[Federal Register Volume 75, Number 95 (Tuesday, May 18, 2010)]
[Rules and Regulations]
[Pages 27649-27658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11856]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 0906181067-0167-02]
RIN 0648-XP96


2010 Annual Determination for Sea Turtle Observer Requirements

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
final Annual Determination (AD) for 2010, pursuant to its authority 
under the Endangered Species Act (ESA). Through this AD, NMFS 
identifies commercial fisheries operating in state and Federal waters 
in the Atlantic Ocean, Gulf of Mexico, and Pacific Ocean that will 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 
prohibited sea turtle takes, and to determine whether additional 
measures to implement the prohibition against sea turtle takes may be 
necessary. Fisheries identified through this process will remain on the 
AD, and therefore required to carry observers upon NMFS' request, for 5 
years.

DATES: Effective June 17, 2010.

ADDRESSES: 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 27650]]

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 and 
olive ridley turtles away from the nesting beach, NMFS considers these 
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). Sections 9 and 11 of the ESA authorize 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 prevent or minimize 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. Failure to 
comply with the requirements under this rule may result in civil or 
criminal penalties under the ESA.
    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 used 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

[[Page 27651]]

comments and recommendations provided to NMFS by states were based upon 
the best available information on their fisheries, NMFS received more 
recommendations for fisheries to include on the 2010 AD than is 
feasible 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 a final determination, such as the 2010 AD, 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 a 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 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.

Implementing 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 will 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 will 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 subject to observer coverage under this rule must comply 
with observer safety requirements specified at 50 CFR 600.725 and 50 
CFR 600.746. Specifically, 50 CFR 600.746(c) requires vessels to 
provide adequate and safe conditions for carrying an observer and 
conditions that allow for operation of normal observer functions. To 
provide such conditions, a vessel must comply with the applicable 
regulations regarding observer accommodations (see 50 CFR parts 229, 
300, 600, 622, 635, 648, 660, and 679) and possess a current USCG 
Commercial Fishing Vessel Safety Examination decal or a USCG 
certificate of examination. A vessel that fails to meet these 
requirements at the time an observer is to be deployed on the vessel is 
prohibited from fishing, 50 CFR 600.746(f), unless NMFS determines that 
an alternative platform (e.g., a second vessel) may be used. In any 
case, all fishermen on a vessel must cooperate in the operation of 
observer functions. 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.

Comments and Responses

    NMFS received comments from 3 individual members of the public, 
Environmental Defense Fund, Oceana, Garden State Seafood Association, 
Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern Pelagic Group 
LLC, Western Sea Fishing Company, Mid-Atlantic Fishery Management 
Council, and the States of Connecticut, Maryland, and New Jersey on the 
proposed 2010 AD (74 FR 59508, November 18, 2009). Comments on issues 
outside the scope of the AD were noted, but are not responded to in 
this final rule.

General Comments

    Comment 1: Several commenters support including 19 fisheries on the 
2010 AD.
    Response: NMFS agrees and includes 19 fisheries on the 2010 AD.
    Comment 2: The State of New Jersey inquired whether the fisheries 
to be observed listed in Table 1 are in priority order.
    Response: Table 1 is somewhat prioritized by gear type (trawl, 
gillnet, trap/pot, and pound net/weir/seine); specific fisheries within 
those gear types are alphabetized. The order of those gear types 
represents NMFS' current priorities under the NMFS' Strategy for Sea 
Turtle Conservation and Recovery in Relation to Atlantic Ocean and Gulf 
of Mexico Fisheries (``Strategy''). Fisheries operating in the Pacific 
Ocean will be considered similarly. However, NMFS' Regional Observer 
Programs are implemented somewhat independently based on several 
factors including available funding, staff resources, the number of 
certified observers in a given region, etc. Therefore, NMFS will 
consider all of these factors when deciding which fisheries to observe 
in a given year. For example, increasing coverage within existing 
observer programs may be more feasible than beginning a new program in 
a given year based on available funding and staff resources in a 
particular region.
    Comment 3: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association inquired how and when fisheries are removed from 
the AD. The commenters suggest that there be a process outlined in this 
final rule for removing fisheries before the 5 years expire.
    Response: The amount of time that fisheries remain on the AD was 
the subject of the previous rulemaking that implemented the observer 
requirement (72 FR 43176, August 3, 2007); this rulemaking does not 
amend those regulations or implement new regulations. The regulations 
at 50 CFR 222.403(a) specify that once selected, a fishery remains 
eligible for observer coverage for five years.

