Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 69823

not subject to privately negotiated 

licenses, are published in 37 CFR part 

253 and are subject to adjustment at 

five–year intervals. 17 U.S.C. 118(c).

The most recent proceeding to 

consider the terms and rates for the 

section 118 license occurred in 2002. 67 

FR 15414 (April 1, 2002). Final 

regulations governing the terms and 

rates of copyright royalty payments with 

respect to certain uses by public 

broadcasting entities of published 

nondramatic musical works, and 

published pictorial, graphic, and 

sculptural works for the license period 

beginning January 1, 2003, and ending 

December 31, 2007, were published in 

the Federal Register on December 17, 

2002. 67 FR 77170 (December 17, 2002).

Pursuant to these regulations, on 

December 1 of each year the Librarian 

shall publish a notice of the change in 

the cost of living as determined by the 

Consumer Price Index (all consumers, 

all items) during the period from the 

most recent Index published prior to the 

previous notice, to the most recent 

Index published prior to December 1, of 

that year. 37 CFR 253.10(a). The 

regulations also require that the 

Librarian publish a revised schedule of 

rates for the public performance of 

musical compositions in the ASCAP, 

BMI, and SESAC repertoires by public 

broadcasting entities licensed to 

colleges and universities, reflecting the 

change in the Consumer Price Index. 37 

CFR 253.10(b). Accordingly, the 

Copyright Office of the Library of 

Congress is hereby announcing the 

change in the Consumer Price Index and 

performing the annual cost of living 

adjustment to the rates set out in 

§253.5(c).

The change in the cost of living as 

determined by the Consumer Price 

Index (all consumers, all items) during 

the period from the most recent Index 

published before December 1, 2003, to 

the most recent Index published before 

December 1, 2004, is 3.2% (2003’s figure 

was 185.0; the figure for 2004 is 190.9, 

based on 1982–1984=100 as a reference 

base). Rounding off to the nearest dollar, 

the royalty rates for the use of musical 

compositions in the repertories of 

ASCAP, BMI, and SESAC are $262, 

$262, and $85, respectively.

List of Subjects in 37 CFR Part 253

Copyright, Radio, Television.

Final Regulation

■ For the reasons set forth in the 

preamble, part 253 of title 37 of the Code 

of Federal Regulations is amended as 

follows:

PART 253—USE OF CERTAIN 

COPYRIGHTED WORKS IN 

CONNECTION WITH 

NONCOMMERCIAL EDUCATIONAL 

BROADCASTING

■ 1. The authority citation for part 253 

continues to read as follows:

Authority: 17 U.S.C. 118, 801(b)(1) and 

803.

■ 2. Section 253.5 is amended by 

revising paragraphs (c)(1) through (c)(3) 

as follows:

§253.5 Performance of musical 

compositions by public broadcasting 

entities licensed to colleges and 

universities. 

* * * **

(c) * * *

(1) For all such compositions in the 

repertory of ASCAP, $262 annually.

(2) For all such compositions in the 

repertory of BMI, $262 annually.

(3) For all such compositions in the 

repertory of SESAC, $85 annually.

* * * **

Date: November 22, 2004

Marybeth Peters,

Register of Copyrights.

[FR Doc. 04–26265 Filed 11–30–04; 8:45 am]

BILLING CODE 1410–33–S

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52

[R10–OAR–2004–OR–0001; FRL–7839–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Oregon; 

Removal of Perchloroethylene Dry 

Cleaning Systems Rules

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final 

action to approve a revision to the 

Oregon State Implementation Plan and 

repeal rules which are no longer 

required by the Clean Air Act. The 

revision consists of the repeal of 

Oregon’s control technology guidelines 

for perchloroethylene (perc) dry 

cleaning systems and related definitions 

and provisions. Perc is a solvent 

commonly used in dry cleaning, 

maskant operations, and degreasing 

operations. In 1996, EPA excluded perc 

from the Federal definition of volatile 

organic compounds for the purpose of 

preparing state implementation plans to 

attain the national ambient air quality 

standards for ozone under title I of the 

Clean Air Act. Emissions from perc dry 

cleaners continue to be regulated as 

hazardous air pollutants under the 

National Emissions Standards for 

Hazardous Air Pollutants.

