2018 Annual Determination To Implement the Sea Turtle Observer Requirement, 21738-21744 [2018-09957]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 91 (Thursday, May 10, 2018)]
[Rules and Regulations]
[Pages 21738-21744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09957]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 170601529-8177-0]
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: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes its 
final 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 the 
effective date of this rulemaking, and will remain on the AD for a 
five-year period until December 31, 2022.

DATES: Effective June 9, 2018.

ADDRESSES: See SUPPLEMENTARY INFORMATION for a listing of all Regional 
Offices.

FOR FURTHER INFORMATION CONTACT: Sara Wissmann, 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, (206) 526-4740; 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 https://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 (defined to include 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

[[Page 21739]]

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. 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 may 
result in enforcement action.
    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.

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 AD. 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 AD. Specifically, this AD 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.
    For the 2018 AD, NMFS used the most recent version of the annually 
published Marine Mammal Protection Act (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 and on the high seas. In preparing an AD, however, 
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 based on 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, Magnuson-Stevens Fishery Conservation 
and Management Act (MSA)) than the ESA, if applicable.
    Notice of the final AD will publish in the Federal Register and 
individuals permitted for each fishery identified will receive a 
written notification. NMFS will also notify state agencies. Once 
included in the final AD, 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 five 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 five years, through December 31, 2019. The fisheries 
currently listed on the AD can be found at https://www.nmfs.noaa.gov/pr/species/turtles/observers.htm.

Implementation of Observer Coverage in a Fishery Listed on the 2018 AD

    As part of the 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 
determination, 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. For 
the 2018 AD, the AA has not made this determination, therefore, this 
rule is effective 30 days after publication of this notice, see DATES.
    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

[[Page 21740]]

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 fishers 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.), and Observer Health and 
Safety regulations (50 CFR part 600).
    Again, note that fisheries not included on the 2018 AD may still be 
observed under statutory authority other than the ESA (e.g., MMPA, 
MSA). Additional information on observer programs in commercial 
fisheries is on the NMFS National Observer Program's website: https://www.st.nmfs.noaa.gov/observer-home/; links to individual regional 
observer programs are also on this website.

Sea Turtle Distribution

    The sea turtle distribution and ecological use of habitats that 
leads to the overlap of sea turtles and fisheries is critical 
information that NMFS uses to inform the development of the final AD. A 
summary of this information was included in the proposed AD (October 
19, 2017, 82 FR 48674) and was considered in the development of the 
final 2018 AD.

Comments and Responses

    NMFS received seventeen comments on the proposed rule from members 
of the public, Oceana, Inc., Turtle Island Restoration Network, Omega 
Protein, Inc., Garden State Seafood Association, and the State of 
Maryland. Many commenters expressed general support of the rule or 
fishery observer programs, and others provided suggestions and requests 
for the inclusion or exclusion of particular fisheries. All substantive 
comments are specifically addressed below. Comments on issues outside 
the scope of the AD were noted, but are not responded to in this final 
rule.

General Comments

    Comment 1: Eleven commenters expressed general support for the 
rule.
    Response: NMFS agrees and has included two fisheries on the 2018 AD 
to allow for increased data gathering on sea turtle bycatch in order to 
accomplish the purposes of the rule.
    Comment 2: A commenter requested clarification on the purpose and 
role of including a fishery on the AD if the fishery is already 
eligible to carry observers under the MMPA or other authority. The 
commenter cites a comment on the 2015 AD where NMFS indicated that the 
Hawaii Deep-set longline fishery was already eligible to carry observes 
per the MMPA Category I classification; and, therefore, sufficient 
coverage would be provided and sea turtle interactions would be 
documented if they occurred.
    Response: The purpose of this requirement is to implement ESA 
sections 9 and 4(d), which prohibit the incidental take of endangered 
and threatened sea turtles, respectively. In order to do so, we must 
learn more about sea turtle-fishery interactions in the identified 
fisheries to have information necessary to issue exemptions, if 
warranted, to the take prohibitions, consistent with ESA sections 4(d), 
7 and 10.
    The MMPA LOF fishery classifications do not directly influence the 
AD. Existing observer coverage, regardless of the mandate (i.e., MMPA 
or MSA) is a consideration when we evaluate any fishery against the AD 
inclusion criteria. The overlap in seasonal and geographic distribution 
of sea turtles compared to the existing observation protocol for a 
given fishery, will help us to determine if the existing observer 
coverage is adequate to observe sea turtle interactions. It is possible 
that a Category I fishery is observed for marine mammals, but the 
existing observations are not sufficient to collect information on sea 
turtle interactions in a given season or geographic area. In this case 
inclusion of the fishery on the AD may be warranted to specifically 
expand coverage to times and areas when sea turtles may overlap with 
fishing effort. If the opposite is true, and coverage is sufficient for 
sea turtles, then NMFS may determine that inclusion on the AD is not 
warranted.

