2020 Annual Determination To Implement the Sea Turtle Observer Requirement, 53684-53689 [2020-17201]

Download as PDF 53684 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations under fixed-price contracts that rely on the ability to utilize fuels for successful contract performance. As a result, this rule intends to help stabilize contractor’s fuel costs and supply chain for fuel, as well as reduce contract performance risk by providing contractors with an adequate and reliable source of fuel, when applicable and necessary. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule does not create new provisions or clauses or impact any existing provisions or clauses. khammond on DSKJM1Z7X2PROD with RULES III. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the FAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because DoD is not issuing a new regulation; rather, this rule is updating internal operating procedures to permit and advise contracting officers on the procedures to follow when authorizing contractors, as necessary, to use DLA Energy as a source of fuel in performance of certain contracts. IV. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 rule is not a major rule under 5 U.S.C. 804. V. Executive Order 13771 This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 222 [Docket No. 200731–0203] VI. Regulatory Flexibility Act RIN 0648–BI91 Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared. 2020 Annual Determination To Implement the Sea Turtle Observer Requirement VII. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Part 251 Government procurement. Jennifer Lee Hawes, Regulatory Control Officer, Defense Acquisition Regulations System. Therefore, 48 CFR part 251 is amended as follows: PART 251—USE OF GOVERNMENT SOURCES BY CONTRACTORS 1. The authority citation for 48 CFR part 251 is revised to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. 2. Section 252.101 is added to read as follows: ■ 251.101 Policy. (a)(1) Notwithstanding the restriction at FAR 51.101(a)(1), contracting officers may authorize contractors to use Defense Logistics Agency Energy as a source of fuel in performance of other than cost-reimbursement contracts, when the fuel is funded by the Defense Working Capital Fund. When providing this authorization to contractors, follow the procedures at PGI 251.101. [FR Doc. 2020–18642 Filed 8–28–20; 8:45 am] BILLING CODE 5001–06–P PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final determination. AGENCY: The National Marine Fisheries Service (NMFS) publishes the final Annual Determination (AD) for 2020, pursuant to its authority under the Endangered Species Act (ESA or Act). 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 bycatch in a given fishery, evaluate measures to prevent or reduce sea turtle bycatch, 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 determination and will be required to carry observers upon NMFS’ request. DATES: This final determination is effective September 30, 2020. ADDRESSES: Chief, Marine Mammal and Sea Turtle Conservation Division, 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: SUMMARY: Purpose of the Sea Turtle Observer Requirement Under the ESA, 16 U.S.C. 1531 et seq., NMFS has the responsibility to E:\FR\FM\31AUR1.SGM 31AUR1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations 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), green (Chelonia mydas; Central West Pacific and Central South Pacific distinct population segments), 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 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 bycatch in these 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 VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 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 sea turtle bycatch is occurring; to evaluate whether existing measures are minimizing or preventing bycatch; and to implement ESA take prohibitions and conserve and recover turtles. 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 (85 FR 3880, January 23, 2020) and was considered in developing the final 2020 AD. Process for Developing the Annual Determination (AD) In March, in recognition of the issuance of numerous travel or social distancing restrictions and other recommended actions related to travel and social distancing requirements in response to the COVID–19 pandemic, NMFS issued an emergency action to provide the authority to waive observer coverage, some training, and other program requirements while meeting conservation needs and providing an ongoing supply of fish to markets (85 FR 17285; March 27, 2020). Under this emergency action, NMFS regional administrators, office directors, or science center directors have the ability to waive observer requirements in three specific circumstances, after consulting PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 53685 with observer providers. This annual determination process, as discussed below, and the AD authority continue to apply in conjunction with the current observer programs’ requirements and emergency actions. We will continue to monitor all local public health notifications, as well as notifications of the Centers for Disease Control and Prevention for updates. We are committed to the public health and safety of fishermen, observers, and others, and also to fulfilling our mission to maintain our nation’s seafood supply and conserving marine life. 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 bycatch of sea turtles. NMFS provided an opportunity for public comment on the proposed determination (85 FR 3880; January 23, 2020). The determination is informed by the best available scientific, commercial, or other information regarding sea turtle bycatch; 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 identified on the AD are 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. For the 2020 AD, 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 E:\FR\FM\31AUR1.SGM 31AUR1 53686 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 bycatch 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 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 2020 AD may still be observed by NOAA fisheries observers under authorities different than the ESA (e.g., MMPA, Magnuson-Stevens Fishery Conservation and Management Act (MSA)), if applicable. NMFS publishes the final determination in the Federal Register and will notify in writing those individuals permitted for each fishery identified on the AD. 