DATES: This direct final rule will be 

effective January 31, 2005, without 

further notice, unless EPA receives 

adverse comments by January 3, 2005. If 

adverse comments are received, EPA 

will publish a timely withdrawal of the 

direct final rule in the Federal Register

informing the public that the rule will 

not take effect.

ADDRESSES: Submit your comments, 

identified by Docket ID No. R10–OAR–

2004–OR–0001, by one of the following 

methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• Mail: Colleen Huck, Office of Air, 

Waste and Toxics, AWT–107 EPA, 

Region 10, 1200 Sixth Ave., Seattle, 

Washington 98101. 

• Hand Delivery: Colleen Huck, 

Office of Air, Waste and Toxics, AWT–

107, 9th Floor, EPA, Region 10, 1200 

Sixth Ave., Seattle, Washington 98101. 

Such deliveries are only accepted 

during normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. R10–OAR–2004–OR–

0001. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http://

www.epa.gov/edocket, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web site are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you

69824 Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, such as CBI or 

other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at EPA, Region 10, Office of Air, 

Waste and Toxics, 1200 Sixth Avenue, 

Seattle, Washington, from 8 a.m. to 4:30 

p.m. Monday through Friday, excluding 

legal holidays.

FOR FURTHER INFORMATION CONTACT:

Colleen Huck at telephone number: 

(206) 553–1770, e-mail address: 

Huck.Colleen@epa.gov; or Donna 

Deneen at telephone number: (206) 553–

6706, e-mail address: 

Deneen.Donna@epa.gov, fax number: 

(206) 553–0110, or the above EPA, 

Region 10 address.

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1996, EPA excluded perc from the 

Federal definition of volatile organic 

compounds (VOC) for the purpose of 

preparing state implementation plans 

(SIPs) to attain the national ambient air 

quality standards (NAAQS) for ozone 

under title I of the Clean Air Act. See

61 FR 4588 (February 7, 1996). The 

basis for EPA’s decision was that perc 

has negligible photochemical reactivity 

and that removing perc from the 

definition of VOC would result in a 

more accurate assessment of ozone 

formation potential and assist States in 

avoiding exceedances of the ozone 

health standard. 61 FR at 4588. EPA 

noted that perc would continue to be 

regulated as a hazardous air pollutant 

under section 112 of the Clean Air Act 

and the National Emission Standard for 

Hazardous Air Pollutants (NESHAPs), 

such as the NESHAP for 

Perchloroethylene Air Emission 

Standards for Dry Cleaning Facilities, 40 

CFR part 63, subpart M. 61 FR at 4588. 

EPA specifically stated that, as a 

result of the change in definition of 

VOC, EPA’s perc dry cleaning control 

technology guideline no longer has the 

legal status of a control technology 

guideline for ozone control and States 

are no longer required to have rules 

based on EPA’s perc dry cleaning 

control technology guideline. 61 FR at 

4590. EPA also stated that it would no 

longer enforce measures controlling 

perc as part of a federally-approved 

ozone SIP. 61 FR at 4590. EPA 

emphasized, however, that if a state had 

taken reduction credit for measures 

controlling perc as part of an ozone 

control plan, the state would need to 

submit new reduction measures as 

necessary to account for the loss of 

those reduction credits. 61 FR at 4590. 

In response to the exclusion of perc 

from the definition of VOC in the 

Federal Clean Air Act, the State of 

Oregon, Division of Environmental 

Quality (ODEQ) revised its rules to 

make Oregon’s definition of VOC 

consistent with the Federal definition. 

EPA previously approved this change to 

the definition of VOC as revision to the 

Oregon SIP. See 63 FR 24935 (May 6, 

1998). On December 7, 2001, in 

response to the change in the Federal 

and state definition of VOC, ODEQ 

repealed its control technology 

guideline for perc dry cleaning systems 

contained in Oregon Administrative 

Rules (OAR) 340–232–0240, 

Perchloroethylene Dry Cleaning. ODEQ 

also repealed the related definitions and 

provisions in OAR chapter 340, Division 

232. ODEQ submitted this repeal of its 

control technology guideline for perc 

dry cleaning systems to EPA as a formal 

SIP submission on December 2, 2002. 

