Federal Register, Volume 85 Issue 15 (Thursday, January 23, 2020)

[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]

[[Page 3880]]

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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.

[[Page 3881]]

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

[[Page 3882]]

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

[[Page 3883]]

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