[Federal Register Volume 74, Number 221 (Wednesday, November 18, 2009)]
[Proposed Rules]
[Pages 59508-59519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27674]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 0906181067-91356-01]
RIN 0648-XP96


2010 Annual Determination for Sea Turtle Observer Requirement

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

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
proposed Annual Determination (AD) for 2010, pursuant to its authority 
under the Endangered Species Act (ESA). Through this proposed AD, NMFS 
would identify commercial fisheries operating in state and Federal 
waters in the Atlantic Ocean, Gulf of Mexico, and Pacific Ocean that 
would be required to take observers upon NMFS' request. The purpose of 
observing identified fisheries is to learn more about sea turtle 
interactions in a given fishery, evaluate existing measures to reduce 
or prevent sea turtle takes, and to determine whether additional 
measures to address prohibited sea turtle takes may be necessary. 
Fisheries identified through this process would remain on the AD, and 
therefore required to carry observers upon NMFS' request, for 5 years.

DATES: Comments must be received by December 18, 2009.

ADDRESSES: Send comments on the proposed rule by any one of the 
following methods.
    (1) Electronic Submissions: Submit all electronic comments through 
the Federal eRulemaking portal: http://www.regulations.gov (follow 
instructions for submitting comments).
    (2) Facsimile: (301) 713-0376, Attention: 2010 Sea Turtle Annual 
Determination.
    (3) Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter ``N/A'' in the required fields, if you wish 
to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    Send comments on the information collection requirements or any 
other aspects of the collection of information to the Chief of the 
Marine Mammal and Sea Turtle Conservation Division, Office of Protected 
Resources, at the ADDRESSES above, and e-mail to [email protected], or fax to (202) 395-7285.
    See SUPPLEMENTARY INFORMATION for a listing of all Regional 
Offices.

FOR FURTHER INFORMATION CONTACT: Kristy Long, Office of Protected 
Resources, 301-713-2322; Ellen Keane, Northeast Region, 978-282-8476; 
Dennis Klemm, Southeast Region, 727-824-5312; Elizabeth Petras, 
Southwest

[[Page 59509]]

Region, 562-980-3238; Kim Maison, Pacific Islands Region, 808-944-2257. 
Individuals who use a telecommunications device for the hearing 
impaired may call the Federal Information Relay Service at 1-800-877-
8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, 
excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Availability of Published Materials

    Information regarding the Marine Mammal Protection Act (MMPA) List 
of Fisheries (LOF) may be obtained at http://www.nmfs.noaa.gov/pr/interactions/lof/ and information regarding Marine Mammal Stock 
Assessment Reports may be obtained at http://www.nmfs.noaa.gov/pr/sars/ 
or from any NMFS Regional Office at the addresses listed below:
    NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 
01930-2298;
    NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 
33701;
    NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213; or
    NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani 
Boulevard, Suite 1100, Honolulu, HI 96814-4700.

Purpose of the Sea Turtle Observer Requirement

    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 found in U.S. waters are listed as either 
endangered or threatened under the ESA. 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 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. 
Due to the inability to distinguish between populations of green 
turtles away from the nesting beach, NMFS considers green turtles 
endangered wherever they occur in U.S. waters. 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 take prohibitions. NMFS may grant exceptions to the take 
prohibitions with an incidental take statement or an incidental take 
permit issued pursuant to ESA section 7 or 10, respectively. 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 modified gear or 
modified fishing practices 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 in order to minimize or prevent take is to place 
observers aboard fishing vessels. In 2007, NMFS issued a regulation (50 
CFR 222.402) 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 (72 FR 43176, August 3, 2007). These regulations 
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.
    NMFS and/or interested cooperating entities will pay the direct 
costs for vessels to carry 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 takes; and to determine whether additional measures are 
needed to implement ESA take prohibitions and conserve turtles.

Process for Developing an Annual Determination

    Pursuant to 50 CFR 222.402, the Assistant Administrator for 
Fisheries, NOAA (AA), in consultation with Regional Administrators and 
Fisheries Science Center Directors, develops a proposed annual 
determination identifying which fisheries are required to carry 
observers, if requested, to monitor potential interactions with sea 
turtles. NMFS provides an opportunity for public comment on any 
proposed determination. The determination is 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. 
Specifically, this determination is 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.
    The AA uses the most recent version of the annually published MMPA 
List of Fisheries (LOF) as the comprehensive list of commercial 
fisheries for consideration. The LOF includes all known state and 
Federal commercial fisheries that occur in U.S. waters. The 
classification scheme used for fisheries on the LOF would not be 
relevant to this process. Unlike the LOF process, an annual 
determination may also include recreational fisheries likely to 
interact with sea turtles on the basis of the best available 
information.
    NMFS consulted with appropriate state and Federal fisheries 
officials and other entities to identify which fisheries, both 
commercial and recreational, should be considered in the annual 
determination. Although the comments and recommendations provided to 
NMFS by states were based upon the best available information on their 
fisheries, NMFS received more

[[Page 59510]]

recommendations for fisheries to include on the 2010 AD than is 
feasible to propose at this time based on the four previously noted 
criteria (50 CFR 222.402(a)).
    The AD is not an exhaustive or comprehensive list of all fisheries 
with documented or suspected takes of sea turtles; there are additional 
fisheries that NMFS remains concerned about. For these additional 
fisheries, NMFS may already be addressing incidental take through 
another mechanism (e.g., rulemaking to implement modifications to 
fishing gear and/or practices) or will consider adding them to future 
annual determinations based on the four previously noted criteria (50 
CFR 222.402(a)).
    Notice of the final determination will be published in the Federal 
Register and 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 
proposed AD again prior to the end of the fifth year. As part of the 
2010 AD, NMFS has included, to the extent practicable, information on 
the fisheries or gear types to be sampled, geographic and seasonal 
scope of coverage, and any other relevant information. After 
publication of a final AD, a 30-day delay in effective date for 
implementing observer coverage will follow, except for those fisheries 
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.

Implementation of Observer Coverage in a Fishery Listed on the 2010 
Annual Determination

    The design of any observer program for fisheries identified through 
the AD process, 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 for distributing and placing observers among 
fisheries identified in the AD 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.
    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 proposed rule. 
Nonetheless, per Magnuson-Stevens Fishery Conservation and Management 
Act (MSA) regulations for observers (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. However, observation techniques using alternative 
platforms apart from the fishing vessel, but still requiring the 
cooperation of fishermen, may be employed in such instances as 
appropriate. 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 50 CFR 
222.404 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.
    Fisheries not included on the 2010 AD may still be observed under a 
different authority than the ESA (e.g., MMPA, MSA).
    Additional information on observer programs in commercial fisheries 
can be found on the NMFS National Observer Program's website: http://www.st.nmfs.gov/st4/nop/; links to individual regional observer 
programs may also be found on this website.

