of an 
interaction, past coverage, and fishing trends will be considered.

Comments Concerning Recreational Fisheries Monitoring

    Comment 4: Some commenters said the rule does not place adequate 
emphasis on the need to monitor and observe recreational fisheries, 
stating that NMFS needs to demonstrate an equal commitment to observe 
recreational and commercial fisheries. One commenter stated that this 
rule should not be finalized until a specific process to implement and 
achieve statistically valid observer coverage in the recreational 
sector has been identified.
    Response: There is a need to address sea turtle bycatch in both 
recreational and commercial fisheries. For this reason, NMFS is 
providing a mechanism to monitor recreational fisheries in this rule. 
Nonetheless, given the diffuse nature of recreational fisheries and the 
lack of licensing systems in place to track participants in many 
recreational fisheries, NMFS recognizes that it will take time to get 
systems in place that allow for better tracking and understanding of 
the extent and impact of recreational fisheries. NMFS will consult with 
appropriate state and/or Federal fisheries officials and other entities 
to identify which recreational fisheries should be considered in the 
annual determination.
    Comment 5: One commenter noted that recreational fisheries have 
grown enormously in the recent past and in many cases use the same gear 
as is used in the commercial sector and therefore should be considered 
a source of sea turtle bycatch.
    Response: NMFS has provided a mechanism to monitor sea turtle 
bycatch in the recreational sector via this rulemaking.

Comments Concerning Observer Safety

    Comment 6: One commenter pointed out that the Regulatory Impact 
Review correctly notes the revenue cost of lost bunk space. However, 
the greatest impact of lost bunk space is the increase in physical 
labor and/or loss of sleep for the crew. Lost bunk space reduces safety 
of life at sea. National Standard 10 and other provisions of the 
Magnuson-Stevens Act require promotion of safety at sea. This should be 
considered under ESA rules as well.
    Response: Safety at sea is a critical consideration in placing 
observers on a vessel. If fewer crew are onboard, the vessel master 
must accommodate any change in crew capability to ensure safety. NMFS 
will work closely with the fishing industry, fishery management 
councils, and states to identify any safety issues that may arise as a 
result of observer placement under this rule.
    Comment 7: One commenter stated that observers themselves should 
determine the safety of a vessel before making a trip decision.
    Response: Observers conduct pre-trip safety checks and decide 
whether or not to board a vessel, in accordance with 50 CFR 600.746.
    Comment 8: One commenter disagreed with the statement, ``Vessels 
too small to accommodate an observer will not be required to take an 
observer under this rule.'' The commenter felt there is no minimum 
vessel size to take an observer. Observers should be trained to work on 
small vessels. Small vessels can have a great impact on sea turtles and 
should not be excluded.
    Response: Small vessels can have an impact on sea turtles, and 
steps should be taken to quantify and address those impacts. Safety for 
both the observer and crew are serious considerations in observer 
placement and observers monitoring small vessels receive special 
training so they are prepared to address those challenges. While the 
deployment of observers is still seen as one of the most effective 
approaches, there are other options that may be considered. Recent 
advances in technology, such as digital video and imaging, have made 
remote electronic monitoring a viable alternative in some cases. 
Additionally, alternate platforms have been used successfully to 
monitor Virginia pound nets and other fisheries.
    Comment 9: One commenter supports the requirement that vessel 
owners should comply with observer health and safety requirements. 
Alternative monitoring systems (e.g., electronic, remote platforms) 
should be established for fisheries with exceedingly small vessels to 
be monitored so that a representative sample of vessels can be 
maintained.
    Response: See response to comment 8.
    Comment 10: One commenter noted that the reference to observer 
safety requirements is incorrect and should be changed to 50 CFR 
600.725 and 50 CFR 600.746.
    Response: NMFS has changed the reference accordingly.

Comments Concerning the Duration of Selection of a Fishery for 
Monitoring under this Rule

    Comment 11: One commenter requested a mechanism to review the 
designation of a fishery for monitoring consideration more frequently 
than after the five-year period of inclusion on the list expires. The 
commenter contended that observer coverage would not necessarily be 
warranted after a year or season of coverage showed no turtle 
interactions.
    Response: Due to resource constraints, NMFS will focus the annual 
determinations on priority fisheries. Nonetheless, NMFS needs the 
flexibility of a five-year period to monitor a fishery for sea turtle 
interactions to account for interannual variability in sea turtle 
bycatch rates and events, as well as in fishing effort. One year of 
observer coverage that shows no sea turtle interactions would not 
necessarily rule out that prohibited sea turtle takes occur in the 
observed fishery, if that year were anomalous for some reason. 
Furthermore, low take levels in one year or even over several years do 
not

[[Page 43180]]

necessarily mean that monitoring of a fishery should discontinue, 
because changes in fishing or sea turtle distribution or fishing effort 
may necessitate reconsidering a fishery for monitoring. There will be a 
comment period associated with each year=s proposed determination of 
fisheries to monitor, which will provide an opportunity for public 
input on fisheries proposed for monitoring under this regulation.
    Comment 12: One commenter requested that NMFS institute a 
transparent process based on specific criteria for removing a fishery 
from the monitoring list after five years. The commenter noted this 
should be based on whether the fishery is believed to interact with sea 
turtles rather than an arbitrary time period. A fishery should remain 
on the list unless NMFS proves it does not interact with sea turtles. 
Then NMFS should propose de-listing the fishery and open that decision 
for public comment.
    Response: NMFS believes five years will most often enable it to 
compile necessary information on sea turtle takes in a fishery. If 
after five years, NMFS feels it needs additional time to monitor the 
fishery, the rule provides a mechanism to reinstate the five-year 
period for that particular fishery. The rule states, ``If NMFS wishes 
to continue observations beyond the fifth year, NMFS must include the 
fishery in the proposed annual determination and seek comment, prior to 
the expiration of the fifth year.'' NMFS will notify the public whether 
a fishery will be removed from the annual determination, after the 
fifth year in that year's proposed annual determination, which will be 
open for public comment.

