Sea Turtle Conservation; Shrimp Trawling Requirements, 70048-70064 [2019-27398]

Download as PDF 70048 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES official number, a description of the steps taken to request an IMO number, and a description of any responses from the administrator of the IMO ship identification number scheme. * * * * * (4) * * * (iii) * * * (D) The vessel owner or managing owner of a purse seine vessel listed as active on the Vessel Register that has sunk may request the vessel be listed as sunk and categorized as inactive on the Vessel Register. To request the vessel be listed as sunk and categorized as inactive on the Vessel Register, the vessel owner or managing owner must submit to the HMS Branch written notification within 30 days of the vessel’s sinking. Written notification shall include, but is not limited to, the vessel name, date of sinking, registration number, the vessel owner or managing owner’s name, signature, business address, business email address, and business telephone and fax numbers. For subsequent calendar years, vessel assessment fee payment shall be made as described in paragraph (b)(4)(iii) of this section. * * * * * (5) * * * (i) If the vessel has sunk, and the vessel owner or managing owner has not submitted written notification as described in paragraph (b)(4)(iii)(D) of this section; (9) * * * (iii) To request a vessel be replaced under this provision, the vessel owner or managing owner must submit to the HMS Branch written notification including, but not limited to, the vessel name and registration number, the vessel owner or managing owner’s name, signature, business address, business email address, and business telephone and fax numbers, and the expected month and year the replacement vessel will be ready to fish in the Convention Area. (iv) Within 30 days of receiving each request described in (b)(9)(iii) of this section, the Regional Administrator shall notify the vessel owner or managing owner in writing whether the request has been accepted or denied, and the reasons therefore. * * * * * ■ 7. In § 300.23, revise the section heading to read as follows: § 300.23 Persons and vessels exempted. * * * * * 8. In § 300.24, revise paragraph (f) and remove and reserve paragraph (g). The revision reads as follows: ■ VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 § 300.24 Prohibitions. * * * * * (f) When using purse seine gear to fish for tuna in the Convention Area, fail to release any fish species (excluding mobulid rays, tuna, tuna-like species, and those being retained for consumption aboard the vessel) as soon as practicable after being identified on board the vessel during the brailing operation as required in § 300.27(b). * * * * * ■ 9. In § 300.27, revise paragraph (b) to read as follows: § 300.27 Incidental catch and tuna retention requirements. * * * * * (b) Release requirements for fish species on purse seine vessels. All purse seine vessels must release, as soon as practicable after being identified on board the vessel during the brailing operation, all billfish, rays (not including mobulid rays, which are subject to paragraph (i) of this section), dorado (Coryphaena hippurus), and other fish species. This requirement does not apply to tuna or tuna-like species, or to other fish retained for consumption aboard the vessel. Sharks caught in the IATTC Convention Area and that are not retained for consumption aboard the vessel must be released according to the requirements in paragraph (k) of this section. Tuna caught in the IATTC Convention Area are subject to the retention requirements in paragraph (a) of this section. * * * * * [FR Doc. 2019–26394 Filed 12–19–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 [Docket No. 161109999–8845–02] RIN 0648–BG45 Sea Turtle Conservation; Shrimp Trawling Requirements National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: We, the NMFS, are issuing a final rule to amend the alternative tow time restriction to require all skimmer trawl vessels 40 feet and greater in length to use turtle excluder devices (TEDs) designed to exclude small sea SUMMARY: PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 turtles in their nets. The purpose of this rule is to reduce incidental bycatch and mortality of sea turtles in the southeastern U.S. shrimp fisheries, and to aid in the protection and recovery of listed sea turtle populations. We are also amending the definition of tow time to better clarify the intent and purpose of tow times to reduce sea turtle mortality, and we are refining additional portions of the TED requirements to avoid potential confusion. DATES: This final rule is effective on April 1, 2021. ADDRESSES: Public comments and other supporting materials are available at www.regulations.gov identified by docket number NOAA–NMFS–2016– 0151, or by submitting a request to Michael Barnette, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727–551–5794, michael.barnette@noaa.gov. SUPPLEMENTARY INFORMATION: Background Under the Endangered Species Act (ESA) and its implementing regulations, taking (e.g., harassing, injuring or killing) sea turtles is prohibited, except as identified in 50 CFR 223.206 in compliance with the terms and conditions of a biological opinion issued under section 7 of the ESA, or in accordance with an incidental take permit issued under section 10 of the ESA. Incidental takes of threatened and endangered sea turtles during shrimp trawling are exempt from the taking prohibition of section 9 of the ESA so long as the conservation measures specified in the sea turtle conservation regulations (50 CFR 223.206; 50 CFR 224.104) are followed. On March 15, 2016 (81 FR 13772), we published a notice of intent to prepare an environmental impact statement to analyze potential revisions to the sea turtle conservation regulations, and conducted five scoping meetings in April 2016. We then incorporated the information and public comments gathered during that process into a draft environmental impact statement (DEIS), the notice of availability of which was published on December 16, 2016 (EIS No. 20160294; 81 FR 91169). The analysis included in this DEIS demonstrated that withdrawing the alternative tow time restriction and requiring TEDs in all skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls) rigged for fishing, with the exception of vessels participating in the Biscayne Bay wing net fishery prosecuted in Miami-Dade County, E:\FR\FM\20DER1.SGM 20DER1 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES Florida, would reduce the incidental bycatch and mortality of sea turtles in the southeastern U.S. shrimp fisheries. Therefore, it may be a necessary and advisable action to conserve threatened and endangered sea turtle species. Accordingly, we published a proposed rule (81 FR 91097; December 16, 2016) to withdraw the tow time restriction and include the required TED specifications for these gear types, as well as amend the tow time definition and clarify the names of the allowable TED openings and webbing flaps to improve understanding. Changes From the Proposed Rule Based on public comment raising performance and safety issues with TED use on smaller vessels and regarding the economic impacts of the proposed rule, and new information indicating significantly lower levels of sea turtle mortality in the offshore fleet, we have revised the regulation to limit the TED requirements to skimmer trawl vessels 40 feet and greater in length. After reviewing concerns about applying TED testing data from skimmer trawl operations to pusher-head trawls and wing nets, coupled with a lack of observer data for these vessels, we have decided to maintain the tow timerequirement option for these other types of vessels. This final rule only requires TEDs on skimmer trawl vessels 40 feet and greater in length. This rule will achieve a significant conservation benefit for listed sea turtles, while affecting significantly fewer vessels and imposing far fewer costs upon industry. Because fewer TEDS will need to be manufactured to supply the vessels covered under the final rule, this rule can be implemented in far less time than the proposed rule, allowing for more focused and expedient sea turtle conservation. For purposes of this rule, vessel length is the length specified on the vessel’s state vessel registration or U.S. Coast Guard vessel documentation required to be onboard the vessel while fishing. The proposed rule also included a revision to the tow time definition that would have required vessels to remove their entire net and rigging from the water at specific intervals, instead of just the tail bag as is often done by skimmer trawl vessel operators. For small vessels that lack hydraulics, this process takes significant time and potentially makes the vessel unstable while raising the nets, which could introduce safety issues. Therefore, we revised our proposed tow time definition to avoid these potential scenarios while allowing for a more complete inspection of the net for VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 captured sea turtles and clarifying what is required to end a tow under the regulations. For vessels using pusherhead trawls or wing nets, vessels less than 40 feet in length using skimmer trawls, or vessels considered as live bait shrimpers operating under the allowable tow time exemption, we are requiring the net to be emptied of catch on the deck within the specified time. This prevents vessels from lifting the tail bag clear of the water and potentially lowering it quickly back in due to concerns about the sufficiency of the shrimp catch. We believe this will result in the intended identification and safe release of any sea turtle captured in a net while minimizing issues to trawling operations, and more clearly identifies what is required of vessels to comply with tow time limits. The proposed rule anticipated a sixmonth delay in effectiveness and solicited public input on different options for the phased implementation of the final rule. The revisions between the proposed and final rule have reduced the number of affected fishers by 82 percent, reduced the total economic effect by 73 percent, and are expected to result in a conservation benefit of 801–1,168 sea turtles annually in the Southeastern U.S. shrimp fisheries. The complete analysis for this alternative is included in a final environmental impact statement (FEIS), the notice of availability of which was published on November 15, 2019 (EIS No. 20190270; 84 FR 62530). We believe delaying the effectiveness of the rule until April 1, 2021 is warranted, as that will be an adequate period to allow for the manufacture of the necessary number of TEDs and for fishers, particularly lower income fishers, to financially prepare for the regulation. Summary of Comments We held 6 public hearings on the proposed rule in January 2017. Approximately 70 individuals attended the January 9 Larose, Louisiana meeting; 80 attended the January 10 Gretna, Louisiana meeting; 50 attended the January 10 Belle Chasse, Louisiana meeting; 50 attended the January 11 Biloxi, Mississippi meeting; 15 attended the January 12 Bayou La Batre, Alabama meeting; and 15 attended the January 18 Morehead City, North Carolina meeting. We conducted additional presentations on February 8 in Houma, Louisiana for the Louisiana Shrimp Task Force meeting and on February 16 for the Gulf of Mexico Fishery Management Council’s Shrimp Advisory Panel. During the comment periods on the DEIS and proposed rule, we received approximately 38,500 comments PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 70049 encompassed in 1,200 submissions (e.g., one submission was a petition with 33,807 signatures; one submission consisted of 3,408 individual comments; other submissions summarized comments from multiple individuals). Below we summarize these comments, as well as comments received during the six public hearings and two additional presentations. We received additional comments advocating sea turtle conservation measures not related to the southeastern U.S. shrimp fisheries. Given the lack of relevance to this regulatory action, they are not addressed in the following responses. The public comment period on the DEIS officially ended on January 30, 2017, and the public comment period on the proposed rule officially ended on February 14, 2017. General Comments Comment 1: Numerous comments support the required use of TEDs designed to exclude small turtles in skimmer trawls, pusher-head trawls, and wing nets. Response: We agree that use of TEDs in skimmer trawls will benefit sea turtle populations and that use of TEDs on pusher heads and wing nets might benefit sea turtle populations, but due to a lack of data further study is required. At this time, there is a need to further explore efficacy and safety issues related to TED use on pusher-head trawls and wing nets, as well as small skimmer trawl vessels. Therefore, this final rule will only require TEDs on skimmer trawl vessels 40 feet and greater in length. Existing tow time requirements are maintained for pusherhead trawls, wing nets, and smaller skimmer trawl vessels. Comment 2: All bottom trawls operating in the southeast region should be required to have TEDs, not just selected gear in the shrimp fisheries; NOAA should expand the TED requirement to all trawls; NOAA should require TEDs in try nets; NOAA should consider narrower TED bar spacing. Response: We are continually evaluating fisheries that have the potential to impact sea turtle populations to assess if there are practical ways to minimize bycatch and mortality to the maximum extent practicable. Trawl fisheries in the Atlantic and the Gulf of Mexico have been documented to frequently interact with sea turtles due to the spatial and temporal overlap of the fisheries with sea turtle habitat. As a result, we are currently testing TEDs for try nets in the shrimp fisheries, as well as TEDs in other trawl fisheries (e.g., mid-Atlantic croaker fisheries). We have also E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70050 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations conducted testing of narrower TED bar spacing in the past. In some fishing conditions, however, narrower bar spacing results in excessive catch loss and reduced gear performance. The TED bar spacing requirements in this rule and existing regulations are based on the segment of sea turtle populations that may be encountered by these particular fisheries and their respective fishing conditions. Comment 3: Numerous comments support the status quo and oppose the required use of TEDs designed to exclude small turtles in skimmer trawls, pusher-head trawls, and wing nets. Similar comments suggest current tow times are sufficient to avoid sea turtle bycatch mortality, as evidenced by the growing number of Kemp’s ridley nests. Response: We have observer data that document sea turtle mortality resulting from incidental capture in skimmer trawls during tows that were compliant with tow time limits, as well as during tows that exceeded tow time limits. Incidentally-captured sea turtles are often released alive, which is one reason tow time restrictions were previously accepted as a mitigation measure. However, best available information and expert opinion (discussed in detail in the FEIS) indicate that persistent or delayed effects can lead to mortality (post-interaction mortality), including deaths of some turtles that appear to be in good health at the time of release (Stacy, et al., 2015 as referenced in the FEIS). Analysis of the behavioral condition of the turtles caught by skimmer trawls, using current criteria for estimating post-interaction mortality for trawl fisheries (as described in NMFS Procedural Directive 02–110–21), indicated that mortality could be more than triple the number estimated based on dead and comatose turtles alone. This indicates tow time limits may not be as effective in reducing sea turtle bycatch and mortality as previously thought. Furthermore, as sea turtle populations increase, interactions between skimmer trawl vessels and sea turtles are expected to likewise increase. While Kemp’s ridley sea turtle nesting numbers have increased significantly in the past several decades, the trend has leveled off in recent years. We believe the most effective protective measure for threatened and endangered sea turtle populations is to reduce the total time sea turtles are entrained in a skimmer trawl by using TEDs. TEDs are an effective tool in reducing this mortality, as demonstrated in other sectors of the shrimp fisheries. Gear research has shown that they reduce sea turtle bycatch with only minor reductions in target catch. At this VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 time, TEDs will not be required on skimmer trawl vessels less than 40 feet in length, or in any pusher-head trawl or wing net. Comment 4: NOAA should invest in sea turtle hatcheries to rebuild sea turtle populations (instead of requiring TEDs). Response: In situ nests, or nests in their original place, are preferred over hatcheries whenever the natural beach can support successful nest incubation. Hatcheries are not a preferred alternative because of their limited conservation value when conditions are favorable for in situ incubation. Hatcheries can alter the physical environment of the nest, which can affect nest success and hatchling sex ratios. Predation rates are increased when releases of hatchlings from hatcheries are concentrated in limited areas. Regardless, hatchlings released from hatcheries must still survive to reproduce and, without TEDs, would remain subjected to increased mortality in trawls operating without TEDs. In the southeast U.S., nest success is high and is not a limiting factor that supports the use of hatcheries. Furthermore, sea turtle hatchlings (first year of life) have lower survival rates than older life stages. TEDs provide a greater conservation benefit to sea turtles than hatcheries as they reduce bycatch and mortality of older life stages that have already survived past the most vulnerable years. Comment 5: The regulation may have significant adverse economic effects for an industry that has been struggling due to many other issues. Response: We acknowledge the regulation may have significant adverse economic effects on the shrimp industry, as documented in the DEIS and FEIS. We believe the need to reduce mortalities of threatened and endangered sea turtles observed in vessels using skimmer trawls, however, warrants the required use of TEDs as specified in this final rule. This final rule has been modified from the proposed rule, and achieves a significant conservation benefit but has substantially reduced adverse economic effects on industry. Specifically, the revisions between the proposed and final rule have reduced the number of affected fishers by 82 percent, reduced the total economic effect by 73 percent, and are expected to result in a conservation benefit of 801–1,168 sea turtles annually in the Southeastern U.S. shrimp fisheries. Comment 6: Sea turtles are not observed (i.e., do not occur) in areas where many skimmer trawls operate. Response: Observer effort on skimmer trawl vessels indicates sea turtles occur PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 in most areas where skimmer trawl vessels operate. At this time, we do not have sufficient information to confidently identify areas where sea turtle interactions would not occur, and where we could exempt TED use based on the possible absence of sea turtles. Therefore, at this time, TED exemptions by discrete area are not considered necessary and advisable. Comment 7: TEDs will not work in skimmer trawls due to shallow water, due to a change in TED angle if running in shallow water and where the top of grid (and the escape opening) is exposed. Further, there can be excessive debris, particularly crab traps and after storm events. Response: Based on TED testing conducted aboard commercial skimmer trawl vessels, we expect TEDs will work in the majority of areas and under the majority of fishing conditions. Greater than one-third of the vessels participating in TED testing from 2013 through 2015 operated in depths of 3 feet or less under the vessel with skimmer frames reaching out to shallower water (Gearhart in press). TEDs continued to perform effectively under these conditions. We expect TEDs installed at 55 degrees to operate as intended in water depths as shallow as 2.18 feet of water; TEDs installed at less steep angles would be able to operate in shallower water (e.g., TEDs installed at 45 degrees could operate in water as shallow as 1.89 feet). We acknowledge skimmer trawl vessels with and without TEDs may encounter debris such as lost and abandoned crab traps and vegetative debris in the shallow, coastal waters where they operate. A common practice in the fishery is to install zippers, when TEDs