Sea Turtle Distribution

Atlantic Ocean and Gulf of Mexico

    Sea turtle species found in waters of the Atlantic Ocean and Gulf 
of Mexico include green, hawksbill, Kemp's ridley, leatherback, and 
loggerhead turtles. The waters off the U.S. East Coast represent 
important residential, migrating, and foraging habitat for several of 
these species. Further, the Southeastern U.S. is a major sea turtle 
nesting area for loggerheads and, to a lesser extent, green and 
leatherback turtles.
    Four species, green, Kemp's ridley, leatherback, and loggerhead 
turtles, occur seasonally in southern New England and mid-Atlantic 
continental shelf waters north of Cape Hatteras, North Carolina. The 
occurrence of these species in these waters is temperature dependent. 
In general, turtles move up the coast from southern wintering areas as 
water temperatures warm in the spring. The trend is reversed in the 
fall as water temperatures decrease. By December, turtles have passed 
Cape Hatteras, returning to more southern waters for the winter. Hard-
shelled species are typically observed as far north as Cape Cod, 
Massachusetts, whereas more cold-tolerant leatherbacks are observed 
farther north in northern Gulf of Maine waters in the summer and fall.
    Green turtles are found in inshore and nearshore waters from Texas 
to Massachusetts, the U.S. Virgin Islands, and Puerto Rico. While 
foraging and developmental habitats also occur in the wider Caribbean, 
important feeding areas in Florida include the Indian River Lagoon, the 
Florida Keys, Florida Bay, Homosassa, Crystal River, Cedar Key, and St. 
Joseph Bay. The bays and sounds of North Carolina also provide 
important foraging habitat for green turtles, which can occur in those 
areas in relatively high densities.
    In the Atlantic, hawksbills are most common in Puerto Rico and its 
associated islands and in the U.S. Virgin Islands. In the continental 
U.S., the species is recorded from all the Gulf States and along the 
east coast as far north as Massachusetts, but sightings north of 
Florida are rare. Hawksbills are observed in Florida on the reefs off 
Palm Beach, Broward, Miami-Dade, and Monroe Counties. Texas is the only 
other U.S. state where hawksbills are sighted with any regularity.
    Kemp's ridleys are distributed throughout waters of the Gulf of 
Mexico and U.S. Atlantic coast, from Florida to New England. The major 
nesting area for Kemp's ridleys is in Tamaulipas, Mexico, but some 
nesting also occurs along the Texas coast.
    The second largest nesting aggregation of loggerheads in the world 
occurs in the southeastern U.S. Loggerheads occur throughout the 
Atlantic and Gulf of

[[Page 59511]]

Mexico, spending significant time in coastal areas.
    Adult leatherbacks are capable of tolerating a wide range of water 
temperatures, and have been sighted along the entire continental coast 
of the United States as far north as the Gulf of Maine and south to 
Puerto Rico, the U.S. Virgin Islands, and into the Gulf of Mexico. The 
central east coast of Florida represents a small, but growing, nesting 
area for leatherbacks in the western North Atlantic.

U.S. Pacific Ocean

    Leatherback sea turtles are found consistently off the U.S. west 
coast, usually north of Point Conception, California. Green turtles, 
loggerhead, and olive ridley sea turtles are rarely observed in the 
west coast EEZ, but records show that all species have stranded in 
California and the Pacific Northwest. Leatherbacks are known to migrate 
to central and northern California from their natal beaches in the 
Western Pacific to feed on jellyfish. During aerial surveys conducted 
since the early 1990s, leatherbacks were most often spotted off Point 
Reyes, south of Point Arena, in the Gulf of the Farallons, and in 
Monterey Bay. Leatherback turtles usually appear in Monterey Bay and 
California coastal waters during August and September and move offshore 
in October and November. Other observed areas of summer leatherback 
concentration include northern California and the waters off Washington 
through northern Oregon, offshore from the Columbia River plume.
    Green, loggerhead, and olive ridley sea turtles are generally found 
in waters temperatures above 18 C, which is warmer than the waters off 
most of California, Oregon, and Washington. Two small populations of 
green turtles occur in the southern California Bight utilizing the warm 
water outflows from power plants in San Diego Bay and Alamitos Bay in 
Long Beach, California. In the eastern Pacific, loggerheads have been 
reported as far north as Alaska, and as far south as Chile. Occasional 
sightings are reported from the coasts of Washington and Oregon, but 
most records are of juveniles off the coast of California. Based upon 
limited observer records, loggerheads travel into the southern 
California Bight during El Nino events (or warm water conditions 
similar to an El Nino). The majority of fishery interactions with 
loggerheads during El Nino conditions have occurred during the summer. 
Olive ridleys have been recorded stranded all along the U.S. west 
coast. Olive ridleys are believed to use warm water currents along the 
west coast for foraging. The general distribution of olive ridleys 
along the U.S. west coast is unknown at this time.
    Sea turtles occur throughout the Pacific Islands Region including 
the State of Hawaii and the U.S. territories of Guam, American Samoa, 
and the Commonwealth of the Northern Mariana Islands (CNMI). Green and 
hawksbill turtles are most common in nearshore waters while 
leatherbacks, loggerheads, and olive ridleys occur in offshore pelagic 
waters. Stock structure and population dynamics for some species in 
this region are poorly understood.

Sea Turtle Strandings

    NMFS reviewed data collected by the Sea Turtle Stranding and 
Salvage Network (STSSN) between 2003 and 2007 to identify stranding 
trends and inform development of this proposed rule. Cold stunned, 
captive-reared, and post-hatchling turtles were not included in the 
data reviewed.
    Between 2003 and 2007, the STSSN along the U.S. Atlantic and Gulf 
coasts collectively documented strandings of six species: loggerhead, 
Kemp's ridley, green, leatherback, hawksbill, and olive ridley turtles, 
with loggerheads consistently representing the highest number of 
strandings. For the purposes of this review, the U.S. Atlantic and Gulf 
of Mexico coastline is divided into three regions: (1) Gulf, including 
all Gulf of Mexico waters from TX through the FL gulf coast, (2) 
Southeast Atlantic, including U.S. Atlantic waters from FL east coast 
through NC, and (3) Northeast Atlantic, including all U.S. Atlantic 
waters from VA through ME. Of the three regions, the Southeast Atlantic 
consistently records the highest level of strandings during any given 
month, each year. In each region, as well as collectively, loggerhead 
sea turtles represent the highest number of annual strandings, followed 
by Kemp's ridley and leatherback turtles in the Atlantic and green 
turtles in the Gulf.
    Based on the data reviewed, strandings have occurred in each month 
of the year, in all three regions; however, distinct trends are notable 
within each region. In the Gulf and Southeast Atlantic regions, 
strandings consistently occur in every month of the year. In the Gulf 
region, the highest concentration of strandings occurs from March to 
August, with a notable peak in April and May. In the Southeast Atlantic 
region, the highest concentration of strandings occurs from March to 
November, with a notable peak in May and June. In the Northeast 
Atlantic region, strandings predominately occur between May and 
November of each year, with the highest concentration of strandings 
between June and September; strandings are not regularly observed in 
the winter and early spring.
    On the U.S. West Coast, strandings are infrequent compared to the 
Atlantic and Gulf of Mexico coasts predominantly due to oceanographic 
features (e.g., currents) and species abundance and distribution. 
Between 2003 and 2007, the STSSN in California documented strandings of 
three species: green, leatherback, and olive ridley turtles. Green 
turtles represent the highest number of strandings. Strandings were 
documented in all months except April; data indicate a peak in 
strandings between July and October.
    In Oregon and Washington, very few strandings were recorded between 
2003 and 2007. Green, loggerhead, and olive ridley turtle strandings 
were recorded from December to March, with no strandings documented 
from April through November. Prior to 2003, stranded leatherback 
turtles were recorded in Oregon and Washington.
    In the Pacific Islands region, strandings occur throughout the 
year, primarily green turtles and secondarily hawksbills in Hawaii, 
Guam, American Samoa, and CNMI.

Addition of Fisheries on the 2010 Annual Determination

    NMFS is proposing to include 19 fisheries (17 in the Atlantic Ocean 
and Gulf of Mexico and 2 in the Pacific Ocean) on the 2010 AD. These 19 
fisheries, described below and listed in Table 1, represent several 
gear types, including trawl, gillnet, trap/pot, and pound net/weir/
seine.
    As described above, the most recent LOF is used as the universe of 
commercial fisheries included on the AD. The fishery name, definition, 
and number of vessels/persons specified on the AD are taken from the 
most recent final LOF. Additionally, the fishery descriptions below 
include a particular fishery's current classification on the MMPA LOF 
(i.e., Category I, II, or III); Category I and II fisheries are 
required to carry observers if requested by NMFS. As noted previously, 
NMFS also has authority to observe fisheries in Federal waters under 
the MSA, under which NMFS has collected sea turtle bycatch information.

