2023 Annual Determination To Implement the Sea Turtle Observer Requirement, 54948-54953 [2022-19411]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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

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

 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