are not installed, to help with removing crab traps. Zippers can still be installed with TEDs. Further, TEDs may offer some benefits, such as those discussed below, over zippers, since zippers can be difficult to open because of sand and sedimentation, where the potential benefits of TEDs occur regardless of sedimentation. Our TED testing found that the diameter of the trawl ahead of the TED when properly installed is approximately 24 inches or less. This does not allow crab traps to make it to the TED and cause blockage. For skimmer trawl vessels with and without TEDs, once the blockage is removed the catch can be washed down to the tailbag where it can be dumped easily. Crab traps and other debris can damage nets with or without TEDs. In areas where crab traps are abundant, fishers may have to inspect their nets E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations more often to remove entrained crab traps. Comment 8: The proposed regulations are subject to Executive Order 13771, which would require the elimination of two existing regulations. Response: The Memorandum: Implementing Executive Order 13771, Titled ‘‘Reducing Regulation and Controlling Regulatory Costs’’ states that a significant regulatory action as defined in Section 3(f) of Executive Order 12866 is an Executive Order 13771 regulatory action and, therefore, must be offset according to the requirements of the executive order. This action was determined to be significant for purposes of Executive Order 12866 following publication of the proposed rule, and will be offset as appropriate and as soon as practicable after publication to comply with Executive Order 13771. Comment 9: NOAA should provide translated materials for Vietnamese American fishers (per Executive Order 13166 and Title VI of the Civil Rights Act), who comprise a significant portion of the skimmer trawl fisheries. Response: We acknowledge a significant portion of affected skimmer trawl fishers may not rely on English as their primary language. However, we are not required under Executive Order 13166 or Title VI of the Civil Rights Act of 1964, which deal with Federal financial assistance programs, to translate these regulatory materials to other languages. However, we are translating our Fishery Bulletin, compliance guide, and other outreach materials to assist the Vietnamese fishing community. Comment 10: With increasing sea turtle populations, sea turtle bycatch will increase—bycatch will never be zero—how much bycatch reduction is enough? Response: While nesting data indicate many sea turtle populations may be increasing, all species of sea turtles in U.S. waters are threatened or endangered under the ESA. In order to promote the continued conservation of these populations, we must continue to implement programs that provide adequate protection for sea turtle populations, including efforts to reduce sea turtle bycatch and mortality. The ESA requires us to issue regulations deemed necessary and advisable to provide for the conservation of any species listed as threatened and broadly authorizes the promulgation of regulations as may be appropriate to enforce the Act. Therefore, while these species remain threatened or endangered under the ESA, we are required to pursue efforts to recover VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 them. Specific recovery metrics that would result in downlisting or delisting from the ESA are in the recovery plans for each sea turtle species. Social and Economic Environment Effects Comments Comment 11: The descriptions of the alternatives starting with Alternative 3 in the third column on page 91102 of the proposed rule do not match the alternative numbers in parentheses and do not match the descriptions in the DEIS. Response: We acknowledge the summary text of the IRFA starting on page 91102 may have introduced some confusion. The summary compares the preferred alternative to the other six alternatives considered in the DEIS, which resulted in an apparent inconsistency in labeling the alternatives (Alternative 3 (the Preferred Alternative in the DEIS) is the basis, resulting in Alternative 4 becoming the ‘‘third alternative to the action’’). The language in the classification section of the proposed rule diverged from standard protocol, which would have avoided this confusion. We remedy this issue in this rule. Comment 12: NOAA’s economic analysis does not take into consideration loss of other bycatch species (e.g., drum, crabs, flounder, etc.) and resulting income due to TED use. Response: To date, TED testing studies have not collected sufficient data to generate scientifically acceptable estimates of the reduction in marketable incidental (i.e., non-shrimp) catch. In addition, although the states collect landings and revenue data for incidentally harvested species when the catch is sold, most states do not collect landings data when the harvests are retained for personal use (e.g., consumption). Thus, the landings and value of harvests retained for personal use are unknown. As a result, the economic analysis focuses on the economic effects caused by the reduction in harvest of the primary target species (i.e., shrimp) due to TED use. Revenue resulting from the harvest and sale of incidentally harvested nonshrimp species by vessels participating in the southeast shrimp fisheries are accounted for in the economic analysis as illustrated in the description of the economic environment (see Section 3.4 of the FEIS). Comment 13: The economic analysis underestimates the adverse effects on processors. The assertion that processors can substitute imports for domestic product if landings are reduced because of the regulations is inaccurate because imports are not a PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 70051 good substitute or cannot be substituted for domestic product. Response: We disagree that the adverse economic effects on processors in the FEIS are underestimated. We consider those estimates to represent the best available data. Further, the claims that imports are not a good substitute for domestic product and that the processing sector cannot substitute imports in place of reduced domestic landings are not supported by the available data and research (Keithly et al., 2015 as referenced in the FEIS). All research conducted to date, as well as the industry’s statements, support the conclusion that imports compete with and are, therefore, substitutes for domestic product, as reflected by the fact that increases in imports have historically caused reductions in domestic shrimp prices. The data also indicate that the processing sector has increased its use of imports when domestic production has declined, and thus imports are used as a substitute for domestic product. However, we agree that the processing sector has become more dependent on domestic production in recent years. Larger processors are also better able to substitute imports for domestic production. We also agree it may be difficult for small processors to substitute imports for lost domestic production or otherwise mitigate the adverse effects from such reductions, particularly if some vessels cease operations because of this regulatory action. We discuss these conclusions in Sections 4.3 and 5.4 of the FEIS. Comment 14: The proposed regulations would reduce public access to domestic shrimp, particularly from smaller vessels that market shrimp directly. Response: Based on the economic analysis in the FEIS, we expect landings by vessels directly affected by this rule to decrease. To the extent the affected vessels act as their own dealers and sell shrimp directly to the public, a reduction in public access to domestic shrimp is expected. Many of these vessels are relatively small within the context of the fleets in the southeast shrimp fisheries. However, this final rule affects nearly 82 percent fewer vessels and the total expected loss in domestic landings is about 66 percent less relative to the preferred alternative in the DEIS. Thus, these adverse effects have been reduced as a result of the change to the preferred alternative. Comment 15: NOAA’s economic analysis underestimates shrimp loss. Response: The economic analysis uses estimates of shrimp loss resulting from extensive testing of TEDs in skimmer E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70052 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations trawls. We discuss these results in Sections 3.1 and 4.3.8 of the FEIS. The analysis of economic effects resulting from shrimp loss presented in the FEIS represents the best available information on the subject. Therefore, we believe the current estimates of shrimp loss in the FEIS to be accurate given the availability of current information. These results are also discussed below in the classification section of this rule. Comment 16: NOAA fails to analyze the broader economic effects of the proposed TED requirements on coastal communities, including loss of jobs. Response: The expected economic impacts of the proposed TED requirements in terms of expected reductions in employment (jobs), income, total value added, and output for the Gulf of Mexico and South Atlantic are provided in the Regulatory Impact Review (RIR) (see Section 5.5 of the DEIS and Section 5.7 of the FEIS). We revised these estimates in the FEIS to reflect the new preferred alternative. A national economic impacts model or state models can generate these estimates. If economic impacts are estimated state by state using the state models, the total economic impacts from the rule would be underestimated because potentially significant relationships between businesses across states would not be taken into account, unlike the national model which does account for those relationships. We chose to use the national model so as not to underestimate the total economic impacts of the rule. Our economic impacts models do not generate these estimates at the community level, as we do not have the necessary business relationship and activity data at that level. Section 3.5 of the FEIS describes communities that are the most likely to experience effects through the identification of top communities by regional quotient, licenses, and active fishers and through the identification of communities with processors. In addition, we added qualitative text on the loss of jobs at the community level to Section 4.4 of the FEIS in response to this comment. Comment 17: NOAA’s economic analysis does not take into account the long-term economic effect of vessels ceasing operations. Response: We discuss the expected long-term economic effects if some vessels cease operations under all considered alternatives in Section 4.3.11 of both the DEIS and FEIS. The analyses consider direct effects on the harvesting sector (vessels) and indirect effects on the onshore sector (dealers, processors, and TED manufacturers). We discuss additional information regarding the VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 expected long-term economic effects of the rule if certain vessels cease operations in the RIR, which we update in the FEIS to reflect the new preferred alternative. Comment 18: NOAA’s economic analysis does not take into consideration vessel devaluation due to the proposed TED requirements. Response: We acknowledge that the new TED requirements in this rule can reduce the profitability of the adversely affected vessels and, thus, their market value. However, we do not have models that would allow us to project the potential magnitude of such decreases, particularly as most of the affected vessels do not have Federal permits and we only have one year of recent data regarding the market value of such vessels in the Gulf of Mexico. The reductions could be significant if some vessels shut down due to this regulatory action. On the other hand, the TED requirement would also eliminate the competitive advantage the affected vessels have had over otter trawl vessels, which have been required to use TEDs for many years. Thus, this change is not necessarily a cost to society. Nevertheless, we have included qualitative statements regarding these expected effects in the FEIS where applicable. Additionally, the change to the preferred alternative is expected to result in significantly fewer vessels being devalued compared to the proposed rule. Comment 19: A six percent loss in shrimp is not trivial given the margins of the inshore skimmer trawl fisheries. Response: We agree that a six percent loss in shrimp catch due to the new TED requirements is not trivial. The expected adverse economic effects resulting from shrimp loss are discussed in Section 4.4 of the FEIS, in the RIR (Section 5 of the DEIS and FEIS), and the Initial and Final Regulatory Flexibility Act Analyses (Section 6 of the DEIS and FEIS). The significance of these effects is discussed in absolute terms as well as in relative terms (i.e., given the different profit margins for various types of vessels in the shrimp fisheries, as discussed in Section 3.4 of the DEIS and FEIS). The magnitude of these adverse economic effects is further reflected by our expectation that about 32 percent of the affected part-time vessels could cease operations due to this rule, generating even greater reductions in landings and gross revenue to the industry. The change in the preferred alternative, however, has significantly reduced the total adverse economic effects expected to result from shrimp loss. PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 Comment 20: An independent cost estimate of the proposed regulations determined the average initial TED acquisition cost of $32,648 per vessel. Another comment estimated $20,000 to outfit TEDs in their nets. Yet another states many skimmer vessels use Dyneema and a single net can cost $5,000 for materials alone; to have 4–6 nets ready to fish could cost over $30,000 for just one vessel. Response: Without specific information on these referenced estimates, we cannot provide a detailed response. However, it appears that these cost estimates may include vessel rigging modification and/or the purchase of new nets, which would not be necessary under the proposed regulation. TEDs can be easily installed into existing trawls between the trawl body and tail bag. Based on TED testing aboard commercial vessels, modifications to vessel rigging to accommodate TED use are unnecessary or minor and rarely occur. The estimates in the DEIS were based on the cost to purchase TEDs for actively fished nets and one set of spare nets for each vessel (i.e., four total TEDs if a vessel uses two nets). The prices ranged based on vessel size (i.e., smaller vessels assumed to fish with smaller, less expensive TEDs than larger vessels). We based the cost estimates on ‘‘average’’ TEDs constructed of conventional materials that are currently available to fishers. TEDs can vary in price based on design (e.g., flat bar TED). Vessels that desire to purchase additional TEDs beyond the minimum needed to continue fishing under this rule would incur additional costs. Comment 21: NOAA’s economic analysis overestimates shrimp loss (i.e., NOAA should include catch loss rates from 4-inch TED testing). Response: As previously stated, we believe the economic effects resulting from shrimp loss presented in the DEIS represents the best available information on the subject. We disagree with the assertion that we should include catch loss rates from previous four-inch bar spacing TED testing. This action would require skimmer trawl vessels 40 feet and greater in length to use TEDs with 3-inch bar spacing instead of tow times. Research results on designs not authorized under this action are not appropriate for this analysis. Comment 22: NOAA fails to take into consideration (i.e., benefit) the lack of tow times could offset shrimp loss. Response: We do not expect the removal of a tow time limit to offset shrimp loss. Fishers can attempt to make up shrimp loss stemming from the use of TEDs by increasing the number E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations and duration of tows, and thereby increasing their total catch and revenue, however, this could increase costs, such as fuel and labor. In addition, catch rates (i.e., catch per unit of effort) tend to decrease as towing time (effort) increases in the same area and, in turn, revenue per unit of effort is expected to decrease as towing time increases. Neither economic theory nor the available economic data can help us to determine whether the additional revenues from towing longer will exceed the additional costs. Comment 23: NOAA overestimates the number of vessels affected by the proposed TED requirements; NOAA should exclude vessels anticipated to cease operations because of the TED requirements from the economic analysis. Response: Although there are consistency issues between some data sources, we have determined the estimates of the number of affected vessels under the alternatives considered in the DEIS and FEIS are the best available estimates. We disagree that we should exclude vessels anticipated to cease operations from the economic analysis. If vessels cease operations as a result of the action, that is an effect of the action which needs to be considered per the requirements of Executive Order 12866, the Regulatory Flexibility Act, and the National Environmental Policy Act. To exclude and ignore this effect would distort the analysis and misinform managers and the public. Comment 24: NOAA inconsistently estimates the per-vessel costs of TEDs and does not clearly explain how many TEDs each vessel will need. Response: The explanation of how many TEDs each vessel will need and how the estimates of per-vessel TED costs were generated is provided in both the DEIS (pp. 156–157) and the proposed rule. Specifically, the analysis assumes each affected vessel would be required to acquire TEDs for each net fished plus one spare for each net. TED costs vary by vessel size and type. Practically all vessels affected under this rule fish with two nets, which would result in each vessel acquiring four TEDs in total. Thus, the average cost of TEDs per vessel is approximately $1,300 under this rule. Larger vessels would likely use larger TEDs, which cost more, and larger vessels typically use more nets (four). More large otter trawl vessels are affected under Alternatives 6 and 7, resulting in a higher average TED cost per vessel (approximately $1,700) compared to the other considered alternatives. VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 Comment 25: NOAA should analyze the economic effects of full-time and part-time vessels separately versus averaging across all vessels. Response: The analysis of economic effects for all alternatives considered in the DEIS and FEIS looks at average effects across all vessels as well as average effects separately for different types of vessels, including part-time vessels (those in the Q1, Q2, and Q3 categories) and full-time vessels (all other categories). Comment 26: NOAA should expand the economic analysis to include the benefits of TEDs (e.g., improved fuel efficiency due to reduced drag from excluding debris and bycatch; increased price due to improved condition of catch; reduced sorting time) and value of sea turtles beyond simple ‘‘conservation value’’ of the species (e.g., tourism). Response: We agree that there are other potential benefits from the use of TEDs such as improved fuel efficiency, reduced sorting time, and increased value of product. For example, we anticipate some ancillary benefits from TED use in high debris areas, as the reduction of debris trapped in the tailbag would prevent damage to the catch, thereby increasing the quality (e.g., promoting harvest of whole shrimp rather than pieces) and potentially increasing the price per pound. We also acknowledge that sea turtles are a source of demand for ecotourism in the region. However, based on the existing peer-reviewed literature, there is no theoretical or empirical basis for asserting that the expected reductions in sea turtle mortalities under this rule will result in increased ecotourism and concomitant economic benefits. In addition, we currently lack data and models to quantitatively estimate these ancillary benefits. We have summarized these issues qualitatively and have addressed this comment in Section 5 (RIR) of the FEIS. Comment 27: The use of TEDs by skimmer trawls would remove the Monterey Bay Aquarium Seafood Watch’s Red Listing of Gulf of Mexico shrimp harvested by skimmer trawls and expand industry markets, and likely increase profits. Response: Monterey Bay Aquarium and several environmental groups provided comments on the proposed rule, which stated that sea turtle bycatch is a serious concern in the fisheries and contributed to the current red list rating of the skimmer trawl fisheries. We agree that the use of TEDs by skimmer trawl vessels could result in a different listing by