Trawl Fisheries

    Interactions with trawl fisheries are of a particular concern for 
sea turtles, since forced submergence in any type of restrictive gear 
could lead to lack of oxygen and subsequent death by drowning. 
Metabolic changes that can

[[Page 59512]]

impair a sea turtle's ability to function can occur within minutes of a 
forced submergence (Lutcavage et al., 1997).
    Trawls that are not outfitted with turtle excluder devices (TEDs) 
may result in forced submergence. Currently, only trawl fisheries 
capable of catching shrimp and operating south of Cape Charles, VA, and 
in the Gulf of Mexico as well as trawl fisheries targeting summer 
flounder south of Cape Charles, VA, are required to use TEDs.
    NMFS' Strategy for Sea Turtle Conservation and Recovery in Relation 
to Atlantic Ocean and Gulf of Mexico Fisheries (``Strategy''), a gear-
based approach to addressing sea turtle bycatch, has identified trawl 
gear as a priority given our knowledge of the level of bycatch in this 
gear and the availability of technology that allows sea turtles to 
escape the trawl net, minimizing injury and mortality. The Strategy is 
currently evaluating mitigation measures for trawl fisheries that 
overlap with sea turtles. Several fisheries that NMFS proposes to 
include on the 2010 AD may be considered for sea turtle conservation 
measures under the Strategy in a future rulemaking to implement the 
prohibition of take and to help conserve and recover sea turtles.
    Several states included trawl fisheries in their responses to NMFS' 
request for information and recommendations for the 2010 AD. 
Massachusetts noted that summer flounder trawlers are known to interact 
with sea turtles. New York recommended considering bottom otter trawl 
fisheries given that this is one of the top gear types in terms of 
pounds landed in Long Island Sound, Peconic Bay, and along the South 
Shore. New Jersey suggested focusing observer coverage in areas where 
trawl gear overlaps with sea turtle observations. Maryland reported 
that interactions between bottom otter trawl gear as well as beam trawl 
gear and sea turtles are possible in the Atlantic Ocean (0-3 miles (0-
4.8 km)) and there have been reports of sea turtles captured in trawl 
gear. North Carolina ranked trawls operating in ocean waters as their 
top priority based on NMFS' four criteria. South Carolina noted that 
both trynets and whelk trawls are of concern. Georgia, Florida, and 
Alabama all noted trawl fisheries as well. Mississippi highlighted 
skimmer trawls in their response to NMFS' request for recommendations. 
Therefore, based on the information provided by states and the best 
available scientific information, NMFS proposes to include the 
following trawl fisheries on the 2010 AD.

Atlantic Shellfish Bottom Trawl Fishery

    The Atlantic shellfish bottom trawl fishery (estimated 972 vessels/
persons) encompasses the calico scallop trawl, crab trawl, Georgia/
South Carolina/Maryland whelk trawl, Gulf of Maine/Mid-Atlantic sea 
scallop trawl, and Gulf of Maine northern shrimp trawl (71 FR 2006, 
January 4, 2006). This fishery extends from Maine through Florida. The 
fishery is managed through Federal and interstate fishery management 
plans (FMPs).
    This fishery is classified as Category III on the MMPA LOF; 
however, portions of the fishery have been observed at low levels under 
MSA authority and by the Georgia Department of Natural Resources (GA 
DNR).
    Since 2004, 16 sea turtle takes were reported by NMFS trained 
observers in the Atlantic sea scallop trawl fishery. Takes of sea 
turtles in scallop trawl gear have been observed during the months from 
June through October. One of the 16 sea turtles captured in scallop 
trawl gear was decomposed indicating it was not killed as a result of 
the scallop trawl gear in which it was observed. Fourteen of the non-
decomposed turtles were loggerhead sea turtles, while one was not 
identified to species.
    In addition, loggerhead sea turtle bycatch in the mid-Atlantic sea 
scallop trawl fishery, one component of the Atlantic shellfish bottom 
trawl fishery, was estimated for 2004 and 2005. The average annual 
bycatch estimates of loggerhead sea turtles in 2004 and 2005 in mid-
Atlantic sea scallop trawl gear ranged from 81 to 191 turtles, 
depending on the estimation methodology used (Murray 2007). GA DNR 
conducted a limited observer program in the trawl fishery targeting 
whelk in the late 1990s; 7 turtles (3 Kemp's ridleys, 2 greens, and 2 
loggerheads) were taken in 28 observed tows. NMFS is particularly 
interested in observing this fishery in waters off of Massachusetts and 
south as sea turtles more commonly occur in this area.
    NMFS proposes to include this fishery on the 2010 AD based on 
documented interactions with sea turtles in this and other bottom trawl 
fisheries and the need to obtain more information on the interactions 
in this fishery.

Mid-Atlantic Bottom Trawl Fishery

    Bottom otter trawl nets include a variety of net types, including 
flynets, which are high profile trawls. The ``Mid-Atlantic bottom trawl 
fishery'' as described in this proposed AD includes both the mid-
Atlantic bottom trawl fishery and the mid-Atlantic flynet fishery as 
defined on the LOF.
    The Mid-Atlantic bottom trawl fishery (estimated >1,000 vessels/
persons), as defined on the LOF, uses bottom trawl gear to target 
species including, but not limited to, bluefish, croaker, monkfish, 
summer flounder (fluke), winter flounder, silver hake (whiting), spiny 
dogfish, smooth dogfish, scup, and black sea bass. The fishery occurs 
year-round from Cape Cod, MA, to Cape Hatteras, NC, in waters west of 
72 30' W. long. and north of a line extending due east from the North 
Carolina/South Carolina border. The gear is managed by several state 
and Federal FMPs.
    The Mid-Atlantic flynet fishery (estimated 21 vessels/persons), as 
defined on the LOF, is a multi-species fishery composed of nearshore 
and offshore components that operate along the east coast of the mid-
Atlantic United States. Flynets typically range from 80-120 ft (24-36.6 
m) in headrope length, with wing mesh sizes of 16-64 in (41-163 cm), 
following a slow 3:1 taper to smaller mesh sizes in the body, 
extension, and codend sections of the net. The nearshore fishery 
operates from October to April inside of 30 fathoms (180 ft; 55 m) from 
New Jersey to North Carolina. This nearshore fishery targets Atlantic 
croaker, weakfish, butterfish, harvestfish, bluefish, menhaden, striped 
bass, kingfish species, and other finfish species. Flynet fishing is no 
longer permitted in Federal waters south of Cape Hatteras to a line 
extending from the NC/SC border in order to protect weakfish stocks. 
The offshore component operates from November to April outside of 30 
fathoms (180 ft; 55 m) from the Hudson Canyon off New York, south to 
Hatteras Canyon off North Carolina. These deeper water fisheries target 
bluefish, Atlantic mackerel, Loligo squid, black sea bass, and scup (72 
FR 7382, February 15, 2007). Illex squid are also targeted offshore 
(70-200 fathoms [420-1,200 ft; 128-366 m]) during summer months from 
May to September.
    The Mid-Atlantic bottom trawl fishery and the Mid-Atlantic flynet 
fishery are currently classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe these fisheries for marine mammal 
interactions, and to collect information on sea turtles should a take 
occur on an observed trip. Between 2003 and 2007, observer coverage as 
reported in the Marine Mammal Stock Assessment Report (SAR) ranged from 
a low of 1% to a high of 18.61% depending on target species; see 
Appendix III of the draft 2009 SAR for additional details (NMFS, 2009). 
It should be noted that the mid-Atlantic

[[Page 59513]]

bottom trawl fishery is defined slightly differently in the SARs (which 
use 70[deg] W as a boundary) than it is defined here and in the LOF. 
NMFS will consider changing this definition in a future LOF.
    Since 2003, NMFS has documented 50 sea turtle takes (excluding 
severely decomposed animals) in bottom otter trawl gear in the mid-
Atlantic. These takes occurred primarily between October and February, 
but takes were also reported May through September. In 2007, the 
observer program created new codes to document the different net types 
used, including flynets. Seven of the takes were recorded on trips 
where flynets were indicated as the specific net type used. Loggerhead 
turtles were the predominant species observed taken, but leatherback 
turtles were also documented. An estimate of the average annual bycatch 
of loggerhead sea turtles in mid-Atlantic bottom otter trawl gear 
during 1996-2004 was completed in 2006. The analysis defined the mid-
Atlantic as the region from the shoreline below 41[deg] 30' N./66[deg] 
W. to the southern extent of the NEFSC observer data collection, around 
35[deg] 00' N. lat. and 75[deg] 30' W. long. Estimated average annual 
bycatch of loggerhead turtles in mid-Atlantic bottom otter trawl gear 
during 1996-2004 was 616 animals (Murray, 2008).
    NMFS proposes to include this fishery on the 2010 AD to more 
adequately observe this gear type where and when it overlaps with sea 
turtle distribution.