Comments on Gillnet Fisheries

    Comment 3: The Maryland Department of Natural Resources (MD DNR) 
expressed concern with including the mid-Atlantic gillnet fishery on 
the 2018 AD. This concern was based on several factors including that 
the Maryland coastal fishing fleet, which is part of the mid-Atlantic 
gillnet fishery, is small in scale and consists of some small gillnet 
vessels operating solely in state waters and state-managed fisheries. 
Small vessels would be unable to carry additional safety gear, observer 
personnel and their equipment, and many vessels would not meet the 
safety requirements for observer coverage. Additionally, MD DNR 
commented that the Code of Federal Regulations, 50 CFR 222.404(b), 
indicates that small vessels can receive an exemption if the facilities 
are too small for performing observer duties or are inadequate. They 
requested clarification on the process and criteria for requesting an 
exemption and the criteria for determining whether a vessel is unsafe 
for an observer.
    Response: After considering all comments and concerns, including 
those from MD DNR, NMFS has decided to include the mid-Atlantic gillnet 
fishery on the 2018 AD. NMFS recognizes that state-permitted vessels, 
particularly those operating in coastal or inshore areas, are often 
smaller, but that does not preclude the need to observe bycatch in 
those fisheries. Vessel size is a consideration when developing any 
observer sampling protocol. When developing an observer program, NMFS 
would consider the size of the vessels in the fleet to help determine 
the most appropriate approach for observing the fishery. NMFS observer 
programs have successfully observed small vessels that operate in 
inshore gillnet fisheries in the past, and would apply similar 
considerations to small state-permitted vessels that operate as part of 
the mid-Atlantic gillnet fishery. In many cases, small vessels have 
been able to accommodate the addition of an observer for day trips, as 
long as the vessel meets the USCG safety standards that are required. 
Alternatively, NMFS may be able to observe through alternative 
platforms, where the observer is located on a separate vessel, if 
vessel size and safety are factors for a particular sector of this, or 
any other, fishery. Additionally, electronic monitoring technology may 
also be an

[[Page 21741]]

option for smaller vessels in a gillnet fishery.
    Comment 4: MD DNR also commented that the vessels that participate 
in the mid-Atlantic gillnet fishery are already subject to observer 
coverage, and the addition of this fishery to the AD will result in 
excessive observer coverage to those vessels. MD DNR requests that the 
NMFS observer program design standards be factored into the selection 
process for the AD and requests clarification on the definition of 
inappropriate, excessive observer coverage.
    Response: NMFS makes every attempt to avoid overburdening a 
particular fisherman or fishery. Days are allocated in proportion to 
fishing effort by time/area, and sampling protocols account for all 
observer authorities, including MSA, MMPA, and the ESA. All three 
authorities may be used for a single trip to minimize duplication. 
Above, we identified the standards NMFS will follow for distributing 
and placing observers among fisheries identified in the AD and among 
vessels in those fisheries. These standards include the need to 
minimize costs and avoid duplication, where practicable. In designing a 
study, NMFS would identify the pool of vessels that may be observed and 
consider all the authorities under which these vessels may be observed. 
This would include coordinating with states, as appropriate, on 
coverage that may be implemented directly by the state (i.e. outside of 
NMFS authorities).
    As stated in the preamble, ``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].
    Comment 5: Garden State Seafood Association stated they do not 
support including the mid-Atlantic gillnet on the 2018 AD and requests 
that the Agency analyze the observer information by mesh size, by 
directed fishery, and perhaps by region to make a determination. The 
commenter requests that NMFS not treat all gillnet fisheries the same. 
Additionally, they provided data on observed gillnet trips from New 
Jersey fishing vessels and stated that not all gillnet fisheries pose 
the same risk.
    Response: NMFS acknowledges that not all gillnet fisheries pose the 
same risk. To determine risk of an interaction with a sea turtle we 
consider factors such as, mesh size, water temperature, density of 
habitat use by sea turtles. Murray (2009, 2013) found that loggerhead 
interaction rates in mid-Atlantic gillnet gear are associated with 
latitude, sea surface temperature, and mesh size.
    NMFS would also like to clarify that the universe of commercial 
fisheries considered for the AD (50 CFR 222.402) is based on the MMPA 
LOF. If the LOF defines a fishery based on broad gear type, NMFS must 
use that broad gear type on the AD. The LOF defines the scope and 
geographic area of the mid-Atlantic gillnet fishery, and under the AD, 
we are unable to isolate specific sections of the fishery for inclusion 
or exclusion. NMFS must annually reexamine the LOF and provide the 
opportunity for public comment. NMFS will consider any proposals for 
changes to the LOF submitted during the annual public comment process. 
However, even without changes to the LOF, NMFS may determine that only 
portions of a fishery will be observed using AD authority. For example, 
while NMFS has decided to include the mid-Atlantic gillnet fishery on 
the 2018 AD, NMFS is most interested in increasing coverage in 
nearshore coastal waters of the mid-Atlantic and Delaware Bay.
    When evaluating a fishery for inclusion on the AD, we look at all 
observer data available for the fishery. NMFS notes the specific data 
provided on gillnet observations that have occurred in New Jersey, but 
as noted above we are unable to isolate one state or section of the 
mid-Atlantic gillnet fishery for either inclusion or exclusion from the 
AD. However, NMFS considers this information when determining the 
sampling protocol.
    Comment 6: Turtle Island Restoration Network (TIRN) submitted a 
comment requesting that NMFS maintain adequate coverage for California 
thresher shark/swordfish drift gillnet fishery, stating that there is 
little understanding of sea turtle bycatch on trips with no observers 
and failure to observe an interaction does not mean that interactions 
are no longer occurring.
    Response: The California thresher shark/swordfish drift gillnet 
fishery is currently observed under NMFS' MMPA and MSA authorities. The 
comment regarding maintaining coverage has been noted.