the Monterey Bay Aquarium Seafood Watch program. However, this PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 70053 regulatory action does not guarantee a change in the rating. Monterey Bay Aquarium has committed to promptly update their scientific assessment, but has not committed to the outcome of that assessment. Therefore, we cannot assume what the Monterey Bay Aquarium’s rating for the skimmer trawl fisheries will be after implementing the final rule, nor the resulting economic benefits to the fisheries. Comment 28: The use of TEDs by skimmer trawls would reduce additional bycatch aside from sea turtles, in turn benefitting other commercial and recreational fisheries. Response: We agree that the use of TEDs by skimmer trawls would reduce additional bycatch other than sea turtles. Numerous studies indicate TEDs reduce finfish bycatch, crustaceans, and debris, resulting in benefits to the local ecosystem (see Section 4.2 of the FEIS). Comment 29: NOAA should expand its environmental justice analysis by including additional analyses on how the proposed regulations may have high and disproportionate impacts on lowerincome generating small fishing operations, expanding the analysis of effects to vessels that cease fishing operations as a result of the regulations, and summarizing the outreach efforts to foster public participation by minority and low income populations. Response: The environmental justice analysis in the FEIS has been expanded. Specifically, new text has been added including a summary of the public participation process, a qualitative discussion of impacts to lower-income generating small fishing operations, and a qualitative discussion of the effects to vessels that cease fishing operations because of this action. As noted above, by limiting the TED requirement to vessels 40 feet and greater in length, the economic impact to industry is significantly reduced from the proposed rule to the final rule. Data-Related Comments Comment 30: The DEIS and proposed rule did not demonstrate whether or how the expected mortality reduction of ‘‘small’’ sea turtles will contribute to population recovery of the sea turtle species and DPSs that occur within the southeastern U.S. The proposed rule and DEIS did not define ‘‘small’’ for each sea turtle species. In addition, the DEIS and proposed rule lacked analyses based on stock assessment models showing how abundance trends respond to the projected reduction in sea turtle mortality attributable to the new regulations, and evaluations of relative reproductive values or adult equivalents of ‘‘small’’ female sea turtles E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70054 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations documented to have been incidentally captured and killed in skimmer trawls, pusher-head trawls, and wing nets within the southeastern U.S. shrimp fisheries. Response: At present, we do not have stock assessment models for all sea turtle species impacted by this regulation. The conservation need for TEDs to reduce the bycatch of Kemp’s ridley sea turtles in the skimmer trawl fisheries was identified in the Kemp’s Ridley Recovery Plan (NOAA and USFWS 2011). A formal threats assessment identified skimmer trawls, among the trawl types not currently required to use TEDs, as a significant mortality threat, collectively resulting in an estimated annual mortality, adjusted for reproductive value, of 1,218 adult females annually (NOAA and USFWS 2011, Table A1–7). At the November 2014 meeting of the Kemp’s Ridley Recovery Team (https://www.fws.gov/ kempsridley/pdfs/KempsRidley_ BiNationalTeam_Nov2014.pdf), the team identified requiring TEDs in the skimmer trawl fisheries (i.e., the largest component of the trawl fisheries not currently required to use TEDs) as one of the four most critical recovery actions that needed to be completed. With regard to size, observer data from skimmer trawl vessels show interactions with green sea turtles ranging from 21.0 cm to 33.5 cm curved carapace length (CCL) and Kemp’s ridley sea turtles ranging from 19.3 cm to 45.6 cm CCL (Stokes and Gearhart 2016). We did not explicitly define ‘‘small’’ because the size range varies across species and can change over time. In general, the term ‘‘small’’ refers to the small juvenile stage. Comment 31: NOAA’s data is insufficient to support this regulation. Response: While we disagree and believe sufficient information has been gathered and presented to the public, all of which warrants measures to reduce sea turtle bycatch and mortality in the skimmer trawl fisheries, we do note this final rule differs from the proposed rule due to further data analysis. We have presented four years of observer data that demonstrates skimmer trawls capture sea turtles in their nets, some of which resulted in mortalities. Likewise, we have included information indicating that post-interaction mortality may occur to trawl-caught sea turtles that are released alive and in seemingly otherwise normal condition. We have also conducted extensive TED testing on skimmer trawl vessels using a variety of configurations and fishing under a variety of different conditions to determine the resultant catch loss under each scenario. Additional economic and VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 social data are included and discussed in the FEIS and these have been determined to be the best available data. A new analysis of sea turtle bycatch and bycatch mortality in the otter trawl shrimp fisheries (Babcock et al. 2018 as referenced in the FEIS) indicates bycatch by otter trawlers is significantly lower than previously estimated, and further supports the need for sea turtle conservation in the skimmer trawl fisheries; this information is discussed further in the FEIS. While more data is always beneficial and desired, we believe sufficient data has been gathered, analyzed, and presented to support this action. Where data was lacking or the efficacy of TEDs merited further evaluation, as was the case with requiring the use of TEDs in pusherhead trawls, wing-nets, and smaller skimmer trawls, we narrowed the scope of the final rule accordingly. Comment 32: New regulations are unnecessary, as NOAA’s own data indicates sea turtle populations are recovering under the status quo. Response: While there have been improvements in nesting numbers of several species of sea turtles, we still have recovery goals to meet for all ESAlisted sea turtle species. As mentioned in our response to Comment 10, in order to promote the continued conservation of these populations, we must continue to consider and implement conservation measures that will provide adequate protection for sea turtle populations and help us achieve our ESA recovery goals and objectives. The ESA requires us to issue regulations deemed necessary and advisable to provide for the conservation of any species listed as threatened and broadly authorizes the promulgation of regulations as may be appropriate to enforce the Act. Therefore, while these species remain listed under the ESA, we are required to continue our efforts to recover these species. Specific recovery metrics that would result in downlisting or delisting from the ESA are in the recovery plans for each sea turtle species. In addition, as noted in our response to Comment 30, the Kemp’s Ridley Recovery Team identified requiring TEDs in skimmer trawls as one of the four most critical recovery actions that needed to be completed. Therefore, implementing this requirement is consistent with our statutory duty to implement the recovery plan under section 4(f) of the ESA. Comment 33: NOAA does not have sufficient evidence of tow time violations; most fishers abide by tow times for reasons other than possibility of sea turtle bycatch. PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 Response: We disagree, as there have been cited violations of tow time limits by skimmer trawl fishers. While we are unable to quantify the extent to which tow time violations occur, we do have evidence that it is an issue that needs to be addressed. Moreover, we have observer data that document sea turtle mortality has resulted from capture in skimmer trawl nets occurring within the tow time limits, as well as information indicating post-interaction mortality is at a significant level, even though captured sea turtles are released alive and may seem in healthy condition when released. Therefore, we believe tow time limits are not as effective in reducing sea turtle bycatch and mortality as previously thought. Comment 34: NOAA’s catch loss rates based on TED use are manipulated and vastly under-estimated. NOAA conducted TED testing at times that are not representative of peak fishing activity, which results in an underestimate of catch loss. Response: We conducted extensive fishery-independent and fisherydependent testing during the 2013, 2014, 2015, and 2016 fishing seasons using a variety of TED configurations and under a variety of fishery conditions off Louisiana, Mississippi, Alabama, and North Carolina. We used an established protocol to conduct this testing. Prior to analysis, data were reviewed and unsuccessful tows were removed from the dataset. Unsuccessful tows were comprised of bogged gear, bag untied, torn nets, hung gear, bags dumped together, and fouled tickler chain. Successful tows were defined as tows in which the gear worked properly and the trawl was hauled in perfect condition. Tows with TED obstructions such as debris or crab pots were not removed from the data set and were included for analysis. However, tows in which the TED was twisted were considered captain related gear handling errors and were removed prior to analysis. In addition, tows with less than 2 kg of shrimp per net for both nets were removed prior to analysis. We also attempted to conduct fisherydependent work during the opening of shrimp season where catch rates would be expected to be highest, but were unable to find vessels willing to participate; fishers desired to focus on the season opener to maximize fishing time and catch. We attempted several times to address this issue with industry. Therefore, the resulting data from this research represents the best available science, and we believe it adequately reflects average fishing conditions. We document these findings E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations in the FEIS and the primary study (Gearhart in press). Comment 35: NOAA has not provided any data on wing nets or anchored vessels; TEDs will not work in vessels anchored and fishing tidal current. Response: To date, we have not conducted TED testing on wing nets or anchored vessels. This gear fishes very differently from trawl vessels. This lack of research, among other reasons, has led us to change the preferred alternative in the FEIS and adjust our final rule accordingly. Comment 36: Averaging observer catch data to all vessels, including small vessels that work in shallow water where sea turtles may not be as abundant, and extrapolating the skimmer trawl observer data to the wing net and pusher-head trawl fisheries is inappropriate. Response: In order to determine the effects the shrimp fisheries have on threatened and endangered sea turtles, we must consider the entirety of the fisheries instead of just limited, observed vessels. Averaging limited data across an entire fishery is an acceptable practice, and has been conducted for numerous fisheries for several decades. We maintain the skimmer trawl observer data gathered over several years and in numerous states is the best available information on the skimmer trawl fisheries. Averaging these data helps to avoid overestimating or underestimating, which may occur when using data from a single year. We do not have discrete sea turtle abundance data that would lend itself to further refining catch rates by water depth or area to support or refute the commenter’s assertion that sea turtles are not as abundant in shallow water. Therefore, we disagree with the first portion of this comment. We do agree, however, that applying observer data from skimmer trawls to wing nets and pusher-head trawls is problematic. In addition, comments raising safety and other practical concerns about using TEDs on small skimmer trawls factored into the decision to change the preferred alternative and modify the final rule to focus solely on skimmer trawl vessels 40 feet and greater in length. Comment 37: NOAA grossly overestimates sea turtle mortality attributable to the skimmer trawl fisheries; the commenter asserts the average skimmer trawl vessel would experience one sea turtle mortality every eight years by only considering sea turtles released dead (n=3). Response: We disagree with the commenter’s assertion that sea turtle mortality is overestimated, and note the commenter fails to take into VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 consideration post-interaction mortality in their estimate. We went to considerable lengths in the DEIS and FEIS to describe the process by which we estimated bycatch mortality using the best available information. Based on that information, we believe the combined skimmer trawl, pusher-head trawl, and wing net fisheries (i.e., 5,837 total vessels) may result in 2,165–2,942 sea turtle mortalities per year. Averaged across the whole fleet evenly, this would result in one sea turtle mortality per vessel every 1.98–2.7 years. Annual fishing effort, however, is not evenly distributed among vessels in the fleet, so this rate is of limited utility. The majority of the skimmer trawl, pusherhead trawl, and wing net fleet consists of part-time vessels that do not fish as often as full-time vessels. Therefore, we expect the rate to be significantly higher among the smaller population of fulltime skimmer trawl, pusher-head trawl, and wing net vessels, many of which are 40 feet and greater in length. Comment 38: NOAA’s observer data demonstrates otter trawls with installed TEDs resulted in higher sea turtle mortality than skimmer trawls without TEDs. Response: We disagree with this comment. As noted previously, we take into consideration post-interaction mortality when considering the effect of the skimmer trawl fleet (i.e., on vessels not using TEDs) on sea turtle populations. The period and sample sizes (i.e., hours of fishing effort observed) differ between the otter and skimmer trawl fleets for calculating mortality rates by gear type. From 2011– 2015, we observed 13 sea turtles released dead from otter trawls fishing with TED-equipped nets (https:// www.fisheries.noaa.gov/webdam/ download/93552747), while during 2012–2015 we observed 3 sea turtles released dead from skimmer trawl vessels fishing without TEDs. During the respective periods, however, we observed 86,658 hours of effort on otter trawlers (E. Scott-Denton, NMFS, pers. comm.), while only 2,699 hours of effort were observed on skimmer trawl vessels. That equates to one observed dead turtle released every 6,666 hours on otter trawlers versus one observed dead turtle released every 900 hours on skimmer trawl vessels. This indicates considerably more observed lethal sea turtle interactions with skimmer trawl vessels than otter trawlers. A new analysis of sea turtle bycatch and bycatch mortality in the otter trawl shrimp fisheries (Babcock et al. 2018) indicates bycatch by otter trawlers is significantly lower than previously estimated in past biological opinions. PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 70055 Furthermore, the results suggest that skimmer trawlers working without TEDs may result in more sea turtle mortalities than otter trawlers working with TEDs, even with lower total annual effort. This information is discussed in more detail in the FEIS. Comment 39: A six-month delay in effectiveness is unrealistic given NOAA’s own data indicates it would take more than two years to fabricate enough TEDs for vessels to use. Response: We agree, and while the estimates are based on the best available information, we acknowledge that there is considerable uncertainty associated with estimating how many new TEDs will actually be installed, as well as how quickly the necessary TEDs will be constructed. TED production time was one of the factors considered when we decided to change the preferred alternative to one that will affect nearly 82 percent fewer vessels and require much less production time for the necessary number of TEDs. We also have extended the delay in effectiveness until April 1, 2021. Comment 40: NOAA must maintain oversight over the electronic logbook data program. Response: Electronic logbooks (ELBs) are required under a fishery management plan developed by the Gulf of Mexico Fishery Management Council, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, only on selected vessels with a Federal Gulf of Mexico shrimp moratorium permit. The vast majority of vessels that use skimmer trawls do not have Federal permits and, thus, are not required to use ELBs. While we do maintain effective oversight over the ELB program, the program itself is not associated with this final rule. Gear and Fishery-Related Comments Comment 41: NOAA’s proposed regulation is discriminatory against certain fishers since it maintains tow times for bait shrimpers. Response: The proposed regulation, as well as the final rule, focuses on the segments of the shrimp fisheries that are documented to have levels of bycatch mortality that can be reduced using TEDs. The bait shrimp fishery operates with tow times shorter than the alternative tow-time requirements per 50 CFR 223.206(d)(2)(ii)(A), to ensure shrimp are captured and transferred to a live well alive and in good condition. Based on this information, we determined the bait shrimp fishery presents a low risk of sea turtle bycatch and mortality and does not warrant additional restrictions at this time. E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70056 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations Comment 42: Biscayne Bay wing net vessels should be restricted to a maximum tow time of 10 minutes with observers to evaluate potential bycatch issues. Response: Biscayne Bay wing nets are limited by state law to a frame size much smaller than frames of wing nets in other states. They also fish by sight in surface waters, and use nets constructed of light monofilament webbing. We have initially concluded this fishery may not present a threat to sea turtles. However, further investigation is needed to make a final determination. Comment 43: Beam trawl vessels operating in the Corpus Christi Bay, Texas bait shrimp fishery should be exempt from the proposed TED requirements, similar to the Biscayne Bay wing net fishery exemption. Response: Beam trawl vessels are exempt from existing TED requirements if they comply with provisions at 50 CFR 223.206(d)(2)(ii)(B)(1). The proposed and final regulations do not change the requirements for beam trawlers, which are currently required to fish with TEDs, excluding those that comply with the aforementioned exception. Comment 44: TED requirements present safety issues when used on small vessels (e.g., walking out on frames to remove debris snagged in TEDs, extension can result in net getting entangled in the propeller, etc.). Response: The TED is installed just in front of where the tail bag is brought alongside or onboard the vessel for dumping, so walking out on frames to remove debris from the TED is unnecessary. Further, this rule exempts skimmer trawl vessels less than 40 feet in length to allow us additional time to examine issues related to TED use on these smaller vessels, including potential safety issues, which may be more significant for them. Skimmer trawl vessels less than 40 feet in length will continue to be required to comply with the existing tow time requirements. Comment 45: An installed TED on a small vessel may introduce issues with dumping the catch, as the TED extension may prevent the net from fully clearing the surface and complicate hauling it on deck. If the vessel is moving during the process, the TED may cause the net to twist tight, further complicating the situation. Response: Skimmer trawl vessels less than 40 feet in length are exempt from the TED requirement in this final rule, but must continue to comply with the existing tow time requirements. We intend to examine issues that may be unique to these vessels to determine VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 methods to mitigate those issues in the future. With respect to a twisting net, we found during TED testing this can be alleviated by either changing the location of the lazy line attachment on the trawl or changing the lifting point in the rigging to allow the TED to clear the water during haul back. Comment 46: TEDs installed in skimmer nets exhibit a rolling action that twists the net and closes it, making it ineffective at catching anything. Response: This rule will only