Proposed Rule2022-19411
2023 Annual Determination To Implement the Sea Turtle Observer Requirement
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 8, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Marine Fisheries Service (NMFS) publishes this proposed Annual Determination (AD) for 2023, 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 implement the prohibition against sea turtle takes. Fisheries identified on the 2023 AD (see Table 1) will be eligible to carry observers upon NMFS' request as of January 1, 2023, and will remain on the AD for a five-year period until December 31, 2027.
Full Text
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<title>Federal Register, Volume 87 Issue 173 (Thursday, September 8, 2022)</title>
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[Federal Register Volume 87, Number 173 (Thursday, September 8, 2022)]
[Proposed Rules]
[Pages 54948-54953]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19411]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 220902-0182]
RIN 0648-BL37
2023 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, request for comment.
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SUMMARY: The National Marine Fisheries Service (NMFS) publishes this
proposed Annual Determination (AD) for 2023, 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 implement the
prohibition against sea turtle takes. Fisheries identified on the 2023
AD (see Table 1) will be eligible to carry observers upon NMFS' request
as of January 1, 2023, and will remain on the AD for a five-year period
until December 31, 2027.
DATES: Comments must be received by October 11, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2022-0062, by either of the following methods:
Electronic Submission: Submit all electronic public comments via
the Federal e-Rulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
enter NOAA-NMFS-2022-0062 in the Search box. Click on the ``Comment''
icon, complete the required fields, and 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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: Jaclyn Taylor, 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:
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.
[[Page 54949]]
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
(DPS)), leatherback (Dermochelys coriacea), green (Chelonia mydas;
Central West Pacific and Central South Pacific DPSs) and hawksbill
(Eretmochelys imbricata) sea turtles are listed as endangered.
Loggerhead (Northwest Atlantic distinct population segment), green
(North Atlantic, South Atlantic, Central North Pacific, and East
Pacific DPSs), 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. Pacific waters. While some sea
turtle populations have shown signs of recovery, many populations
continue to decline.
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 ESA. 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.
For most fisheries, the most effective way for NMFS to learn more
about bycatch 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 these regulations may
result in civil or criminal penalties under the ESA.
NMFS will pay the direct costs for vessels to carry the required
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 appropriate observer coverage and sampling
protocols to investigate whether, how, when, where, and under what
conditions sea turtle bycatch is occurring, and to evaluate whether
existing measures are minimizing or preventing bycatch.
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 generally inhabit inshore and nearshore waters from
Texas to Massachusetts, the U.S. Virgin Islands, and Puerto Rico.
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 and occasional nesting on the east coast
from Florida to North Carolina.
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 concentrations of leatherbacks include areas north of
Cape Blanco, Oregon to Cape Flattery, Washington offshore from the
Columbia River plume.
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, the Seal
[[Page 54950]]
Beach National Wildlife Refuge, 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 anomalously 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, although they are usually cold-stunned (i.e., out of their
normal habitat). 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,
the Commonwealth of the Northern Mariana Islands, and the Pacific
Island Remote Areas (PRIA; comprised of Baker, Howland, and Jarvis
Islands, Johnston Atoll, Kingman Reef, and Palmyra Atoll). Green and
hawksbill turtles are most common in these nearshore U.S. EEZ waters
while leatherbacks, loggerheads, and olive ridleys occur in offshore
pelagic waters.
Process for Developing the Annual Determination (AD)
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
determination is informed by 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. Specifically, fisheries are identified
for inclusion on the AD based on the extent to which:
(1) The fishery operates in the same waters and at the same time as
when 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
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. However, in preparing the AD, we do
not rely on the three-part MMPA LOF classification scheme. In addition,
unlike the LOF, the AD may include recreational fisheries likely to
interact with sea turtles based on the best available information.
NMFS consults with appropriate state and Federal fisheries
officials to identify which fisheries, both commercial and
recreational, to consider. NMFS carefully considers all recommendations
and information available for developing the proposed AD. The proposed
AD is not an exhaustive or comprehensive list of all fisheries with
documented or suspected sea turtle bycatch; rather it is intended as a
mechanism to fill critical data gaps, where observer data is not
currently sufficient for turtle data collection needs. NMFS will not
include a fishery on the proposed AD if that fishery does not meet the
criteria for inclusion on the AD (50 CFR 222.402(a)).