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 a subsequent 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-observerrequirement-annual-determination. Comments and Responses NMFS received nine comment letters on the proposed AD (85 FR 3880, January 23, 2020) from members of the public and one organization, Turtle Island Restoration Network. Many commenters expressed general support of the rule or fishery observer programs, VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 and others provided suggestions and requests for including particular fisheries. 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: Seven commenters expressed general support for the determination. Response: NMFS agrees and has included four fisheries on the 2020 AD to allow for increased data collection on sea turtle bycatch to accomplish the purposes of the determination. Comment 2: Turtle Island Restoration Network supports NMFS’ proposal to include four fisheries on the 2020 AD. The commenter additionally requests NMFS include the two fisheries from the 2018 AD, mid-Atlantic gillnet fishery and Gulf of Mexico menhaden purse seine fishery, in a future AD when the 2018 AD timeframe expires on December 31, 2022. Response: NMFS agrees and has included four fisheries on the 2020 AD. As the commenter noted, the midAtlantic gillnet fishery and Gulf of Mexico menhaden purse seine fishery were included on the 2018 AD and are required to carry observers if requested through December 31, 2022. The AD is published annually, and NMFS will continue to assess these and other fisheries for inclusion on future ADs. Comment 3: A commenter recommended NMFS take advantage of the opportunity to observe fisheries identified on the AD and find creative ways to prevent sea turtle bycatch. The commenter urges the publication and application of sea turtle bycatch data collected through the AD determination. Response: The four fisheries included on the 2020 AD will remain on the AD for a five-year period and will be required to carry observers upon NMFS’ request. This will enable NMFS to develop appropriate observer coverage and sampling protocols to investigate whether, how, when, where, and under what conditions bycatch is occurring; to evaluate whether existing measures are minimizing or preventing bycatch; and to implement ESA take prohibitions and conserve turtles. Observer data collected under the ESA AD authority are generally used to estimate and/or characterize bycatch in a particular fishery. These data and resulting analyses are made available in NMFS publications, as appropriate, given data confidentiality considerations. PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 Gillnet Fisheries Comment 4: One commenter noted that the proposed rule does not provide a specific plan with evaluation criteria for how NMFS will monitor the Chesapeake Bay inshore gillnet fishery for sea turtle bycatch. Response: The purpose of the AD is to identify commercial and recreational fisheries that are required to carry observers upon NMFS’ request under the authority of the ESA. As stated in the preamble, sampling designs for all NMFS observer programs are developed to provide statistically valid information and to produce results that will contribute to the body of best available science. The sampling design will vary depending on many factors, including the fishery to be observed, the spatial and temporal variability in the fishery and species observed, and the overall goals of the observer program. Once a fishery is selected for observer coverage, a sampling design will be developed to yield statistically valid results (72 FR 43176; August 3, 2007). Sampling designs for all regional observer programs are published in many different forums, including peer reviewed journals and NMFS stock assessment reports. For new observer programs, a pilot study is often initiated to provide information on variability of bycatch species within a fishery. The information collected during this pilot study is then used to more accurately determine the target observer coverage necessary to provide accurate bycatch estimates (typically measured as a coefficient of variation around the bycatch estimate). Recommendations for Fisheries To Include on the 2020 AD Comment 5: Turtle Island Restoration Network requests NMFS include all fisheries from the 2015 AD in its 2020 AD. These fisheries are: California halibut, white seabass and other species set gillnet (>3.5 in mesh), California yellowtail, barracuda, and white seabass drift gillnet (mesh size >3.5 in. and <14 in.), Gulf of Mexico gillnet, North Carolina inshore gillnet, Atlantic blue crab trap/pot, Atlantic mixed species trap/pot, Northeast/mid-Atlantic American lobster trap/pot, mid-Atlantic haul/beach seine, mid-Atlantic menhaden purse seine, and Rhode Island floating trap. The commenter notes that these fisheries meet the criteria to be included on the AD because they operate in the same waters and at the same time as sea turtles are present, operate at the same time or prior to elevated sea turtle strandings, or the fishery uses a gear or technique that E:\FR\FM\31AUR1.SGM 31AUR1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations is known or likely to result in incidental take of sea turtles based on documented or reported takes in the same or similar fisheries. Response: NMFS acknowledges that there are other fisheries, in addition to those included on the 2020 AD, that are known to take sea turtles. The 2020 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 these 10 fisheries recommended by Turtle Island Restoration Network on the 2020 AD but will continue existing observer coverage for these fisheries under other authorities. NMFS will continue to assess these and other fisheries for inclusion on future ADs. khammond on DSKJM1Z7X2PROD with RULES Observer Coverage Comment 6: Turtle Island Restoration Network requests NMFS provide 100 percent observer coverage on all AD fisheries, to ensure accurate bycatch reporting. The commenter notes that in 2015 the Pacific Fishery Management Council recommended increasing observer coverage to 100 percent for all drift gillnet fisheries, and states that issuing ‘‘hard caps’’ without 100 percent observer coverage will not meet the goal of issuing such hard caps. Turtle Island Restoration Network states that NMFS must strive for 100 percent observer coverage in every observed fishery in order to accurately assess bycatch of protected species. Response: The AD does not prescribe a specific level of observer coverage for any fishery; rather it identifies fisheries for which NMFS intends to collect additional information. As described above, the sampling design of any observer program for fisheries identified through the AD process is determined on a fishery-by-fishery basis. Fisheries Included on the 2020 Annual Determination NMFS includes 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 (MidAtlantic gillnet and Gulf of Mexico menhaden purse seine), which were listed in the 2018 AD for a five-year VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 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. 