authorize top-opening TEDs. Topopening TEDs often begin with a half twist in the net when deployed. During active fishing with skimmer frames lowered and nets and bullets deployed, water flow opens the trawl and causes the TED to untwist and adjust into the proper fishing position. We anticipate that fishers will have to become familiar with how TEDs function and behave in their nets or under their specific fishing conditions, and adjust their activities to ensure their nets with installed TEDs are fishing correctly. Comment 47: Excessive debris such as crab traps and tree limbs will accumulate on the TED grid and result in excessive catch loss. Response: We acknowledge that the inshore/nearshore skimmer trawl fisheries encounter more debris while fishing compared to the offshore shrimp fisheries. Abandoned crab traps and debris, particularly debris after storms, currently present issues for skimmer trawl vessels. TEDs may actually help exclude some of this debris. In situations where there are numerous abandoned crab traps or excessive debris, fishers regularly check their nets to ensure entrained traps and debris are not negatively affecting their catch rates. We expect fishers to continue this practice with TEDs installed in their nets. Depending on the net and TED size, the diameter of the trawl just ahead of the TED is not large enough to allow crab traps or large debris to reach the TED. The use of TEDs facilitates crab trap and debris removal, alleviating the need for zippers that typically are used in skimmer trawls for debris removal, as discussed in response to Comment 7. Comment 48: The proposed tow time definition presents issues for vessels without hydraulics (i.e., time to raise/ lower gear) or for small vessels due to safety (e.g., raising and lowering rig constantly presents stability issues). Response: We agree the proposed tow time definition may present issues for small vessels or vessels rigged without hydraulics. As a result, we have amended the tow time definition in this final rule to avoid issues related to PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 constantly raising and lowering the skimmer trawl rig. Comment 49: Small vessels cannot use a standard TED grid and need a smaller grid to fit in the nets. Response: In response to comments relating to the feasibility of using TEDs on small vessels, and because we have not comprehensively tested TEDs on small vessels, we have changed our preferred alternative. As a result, skimmer trawl vessels less than 40 feet in length will have to continue to follow the tow time requirements. We will examine this and other issues related to TED use on small vessels and present solutions or adaptations to these potential issues so that TEDs could be effectively used on these smaller vessels in the future. Comment 50: In some skimmer vessels, the entire net would have to be specially made to fit effective TEDs in the net. Response: Nets used on skimmer trawl vessels 40 feet and greater in length can accommodate a standard TED, and as discussed in response to Comment 20, necessary modifications to rigging, if any, are expected to be minor. Comment 51: Some skimmer vessels use A-frame rigging designed for short nets. The use of TEDs would require lengthening the net, and modifications to the A-frame rigging to pick up the nets, which could cost anywhere from $1,000–$10,000, depending on the size of vessel, extent of change, and costs of material and labor. Response: The installation of a TED into a skimmer trawl adds four to five feet of length to the trawl. It may be necessary to install the TED farther forward in the trawl to partially compensate for the added length. Adjusting the lazy line attachment point on the tailbag may also be necessary to compensate for the added length. Each of these adjustments alleviates the need to change rigging configurations to compensate for TED installation. Comment 52: The use of TEDs by small vessels with limited horsepower would slow the boat down to the point it would be ineffective. Response: We do not expect skimmer trawl vessels to have difficulty pushing nets with TEDs installed due to limited horsepower. These vessels are typically powered to move trawls that contain significant amounts of catch. This catch increases the drag on the vessel. The addition of a TED is inconsequential with respect to the drag in the net relative to the catch. Instead, drag is reduced through TED use by reducing the amount of bycatch entrained in the net. E:\FR\FM\20DER1.SGM 20DER1 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES Comment 53: Fishers have serious concerns that TEDs would not work on their type or size of vessel and result in them having to convert to otter trawls, which would cost $20,000–$30,000. Response: Results of TED testing indicates that TEDs will work effectively on vessels encompassed by this final rule (i.e., skimmer trawl vessels 40 feet and greater in length). We do not believe the associated economic effects of TED use in skimmer trawls are sufficient to make switching gears necessary, particularly considering TEDs are already required in the otter trawl fisheries. Recommendations Comment 54: NOAA needs to prepare a detailed enforcement plan, including the number of officers and vessels needed; minimum/maximum enforcement levels by time and area; the use of partner agencies, observers, and trained volunteer patrols; use of onboard cameras; implementation of emergency closures if enforcement (compliance) is not adequate; and other approaches to achieve a 94 percent TED compliance level. Response: Our Office of Law Enforcement (OLE) is committed to enforcing the laws and regulations associated with TEDs. On a continuing basis, OLE management is evaluating how it can best use its resources in meeting OLE’s overall mission of protecting the marine resources of the United States. OLE meets this mission through formal and informal relationships with other enforcement partners. TED compliance is but one regulatory requirement OLE and its partners are responsible for enforcing. We have had extensive discussions on this subject with our enforcement partners, and have developed a TED Compliance Policy that we also intend to integrate for the skimmer trawl fisheries. The TED Compliance Policy (https://www.fisheries.noaa.gov/ webdam/download/93552419) outlines what data will be used, the time periods for calculating compliance, and discusses measures that would be taken if TED effectiveness falls below the TED compliance thresholds designated in the April 18, 2014, biological opinion on the southeastern shrimp fisheries. Comment 55: NOAA should conduct a detailed analysis of sea turtle abundance, fishing effort, and stranding patterns to determine hotspots of sea turtle mortality in the fishery. Response: A detailed analysis of sea turtle mortality hot spots would be a valuable exercise. But given the annual variability in sea turtle distribution, population size, and seasonal influences VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 such as water temperature, wind speed and direction, and prey availability, as well as numerous other factors, the recommended analysis would not likely change how this rule is implemented. The use of TEDs can significantly reduce fishery-related bycatch and mortality on a regular basis, regardless of variability in sea turtle distribution, hence it is our preferred action over other alternatives considered in the DEIS and FEIS. Comment 56: NOAA should investigate and promptly enact appropriate time and area closures for the fishery to protect important sea turtle habitat and populations. Response: We regularly investigate all significant events in an attempt to learn the causative factor(s) for sea turtle mortality. In some cases, these factors are not readily identifiable, even after several years of investigation. If we determine an activity or source of mortality and habitat impacts can be prevented or mitigated by time/area closures, we would explore that option at the appropriate time based on available information. Comment 57: TED use should be based on inside/outside waters as defined by the Louisiana Statutes 45:495, and only required in outside waters. Response: Fisheries observer data from skimmer trawl vessels demonstrate that sea turtles occur within areas defined as inside waters by the Louisiana Statutes. The inside/outside waters definition also does not correlate with bathymetric or other sea turtle habitat preferences in a manner that lends itself to practical consideration. This recommendation would not effectively achieve our recovery goals and objectives of reducing bycatch and mortality of sea turtles in the shrimp fisheries. Comment 58: Maintain existing tow times and enforce them through mandatory use of electronic vessel monitoring. Response: The use of electronic vessel monitoring systems (VMS) is a potential management option, but one that was not considered due to the inherent difficulties in requiring such a system on thousands of vessels of differing sizes and configurations. Whereas VMS could be more effective on a more homogenous fleet of larger vessels, we determined it was not viable for the skimmer trawl fisheries. We have also looked at other options, such as a data logger to monitor tow times. However, since the revised tow time definition included in this final rule allows the frame to continually fish, it is impractical to configure a data logger to PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 70057 monitor tow times. We have documented that sea turtle bycatch and mortality, including post-interaction mortality, can occur within the allowable tow time limits. Therefore, TEDs represent the most effective measure to reduce sea turtle bycatch and mortality in these fisheries. Comment 59: NOAA should provide TEDs to all fishers and allow a one-year trial period before making the requirement effective. Response: We are currently exploring avenues for financial support that could provide TEDs to affected fishers. We do expect that affected fishers could receive assistance from the Fishery Finance Program, which could provide low-interest loans for fishers to purchase the required TEDs, although the program has not been used for this type of gear purchase in the past. Given the number of fishers affected and number of TEDs required, we are delaying effectiveness of this final rule until April 1, 2021. While this delay in effectiveness is not considered a trial period, it does provide fishers additional time to adapt to fishing with TEDs in their specific fishing conditions. Comment 60: NOAA should have mitigation measures for the loss of shrimp due to TED use, as well as economic assistance to purchase TEDs. NOAA should explore opportunities to provide fishers TED training or TEDs with funding allocated to one or more of the Trustee Implementation Groups under the DEEPWATER HORIZON oil spill program. Response: As previously mentioned in Comment 59, we are exploring measures to provide financial support for affected fishers to acquire TEDs. We have also considered the need for outreach and training efforts to assist fishers with the installation and maintenance of TEDs in their nets. We will be scheduling and announcing future TED training workshops to be conducted during the phase-in period. Comment 61: NOAA needs to conduct a sea turtle stock assessment to determine population levels to determine if additional regulations are necessary. Response: We disagree with this comment. While stock assessments for all sea turtle species would be beneficial for management purposes, we are mandated to implement management measures deemed necessary and advisable to recover threatened and endangered species under our purview. Given that fisheries observer data indicates sea turtle bycatch and mortality is occurring in the skimmer trawl fisheries, delaying management E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70058 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations action to conduct stock assessments is not warranted. Comment 62: If TEDs are required, implementation should be phased in over two to three years by breaking vessels into size classes or based on landings. Response: We considered public comments such as this when determining how to implement the final rule. Since the revised final rule affects approximately 82 percent fewer fishers than the preferred alternative in the DEIS, we determined a single delayed implementation date would be most appropriate for fishers, management, and enforcement since this alternative requires much less production time for the necessary number of TEDs. Comment 63: Due to issues with debris clogging in shallow water and the assumption a TED would lose angle, thereby increasing catch loss, NOAA should exempt TED use in waters 2–4 feet in depth. Response: As mentioned in our response to Comment 7, TED testing aboard commercial vessels indicates that TEDs operate effectively in depths as shallow as 2 feet. Therefore, an exemption based on water depth is not warranted. Comment 64: NOAA should exempt all skimmer trawls less than 40 feet in length from the TED requirements. Response: Based on public comment and further deliberation, we revised our final rule to exempt skimmer trawl vessels less than 40 feet in length. Comment 65: NOAA should look at other sea turtle issues such as vessel impacts, pollution, explosive demolition of oil rigs, and other fisheries including recreational fisheries, etc. Response: Sea turtles face a variety of threats including vessel impacts, pollution, and bycatch in other fisheries. We address the impacts of various threats to sea turtles, and several other management actions that mitigate these impacts on sea turtle populations are discussed in Section 3 of the DEIS and FEIS. Comment 66: Ban trawlers. Response: We believe the use of TEDs in trawl nets reduces sea turtle bycatch in these fisheries to acceptable levels, which meets our goals and objectives for sea turtle conservation. A ban on all trawl gear is an extreme measure not warranted to support sea turtle conservation. Comment 67: The TED implementation strategy should be based on what provides the greatest conservation benefit, and a phased approach may be necessary. VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 Response: Based on public comments raising performance and safety issues with TED use on smaller vessels and regarding the economic impacts of the proposed rule, and new information indicating significantly lower levels of sea turtle mortality in the offshore fleet, we have revised the regulation to now limit the TED requirements to skimmer trawl vessels 40 feet and greater in length. The more focused scope of the final rule will allow for faster implementation of the TED requirement and is expected to result in a significant conservation benefit of 801–1,168 sea turtles annually in the Southeastern U.S. shrimp fisheries. We may address other trawls, such as pusher-head trawls, wing nets, and try nets, as well as small skimmer trawl vessels, in future rulemaking. Comment 68: Double rig trawlers should be banned in the lakes and inside waters. Response: Double rig (otter) trawlers are currently required to use TEDs in their nets. As state shrimp fishery management issues unrelated to sea turtle bycatch and mortality are outside the purview of this action, we do not have any additional response to this comment. Classification This final rule has been determined to be significant for purposes of Executive Order 12866 because it may raise novel legal or policy issues out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. This significant regulation is considered regulatory under Executive Order 13771. Depending on the assumptions used, the estimated cost of this rule in 2016 dollars is between 3.24 and 3.85 million. A discussion on the basis for these estimates is in the FEIS. We prepared a FRFA, as required by Section 603 of the Regulatory Flexibility Act (RFA), for this final rule. The FRFA describes the economic effects this final rule would have on small entities. A description of the action, why it is being considered, the objectives of, and legal basis for this final rule are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from us (see ADDRESSES). A summary of the FRFA follows. The ESA provides the statutory basis for this final rule. We did not receive any comments from the U.S. Small Business Administration’s Office of Advocacy on the IRFA in the proposed rule. We received 18 comments from the public regarding the IRFA in the proposed rule and the economic effects analysis in the DEIS; see comments 11– PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 28 in the preamble of this rule. Comment 39 regarding the delay in the effectiveness of this rule is also germane. These comments and our responses are incorporated here by reference. The preferred alternative and the tow time definition in this final rule were changed from the proposed rule, based in part on these comments. The reasons for these changes are discussed in the preamble and also incorporated here by reference. No duplicative, overlapping, or conflicting Federal rules have been identified. This final rule would not establish any new reporting, recordkeeping, or other compliance requirements beyond the requirement to use a TED when vessels 40 feet and greater in length use skimmer trawls to harvest shrimp in the southeastern United States. The net manufacturer typically installs TEDs, so fishers are not expected to have special skills. Some learning will likely be necessary for the maintenance and routine use of TEDs by fishers who have not historically had to use these devices. TEDs have been required in otter trawls for many years. A majority of the vessels directly regulated by this rule also used otter trawls between 2011 and 2014. Thus, many if not most vessel owners and captains are expected to be knowledgeable of how to maintain and use TEDs. As a result, the skills required for TED use are thought to be consistent with the skillset and capabilities of commercial shrimp fishers in general and special professional skills would not be expected to be necessary. Further, we plan to engage in significant outreach efforts (e.g., TED workshops and complimentary inspections by our Gear Monitoring Team) to educate owners and captains of affected skimmer vessels regarding how to use and maintain TEDs. This final rule is expected to directly regulate businesses that operate vessels 40 feet and greater in length using skimmer trawls in the southeastern U.S. shrimp fisheries (North Carolina through Texas). An estimated 1,062 vessels use this gear (1,047 vessels in the Gulf of Mexico and 15 vessels in the South Atlantic). Although some vessels are known to be owned by businesses with the same, or substantially the same, individual owners and, thus, would be considered affiliated, ownership data is incomplete. It is not currently feasible to accurately determine the number of individual businesses these 1,062 vessels represent. While it will result in an overestimate of the actual number of businesses directly regulated by this rule, for the purposes of this analysis, we assume E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations that each vessel is independently owned by a single business and, thus, the terms vessels and businesses are used interchangeably. Therefore, we expect this rule to directly regulate 1,062 businesses. The average annual gross revenue (2014 dollars) over the period 2011– 2014 for vessels 40 feet and greater in length that harvested shrimp using skimmer trawls was approximately $76,529 for vessels in the Gulf of Mexico (1,047 vessels) and $258,756 for vessels in the South Atlantic (15 vessels). The largest average annual gross revenue earned by a single business over this period was approximately $1.85 million. We have not identified any other small entities that might be directly affected by this regulatory action. On December 29, 2015, we issued a final rule establishing a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and replaces the prior Small Business Administration standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all our rules subject to the RFA after July 1, 2016 (Id. at 81194). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates). Based on the information above, all businesses directly regulated by this rule are determined to be small businesses for the purpose of this analysis. This final rule is expected to directly regulate all commercial fishing entities operating vessels 40 feet and greater in length that use skimmer trawls in the southeastern U.S. shrimp fisheries, or an estimated 1,062 businesses. Data from 2011 through 2014 indicate that 9,711 vessels (8,401 in the Gulf of Mexico and 1,310 in the South Atlantic) participated in the southeastern U.S. shrimp fisheries during this time. Thus, this rule would directly regulate about 11 percent of the vessels in these fisheries, which is considered a substantial number based on existing guidance. As previously discussed, all of these affected entities have been determined, for the purpose of this analysis, to be VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 small entities. Therefore, we determine that this rule would affect a substantial number of small entities. This final rule would require all commercial fishing businesses that operate vessels 40 feet and greater in length using skimmer trawls in the southeastern U.S. shrimp fisheries (North Carolina through Texas) to use TEDs designed to exclude small sea turtles when shrimping. These TEDs successfully result in the reduced bycatch of small sea turtles, but they also result in shrimp loss and, thus, reduced shrimp harvest per tow. Although it may be theoretically possible to compensate for this reduction in harvest with additional effort (i.e., more tows or trips), increasing effort will also increase operating costs. With the exceptions of 2013 and 2014, the differential between shrimp and fuel prices has generally been very small in the past several years and, therefore, vessels are already operating on small positive or negative economic margins. Increasing effort is therefore likely to be economically risky in the short term, particularly for vessels that only or primarily harvest after season openings because catch per unit of effort steadily declines over the course of a trip and a season and thus the additional revenue from each tow or trip steadily declines as well. Further, if additional effort was cost-effective or profitable, this effort would already be occurring and part of baseline fishing behavior. Therefore, we do not expect that individual vessels would or could compensate for lost shrimp and the associated gross revenues by increasing effort. Vessels affected by this final rule would likely experience economic losses from two sources: Reduced shrimp revenue resulting from loss of shrimp catch caused by the use of TEDs and increased gear costs associated with the purchase, installation, maintenance, and replacement of newly required TEDs. Revenue loss from reduced shrimp harvest is expected to be recurring, barring changes in fishing practices, and the increased gear costs due to the purchase and installation of TEDs are expected to occur in the first year (i.e., prior to the effective date of this rule). Under normal use and proper maintenance, a TED would last more than three years and likely much longer for many vessels. In addition, TEDs can often be repaired by the owner or operator if they have or can easily obtain the proper knowledge. TEDs have been required in otter trawls for many years and a majority of the vessels directly regulated by this regulatory action also used otter trawls between PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 70059 2011 and 2014. Thus, many if not most vessel owners and captains are expected to be knowledgeable of how to maintain and use TEDs. Further, we plan to engage in significant outreach efforts to educate the owners and captains of affected skimmer vessels regarding how to use and properly maintain TEDs. Therefore, TED costs are not assumed to recur on an annual basis. In this analysis, we assume the average shrimp loss to be 6.21 percent (estimated range of 3.07–10.61 percent), the estimated cost per TED is $325 for small vessels (vessels less than 60 feet) and $550 for large vessels (vessels 60 feet or longer), and vessels are assumed to purchase/carry enough TEDs for the nets towed plus one spare set. Therefore, the actual effects of this final rule on individual vessels will vary based on gear purchase decisions (e.g., how many nets are used, how many spares are kept, and how many TEDs are purchased) and individual performance. Individual vessels may experience higher or lower shrimp loss than the average given their experience with TEDs. For example, fishers that have not traditionally had to use TEDs may initially experience shrimp loss greater than the average, which could persist until they become more familiar with the equipment, while shrimp loss for those who have experience with TEDs may be below the average. Further, in this analysis, we expect neither the ex-vessel price per pound of shrimp nor the cost per TED to change in response to supply and demand conditions. Specifically, the estimated decrease in the harvest of domestic shrimp from catch loss due to the use of TEDs is not expected to result in an increase in the ex-vessel price of domestically-harvested shrimp, nor do we expect an increase in the average price (cost) of a TED. The maximum estimated number of TEDs necessary to outfit all of the vessels regulated by this regulatory action is 4,242. The assumed stability in shrimp ex-vessel prices is based on the fact that imported shrimp dominate the U.S. market and available evidence suggests the demand for shrimp is highly elastic. Whether the price of TEDs increases and the magnitude of that increase will be determined by the number of available producers (there are currently six), their capacity to meet demand (each can currently produce 20 TEDs per week), the timeframe for compliance, and the total number of TEDs needed. The total number of TEDs needed will be affected by vessel owners’ purchase decisions and the number of vessels that can successfully remain in operation in the face of the higher operating costs and E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70060 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations reduced revenue. Though not expected, if the ex-vessel price of shrimp increases due to reduced supply, this analysis will overstate the adverse economic effects of lost shrimp revenue. Conversely, if the price of a TED increases, the adverse economic effects associated with TED costs will be understated. Because the increased gear costs associated with purchasing TEDs would be incurred in the first year but only periodically thereafter, whereas shrimp loss would recur on each trip in every year, the following analysis focuses on first-year results (i.e., results that include both TED purchase costs and shrimp revenue reduction). The adverse effects in subsequent years will be less than those in the first year. As previously stated, effects in subsequent years would be expected to vary with fishing adaptations (e.g., fishers may become more skilled in how the nets with TEDs are fished, thereby reducing shrimp loss), as well as unpredictable and unknown TED replacement schedules. In this analysis, all of the monetary effects provided are in 2014 dollars. Over all of the businesses expected to be affected (1,062 vessels), this final rule would be expected to result in a reduction in gross revenue of approximately $2.29 million, TED costs of approximately $1.38 million, and thus a total adverse effect of approximately $3.67 million in the first year, assuming no vessels cease operations as a result of this rule. The average adverse effects per vessel in the first year would be $2,159 lost gross revenue and $1,298 in TED costs, and, thus, the average total adverse effect per vessel would be $3,457. These effects are not expected to be uniform across Gulf of Mexico and South Atlantic vessels. The 1,047 vessels in the Gulf of Mexico are expected to experience average adverse effects of $2,184, $1,298, and $3,482 in the first year with respect to lost gross revenue, TED costs, and total adverse effects, respectively. In general, the comparable values for the 15 South Atlantic vessels are much less at $429, $1,300, and $1,729, respectively. However, these values insufficiently capture the range of differences in the economic performance of vessels across the fisheries. To examine these differences, we placed vessels in a category based on their average annual gross (total) revenue from 2011–2014. These categories are based on vessel categories developed for or derived from the annual economic reports for Federally-permitted vessels in the Gulf of Mexico and the South Atlantic, and VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 a 2014 economic report for nonFederally-permitted vessels in the Gulf of Mexico. Vessels were placed in the category that their average annual gross revenue most closely approximated. In the South Atlantic, the distribution of gross revenue between shrimp and nonshrimp species was also taken into account. In the Gulf of Mexico, vessels were placed into one of six categories: Average Federally-permitted vessel (Federal Gulf of Mexico), Q5, Q4, Q3, Q2, and Q1. Specifically, in the Gulf of Mexico, the average annual gross revenue ranges for the Federal Gulf, Q5, Q4, Q3, Q2, and Q1 categories are as follows: >/=$255,000, <$255,000 and >/ =$119,000, <$119,000 and >/=$52,000, <$52,000 and >/=$29,000, <$29,000 and >/=$17,000, and <$17,000. In the South Atlantic, vessels were placed into nine categories: Rock shrimp (RSLA), primary penaeid (SPA Primary), secondary penaeid (SPA Secondary), average Federally-permitted South Atlantic penaeid vessel (AS), Q5, Q4, Q3, Q2, and Q1. A vessel was placed in the RSLA category if 50 percent or more of its gross revenue came from shrimp and its average annual gross revenue was >/=$456,000. A vessel was placed in the AS category if 50 percent or more of its gross revenue came from shrimp and its average annual gross revenue was <$456,000 and >/=$216,000. A vessel was placed in the SPA Primary category if 50 percent or more of its gross revenue came from shrimp and its average annual gross revenue was <$216,000 and >/=$119,000. Finally, a vessel was placed in the SPA Secondary category if <50 percent of its gross revenue came from shrimp and its average annual gross revenue was >/= $119,000. The ranges are the same as in the Gulf of Mexico for the Q5, Q4, Q3, Q2, and Q1 categories. These categories should not be presumed to imply that every vessel in a particular category has a particular permit associated with the category name, as that is not always the case. Among these vessel categories for vessels in both areas, vessels in the Q1, Q2, and Q3 categories are considered, for the purpose of this analysis, as parttime commercial shrimp vessels (i.e., vessels that are only engaged in commercial fishing part-time) and vessels in each of the other categories are considered full-time vessels. For Gulf of Mexico vessels, the number of vessels expected to be directly regulated by this final rule and their average annual gross revenue for 2011–2014 by category are as follows: 265 vessels and $6,661 (Q1), followed by 116 vessels and $23,060 (Q2), 169 PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 vessels and $39,947 (Q3), 303 vessels and $80,411 (Q4), 139 vessels and $163,311 (Q5), and 55 vessels and $397,640 (Federal Gulf of Mexico). The expected average adverse effect (reduced shrimp revenue and TED cost) of this regulatory action in the first year for these vessels by category is $1,615, $2,175, $2,697, $4,677, $6,450, and $3,558 for vessels in each category, Q1– Q5 and Federal Gulf of Mexico, respectively. Although the average adverse effects of this final rule could be compared to the average gross revenue to generate an estimate of the average relative (percent) effect of the rule by category, this ‘‘average to average’’ approach (average adverse effect/average gross revenue for each category) would provide a distorted perspective of the actual expected effects of this rule at the vessel level. For example, using this ‘‘average to average’’ approach for category Q1, the average estimated adverse effect of this rule would be approximately 24 percent ($1,615/$6,661), and thus the projected average adverse effect of this rule per vessel in the Q1 category would be 24 percent of average annual gross revenue). Although this outcome would not likely be considered insignificant, examination of the adverse effect by vessel (adverse effect/average gross revenue for that vessel), then averaged across all vessels, provides a much clearer picture of the expected economic burden of this regulatory action because it accounts for the heterogeneity of vessels within categories. Using this approach, the relative adverse effect of this rule as a percentage of average annual gross revenue increases to 85 percent for vessels in the Q1 category. This result demonstrates that most of these vessels generate minimal fishing revenue year-to-year, and the costs of the TEDs alone are likely to be financially unbearable even before factoring in the loss of shrimp revenue. Applying this approach (analysis at the vessel level, then averaging across all vessels) to all revenue categories for Gulf of Mexico vessels, the percent loss relative to gross revenue would be expected to be 85 percent (Q1), 9.5 percent (Q2), 6.9 percent (Q3), 5.9 percent (Q4), 4.2 percent (Q5), and 1.1 percent (Federal Gulf of Mexico). These results demonstrate that, although the expected effects in absolute monetary terms are greater for the vessels that generate the highest average annual gross revenues and are considered fulltime vessels (i.e., Q4, Q5 and Federal Gulf of Mexico vessels), the relative effect of this rule would be greater on part-time vessels with the lowest E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations average annual gross revenues (i.e., Q1, Q2, and Q3 vessels). The number of South Atlantic vessels expected to be directly regulated by this final rule and, where disclosable, their average annual gross revenue for 2011– 2014 by category are as follows: 4 vessels and $5,832 (Q1) vessels, 5 vessels and $70,860 (Q4), and 3 vessels and $835,270 (RSLA). In addition, 1 vessel in the SPA Secondary category and 2 vessels in the Q2 category are expected to be affected. Because the expected number of businesses affected by this regulatory action in the SPA Secondary and Q2 categories is so small, neither baseline economic information nor expected economic effects directly derived from that baseline economic information can be reported for these entities due to confidentiality restrictions. The expected average adverse effect (reduced shrimp revenue and TED cost) of this regulatory action in the first year for these vessels is $1,378, $2,180, and $1,308 for vessels in the Q1, Q4 and RSLA categories, respectively. Using the same vessellevel analytical approach discussed above for Gulf of Mexico vessels, the percent loss relative to gross revenue expected for South Atlantic vessels by category is 77.5 percent (Q1), 7.9 percent (Q2), 3.4 percent (Q4), 0.2 percent (RSLA), and 0.1 percent (SPA Secondary). Using the same vessel-level analytical approach discussed above for Gulf of Mexico vessels, the percent loss relative to gross revenue expected for South Atlantic vessels by category would be 69.1 percent (Q1), 7.6 percent (Q2), 4.9 percent (Q3), 2.8 percent (Q4), and 0.2 percent (RSLA). Although the expected effects in absolute monetary terms for the South Atlantic vessels do not follow as markedly the same pattern as those for Gulf of Mexico vessels, fulltime vessels in the South Atlantic would generally be expected to experience greater average adverse effects than part-time vessels. However, the range of the difference is only several hundred dollars for South Atlantic vessels and not thousands of dollars as expected in the Gulf of Mexico. Further, although the relative effects in general are not expected to be as great for South Atlantic vessels, the relative effects on the part-time vessels in the South Atlantic still exceed those of full-time vessels. Although the effects on some South Atlantic part-time vessels may be so great as to render continued operation as a commercial fishing vessel economically infeasible, as with some part-time vessels in the Gulf of Mexico, only 6 part-time vessels are affected in the South Atlantic. VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 The average lifespan of a TED is inversely related to how often it is used for harvesting shrimp (i.e., the more it is used in a particular period of time, the shorter its lifespan will be). At some point over the 10-year time period considered in the analysis, there will be recurring TED costs for the Q2, Q3, Q4, and Q5 vessels, the frequency of which will vary with the average number of days they shrimp in each year level. Because the Q4 and Q5 vessels spend more days shrimping in a year on average, they will experience recurring TED costs more often than the Q2 and Q3 vessels. The Q1 vessels are not expected to experience recurring TED costs in this analysis because TEDs are expected to last about 15 years due to the relatively small number of days they spend shrimping on average in any given year. In spite of the results presented above, the preceding analysis does not assume nor conclude that any specific individual or total number of vessels would be expected to stop operating in the southeastern U.S. shrimp fisheries because of this final rule. However, the vessels most likely to shut down because of these adverse effects are the part-time vessels (i.e., Q1, Q2, and Q3 vessels). These vessels have the lowest average annual gross revenues per vessel, are thought to earn relatively high negative net revenues (losses) on average, and are, therefore, the least able to absorb revenue reductions and cost increases. On the other hand, at least some of these vessels continued to commercially harvest shrimp in 2013 and 2014 after experiencing relatively high losses in 2012. This suggests either available data incompletely captures the ‘‘economics’’ of these operations (e.g., the value of shrimp retained for personal consumption or bartering purposes is not considered), or the decision to harvest shrimp is based on criteria other than, or in addition to, considerations of economic profit and loss, such as personal consumption of harvested shrimp and associated value and lifestyle bonus (i.e., the value of the commercial fishing lifestyle). Nonetheless, in theory, vessels and businesses in general are expected to shut down when they cannot cover their variable costs. However, data on variable costs is not available for all vessels affected by this final rule. Estimates of average variable costs for a relatively small sample of the affected vessels are available, as are estimates of net revenues, but those estimates are insufficient with respect to determining how many and which vessel owners may choose to stop operating. Thus, the most appropriate measure to use for PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 70061 projecting how many and which vessels may stop operating is the percentage loss in average annual gross revenue, estimates of which are available for all of the affected vessels. There is no single ‘‘hard and fast’’ decision rule for determining what percentage loss in gross revenue will definitively cause a vessel or any other business to stop operating. However, given the characteristics of the part-time vessels as noted above, it is reasonable to assume that an adverse effect (i.e., the combination of additional costs and revenue reductions) in the first year that represents more than 20 percent of their average annual gross revenue would be sufficient to cause them to shut down. Applying this assumption to the vessels affected by this rule results in the following findings. The number of part-time skimmer trawl vessels 40 feet and greater in length projected to potentially shut down in the Gulf of Mexico is 178, or approximately 2 percent of the 8,401 shrimp vessels in the Gulf of Mexico, 17 percent of the 1,047 affected shrimp vessels in the Gulf of Mexico, and about 32 percent of the 550 part-time shrimp vessels affected in the Gulf of Mexico. The number of part-time vessels projected to shut down in the South Atlantic is only 2, or approximately 0.1 percent of the 1,310 shrimp vessels in the South Atlantic, 13 percent of the 15 affected vessels in the South Atlantic, and one-third of the 6 part-time shrimp vessels affected in the South Atlantic. As some uncertainty exists with respect to how business owners will respond, these estimates should be viewed with some caution. In general, if vessels shut down, they will no longer be landing shrimp or other species, nor will they be generating gross revenues or net revenues associated with those landings (i.e., their loss in landings and gross revenue is 100 percent). Further, the average percentage loss in annual gross revenue per vessel will in turn increase, particularly in the long term because shutting down causes a long-term reduction in landings and gross revenue for the vessels that shut down. In theory, the loss of net revenues may improve or worsen average economic performance within the affected group of vessels depending on whether the economic performance (as measured by net revenues) of the