82 FR 48674 - 2018 Annual Determination To Implement the Sea Turtle Observer Requirement
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 82, Issue 201 (October 19, 2017)
National Oceanic and Atmospheric Administration
Federal Register Volume 82, Issue 201 (October 19, 2017)
| Page Range | 48674-48678 | |
| FR Document | 2017-22682 |
[Federal Register Volume 82, Number 201 (Thursday, October 19, 2017)] [Proposed Rules] [Pages 48674-48678] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-22682] [[Page 48674]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 222 [Docket No. 170601529-7529-01] RIN 0648-BG90 2018 Annual Determination To Implement the Sea Turtle Observer Requirement AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The National Marine Fisheries Service (NMFS) publishes a proposed Annual Determination (AD) for 2018, pursuant to its authority under the Endangered Species Act (ESA). Through the AD, NMFS identifies U.S. fisheries operating in the Atlantic Ocean, Gulf of Mexico, and Pacific Ocean that will be required to take fisheries observers upon NMFS' request. The purpose of observing identified fisheries is to learn more about sea turtle interactions in a given fishery, evaluate measures to prevent or reduce sea turtle takes and to implement the prohibition against sea turtle takes. Fisheries identified on the 2018 AD (see Table 1) will be eligible to carry observers as of January 1, 2018, and will remain on the AD for a five-year period until December 31, 2022. DATES: Comments must be received by November 20, 2017. ADDRESSES: You may submit comments on this document, identified by NOAA-NMFS-2017-0058, by either of the following methods: Federal e-Rulemaking portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0058, Click the ``Comment Now!'' icon, complete the required fields, enter or attach your comments. Mail: Submit written comments to Chief, Marine Mammal and Sea Turtle Conservation Division, Attn: Sea Turtle Annual Determination, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Alexis Gutierrez, Office of Protected Resources, 301-427-8402; Ellen Keane, Greater Atlantic Region, 978-282- 8476; Dennis Klemm, Southeast Region, 727-824-5312; Dan Lawson, West Coast Region, 562-980-3209; Irene Kelly, Pacific Islands Region, 808- 725-5141. 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/fisheries/lof.html or from any NMFS Regional Office at the addresses listed below:NMFS, Greater Atlantic Region, Protected Resources Division, 55 Great Republic Drive, Gloucester, MA 01930; NMFS, Southeast Region, Protected Resources Division, 263 13th Avenue South, St. Petersburg, FL 33701; NMFS, West Coast Region, Protected Resources Division, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802; NMFS, Pacific Islands Region, Protected Resources Division, 1845 Wasp Blvd., Building 176, Honolulu, HI 96818. 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), loggerhead (Caretta caretta; North Pacific distinct population segment), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) sea turtles are listed as endangered. Loggerhead (Caretta caretta; Northwest Atlantic distinct population segment), green (Chelonia mydas; North Atlantic, South Atlantic, and East Pacific distinct population segments), and olive ridley (Lepidochelys olivacea) sea turtles are listed as threatened, except for 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 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 the primary anthropogenic source of sea turtle injury and mortality in U.S. waters. Section 9 of the ESA prohibits the take (including harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting or attempting to engage in any such conduct), including incidental take, of endangered sea turtles. Pursuant to section 4(d) of the ESA, NMFS has issued regulations extending the prohibition of take, with exceptions, to threatened sea turtles (50 CFR 223.205 and 223.206). Section 11 of the ESA provides for civil and criminal penalties for anyone who violates the Act or a regulation issued to implement the Act. 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 the activity that will result in incidental take is not likely to jeopardize the continued existence of the affected listed species. For some Federal fisheries and most state fisheries, NMFS has not granted an exception for incidental takes of sea turtles primarily because we lack information about fishery-sea turtle interactions. The most effective way for NMFS to learn more about sea turtle- fishery interactions in order to implement the take prohibitions and prevent or minimize take is to place observers aboard fishing vessels. In 2007, NMFS issued a regulation (50 CFR 222.402) establishing procedures to annually 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, commercial or recreational, 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 United States. Failure to comply with the requirements under this rule [[Page 48675]] may result in civil or criminal penalties under the ESA. NMFS 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 required to carry observers, if requested, for a period of 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 implement ESA take prohibitions and conserve turtles. Sea Turtle Distribution Atlantic Ocean and Gulf of Mexico Sea turtle species found in waters of the Atlantic Ocean and Gulf of Mexico include green, hawksbill, Kemp's ridley, leatherback, and loggerhead turtles. The waters off the U.S. east coast and Gulf of Mexico provide important foraging, breeding, and migrating habitat for these species. Further, the southeastern United States, from North Carolina through the Florida Gulf coast, is a major sea turtle nesting area for loggerhead, leatherback, and green turtles, and, to a much lesser extent, Kemp's ridley and hawksbill turtles. Four sea turtle