Comments Concerning Impacts on Fishermen

    Comment 13: One commenter recommended the proposed rule include a 
section explaining fishermen's rights and options related to 
accommodating observers. The commenter requested that NMFS address the 
following questions: (a) Will fishers be apprised of how many times 
they will be required to have observers?; (b) What options exist for 
vessel owners to select date/times/locations?; What options are there 
for refusal?; (d) What is the penalty for non-compliance?; and (e) What 
can/cannot the observer do relative to vessel operations?
    Response: An observer is not required to board, or stay aboard, a 
vessel that is unsafe or inadequate. Written notification of the final 
annual determination will be mailed to the owners or operators of 
fishing vessels. In the notification, NMFS will make every effort to 
provide information on the fishing sector, and temporal and geographic 
scope of coverage. NMFS will select optimal days, times, and locations 
to observe the vessel, based on appropriate sampling design and 
collection of scientific data regarding takes of sea turtles, and will 
notify fishermen accordingly. Failure to comply with the requirements 
under this rule may result in civil and/or criminal penalties as 
prescribed by the ESA. Observers may only observe and record data, and 
may not be required to perform duties normally performed by crew 
members.
    Comment 14: One commenter said NMFS should consider the social and 
economic impacts of sea turtle observer coverage under this rule in 
combination with all other observer coverage requirements (e.g., for 
fish population assessment, other protected species monitoring) with 
which fishermen must comply and should establish a maximum cap on total 
observer trips for individual or groups of vessels at a given homeport.
    Response: The standards for placing observers as specified in the 
final rule will ensure that cumulative social and economic burdens will 
be minimized. NMFS will ensure that assignment of observers is fair and 
equitable, and that no individual person or vessel, or group of persons 
or vessels, is subject to inappropriate, excessive observer coverage. 
NMFS will also minimize costs and avoid duplication, where practicable.

Comments Concerning Coordination with States

    Comment 15: One state requested that it be directly notified of the 
annual proposed determination of fisheries eligible for sea turtle 
bycatch monitoring. Another state offered its help in identifying 
fisheries that should be targeted for monitoring based on the level of 
sea turtle interactions.
    Response: Effective implementation of this rule will require 
regular communication and coordination with coastal states. As stated 
in the regulatory text at Sec.  222.402(b), ``The Assistant 
Administrator shall publish the proposed determination in the Federal 
Register notice and seek comment from the public. Additionally, NMFS 
will notify state agencies and provide notification through publication 
in local newspapers, radio broadcasts, and any other means as 
appropriate.'' NMFS appreciates and encourages assistance from states 
in identifying fisheries that should be monitored for turtle 
interactions.

Comments Concerning Status of Sea Turtles

    Comment 16: One commenter noted that recent analyses by the state 
of Florida of 17 years of loggerhead turtle (Caretta caretta) nesting 
data in Florida indicate a 22.3-percent decline in nests during this 
period. Threats to reproductive adult populations or earlier life 
stages on feeding grounds (e.g., fishing interactions), as opposed to 
threats on land, are likely the cause of decline. The commenter 
contends the doubling of loggerhead strandings in Florida over the past 
decade supports this claim.
    Response: NMFS is concerned about the recent data on loggerhead 
nesting trends from Florida. The Turtle Expert Working Group, a group 
of scientists and managers focused on turtle population assessment 
issues, is currently reviewing the status of loggerhead turtles, 
including the Florida nesting information, to try to determine the 
status of the species and sources of the decline. This final rule will 
allow for more comprehensive monitoring of sea turtle interactions in 
state, federal, and recreational fisheries and will help identify 
previously unknown sources of turtle interactions with fishing gear.
    Comment 17: One commenter expressed that NMFS is putting the cart 
before the horse and should first determine and provide statistically 
valid, accurate scientific data on the actual status and population 
trends of turtles along the east coast before addressing turtle 
bycatch. The commenter claimed NMFS needs population information to 
determine what constitutes a significant take rate for a particular 
population of sea turtle. The commenter inquired how NMFS will conduct 
jeopardy determinations and ESA section 7 consultations without 
population status information.
    Response: Section 9 of the ESA prohibits the take (including 
harassing, harming, pursuing, hunting, shooting, wounding, killing, 
trapping, capturing, or collecting or attempting to engage in any such 
conduct), including incidental take, of an endangered species. 
Additionally, pursuant to section 4(d) of the ESA, NMFS has issued 
regulations extending the prohibition of take, with exceptions, to 
threatened sea turtles (50 CFR 223.205 and 223.206). Thus, take of any 
level is prohibited unless it is specifically exempted from the ESA 
take prohibition. NMFS also has an obligation under Sec. 4(f)(1) of the 
ESA to develop and implement recovery plans to promote the conservation 
and recovery of endangered and threatened species. In collaboration 
with NMFS