Mid-Atlantic Mid-water Trawl (including pair trawl) Fishery

    The Mid-Atlantic mid-water trawl fishery (estimated 620 vessels/
persons) primarily targets Atlantic mackerel, chub mackerel, and 
miscellaneous other pelagic species. This fishery consists of both 
single and pair trawls, which are designed, capable, or used to fish 
for pelagic species with no portion of the gear designed to be operated 
in contact with the bottom. The fishery for Atlantic mackerel occurs 
primarily from southern New England through the mid-Atlantic from 
January to March and in the Gulf of Maine during the summer and fall 
(May to December).
    The Mid-Atlantic mid-water trawl fishery is currently classified as 
Category II on the MMPA LOF, which authorizes NMFS to observe this 
fishery for marine mammal interactions, and to collect information on 
sea turtles should a take occur on an observed trip. During 2003-2007, 
estimated observer coverage year-round in this fishery was 3.5%, 
12.16%, 8.4%, 8.9%, and 3.85%, respectively (NMFS 2009); no sea turtle 
takes were observed.
    NMFS proposes to include this fishery on the 2010 AD to more 
adequately observe this gear type in areas and during times where it 
overlaps with sea turtle distribution.

Southeastern U.S. Atlantic, Gulf of Mexico Shrimp Trawl Fishery

    The Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery 
(estimated >18,000 vessels/persons) targets shrimp using various types 
of trawls; NMFS would focus on the component of the fishery that uses 
skimmer trawls for the 2010 AD. Skimmer trawls are used primarily in 
inshore/inland shallow waters (typically less than 20 ft (6.1 m)) to 
target shrimp. The skimmer trawl has a rigid ``L''-shaped or triangular 
metal frame with the inboard portion of the frame attached to the 
vessel and the outboard portion attached to a skid that runs along the 
seabed.
    Skimmer trawl use increased in response to TED requirements for 
shrimp bottom otter trawls. Skimmer trawls currently have no TED 
requirement but are subject to tow time limits of 55 minutes from April 
1 to October 31 and 75 minutes from November 1 to March 31. Skimmer 
trawls are used in North Carolina, Florida (Gulf Coast), Mississippi, 
and Louisiana. There are documented takes of sea turtles in skimmer 
trawls in North Carolina, and anecdotal reports elsewhere. In North 
Carolina, there were 150-200+ active vessels per year from 2000-2002 
and in Louisiana, skimmer trawls accounted for 37% of the shrimp catch 
and 63% of the total shrimp trawling effort from 1999-2004. Louisiana 
skimmer trawl effort averaged about 60,750 trips per year over that 
period, ranging from about 81,700 trips in year 2000 to 49,000 trips in 
year 2004. No effort information is available for Mississippi and 
Florida.
    Skimmer trawl effort overlaps with sea turtle distribution, and as 
noted above, takes have been reported. Although subject to tow times, 
the magnitude and impact of turtle takes in this fishery are not 
understood, and no observer program currently exists for this portion 
of the shrimp fishery. Given the extent this gear is used, NMFS thinks 
it is important to better understand these interactions.
    NMFS is considering including skimmer trawls under the Atlantic 
Ocean and Gulf of Mexico Sea Turtle Strategy, which may result in a 
regulation to require TEDs or other protections for sea turtles for all 
trawl gears as appropriate. Observer coverage to understand the scope 
and impact of turtle takes by this gear will also be needed to make 
well informed management decision on what actions may be necessary to 
manage this fishery to minimize and prevent sea turtle takes and 
further sea turtle conservation and recovery.
    The Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery 
is classified as Category III on the MMPA LOF, but mandatory observer 
coverage under MSA authority began in 2007. The fishery is currently 
observed at approximately 1% of total fishery effort. NMFS is proposing 
to include the Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl 
fishery, to focus observer coverage in the component of the fishery 
that uses skimmer trawls, on the 2010 AD.

Gillnet Fisheries

    Sea turtles are vulnerable to entanglement and drowning in 
gillnets, especially when the gear is left untended. The main risk to 
sea turtles from capture in gillnet is forced submergence. Entanglement 
in gillnets can also result in severe abrasions on entangled turtles. 
Large mesh gillnets (e.g., 10-12 in. (25.4-30.5 cm) stretched mesh) 
have been documented as effective at capturing sea turtles. 
Additionally, sea turtles have been documented as entangled in smaller 
mesh gillnets.
    Several states (i.e., CA, NY, NJ, DE, MD, VA, NC, AL) recommended 
including gillnet fisheries on the 2010 AD. California recommended two 
small mesh gillnet fisheries. New York recommended considering sink 
gillnets and runaround gillnets, particularly those operating off the 
South Shore and Peconic Bay. During the time sea turtles are present in 
New York waters, gillnets are one of the top gear types in terms of 
pounds landed along the South Shore. New Jersey recommended observing 
gillnet fisheries operating in areas that overlap with sea turtle 
sightings. Delaware identified gillnet gear as a concern based on the 
potential for interactions. Maryland noted that potential for sea 
turtle takes exists in gillnet fisheries operating within coastal bays 
and tidal tributaries, but no takes have been documented. Virginia 
noted that there are state regulations for gillnets in an effort to 
conserve and protect sea turtles in their waters. North Carolina ranked 
large mesh commercial gillnets operating in estuarine waters as a top 
concern. Alabama noted gillnets in their response to NMFS' request for 
recommendations. In addition, NMFS' Strategy for Sea Turtle 
Conservation and Recovery in Relation to Atlantic Ocean and Gulf of 
Mexico Fisheries has identified gillnet gear as a high priority.

[[Page 59514]]

Therefore, based on the information provided by states and the best 
available scientific information, NMFS proposes to include the 
following gillnet fisheries on the 2010 AD.

CA Halibut, White Seabass and Other Species Set Gillnet Fishery (>3.5 
in mesh)

    The CA halibut, white seabass, and other species set gillnet 
fishery (estimated 58 vessels/persons) targets halibut, white seabass, 
and other species from the U.S.-Mexico border north to Monterey Bay 
using 200 fathom (1,200 ft; 366 m) gillnet with a stretch mesh size of 
8.5 in (31.6 cm). Net soak duration is typically 8-10, 19-24, or 44-49 
hours at a depth ranging from 15-50 fathoms (90-300 ft; 27-91 m) with 
most sets from 15-35 fathoms (90-210 ft; 27-64 m). No more than 1500 
fathoms (9,000 ft; 2,743 m) of gill or trammel net may be fished in 
combination for CA halibut and angel shark. Fishing occurs year-round, 
with effort generally increasing during summer months and declining 
during last the 3 months of the year. The central CA portion of the 
fishery from Point Arguello to Point Reyes has been closed since 
September, 2002, following a ban on gillnets inshore of 60 fathoms (360 
ft; 110 m). Set gill nets have been prohibited in state waters south of 
Point Arguello and within 70 fathoms (420 ft; 128 m) or one mile (1.6 
km), whichever is less, around the Channel Islands since 1990. The 
California Department of Fish and Game (CDFG) manages the fishery as a 
limited entry fishery with gear restrictions and area closures.
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state waters for marine 
mammal interactions, and to collect information on sea turtles should a 
take occur on an observed trip. This fishery was observed at about 
17.8% in 2007 and 5% in 2008. No sea turtle takes were observed during 
2007 or 2008. NMFS proposes to include this fishery on the 2010 AD 
because it operates in the same waters that turtles are known to occur 
and this gear type is known to result in the incidental take of sea 
turtles based on documented takes in similar fisheries.

CA Yellowtail, Barracuda, and White Seabass Drift Gillnet Fishery (mesh 
size >3.5 in. and <14 in.)