species occur seasonally in New England and Mid- Atlantic continental shelf waters north of Cape Hatteras, North Carolina: Green, Kemp's ridley, leatherback, and loggerhead. The occurrence of these species in these waters is largely temperature dependent. In general, some turtles move up the coast from southern wintering areas as water temperatures warm in the spring. The trend reverses in the fall as water temperatures decrease. By December, turtles that migrated northward return to southern waters for the winter. Hard-shelled species are most commonly found south of Cape Cod, Massachusetts. Leatherbacks regularly occur as far north in U.S. waters as the Gulf of Maine in the summer and fall. Green turtles inhabit inshore and nearshore waters from Texas to Massachusetts, the U.S. Virgin Islands, and Puerto Rico. While foraging and developmental habitats also occur in the wider Caribbean, important feeding areas in Florida include the Indian River Lagoon, the Florida Keys, Florida Bay, Homosassa, Crystal River, Cedar Key, and St. Joseph Bay. The bays and sounds of North Carolina and Texas also provide important foraging habitat for green turtles. In the Atlantic, hawksbills are most common in Puerto Rico and its associated islands and in the U.S. Virgin Islands. In the continental United States, the species is primarily recorded from south Texas and south Florida and infrequently from the remaining Gulf States and north of Florida. Kemp's ridleys occur throughout waters of the Gulf of Mexico and U.S. Atlantic coast from Florida to New England. The major nesting area for Kemp's ridleys is in Tamaulipas, Mexico, with limited nesting extending to the Texas coast. Loggerheads occur throughout the Atlantic and Gulf of Mexico, ranging from inshore shallow water habitats to deeper oceanic waters. The largest nesting assemblage of loggerheads in the world is in the southeastern United States from Florida to North Carolina. Adult leatherbacks are capable of tolerating a wide range of water temperatures and have been sighted along the entire continental coast of the United States as far north as the Gulf of Maine and south to Puerto Rico, the U.S. Virgin Islands, and into the Gulf of Mexico. The southeast coast of Florida represents a significant nesting area for leatherbacks in the western North Atlantic. U.S. Pacific Ocean Leatherback sea turtles are consistently present off the U.S. west coast, usually north of Point Conception, California. They migrate to central and northern California from their natal beaches in the Western Pacific to feed on jellyfish during summer and fall. Leatherback turtles usually appear in Monterey Bay and California coastal waters during August and September and move offshore in October and November. Other observed areas of summer leatherback concentration include northern California and the waters off Washington through northern Oregon, offshore from the Columbia River plume. Green, loggerhead, and olive ridley sea turtles are rarely observed in the U.S. west coast EEZ, but records show that all species have stranded in California and the Pacific Northwest. Two small resident populations of green turtles have been identified in the southern California Bight, associated historically with the warm water outflows from power plants in San Diego Bay and the San Gabriel River in Long Beach, California. In the eastern Pacific, loggerheads have been reported as far north as Alaska and as far south as Chile. Occasionally there are sightings reported from the coasts of Washington and Oregon, but most records are of juveniles off the coast of California. Based upon observer records and aerial observations, loggerheads travel into the southern California Bight during El Ni[ntilde]o events (or warm water conditions similar to an El Ni[ntilde]o). The majority of fishery interactions with loggerheads during El Ni[ntilde]o conditions have occurred during the summer. Olive ridleys have been recorded stranded all along the U.S. west coast. Olive ridleys are believed to use warm water currents along the west coast for foraging. The specific distribution of olive ridleys along the U.S. west coast is unknown at this time. Sea turtles occur throughout the Pacific Islands Region including the State of Hawaii and the U.S. territories of Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands (CNMI). Green and hawksbill turtles are most common in nearshore waters while leatherbacks, loggerheads, and olive ridleys occur in offshore pelagic waters. Process for Developing an Annual Determination Pursuant to 50 CFR 222.402, NOAA's Assistant Administrator for Fisheries (AA), in consultation with Regional Administrators and Fisheries Science Center Directors, develops a proposed AD 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 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; and/or qualitative data from logbooks or fisher reports informs the determination. Specifically, this determination is based on the extent to which: (1) The fishery operates in the same waters and at the same time as sea turtles are present; (2) The fishery operates at the same time or prior to elevated sea turtle strandings; or (3) The fishery uses a gear or technique that is known or likely to result in incidental take of sea turtles based on documented or reported takes in the same or similar fisheries; and (4) NMFS intends to monitor the fishery and anticipates that it will have the funds to do so. The AA uses the most recent version of the annually published LOF as the [[Page 48676]] comprehensive list of commercial fisheries for consideration. The LOF includes all known state and Federal commercial fisheries that occur in U.S. waters and on the high seas. However, in preparing an AD we do not rely on the three-part MMPA LOF classification scheme. In addition, unlike the LOF, an AD may 