[[Page 43181]]

scientists and other scientists knowledgeable in sea turtle biology and 
population structure, NMFS is conducting sea turtle population 
assessments. For instance, NMFS completed assessments on the Kemp's 
ridley and loggerhead in 1998 and 2000 (Turtle Expert Working Group, 
``An Assessment of the Kemp's Ridley and Loggerhead Sea Turtle 
Populations in the Western North Atlantic,'' NOAA Technical Memorandum 
NMFS-SEFSC-409, 96 pp (1998); Turtle Expert Working Group, ``Assessment 
Update for the Kemp's Ridley and Loggerhead Sea Turtle Populations in 
the Western North Atlantic,'' NOAA Technical Memorandum NMFS-SEFSC-444, 
115 pp (2000)), and the leatherback in 2007 (Turtle Expert Working 
Group, ``An Assessment of the Leatherback Population in the Atlantic 
Ocean,'' NOAA Technical Memorandum NMFS-SEFSC-555, 116 pp. (2007)). 
NMFS is currently reassessing the loggerhead population, given the 
recent data from Florida. NMFS uses these data and other sources of 
best available scientific data in ESA section 7 consultations and as 
the basis for other management decisions.

Comments Concerning Recommended Information Collection

    Comment 18: Commenters recommended that NMFS observers collect as 
much data as possible on the nature of the sea turtle take, including 
information on the location, number, time of day, catch per unit 
effort, and water temperature associated with the take; and the size, 
genetic identity, general health (e.g., appearance of 
fibropapillomatosis), and behavior of the sea turtles taken. Collecting 
information on these parameters will help NMFS limit regulations to the 
appropriate parameters and not unnecessarily burden fishermen.
    Response: It is important to collect all the above information, and 
NMFS will design observer programs to collect as much relevant 
information on sea turtles as possible within legal limits in order to 
best address prohibited sea turtle takes.

Comments Concerning Observer Coverage

    Comment 19: One commenter thought it was good to extend the 
emergency monitoring authority currently in 50 CFR 223.206(d)(4) from 
30 to 180 days, with a possible 60-day extension to 240 days, but 
thought the proposed regulatory language would limit the total amount 
of time an observer may be deployed, which current regulations do not. 
The commenter recommends retaining the language in the current 
regulation so that it does not limit total coverage under this 
provision to a maximum of 240 days.
    Response: The 240-day maximum is consistent with ESA section 
4(b)(7) and other emergency regulations that NMFS has promulgated under 
the ESA. Furthermore, NMFS believes that public notice and comment is 
appropriate if observer placement requirements are proposed for 
continuance after the 240-day maximum.
    Comment 20: One commenter recommended that observer programs take 
seasons and water temperatures into account when allocating resources 
and observers, given that sea turtle distribution can vary seasonally, 
particularly at higher latitudes.
    Response: Sampling designs must reflect the biology and 
distribution of the species to optimize monitoring of sea turtle 
bycatch events and increase the precision of the estimates of sea 
turtle interactions. NMFS' estimates of sea turtle bycatch will be 
enhanced by this final rule, as it eliminates the reliance on obtaining 
sea turtle-fishing gear interaction data through observer programs 
designed to monitor marine mammal or fish bycatch.
    Comment 21: One commenter stated that the South Carolina shad 
gillnet fishery should not be included in the annual determination of 
fisheries for monitoring because it operates in winter when sea turtles 
are not present.
    Response: The annual determination process specified in this final 
rule requires NMFS to identify those fisheries it intends to observe 
given concerns regarding interactions with sea turtles. The selection 
criteria include the extent of overlap between the fishing operation 
and sea turtle distribution, type of gear used, documented or reported 
interactions, incidence of sea turtle strandings in an area where a 
particular fishery operates, and available funds. Thus, where and when 
a fishery operates will be a factor in selection for monitoring. While 
sea turtles, depending on the species, are generally south or further 
offshore of South Carolina in the winter months, annual variability 
exists and sea turtles have been documented in South Carolina waters 
during the winter months. NMFS will work with South Carolina to 
determine if there is any overlap between the shad gillnet fishery and 
sea turtle distribution and whether monitoring of this fishery is 
warranted under this rule.
    Comment 22: One commenter noted that sea turtle interactions in try 
nets and pots/traps are incredibly rare and that observer coverage 
would have to be extremely high to yield any information. In some 
fisheries, the occurrence of bycatch is so rare that placing observers 
would be meaningless. Therefore, NMFS should select fisheries that have 
a ``reasonable chance'' of observing an interaction.
    Response: As stated in response to Comment 21, the annual 
determination process specified in this final rule requires NMFS to 
identify those fisheries it intends to observe given concerns regarding 
interactions with sea turtles. The selection criteria include the 
extent of overlap between the fishing operation and sea turtle 
distribution, type of gear used, documented or reported interactions, 
incidence of sea turtle strandings in an area where a particular 
fishery operates, and available funds. Once a fishery is selected, 
coverage levels are determined based on several factors, including 
spatial and temporal variability in the fisheries and the distribution 
of the species being observed. Where warranted, target coverage levels 
for rare events are much higher than for common events. In some 
currently observed fisheries (e.g., Hawaii shallow set longline fishery 
for swordfish) where interactions are rare, the coverage level is 100 
percent to allow for accurate information to be collected. For new 
observer programs, a pilot study is often initiated to provide 
information on variability of bycatch species within the fishery. The 
information collected during this pilot study is then used to more 
accurately determine the target observer coverage necessary to provide 
accurate bycatch estimates (typically measured as a coefficient of 
variation around the bycatch estimate). If appropriate, monitoring of 
catch or bycatch through electronic means or alternate platforms may be 
evaluated during the pilot study.
    Comment 23: NMFS should make every effort to obtain adequate 
observer coverage for all fisheries on the list, including requesting 
the appropriate amount of funding in the budget process.
    Response: NMFS is committed to achieving adequate observer 
coverage, and that means making every effort to request, identify, and 
allocate funds. Part of the decision for placing a fishery on the list 
is the extent of anticipated funds. However, there are many competing 
needs for limited funds, and priorities could change over the time a 
fishery is on the list.

