2020 Annual Determination To Implement the Sea Turtle Observer Requirement, 3880-3885 [2020-01079]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 15 (Thursday, January 23, 2020)]
[Proposed Rules]
[Pages 3880-3885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01079]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 200114-0016]
RIN 0648-BI91


2020 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 2020, 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 2020 
AD (see Table 1) will remain on the AD for a five-year period from the 
effective date of the final rule and will be required to carry 
observers upon NMFS' request.

DATES: Comments must be received by February 24, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0082, by either of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal:
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0082;
    2. Click the ``Comment Now!'' icon, complete the required fields;
    3. 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, 562-980-3209; Irene Kelly, Pacific Islands Region, 808-
725-5141. Individuals who use a telecommunications device for the 
hearing impaired may call the Federal Information Relay Service at 1-
800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through 
Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION: 

Purpose of the Sea Turtle Observer Requirement

    Under the ESA, 16 U.S.C. 1531 et seq., NMFS has the responsibility 
to implement programs to conserve marine life listed as endangered or 
threatened. All sea turtles found in U.S. waters are listed as either 
endangered or threatened under the ESA. Kemp's ridley (Lepidochelys 
kempii), loggerhead (Caretta caretta; North Pacific distinct population 
segment), leatherback (Dermochelys coriacea), and hawksbill 
(Eretmochelys imbricata) sea turtles are listed as endangered. 
Loggerhead (Caretta caretta; Northwest Atlantic distinct population 
segment), green (Chelonia mydas; North Atlantic, South Atlantic, and 
East Pacific distinct population segments), and olive ridley 
(Lepidochelys olivacea) sea turtles are listed as threatened, except 
for breeding colony populations of olive ridleys on the Pacific coast 
of Mexico, which are listed as endangered. Due to the inability to 
distinguish between populations of olive ridley turtles away from the 
nesting beach, NMFS considers these turtles endangered wherever they 
occur in U.S. waters. While some sea turtle populations have shown 
signs of recovery, many populations continue to decline.
    Incidental take, or bycatch, in fishing gear is the primary 
anthropogenic source of sea turtle injury and mortality in U.S. waters. 
Section 9 of the ESA prohibits the take (including harassing, harming, 
pursuing, hunting, shooting, wounding, killing, trapping, capturing, or 
collecting or attempting to engage in any such conduct), including 
incidental take, of endangered sea turtles. Pursuant to section 4(d) of 
the ESA, NMFS has issued regulations extending the prohibition of take, 
with exceptions, to threatened sea turtles (50 CFR 223.205 and 
223.206). Section 11 of the ESA provides for civil and criminal 
penalties for anyone who violates the Act or a regulation issued to 
implement the Act. NMFS may grant exceptions to the take prohibitions 
with an incidental take statement or an incidental take permit issued 
pursuant to ESA section 7 or 10, respectively. To do so, NMFS must 
determine the activity that will result in incidental take is not 
likely to jeopardize the continued existence of the affected listed 
species. For some Federal fisheries and most state fisheries, NMFS has 
not granted an exception for incidental takes of sea turtles primarily 
because we lack information about fishery-sea turtle interactions.
    The most effective way for NMFS to learn more about sea turtle-
fishery interactions in order to implement the take prohibitions and 
prevent or minimize take is to place observers aboard fishing vessels. 
In 2007, NMFS issued a regulation (50 CFR 222.402) establishing 
procedures to annually identify, pursuant to specified criteria and 
after notice and opportunity for comment, those fisheries in which the 
agency intends to place observers (72 FR 43176; August 3, 2007). This 
regulation specifies that NMFS may place observers on U.S. fishing 
vessels, commercial or recreational, operating in U.S. territorial 
waters, the U.S. exclusive economic zone (EEZ), or on the high seas or 
on vessels that are otherwise subject to the jurisdiction of the United 
States. Failure to comply with the requirements under this regulation 
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 
protocol to investigate whether, how, when, where, and under what 
conditions incidental takes are occurring; to evaluate whether existing 
measures are minimizing or preventing takes; and to implement ESA take 
prohibitions and conserve turtles.

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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.
    Loggerheads occur throughout the Atlantic and Gulf of Mexico, 
ranging from inshore shallow water habitats to deeper oceanic waters. 
The largest nesting assemblage of loggerheads in the world is in the 
southeastern United States from Florida to North Carolina.
    Adult leatherbacks are capable of tolerating a wide range of water 
temperatures and have been sighted along the entire continental coast 
of the United States as far north as the Gulf of Maine and south to 
Puerto Rico, the U.S. Virgin Islands, and into the Gulf of Mexico. The 
southeast coast of Florida represents a significant nesting area for 
leatherbacks in the western North Atlantic.