[[Page 27652]]

    Comment 4: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association suggest adding a criterion for including fisheries 
on the AD that considers past observer coverage.
    Response: The criteria that NMFS considers when proposing to 
include a fishery on the AD were the subject of the previous rulemaking 
that implemented the observer requirement (72 FR 43176, August 3, 
2007); this rulemaking does not amend those regulations or implement 
new regulations.
    Comment 5: The State of Connecticut notes that the report from the 
2008 Observer Workshop includes a statement about using state observers 
under NMFS' authority to implement this observer requirement and they 
would like to have state observers certified for this purpose.
    Response: Since the workshop in 2008, NMFS has determined that the 
regulations in 50 CFR 222.402 provide authorization only for Federal 
observer programs implemented by NMFS. The State may be able to act as 
the Observer Service Provider and enter into an agreement with NMFS 
contingent upon certification of those observers by NMFS (i.e., those 
state observers are NMFS-certified).
    Comment 6: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association suggests that broad gear categories do not pose 
similar risks to sea turtles and recommends that fisheries be examined 
on a case-by-case basis for temporal/spatial overlap with turtle 
distribution, while accounting for regional fishing practices and past/
current observer coverage.
    Response: The universe of commercial fisheries considered for the 
Annual Determination is based on the MMPA LOF. If the LOF defines a 
fishery based on broad gear type, NMFS must also use that same fishery 
on the Annual Determination. If the commenters have suggestions for re-
defining fisheries on the MMPA LOF, they should consider commenting 
during the 2011 LOF process. See Comments on Observer Programs below 
for additional information on how past observer coverage is factored 
into sampling designs.
    Comment 7: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association inquired how this observer requirement would yield 
statistically rigorous information when statistically valid information 
or accurate data on the status and trends of sea turtles has not been 
provided.
    Response: This comment appears to be directed at the rule 
promulgated by NMFS on August 3, 2007, codified at 50 CFR Part 222 
Subpart D, and is thus outside the scope of this rulemaking. However, 
NMFS responds to clarify that, as stated in the preamble to that 
rulemaking: ``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.'' [72 FR 
43176, August 3, 2007]
    Regardless of the data available on the status and trends of sea 
turtles, this program will collect statistically valid information on 
sea turtle takes. NMFS continues to work to better understand the 
status and trends of sea turtle populations, including through survey 
efforts, population modeling, and status reviews.
    Comment 8: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association further inquired how bycatch rates and estimates 
would be applied during ESA section 7 and 10 consultations as well as 
broad-based gear regulations.
    Response: This comment is beyond the scope of this rulemaking. The 
preamble to the rule codified at 50 CFR Part 222 Subpart D describes 
how the information gathered will be used (72 FR 43176, August 3, 
2007). Because data have not yet been collected nor analyzed, NMFS can 
not now identify what, if any, management actions it might take in 
response to those data.