As part of its submittal, ODEQ showed 

that it had not taken any credit for 

emission reductions associated with 

perc in any of its attainment or 

maintenance plans. ODEQ also noted 

that it had adopted by reference the 

Federal NESHAP for Perchloroethylene 

Air Emission Standards for Dry 

Cleaning Facilities, 40 CFR part 63, 

subpart M (perc dry cleaning NESHAP), 

and had in fact expanded the universe 

of sources subject to the perc dry 

cleaning NESHAP as a matter of State 

law. See OAR 340–244–0220(3) (Federal 

Regulations Adopted by Reference). 

This makes the regulation of perc dry 

cleaners in Oregon more stringent than 

Federal law requires. 

II. This Action 

EPA is approving revisions to OAR 

chapter 340, Division 232, which 

removes requirements for perc dry 

cleaning systems, as well as related 

definitions and provisions, from the 

Oregon SIP. As discussed above, as a 

result of EPA’s change to the definition 

of VOC, there is no Federal requirement 

to regulate perc as part of a State’s ozone 

control strategy. ODEQ’s rule for perc in 

OAR 340–232–0240 was based on EPA’s 

control technology guideline for perc 

dry cleaners and is therefore no longer 

required. ODEQ has demonstrated that 

it has not taken any reduction credits for 

measures controlling perc as part of any 

of its ozone attainment or maintenance 

plans. ODEQ therefore does not need to 

submit any replacement reduction 

measures in connection with the 

removal of the perc dry cleaning rules 

from its SIP. 

As discussed above, although 

emissions from perc dry cleaners will 

no longer be regulated in Oregon for 

ozone control, such emissions will 

continue to be regulated in Oregon as 

hazardous air pollutants under the 

Federal perc dry cleaning NESHAP, 

which ODEQ has adopted as a matter of 

State law for an expanded universe of 

sources. See OAR 340–244–0220(3). 

Maintaining the SIP rules for perc is not 

needed for ozone control and would be 

largely duplicative of these NESHAP 

requirements. For these reasons, EPA is 

approving the repeal of the perc dry 

cleaning rule and the related definitions 

and provisions in OAR chapter 340, 

Division 232 from the Oregon SIP. 

III. Oregon Notice Provision 

ORS 468.126, which remains 

unchanged since EPA last approved 

Oregon’s SIP, prohibits ODEQ from 

imposing a penalty for violation of an 

air, water or solid waste permit unless 

the source has been provided five days’

advanced written notice of the violation 

and has not come into compliance or 

submitted a compliance schedule 

within that five-day period. By its terms, 

the statute does not apply to Oregon’s 

Title V program or to any program if 

application of the notice provision 

would disqualify the program from 

Federal delegation. Oregon has 

previously confirmed that, because 

application of the notice provision 

would preclude EPA approval of the 

Oregon SIP, no advance notice is 

required for violation of SIP 

requirements. 

IV. Scope of EPA Approval 

Oregon has not demonstrated 

authority to implement and enforce the 

Oregon Administrative Rules within 

‘‘Indian Country’’ as defined in 18 

U.S.C. 1151. ‘‘Indian country’’ is 

defined under 18 U.S.C. 1151 as: (1) All 

land within the limits of any Indian 

reservation under the jurisdiction of the 

United States Government, 

notwithstanding the issuance of any 

patent, and including rights-of-way

Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 69825

running through the reservation, (2) all 

dependent Indian communities within 

the borders of the United States, 

whether within the original or 

subsequently acquired territory thereof, 

and whether within or without the 

limits of a State, and (3) all Indian 

allotments, the Indian titles to which 

have not been extinguished, including 

rights-of-way running through the same. 

Under this definition, EPA treats as 

reservations trust lands validly set aside 

for the use of a Tribe even if the trust 

lands have not been formally designated 

as a reservation. Therefore, this SIP 

approval does not extend to ‘‘Indian 

Country’’ in Oregon. See CAA sections 

110(a)(2)(A) (SIP shall include 

enforceable emission limits), 

110(a)(2)(E)(i) (State must have adequate 

authority under State law to carry out 

SIP), and 172(c)(6) (nonattainment SIPs 

shall include enforceable emission 

limits).