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 to identify which fisheries, both commercial and recreational, to consider. NMFS carefully considered all recommendations and information available for developing the proposed AD. This is not an exhaustive or comprehensive list of all fisheries with documented or suspected takes of sea turtles. For other fisheries, NMFS may already be addressing incidental take through another mechanism (e.g., rulemaking to implement modifications to fishing gear and/or practices), may be observing the fishery under a separate statutory authority, or will consider including them in future ADs based on the four previously noted criteria (50 CFR 222.402(a)). The fisheries not included on the 2018 AD may still be observed under a different authority (e.g., MMPA, MSA) than the ESA if applicable. Notice of the final determination will publish in the Federal Register and individuals permitted for each fishery identified on the AD will receive a written notification. NMFS will also notify state agencies. Once included in the final determination, a fishery will remain eligible for observer coverage for a period of five years to enable the design of an appropriate sampling program and to ensure collection of sufficient scientific data for analysis. If NMFS determines a need for more than five years to obtain sufficient scientific data, NMFS will include the fishery in the proposed AD again prior to the end of the fifth year. The first AD was published in 2010 and identified 19 fisheries that were required to carry observers for a period of 5 years, through December 31, 2014, if requested by NMFS. On the 2015 AD, NMFS identified 14 fisheries, 11 were previously listed and 3 were newly listed. The 14 fisheries are currently required to carry observers for a period of 5 years, through December 31, 2019. The fisheries currently listed on the AD can be found at http://www.nmfs.noaa.gov/pr/species/turtles/observers.htm. Fisheries Proposed for Inclusion on the 2018 Annual Determination NMFS is proposing to include 2 new fisheries (both in the Atlantic Ocean/Gulf of Mexico) on the 2018 AD. The two fisheries, described below and listed in Table 1, are the Mid-Atlantic Gillnet fishery and the Gulf of Mexico Menhaden Purse Seine Fishery. NMFS used the 2017 MMPA LOF (82 FR 3655; January 12, 2017) as the comprehensive list of commercial fisheries to evaluate for fisheries to include on the AD. The fishery name, definition, and number of vessels/ persons for fisheries listed on the AD are taken from the most recent MMPA LOF. Additionally, the fishery descriptions below include a particular fishery's current classification on the MMPA LOF (i.e., Category I, II, or III); Category I and II fisheries are required to carry observers under the MMPA if requested by NMFS. As noted previously, NMFS also has authority to observe fisheries in Federal waters under the MSA and collect sea turtle bycatch information. Gillnet Fisheries Sea turtles are vulnerable to entanglement and drowning in gillnets, especially when gear is unattended. The main risk to sea turtles from capture in gillnet gear is forced submergence (i.e., drowning). Sea turtle entanglement in gillnets can also result in severe constriction wounds and/or abrasions. Large mesh gillnets (e.g., 10-12 inch (in). (25.4-30.5 centimeter (cm)) stretched mesh or greater) have been documented as particularly effective at capturing sea turtles. However, sea turtles are prone to and have been commonly documented entangled in smaller mesh gillnets as well. Mid-Atlantic Gillnet Fishery NMFS proposes to include the Mid-Atlantic Gillnet Fishery on the 2018 AD given known interactions between sea turtles and this gear type and the need to collect more sea turtle bycatch data in state inshore gillnet fisheries. The Mid-Atlantic gillnet fishery was not listed in the 2015 AD, but the Chesapeake Bay Inshore Gillnet Fishery and Long Island Inshore Gillnet fishery were. By including the Mid-Atlantic gillnet fishery in the 2018 AD, we authorize observer coverage more completely along the mid-Atlantic region. The Mid-Atlantic gillnet fishery (estimated 3,950 vessels/persons) targets monkfish, spiny dogfish, smooth dogfish, bluefish, weakfish, menhaden, spot, croaker, striped bass, large and small coastal sharks, Spanish mackerel, king mackerel, American shad, black drum, skate spp., yellow perch, white perch, herring, scup, kingfish, spotted seatrout, and butterfish. The fishery uses drift and sink gillnets, including nets set in a sink, stab, set, strike, or drift fashion, with some unanchored drift or sink nets used to target specific species. The dominant material is monofilament twine with stretched mesh sizes from 2.5-12 in. (6.4-30.5 cm), and string lengths from 150-8,400 feet (ft) (46-2,560 meter (m)). This fishery operates year-round west of a line drawn at 72[deg]30' W. long. south to 36[deg]33.03' N. lat. and east to the eastern edge of the EEZ and north of the North Carolina/South Carolina border, not including Category II and III inshore gillnet fisheries (i.e., Chesapeake Bay, North Carolina, Long Island Sound inshore gillnet, DE River inshore gillnet, Rhode Island, southern Massachusetts (to Monomoy Island), and New York Bight (Raritan and Lower NY Bays) inshore gillnet fisheries). This fishery includes any residual large pelagic driftnet effort in the Mid-Atlantic and any shark and dogfish gillnet effort in the Mid-Atlantic zone described. The fishing occurs right off the beach (6 ft. (1.8 m)) or in nearshore coastal waters to offshore waters (250 ft. 76 m]). Gear in this fishery is managed by several Federal FMPs and Interstate FMPs managed by the Atlantic States Marine Fisheries Commission. These fisheries are primarily managed by total allowable catch (TAC); individual trip limits (quotas); effort caps (limited