For many fisheries, NMFS may already be addressing bycatch 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 2023 AD may still be observed by NMFS
fisheries observers under different authorities (e.g., MMPA, Magnuson-
Stevens Fishery Conservation and Management Act (MSA)) than the ESA, if
applicable.
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 or
territory 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 another proposed AD,
prior to the end of the fifth year.
On the 2018 AD, NMFS identified two fisheries and required them to
carry observers, if requested, through December 31, 2022. The 2020 AD
identified four additional fisheries and required them to carry
observers, if requested, through September 29, 2025. The fisheries
included on the current AD are available at <a href="https://www.fisheries.noaa.gov/national/bycatch/sea-turtle-observer-requirement-annual-determination">https://www.fisheries.noaa.gov/national/bycatch/sea-turtle-observer-requirement-annual-determination</a>.
Fisheries Proposed for Inclusion on the 2023 Annual Determination
NMFS proposes to include two fisheries in the Atlantic Ocean/Gulf
of Mexico on the 2023 AD. The two fisheries, described below and listed
in Table 1, are the mid-Atlantic gillnet and Gulf of Mexico menhaden
purse seine fisheries. These two fisheries were previously listed on
the 2018 AD for a five-year period ending December 31, 2022.
NMFS used the 2022 MMPA LOF (87 FR 23122; April 19, 2022) 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 in 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. The AD
authority will work within the current observer programs, and allow
NMFS the flexibility to further consider sea turtle data collection
needs when allocating observer resources.
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. Sea turtle
entanglement in gillnets can also result in severe constriction wounds
and/or abrasions. Large mesh gillnets (e.g., 7 inch stretched mesh or
greater) have been documented as particularly effective at capturing
sea turtles.
[[Page 54951]]
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
2023 AD due to known sea turtle bycatch and the need to collect more
data in state gillnet fisheries. This fishery has an estimated 4,020
vessels/persons and 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 inches (6.4-
30.5 cm), and string lengths from 150-8,400 feet (46-2,560 m). 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.
Fishing occurs from right off the beach (6 ft. (1.8 m)) or in
nearshore coastal waters to offshore waters (250 ft. (76 m)). This
fishery operates year-round west of a line drawn at 72[deg]30' W
longitude south to 36[deg]33.03' N latitude and east to the eastern
edge of the EEZ and north of the North Carolina/South Carolina border.
The fishery does not include the 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 New York Bays) inshore gillnet fisheries).
The mid-Atlantic gillnet fishery is managed by several Federal
Fishery Management Plans (FMPs) and Interstate FMPs managed by the
Atlantic States Marine Fisheries Commission. These fisheries are
primarily managed by total allowable catch, individual trip limits
(quotas), effort caps (limited number of days at sea per vessel), time
and area closures, and gear restrictions and modifications.
The mid-Atlantic gillnet fishery is classified as Category I
fishery 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 2018 AD and was eligible for
observer coverage through 2022. The Chesapeake Bay inshore gillnet
fishery and Long Island inshore gillnet fishery were listed on the 2020
AD and are eligible for observer coverage if requested by NMFS through
September 29, 2025. By including the mid-Atlantic gillnet fishery on
the 2023 AD, NMFS may authorize observer coverage more completely along
the mid-Atlantic region.
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, particularly the segment that occurs
in the nearshore state coastal waters of the mid-Atlantic and Delaware
Bay. There were 3,006 observed trips in the mid-Atlantic gillnet
fishery, excluding Chesapeake Bay and Long Island Sound, from 2017
through 2021. Other gillnet fisheries (i.e., Chesapeake Bay and Long
Island inshore gillnet fisheries) in nearshore waters of the mid-
Atlantic are currently listed on the AD through 2025. The re-listing of
the mid-Atlantic gillnet fishery on the 2023 AD will allow NMFS to take
a more holistic approach to evaluating sea turtle bycatch in gillnet
fisheries in state waters from New York through Virginia.