vessels that shut down is better or worse than the average affected vessel. Because the vessels shutting down are thought to experience relatively high losses, average net revenues for those that continue operating would be expected to improve. On the other hand, because E:\FR\FM\20DER1.SGM 20DER1 jbell on DSKJLSW7X2PROD with RULES 70062 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations vessels that shut down will no longer require TEDs, the number of TEDs needed, the total costs of purchasing those TEDs, and the average cost of TEDs per affected vessel will decrease. The decrease in TED costs will help to mitigate the adverse effects across all vessels, but the losses in gross revenue would generally be expected to far outweigh the reductions in TED costs and thus the average adverse effect per affected vessel would be expected to increase. Further, the reductions in total TED costs would not reduce such costs for the vessels that continue operating as those would be expected to remain unchanged. Seven alternatives, including no action, were considered for this final rule. The first alternative (no action) to the rule would not expand the required use of TEDs. The ‘‘no action’’ alternative would not achieve the objective of reducing the incidental bycatch and mortality of ESA-listed sea turtles, particularly small sea turtles, in the southeastern U.S. shrimp fisheries in order to aid in protection and recovery. The second alternative to the final rule would have expanded the required use of TEDs to vessels 26 feet and greater in length using skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls) to harvest shrimp in the southeastern U.S. This alternative was not selected as it would have been expected to affect more vessels (3,103) and increase the total expected TED costs and shrimp revenue loss compared to this rule. In addition, this alternative would have potentially caused an additional 680 part-time vessels to cease operations, and it would have taken almost 1.5 additional years to produce the number of TEDs necessary for all vessels to comply compared to this rule. This alternative was also not selected because, to date, we have no fishery observer data or TED testing information on any vessels using pusher-head trawls or wing nets in the southeastern U.S. shrimp fisheries. Concerns were expressed about applying data regarding the use of TEDs in skimmer trawl operations to pusher-head trawls and wing nets. New information indicated significant differences in the manner pusher-head trawls and wing nets operate compared to skimmer trawls, and therefore we determined additional gear testing is needed for those types. The third alternative to the final rule would have expanded the required use of TEDs to vessels that use skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls) in the southeastern U.S. shrimp fisheries (North Carolina through Texas), with the exception of vessels that use wing VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 nets in Biscayne Bay in Miami-Dade County, Florida. This alternative was the preferred alternative in the proposed rule. This alternative was not selected because it would have been expected to affect significantly more vessels (5,847) and significantly increase the total expected TED costs and the shrimp revenue loss compared to this rule. This alternative was also not selected would have potentially caused an additional 2,630 part-time vessels to cease operations, and it would have taken almost 3.5 additional years to produce the number of TEDs necessary for all vessels to comply compared to this rule. In addition, to date, we have no fishery observer data on skimmer trawl vessels less than 26 feet in length or TED testing information on skimmer trawl vessels less than 25 feet in length in the southeastern U.S. shrimp fisheries. Thus, we do not have adequate information to determine the effectiveness and practicability of TEDs on skimmer trawl vessels less than 26 feet in length. Some of our concerns included the ability to adequately install TEDs in the nets of these vessels without significant modifications to vessel rigging. Other identified issues included the potential lack of deck space to accommodate TEDs. On very small vessels, such as skiffs 18 feet in length for example, there is limited space to sort catch and handle gear. These types of issues have complicated TED testing, as there is little space for observers, and would likely complicate enforcement and compliance checks at sea. Further, there were potential navigational concerns with TEDs installed on vessels less than 26 feet in length. For example, there were concerns the TED extension could interfere with the engine while maneuvering a small vessel. A net lengthened to accommodate a TED on a small vessel could potentially foul the engine and immobilize a vessel, presenting a potential safety issue. We are conducting additional testing before requiring TEDs on vessels less than 26 feet in length. The fourth alternative to the final rule would have expanded the required use of TEDs to vessels 26 feet and greater in length using skimmer trawls. This alternative would have been expected to affect significantly more vessels (2,913) and lead to higher TED costs and greater shrimp revenue losses compared to this rule. This alternative would have also potentially caused an additional 623 part-time vessels to cease operations, and it would have taken almost 1.5 additional years to produce the number PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 of TEDs necessary for all vessels to comply compared to this rule. The fifth alternative to the final rule would have expanded the required use of TEDs to all vessels using skimmer trawls regardless of vessel length. Similar to the third alternative, this alternative would have been expected to affect significantly more vessels (5,432) and significantly increase the total expected TED costs and shrimp revenue loss compared to the rule. This alternative was also not selected would have potentially caused an additional 2,417 part-time vessels to cease operations, and it would have taken almost 3.5 additional years to produce the number of TEDs necessary for all vessels to comply compared to this rule. In addition, this alternative was also not selected for the reasons noted above with respect to why the TED requirement was not expanded to vessels less than 26 feet in length. The sixth and seventh alternatives to the final rule would have expanded the required use of TEDs to all shrimp vessels regardless of trawl type but varying by fishing location (i.e., state waters only or all waters). These alternatives were not selected for the same reasons the second, third, and fourth alternatives were not selected. These alternatives were also not selected because they would have been expected to affect significantly more vessels (9,711 for both alternatives) and result in significantly greater expected increases in TED costs and shrimp revenue loss, with a relatively minor increase in the expected protection of small sea turtles, compared to the rule. These alternatives were also not selected because they would have potentially caused an additional 3,972 part-time vessels to cease operations, and it would have taken more than 7 additional years to produce the number of TEDs necessary for all vessels to comply compared to this rule. Based on the above information, the alternative chosen in this final rule has minimized the expected adverse effects on small entities compared to the other significant alternatives considered that would achieve the objectives of this rule and the ESA. Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as ‘‘small entity compliance guides.’’ The agency shall explain the actions a small entity is required to take to comply with a rule E:\FR\FM\20DER1.SGM 20DER1 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. The compliance guide will be distributed to affected entities by sending copies of the guide to fishing industry and interest groups (e.g., Louisiana Shrimp Association, Audubon Nature Institute—G.U.L.F., VietnameseAmerican Fisher Folk and Families, and Coastal Communities Consulting, Inc., etc.) and to state fish and wildlife agencies in Louisiana, Mississippi, Alabama, Florida, and North Carolina. In addition, copies of this final rule and the compliance guide are available from the Regional Administrator (see ADDRESSES) and at the following website: https://www.fisheries.noaa.gov/ southeast/bycatch/turtle-excluderdevice-regulations. As noted in the response to comment 8, we intend to offset this action as soon as practicable after publication to comply with Executive Order 13771. List of Subjects in 50 CFR Part 223 Endangered and threatened species, Exports, Imports, Transportation. Dated: December 16, 2019. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 223 is amended as follows: PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: ■ Authority: 16 U.S.C. 1531–1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). 2. In § 223.206, revise paragraphs (d)(2)(ii)(A)(3) and (d)(3)(i) introductory text to read as follows: ■ § 223.206 Exceptions to prohibitions relating to sea turtles. jbell on DSKJLSW7X2PROD with RULES * * * * * (d) * * * (2) * * * (ii) * * * (A) * * * (3) Has only a pusher-head trawl or a wing net, or has a skimmer trawl on a vessel less than 40 ft (12.2 m) in length as indicated on the vessel’s state vessel registration or U.S. Coast Guard vessel documentation. * * * * * (3) Tow-time restrictions—(i) Duration of tows. If tow-time restrictions are used pursuant to paragraph (d)(2)(ii), VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 (d)(3)(ii), or (d)(3)(iii) of this section, a shrimp trawler must limit tow times. The tow time begins at the time the trawl door enters the water and ends at the time the trawl door is removed from the water. For a trawl that is not attached to a door, the tow time begins at the time the codend enters the water and ends at the time the codend is emptied of catch on deck. Tow times may not exceed: * * * * * ■ 3. In § 223.207 revise paragraphs (a)(4), (a)(6), (a)(7)(ii)(B) and (C), and (d)(3)(ii) and (iii) and add paragraph (d)(3)(v) to read as follows: § 223.207 Approved TEDs. * * * * * (a) * * * (4) Space between bars. The space between deflector bars and the deflector bars and the TED frame must not exceed 4 inches (10.2 cm), except for TEDs required to be installed in skimmer trawls, where the space between deflector bars and the deflector bars and the TED frame must not exceed 3 inches (7.6 cm). * * * * * (6) Position of the escape opening. The escape opening must be made by removing a rectangular section of webbing from the trawl, except for a TED with an escape opening size described at paragraph (a)(7)(ii)(A) of this section for which the escape opening may alternatively be made by making a horizontal cut along the same plane as the TED. A TED installed in a skimmer trawl rigged for fishing must have the escape opening oriented at the top of the net. For TEDs installed in all other trawls, the escape opening must be centered on and immediately forward of the frame at either the top or bottom of the net when the net is in the deployed position. The escape opening must be at the top of the net when the slope of the deflector bars from forward to aft is upward, and must be at the bottom when such slope is downward. The passage from the mouth of the trawl through the escape opening must be completely clear of any obstruction or modification, other than those specified in paragraph (d) of this section. (7) * * * (ii) * * * (B) The 71-inch opening. The two forward cuts of the escape opening must not be less than 26 inches (66 cm) long from the points of the cut immediately forward of the TED frame. The resultant length of the leading edge of the escape opening cut must be no less than 71 inches (181 cm) with a resultant circumference of the opening being 142 PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 70063 inches (361 cm) (Figure 12 to this part). A webbing flap, as described in paragraph (d)(3)(ii) or (v) of this section, may be used with this escape hole, so long as this minimum opening size is achieved. Either this opening or the one described in paragraph (a)(7)(ii)(C) of this section must be used in all offshore waters and in all inshore waters in Georgia and South Carolina, but may also be used in other inshore waters. (C) Double cover opening. The two forward cuts of the escape opening must not be less than 20 inches (51 cm) long from the points of the cut immediately forward of the TED frame. The resultant length of the leading edge of the escape opening cut must be no less than 56 inches (142 cm) (Figure 16 to this part illustrates the dimensions of these cuts). A webbing flap, as described in paragraph (d)(3)(iii) or (v) of this section, may be used with this escape hole. Either this opening or the one described in paragraph (a)(7)(ii)(B) of this section must be used in all offshore waters and in all inshore waters in Georgia and South Carolina, but may also be used in other inshore waters. * * * * * (d) * * * (3) * * * (ii) 71-inch TED flap. The flap must be a 133-inch (338-cm) by 52-inch (132cm) piece of webbing. The 133-inch (338-cm) edge of the flap is attached to the forward edge of the opening (71inch (180-cm) edge). The flap may extend no more than 24 inches (61 cm) behind the posterior edge of the grid (Figure 12 to this part illustrates this flap). (iii) Double cover TED flap. This flap must be composed of two equal size rectangular panels of webbing. Each panel must be no less than 58 inches (147.3 cm) wide and may overlap each other no more than 15 inches (38.1 cm). The panels may only be sewn together along the leading edge of the cut. The trailing edge of each panel must not extend more than 24 inches (61 cm) past the posterior edge of the grid (Figure 16 to this part). Each panel may be sewn down the entire length of the outside edge of each panel. This paragraph (d)(3) of this section notwithstanding, this flap may be installed on either the outside or inside of the TED extension. For interior installation, the flap may be sewn to the interior of the TED extension along the leading edge and sides to a point intersecting the TED frame; however, the flap must be sewn to the exterior of the TED extension from the point at which it intersects the TED frame to the trailing edge of the flap. Chafing webbing described in E:\FR\FM\20DER1.SGM 20DER1 70064 Federal Register / Vol. 84, No. 245 / Friday, December 20, 2019 / Rules and Regulations paragraph (d)(4) of this section may not be used with this type of flap. * * * * * (v) Small turtle TED flap. If the angle of the deflector bars of a bent bar TED used by a skimmer trawl exceeds 45°, or if a double cover opening straight bar TED (at any allowable angle) is used by a skimmer trawl, the flap must consist of twine size not greater than number 15 (1.32-mm thick) on webbing flaps described in paragraph (d)(3)(i), (ii), (iii), or (iv) of this section. * * * * * [FR Doc. 2019–27398 Filed 12–19–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 191212–0112] RIN 0648–BJ02 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod Management in the Groundfish Fisheries of the Bering Sea and Aleutian Islands and the Gulf of Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS issues regulations to implement Amendment 120 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands (BSAI) Management Area (BSAI FMP) and Amendment 108 to the FMP for Groundfish of the Gulf of Alaska (GOA) (GOA FMP). Amendment 120 and this final rule limit the number of catcher/processors (C/Ps) eligible to operate as motherships receiving and processing Pacific cod from catcher vessels (CVs) directed fishing in the BSAI non-Community Development Quota Program Pacific cod trawl fishery. Amendment 120, Amendment 108, and this final rule prohibit replaced Amendment 80 C/Ps from receiving and processing Pacific cod harvested and delivered by CVs directed fishing for Pacific cod in the BSAI and GOA. This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), Amendments 120 and 108, the BSAI and GOA FMPs, and other applicable laws. jbell on DSKJLSW7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:09 Dec 19, 2019 Jkt 250001 This rule is effective on January 20, 2020. ADDRESSES: Electronic copies of Amendment 120 to the BSAI FMP, Amendment 108 to the GOA FMP, the Regulatory Impact Review (RIR; also referred to as the Analysis) and the National Environmental Policy Act (NEPA) Categorical Exclusion evaluation document may be obtained from www.regulations.gov. Electronic copies of Amendments 61, 80, 85, and 97 to the BSAI FMP, and the Environmental Assessments (EAs)/RIRs or Environmental Impact Statements prepared for those actions may be obtained from https:// www.fisheries.noaa.gov/alaska/ sustainable-fisheries/sustainablefisheries-alaska. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted by mail to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802–1668, Attn: Glenn Merrill; in person at NMFS Alaska Region, 709 West 9th Street, Room 401, Juneau, AK; by email to OIRA_Submission@ omb.eop.gov; or by fax to 202–395– 5806. DATES: FOR FURTHER INFORMATION CONTACT: Bridget Mansfield, 907–586–7228. This final rule implements Amendment 120 BSAI FMP and Amendment 108 to the GOA FMP, collectively referred to as Amendments 120/108. The Council submitted Amendments 120/108 for review by the Secretary of Commerce (Secretary), and a Notice of Availability of Amendments 120/108 was published in the Federal Register on August 21, 2019 with comments invited through October 21, 2019 (84 FR 43576). The Secretary approved Amendments 120/ 108 on November 19, 2019. The proposed rule to implement Amendments 120/108 published in the Federal Register on September 27, 2019 (84 FR 51092) with comments invited through October 28, 2019. NMFS received six comment letters containing nine individual comments from six unique individuals during the comment periods for Amendments 120/108 and the proposed rule. The six commenters consisted of one association representing shoreside processors, one individual representing five communities in one Alaskan Borough, and four companies representing C/Ps. A summary of these comments and the responses by NMFS are provided under the heading ‘‘Comments and Responses’’ below. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 A detailed review of the provisions of Amendments 120/108, the proposed regulations to implement Amendments 120/108 (84 FR 51092, September 27, 2019), and the rationale for this action is provided in the preamble to the proposed rule and is briefly summarized in this final rule. This preamble uses specific terms (e.g., Amendment 80 sector, directed fishing) that are described in regulation and in the preamble to the proposed rule. We refer the reader to the preamble to the proposed rule for additional detail. Background NMFS manages the BSAI Pacific cod fishery under a total allowable catch (TAC) limit with portions of the TAC allocated to the Western Alaska Community Development Quota (CDQ) Program, the Amendment 80 sector, and the BSAI trawl limited access sector, which, in part, includes the American Fisheries Act (AFA) and the BSAI trawl catcher vessel sectors. CVs directed fishing in the BSAI non-CDQ Pacific cod trawl CV fishery deliver to shoreside processors and motherships offshore. A ‘‘mothership’’ is defined as a vessel that receives and processes groundfish from other vessels (see definition at 50 CFR 679.2). The BSAI Pacific cod trawl CV fishery has seen rapid increases in CV and mothership participation from 2016 through 2018 as compared to fishery participation patterns prior to 2016 (i.e., from 2003 through 2015, as described in Section 2.7.1 of the Analysis). This increase in trawl CVs delivering Pacific cod to an increased number of C/Ps operating as motherships has resulted in a corresponding decrease in Pacific cod landings at BSAI shoreside processing facilities. Also since 2016, the BSAI Pacific cod TAC has been more fully harvested and the fishing season has grown shorter as the TAC has been reached earlier. Section 2.7.1 of the Analysis prepared for this action notes that the potential exists for up to 40 additional Amendment 80 C/Ps and AFA C/Ps to participate as motherships in the fishery, providing processing capacity for additional CVs, which would put greater fishing pressure on the fishery. The Council determined, and NMFS agrees, that limiting access to the BSAI Pacific cod fishery by motherships receiving and processing Pacific cod from CVs directed fishing using trawl gear is needed, given the expectation of additional capacity entering the fishery. The Council adopted its preferred alternative for Amendments 120/108 at its April 2019 meeting. E:\FR\FM\20DER1.SGM 20DER1