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 Bycatch in trawl fisheries are of particular concern for sea turtles because forced submergence 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. TEDs are 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 includes the Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl fishery on the 2020 AD. This fishery has an estimated 4,950 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 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 53687 outboard portion attached to a skid that runs along the seabed. Skimmer trawl use increased in response to turtle excluder device (TED) requirements for shrimp bottom otter trawls. On December 20, 2019, NMFS published a final rule (84 FR 70048) amending the alternative tow time restriction to require all skimmer trawl vessels 40 feet and greater in length to use TEDs designed to exclude small sea turtles in their nets. The rule is effective on April 1, 2021. Skimmer trawls are used in North Carolina, Florida (Gulf Coast), Alabama, Mississippi, and Louisiana. There is documented bycatch 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 bycatch in skimmer trawls has been documented. 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 efforts 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 hours were observed during that period. Despite this extremely low level of observer effort, a total of 41 sea turtles were observed captured; we excluded two 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 bycatch 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 bycatch, 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 E:\FR\FM\31AUR1.SGM 31AUR1 53688 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations the MSA. The fishery is currently 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 includes 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, takes have been previously documented and NMFS intends to monitor in this fishery. Gulf of Mexico Mixed Species Fish Trawl Fishery NMFS includes 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. This fishery was included in the 2015 AD but was not observed due to lack of resources. NMFS includes 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, bycatch has been documented in similar gear types, mainly the shrimp trawl fishery, and NMFS intends to monitor this fishery. khammond on DSKJM1Z7X2PROD with RULES 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 includes 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 (6.9–12.7 cm), depending on the target species. The fishery operates inshore of the Chesapeake Bay Bridge-Tunnel and is managed by the Atlantic States Marine VerDate Sep<11>2014 16:03 Aug 28, 2020 Jkt 250001 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 bycatch in 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 bycatch and the limited data currently available on interactions, NMFS includes 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 includes 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 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 timing and areas that overlap with sea turtles, and additional information is needed to better understand sea turtle bycatch in this fishery and the nature of the gear fished in state waters. Given the risk of bycatch and the limited data currently available on such interactions, NMFS includes 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, bycatch has 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 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. After publication of the final determination, there will be 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 determination effective upon publication of the final determination. For the 2020 AD, the AA has not made this determination; therefore, this determination is effective 30 days after publication of this notification, 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; (3) The requirement that no individual person or vessel, or group of persons or vessels, be subject to inappropriate, excessive observer coverage; and E:\FR\FM\31AUR1.SGM 31AUR1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Rules and Regulations (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/fisheryobservers. TABLE 1—STATE AND FEDERAL COMMERCIAL FISHERIES INCLUDED ON THE 2020 ANNUAL DETERMINATION khammond on DSKJM1Z7X2PROD with RULES Fishery Trawl Fisheries: Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl ............... Gulf of Mexico mixed species fish trawl ....... Gillnet Fisheries: Chesapeake Bay inshore gillnet ............. VerDate Sep<11>2014 16:03 Aug 28, 2020 Years eligible to carry observers 2020–2025 2020–2025 2020–2025 Jkt 250001 TABLE 1—STATE AND FEDERAL COMMERCIAL FISHERIES INCLUDED ON THE 2020 ANNUAL DETERMINATION—Continued Years eligible to carry observers Fishery Long Island inshore gillnet .......................... 2020–2025 Classification The Chief Counsel for Regulation of the Department of Commerce 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 determination 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) 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 determination has been determined to be not significant for the purposes of Executive Order 12866. This determination is not an Executive Order 13771 regulatory action because this determination is not significant under 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, PO 00000 Frm 00045 Fmt 4700 Sfmt 9990 53689 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 determination 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 determination 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 determination 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 determination 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, F.L. 432 pp. Dated: August 3, 2020. Donna S. Wieting, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2020–17201 Filed 8–28–20; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\31AUR1.SGM 31AUR1