Comments on Seine/Weir/Pound Net Fisheries

    Comment 7: Omega Protein submitted comments to clarify the 
participation and target species for the menhaden purse seine fishery. 
The commenter indicated that while the Federal Register notice states 
that there are 40 to 42 menhaden purse seine vessels operating in the 
Gulf of Mexico, in fact, the total number of such vessels is only 28 
vessels. Information on the Atlantic fishery was also provided but is 
outside the scope of this action. Additionally, the notice stated that 
the Gulf menhaden fishery targets thread herring. The commenter 
indicates that is not correct, and the fishery solely targets menhaden.
    Response: NMFS thanks you for your comment and for providing this 
information. The participant number included in the AD is based on the 
most recent LOF. NMFS will consider this information in a future LOF.

Comments on AD Evaluation Criteria and Data

    Comment 8: Garden State Seafood Association commented that while 
NMFS did not use stranding data for the 2018 AD, NMFS could consider 
stranding data when developing the AD. If NMFS were to consider 
strandings, they do not believe this is an appropriate method to use 
for AD evaluation, unless a stranding is proven to be a result of a 
fishery interaction.
    Response: NMFS would like to clarify that we do evaluate stranding 
data and trends when developing the AD each year, and this was also the 
case for the 2018 AD. Stranding data are one of many sources of data 
that are used when a fishery is recommended for inclusion on the AD. It 
is not the only factor in determining if a fishery should be included 
on the AD, rather it is considered within the full scope of available 
data. Stranding data are monitored throughout the year for changes in 
patterns and trends. While these data were evaluated for the 2018 AD, 
it was not a factor for listing the mid-Atlantic gillnet or the Gulf of 
Mexico menhaden purse seine fisheries. As described in the proposed 
rule, these fisheries met the criteria that the fishery operates in the 
same waters and times as sea turtles are present, takes have been well 
documented in this fishery, and NMFS intends to monitor this fishery.
    NMFS would also like to clarify how stranding data may be 
attributed to a particular fishery. Proximity to a particular fishery 
or fisheries in the area is not the only factor considered, rather

[[Page 21742]]

it is one of many pieces of information that are used by veterinarians 
and stranding staff when determining a cause of stranding. Body 
condition, decomposition, lacerations and/or other marks on the 
carcass, water temperature, currents, and harmful algal blooms are 
examples of data that may be considered when determining the cause of a 
stranding.