number of days at sea per vessel); time and area closures; and gear restrictions and modifications. This fishery is classified as Category I on the MMPA LOF, which authorizes NMFS to observe this fishery in state and Federal waters for marine mammal interactions and to collect information on sea turtles should a take occur on an observed trip. This fishery was listed on the 2010 AD, and was eligible for observer coverage through 2014. NMFS proposes to include this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been well documented in this fishery, and NMFS intends to monitor this fishery, particularly the segment that occurs in the nearshore coastal waters of the mid-Atlantic and Delaware Bay. Weir/Seine/Floating Trap Fisheries Pound net, weir, seine and floating trap fisheries may use mesh similar to that used in gillnets, but the gear is [[Page 48677]] prosecuted differently from traditional gillnets. Purse seines, weirs and floating traps also have the potential to entangle and drown sea turtles. Gulf of Mexico Menhaden Purse Seine Fishery NMFS proposes including the Gulf of Mexico Menhaden Purse Seine Fishery on the 2018 AD. The Gulf of Mexico Menhaden Purse Seine Fishery (estimated 40-42 vessels/persons) targets menhaden and thread herring. The fishery uses purse seine gear and operates in bays, sounds, and nearshore coastal waters along the Gulf of Mexico coast. The majority of fishing effort occurs in Louisiana and Mississippi, with lesser effort in Alabama and Texas state waters. Florida prohibits the use of purse seines in state waters. The fishery is managed under the Gulf States Marine Fisheries Commission Interstate Gulf Menhaden Fishery Management Plan. This fishery is classified as Category II on the MMPA LOF, and NMFS has not yet included it on a previous AD. The fishery was observed in the early-1990s by Louisiana State University. Sea turtle strandings in the northern Gulf of Mexico have been documented during times and in areas near where the menhaden fishery operates. In 2011, NMFS operated a pilot observer program in this fishery to better understand the fishery's operations and evaluate the feasibility of observing for marine mammal and sea turtle bycatch. During the pilot observer program, two sea turtles were documented, one dead Kemp's ridley that was excluded by the large fish excluder, and one live unidentified turtle that was successfully released from the purse-seine net. Future observer efforts will build on the information obtained in 2011. NMFS proposes to include this fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD because sea turtles are known to occur in the same areas where the fishery operates, takes have been documented in this fishery, and NMFS intends to monitor this fishery. Implementation of Observer Coverage in a Fishery Listed on the 2018 AD As part of the proposed 2018 AD, NMFS has included, to the extent practicable, information on the fisheries and gear types to observe, geographic and seasonal scope of coverage, and any other relevant information. NMFS intends to monitor the fisheries and anticipates that it will have the funds to do so. 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. The design of any observer program for fisheries identified through the AD process, including how observers will be allocated to individual vessels, will vary among fisheries, fishing sectors, gear types, and geographic regions and will ultimately be determined by the individual NMFS Regional Office, Science Center, and/or observer program. During the program design, NMFS will follow the standards below for distributing and placing observers among fisheries identified in the AD and among vessels in those fisheries: (1) The requirement 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 the AD must comply with observer safety requirements specified in 50 CFR 600.725 and 600.746. Specifically, 50 CFR 600.746(c) requires vessels subject to observer coverage 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 United States Coast Guard (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 is prohibited from fishing (50 CFR 600.746(f)), unless NMFS determines that an alternative platform (e.g., a second vessel) may be used or the vessel is not required to take an observer under 50 CFR 222.404. 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 are consistent with existing NOAA observer policies and applicable federal 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 part 600). Additional information on observer programs in commercial fisheries is on the NMFS National Observer Program's Web site: http://www.st.nmfs.noaa.gov/observer-home/; links to individual regional observer programs are also on this Web site. Table 1--State and Federal Commercial Fisheries Proposed for Inclusion on the 2018 Annual Determination ------------------------------------------------------------------------ Years eligible to Fishery carry observers ------------------------------------------------------------------------ Gillnet Fisheries: Mid-Atlantic gillnet............................. 2018-2022 Pound Net/Weir/Seine Fisheries: Gulf of Mexico menhaden purse seine.............. 2018-2022 ------------------------------------------------------------------------ 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. On December 29, 2015, we issued a final rule establishing a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the prior Small Business Administration standards of $20.5 million, $5.5 million, and $7.5 million [[Page 48678]] for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016 (Id. at 81194). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates). Based on the information above, the Mid-Atlantic gillnet fishery has 343 small businesses and 23 large businesses operating in the Federal portion of the fishery. We believe those operating in the state portion of the fishery have revenue less than $11 million a year and are, therefore, small businesses. None of the businesses in the Gulf of Mexico menhaden purse seine meet the small business classification. NMFS has estimated that approximately 4,000 vessels participating in the two proposed fisheries listed in Table 1 would be eligible to carry an observer if requested. However, NMFS would only request a fraction of the total number of participants to carry an observer based on the sampling protocol identified for each fishery by regional observer programs. As noted throughout this proposed rule, NMFS would select vessels and focus coverage in times and areas where fishing effort overlaps with sea turtle distribution. Due to the unpredictability of fishing effort, NMFS cannot determine the specific number of vessels that it will request 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. 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 information collection for the AD is approved under 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 proposed rule has been determined to be not significant for the purposes of Executive Order 12866. An environmental assessment (EA) was prepared under the National Environmental Policy Act (NEPA) on the issuance of the regulations to implement this observer requirement in 50 CFR part 222, subpart D. The EA concluded that implementing these regulations would not have a significant impact on the human environment. This proposed rule would not make any significant change in the management of fisheries included on the AD; and, therefore, this proposed rule would not change the analysis or conclusion of the EA. If NMFS takes a management action for a specific fishery, for example, requiring fishing gear modifications, NMFS would first prepare any environmental document required under NEPA and specific to that action. This proposed rule would not affect species listed as threatened or endangered under the ESA or their associated critical habitat. The impacts of numerous fisheries have been analyzed in various biological opinions, and this proposed rule would not affect the conclusions of those opinions. The inclusion of fisheries on the AD is not considered 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 effects to listed species under the ESA. This proposed rule would have no adverse impacts on sea turtles and may have a positive impact on sea turtles by improving knowledge of sea turtles and the fisheries interacting with sea turtles through information collected from observer programs. This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act. Dated: October 13, 2017. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2017-22682 Filed 10-18-17; 8:45 am] BILLING CODE 3510-22-P
![48674 Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Proposed Rules
DEPARTMENT OF COMMERCE information (e.g., name, address, etc.), (Lepidochelys olivacea) sea turtles are
confidential business information, or listed as threatened, except for breeding
National Oceanic and Atmospheric otherwise sensitive information colony populations of olive ridleys on
Administration submitted voluntarily by the sender will the Pacific coast of Mexico, which are
be publicly accessible. NMFS will listed as endangered. Due to the
50 CFR Part 222 accept anonymous comments (enter ‘‘N/ inability to distinguish between
[Docket No. 170601529–7529–01] A’’ in the required fields if you wish to populations of olive ridley turtles away
remain anonymous). from the nesting beach, NMFS considers
RIN 0648–BG90 these turtles endangered wherever they
FOR FURTHER INFORMATION CONTACT:
Alexis Gutierrez, Office of Protected occur in U.S. waters. While some sea
2018 Annual Determination To turtle populations have shown signs of
Implement the Sea Turtle Observer Resources, 301–427–8402; Ellen Keane,
Greater Atlantic Region, 978–282–8476; recovery, many populations continue to
Requirement decline.
Dennis Klemm, Southeast Region, 727–
AGENCY: National Marine Fisheries 824–5312; Dan Lawson, West Coast Incidental take, or bycatch, in fishing
Service (NMFS), National Oceanic and Region, 562–980–3209; Irene Kelly, gear is the primary anthropogenic
Atmospheric Administration (NOAA), Pacific Islands Region, 808–725–5141. source of sea turtle injury and mortality
Commerce. Individuals who use a in U.S. waters. Section 9 of the ESA
ACTION: Proposed rule. telecommunications device for the prohibits the take (including harassing,
hearing impaired may call the Federal harming, pursuing, hunting, shooting,
SUMMARY: The National Marine Information Relay Service at 1–800– wounding, killing, trapping, capturing,
Fisheries Service (NMFS) publishes a 877–8339 between 8 a.m. and 4 p.m. or collecting or attempting to engage in
proposed Annual Determination (AD) Eastern time, Monday through Friday, any such conduct), including incidental
for 2018, pursuant to its authority under excluding Federal holidays. take, of endangered sea turtles. Pursuant
the Endangered Species Act (ESA). SUPPLEMENTARY INFORMATION: to section 4(d) of the ESA, NMFS has
Through the AD, NMFS identifies U.S. issued regulations extending the
fisheries operating in the Atlantic Availability of Published Materials prohibition of take, with exceptions, to
Ocean, Gulf of Mexico, and Pacific Information regarding the Marine threatened sea turtles (50 CFR 223.205
Ocean that will be required to take Mammal Protection Act (MMPA) List of and 223.206). Section 11 of the ESA
fisheries observers upon NMFS’ request. Fisheries (LOF) may be obtained at provides for civil and criminal penalties
The purpose of observing identified http://www.nmfs.noaa.gov/pr/ for anyone who violates the Act or a
fisheries is to learn more about sea turtle interactions/fisheries/lof.html or from regulation issued to implement the Act.