Agencies

[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Rules and Regulations]
[Pages 53684-53689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17201]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 200731-0203]
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: Final determination.

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SUMMARY: The National Marine Fisheries Service (NMFS) publishes the 
final Annual Determination (AD) for 2020, pursuant to its authority 
under the Endangered Species Act (ESA or Act). 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 bycatch in a given fishery, 
evaluate measures to prevent or reduce sea turtle bycatch, 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 determination and 
will be required to carry observers upon NMFS' request.

DATES: This final determination is effective September 30, 2020.

ADDRESSES: Chief, Marine Mammal and Sea Turtle Conservation Division, 
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

[[Page 53685]]

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), green (Chelonia mydas; 
Central West Pacific and Central South Pacific distinct population 
segments), 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 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 bycatch in these 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). 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 sea turtle bycatch is occurring; to evaluate whether 
existing measures are minimizing or preventing bycatch; and to 
implement ESA take prohibitions and conserve and recover turtles.

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 (85 FR 3880, January 23, 2020) and was 
considered in developing the final 2020 AD.

Process for Developing the Annual Determination (AD)

    In March, in recognition of the issuance of numerous travel or 
social distancing restrictions and other recommended actions related to 
travel and social distancing requirements in response to the COVID-19 
pandemic, NMFS issued an emergency action to provide the authority to 
waive observer coverage, some training, and other program requirements 
while meeting conservation needs and providing an ongoing supply of 
fish to markets (85 FR 17285; March 27, 2020). Under this emergency 
action, NMFS regional administrators, office directors, or science 
center directors have the ability to waive observer requirements in 
three specific circumstances, after consulting with observer providers. 
This annual determination process, as discussed below, and the AD 
authority continue to apply in conjunction with the current observer 
programs' requirements and emergency actions. We will continue to 
monitor all local public health notifications, as well as notifications 
of the Centers for Disease Control and Prevention for updates. We are 
committed to the public health and safety of fishermen, observers, and 
others, and also to fulfilling our mission to maintain our nation's 
seafood supply and conserving marine life.
    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 bycatch of sea turtles. NMFS provided an opportunity 
for public comment on the proposed determination (85 FR 3880; January 
23, 2020). The determination is informed by the best available 
scientific, commercial, or other information regarding sea turtle 
bycatch; 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 identified on the AD are 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.
    For the 2020 AD, 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

[[Page 53686]]

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 
bycatch 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 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 2020 AD may still be observed by NOAA 
fisheries observers under authorities different than the ESA (e.g., 
MMPA, Magnuson-Stevens Fishery Conservation and Management Act (MSA)), 
if applicable.
    NMFS publishes the final determination in the Federal Register and 
will notify in writing those individuals permitted for each fishery 
identified on the AD. 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 a subsequent 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.