Comments Concerning the Annual Determination Process

    Comment 24: One commenter stated that the rule must specify that 
the

[[Page 43182]]

annual review by the Assistant Administrator shall include 
consideration of applicable past observer coverage before final 
categorization of a given fishery. Such a pre-listing review, the 
commenter contends, would exclude many New Jersey gillnet fisheries 
from listing.
    Response: Past monitoring of a particular fishery, and the 
resulting data and its present applicability, will be taken into 
consideration in the development of an annual determination of 
fisheries to be monitored under this rule, as appropriate. However, 
prior monitoring of a fishery does not necessarily mean it will be 
excluded from the annual determination if, for example, NMFS needs to 
obtain additional sea turtle interaction information to improve data 
accuracy and precision, if fishing practices or effort have changed, or 
if sea turtle distribution has changed based on environmental 
conditions.
    Comment 25: Some commenters recommended that the annual 
determination of fisheries to be monitored not be limited by resources 
as indicated in one of NMFS' criteria for inclusion on the list: ``The 
extent to which NMFS intends to monitor the fishery and anticipates 
that it will have the funds to do so.'' Instead, the determination 
should be as inclusive as possible, for instance, by including all 
fisheries with unknown levels of sea turtle interaction, and should be 
determined by sea turtle conservation needs and priorities rather than 
available funding.
    Response: This process will be driven by the need to identify those 
fisheries in which sea turtle takes occur, so that existing management 
measures to reduce sea turtle takes may be evaluated and a 
determination made as to whether any additional measures may be 
necessary to implement the prohibition on take of sea turtles. Sea 
turtle conservation and recovery priorities will also be considered. 
However, NMFS included this criterion to help prioritize fisheries for 
monitoring. Additionally, this criterion will assist in notifying the 
public of NMFS' intent to monitor a given fishery.
    Comment 26: One commenter stated that the rule should include a 
public comment process between proposed and final annual determinations 
of fisheries to be monitored.
    Response: The final rule atSec.  222.402(b) states: ``The Assistant 
Administrator shall publish the proposed determination and any final 
determination in the Federal Register. Public comment will be sought at 
the time of publication of the proposed determination.''
    Comment 27: One commenter notes that listing a fishery under the 
annual determination simply based on similarity to other listed 
fisheries is inappropriate. This process should occur on a fishery by 
fishery basis and be examined for temporal and spatial overlap with sea 
turtles, regional distinctions in fishing practices, and past observer 
coverage.
    Response: In many cases, similarities of fishing gear to gear known 
to take sea turtles can make it a potential threat to sea turtles if 
the fishery overlaps with turtles in time and space. Nonetheless, NMFS 
will take fishing gear deployment or other characteristics (e.g., 
average tow time of gear) into account, as appropriate, when proposing 
fisheries in the annual determination. NMFS will also attempt to design 
observer programs to optimize sea turtle bycatch monitoring, for 
instance, by deploying observers during seasons and in locations when 
sea turtle bycatch is believed to be most problematic. This is an 
important cost-effective measure.
    Comment 28: One commenter asked what terms and conditions will be 
specified in the written annual determination of fisheries to be 
monitored under this rule.
    Response: As stated in Sec.  222.402(b) of the proposed and final 
rules, ``The proposed and final determinations will include, to the 
extent practicable, information on fishing sector, targeted gear type, 
target fishery, temporal and geographic scope of coverage, or other 
information, as appropriate.''
    Comment 29: One commenter recommended that NMFS take advantage of 
other associated and independent assessments of sea turtle bycatch 
being undertaken by the Strategy for Sea Turtle Conservation and 
Recovery in Relation to Atlantic and Gulf of Mexico Fisheries 
(Strategy) and Project GLOBAL at Duke University.
    Response: NMFS acknowledges the comment.