U.S. Pacific Ocean

    Leatherback sea turtles are consistently present off the U.S. west 
coast, usually north of Point Conception, California. They migrate to 
central and northern California from their natal beaches in the Western 
Pacific to feed on jellyfish during summer and fall. Leatherback 
turtles usually appear in Monterey Bay and California coastal waters 
during August and September and move offshore in October and November. 
Other observed areas of summer leatherback concentration include 
northern California and the waters off Washington through northern 
Oregon, offshore from the Columbia River plume.
    Green, loggerhead, and olive ridley sea turtles are rarely observed 
in the U.S. west coast EEZ, but records show that all species have 
stranded in California and the Pacific Northwest. Two small resident 
populations of green turtles have been identified in the southern 
California Bight, associated historically with the warm water outflows 
from power plants in San Diego Bay and the San Gabriel River in Long 
Beach, California.
    In the eastern Pacific, loggerheads have been reported as far north 
as Alaska and as far south as Chile. Occasionally there are sightings 
reported from the coasts of Washington and Oregon, but most records are 
of juveniles off the coast of California. Based upon observer records 
and aerial observations, loggerheads travel into the southern 
California Bight during El Ni[ntilde]o events (or 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. Olive ridleys are believed to use warm water currents along the 
west coast for foraging. The specific distribution of olive ridleys 
along the U.S. west coast is unknown at this time.
    Sea turtles occur throughout the Pacific Islands Region including 
the State of Hawaii and the U.S. territories of Guam, American Samoa, 
and the Commonwealth of the Northern Mariana Islands (CNMI). Green and 
hawksbill turtles are most common in nearshore waters while 
leatherbacks, loggerheads, and olive ridleys occur in offshore pelagic 
waters.

Process for Developing 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 
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 consulted with appropriate state and Federal fisheries 
officials to identify which fisheries, both commercial and 
recreational, to consider. NMFS carefully considered all 
recommendations and information available for developing the proposed 
AD. The proposed AD is not an exhaustive or comprehensive list of all 
fisheries with documented or suspected takes of sea turtles; 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

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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 incidental take 
through another mechanism (e.g., rulemaking to implement modifications 
to fishing gear and/or practices), may be observing the fishery under a 
separate statutory authority, or will consider including them in future 
ADs based on the four previously noted criteria (50 CFR 222.402(a)). 
The fisheries not included on the 2020 AD may still be observed by NOAA 
fisheries observers under different authorities (e.g., MMPA, 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 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 2015 AD, NMFS identified 14 fisheries, 11 of which were 
previously listed and three of which were newly listed. The 14 
fisheries were required to carry observers for a period of 5 years, 
through December 31, 2019. The 2018 AD identified two additional 
fisheries and required them to carry observers through December 31, 
2022. 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 2020 Annual Determination

    NMFS is proposing to include four fisheries in the Atlantic Ocean/
Gulf of Mexico on the 2020 AD. The four fisheries, described below and 
listed in Table 1, are the Southeastern U.S. Atlantic and Gulf of 
Mexico shrimp trawl, Gulf of Mexico mixed species fish trawl, 
Chesapeake Bay inshore gillnet, and Long Island inshore gillnet. These 
four fisheries were listed previously on the 2015 AD for a five-year 
period ending December 31, 2019. Two other fisheries (Mid-Atlantic 
gillnet and Gulf of Mexico menhaden purse seine), which were listed in 
the 2018 AD for a five-year period ending December 31, 2022, will 
remain on the AD.
    NMFS used the 2018 MMPA LOF (83 FR 5349; February 7, 2018) 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. Under 
the various authorities, NOAA's Northeast and Southeast Fisheries 
Observer Programs currently observe all four fisheries proposed for 
inclusion on the 2020 AD. 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.

Trawl Fisheries

    Interactions with trawl fisheries are of particular concern for sea 
turtles because forced submergence (i.e., drowning) in trawl nets or 
any type of restrictive gear can lead to lack of oxygen and subsequent 
death by drowning. Metabolic changes that can impair a sea turtle's 
ability to function can occur within minutes of forced submergence 
(Lutcavage et al., 1997).
    Turtle excluder devices (TEDs) are metal grids that fit into the 
cod end of the trawl net, with a top or bottom escape opening covered 
by a flap. The TED is intended to allow sea turtles to escape the net, 
while retaining the target catch, reducing incidences of sea turtle 
forced submergence. Currently, only otter trawl fisheries capable of 
catching shrimp and operating south of Cape Charles, Virginia, and in 
the Gulf of Mexico, as well as trawl fisheries targeting summer 
flounder south of Cape Charles, Virginia, in the summer flounder 
fishery-sea turtle protection area (50 CFR 222.102) are required to use 
TEDs.