    The CA yellowtail, barracuda, and white seabass drift gillnet 
fishery (24 vessels/persons) targets primarily yellowtail and white 
seabass, and secondarily barracuda, with target species typically 
determined by market demand on a short-term basis. Drift gillnets are 
up to 6,000 ft (1,829 m) long and are set at the surface. The mesh size 
depends on target species and is typically 6.0-6.5 in (15-16.5 cm). 
When targeting yellowtail and barracuda, the mesh size must be 
[gteqt]3.5 in (9 cm); when targeting white seabass, the mesh size must 
be [gteqt]6 in (15.2 cm). From June 16 to March 14 not more than 20 
percent, by number, of a load of fish may be white seabass with a total 
length of 28 in (71 cm). A maximum of ten white seabass per load may be 
taken, if taken in gillnet or trammel nets with meshes from 3.5-6.0 in 
(9-15 cm) in length. The fishery operates year-round, primarily south 
of Point Conception with some effort around San Clemente Island and San 
Nicolas Island. This fishery is a limited entry fishery with various 
gear restrictions and area closures managed by the California 
Department of Fish and Game (CDFG).
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery for marine mammal interactions, 
and to collect information on sea turtles should a take occur on an 
observed trip. This fishery was observed in 2003 and 2004, with 10.4% 
and 11.0% coverage, respectively. No sea turtle takes were observed 
during 2003 or 2004. NMFS proposes to include this fishery on the 2010 
AD because it operates in the same waters that turtles are known to 
occur and this gear type is known to result in the incidental take of 
sea turtles based on documented takes in similar fisheries.

Chesapeake Bay Inshore Gillnet Fishery

    The Chesapeake Bay inshore gillnet fishery (estimated 45 vessels/
persons) targets menhaden and croaker using gillnet gear with mesh 
sizes ranging from 2.75-5 in (7-12.7 cm), depending on the target 
species. The fishery operates between the Chesapeake Bay/Bridge Tunnel 
and the mainland. The fishery is managed under the Interstate FMPs for 
Atlantic Menhaden and Atlantic Croaker.
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state waters for marine 
mammal interactions, and to collect information on sea turtles should a 
take occur on an observed trip. NMFS has previously observed this 
fishery at extremely low levels. NMFS proposes to include this fishery 
on the 2010 AD because sea turtles are known to occur in the same areas 
where the fishery operates, takes have been previously documented in 
similar gear, and the fishery operates during a period of high sea 
turtle strandings.

Long Island Inshore Gillnet Fishery

    The Long Island Sound inshore gillnet fishery (estimated 20 
vessels/persons) includes all gillnet fisheries setting nets west of a 
line from the north fork of the eastern end of Long Island, NY (Orient 
Point to Plum Island to Fishers Island) to Watch Hill, RI (59 FR 43703, 
August 25, 1994). Target species include, but are not limited to 
bluefish, striped bass, weakfish, and summer flounder.
    This fishery is classified as Category III on the MMPA LOF and NMFS 
has not previously required vessels operating in this fishery to carry 
an observer. NMFS has previously observed this fishery at extremely low 
levels; no sea turtle takes were observed. NMFS proposes to include 
this fishery in the 2010 AD because sea turtles are known to occur in 
the same areas where the fishery operates and takes have been 
documented in similar gear types.

Mid-Atlantic Gillnet Fishery

    The Mid-Atlantic gillnet fishery (estimated 7,596 vessels/persons) 
targets monkfish, spiny dogfish, smooth dogfish, bluefish, weakfish, 
menhaden, spot, croaker, striped bass, large and small coastal sharks, 
Spanish mackerel, king mackerel, American shad, black drum, skate spp., 
yellow perch, white perch, herring, scup, kingfish, spotted seatrout, 
and butterfish. The fishery uses drift and sink gillnets, including 
nets set in a sink, stab, set, strike, or drift fashion, with some 
unanchored drift or sink nets used to target specific species. The 
dominant material is monofilament twine with stretched mesh sizes from 
2.5-12 in (6.4-30.5 cm), and string lengths from 150-8,400 ft. (46-
2,560 m). This fishery operates year-round west of a line drawn at 
72[deg] 30' W. long. south to 36[deg] 33.03' N. lat. and east to the 
eastern edge of the EEZ and north of the North Carolina/South Carolina 
border, not including waters where inshore gillnet fisheries (i.e., 
Chesapeake Bay, North Carolina, Long Island Sound inshore gillnet 
fisheries) operate in bays, estuaries, and rivers. This fishery 
includes any residual large pelagic driftnet effort in the mid-Atlantic 
and any shark and dogfish gillnet effort in the mid-Atlantic zone 
described. The fishing effort is prosecuted right off the beach (6 ft 
[1.8 m]) or in nearshore coastal waters to offshore waters (250 ft [76 
m]).
    Gear in this fishery is managed by several Federal FMPs and 
Interstate FMPs managed by the Atlantic States Marine Fisheries 
Commission (ASMFC). Fisheries are primarily managed by TACs; individual 
trip limits (quotas); effort caps (limited number of days at

[[Page 59515]]

sea per vessel); time and area closures; and gear restrictions and 
modifications.
    This fishery is classified as Category I on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state and federal waters for 
marine mammal interactions, and to collect information on sea turtles 
should a take occur on an observed trip. During 2003-2007, estimated 
observer coverage year-round in this fishery was 1%, 2%, 3%, 4%, and 
6%, respectively (NMFS, 2009). Since 2003, 12 takes (excluding severely 
decomposed animals) of loggerhead, leatherback, green, and Kemp's 
ridley turtles were documented by observers between May and December. 
From 1995-2006, the average annual bycatch estimate of loggerheads in 
U.S. mid-Atlantic sink gillnet gear was 350 turtles (Murray 2009). The 
mid-Atlantic was defined in this analysis as west of 70[deg] W. long. 
from the shoreline of Cape Cod southward to the southern limit of the 
observer data collection program (approximately 33[deg] N. lat.), 
extending westward to the coastline (Murray, 2009). NMFS proposes to 
include this fishery on the 2010 AD to focus observer coverage during 
times and in areas where sea turtles are known to occur.

Northeast Sink Gillnet Fishery

    The Northeast sink gillnet fishery (estimated >6,455 vessels/
persons) targets Atlantic cod, haddock, pollock, yellowtail flounder, 
winter flounder, witch flounder, American plaice, windowpane flounder, 
spiny dogfish, monkfish, silver hake, red hake, white hake, ocean pout, 
skate spp, mackerel, redfish, and shad. This fishery uses sink gillnet 
gear, which is anchored gillnet (bottom-tending net) gear fished in the 
lower one-third of the water column. The dominant material is 
monofilament twine with stretched mesh sizes from 6-12 in (15-30.5 cm) 
and string lengths from 600-10,500 ft (183-3,200 m), depending on the 
target species. Large mesh (10-14 in [25-35.6 cm]) sink gillnets, 
either tied down or set upright without floats using a polyfoam core 
floatline, are used when targeting monkfish. The fishery operates from 
the U.S.-Canada border to Long Island, NY, at 72[deg] 30' W. long. 
south to 36[deg] 33.03' N. lat. (corresponding with the Virginia/North 
Carolina border) and east to the eastern edge of the EEZ, including the 
Gulf of Maine, Georges Bank, and Southern New England, and excluding 
Long Island Sound or other waters where gillnet fisheries are 
classified as Category III on the MMPA LOF. Fishing effort occurs year-
round, peaking from May to July primarily on continental shelf regions 
in depths from 30-750 ft (9-228.6 m), with some nets deeper than 800 ft 
(244 m).
    This fishery is managed by the Northeast Multispecies (Groundfish) 
FMP. This fishery is also managed by the Atlantic Large Whale Take 
Reduction Plan (ALWTRP) and the Harbor Porpoise Take Reduction Plan 
(HPTRP) to reduce the risk of entanglement of right, humpback, and fin 
whales, and harbor porpoises, respectively. The fishery is primarily 
managed through TAC limits; individual trip limits (quotas); effort 
caps (limited number of days at sea per vessel); time and area 
closures; and gear restrictions.
    This fishery is classified as Category I on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state and Federal waters for 
marine mammal interactions and to collect information on sea turtles 
should a take occur on an observed trip. During 2003-2007, estimated 
observer coverage year-round in this fishery was 3%, 6%, 7%, 4%, 7%, 
respectively (NMFS, 2009). Five sea turtle takes were observed during 
this time. NMFS proposes to include this fishery on the 2010 AD to 
focus observer coverage during times and in areas where sea turtles are 
known to occur, particularly in waters off Massachusetts and waters 
south of this area.