Comments Concerning the Use of Best Available Science

    Comment 30: One commenter pointed out that the proposed rule does 
not specify how it will develop sampling programs that yield best 
available science. It should be clarified that best available science 
refers to information specifically about sea turtle conservation, 
including but not limited to, the catch rates of sea turtles in 
specific gear types, regions, and seasons. Resources should be 
allocated to yield statistically valid results. The best available 
science should be explicitly outlined in a published sampling design 
for each observed fishery that includes methodologies for maximizing 
precision and accuracy while minimizing bias.
    Response: Observer program manuals providing details on data 
collection protocols are provided on each of the regional observer 
websites as well as on the National Observer Program (NOP) Web site 
(http://www.st.nmfs.gov/st4/nop/Observer_training_resources.html). 
The program manuals do not specifically provide information on sampling 
design, however, the sampling designs for all regional observer 
programs are published in many different forums, including peer 
reviewed journals and NMFS stock assessment reports. Sampling designs 
for all NMFS observer programs are developed to provide statistically 
valid information and to produce results that will contribute to the 
body of best available science. The sampling design will vary depending 
on many factors, including the fishery to be observed, the spatial and 
temporal variability in the fishery and species observed, and the 
overall goals of the observer program. Once a fishery is selected for 
observer coverage, a sampling design will be developed to yield 
statistically valid results. The issue of minimizing bias was addressed 
by the National Observer Program through a vessel selection bias 
workshop held in May 2006. Workshop recommendations to reduce bias 
included assessing the accuracy of estimated metrics used to compare 
observed vessels with the general fleet; selecting vessels and trips 
with equal probability within the sector for which bycatch are to be 
estimated; and identifying fishing regulations and other factors that 
may encourage vessel operators to alter fishing behavior when observers 
are present. These and other recommendations will be implemented by all 
regional observer programs to evaluate and minimize vessel selection 
and observer bias. The vessel selection bias workshop report is 
available online at http://www.st.nmfs.noaa.gov/st4/nop/documents/Vessel_Selection --Bias--Report--final.pdf.

Comments Concerning Regulatory Language

    Comment 31: One commenter thought that Science Center Directors 
should also have authority to require fishing vessels to carry an 
observer, since many NMFS observer programs are operated out of Science 
Centers.
    Response: As stated in the preamble to the proposed rule at 71 FR 
76268 (December 20, 2006), and clarified in this final rule, on an 
annual basis, the

[[Page 43183]]

Assistant Administrator, in consultation with Regional Administrators 
and Science Center Directors, will determine which fisheries NMFS 
intends to monitor. Thus, Regional Offices and Science Centers, both of 
which administer observer programs depending on the NMFS region, will 
be integral to the process of identifying fisheries for monitoring as 
well as implementing observer coverage once those fisheries have been 
identified.
    Comment 32: One commenter recommended that NMFS delete the 
statement in the proposed regulatory text, ``NMFS will pay direct costs 
for the observer,'' stating that it could preclude the establishment of 
non-NMFS-funded programs through this regulation.
    Response: Partnerships with interested cooperating entities 
external to NMFS could enhance the potential for obtaining sea turtle 
bycatch information under this regulation. NMFS has changed the 
regulatory and preamble text to reflect this.

General Comments and Questions on the Proposed Rule

    Comment 33: One commenter asked whether the agency plans to use 
observer information to implement broad-based measures across similar 
gear types or specially designed measures for specific fisheries known 
to interact with sea turtles.
    Response: Any management measures to implement the prohibitions of 
take will be based on the data collected from each fishery and gear 
type and the recommendations of NMFS and the states in which those 
fisheries interactions occur. Affected states may elect to develop and 
apply for an ESA section 10(a)(1)(B) incidental take permit to manage 
their own fisheries that are known to interact with sea turtles. 
Alternately, NMFS has implemented ESA regulations in state waters over 
large geographic areas such as in the shrimp fishery. Any future 
measures will be fully vetted through the public rulemaking process.
    Comment 34: One commenter noted that the proposed rule mentions 
bycatch as a leading threat to sea turtle populations worldwide but 
questioned what the other threats to sea turtle populations were and 
what type of observer programs are applied to those threats. The 
commenter wondered whether there were equal standards for all 
industries that threaten sea turtles.
    Response: Information on both fishery and non-fishery threats to 
sea turtles is available in the sea turtle recovery plans at http://www.nmfs.noaa.gov/pr/species/esa/turtles.htm. Generally speaking, 
threats include coastal construction, poaching, power plant 
entrainment, and many other activities. Federal agencies whose 
activities affect sea turtles must consult under ESA section 7. Private 
and state entities whose activities affect sea turtles consult with 
NMFS and/or the U.S. Fish and Wildlife Service pursuant to ESA section 
7 as a result of applying for a section 10(a)(1)(B) incidental take 
permit. As a result of those consultations, many agencies, such as the 
Army Corps of Engineers in their harbor maintenance program, must 
monitor the effects of their actions. Measures to minimize and mitigate 
the effects of human activities on sea turtle populations depend on the 
extent, frequency, and severity of the effect. Given the high level of 
variability in these factors, standard measures cannot be applied 
across industries.
    Comment 35: One commenter stated that NMFS should not limit its 
efforts to data collection but should cap and control sea turtle take 
by setting meaningful bycatch limits that are enforced in a timely 
manner.
    Response: Data collection is integral to implementing the 
prohibitions of take under the ESA, but is merely one step in the 
process. This action will also allow NMFS to better address sea turtle 
conservation and recovery by helping NMFS identify, quantify, and 
ultimately develop measures, where necessary, to reduce incidental sea 
turtle take in fishing gear. Voluntary and mandatory self-reporting 
have limited utility and the current observer requirements do not allow 
NMFS to sufficiently address sea turtle bycatch, as the preamble 
describes. To address sea turtle bycatch in fishing gear on a more 
comprehensive level, NMFS implemented the Sea Turtle Strategy 
referenced in comment 29 above. The Strategy is seeking to address 
prohibited sea turtle bycatch on a per-gear basis rather than a target 
fishery basis. Monitoring undertaken through this final rule will help 
provide a baseline assessment of fisheries that may be a concern, 
which, in combination with sea turtle population studies and other 
information, will help prioritize and focus measures for sea turtle 
conservation.
    Comment 36: One commenter noted that sea turtles in shallow water 
zones (e.g., along the Atlantic shelf) are highly vulnerable to 
fisheries, especially those using trawls and dredges.
    Response: This final rule will allow for more comprehensive 
monitoring of sea turtle interactions along the Atlantic shelf and 
other areas where sea turtles are found.
    Comment 37: One commenter suggested NMFS continue to use 
alternative platforms to monitor fisheries when they are difficult to 
cover with observers.
    Response: See response to comment 8 above.
    Comment 38: One commenter questioned who qualifies and provides 
observers and how observers are authorized before being placed on 
vessels.
    Response: The majority of regional observer programs operate under 
government contract with private observer service providers. Several 
programs, including the North Pacific Groundfish Observer Program, West 
Coast Off-shore hake observer program, and the Northeast sea scallop 
observer program, obtain observers through NMFS-permitted observer 
service providers. These providers operate through direct contracts 
with the fishing vessel and provide qualified observers to NMFS. The 
observer service providers interview, hire, and deploy the observers on 
fishing vessels as required either through the government contract or 
through NMFS regulations for the industry funded programs. NMFS has 
developed national observer eligibility standards to ensure that all 
NMFS observers have consistent minimum qualifications, including 
standards for education and experience, training, conflict of interest, 
physical condition, communication skills, and citizenship or ability to 
work legally in the U.S. They will be implemented by all regional 
observer programs. All regional observer programs provide formal 
observer training and all observers must pass an exam prior to 
deployment.

