Rule2023-01427
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
January 25, 2023
Effective
February 24, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Marine Fisheries Service (NMFS) hereby publishes the final 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 in which participants will be required to take fisheries observers upon NMFS' request. The purpose of observing identified fisheries is to learn more about sea turtle bycatch 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 required to carry observers upon NMFS' request, and will remain on the AD for a 5-year period until December 31, 2027.
Full Text
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<title>Federal Register, Volume 88 Issue 16 (Wednesday, January 25, 2023)</title>
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[Federal Register Volume 88, Number 16 (Wednesday, January 25, 2023)]
[Rules and Regulations]
[Pages 4792-4795]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01427]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 230119-0018]
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: Final determination.
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SUMMARY: The National Marine Fisheries Service (NMFS) hereby publishes
the final 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 in which participants will be required to take fisheries
observers upon NMFS' request. The purpose of observing identified
fisheries is to learn more about sea turtle bycatch 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 required to carry observers upon NMFS'
request, and will remain on the AD for a 5-year period until December
31, 2027.
DATES: This final determination is effective February 24, 2023.
ADDRESSES: 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.
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. 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 penalties and
criminal
[[Page 4793]]
penalties for anyone who knowingly 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 observe fisheries, 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 sea turtle bycatch, and to evaluate whether
existing measures are minimizing or preventing bycatch.
Sea Turtle Distribution
NMFS uses information on sea turtle distribution and habitat use to
inform the development of the final AD. A summary of this information
was included in the proposed AD (87 FR 54948; September 8, 2022) and
was considered in developing the final 2023 AD.
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 provided an
opportunity for public comment on the proposed determination (87 FR
54948; September 8, 2022). 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 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 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. 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 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 AD. The AD
is not an exhaustive or comprehensive list of all fisheries with
documented or suspected sea turtle bycatch. NMFS will not include a
fishery on the 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.
NMFS publishes the final determination 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 a subsequent 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>.
Comments and Responses
NMFS received 14 comment letters on the proposed AD (87 FR 54948;
September 8, 2022). All commenters were members of the public. All
commenters expressed general support of the regulation or fishery
observer programs. All substantive comments are addressed below.
Comments on issues outside the scope of the AD were noted but are not
responded to in this final determination.
General Comments
Comment 1: Twelve commenters expressed general support for the
regulation.
Response: NMFS agrees and has included two fisheries on the 2023 AD
to allow for increased data collection on sea turtle bycatch to
accomplish the purposes of the regulation.
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Recommendations for Fisheries To Include on the 2023 AD
Comment 2: One commenter was supportive of the regulation but
recommends NMFS include a fishery in the Pacific Ocean on the 2023 AD.
The commenter noted that adding a Pacific fishery will allow NMFS to
cover fisheries in the Atlantic, Pacific, and Gulf of Mexico.
Response: NMFS acknowledges that there are other fisheries, in
addition to those included on the 2023 AD, that have the potential to
incidentally take sea turtles. The 2023 AD is not meant to be a
comprehensive list of fisheries that have sea turtle bycatch or
fisheries that require monitoring, but rather a focused list, based on
specific inclusion criteria, one of which is based on available funding
(see Purpose of the Sea Turtle Observer Requirement section). NMFS is
not including a Pacific fishery on the 2023 AD because none of the
fisheries in the Pacific met all of the inclusion criteria.
Observer Coverage
Comment 3: A commenter was supportive of the regulation but raised
concern over what NMFS' standards were for distributing and placing
observers among fisheries on the AD. The proposed rule stated ``That no
individual person or vessel, or group of persons or vessels, be subject
to inappropriate, excessive observer coverage.'' The commenter
questioned what would make observer coverage inappropriate or
excessive.
Response: When using the AD authority to observe a fishery, NMFS
will work within the current observer programs and follow the observer
program's standards and observer placement design requirements.
Pursuant to 50 CFR 222.404, NMFS will follow the standards for
distributing and placing observers: (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. For example, Northeast Fisheries
Observer Program (NEFOP) coverage is determined by an annual discard
analysis and sea day allocation report required by the Standardized
Bycatch Reporting Methodology (SBRM) Amendment. Trips are assigned
based on effort. As there is no pre-trip notification requirement for
these fleets, guidance is provided to the contract holder which
estimates coverage based on that year's sea day schedule and prior
years effort. There are regulations in the SBRM amendment and the
contract that prevents individual vessels from being covered in a
biased manner.
Recreational Fisheries
Comment 4: A commenter stated that the AD does not include
information on how an observer program would be implemented for
recreational fisheries from public piers. They noted that several
fishing piers in the Gulf of Mexico have a high rate of sea turtle
bycatch. The Loggerhead Marine Life Center in Florida has a responsible
pier initiative program. The commenter stated that this data can
provide information on sea turtle bycatch off piers and NMFS can use
that information to use the AD for recreational fisheries occurring on
piers.
Response: NMFS acknowledges that there are other fisheries
(commercial and recreational), in addition to those included on the
2023 AD, that have the potential to take sea turtles. The 2023 AD is
not meant to be a comprehensive list of fisheries that have sea turtle
bycatch or fisheries that require monitoring, but rather a focused
list, based on specific inclusion criteria, one of which is based on
available funding (see Purpose of the Sea Turtle Observer Requirement
section). NMFS is not including shore-based recreational fisheries on
the 2023 AD because none of the fisheries met all of the inclusion
criteria. NMFS and our partners (including those in the Sea Turtle
Stranding and Salvage Network) are trying to learn more about how sea
turtles interact with recreational fishing gear--see additional
information on our Sea Turtle and Recreational Fishing website here:
<a href="https://www.fisheries.noaa.gov/national/marine-life-distress/sea-turtles-and-recreational-fishing">https://www.fisheries.noaa.gov/national/marine-life-distress/sea-turtles-and-recreational-fishing</a>.
Fisheries Included on the 2023 Annual Determination
NMFS includes two fisheries in the Atlantic Ocean/Gulf of Mexico on
the 2023 AD. The two fisheries, 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 includes these fisheries 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.
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.
A summary of information about the mid-Atlantic gillnet and Gulf of
Mexico menhaden purse seine fisheries was included in the proposed AD
(87 FR 54948; September 8, 2022) and was considered in developing the
final 2023 AD.
Implementation of Observer Coverage in a Fishery Listed on the 2023 AD
As part of the 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. After
publication of the final determination, there will be a 30-day delay in
the date of effectiveness for implementing observer coverage, 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. 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;
[[Page 4795]]
(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 may be prohibited from fishing without observer coverage under
50 CFR 600.746(i). 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 available 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 Included on the 2023
Annual Determination
------------------------------------------------------------------------
Years eligible
Fishery to carry
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) during the proposed rule stage that this action
would not have a significant economic impact on a substantial number of
small entities. No comments were received on that certification, and no
new information has been discovered to change that conclusion.
Accordingly, no regulatory flexibility analysis is required, and none
has been prepared.
This regulation contains existing collection-of-information (COI)
requirements subject to the Paperwork Reduction Act and would not
impose additional or new COI requirements. 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 regulation 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 determined that publishing the AD qualifies to
be categorically excluded from further National Environmental Policy
Act (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.
This regulation 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 regulation 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 regulation 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 regulation 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: January 19, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-01427 Filed 1-24-23; 8:45 am]
BILLING CODE 3510-22-P
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