North Carolina Inshore Gillnet Fishery

    The NC inshore gillnet fishery (94 vessels/persons) targets species 
including, but not limited to, southern flounder, weakfish, bluefish, 
Atlantic croaker, striped mullet, spotted seatrout, Spanish mackerel, 
striped bass, spot, red drum, black drum, and shad. This fishery 
includes any fishing effort using any type of gillnet gear, including 
set (float and sink), drift, and runaround gillnet for any target 
species inshore of the COLREGS lines in North Carolina. This fishery is 
managed under state and ASMFC interstate FMPs, applying net and mesh 
size regulations, and seasonal area closures in the Pamlico Sound 
Gillnet Restricted Area (PSGNRA).
    Gillnet fisheries operating in inshore and inland waters of North 
Carolina are currently not observed except in a limited area. An ESA 
section 10(a)(1)(B) permit requires monitoring the Pamlico Sound summer 
flounder gillnet fishery. However, extensive gillnet activity occurs 
throughout the inshore and inland waters of North Carolina (e.g., Core 
Sound/Cape Fear area, Roanoke and Albemarle Sounds); effort in some 
areas has never been observed, but other areas have had limited 
coverage, which was authorized under the MMPA (this fishery is listed 
as Category II on the MMPA LOF). Gillnet activity overlaps spatially 
with areas utilized by sea turtles, often at relatively high densities. 
Additionally, the likelihood of significant injury or mortality to sea 
turtles when taken by this gear is high. NMFS recently conducted a 
limited observer program in the southern flounder gillnet fishery in 
Core Sound, which was previously unobserved. Several sea turtles 
(green, Kemp's ridley, and loggerhead) were observed taken in the 
fishery. Take levels were highly variable, but generally high, with 
many observed trips taking no sea turtles, and other trips having as 
many as five takes. A more extensive, longer-term observer program is 
needed to adequately assess the extent and impact of the all components 
of the inshore North Carolina gillnet fishery on sea turtles. 
Therefore, NMFS is proposing to include this fishery on the 2010 AD.

Southeast Atlantic Gillnet Fishery

    The Southeast Atlantic gillnet fishery (779 estimated vessels/
persons) targets finfish including, but not limited to, king mackerel, 
Spanish mackerel, whiting, bluefish, pompano, spot, croaker, little 
tunny, bonita, jack crevalle, cobia, and striped mullet. This fishery 
does not include gillnet effort targeting sharks as part of the 
Southeastern U.S. Atlantic shark gillnet fishery. This fishery uses 
gillnets set in sink, stab, set, or strike fashion. The fishery 
operates in waters south of a line extending due east from the North 
Carolina-South Carolina border and south and east of the fishery 
management council demarcation line between the Atlantic Ocean and the 
Gulf of Mexico. The majority of fishing effort occurs in Federal waters 
since South Carolina, Georgia, and Florida prohibit the use of 
gillnets, with limited exceptions, in state waters.
    Fishing for king mackerel, Spanish mackerel, cobia, cero, and 
little tunny in Federal waters is managed under the Coastal Migratory 
Pelagic Resources FMP. None of the other target species are Federally-
managed under the MSA. In state waters, state and ASMFC Interstate FMPs 
apply.
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state and federal waters for 
marine mammal interactions, and to collect information on sea turtles 
should a take occur on an observed trip. NMFS has previously observed 
this fishery at moderate levels, primarily focused on target catch and 
bycatch species other than sea turtles. NMFS proposes to include this 
fishery on the 2010 to focus observer coverage during times and in 
areas where sea turtles are known to occur.

[[Page 59516]]

Trap/Pot Fisheries

    Turtles are known to become entangled in the end lines (also called 
vertical lines) of trap/pot gear and there have been anecdotal reports 
that sea turtles may interact with the trap/pot itself. Turtles 
entangled in trap/pot gear may drown or suffer injuries (and potential 
subsequent mortality) due to constriction by the rope or line. Takes of 
both leatherback and hard-shelled sea turtles have been documented in 
this gear type. NMFS Northeast Region established the Northeast 
Atlantic Sea Turtle Disentanglement Network (STDN) in 2002 to respond 
to entanglements in vertical lines associated with trap/pot gear.
    Several states included trap/pot fisheries in their responses to 
NMFS' request for information and recommendations for the 2010 AD. 
Massachusetts listed pots (lobster, fish, whelk) as a gear type known 
to interact with sea turtles. New York recommended that fish, lobster, 
and crab pots be considered. Maryland ranked the commercial crab pot 
fishery that operates April through December as having a high 
possibility for interacting with sea turtles and a greater possibility 
for injury compared to other gear types in Maryland state waters. 
Maryland also ranked several other commercial pot fisheries (e.g., 
conch and fish) with a lower potential to interact with sea turtles. 
Maryland noted reports of sea turtles getting their heads caught in the 
gear while eating bait out of the trap/pot. Delaware included conch and 
blue crab trap/pot fisheries as having potential interactions with sea 
turtles where effort overlaps with sea turtle distribution. Both South 
Carolina and Florida included trap/pot fisheries in their 
recommendations and noted the potential for using an alternative 
platform program to observe this gear type.
    Therefore, NMFS proposes to include the following four trap/pot 
fisheries, focusing on those fisheries or components of fisheries 
operating south of Massachusetts, as sea turtles more commonly occur in 
this area, on the 2010 AD.

Atlantic Blue Crab Trap/Pot Fishery

    The Atlantic blue crab trap/pot fishery (estimated >16,000 vessels/
persons) targets blue crab using pots baited with fish or poultry 
typically set in rows in shallow water. The pot position is marked by 
either a floating or sinking buoy line attached to a surface buoy. The 
fishery occurs year-round from the south shore of Long Island at 72 30' 
W. long. in the Atlantic and east of the fishery management demarcation 
line between the Atlantic Ocean and the Gulf of Mexico (50 CFR 
600.105), including state waters. The fishery is managed under state 
FMPs.
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery for marine mammal interactions, 
and to collect information on sea turtles should a take occur on an 
observed trip. NMFS has not observed this fishery, but has documented 3 
sea turtle takes in blue crab trap/pot gear in Virginia during the 
months of May and June. One of the events involved a leatherback and 
two involved loggerheads (STDN, unpublished data). NMFS proposes to 
include this fishery on the 2010 AD to target observer coverage more 
specifically to obtain information on sea turtle bycatch and how sea 
turtles may be interacting with trap/pot gear.

Atlantic Mixed Species Trap/Pot Fishery

    The Atlantic mixed species trap/pot fishery (unknown number of 
vessels/persons) targets species including, but not limited to, 
hagfish, shrimp, conch/whelk, red crab, Jonah crab, rock crab, black 
sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), 
white hake, spot, skate, catfish, and stone crab. This fishery as 
defined on the MMPA LOF also includes American eel as a target species; 
however, there is also a Category III American eel trap/pot fishery 
listed on the LOF. Therefore, NMFS does not consider American eel to be 
a target species in the Atlantic mixed species trap/pot fishery and 
will correct this oversight in a future LOF. The fishery includes all 
trap/pot operations from the Maine-Canada border south through the 
waters east of the fishery management demarcation line between the 
Atlantic Ocean and the Gulf of Mexico (50 CFR 600.105), but does not 
include the following trap/pot fisheries (as defined on the MMPA LOF): 
Northeast/Mid-Atlantic American lobster trap/pot; Atlantic blue crab 
trap/pot; Florida spiny lobster trap/pot; Southeastern U.S. Atlantic, 
Gulf of Mexico stone crab trap/pot; U.S. Mid-Atlantic eel trap/pot 
fisheries; and the Southeastern U.S. Atlantic, Gulf of Mexico golden 
crab fishery (68 FR 1421, January 10, 2003). The fishery is managed 
under various Interstate and Federal FMPs.
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state and Federal waters for 
marine mammal interactions, and to collect information on sea turtles 
should a take occur on an observed trip. NMFS has previously observed 
this fishery at extremely low levels; no sea turtle takes have been 
documented by fishery observers. However, the NMFS STDN has documented 
9 leatherback entanglements in trap/pot gear targeting sea bass in 
Massachusetts during the month of August from 2003 to 2008 (STDN, 
unpublished data). From 2003-2008, the STDN documented 1 green, 4 
loggerhead, and 8 leatherback turtle takes in trap/pot gear targeting 
whelk in MA, VA, and NJ during May, June, July, August, and October.
    NMFS is proposing to include this fishery in the 2010 AD to target 
observer coverage more specifically to obtain information on sea turtle 
interactions and how sea turtles may be interacting with trap/pot gear, 
particularly in waters off of Massachusetts and waters south of this 
area, as sea turtles more commonly occur in these areas.