Comments on the Draft Environmental Assessment

    Comment 39: One commenter supported Alternative 3 (``Require 
Observer Programs in All Incidental Take Permits (Section 10(a)(1)(b)) 
Related to Fisheries'') of the Draft Environmental Assessment 
accompanying the proposed rule. The commenter said this alternative 
would enable the most accurate bycatch monitoring and reporting, 
improve understanding of recreational and commercial bycatch, and be a 
critical step toward developing a national comprehensive bycatch 
program.
    Response: NMFS rejected this Alternative because a comprehensive, 
coast-wide monitoring program is needed as an initial baseline 
assessment to further address sea turtle bycatch. Under this 
Alternative, individual states would need to assess and make 
determinations on whether to apply for an incidental take permit under 
the

[[Page 43184]]

ESA. The onset of observer programs may vary greatly, and geographic 
gaps in coverage may result. Each state's fisheries monitoring program 
may consist of different protocols for sampling and data collection, 
which may hinder the ability to compare and analyze data. NMFS believes 
this final rule will provide a more systematic and comprehensive 
framework for collecting bycatch data in fisheries of concern than 
would be achieved under Alternative 3. Nonetheless, this final rule 
does not preclude the authorities and responsibilities of ESA section 
10(a)(1)(b). NMFS will work closely with states in implementing this 
final rule and on long-term measures to address prohibited takes of sea 
turtles.

Summary of Changes from the Proposed Rule

    This section details and explains notable changes made to the final 
rule from the proposed rule.
    NMFS has changed language in the preamble and regulatory text to 
clarify that NMFS and/or interested cooperating entities will pay 
direct costs for the observer. NMFS made this change in response to a 
comment, described above, that the rule should not preclude interested 
cooperating entities from supporting observer coverage for certain 
fisheries, as appropriate. Such partnerships exist in observer programs 
around the country and may help enhance coverage levels where needed.
    NMFS changed language in the regulatory text at Sec.  222.401 to 
clarify that the NMFS Assistant Administrator will work with both 
Science Center Directors and Regional Administrators to identify 
fisheries that should be observed for sea turtle interactions under 
this regulation. This is appropriate since observer programs are 
administered at both the Science Center and Regional office level, 
depending on the specific region.
    NMFS clarified language in the preamble and regulatory text 
describing the appropriate application of the rule to U.S. fishing 
vessels operating inside waters of the U.S. (territorial waters and 
waters within the U.S. EEZ) as well as on the high seas. The rule 
clarifies that NMFS may place observers on either recreational or 
commercial U.S. fishing vessels operating within U.S. waters or on the 
high seas, or on vessels that are otherwise subject to the jurisdiction 
of the United States.
    NMFS corrects an error in Sec.  222.402(b) that states: ``In 
addition, a written notification of the proposed determination will be 
sent to the addresses specified for the vessel in either the NMFS or 
state fishing permit application, or to the address specified for 
registration or documentation purposes, or upon written notification 
otherwise served on the owners or operators of a vessel'' (emphasis 
added). NMFS intended this step to occur at the final, not proposed, 
determination stage, where such notification would be more appropriate 
and cost-effective.
    NMFS clarifies in the final rule the exceptions to the 30-day delay 
in the effective date for implementing observer coverage following a 
final annual determination. The Classification section of the proposed 
rule stated, ``A 30-day delay in effective date for implementing 
observer coverage will follow the annual notification, except for those 
fisheries that were listed in the preceding annual notification or 
where the AA has determined there is good cause [pursuant to the 
Administrative Procedure Act] to make the rule effective without a 30-
day delay.'' NMFS, however, did not include the ``good cause'' portion 
of the exception in the regulatory text of the proposed rule due to an 
oversight. Thus, NMFS adds this exception to the 30-day delay in 
effective date to the final rule.
    NMFS corrects the citation to the observer health and safety 
requirements in Sec.  222.401 of the final rule.

