[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 [www.gpo.gov]
[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 https://www.fisheries.noaa.gov/national/bycatch/sea-turtle-observer-requirement-annual-determination.

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.

[[Page 4794]]

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: 
https://www.fisheries.noaa.gov/national/marine-life-distress/sea-turtles-and-recreational-fishing.

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: https://www.fisheries.noaa.gov/topic/fishery-observers.

  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]
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