Comments on Observer Programs

    Comment 9: Environmental Defense Fund recommends using new 
technologies, including video monitoring to eliminate observer bias, 
increase level of monitoring (as it becomes more cost effective) and 
monitor unobservable vessels.
    Response: New technologies for monitoring fisheries (commonly 
referred to as ``electronic monitoring'' or EM) offer many benefits of 
interest to NMFS. However, their efficacy in meeting monitoring 
objectives varies by fishery and monitoring goal. EM studies, including 
video monitoring, are ongoing in many NMFS regions, and the results are 
promising. The ability of these technologies to meet monitoring 
objectives has primarily been evaluated in experimental situations; 
many questions still remain as to their efficacy and true cost. NMFS 
generally supports the use of EM to augment at-sea observer coverage, 
and fully supports the use of EM, as well as other alternative 
monitoring methods, to cover unobservable vessels. NMFS will continue 
to work through its cooperative research and fisheries observer 
programs to evaluate how EM technology may be used to supplement 
observer programs, including those implemented under the AD.
    Comment 10: The State of New Jersey requested training in observer 
protocols for state personnel to augment NMFS coverage in state waters 
under State authority and increase effectiveness.
    Response: The Northeast Fisheries Observer Program (NEFOP) has 
helped individual states develop their own state fisheries observer 
programs, and will continue to do so as long as the demand doesn't 
compromise the training needs of NEFOP. The support NEFOP provides 
includes training, logs, manuals, protocols and entry screens.
    Comment 11: The State of New Jersey inquired how observer coverage 
will be allocated across fisheries and requested that the State be 
consulted each year during the vessel selection process.
    Response: Observer coverage is allocated in proportion to fishing 
effort by time/area. All active vessels, indentified for observer 
coverage within a particular time/area, may be randomly selected. 
Current NEFOP protocols prohibit repeat trips on the same vessel, 
during a 30 day period, if other vessels are active and have not been 
selected. NEFOP attempts to ensure that observer coverage is fair and 
equitable, without overburdening a particular fisherman or fishery. 
NEFOP posts the sea day schedule on the following website: http://www.nefsc.noaa.gov/femad/fsb. This website provides the chance for all 
interested parties to review the planned coverage. NEFOP would welcome 
the opportunity to work with individual states when developing a list 
of vessels to be selected for that proposed coverage.
    Comment 12: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association inquired how NMFS will implement the requirements 
in a way that no fisherman or group of fishermen will be expected to 
carry excessive observer coverage. Further, Garden State

[[Page 27653]]