Southeastern U.S. Atlantic, Gulf of Mexico Shrimp Trawl Fishery

    NMFS proposes including the Southeastern U.S. Atlantic, Gulf of 
Mexico shrimp trawl fishery on the 2020 AD. This fishery has an 
estimated 4950 vessels/persons and targets shrimp using various types 
of trawls. Skimmer trawls are used primarily in inshore/inland shallow 
waters (typically less than 20 ft. (6.1 m)) to target shrimp. The 
skimmer trawl has a rigid ``L''-shaped or triangular metal frame with 
the inboard portion of the frame attached to the vessel and the 
outboard portion attached to a skid that runs along the seabed.
    Skimmer trawl use increased in response to TED requirements for 
shrimp bottom otter trawls. Skimmer trawls currently have no TED 
requirement but are subject to tow time limits of 55 minutes from April 
1 to October 31 and 75 minutes from November 1 to March 31. Skimmer 
trawls are used in North Carolina, Florida (Gulf Coast), Alabama, 
Mississippi, and Louisiana. There are documented takes of sea turtles 
in skimmer trawls in North Carolina and the Gulf of Mexico. All Gulf of 
Mexico states, except Texas, include skimmer trawls as an allowable 
gear. In recent years, the skimmer trawl has become a major gear in the 
inshore shrimp fishery in the Northern Gulf and also has some use in 
inshore North Carolina. Louisiana hosts the vast majority of skimmer 
boats, with 3,651 licenses issued to skimmer trawlers in 2015. In 2015, 
Mississippi had approximately 150 active licensed skimmer trawlers and 
North Carolina had 75 licensed skimmer vessels in 2014 (NMFS 2016).
    Skimmer trawl effort overlaps with sea turtle distribution, and, as 
noted above, sea turtle takes by skimmer trawls have been reported. 
Although skimmer trawls are subject to tow times, the magnitude of sea 
turtle takes in this fishery are not well understood. In response to 
high numbers of sea turtle strandings since 2010, fishery observer 
effort shifted from otter trawls to the inshore skimmer trawl fishery 
in the northern Gulf of Mexico during 2012 through 2015. A total of 
2,699.23 hours were observed during that period. A total of 41 sea 
turtles were observed captured; we excluded 2 sea turtles, however, as 
their condition conclusively indicated they were previously dead before 
being observed in the skimmer trawl. NMFS has had limited observer 
coverage on skimmer trawl vessels in subsequent years.
    Continued observer coverage to understand the scope and impact of 
sea turtle takes in this fishery is needed to implement the 
prohibitions of take, inform management decisions on what actions may 
be necessary to minimize and prevent sea turtle takes, and further sea 
turtle conservation and recovery.
    The Southeastern U.S. Atlantic/Gulf of Mexico shrimp trawl fishery 
is classified as Category II on the MMPA LOF, and mandatory observer 
coverage in Federal waters began in 2007 under the MSA. The fishery is 
currently

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observed at approximately 1-2 percent of total fishing effort. The 
fishery was previously included in the 2010 AD and the 2015 AD, which 
allowed for observer coverage to be shifted to skimmer trawls to 
specifically investigate bycatch of sea turtles. NMFS proposes to again 
include this fishery on the AD pursuant to the criteria identified at 
50 CFR 222.402(a)(1), because sea turtles are known to occur in the 
same areas where the fishery operates and takes have been previously 
documented in this fishery.

Gulf of Mexico Mixed Species Fish Trawl Fishery

    NMFS proposes including the Gulf of Mexico mixed species trawl 
fishery on the 2020 AD. This fishery has an estimated 20 vessels/
persons and targets fish using various types of trawl gear, including 
bottom otter trawl gear targeting sheepshead. The Gulf of Mexico mixed 
species trawl fishery operates in state waters and is classified as 
Category III on the MMPA LOF. NMFS has not previously required vessels 
operating in this fishery to carry an observer under MMPA authority. 
This fishery was included in the 2015 AD but was not observed due to 
lack of resources. NMFS proposes to include this fishery in the 2020 AD 
pursuant to the criteria identified at 50 CFR 222.402(a)(1) for 
including a fishery in the AD. This is because sea turtles are known to 
occur in the same areas where the fishery operates, takes have been 
documented in similar gear types, mainly the shrimp trawl fishery, and 
NMFS intends to monitor this fishery.

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 (in) stretched mesh 
or greater) have been documented as particularly effective at capturing 
sea turtles. However, sea turtles are prone to and have been commonly 
documented entangled in smaller mesh gillnets as well.