Northeast/Mid-Atlantic American Lobster Trap/Pot Fishery

    The Northeast/Mid-Atlantic American lobster trap/pot fishery 
(estimated 13,000 vessels/persons) targets American lobster primarily 
with traps, while 2-3 percent of the target species is taken by mobile 
gear (trawls and dredges). The fishery operates in inshore and offshore 
waters from Maine to New Jersey and may extend as far south as Cape 
Hatteras, NC. Approximately 80 percent of American lobster is harvested 
from state waters; therefore, the ASMFC has the primary regulatory 
role. The fishery is managed in state waters under the ASMFC Interstate 
FMP and in Federal waters under the Atlantic Coastal Fisheries 
Cooperative Management Act.
    This fishery is classified as Category I on the MMPA LOF, which 
authorizes NMFS to observe this fishery in state and Federal waters for 
marine mammal interactions, and to collect information on sea turtles 
should a take occur on an observed trip. NMFS has previously observed 
this fishery at extremely low levels; no sea turtle takes have been 
observed. However, NMFS STDN has documented 27 leatherback turtle 
entanglements in this fishery operating in ME, MA, and RI. These 
entanglements have occurred between June and October (STDN, unpublished 
data).
    NMFS is proposing to include this fishery in the 2010 AD to target 
observer coverage more specifically to obtain information on sea turtle 
bycatch and how sea turtles may be interacting with trap/pot gear, 
particularly in waters off of Massachusetts and waters south of this 
area, as sea turtles more commonly occur in these areas.

[[Page 59517]]

Pound Net/Weir/Seine Fisheries

    Pound net, weir, and seine fisheries may use mesh similar to that 
used in gillnets, but the gear is prosecuted differently from 
traditional gillnets. For example, pound net leaders have a mesh 
component similar to a gillnet; sea turtles have been documented 
entangled in pound net leaders. Pound net leaders in the Virginia 
portion of the Chesapeake Bay are subject to requirements designed to 
reduce sea turtle bycatch. Purse seines and weirs also have the 
potential to entangle and drown sea turtles.
    Several states included pound net/weir/seine fisheries in their 
responses to NMFS' request for information and recommendations for the 
2010 AD. Massachusetts listed pound nets/weirs as a gear type known to 
interact with sea turtles. Maryland noted that sea turtles have been 
documented alive and uninjured in the pounds, but none have been 
documented in pound net leaders. Virginia recognized both historical 
observations of interactions in this fishery as well as current 
regulations in the fishery (69 FR 24997, May 5, 2004; 71 FR 36024, June 
23, 2006). North Carolina noted pound nets operating in estuarine 
waters in their recommendations.
    Therefore, based on the information provided by states and the best 
available scientific information, NMFS proposes to include the 
following four pound net/weir/seine fisheries on the 2010 AD.

Mid-Atlantic Haul/Beach Seine Fishery

    The Mid-Atlantic haul/beach seine fishery (estimated >221 vessels/
persons) targets striped bass, mullet, spot, weakfish, sea trout, 
bluefish, kingfish, and harvest fish using seines with one end secured 
(e.g., swipe nets and long seines) and seines secured at both ends or 
those anchored to the beach and hauled up on the beach. The beach seine 
system also uses a bunt and a wash net that are attached to the beach 
and extend into the surf. The beach seines soak for less than 2 hours. 
The fishery occurs in waters west of 72[deg] 30' W. long. and north of 
a line extending due east from the North Carolina-South Carolina 
border. Fishing on the Outer Banks, NC, occurs primarily in the spring 
(April to June) and fall (October to December). In the Chesapeake Bay, 
this gear has been historically fished in the southwest portion of the 
Bay with some effort in the northwest portion. Effort begins to 
increase in early May, peaks in early/mid-June, and continues into 
July. During this time, based on historical data from Virginia, 
approximately 100 haul seine trips occur.
    The fishery is managed under the Interstate FMPs for Bluefish and 
for Atlantic Striped Bass of the Atlantic Coast from Maine through 
North Carolina, and is subject to Bottlenose Dolphin Take Reduction 
Plan implementing regulations.
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery for marine mammal interactions, 
and to collect information on sea turtles should a take occur on an 
observed trip. NMFS has previously observed this fishery at low levels; 
no sea turtle takes have been observed. NMFS proposes to include this 
fishery on the 2010 AD based on suspected interactions with sea turtles 
given the nature of the gear and fishing methodology in addition to 
effort overlapping with sea turtle distribution. In the Chesapeake Bay, 
the fishery operates at the same time as historically elevated sea 
turtle strandings.

Mid-Atlantic Menhaden Purse Seine Fishery

    The Mid-Atlantic menhaden purse seine fishery (22 estimated 
vessels/persons) targets menhaden and thread herring using purse seine 
gear. Most sets occur within 3 mi (4.8 km) of shore with the majority 
of the effort occurring off North Carolina from November to January, 
and moving northward during warmer months to southern New England. The 
fishery is managed under the Interstate FMP for Atlantic Menhaden. In 
the Chesapeake Bay, this fishery operates to a limited extent during a 
period of high sea turtle strandings (May and June).
    This fishery is classified as Category II on the MMPA LOF, which 
authorizes NMFS to observe this fishery for marine mammal interactions, 
and to collect information on sea turtles should a take occur on an 
observed trip. NMFS recently began observing the fishery at low levels. 
NMFS proposes to include this fishery on the 2010 AD to focus observer 
coverage in times and areas of sea turtle distribution and learn more 
about the interactions between this fishery and sea turtles.

Virginia Pound Net Fishery

    The Virginia pound net fishery (estimated 41 vessels/persons) 
targets species including, but not limited to, croaker, menhaden, 
mackerel, weakfish, and spot, using stationary gear in nearshore 
Virginia waters, primarily in the Chesapeake Bay and its tributaries. 
Pound net gear includes a leader posted perpendicular to the shoreline 
and extending outward to the ``heart,'' which funnels the fish into the 
pound, where the catch accumulates. This fishery includes all pound net 
effort in Virginia State waters, including waters inside the Chesapeake 
Bay. The fishery is managed under Interstate FMPs for Atlantic Croaker 
and Spot.
    The Virginia pound net fishery is currently classified as Category 
II on the MMPA LOF, which authorizes NMFS to observe this fishery for 
marine mammal interactions, and to collect information on sea turtles 
should a take occur on an observed trip. Loggerhead, Kemp's ridley, 
leatherback, and green turtles have been observed taken in this 
fishery. Between 2002 and 2004, approximately 2,650 surveys of leaders 
were completed in the Virginia pound net fishery; 27 takes of sea 
turtles were recorded during the survey.
    NMFS currently requires the use of a modified pound net leader in 
certain areas of the VA Chesapeake Bay to reduce entanglements of sea 
turtles in this gear type (71 FR 36024, June 23, 2006). This fishery 
operates at the same time as historically elevated sea turtle 
strandings. NMFS proposes to include this fishery on the 2010 AD to 
assess interactions between pound net gear and sea turtles and to 
evaluate the effectiveness of the modified gear. Because some vessels 
in this fishery may be too small to carry observers, NMFS would 
consider observing the fishery using both traditional methods as well 
as an alternative platform.