Seafood Association believes that NJ fishermen have been overburdened 
with an excessive share of observer training trips/coverage (e.g., 72 
trips in 2005).
    Response: As previously described, NEFOP makes every legitimate 
attempt to not overburden a particular fisherman or fishery. Days are 
allocated in proportion to fishing effort by time/area. From 2000 to 
2005, the NEFOP grew from 1,200 sea days per year to 12,000 sea days 
per year; increasing from 12 to 120 observers. That increase 
necessitated additional training trips. Training trips require that an 
experienced observer shadow a new observer until they are fully 
certified in all sampling protocols. Gillnet sampling protocols, per 
NEFSC scientists conducting harbor porpoise bycatch analysis, require 
observers to observe the net for harbor porpoise ``fall outs'' during 
retrieval, instead of sampling discarded fish. These trips are referred 
to as ``limited'' gillnet trips because of the limited sampling of 
fish. All of the gillnet days on the NEFOP sea day schedule for 
protected species are ``limited'' days. This includes both New England 
and mid-Atlantic areas. In addition to these ``limited'' gillnet days, 
scientists conducting fish stock assessments also populated the sea day 
schedule with gillnet days, but unlike the ``limited'' days, complete 
sampling of all discards was required. The majority of these 
``complete'' days were assigned to areas in New Jersey and north. Prior 
to December 2005, in order to provide the best training trips possible, 
new observers from southern ports were often sent to New Jersey, or 
ports farther north, for those important training trips. This resulted 
in proportionally more training trips occurring in New Jersey. Once 
this problem was brought to the attention of NEFOP, protocols were 
changed so that new observers, during their training trips, could use 
``complete'' sampling protocols regardless of the port used for 
training. This change was made in December 2005, and since then NEFOP 
has not received any reports that this issue continues to be a problem.
    Comment 13: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association expressed concern about the competing needs (e.g., 
population dynamics, food habits, protected species, fisheries 
management, etc.) for a given observer program and how NMFS intends to 
balance those needs with observer program design/implementation. The 
commenters also note that the proposed 2010 AD indicates that the 
program design could be the responsibility of a regional office, 
science center, or observer program. The commenters suggest that clear 
lines of responsibility should be placed on program design/
implementation.
    Response: Within each of the six NMFS Regional Observer Programs, 
the responsibility for observer program design and implementation is 
clearly defined. Manual and protocol revisions occur regularly based on 
the changing needs of end users (e.g., NMFS managers). For example, 
NEFOP works closely with all end users to ensure that the data 
collected by observers is relevant and meets their needs. Those needs, 
for example, could include compliance monitoring, data collection for 
regulatory development, or data collection for stock assessments. To 
date, NEFOP has been able to successfully balance the needs of all end 
users.
    Comment 14: Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association suggested that NMFS consider social and economic 
burdens of sea turtle observer coverage with respect to total observer 
coverage.
    Response: See Response to Comment 11 and the Classification section 
below.
    Comment 15: One commenter inquired whether minimum standards for 
selecting a vessel, in each of the fisheries, to carry an observer have 
been identified. The commenter notes potential for introducing bias and 
suggests NMFS Observer Programs develop methods for reducing the number 
of unobservable vessels.
    Response: With the exception of certain safety requirements (e.g., 
possessing a current U.S. Coast Guard commercial fishing vessel safety 
decal), minimum national standards for vessel selection do not exist. 
Regional observer programs perform routine analyses to diagnose and 
correct for bias in vessel selection. A 2006 NMFS workshop (report 
available from: http://www.st.nmfs.noaa.gov/st4/nop/workshops.html) 
reviewed vessel selection procedures and documented analytical methods 
and tools that could be used to assess the occurrence and magnitude of 
bias. Workshop participants identified alternative selection methods 
that could reduce or eliminate sources of bias, such as using 
alternative platforms or electronic monitoring to address unobservable 
vessels.

Comments on Trawl Fisheries

    Comment 16: The Mid-Atlantic Fishery Management Council suggested 
removing Illex from the list of species targeted with flynets because 
while they are included in the mid-Atlantic bottom trawl general 
category, the Illex fishery is not prosecuted using flynets.
    Response: The flynet fishery description in the proposed 2010 AD is 
based on the fishery as defined under the Marine Mammal Protection Act 
(LOF). NMFS will consider revising the characterization of the flynet 
fishery in a future LOF.
    Comment 17: Cape Seafoods Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association recommend removing the mid-Atlantic mid-water trawl 
(including pair trawl) for mackerel from the 2010 AD as optimum 
mackerel trawl fishing occurs in areas where the sea surface 
temperature is less than 7 degrees Celsius. The commenters note that 
this temperature regime is not in the range one would expect sea 
turtles to normally thrive.
    Response: Sea turtles are poikilotherms whose internal body 
temperature is affected by the ambient environment. They undertake 
routine migrations along the coast limited by seasonal water 
temperatures. Loggerheads have been observed in waters with surface 
temperatures of 7[deg] to 30[deg] C, but water temperatures 
[gteqt]11[deg] C are most favorable (Shoop and Kenney 1992; Epperly et 
al., 1995). During the CETAP aerial survey of the outer continental 
shelf from Cape Hatteras, North Carolina, to Cape Sable, Nova Scotia, 
leatherbacks were sighted in waters within a sea surface temperature 
range similar to that observed for loggerheads; from 7[deg]-27.2[deg] 
C. However, leatherbacks appear to have a greater tolerance for colder 
waters in comparison to loggerhead sea turtles since more leatherbacks 
were found at lower temperatures (Shoop and Kenney 1992).
    As defined on the LOF, the mid-water trawl fishery for Atlantic 
mackerel is one component of the overall mid-Atlantic mid-water trawl 
(including pair trawl) fishery. This fishery targets Atlantic mackerel, 
chub mackerel, and other miscellaneous pelagic species (e.g., Atlantic 
herring). The component of the fishery targeting mackerel uses the same 
gear type and fishing practices as the rest of the fishery targeting 
other species. Therefore, NMFS is including 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.