Agencies

[Federal Register Volume 84, Number 245 (Friday, December 20, 2019)]
[Rules and Regulations]
[Pages 70048-70064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27398]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223

[Docket No. 161109999-8845-02]
RIN 0648-BG45


Sea Turtle Conservation; Shrimp Trawling Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the NMFS, are issuing a final rule to amend the 
alternative tow time restriction to require all skimmer trawl vessels 
40 feet and greater in length to use turtle excluder devices (TEDs) 
designed to exclude small sea turtles in their nets. The purpose of 
this rule is to reduce incidental bycatch and mortality of sea turtles 
in the southeastern U.S. shrimp fisheries, and to aid in the protection 
and recovery of listed sea turtle populations. We are also amending the 
definition of tow time to better clarify the intent and purpose of tow 
times to reduce sea turtle mortality, and we are refining additional 
portions of the TED requirements to avoid potential confusion.

DATES: This final rule is effective on April 1, 2021.

ADDRESSES: Public comments and other supporting materials are available 
at www.regulations.gov identified by docket number NOAA-NMFS-2016-0151, 
or by submitting a request to Michael Barnette, Southeast Regional 
Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-551-5794, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Under the Endangered Species Act (ESA) and its implementing 
regulations, taking (e.g., harassing, injuring or killing) sea turtles 
is prohibited, except as identified in 50 CFR 223.206 in compliance 
with the terms and conditions of a biological opinion issued under 
section 7 of the ESA, or in accordance with an incidental take permit 
issued under section 10 of the ESA. Incidental takes of threatened and 
endangered sea turtles during shrimp trawling are exempt from the 
taking prohibition of section 9 of the ESA so long as the conservation 
measures specified in the sea turtle conservation regulations (50 CFR 
223.206; 50 CFR 224.104) are followed.
    On March 15, 2016 (81 FR 13772), we published a notice of intent to 
prepare an environmental impact statement to analyze potential 
revisions to the sea turtle conservation regulations, and conducted 
five scoping meetings in April 2016. We then incorporated the 
information and public comments gathered during that process into a 
draft environmental impact statement (DEIS), the notice of availability 
of which was published on December 16, 2016 (EIS No. 20160294; 81 FR 
91169). The analysis included in this DEIS demonstrated that 
withdrawing the alternative tow time restriction and requiring TEDs in 
all skimmer trawls, pusher-head trawls, and wing nets (butterfly 
trawls) rigged for fishing, with the exception of vessels participating 
in the Biscayne Bay wing net fishery prosecuted in Miami-Dade County,

[[Page 70049]]

Florida, would reduce the incidental bycatch and mortality of sea 
turtles in the southeastern U.S. shrimp fisheries. Therefore, it may be 
a necessary and advisable action to conserve threatened and endangered 
sea turtle species. Accordingly, we published a proposed rule (81 FR 
91097; December 16, 2016) to withdraw the tow time restriction and 
include the required TED specifications for these gear types, as well 
as amend the tow time definition and clarify the names of the allowable 
TED openings and webbing flaps to improve understanding.

Changes From the Proposed Rule

    Based on public comment raising performance and safety issues with 
TED use on smaller vessels and regarding the economic impacts of the 
proposed rule, and new information indicating significantly lower 
levels of sea turtle mortality in the offshore fleet, we have revised 
the regulation to limit the TED requirements to skimmer trawl vessels 
40 feet and greater in length. After reviewing concerns about applying 
TED testing data from skimmer trawl operations to pusher-head trawls 
and wing nets, coupled with a lack of observer data for these vessels, 
we have decided to maintain the tow time-requirement option for these 
other types of vessels. This final rule only requires TEDs on skimmer 
trawl vessels 40 feet and greater in length. This rule will achieve a 
significant conservation benefit for listed sea turtles, while 
affecting significantly fewer vessels and imposing far fewer costs upon 
industry. Because fewer TEDS will need to be manufactured to supply the 
vessels covered under the final rule, this rule can be implemented in 
far less time than the proposed rule, allowing for more focused and 
expedient sea turtle conservation. For purposes of this rule, vessel 
length is the length specified on the vessel's state vessel 
registration or U.S. Coast Guard vessel documentation required to be 
onboard the vessel while fishing.
    The proposed rule also included a revision to the tow time 
definition that would have required vessels to remove their entire net 
and rigging from the water at specific intervals, instead of just the 
tail bag as is often done by skimmer trawl vessel operators. For small 
vessels that lack hydraulics, this process takes significant time and 
potentially makes the vessel unstable while raising the nets, which 
could introduce safety issues. Therefore, we revised our proposed tow 
time definition to avoid these potential scenarios while allowing for a 
more complete inspection of the net for captured sea turtles and 
clarifying what is required to end a tow under the regulations. For 
vessels using pusher-head trawls or wing nets, vessels less than 40 
feet in length using skimmer trawls, or vessels considered as live bait 
shrimpers operating under the allowable tow time exemption, we are 
requiring the net to be emptied of catch on the deck within the 
specified time. This prevents vessels from lifting the tail bag clear 
of the water and potentially lowering it quickly back in due to 
concerns about the sufficiency of the shrimp catch. We believe this 
will result in the intended identification and safe release of any sea 
turtle captured in a net while minimizing issues to trawling 
operations, and more clearly identifies what is required of vessels to 
comply with tow time limits.
    The proposed rule anticipated a six-month delay in effectiveness 
and solicited public input on different options for the phased 
implementation of the final rule. The revisions between the proposed 
and final rule have reduced the number of affected fishers by 82 
percent, reduced the total economic effect by 73 percent, and are 
expected to result in a conservation benefit of 801-1,168 sea turtles 
annually in the Southeastern U.S. shrimp fisheries. The complete 
analysis for this alternative is included in a final environmental 
impact statement (FEIS), the notice of availability of which was 
published on November 15, 2019 (EIS No. 20190270; 84 FR 62530). We 
believe delaying the effectiveness of the rule until April 1, 2021 is 
warranted, as that will be an adequate period to allow for the 
manufacture of the necessary number of TEDs and for fishers, 
particularly lower income fishers, to financially prepare for the 
regulation.

Summary of Comments

    We held 6 public hearings on the proposed rule in January 2017. 
Approximately 70 individuals attended the January 9 Larose, Louisiana 
meeting; 80 attended the January 10 Gretna, Louisiana meeting; 50 
attended the January 10 Belle Chasse, Louisiana meeting; 50 attended 
the January 11 Biloxi, Mississippi meeting; 15 attended the January 12 
Bayou La Batre, Alabama meeting; and 15 attended the January 18 
Morehead City, North Carolina meeting. We conducted additional 
presentations on February 8 in Houma, Louisiana for the Louisiana 
Shrimp Task Force meeting and on February 16 for the Gulf of Mexico 
Fishery Management Council's Shrimp Advisory Panel. During the comment 
periods on the DEIS and proposed rule, we received approximately 38,500 
comments encompassed in 1,200 submissions (e.g., one submission was a 
petition with 33,807 signatures; one submission consisted of 3,408 
individual comments; other submissions summarized comments from 
multiple individuals). Below we summarize these comments, as well as 
comments received during the six public hearings and two additional 
presentations. We received additional comments advocating sea turtle 
conservation measures not related to the southeastern U.S. shrimp 
fisheries. Given the lack of relevance to this regulatory action, they 
are not addressed in the following responses. The public comment period 
on the DEIS officially ended on January 30, 2017, and the public 
comment period on the proposed rule officially ended on February 14, 
2017.

General Comments

    Comment 1: Numerous comments support the required use of TEDs 
designed to exclude small turtles in skimmer trawls, pusher-head 
trawls, and wing nets.
    Response: We agree that use of TEDs in skimmer trawls will benefit 
sea turtle populations and that use of TEDs on pusher heads and wing 
nets might benefit sea turtle populations, but due to a lack of data 
further study is required. At this time, there is a need to further 
explore efficacy and safety issues related to TED use on pusher-head 
trawls and wing nets, as well as small skimmer trawl vessels. 
Therefore, this final rule will only require TEDs on skimmer trawl 
vessels 40 feet and greater in length. Existing tow time requirements 
are maintained for pusher-head trawls, wing nets, and smaller skimmer 
trawl vessels.
    Comment 2: All bottom trawls operating in the southeast region 
should be required to have TEDs, not just selected gear in the shrimp 
fisheries; NOAA should expand the TED requirement to all trawls; NOAA 
should require TEDs in try nets; NOAA should consider narrower TED bar 
spacing.
    Response: We are continually evaluating fisheries that have the 
potential to impact sea turtle populations to assess if there are 
practical ways to minimize bycatch and mortality to the maximum extent 
practicable. Trawl fisheries in the Atlantic and the Gulf of Mexico 
have been documented to frequently interact with sea turtles due to the 
spatial and temporal overlap of the fisheries with sea turtle habitat. 
As a result, we are currently testing TEDs for try nets in the shrimp 
fisheries, as well as TEDs in other trawl fisheries (e.g., mid-Atlantic 
croaker fisheries). We have also

[[Page 70050]]

conducted testing of narrower TED bar spacing in the past. In some 
fishing conditions, however, narrower bar spacing results in excessive 
catch loss and reduced gear performance. The TED bar spacing 
requirements in this rule and existing regulations are based on the 
segment of sea turtle populations that may be encountered by these 
particular fisheries and their respective fishing conditions.
    Comment 3: Numerous comments support the status quo and oppose the 
required use of TEDs designed to exclude small turtles in skimmer 
trawls, pusher-head trawls, and wing nets. Similar comments suggest 
current tow times are sufficient to avoid sea turtle bycatch mortality, 
as evidenced by the growing number of Kemp's ridley nests.
    Response: We have observer data that document sea turtle mortality 
resulting from incidental capture in skimmer trawls during tows that 
were compliant with tow time limits, as well as during tows that 
exceeded tow time limits. Incidentally-captured sea turtles are often 
released alive, which is one reason tow time restrictions were 
previously accepted as a mitigation measure. However, best available 
information and expert opinion (discussed in detail in the FEIS) 
indicate that persistent or delayed effects can lead to mortality 
(post-interaction mortality), including deaths of some turtles that 
appear to be in good health at the time of release (Stacy, et al., 2015 
as referenced in the FEIS). Analysis of the behavioral condition of the 
turtles caught by skimmer trawls, using current criteria for estimating 
post-interaction mortality for trawl fisheries (as described in NMFS 
Procedural Directive 02-110-21), indicated that mortality could be more 
than triple the number estimated based on dead and comatose turtles 
alone. This indicates tow time limits may not be as effective in 
reducing sea turtle bycatch and mortality as previously thought. 
Furthermore, as sea turtle populations increase, interactions between 
skimmer trawl vessels and sea turtles are expected to likewise 
increase. While Kemp's ridley sea turtle nesting numbers have increased 
significantly in the past several decades, the trend has leveled off in 
recent years.
    We believe the most effective protective measure for threatened and 
endangered sea turtle populations is to reduce the total time sea 
turtles are entrained in a skimmer trawl by using TEDs. TEDs are an 
effective tool in reducing this mortality, as demonstrated in other 
sectors of the shrimp fisheries. Gear research has shown that they 
reduce sea turtle bycatch with only minor reductions in target catch. 
At this time, TEDs will not be required on skimmer trawl vessels less 
than 40 feet in length, or in any pusher-head trawl or wing net.
    Comment 4: NOAA should invest in sea turtle hatcheries to rebuild 
sea turtle populations (instead of requiring TEDs).
    Response: In situ nests, or nests in their original place, are 
preferred over hatcheries whenever the natural beach can support 
successful nest incubation. Hatcheries are not a preferred alternative 
because of their limited conservation value when conditions are 
favorable for in situ incubation. Hatcheries can alter the physical 
environment of the nest, which can affect nest success and hatchling 
sex ratios. Predation rates are increased when releases of hatchlings 
from hatcheries are concentrated in limited areas. Regardless, 
hatchlings released from hatcheries must still survive to reproduce 
and, without TEDs, would remain subjected to increased mortality in 
trawls operating without TEDs. In the southeast U.S., nest success is 
high and is not a limiting factor that supports the use of hatcheries. 
Furthermore, sea turtle hatchlings (first year of life) have lower 
survival rates than older life stages. TEDs provide a greater 
conservation benefit to sea turtles than hatcheries as they reduce 
bycatch and mortality of older life stages that have already survived 
past the most vulnerable years.
    Comment 5: The regulation may have significant adverse economic 
effects for an industry that has been struggling due to many other 
issues.
    Response: We acknowledge the regulation may have significant 
adverse economic effects on the shrimp industry, as documented in the 
DEIS and FEIS. We believe the need to reduce mortalities of threatened 
and endangered sea turtles observed in vessels using skimmer trawls, 
however, warrants the required use of TEDs as specified in this final 
rule. This final rule has been modified from the proposed rule, and 
achieves a significant conservation benefit but has substantially 
reduced adverse economic effects on industry. Specifically, the 
revisions between the proposed and final rule have reduced the number 
of affected fishers by 82 percent, reduced the total economic effect by 
73 percent, and are expected to result in a conservation benefit of 
801-1,168 sea turtles annually in the Southeastern U.S. shrimp 
fisheries.
    Comment 6: Sea turtles are not observed (i.e., do not occur) in 
areas where many skimmer trawls operate.
    Response: Observer effort on skimmer trawl vessels indicates sea 
turtles occur in most areas where skimmer trawl vessels operate. At 
this time, we do not have sufficient information to confidently 
identify areas where sea turtle interactions would not occur, and where 
we could exempt TED use based on the possible absence of sea turtles. 
Therefore, at this time, TED exemptions by discrete area are not 
considered necessary and advisable.
    Comment 7: TEDs will not work in skimmer trawls due to shallow 
water, due to a change in TED angle if running in shallow water and 
where the top of grid (and the escape opening) is exposed. Further, 
there can be excessive debris, particularly crab traps and after storm 
events.
    Response: Based on TED testing conducted aboard commercial skimmer 
trawl vessels, we expect TEDs will work in the majority of areas and 
under the majority of fishing conditions. Greater than one-third of the 
vessels participating in TED testing from 2013 through 2015 operated in 
depths of 3 feet or less under the vessel with skimmer frames reaching 
out to shallower water (Gearhart in press). TEDs continued to perform 
effectively under these conditions. We expect TEDs installed at 55 
degrees to operate as intended in water depths as shallow as 2.18 feet 
of water; TEDs installed at less steep angles would be able to operate 
in shallower water (e.g., TEDs installed at 45 degrees could operate in 
water as shallow as 1.89 feet).
    We acknowledge skimmer trawl vessels with and without TEDs may 
encounter debris such as lost and abandoned crab traps and vegetative 
debris in the shallow, coastal waters where they operate. A common 
practice in the fishery is to install zippers, when TEDs are not 
installed, to help with removing crab traps. Zippers can still be 
installed with TEDs. Further, TEDs may offer some benefits, such as 
those discussed below, over zippers, since zippers can be difficult to 
open because of sand and sedimentation, where the potential benefits of 
TEDs occur regardless of sedimentation.
    Our TED testing found that the diameter of the trawl ahead of the 
TED when properly installed is approximately 24 inches or less. This 
does not allow crab traps to make it to the TED and cause blockage. For 
skimmer trawl vessels with and without TEDs, once the blockage is 
removed the catch can be washed down to the tailbag where it can be 
dumped easily.
    Crab traps and other debris can damage nets with or without TEDs. 
In areas where crab traps are abundant, fishers may have to inspect 
their nets

[[Page 70051]]

more often to remove entrained crab traps.
    Comment 8: The proposed regulations are subject to Executive Order 
13771, which would require the elimination of two existing regulations.
    Response: The Memorandum: Implementing Executive Order 13771, 
Titled ``Reducing Regulation and Controlling Regulatory Costs'' states 
that a significant regulatory action as defined in Section 3(f) of 
Executive Order 12866 is an Executive Order 13771 regulatory action 
and, therefore, must be offset according to the requirements of the 
executive order. This action was determined to be significant for 
purposes of Executive Order 12866 following publication of the proposed 
rule, and will be offset as appropriate and as soon as practicable 
after publication to comply with Executive Order 13771.
    Comment 9: NOAA should provide translated materials for Vietnamese 
American fishers (per Executive Order 13166 and Title VI of the Civil 
Rights Act), who comprise a significant portion of the skimmer trawl 
fisheries.
    Response: We acknowledge a significant portion of affected skimmer 
trawl fishers may not rely on English as their primary language. 
However, we are not required under Executive Order 13166 or Title VI of 
the Civil Rights Act of 1964, which deal with Federal financial 
assistance programs, to translate these regulatory materials to other 
languages. However, we are translating our Fishery Bulletin, compliance 
guide, and other outreach materials to assist the Vietnamese fishing 
community.
    Comment 10: With increasing sea turtle populations, sea turtle 
bycatch will increase--bycatch will never be zero--how much bycatch 
reduction is enough?
    Response: While nesting data indicate many sea turtle populations 
may be increasing, all species of sea turtles in U.S. waters are 
threatened or endangered under the ESA. In order to promote the 
continued conservation of these populations, we must continue to 
implement programs that provide adequate protection for sea turtle 
populations, including efforts to reduce sea turtle bycatch and 
mortality. The ESA requires us to issue regulations deemed necessary 
and advisable to provide for the conservation of any species listed as 
threatened and broadly authorizes the promulgation of regulations as 
may be appropriate to enforce the Act. Therefore, while these species 
remain threatened or endangered under the ESA, we are required to 
pursue efforts to recover them. Specific recovery metrics that would 
result in downlisting or delisting from the ESA are in the recovery 
plans for each sea turtle species.