References

    Dwyer, K.L., C.E. Ryder, and R. Prescott. 2002. Anthropogenic 
mortality of leatherback sea turtles in Massachusetts waters. 2002. In: 
Proceedings of the Twenty-Second Annual Symposium on Sea Turtle 
Conservation and Biology. NOAA Tech Memo. NMFS-SEFSC-503, p.260.
    Epperly, S., Avens,L., Garrison, L., Henwood, T., Hoggard, W., 
Mitchell, J., Nance, J., Poffenberger, J., Sasso, C., Scott-Denton, E., 
and Yeung, C. 2002. Analysis of sea turtle.
    Bycatch in the commercial shrimp fisheries of Southeast U.S. waters 
and the Gulf of Mexico. NOAA Technical Memorandum NMFS-SEFSC-490, 88p.
    National Marine Fisheries Service, Southeast Fisheries Science 
Center, Beaufort Laboratory. 2007. Sea Turtle Sightings Database, 
unpublished.
    Scott-Denton, Elizabeth; Cryer, Pat; Gocke, Judith; Harrelson, 
Mike; Nance, James; Smith, Rebecca; and Williams, Jo Anne. CCB-0702. 
2007. Incidental capture of sea turtles in the U.S. southeastern shrimp 
trawl fishery.

Classification

    An informal Section 7 consultation was prepared for the proposed 
rule. It found that this action is not likely to adversely affect 
species listed as threatened or endangered or their associated critical 
habitat under the ESA.
    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The AA prepared an environmental assessment for this rule, which 
resulted in a Finding of No Significant Impact. A copy of the EA is 
available (see ADDRESSES).
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this rule would not have a significant impact on a 
substantial number of small entities. The factual basis for this 
certification is as follows:
    For the purpose of this certification, all fishermen affected by 
this rule will be considered individual small entities. Given the 
nature of sampling programs and limited NMFS resources, this rule will 
likely affect fewer than one hundred fishermen at any given time.
    Individual small entities will not be required to incur direct 
costs for complying with this observer requirement as NMFS and/or 
cooperating entities will pay the direct costs associated with observer 
coverage. Direct costs include observer salary and insurance costs. 
Potential indirect costs to individual small entities required to take 
observers under this rule may include: lost space on deck for catch, 
lost bunk space, and lost fishing time due to time needed to process 
bycatch data. For all these potential indirect costs, it is important 
to note that, due to limited resources and sampling protocols, 
effective monitoring will rotate observers among a limited number of 
vessels in a fishery at any given time. Thus, the potential indirect 
costs to individual small entities further described below are expected 
to be minimal since observer coverage would only be required for a 
small percentage of an individual's total annual fishing time.
    Lost space on deck for catch is a potential indirect cost to small 
entities. The indirect costs would potentially be less room to store 
catch or to house another active fishermen. However, in accordance with 
Observer Health and Safety standards, vessels too small to safely 
accommodate an observer will not be required to take an observer under 
this rule. Thus, the individuals most likely to be affected by this 
indirect cost, will not likely be required to accommodate an observer.
    Lost bunk space is a potential cost in that a vessel may need to 
limit the number of working fishermen onboard to accommodate an 
observer for

[[Page 43185]]

overnight trips. While this could result in lost fishing effort, and 
therefore lost catch, this would only be a potential cost to that 
subset of fishing vessels for which overnight fishing trips are a 
regular occurrence. Furthermore, given that larger vessels are usually 
used for fishing involving multi-day trips, the circumstances in which 
an observer would significantly displace fishing effort due to lost 
bunk space are not expected to occur with frequency. Thus, for this and 
the reasons stated above, the potential indirect cost of lost bunk 
space to individual small entities resulting from this rule is expected 
to be minimal.
    Lost fishing time due to time needed to process sea turtle bycatch 
data is another potential indirect cost to fishermen of this observer 
requirement. However, while individually significant, sea turtle 
bycatch events are generally rare occurrences. Thus, the need to 
process such data is not expected to occur on a frequent basis, 
rendering this an insignificant impact on individual fishermen. This 
rule includes an annual notification process whereby the Assistant 
Administrator for Fisheries (AA) would make an annual determination 
identifying which fisheries require observer coverage for the purpose 
of monitoring potential sea turtle takes. The determination will be 
based on the best available commercial, biological, and other data. 
NMFS will publish a proposed notice in the Federal Register for public 
comment. A 30-day delay in effective date for implementing observer 
coverage will follow the Federal Register publication of any final 
annual notification, except for those fisheries that were listed in the 
preceding annual notification or where the AA has determined that there 
is good cause pursuant to the Administrative Procedure Act to make the 
rule effective without a 30-day delay. Annual notification will 
include, but not be limited to, information on the fisheries to be 
sampled, geographic and seasonal scope, and level of coverage.
    For the reasons stated herein, the rule to establish mandatory 
observer coverage is not likely to impose a significant economic impact 
on a substantial number of small entities.
    This rule does not contain a collection-of-information requirement 
subject to the Paperwork Reduction Act.
    This rule contains policies with federalism implications as that 
term is defined in Executive Order 13132. The Assistant Administrator 
for NMFS notified state environmental management directors of this rule 
via a formal letter and detailed fact sheet describing the rule. NMFS 
will continue to solicit input from the appropriate officials of 
affected state, local, and/or tribal governments to solicit their input 
on the development of relevant observer programs under this rule.

List of Subjects

50 CFR Part 222

    Administrative Practice and Procedure, Endangered and threatened 
species, Exports, Imports, Marine mammals.