Comments on Gillnet Fisheries

    Comment 18: The State of Connecticut provided information on

[[Page 27654]]

the Long Island Sound commercial gillnet fishery operating in CT 
waters. The State noted that there have been less than 19 active fixed 
gillnetters operating during the months of May through October, no 
interactions with sea turtles have been documented, and there were a 
limited number of sea turtle strandings in CT waters (n=12) from 1998 
to 2004. The commenter states that it is unlikely that there are enough 
turtles present in CT waters and likely to be at risk to justify 
observer coverage in this fishery. The commenter also suggests that 
monitoring this fishery would not contribute to meaningful information 
on sea turtle bycatch.
    Response: The portion of the Long Island Sound inshore gillnet 
fishery operating in CT waters is one component of the Long Island 
Sound inshore gillnet fishery as defined on the LOF. The fishery 
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 Fisheries Island) to Watch Hill, RI (59 FR 43703, August 25, 
1994). Northeast waters are an important developmental habitat for 
hard-shelled sea turtles and sea turtles occur in Long Island Sound. As 
described in the proposed rule, sea turtles are vulnerable to 
entanglement and drowning in gillnets. Past observer coverage in this 
fishery is limited to a small number of federally observed trips. 
Therefore, NMFS is including this fishery on the 2010 AD to better 
understand this fishery and how it may impact sea turtles. NMFS will 
consider information on sea turtle distribution and the spatial and 
temporal extent of gillnet fisheries operating in Long Island Sound in 
designing an appropriate sampling program for this fishery.
    Comment 19: Garden State Seafood Association recommends excluding 
NJ-based vessels that target bluefish and croaker in the Mid-Atlantic 
gillnet fishery because there were 179 trips observed between 2000 and 
2005 and no sea turtle takes were documented.
    Response: Fisheries observers in the mid-Atlantic have documented 
take of loggerhead, green, Kemp's ridley, and leatherback turtles in 
sink gillnet gear from Cape Cod to North Carolina. Observed 
interactions have occurred on trips targeting a variety of species, 
including bluefish and Atlantic croaker. From 1995-2006, the average 
annual bycatch estimate of loggerheads captured in mid-Atlantic sink 
gillnet gear was 350 turtles (Murray 2009). Bycatch rates were 
correlated with latitude, sea surface temperature, and mesh size. 
Highest predicted bycatch rates occurred in warm waters of the southern 
mid-Atlantic, in large-mesh (>17.8 cm) gillnet gear (Murray 2009).
    Gillnet fisheries, including those targeting bluefish and croaker, 
that overlap with sea turtle distribution have the potential to take 
sea turtles.
    Typically, observer coverage is allocated in proportion to fishing 
effort, by month and port, with vessels selected randomly for coverage. 
Vessels are selected based on gear type, not target species. If the 
majority of the gillnet vessels fishing out of a particular port 
targeted bluefish, the data should reflect that.
    To better understand the interactions of these fisheries with sea 
turtles, NMFS is including the mid-Atlantic gillnet fishery on the 2010 
AD to focus observer coverage during times and areas where sea turtles 
are known to occur. Information on sea turtle distribution and the 
spatial and temporal extent of these fisheries will be considered in 
designing an appropriate sampling program for the fishery.
    Comment 20: Oceana recommended including all Gulf of Mexico and 
Caribbean gillnet fisheries on the 2010 AD because of similarities to 
other gillnet fisheries as well as the large number of participants.
    Response: NMFS recognizes that gillnet fisheries in areas other 
than those identified in the first AD may pose similar issues for sea 
turtles. However, the regulations implementing this observer 
requirement at 50 CFR 222.402 specifically state that the annual 
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. Although many fisheries meet one or more of the 
first three requirements, NMFS must also consider the fourth criterion, 
which is dependent upon available agency resources. Given the agency's 
current resources for implementing this program, NMFS is not including 
any gillnet fisheries in the Gulf of Mexico or Caribbean on the 2010 
AD. However, this is an annual process and NMFS will consider including 
additional fisheries on future ADs based upon the aforementioned 
criteria.

