48674 Federal Register / Vol. 82, No. 201 / Thursday, October 19, 2017 / Proposed Rules 

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 EastWest 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 


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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 MidAtlantic 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. Hardshelled 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 Nin ̃ o events (or warm water 

conditions similar to an El Nin ̃ o). The 

majority of fishery interactions with 

loggerheads during El Nin ̃ 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 turtlefishery 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 


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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 MidAtlantic 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°30′ W. long. south to 

36°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 


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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 early1990s 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

Fishery Years eligible 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 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 


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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] 

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