Comments on Observer Coverage and Protocols

    Comment 9: Garden State Seafood Association requests NMFS clearly 
articulate how an interaction or event can be classified as a condition 
of ``unknown'' in the observer database and how a ``decomposed'' turtle 
can be attributed to a particular fishery.
    Response: This comment is outside the scope of the AD rulemaking. 
NMFS would like to provide general clarification on the two questions 
posed by the commenter. Observer protocols provide clear guidance to 
the observer on how to classify an interaction and what information to 
record. At times, the observer is unable to determine the condition 
(e.g., alive, fresh dead, moderately decomposed) of the animal. For 
example, when observing gillnet fisheries, the observer may be able to 
see that there is a turtle in the gillnet, but when the gillnet is 
hauled back the animal falls out of the net before the observer is able 
to assess the animal. In this instance, the interaction may be recorded 
as condition unknown. The animal may also not be identified to species.
    Decomposition classifications (e.g., fresh dead, moderately 
decomposed, advanced decomposition) are made by the observer, but the 
observer would not make a determination on whether a decomposed carcass 
should be attributed to a particular fishery. Rather, the latter is 
determined during the post-interaction mortality determination, which 
considers the type of gear (mobile or fixed). For mobile gears, 
moderately and severely decomposed animals are not typically attributed 
to the haul on which they were caught and, thus, are not attributed to 
that fishery. For fixed gear, NMFS further evaluates the animal and its 
capture conditions, considering factors such as but not limited to the 
animal's condition, water temperature, and soak times to determine if 
the animal's death was related to the fishery interaction.
    Comment 10: Turtle Island Restoration Network also commented on 
Exempted Fishing Permits (EFP) that are under review for the West Coast 
longline fishery and recommends 100% observer coverage for any EFPs 
issued, as required by the AD.
    Response: Exempted Fishing Permits are outside the scope of the AD. 
NMFS would like to clarify that 100% observer coverage is not required 
by the AD. The AD does not prescribe a specific level of observer 
coverage for any fishery; rather it identifies fisheries about which 
NMFS intends to collect additional information. As described above, the 
sampling design of any observer program for fisheries identified 
through the AD process is determined on a fishery by fishery basis.

Comments With Recommendations for Fisheries To Include on the 2018 AD

    Comment 11: One commenter proposes including the Hawaii deep-set 
longline fishery to the AD because the fishery is categorized as a 
Category I Fishery, longlines are associated with bycatch, and olive 
ridley sea turtles are present where the fishery operates. The 
commenter also indicates that a Category I classification under the LOF 
is justification alone for inclusion on the AD.
    Response: NMFS acknowledges that there are other fisheries, in 
addition to those listed on the AD, that may be a concern for sea 
turtles. The AD is not meant to be a comprehensive list of fisheries 
that interact with sea turtles or fisheries that require monitoring, 
but rather a focused list where NMFS can increase or adjust observer 
coverage with the goal of collecting information on sea turtle 
interactions with a fishery. As noted previously, NMFS has authority to 
observe federally-permitted vessels under the MSA and collect sea 
turtle bycatch information. The Hawaii deep-set longline fishery 
already carries observers under MSA authority, which is currently 
sufficient to collect information on sea turtles.
    NMFS would also like to clarify that the AD is not directly related 
to the LOF classifications, and a specific classification of a fishery 
on the LOF does not alone justify inclusion on the AD. Please see the 
response to Comments 3 and 7 for additional detail.
    Comment 12: Turtle Island Restoration Network requested that the 
Gulf of Mexico ``recreational fishery'' including the Gulf of Mexico 
portion of the Category III Atlantic/Gulf of Mexico/Caribbean charter 
boat fishery be included in the 2018 AD to more accurately determine 
the level of interactions with sea turtles and to inform possible 
management decisions for the conservation of the impacted species.
    Response: As mentioned above, NMFS used the most recent version of 
the annually published LOF as the comprehensive list of commercial 
fisheries for consideration. NMFS considered the Atlantic Ocean, Gulf 
of Mexico, Caribbean commercial passenger fishing vessel fishery, as 
specified on the LOF, but determined the fishery does not currently 
meet the criteria for inclusion on the 2018 AD. NMFS has also 
considered inclusion of several recreational fisheries, but has not yet 
included any recreational fisheries on the AD. NMFS has utilized other 
mechanisms, outside of observer programs to collect data on 
recreational interactions.

Fisheries Included on the 2018 Annual Determination

    NMFS includes two 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 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 federally permitted 
vessels under the MSA and collect sea turtle bycatch information.

Gillnet Fisheries

    Sea turtles are vulnerable to entanglement and drowning in 
gillnets. 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 includes 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-

[[Page 21743]]

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 in 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, Delaware 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 includes 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 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 includes 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. 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 state-managed, with planning efforts coordinated 
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 has 
never been included on the AD. Sea turtle strandings in the northern 
Gulf of Mexico have been documented during times and in areas near 
where the menhaden fishery operates. The fishery was observed in the 
early-1990s by Louisiana State University. In 2011, NMFS conducted 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 includes 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.

  Table 1--State and Federal Commercial Fisheries Included on the 2018
                          Annual Determination
------------------------------------------------------------------------
                                                          Years eligible
                         Fishery                             to 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 during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was 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 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) 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 final 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 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 final rule would not affect species listed as threatened or 
endangered under the ESA or their

[[Page 21744]]

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. 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 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.
    This final 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: May 7, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2018-09957 Filed 5-9-18; 8:45 am]
 BILLING CODE 3510-22-P