Comments and Responses

    NMFS received nine comment letters on the proposed AD (85 FR 3880, 
January 23, 2020) from members of the public and one organization, 
Turtle Island Restoration Network. Many commenters expressed general 
support of the rule or fishery observer programs, and others provided 
suggestions and requests for including particular fisheries. 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: Seven commenters expressed general support for the 
determination.
    Response: NMFS agrees and has included four fisheries on the 2020 
AD to allow for increased data collection on sea turtle bycatch to 
accomplish the purposes of the determination.
    Comment 2: Turtle Island Restoration Network supports NMFS' 
proposal to include four fisheries on the 2020 AD. The commenter 
additionally requests NMFS include the two fisheries from the 2018 AD, 
mid-Atlantic gillnet fishery and Gulf of Mexico menhaden purse seine 
fishery, in a future AD when the 2018 AD timeframe expires on December 
31, 2022.
    Response: NMFS agrees and has included four fisheries on the 2020 
AD. As the commenter noted, the mid-Atlantic gillnet fishery and Gulf 
of Mexico menhaden purse seine fishery were included on the 2018 AD and 
are required to carry observers if requested through December 31, 2022. 
The AD is published annually, and NMFS will continue to assess these 
and other fisheries for inclusion on future ADs.
    Comment 3: A commenter recommended NMFS take advantage of the 
opportunity to observe fisheries identified on the AD and find creative 
ways to prevent sea turtle bycatch. The commenter urges the publication 
and application of sea turtle bycatch data collected through the AD 
determination.
    Response: The four fisheries included on the 2020 AD will remain on 
the AD for a five-year period and will be required to carry observers 
upon NMFS' request. This will enable NMFS to develop appropriate 
observer coverage and sampling protocols to investigate whether, how, 
when, where, and under what conditions bycatch is occurring; to 
evaluate whether existing measures are minimizing or preventing 
bycatch; and to implement ESA take prohibitions and conserve turtles. 
Observer data collected under the ESA AD authority are generally used 
to estimate and/or characterize bycatch in a particular fishery. These 
data and resulting analyses are made available in NMFS publications, as 
appropriate, given data confidentiality considerations.

Gillnet Fisheries

    Comment 4: One commenter noted that the proposed rule does not 
provide a specific plan with evaluation criteria for how NMFS will 
monitor the Chesapeake Bay inshore gillnet fishery for sea turtle 
bycatch.
    Response: The purpose of the AD is to identify commercial and 
recreational fisheries that are required to carry observers upon NMFS' 
request under the authority of the ESA. As stated in the preamble, 
sampling designs for all NMFS observer programs are developed to 
provide statistically valid information and to produce results that 
will contribute to the body of best available science. The sampling 
design will vary depending on many factors, including the fishery to be 
observed, the spatial and temporal variability in the fishery and 
species observed, and the overall goals of the observer program. Once a 
fishery is selected for observer coverage, a sampling design will be 
developed to yield statistically valid results (72 FR 43176; August 3, 
2007). Sampling designs for all regional observer programs are 
published in many different forums, including peer reviewed journals 
and NMFS stock assessment reports. For new observer programs, a pilot 
study is often initiated to provide information on variability of 
bycatch species within a fishery. The information collected during this 
pilot study is then used to more accurately determine the target 
observer coverage necessary to provide accurate bycatch estimates 
(typically measured as a coefficient of variation around the bycatch 
estimate).

Recommendations for Fisheries To Include on the 2020 AD

    Comment 5: Turtle Island Restoration Network requests NMFS include 
all fisheries from the 2015 AD in its 2020 AD. These fisheries are: 
California halibut, white seabass and other species set gillnet (>3.5 
in mesh), California yellowtail, barracuda, and white seabass drift 
gillnet (mesh size >3.5 in. and <14 in.), Gulf of Mexico gillnet, North 
Carolina inshore gillnet, Atlantic blue crab trap/pot, Atlantic mixed 
species trap/pot, Northeast/mid-Atlantic American lobster trap/pot, 
mid-Atlantic haul/beach seine, mid-Atlantic menhaden purse seine, and 
Rhode Island floating trap. The commenter notes that these fisheries 
meet the criteria to be included on the AD because they operate in the 
same waters and at the same time as sea turtles are present, operate at 
the same time or prior to elevated sea turtle strandings, or the 
fishery uses a gear or technique that

[[Page 53687]]

is known or likely to result in incidental take of sea turtles based on 
documented or reported takes in the same or similar fisheries.
    Response: NMFS acknowledges that there are other fisheries, in 
addition to those included on the 2020 AD, that are known to take sea 
turtles. The 2020 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 
these 10 fisheries recommended by Turtle Island Restoration Network on 
the 2020 AD but will continue existing observer coverage for these 
fisheries under other authorities. NMFS will continue to assess these 
and other fisheries for inclusion on future ADs.