Comments on Trap/Pot Fisheries

    Comment 21: The State of Connecticut provided information on the 
commercial lobster pot fishery in Connecticut and a description of the 
state monitoring program. Specifically, since 1982, the CT Department 
of Environmental Protection's Marine Fisheries Division has observed 
13,693 multi-trap trawl hauls on 643 commercial lobster trips in Long 
Island Sound. During the program, a single take of a sea turtle was 
documented in August 2009; a leatherback turtle was observed entangled 
in a vertical line.
    Response: NMFS appreciates receiving detailed information on the 
monitoring program and CT commercial lobster pot fishery. This fishery 
is one component of the overall Northeast/Mid-Atlantic American Lobster 
Trap/Pot fishery, which operates from Maine to New Jersey and may 
extend as far south as Cape Hatteras, NC. As noted by the commenter and 
described in the proposed rule (74 FR 59508, November 18, 2009), sea 
turtles are known to become entangled in the end lines (also called 
vertical lines) of trap/pot gear. There have also been anecdotal 
reports that sea turtles may interact with the trap/pot itself. NMFS 
currently has only limited data on sea turtle bycatch in this fishery. 
NMFS is including this fishery, focusing on waters south of 
Massachusetts where sea turtles more commonly occur, on the 2010 AD to 
obtain information on sea turtle bycatch and how turtles may interact 
with the gear. The information provided will be considered in designing 
an appropriate sampling program for this fishery.

Comments on Longline Fisheries

    Comment 22: Oceana recommends including all longline fisheries, 
both pelagic and bottom longlines, on the 2010 AD. Specifically, the 
commenter noted the need for additional observer coverage in the Gulf 
of Mexico reef fish bottom longline fishery as well as new observer 
programs for the Northeast/mid-Atlantic bottom longline, Caribbean 
snapper grouper and other bottom longline fisheries.
    Response: The purpose of the sea turtle observer requirement and 
the AD is ultimately to implement ESA sections 9 and 4(d), which 
prohibit the incidental take of endangered and threatened sea turtles, 
respectively. Another purpose of the AD is to learn more about sea 
turtle-fishery interactions in the identified fisheries in order to 
have information necessary to provide exemptions to the take 
prohibitions, consistent with ESA sections 4(d), 7 and 10, if warranted 
for certain fisheries.
    NMFS did not include any pelagic longline fisheries on the 2010 AD 
because all commercial pelagic longline

[[Page 27655]]

fisheries as included on the MMPA LOF are currently observed for sea 
turtles and incidental takes authorized. Similarly, the Gulf of Mexico 
reef fish bottom longline fishery is currently observed for sea turtles 
and takes authorized. Therefore, including these fisheries on the 2010 
AD would be duplicative at this time.
    NMFS evaluated the aforementioned criteria in 50 CFR 222.402 and 
determined that the agency could not satisfy the fourth criterion at 
this time with regard to including the other bottom longline fisheries 
recommended by the commenter. However, this is an annual process and 
NMFS will consider including additional fisheries, including longline 
fisheries, on future ADs.