interactions in a given fishery, evaluate any NMFS Regional Office at the NMFS may grant exceptions to the take
measures to prevent or reduce sea turtle addresses listed below: prohibitions with an incidental take
takes and to implement the prohibition • NMFS, Greater Atlantic Region, statement or an incidental take permit
against sea turtle takes. Fisheries Protected Resources Division, 55 Great issued pursuant to ESA section 7 or 10,
identified on the 2018 AD (see Table 1) Republic Drive, Gloucester, MA 01930; respectively. To do so, NMFS must
will be eligible to carry observers as of • NMFS, Southeast Region, Protected determine the activity that will result in
January 1, 2018, and will remain on the Resources Division, 263 13th Avenue incidental take is not likely to
AD for a five-year period until South, St. Petersburg, FL 33701; jeopardize the continued existence of
December 31, 2022. • NMFS, West Coast Region, the affected listed species. For some
DATES: Comments must be received by Protected Resources Division, 501 W. Federal fisheries and most state
November 20, 2017. Ocean Blvd., Suite 4200, Long Beach, fisheries, NMFS has not granted an
ADDRESSES: You may submit comments CA 90802; exception for incidental takes of sea
on this document, identified by NOAA– • NMFS, Pacific Islands Region, turtles primarily because we lack
NMFS–2017–0058, by either of the Protected Resources Division, 1845 information about fishery-sea turtle
following methods: Wasp Blvd., Building 176, Honolulu, HI interactions.
Federal e-Rulemaking portal. Go to 96818. The most effective way for NMFS to
www.regulations.gov/ learn more about sea turtle-fishery
Purpose of the Sea Turtle Observer interactions in order to implement the
#!docketDetail;D=NOAA-NMFS-2017-
Requirement take prohibitions and prevent or
0058, Click the ‘‘Comment Now!’’ icon,
complete the required fields, enter or Under the ESA, 16 U.S.C. 1531 et seq., minimize take is to place observers
attach your comments. NMFS has the responsibility to aboard fishing vessels. In 2007, NMFS
Mail: Submit written comments to implement programs to conserve marine issued a regulation (50 CFR 222.402)
Chief, Marine Mammal and Sea Turtle life listed as endangered or threatened. establishing procedures to annually
Conservation Division, Attn: Sea Turtle All sea turtles found in U.S. waters are identify, pursuant to specified criteria
Annual Determination, Office of listed as either endangered or and after notice and opportunity for
Protected Resources, NMFS, 1315 East- threatened under the ESA. Kemp’s comment, those fisheries in which the
West Highway, Silver Spring, MD ridley (Lepidochelys kempii), agency intends to place observers (72 FR
20910. loggerhead (Caretta caretta; North 43176; August 3, 2007). These
Instructions: Comments sent by any Pacific distinct population segment), regulations specify that NMFS may
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other method, to any other address or leatherback (Dermochelys coriacea), and place observers on U.S. fishing vessels,
individual, or received after the end of hawksbill (Eretmochelys imbricata) sea commercial or recreational, operating in
the comment period, may not be turtles are listed as endangered. U.S. territorial waters, the U.S.
considered by NMFS. All comments Loggerhead (Caretta caretta; Northwest exclusive economic zone (EEZ), or on
received are a part of the public record Atlantic distinct population segment), the high seas, or on vessels that are
and will generally be posted for public green (Chelonia mydas; North Atlantic, otherwise subject to the jurisdiction of
viewing on www.regulations.gov South Atlantic, and East Pacific distinct the United States. Failure to comply
without change. All personal identifying population segments), and olive ridley with the requirements under this rule
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![48676 Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Proposed Rules
comprehensive list of commercial Fisheries Proposed for Inclusion on the king mackerel, American shad, black
fisheries for consideration. The LOF 2018 Annual Determination drum, skate spp., yellow perch, white
includes all known state and Federal NMFS is proposing to include 2 new perch, herring, scup, kingfish, spotted
commercial fisheries that occur in U.S. fisheries (both in the Atlantic Ocean/ seatrout, and butterfish. The fishery
waters and on the high seas. However, Gulf of Mexico) on the 2018 AD. The uses drift and sink gillnets, including
in preparing an AD we do not rely on nets set in a sink, stab, set, strike, or
two fisheries, described below and
the three-part MMPA LOF classification drift fashion, with some unanchored
listed in Table 1, are the Mid-Atlantic
scheme. In addition, unlike the LOF, an drift or sink nets used to target specific
Gillnet fishery and the Gulf of Mexico
AD may include recreational fisheries species. The dominant material is
Menhaden Purse Seine Fishery.