Chesapeake Bay Inshore Gillnet Fishery

    NMFS proposes including the Chesapeake Bay inshore gillnet fishery 
on the 2020 AD. This fishery has an estimated 248 vessels/persons and 
targets menhaden and croaker using gillnet gear with mesh sizes ranging 
from 2.75-5 in (06.9-12.7 cm), depending on the target species. The 
fishery operates between the Chesapeake Bay Bridge-Tunnel and the 
mainland and is managed by the Atlantic States Marine Fisheries 
Commission under the Interstate Fishery Management Plans for Atlantic 
menhaden and Atlantic croaker. Gillnets in Chesapeake Bay also target 
striped bass and spot.
    This fishery is classified as Category II on the MMPA LOF and was 
included in the 2010 AD and the 2015 AD. To date, observer coverage in 
gillnet fisheries has primarily focused on federally-managed fisheries. 
There has been limited observer coverage in this fishery since 2010, 
with between 6 and 124 trips observed annually. Most recently, there 
were 14 trips observed in 2014, 39 in 2015, 49 in 2016, 124 in 2017, 
and 71 in 2018. This sample size is small, in terms of timing and areas 
that overlap with sea turtles, and additional information is needed to 
better understand sea turtle interactions with this fishery. In 
addition, Virginia continues to have the highest level of strandings 
for hard-shelled sea turtles in the Greater Atlantic Region. There is a 
need to better understand the gear fished in state waters and the 
extent to which this gear interacts with sea turtles. Given the risk of 
interaction and the limited data currently available on interactions, 
NMFS proposes to again include this fishery pursuant to the criteria 
identified at 50 CFR 222.402(a)(1) for listing a fishery on the AD. 
This is because sea turtles are known to occur in the same areas where 
the fishery operates, takes have been previously documented in similar 
gear, the fishery operates during a period of high sea turtle 
strandings, and NMFS intends to monitor this fishery.

Long Island Inshore Gillnet Fishery

    NMFS proposes including the Long Island Sound inshore gillnet 
fishery on the 2020 AD. This fishery includes all gillnet fisheries 
operating west of a line from the north fork of the eastern end of Long 
Island, New York (Orient Point to Plum Island to Fishers Island) to 
Watch Hill, Rhode Island (59 FR 43703, August 25, 1994). The estimated 
vessels/persons operating in the fishery is unknown. Target species 
include bluefish, striped bass, weakfish, and summer flounder.
    This fishery is classified as Category III on the MMPA LOF and was 
included in the 2010 AD and the 2015 AD. There has been limited 
observer coverage in this fishery since 2010. To date, observer 
coverage in gillnet fisheries has primarily focused on federally-
managed fisheries. However, the NMFS Northeast Fisheries Observer 
Program has observed a very limited number of trips in this fishery. 
There were four trips observed in 2014, three in 2015, 11 in 2016, six 
in 2017, and seven in 2018. This sample size is small, in terms of 
timing and areas that overlap with sea turtles, and additional 
information is needed to better understand sea turtle interactions with 
this fishery. There is a need to better understand the gear fished in 
state waters and the extent to which this gear interacts with sea 
turtles. Given the risk of interaction and the limited data currently 
available on such interactions NMFS proposes to again include this 
fishery pursuant to the criteria identified at 50 CFR 222.402(a)(1) for 
listing a fishery on the AD. This is because sea turtles are known to 
occur in the same areas where the fishery operates, takes have been 
previously documented in similar gear, the fishery operates during a 
period of high sea turtle strandings, and NMFS intends to monitor this 
fishery.

Implementation of Observer Coverage in a Fishery Listed on the 2020 AD

    As part of the proposed 2020 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 2020 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 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

[[Page 3884]]

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 fishermen on a vessel must cooperate in the 
operation of observer functions. Observer programs designed or carried 
out in accordance with 50 CFR 222.404 are consistent with existing NOAA 
observer policies and applicable federal regulations, such as those 
under the Fair Labor and Standards Act (29 U.S.C. 201 et seq.), the 
Service Contract Act (41 U.S.C. 351 et seq.), 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 2020 Annual Determination
------------------------------------------------------------------------
                                                       Years eligible to
                       Fishery                          carry observers
------------------------------------------------------------------------
Trawl Fisheries:
    Southeastern U.S. Atlantic, Gulf of Mexico shrimp          2020-2024
     trawl...........................................
    Gulf of Mexico mixed species fish trawl..........          2020-2024
Gillnet Fisheries:
    Chesapeake Bay inshore gillnet...................          2020-2024
    Long Island inshore gillnet......................          2020-2024
------------------------------------------------------------------------

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 5,218 vessels participating 
in the four 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) under OMB control number 0648-0593.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act, unless that collection of 
information displays a currently valid OMB Control Number.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866. This proposed rule is not an 
Executive Order 13771 regulatory action because this rule is not 
significant under 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.
    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,

[[Page 3885]]

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.

References

Lutcavage, M. E. and P.L. Lutz. 1997. Diving Physiology. In: P.L. 
Lutz and J. Musick (eds.) The Biology of Sea Turtles. ERC Press, 
Boca Raton, FL. 432 pp.

    Dated: January 15, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2020-01079 Filed 1-22-20; 8:45 am]
 BILLING CODE 3510-22-P