U.S. Mid-Atlantic Mixed Species Stop Seine/Weir/Pound Net (except the 
NC roe mullet stop net) Fishery

    The Mid-Atlantic mixed species stop seine/weir/pound net fishery 
(estimated 751 vessels/persons) targets several species, including, but 
not limited to, weakfish, striped bass, shark, catfish, menhaden, 
flounder, gizzard shad, and white perch. The fishery uses fixed or 
staked net gear (pound net, weir, staked trap) from Nantucket Sound to 
Chesapeake Bay (60 FR 31681, June 16, 1995); the Virginia pound net and 
the NC roe mullet stop net fisheries are not included as part of this 
fishery.
    This fishery is classified as Category III on the MMPA LOF and has 
never been observed. However, sea turtle takes have been documented in 
pound net gear in NY, MD, VA, and NC by NMFS, STSSN, and other 
researchers. NMFS proposes to include this fishery on the 2010 to 
better understand the nature

[[Page 59518]]

and extent of these interactions in the mid-Atlantic.

Table 1 - State and Federal Commercial Fisheries included on the 2010 
Annual Determination

------------------------------------------------------------------------
            Fishery                 Years Eligible to Carry Observers
------------------------------------------------------------------------
Trawl Fisheries                  .......................................
Atlantic shellfish bottom trawl                               2010-2014
Mid-Atlantic bottom trawl                                     2010-2014
Mid-Atlantic mid-water trawl                                  2010-2014
 (including pair trawl)
Southeastern U.S. Atlantic,                                   2010-2014
 Gulf of Mexico shrimp trawl
Gillnet Fisheries                .......................................
CA halibut, white seabass and                                 2010-2014
 other species set gillnet
 (>3.5 in mesh)
CA yellowtail, barracuda, and                                 2010-2014
 white seabass drift gillnet
 (mesh size >3.5 in. and <14
 in.)
Chesapeake Bay inshore gillnet                                2010-2014
Long Island inshore gillnet                                   2010-2014
Mid-Atlantic gillnet                                          2010-2014
North Carolina inshore gillnet                                2010-2014
Northeast sink gillnet                                        2010-2014
Southeast Atlantic gillnet                                    2010-2014
Trap/pot Fisheries               .......................................
Atlantic blue crab trap/pot                                   2010-2014
Atlantic mixed species trap/pot                               2010-2014
Northeast/mid-Atlantic American                               2010-2014
 lobster trap/pot
Pound Net/Weir/Seine Fisheries   .......................................
Mid-Atlantic haul/beach seine                                 2010-2014
Mid-Atlantic menhaden purse                                   2010-2014
 seine
U.S. mid-Atlantic mixed species                               2010-2014
 stop seine/weir/pound net
 (except the NC roe mullet stop
 net)
Virginia pound net                                            2010-2014
------------------------------------------------------------------------

Classification

    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 economic 
impact on a substantial number of small entities. The factual basis 
leading to the certification is set forth below.
    NMFS has estimated that approximately 65,940 vessels participating 
in 19 fisheries listed in Table 1 would be eligible to carry an 
observer if requested. However, NMFS would only request a fraction of 
the total number of participants to carry an observer based on the 
sampling protocol identified for each fishery by regional observer 
programs. As noted throughout this proposed rule, NMFS would select 
vessels and focus coverage in times and areas where fishing effort 
overlaps with sea turtle distribution. Due to the unpredictability of 
fishing effort, NMFS cannot determine the specific number of vessels 
that would be requested to carry an observer.
    If a vessel is requested to carry an observer, fishers will not 
incur any direct economic costs associated with carrying that observer. 
Potential indirect costs to individual fishers required to take 
observers may include: lost space on deck for catch, lost bunk space, 
and lost fishing time due to time needed to process bycatch data. For 
effective monitoring, however, observers will rotate among a limited 
number of vessels in a fishery at any given time and each vessel within 
an observed fishery has an equal probability of being requested to 
accommodate an observer. Therefore, the potential indirect costs to 
individual fishers are expected to be minimal because observer coverage 
would only be required for a small percentage of an individual's total 
annual fishing time. In addition, 50 CFR 222.404(b) states that an 
observer will not be placed on a vessel if the facilities for 
quartering an observer or performing observer functions are inadequate 
or unsafe, thereby exempting vessels too small to accommodate an 
observer from this requirement. As a result of this certification, an 
initial regulatory flexibility analysis is not required and was not 
prepared.
    This proposed rule would amend an existing collection-of-
information that was approved by the Office of Management and Budget 
(OMB) under OMB control number 0648-0593. This requirement will be 
submitted to OMB for approval. This proposed rule would add an 
estimated 853 participants and an estimated maximum 60 burden hours to 
the associated information collection.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to (enter 
office name) at the ADDRESSES above, and e-mail to [email protected], or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act, unless that collection of 
information displays a currently valid OMB Control Number.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    An environmental assessment (EA) was prepared under the National 
Environmental Policy Act (NEPA) for regulations to implement this 
observer requirement in 50 CFR part 222, subpart D. The EA concluded 
that implementing these regulations would not have a significant impact 
on the human environment. This proposed rule would not make any 
significant change in the management of fisheries included on the AD, 
and therefore, this proposed rule would not change the analysis or 
conclusion of the EA. If NMFS takes a management action, for example, 
requiring fishing gear modifications such as TEDs, NMFS would first 
prepare an environmental document as

[[Page 59519]]

required under NEPA and specific to that action.
    This proposed rule would not affect species listed as threatened or 
endangered under the Endangered Species Act (ESA) or their associated 
critical habitat. The impacts of numerous fisheries have been analyzed 
in various biological opinions, and this proposed rule would not affect 
the conclusions of those opinions. The inclusion of fisheries on the AD 
is not considered to be a management action that would adversely affect 
threatened or endangered species. If NMFS takes a management action, 
for example, requiring modifications to fishing gear and/or practices, 
NMFS would review the action for potential adverse affects to listed 
species under the ESA.
    This proposed rule would have no adverse impacts on sea turtles and 
may have a positive impact on sea turtles by improving knowledge of sea 
turtles and the fisheries interacting with sea turtles through 
information collected from observer programs.
    This proposed rule would not affect the land or water uses or 
natural resources of the coastal zone, as specified under section 307 
of the Coastal Zone Management Act.

Literature Cited

    Lutcavage, M. E. and P.L. Lutz. 1997. Diving Physiology. In: P.L. 
Lutz and J. Musick (eds.) The Biology of Sea Turtles. ERC Press, Boca 
Raton, F.L. 432 pp.
    Murray K.T. 2008. Estimated average annual bycatch of loggerhead 
sea turtles (Caretta caretta) in U.S. Mid-Atlantic bottom otter trawl 
gear, 1996-2004 (Second Edition). US Dept Commer, Northeast Fish Sci 
Cent Ref Doc. 08-20; 32 p.
    Murray K.T. 2007. Estimated bycatch of loggerhead sea turtles 
(Caretta caretta) in U.S. Mid-Atlantic scallop trawl gear, 2004-2005, 
and in sea scallop dredge gear, 2005. U.S. Dep. Commer., Northeast 
Fish. Sci. Cent. Ref. Doc. 07-04; 30 p. Available from: National Marine 
Fisheries Service, 166 Water Street, Woods Hole, MA 02543-1026.
    Murray, K.T. 2009. Characteristics and magnitude of sea turtle 
bycatch in US mid-Atlantic gillnet gear. Endangered Species Research 
8:211-224.
    National Marine Fisheries Service. 2009. Draft 2009 Marine Mammal 
Stock Assessment Reports for the Atlantic Ocean and Gulf of Mexico. 
http://www.nmfs.noaa.gov/pr/pdfs/sars/ao2009_draft_appendices.pdf

    Dated: November 13, 2009.
Janes W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E9-27674 Filed 11-16-09; 8:45 am]
BILLING CODE 3510-22-S