likely to interact with sea turtles on the monofilament twine with stretched
NMFS used the 2017 MMPA LOF (82
basis of the best available information. mesh sizes from 2.5–12 in. (6.4–30.5
FR 3655; January 12, 2017) as the
cm), and string lengths from 150–8,400
NMFS consulted with appropriate comprehensive list of commercial
feet (ft) (46–2,560 meter (m)). This
state and Federal fisheries officials to fisheries to evaluate for fisheries to
fishery operates year-round west of a
identify which fisheries, both include on the AD. The fishery name,
line drawn at 72°30′ W. long. south to
commercial and recreational, to definition, and number of vessels/ 36°33.03′ N. lat. and east to the eastern
consider. NMFS carefully considered all persons for fisheries listed on the AD edge of the EEZ and north of the North
recommendations and information are taken from the most recent MMPA Carolina/South Carolina border, not
available for developing the proposed LOF. Additionally, the fishery including Category II and III inshore
AD. This is not an exhaustive or descriptions below include a particular gillnet fisheries (i.e., Chesapeake Bay,
comprehensive list of all fisheries with fishery’s current classification on the North Carolina, Long Island Sound
documented or suspected takes of sea MMPA LOF (i.e., Category I, II, or III); inshore gillnet, DE River inshore gillnet,
turtles. For other fisheries, NMFS may Category I and II fisheries are required Rhode Island, southern Massachusetts
already be addressing incidental take to carry observers under the MMPA if (to Monomoy Island), and New York
through another mechanism (e.g., requested by NMFS. As noted Bight (Raritan and Lower NY Bays)
rulemaking to implement modifications previously, NMFS also has authority to inshore gillnet fisheries). This fishery
to fishing gear and/or practices), may be observe fisheries in Federal waters includes any residual large pelagic
observing the fishery under a separate under the MSA and collect sea turtle driftnet effort in the Mid-Atlantic and
bycatch information. any shark and dogfish gillnet effort in
statutory authority, or will consider
including them in future ADs based on Gillnet Fisheries the Mid-Atlantic zone described. The
the four previously noted criteria (50 fishing occurs right off the beach (6 ft.
Sea turtles are vulnerable to (1.8 m)) or in nearshore coastal waters
CFR 222.402(a)). The fisheries not entanglement and drowning in gillnets,
included on the 2018 AD may still be to offshore waters (250 ft. 76 m]).
especially when gear is unattended. The Gear in this fishery is managed by
observed under a different authority main risk to sea turtles from capture in
(e.g., MMPA, MSA) than the ESA if several Federal FMPs and Interstate
gillnet gear is forced submergence (i.e., FMPs managed by the Atlantic States
applicable. drowning). Sea turtle entanglement in Marine Fisheries Commission. These
Notice of the final determination will gillnets can also result in severe fisheries are primarily managed by total
publish in the Federal Register and constriction wounds and/or abrasions. allowable catch (TAC); individual trip
individuals permitted for each fishery Large mesh gillnets (e.g., 10–12 inch limits (quotas); effort caps (limited
identified on the AD will receive a (in). (25.4–30.5 centimeter (cm)) number of days at sea per vessel); time
written notification. NMFS will also stretched mesh or greater) have been and area closures; and gear restrictions
notify state agencies. Once included in documented as particularly effective at and modifications.
the final determination, a fishery will capturing sea turtles. However, sea This fishery is classified as Category
remain eligible for observer coverage for turtles are prone to and have been I on the MMPA LOF, which authorizes
a period of five years to enable the commonly documented entangled in NMFS to observe this fishery in state
design of an appropriate sampling smaller mesh gillnets as well. and Federal waters for marine mammal
program and to ensure collection of Mid-Atlantic Gillnet Fishery interactions and to collect information
sufficient scientific data for analysis. If on sea turtles should a take occur on an
NMFS determines a need for more than NMFS proposes to include the Mid- observed trip. This fishery was listed on
five years to obtain sufficient scientific Atlantic Gillnet Fishery on the 2018 AD the 2010 AD, and was eligible for
data, NMFS will include the fishery in given known interactions between sea observer coverage through 2014.
the proposed AD again prior to the end turtles and this gear type and the need NMFS proposes to include this
of the fifth year. to collect more sea turtle bycatch data fishery pursuant to the criteria
in state inshore gillnet fisheries. The identified at 50 CFR 222.402(a)(1) for
The first AD was published in 2010 Mid-Atlantic gillnet fishery was not listing a fishery on the AD because sea
and identified 19 fisheries that were listed in the 2015 AD, but the turtles are known to occur in the same
required to carry observers for a period Chesapeake Bay Inshore Gillnet Fishery areas where the fishery operates, takes
of 5 years, through December 31, 2014, and Long Island Inshore Gillnet fishery have been well documented in this
if requested by NMFS. On the 2015 AD, were. By including the Mid-Atlantic fishery, and NMFS intends to monitor
NMFS identified 14 fisheries, 11 were gillnet fishery in the 2018 AD, we this fishery, particularly the segment
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previously listed and 3 were newly authorize observer coverage more that occurs in the nearshore coastal
listed. The 14 fisheries are currently completely along the mid-Atlantic waters of the mid-Atlantic and Delaware
required to carry observers for a period region. The Mid-Atlantic gillnet fishery Bay.