V. Direct Final Action 

EPA is publishing this action without 

a prior proposal because EPA views this 

as a noncontroversial amendment and 

anticipates no adverse comments. In the 

proposed rules section of this Federal 

Register publication, however, EPA is 

publishing a separate document that 

will serve as the proposal to approve the 

SIP revision should relevant adverse 

comments be filed. This direct final rule 

is effective on January 31, 2005 without 

further notice, unless EPA receives 

adverse comment by January 3, 2005. If 

adverse comment is received, EPA will 

publish a timely withdrawal of the 

direct final rule in the Federal Register

and inform the public that the rule did 

not take effect. All public comments 

received will then be addressed in a 

subsequent final rule based on the 

proposed rule. EPA will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. Please note that 

if EPA receives adverse comment on an 

amendment, paragraph, or section of 

this rule, EPA may adopt as final those 

provisions of the rule that are not the 

subject of an adverse comment. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

State law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

State law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under State law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 6, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 31, 2005. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: October 29, 2004. 

Richard Albright, 

Acting Regional Administrator, Region 10.

■ Chapter I, title 40 of the Code of 

Federal Regulations is amended as 

follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart MM—Oregon

■ 2. Section 52.1970 is amended in 

paragraph (c)(139) by removing the 

number ‘‘232–0240’’ and by adding 

paragraph (c)(143) to read as follows:

§ 52.1970 Identification of plan.

* * * * *

(c) * * *

69826 Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 

(143) On December 2, 2002, the 

Oregon Department of Environmental 

Quality submitted a SIP revision to 

repeal the Perchloroethylene Dry 

Cleaning rule and revise related parts of 

the Introduction and Definitions 

sections of Division 232. 

(i) Incorporation by reference. 

(A) The following sections of the 

Oregon Administrative Rules 340: 232–

0010 and 232–0030, as effective October 

14, 1999.

[FR Doc. 04–26476 Filed 11–30–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Parts 222 and 223

[Docket No. 041124330–4330–01; I.D. 

111904C]

RIN 0648–AS91

Sea Turtle Conservation; Shrimp 

Trawling Requirements

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Temporary rule.

SUMMARY: NMFS issues this temporary 

authorization for a period of 30 days, to 

allow the use of limited tow times by 

shrimp trawlers as an alternative to the 

use of Turtle Excluder Devices (TEDs) in 

the state waters of Alabama and the 

state waters of Louisiana from the 

Mississippi/Louisiana border to a line at 

90°03′00′′ West longitude 

(approximately the west end of Grand 

Isle). This action is necessary because 

environmental conditions as a result of 

Hurricane Ivan are hampering the 

fishermen’s ability to use TEDs 

effectively.

DATES: Effective from November 26, 

2004 through December 27, 2004.

ADDRESSES: Requests for copies of the 

Environmental Assessment on this 

action should be addressed to the Chief, 

Marine Mammal Division, Office of 

Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD 

20910.

FOR FURTHER INFORMATION CONTACT:

Michael Barnette, 727–570–5794, or 

Barbara A. Schroeder, 301–713–1401.

SUPPLEMENTARY INFORMATION:

Background

All sea turtles that occur in U.S. 

waters are listed as either endangered or 

threatened under the Endangered 

Species Act of 1973 (ESA). The Kemp’s 

ridley (Lepidochelys kempii), 

leatherback (Dermochelys coriacea), and 

hawksbill (Eretmochelys imbricata) 

turtles are listed as endangered. The 

loggerhead (Caretta caretta) and green 

(Chelonia mydas) turtles are listed as 

threatened, except for breeding 

populations of green turtles in Florida 

and on the Pacific coast of Mexico, 

which are listed as endangered.