Seine Fisheries
Seine fisheries may use mesh similar to that used in gillnets, but
the gear is prosecuted differently from traditional gillnets. Purse
seines have the potential to entangle and drown sea turtles.
Gulf of Mexico Menhaden Purse Seine Fishery
NMFS proposes to include the Gulf of Mexico menhaden purse seine
fishery on the 2023 AD. The Gulf of Mexico menhaden purse seine fishery
has an estimated 40-42 vessels/persons, and targets menhaden and thread
herring. This 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
FMP.
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 Gulf of Mexico
menhaden purse seine 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 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.
A new collaborative project with NMFS and the Gulf of Mexico
menhaden purse seine industry to develop effective observer methods to
collect information about sea turtle bycatch in the Gulf of Mexico
menhaden purse seine fishery began in 2020. This project is funded
through the Deepwater Horizon Oil Spill Open Ocean Trustee
Implementation Group to restore resources injured in the Gulf of Mexico
by the 2010 Deepwater Horizon oil spill. A one-week proof-of-concept
testing was conducted in October 2021, and a full-scale pilot observer
project began in 2022.
The Gulf of Mexico menhaden purse seine fishery is classified as a
Category II fishery on the MMPA LOF. This fishery was listed on the
2018 AD and was eligible for observer coverage through 2022. The re-
listing of this fishery on 2023 AD will continue the efforts of the
pilot observer program.
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 2023 AD
As part of the proposed 2023 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 support observer activities. The final rule
implementing this proposed 2023 AD will include a 30-day delay in the
date of effectiveness for implementing observer coverage, 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
upon publication of the final rule.
The design of any observer program for fisheries identified through
the AD
[[Page 54952]]
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. Pursuant
to 50 CFR 222.404, 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 that the vessel is not required to take an observer under 50
CFR 222.404(b). 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 the Observer Health
and Safety regulations (50 CFR part 600).
Additional information on observer programs in commercial fisheries
is located on the NMFS National Observer Program's website: <a href="https://www.fisheries.noaa.gov/topic/fishery-observers">https://www.fisheries.noaa.gov/topic/fishery-observers</a>.
Table 1--State and Federal Commercial Fisheries Proposed for Inclusion
on the 2023 Annual Determination
------------------------------------------------------------------------
Years eligible to carry
Fishery observers
------------------------------------------------------------------------
Purse Seine Fisheries:
Gulf of Mexico menhaden purse seine........ 2023-2027
Gillnet Fisheries:
Mid-Atlantic gillnet....................... 2023-2027
------------------------------------------------------------------------
Classification
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
Any entity with combined annual fishery landing receipts less than $11
million is considered a small entity for purposes of the Regulatory
Flexibility Act (50 CFR 200.2). Under this $11 million standard, all
entities subject to this action are considered small entities.
NMFS has estimated that approximately 4,062 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 during times and areas where fishing
effort overlaps with sea turtle distribution. Due to the
unpredictability of fishing effort, NMFS cannot pre-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 from this requirement vessels that are too small to
accommodate an observer. Because this proposed rule would not have a
significant economic impact on a substantial number of small entities,
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) 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.
In accordance with the Companion Manual for NOAA Administrative
Order (NAO) 216-6A, NMFS preliminarily determined that publishing this
proposed AD qualifies to be categorically excluded from further NEPA
review, consistent with categories of activities identified in
Categorical Exclusion G7 (``Preparation of policy directives, rules,
regulations, and guidelines of an administrative, financial, legal,
technical, or procedural nature, or for which the environmental effects
are too broad, speculative or conjectural to lend themselves to
meaningful analysis and will be subject later to the NEPA process,
either collectively or on a case-by-case basis'') of the Companion
Manual, and we have not identified any extraordinary circumstances
listed in Chapter 4 of the Companion Manual for NAO 216-6A that would
preclude application of this categorical exclusion. If NMFS takes a
management action for a specific fishery, for example, requiring
fishing gear modifications, NMFS would first prepare any environmental
document specific to that action that is required under NEPA.
[[Page 54953]]
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 information collected from observer programs may have a positive
impact on sea turtles by improving knowledge of sea turtles and the
fisheries interacting with sea turtles.
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: September 2, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2022-19411 Filed 9-7-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on September 8, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.