of 5 years, through December 31, 2019. (estimated 3,950 vessels/persons) targets
The fisheries currently listed on the AD monkfish, spiny dogfish, smooth Weir/Seine/Floating Trap Fisheries
can be found at http:// dogfish, bluefish, weakfish, menhaden, Pound net, weir, seine and floating
www.nmfs.noaa.gov/pr/species/turtles/ spot, croaker, striped bass, large and trap fisheries may use mesh similar to
observers.htm. small coastal sharks, Spanish mackerel, that used in gillnets, but the gear is
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![48678 Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Proposed Rules
for the finfish (NAICS 114111), shellfish If a vessel is requested to carry an EA. If NMFS takes a management action
(NAICS 114112), and other marine observer, fishers will not incur any for a specific fishery, for example,
fishing (NAICS 114119) sectors of the direct economic costs associated with requiring fishing gear modifications,
U.S. commercial fishing industry in all carrying that observer. In addition, 50 NMFS would first prepare any
NMFS rules subject to the RFA after July CFR 222.404(b) states that an observer environmental document required
1, 2016 (Id. at 81194). In addition to this will not be placed on a vessel if the under NEPA and specific to that action.
gross revenue standard, a business facilities for quartering an observer or This proposed rule would not affect
primarily involved in commercial performing observer functions are species listed as threatened or
fishing is classified as a small business inadequate or unsafe, thereby exempting endangered under the ESA or their
if it is independently owned and vessels too small to accommodate an associated critical habitat. The impacts
operated, and is not dominant in its observer from this requirement. As a of numerous fisheries have been
field of operations (including its result of this certification, an initial analyzed in various biological opinions,
affiliates). Based on the information regulatory flexibility analysis is not and this proposed rule would not affect
above, the Mid-Atlantic gillnet fishery required and was not prepared. the conclusions of those opinions. The
has 343 small businesses and 23 large The information collection for the AD
inclusion of fisheries on the AD is not
businesses operating in the Federal is approved under Office of
considered a management action that
portion of the fishery. We believe those Management and Budget (OMB) under
would adversely affect threatened or
operating in the state portion of the OMB control number 0648–0593.
Notwithstanding any other provision endangered species. If NMFS takes a
fishery have revenue less than $11 management action, for example,
million a year and are, therefore, small of the law, no person is required to
respond to, nor shall any person be requiring modifications to fishing gear
businesses. None of the businesses in and/or practices, NMFS would review
the Gulf of Mexico menhaden purse subject to a penalty for failure to comply
with, a collection of information subject the action for potential adverse effects to
seine meet the small business listed species under the ESA.
classification. to the requirements of the Paperwork
Reduction Act, unless that collection of This proposed rule would have no
NMFS has estimated that information displays a currently valid adverse impacts on sea turtles and may
approximately 4,000 vessels OMB Control Number. have a positive impact on sea turtles by
participating in the two proposed This proposed rule has been improving knowledge of sea turtles and
fisheries listed in Table 1 would be determined to be not significant for the the fisheries interacting with sea turtles
eligible to carry an observer if requested. purposes of Executive Order 12866. through information collected from
However, NMFS would only request a An environmental assessment (EA) observer programs.
fraction of the total number of was prepared under the National This proposed rule would not affect
participants to carry an observer based Environmental Policy Act (NEPA) on the land or water uses or natural
on the sampling protocol identified for the issuance of the regulations to resources of the coastal zone, as
each fishery by regional observer implement this observer requirement in specified under section 307 of the
programs. As noted throughout this 50 CFR part 222, subpart D. The EA Coastal Zone Management Act.
proposed rule, NMFS would select concluded that implementing these
vessels and focus coverage in times and regulations would not have a significant Dated: October 13, 2017.
areas where fishing effort overlaps with impact on the human environment. This Samuel D. Rauch, III,
sea turtle distribution. Due to the proposed rule would not make any Deputy Assistant Administrator for
unpredictability of fishing effort, NMFS significant change in the management of Regulatory Programs, National Marine
cannot determine the specific number of fisheries included on the AD; and, Fisheries Service.
vessels that it will request to carry an therefore, this proposed rule would not [FR Doc. 2017–22682 Filed 10–18–17; 8:45 am]
observer. change the analysis or conclusion of the BILLING CODE 3510–22–P
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Document Created: 2017-10-19 02:56:27
Document Modified: 2017-10-19 02:56:27
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received by November 20, 2017. | |
| Contact | Alexis Gutierrez, Office of Protected Resources, 301-427-8402; Ellen Keane, Greater Atlantic Region, 978-282- 8476; Dennis Klemm, Southeast Region, 727-824-5312; Dan Lawson, West Coast Region, 562-980-3209; Irene Kelly, Pacific Islands Region, 808- 725-5141. 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. | |
| FR Citation | 82 FR 48674 | |
| RIN Number | 0648-BG90 |
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