Observer Coverage

    Comment 6: Turtle Island Restoration Network requests NMFS provide 
100 percent observer coverage on all AD fisheries, to ensure accurate 
bycatch reporting. The commenter notes that in 2015 the Pacific Fishery 
Management Council recommended increasing observer coverage to 100 
percent for all drift gillnet fisheries, and states that issuing ``hard 
caps'' without 100 percent observer coverage will not meet the goal of 
issuing such hard caps. Turtle Island Restoration Network states that 
NMFS must strive for 100 percent observer coverage in every observed 
fishery in order to accurately assess bycatch of protected species.
    Response: The AD does not prescribe a specific level of observer 
coverage for any fishery; rather it identifies fisheries for which NMFS 
intends to collect additional information. As described above, the 
sampling design of any observer program for fisheries identified 
through the AD process is determined on a fishery-by-fishery basis.

Fisheries Included on the 2020 Annual Determination

    NMFS includes 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. 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

    Bycatch in trawl fisheries are of particular concern for sea 
turtles because forced submergence 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. TEDs are 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 includes the Southeastern U.S. Atlantic, Gulf of Mexico shrimp 
trawl fishery on the 2020 AD. This fishery has an estimated 4,950 
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 turtle excluder device 
(TED) requirements for shrimp bottom otter trawls. On December 20, 
2019, NMFS published a final rule (84 FR 70048) amending the 
alternative tow time restriction to require all skimmer trawl vessels 
40 feet and greater in length to use TEDs designed to exclude small sea 
turtles in their nets. The rule is effective on April 1, 2021. Skimmer 
trawls are used in North Carolina, Florida (Gulf Coast), Alabama, 
Mississippi, and Louisiana. There is documented bycatch 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 bycatch in skimmer trawls has been documented. 
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 efforts 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 hours were observed during that period. 
Despite this extremely low level of observer effort, a total of 41 sea 
turtles were observed captured; we excluded two 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 bycatch 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 bycatch, 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

[[Page 53688]]

the MSA. The fishery is currently 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 includes 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, takes have been 
previously documented and NMFS intends to monitor in this fishery.

Gulf of Mexico Mixed Species Fish Trawl Fishery

    NMFS includes 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. This fishery was included in the 2015 AD but was not 
observed due to lack of resources. NMFS includes 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, bycatch has 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 includes 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 (6.9-12.7 cm), depending on the target species. The fishery 
operates inshore of the Chesapeake Bay Bridge-Tunnel 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 bycatch in 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 bycatch 
and the limited data currently available on interactions, NMFS includes 
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 includes 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 bycatch in this 
fishery and the nature of the gear fished in state waters. Given the 
risk of bycatch and the limited data currently available on such 
interactions, NMFS includes 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, bycatch has 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 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. After 
publication of the final determination, there will be 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 
determination effective upon publication of the final determination. 
For the 2020 AD, the AA has not made this determination; therefore, 
this determination is effective 30 days after publication of this 
notification, 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;
    (3) The requirement that no individual person or vessel, or group 
of persons or vessels, be subject to inappropriate, excessive observer 
coverage; and

[[Page 53689]]

    (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 Included on the 2020
                          Annual Determination
------------------------------------------------------------------------
                                                          Years eligible
                         Fishery                             to carry
                                                             observers
------------------------------------------------------------------------
Trawl Fisheries:
    Southeastern U.S. Atlantic, Gulf of Mexico shrimp          2020-2025
     trawl..............................................
    Gulf of Mexico mixed species fish trawl.............       2020-2025
Gillnet Fisheries:
    Chesapeake Bay inshore gillnet......................       2020-2025
    Long Island inshore gillnet.........................       2020-2025
------------------------------------------------------------------------

Classification

    The Chief Counsel for Regulation of the Department of Commerce 
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 determination 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) 
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 determination has been determined to be not significant for 
the purposes of Executive Order 12866. This determination is not an 
Executive Order 13771 regulatory action because this determination is 
not significant under 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 determination 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 determination 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 determination 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 determination 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, F.L. 432 pp.

    Dated: August 3, 2020.
Donna S. Wieting,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2020-17201 Filed 8-28-20; 8:45 am]
BILLING CODE 3510-22-P