Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Rules and Regulations 27649 

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 action 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 July 19, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action 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, 

Nitrogen oxides, Ozone, Volatile organic 

compounds. 

Dated: April 30, 2010. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

■ 40 CFR part 52 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 SS—Texas 

■ 2. The table in § 52.2270(c) entitled 

‘‘EPA Approved Regulations in the 

Texas SIP’’ under Chapter 101 is 

amended by: 

■ a. Revising the entries for Sections 

101.302 and 101.306 under Subchapter 

H—Emissions Banking and Trading, 

Division 1—Emission Credit Banking 

and Trading. 

■ b. Adding an entry for Section 

101.305 under Subchapter H— 

Emissions Banking and Trading, 

Division 1—Emission Credit Banking 

and Trading, in numerical order. 

The revisions and additions read as 

follows: 

§ 52.2270 Identification of plan. 

* * * * * 

(c) * * * 

EPA–APPROVED REGULATIONS IN THE TEXAS SIP 

State citation Title/subject 

State 

approval/ 

submittal date 

EPA approval date Explanation 

Chapter 101—General Air Quality Rules 

* * * * * * * 

Subchapter H—Emissions Banking and Trading 

Division 1—Emission Credit Banking and Trading 

* * * * * * * 

Section 101.302 ........ General Provisions ..................... 7/25/2007 5/18/10 [Insert FR page number 

where document begins]. 

* * * * * * * 

Section 101.305 ........ Emission Reductions Achieved 

Outside the United States.

10/4/2006 5/18/10 [Insert FR page number 

where document begins]. 

Section 101.306 ........ Emission Credit Use .................. 7/25/2007 5/18/10 [Insert FR page number 

where document begins]. 

* * * * * * * 

[FR Doc. 2010–11683 Filed 5–17–10; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 


hsrobinson on DSK69SOYB1PROD with RULES
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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 


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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. 


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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 NMFScertified). 

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 


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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° 

to 30° C, but water temperatures ≥11° 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°–27.2° 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 midAtlantic 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 


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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 NJbased 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 


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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 ‘‘MidAtlantic 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 yearround from Cape Cod, MA, to Cape 

Hatteras, NC, in waters west of 72° 30’ 

W. long. and north of a line extending 

due east from the North Carolina/South 

Carolina border. 

The 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 


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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, longerterm 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. 


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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 (>3.5 in mesh) 2010–2014 

CA yellowtail, barracuda, and white seabass drift gillnet (mesh size >3.5 in. and 

<14 in.) 2010–2014 

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 net (except the NC roe 

mullet stop net) 2010–2014 

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 


hsrobinson on DSK69SOYB1PROD with RULES
27658 Federal Register / Vol. 75, No. 95 / Tuesday, May 18, 2010 / Rules and Regulations 

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/ao2009ldraftlappendices.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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 090508900–91414–02] 

RIN 0648–AX75 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; SnapperGrouper Fishery of the South Atlantic; 

Red Snapper Closure 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; interim 

measures extended. 

SUMMARY: NMFS issues this temporary 

rule to extend the effective date of 

interim measures to reduce overfishing 

of red snapper in the South Atlantic 

implemented by a temporary rule 

published by NMFS on December 4, 

2009 (74 FR 63673). This temporary rule 

extends the closure of the commercial 

and recreational fisheries for red 

snapper in the exclusive economic zone 

(EEZ) of the South Atlantic as requested 

by the South Atlantic Fishery 

Management Council (Council). The 

intended effect of this rule is to reduce 

overfishing of red snapper in the South 

Atlantic. 

DATES: The effective date for the interim 

rule published at 74 FR 63673, 

December 4, 2009, is extended from 

June 3, 2010, through December 5, 2010, 

unless NMFS publishes a superseding 

document in the Federal Register. 

ADDRESSES: Copies of the final 

regulatory flexibility analysis (FRFA) 

and environmental assessment (EA) may 

be obtained from Karla Gore, Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701. 

FOR FURTHER INFORMATION CONTACT: 

Karla Gore, telephone: 727–551–5305. 

SUPPLEMENTARY INFORMATION: The 

snapper-grouper fishery off the southern 

Atlantic states is managed under the 

Fishery Management Plan for the 

Snapper-Grouper Fishery of the South 

Atlantic Region (FMP). The FMP was 

prepared by the Council and is 

implemented under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) by regulations 

at 50 CFR part 622. 

On December 4, 2009, NMFS 

published the final temporary rule (74 

FR 63673) to implement measures to 

establish a closure of the commercial 


hsrobinson on DSK69SOYB1PROD with RULES