Comments on Recreational Fisheries

    Comment 23: Cape Seafoods Inc., Lund's Fisheries, Inc., Northern 
Pelagic Group LLC, Western Sea Fishing Company, and Garden State 
Seafood Association suggests noting that recreational fisheries are 
responsible for sea turtle deaths and recommends that NMFS specify a 
clear process for including recreational fisheries on the AD. 
Specifically, they recommend using the new recreational fishing 
registry implemented in January 2009 to identify fisheries.
    Response: NMFS recognizes that recreational fisheries may also 
incidentally take sea turtles and, therefore, included recreational 
fisheries under the observer requirement at 50 CFR 222.401.
    NMFS appreciates the commenter's suggestion to use the recreational 
fishing registry and will consider including recreational fisheries on 
future ADs.
    Comment 24: Oceana recommended including recreational fisheries on 
the 2010 AD.
    Response: NMFS considered recreational fisheries in developing the 
proposed 2010 AD, but the agency did not feel we had enough information 
to develop an observer program. Further, NMFS determined that the 
agency could not satisfy the criterion at 50 CFR 222.402(a)(4) required 
to include a fishery on the AD. As noted in the response to Comment 23, 
NMFS will use the information from the recreational fishing registry, 
along with other information from the Marine Recreational Information 
Program, to obtain the necessary information to consider including 
specific recreational fisheries on a future AD.

Addition of Fisheries on the 2010 Annual Determination

    NMFS is including 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. For a complete description of the information and state 
recommendations NMFS used in developing the 2010 AD, please see the 
proposed rule (74 FR 59508, November 18, 2009).

Trawl Fisheries

    Based on the information provided by states and the best available 
scientific information, NMFS includes 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. 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 includes 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[deg] 30' W. long. and north of a line extending due east from the 
North Carolina/South Carolina border.
    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. 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. 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).
    NMFS includes 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. NMFS includes 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. NMFS is including 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

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). NMFS includes this fishery on the 2010 AD because it

[[Page 27656]]

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. NMFS includes 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. NMFS includes 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). NMFS includes 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. NMFS includes 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. NMFS includes 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. NMFS includes 
this fishery on the 2010 AD because the fishery overlaps spatially with 
areas used by sea turtles, often at relatively high densities and high 
takes have been previously documented. 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.

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. NMFS includes 
this fishery on the 2010 to focus observer coverage during times and in 
areas where sea turtles are known to occur.

Trap/Pot Fisheries

    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. NMFS includes 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. NMFS includes 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). NMFS includes 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.

Pound Net/Weir/Seine Fisheries

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. NMFS includes 
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.

[[Page 27657]]

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. NMFS includes 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. 
NMFS includes 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. NMFS includes this fishery on 
the 2010 AD to better understand the nature 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 (including pair trawl)                                                   2010-2014
----------------------------------------------------------------------------------------------------------------
Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl                                               2010-2014
----------------------------------------------------------------------------------------------------------------
Gillnet Fisheries
----------------------------------------------------------------------------------------------------------------
CA halibut, white seabass and other species set gillnet                                               2010-2014
 (>3.5 in mesh)
----------------------------------------------------------------------------------------------------------------
CA yellowtail, barracuda, and white seabass drift                                                     2010-2014
 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 lobster trap/pot                                                      2010-2014
----------------------------------------------------------------------------------------------------------------
Pound Net/Weir/Seine Fisheries
----------------------------------------------------------------------------------------------------------------
Mid-Atlantic haul/beach seine                                                                         2010-2014
----------------------------------------------------------------------------------------------------------------
Mid-Atlantic menhaden purse seine                                                                     2010-2014
----------------------------------------------------------------------------------------------------------------
U.S. mid-Atlantic mixed species stop seine/weir/pound                                                 2010-2014
 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

[[Page 27658]]

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. 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 vessel'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.
    The requirements to carry an observer when requested for those 
fisheries included on the 2010 AD through this final rule are included 
under an existing collection-of-information that was approved by the 
Office of Management and Budget (OMB) under OMB control number 0648-
0593.
    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 final 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 fianl rule would not make any 
significant change in the management of fisheries included on the AD, 
and therefore, this final 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 required under NEPA and specific 
to that action.
    This final 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 final rule would not affect 
the conclusions of those opinions. Including 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 final 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.

Literature Cited

    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: May 11, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-11856 Filed 5-17-10; 8:45 am]
BILLING CODE 3510-22-S