Sea turtles are incidentally taken and 

killed as a result of numerous activities, 

including fishery trawling activities in 

the Gulf of Mexico and along the 

Atlantic seaboard. Under the ESA and 

its implementing regulations, the taking 

of sea turtles is prohibited, with 

exceptions identified in 50 CFR 

223.206(d), or according to the terms 

and conditions of a biological opinion 

issued under section 7 of the ESA, or 

according to an incidental take permit 

issued under section 10 of the ESA. The 

incidental taking of turtles during 

shrimp or summer flounder trawling is 

exempted from the taking prohibition of 

section 9 of the ESA if the conservation 

measures specified in the sea turtle 

conservation regulations (50 CFR 223) 

are followed. The regulations require 

most shrimp trawlers and summer 

flounder trawlers operating in the 

southeastern United States (Atlantic 

area, Gulf area, and summer flounder 

sea turtle protection area, see 50 CFR 

223.206) to have a NMFS-approved TED 

installed in each net that is rigged for 

fishing to provide for the escape of sea 

turtles. TEDs currently approved by 

NMFS include single-grid hard TEDs 

and hooped hard TEDs conforming to a 

generic description, the flounder TED, 

and one type of soft TED the Parker soft 

TED (see 50 CFR 223.207).

TEDs incorporate an escape opening, 

usually covered by a webbing flap, that 

allows sea turtles to escape from trawl 

nets. To be approved by NMFS, a TED 

design must be shown to be 97 percent 

effective in excluding sea turtles during 

testing based upon specific testing 

protocols (50 CFR 223.207(e)(1)). Most 

approved hard TEDs are described in 

the regulations (50 CFR 223.207(a)) 

according to generic criteria based upon 

certain parameters of TED design, 

configuration, and installation, 

including height and width dimensions 

of the TED opening through which the 

turtles escape.

The regulations governing sea turtle 

take prohibitions and exemptions 

provide for the use of limited tow times 

as an alternative to the use of TEDs for 

vessels with certain specified 

characteristics or under certain special 

circumstances. The provisions of 50 

CFR 223.206(d)(3)(ii) specify that the 

NOAA Assistant Administrator for 

Fisheries (AA) may authorize 

compliance with tow time restrictions 

as an alternative to the TED requirement 

if the AA determines that the presence 

of algae, seaweed, debris, or other 

special environmental conditions in a 

particular area makes trawling with 

TED-equipped nets impracticable. The 

provisions of 50 CFR 223.206(d)(3)(i) 

specify the maximum tow times that 

may be used when tow-time limits are 

authorized as an alternative to the use 

of TEDs. The tow times may be no more 

than 55 minutes from April 1 through 

October 31 and no more than 75 

minutes from November 1 through 

March 31, as measured from the time 

that the trawl doors enter the water until 

they are removed from the water. These 

tow time limits are designed to 

minimize the level of mortality of sea 

turtles that are captured by trawl nets 

not equipped with TEDs.

Recent Events

On September 27, 28, and 29, 2004, 

the NOAA Fisheries’ Southeast Regional 

Administrator received requests from 

the Marine Fisheries Division of the 

Alabama Department of Conservation 

and Natural Resources (ADCNR), the 

Mississippi Department of Marine 

Resources (MDMR), and the Louisiana 

Department of Wildlife and Fisheries 

(LDWF), respectively, to allow the use 

of tow times as an alternative to TEDs 

in state waters due to the presence of 

excessive storm-related debris on the 

fishing grounds as a result of Hurricane 

Ivan. Subsequent to these requests, 

NOAA Fisheries issued a 30-day 

variance of the TED requirements from 

October 12 through November 11, 2004.

On November 15, 2004, the NOAA 

Fisheries’ Southeast Regional 

Administrator received requests from 

the Marine Fisheries Division of the 

ADCNR and LDWF for an additional 30-

day period allowing the use of tow 

times as an alternative to TEDs in state 

waters due to the presence of excessive 

storm-related debris that is still present 

on the fishing grounds as a result of 

Hurricane Ivan. After an investigation, 

the ADCNR and LDWF have determined 

that this debris continues to affect the 

fishermen’s ability to use TEDs 

effectively. When a TED is clogged with 

debris, it can no longer catch shrimp 

effectively nor can it effectively exclude 

turtles. Alabama and Louisiana have 

stated that their marine enforcement 

agencies will increase patrols to enforce 

the tow time restrictions.

NOAA Fisheries gear technicians 

interviewed fishermen and surveyed 

parts of the affected areas in Alabama,