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: July 30, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR parts 222 and 223 
are amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
1. The authority citation for part 222 is revised to read as follows:

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.

0
2. New subpart D to part 222 is added to read as follows:

Subpart D--Observer Requirement

Sec.
222.401 Observer requirement.
222.402 Annual determination of fisheries to be observed; notice and 
comment.
222.403 Duration of selection; effective date.
222.404 Observer program sampling.

Subpart D--Observer Requirement


Sec.  222.401  Observer requirement.

    Any United States fishing vessel, either commercial or 
recreational, which operates within the territorial seas or exclusive 
economic zone of the United States or on the high seas, or any fishing 
vessel that is otherwise subject to the jurisdiction of the United 
States, operating in a fishery that is identified through the annual 
determination process specified in Sec.  222.402 must carry aboard a 
NMFS-approved observer upon request by the NMFS Assistant 
Administrator, in consultation with NMFS Regional Administrators and 
Science Center Directors, as appropriate. NMFS and/or interested 
cooperating entities will pay direct costs for the observer. Owners and 
operators must comply with observer safety requirements specified at 50 
CFR 600.725 and 50 CFR 600.746 and the terms and conditions specified 
in the written notification.


Sec.  222.402  Annual determination of fisheries to be observed; notice 
and comment.

    (a) The Assistant Administrator, in consultation with Regional 
Administrators and Science Center Directors, will make an annual 
determination identifying which fisheries the agency intends to 
observe. This determination will be based on the extent to which:
    (1) The fishery operates in the same waters and at the same time as 
sea turtles are present;
    (2) The fishery operates at the same time or prior to elevated sea 
turtle strandings; or
    (3) The fishery uses a gear or technique that is known or likely to 
result in incidental take of sea turtles based on documented or 
reported takes in the same or similar fisheries; and
    (4) NMFS intends to monitor the fishery and anticipates that it 
will have the funds to do so.
    (b) The Assistant Administrator shall publish the proposed 
determination and any final determination in the Federal Register. 
Public comment will be sought at the time of publication of the 
proposed determination. In addition, a written notification of the 
final determination will be sent to the address specified for the 
vessel in either the NMFS or state fishing permit application, or to 
the address specified for registration or documentation purposes, or 
such notification will be otherwise served on the owners or operator of 
the vessel. Additionally, NMFS will notify state agencies and provide 
notification through publication in local newspapers, radio broadcasts, 
and any other means as appropriate. The proposed and any final 
determinations will include, to the extent practicable, information on 
fishing sector, targeted gear type, target fishery, temporal and 
geographic scope of coverage, or other information, as appropriate.
    (c) Fisheries listed on the most recent annual Marine Mammal 
Protection Act List of Fisheries in any given year, in accordance with 
16 U.S.C. 1387, will serve as the comprehensive set of commercial 
fisheries to be considered for inclusion in the annual determination. 
Recreational fisheries may also be included in the annual 
determination.
    (d) Publication of the proposed and final determinations should be 
coordinated to the extent possible with the annual Marine Mammal 
Protection Act List of Fisheries process as specified at 50 CFR 229.8.
    (e) Inclusion of a fishery in a proposed or final determination 
does

[[Page 43186]]

not constitute a conclusion by NMFS that those participating in the 
fishery are illegally taking sea turtles.


Sec.  222.403  Duration of selection; effective date.

    (a) Fisheries included in the final annual determination in a given 
year will remain eligible for observer coverage under this rule for 
five years, without need for NMFS to include the fishery in the 
intervening proposed annual determinations, to enable the design of an 
appropriate sampling program and to ensure collection of scientific 
data. If NMFS wishes to continue observations beyond the fifth year, 
NMFS must include the fishery in the proposed annual determination and 
seek comment, prior to the expiration of the fifth year.
    (b) A 30-day delay in effective date for implementing observer 
coverage will follow the annual notification, except for those 
fisheries that were included in a previous determination within the 
preceding five years or where the AA has determined that there is good 
cause pursuant to the Administrative Procedure Act to make the rule 
effective without a 30-day delay.


Sec.  222.404  Observer program sampling.

    (a) During the program design, NMFS would be guided by the 
following standards in the distribution and placement of observers 
among fisheries and vessels in a particular fishery:
    (1) The requirements to obtain the best available scientific 
information;
    (2) The requirement that assignment of observers is fair and 
equitable among fisheries and among vessels in a fishery;
    (3) The requirement that no individual person or vessel, or group 
of persons or vessels, be subject to inappropriate, excessive observer 
coverage; and
    (4) The need to minimize costs and avoid duplication, where 
practicable.
    (b) Consistent with 16 U.S.C. 1881(b), vessels where the facilities 
for accommodating an observer or carrying out observer functions are so 
inadequate or unsafe (due to size or quality of equipment, for example) 
that the health or safety of the observer or the safe operation of the 
vessel would be jeopardized, would not be required to take observers 
under this rule.

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
4. In Sec.  223.206, the second sentence of paragraph (d)(4)(iv) is 
revised to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (4) * * *
    (iv) Procedures. * * * An emergency notification will be effective 
for a period of up to 30 days and may be renewed for additional periods 
of up to 30 days each, except that emergency placement of observers 
will be effective for a period of up to 180 days and may be renewed for 
an additional period of 60 days. * * *
* * * * *
[FR Doc. E7-15145 Filed 8-2-07; 8:45 am]
BILLING CODE 3510-22-S