Social and Economic Environment Effects Comments

    Comment 11: The descriptions of the alternatives starting with 
Alternative 3 in the third column on page 91102 of the proposed rule do 
not match the alternative numbers in parentheses and do not match the 
descriptions in the DEIS.
    Response: We acknowledge the summary text of the IRFA starting on 
page 91102 may have introduced some confusion. The summary compares the 
preferred alternative to the other six alternatives considered in the 
DEIS, which resulted in an apparent inconsistency in labeling the 
alternatives (Alternative 3 (the Preferred Alternative in the DEIS) is 
the basis, resulting in Alternative 4 becoming the ``third alternative 
to the action''). The language in the classification section of the 
proposed rule diverged from standard protocol, which would have avoided 
this confusion. We remedy this issue in this rule.
    Comment 12: NOAA's economic analysis does not take into 
consideration loss of other bycatch species (e.g., drum, crabs, 
flounder, etc.) and resulting income due to TED use.
    Response: To date, TED testing studies have not collected 
sufficient data to generate scientifically acceptable estimates of the 
reduction in marketable incidental (i.e., non-shrimp) catch. In 
addition, although the states collect landings and revenue data for 
incidentally harvested species when the catch is sold, most states do 
not collect landings data when the harvests are retained for personal 
use (e.g., consumption). Thus, the landings and value of harvests 
retained for personal use are unknown. As a result, the economic 
analysis focuses on the economic effects caused by the reduction in 
harvest of the primary target species (i.e., shrimp) due to TED use. 
Revenue resulting from the harvest and sale of incidentally harvested 
non-shrimp species by vessels participating in the southeast shrimp 
fisheries are accounted for in the economic analysis as illustrated in 
the description of the economic environment (see Section 3.4 of the 
FEIS).
    Comment 13: The economic analysis underestimates the adverse 
effects on processors. The assertion that processors can substitute 
imports for domestic product if landings are reduced because of the 
regulations is inaccurate because imports are not a good substitute or 
cannot be substituted for domestic product.
    Response: We disagree that the adverse economic effects on 
processors in the FEIS are underestimated. We consider those estimates 
to represent the best available data. Further, the claims that imports 
are not a good substitute for domestic product and that the processing 
sector cannot substitute imports in place of reduced domestic landings 
are not supported by the available data and research (Keithly et al., 
2015 as referenced in the FEIS). All research conducted to date, as 
well as the industry's statements, support the conclusion that imports 
compete with and are, therefore, substitutes for domestic product, as 
reflected by the fact that increases in imports have historically 
caused reductions in domestic shrimp prices. The data also indicate 
that the processing sector has increased its use of imports when 
domestic production has declined, and thus imports are used as a 
substitute for domestic product. However, we agree that the processing 
sector has become more dependent on domestic production in recent 
years. Larger processors are also better able to substitute imports for 
domestic production. We also agree it may be difficult for small 
processors to substitute imports for lost domestic production or 
otherwise mitigate the adverse effects from such reductions, 
particularly if some vessels cease operations because of this 
regulatory action. We discuss these conclusions in Sections 4.3 and 5.4 
of the FEIS.
    Comment 14: The proposed regulations would reduce public access to 
domestic shrimp, particularly from smaller vessels that market shrimp 
directly.
    Response: Based on the economic analysis in the FEIS, we expect 
landings by vessels directly affected by this rule to decrease. To the 
extent the affected vessels act as their own dealers and sell shrimp 
directly to the public, a reduction in public access to domestic shrimp 
is expected. Many of these vessels are relatively small within the 
context of the fleets in the southeast shrimp fisheries. However, this 
final rule affects nearly 82 percent fewer vessels and the total 
expected loss in domestic landings is about 66 percent less relative to 
the preferred alternative in the DEIS. Thus, these adverse effects have 
been reduced as a result of the change to the preferred alternative.
    Comment 15: NOAA's economic analysis underestimates shrimp loss.
    Response: The economic analysis uses estimates of shrimp loss 
resulting from extensive testing of TEDs in skimmer

[[Page 70052]]

trawls. We discuss these results in Sections 3.1 and 4.3.8 of the FEIS. 
The analysis of economic effects resulting from shrimp loss presented 
in the FEIS represents the best available information on the subject. 
Therefore, we believe the current estimates of shrimp loss in the FEIS 
to be accurate given the availability of current information. These 
results are also discussed below in the classification section of this 
rule.
    Comment 16: NOAA fails to analyze the broader economic effects of 
the proposed TED requirements on coastal communities, including loss of 
jobs.
    Response: The expected economic impacts of the proposed TED 
requirements in terms of expected reductions in employment (jobs), 
income, total value added, and output for the Gulf of Mexico and South 
Atlantic are provided in the Regulatory Impact Review (RIR) (see 
Section 5.5 of the DEIS and Section 5.7 of the FEIS). We revised these 
estimates in the FEIS to reflect the new preferred alternative. A 
national economic impacts model or state models can generate these 
estimates. If economic impacts are estimated state by state using the 
state models, the total economic impacts from the rule would be 
underestimated because potentially significant relationships between 
businesses across states would not be taken into account, unlike the 
national model which does account for those relationships. We chose to 
use the national model so as not to underestimate the total economic 
impacts of the rule. Our economic impacts models do not generate these 
estimates at the community level, as we do not have the necessary 
business relationship and activity data at that level. Section 3.5 of 
the FEIS describes communities that are the most likely to experience 
effects through the identification of top communities by regional 
quotient, licenses, and active fishers and through the identification 
of communities with processors. In addition, we added qualitative text 
on the loss of jobs at the community level to Section 4.4 of the FEIS 
in response to this comment.
    Comment 17: NOAA's economic analysis does not take into account the 
long-term economic effect of vessels ceasing operations.
    Response: We discuss the expected long-term economic effects if 
some vessels cease operations under all considered alternatives in 
Section 4.3.11 of both the DEIS and FEIS. The analyses consider direct 
effects on the harvesting sector (vessels) and indirect effects on the 
onshore sector (dealers, processors, and TED manufacturers). We discuss 
additional information regarding the expected long-term economic 
effects of the rule if certain vessels cease operations in the RIR, 
which we update in the FEIS to reflect the new preferred alternative.
    Comment 18: NOAA's economic analysis does not take into 
consideration vessel devaluation due to the proposed TED requirements.
    Response: We acknowledge that the new TED requirements in this rule 
can reduce the profitability of the adversely affected vessels and, 
thus, their market value. However, we do not have models that would 
allow us to project the potential magnitude of such decreases, 
particularly as most of the affected vessels do not have Federal 
permits and we only have one year of recent data regarding the market 
value of such vessels in the Gulf of Mexico. The reductions could be 
significant if some vessels shut down due to this regulatory action. On 
the other hand, the TED requirement would also eliminate the 
competitive advantage the affected vessels have had over otter trawl 
vessels, which have been required to use TEDs for many years. Thus, 
this change is not necessarily a cost to society. Nevertheless, we have 
included qualitative statements regarding these expected effects in the 
FEIS where applicable. Additionally, the change to the preferred 
alternative is expected to result in significantly fewer vessels being 
devalued compared to the proposed rule.
    Comment 19: A six percent loss in shrimp is not trivial given the 
margins of the inshore skimmer trawl fisheries.
    Response: We agree that a six percent loss in shrimp catch due to 
the new TED requirements is not trivial. The expected adverse economic 
effects resulting from shrimp loss are discussed in Section 4.4 of the 
FEIS, in the RIR (Section 5 of the DEIS and FEIS), and the Initial and 
Final Regulatory Flexibility Act Analyses (Section 6 of the DEIS and 
FEIS). The significance of these effects is discussed in absolute terms 
as well as in relative terms (i.e., given the different profit margins 
for various types of vessels in the shrimp fisheries, as discussed in 
Section 3.4 of the DEIS and FEIS). The magnitude of these adverse 
economic effects is further reflected by our expectation that about 32 
percent of the affected part-time vessels could cease operations due to 
this rule, generating even greater reductions in landings and gross 
revenue to the industry. The change in the preferred alternative, 
however, has significantly reduced the total adverse economic effects 
expected to result from shrimp loss.
    Comment 20: An independent cost estimate of the proposed 
regulations determined the average initial TED acquisition cost of 
$32,648 per vessel. Another comment estimated $20,000 to outfit TEDs in 
their nets. Yet another states many skimmer vessels use Dyneema and a 
single net can cost $5,000 for materials alone; to have 4-6 nets ready 
to fish could cost over $30,000 for just one vessel.
    Response: Without specific information on these referenced 
estimates, we cannot provide a detailed response. However, it appears 
that these cost estimates may include vessel rigging modification and/
or the purchase of new nets, which would not be necessary under the 
proposed regulation. TEDs can be easily installed into existing trawls 
between the trawl body and tail bag. Based on TED testing aboard 
commercial vessels, modifications to vessel rigging to accommodate TED 
use are unnecessary or minor and rarely occur. The estimates in the 
DEIS were based on the cost to purchase TEDs for actively fished nets 
and one set of spare nets for each vessel (i.e., four total TEDs if a 
vessel uses two nets). The prices ranged based on vessel size (i.e., 
smaller vessels assumed to fish with smaller, less expensive TEDs than 
larger vessels). We based the cost estimates on ``average'' TEDs 
constructed of conventional materials that are currently available to 
fishers. TEDs can vary in price based on design (e.g., flat bar TED). 
Vessels that desire to purchase additional TEDs beyond the minimum 
needed to continue fishing under this rule would incur additional 
costs.
    Comment 21: NOAA's economic analysis overestimates shrimp loss 
(i.e., NOAA should include catch loss rates from 4-inch TED testing).
    Response: As previously stated, we believe the economic effects 
resulting from shrimp loss presented in the DEIS represents the best 
available information on the subject. We disagree with the assertion 
that we should include catch loss rates from previous four-inch bar 
spacing TED testing. This action would require skimmer trawl vessels 40 
feet and greater in length to use TEDs with 3-inch bar spacing instead 
of tow times. Research results on designs not authorized under this 
action are not appropriate for this analysis.
    Comment 22: NOAA fails to take into consideration (i.e., benefit) 
the lack of tow times could offset shrimp loss.
    Response: We do not expect the removal of a tow time limit to 
offset shrimp loss. Fishers can attempt to make up shrimp loss stemming 
from the use of TEDs by increasing the number

[[Page 70053]]

and duration of tows, and thereby increasing their total catch and 
revenue, however, this could increase costs, such as fuel and labor. In 
addition, catch rates (i.e., catch per unit of effort) tend to decrease 
as towing time (effort) increases in the same area and, in turn, 
revenue per unit of effort is expected to decrease as towing time 
increases. Neither economic theory nor the available economic data can 
help us to determine whether the additional revenues from towing longer 
will exceed the additional costs.
    Comment 23: NOAA overestimates the number of vessels affected by 
the proposed TED requirements; NOAA should exclude vessels anticipated 
to cease operations because of the TED requirements from the economic 
analysis.
    Response: Although there are consistency issues between some data 
sources, we have determined the estimates of the number of affected 
vessels under the alternatives considered in the DEIS and FEIS are the 
best available estimates. We disagree that we should exclude vessels 
anticipated to cease operations from the economic analysis. If vessels 
cease operations as a result of the action, that is an effect of the 
action which needs to be considered per the requirements of Executive 
Order 12866, the Regulatory Flexibility Act, and the National 
Environmental Policy Act. To exclude and ignore this effect would 
distort the analysis and misinform managers and the public.
    Comment 24: NOAA inconsistently estimates the per-vessel costs of 
TEDs and does not clearly explain how many TEDs each vessel will need.
    Response: The explanation of how many TEDs each vessel will need 
and how the estimates of per-vessel TED costs were generated is 
provided in both the DEIS (pp. 156-157) and the proposed rule. 
Specifically, the analysis assumes each affected vessel would be 
required to acquire TEDs for each net fished plus one spare for each 
net. TED costs vary by vessel size and type. Practically all vessels 
affected under this rule fish with two nets, which would result in each 
vessel acquiring four TEDs in total. Thus, the average cost of TEDs per 
vessel is approximately $1,300 under this rule. Larger vessels would 
likely use larger TEDs, which cost more, and larger vessels typically 
use more nets (four). More large otter trawl vessels are affected under 
Alternatives 6 and 7, resulting in a higher average TED cost per vessel 
(approximately $1,700) compared to the other considered alternatives.
    Comment 25: NOAA should analyze the economic effects of full-time 
and part-time vessels separately versus averaging across all vessels.
    Response: The analysis of economic effects for all alternatives 
considered in the DEIS and FEIS looks at average effects across all 
vessels as well as average effects separately for different types of 
vessels, including part-time vessels (those in the Q1, Q2, and Q3 
categories) and full-time vessels (all other categories).
    Comment 26: NOAA should expand the economic analysis to include the 
benefits of TEDs (e.g., improved fuel efficiency due to reduced drag 
from excluding debris and bycatch; increased price due to improved 
condition of catch; reduced sorting time) and value of sea turtles 
beyond simple ``conservation value'' of the species (e.g., tourism).
    Response: We agree that there are other potential benefits from the 
use of TEDs such as improved fuel efficiency, reduced sorting time, and 
increased value of product. For example, we anticipate some ancillary 
benefits from TED use in high debris areas, as the reduction of debris 
trapped in the tailbag would prevent damage to the catch, thereby 
increasing the quality (e.g., promoting harvest of whole shrimp rather 
than pieces) and potentially increasing the price per pound. We also 
acknowledge that sea turtles are a source of demand for ecotourism in 
the region. However, based on the existing peer-reviewed literature, 
there is no theoretical or empirical basis for asserting that the 
expected reductions in sea turtle mortalities under this rule will 
result in increased ecotourism and concomitant economic benefits. In 
addition, we currently lack data and models to quantitatively estimate 
these ancillary benefits. We have summarized these issues qualitatively 
and have addressed this comment in Section 5 (RIR) of the FEIS.
    Comment 27: The use of TEDs by skimmer trawls would remove the 
Monterey Bay Aquarium Seafood Watch's Red Listing of Gulf of Mexico 
shrimp harvested by skimmer trawls and expand industry markets, and 
likely increase profits.
    Response: Monterey Bay Aquarium and several environmental groups 
provided comments on the proposed rule, which stated that sea turtle 
bycatch is a serious concern in the fisheries and contributed to the 
current red list rating of the skimmer trawl fisheries. We agree that 
the use of TEDs by skimmer trawl vessels could result in a different 
listing by the Monterey Bay Aquarium Seafood Watch program. However, 
this regulatory action does not guarantee a change in the rating. 
Monterey Bay Aquarium has committed to promptly update their scientific 
assessment, but has not committed to the outcome of that assessment. 
Therefore, we cannot assume what the Monterey Bay Aquarium's rating for 
the skimmer trawl fisheries will be after implementing the final rule, 
nor the resulting economic benefits to the fisheries.
    Comment 28: The use of TEDs by skimmer trawls would reduce 
additional bycatch aside from sea turtles, in turn benefitting other 
commercial and recreational fisheries.
    Response: We agree that the use of TEDs by skimmer trawls would 
reduce additional bycatch other than sea turtles. Numerous studies 
indicate TEDs reduce finfish bycatch, crustaceans, and debris, 
resulting in benefits to the local ecosystem (see Section 4.2 of the 
FEIS).
    Comment 29: NOAA should expand its environmental justice analysis 
by including additional analyses on how the proposed regulations may 
have high and disproportionate impacts on lower-income generating small 
fishing operations, expanding the analysis of effects to vessels that 
cease fishing operations as a result of the regulations, and 
summarizing the outreach efforts to foster public participation by 
minority and low income populations.
    Response: The environmental justice analysis in the FEIS has been 
expanded. Specifically, new text has been added including a summary of 
the public participation process, a qualitative discussion of impacts 
to lower-income generating small fishing operations, and a qualitative 
discussion of the effects to vessels that cease fishing operations 
because of this action. As noted above, by limiting the TED requirement 
to vessels 40 feet and greater in length, the economic impact to 
industry is significantly reduced from the proposed rule to the final 
rule.

Data-Related Comments

    Comment 30: The DEIS and proposed rule did not demonstrate whether 
or how the expected mortality reduction of ``small'' sea turtles will 
contribute to population recovery of the sea turtle species and DPSs 
that occur within the southeastern U.S. The proposed rule and DEIS did 
not define ``small'' for each sea turtle species. In addition, the DEIS 
and proposed rule lacked analyses based on stock assessment models 
showing how abundance trends respond to the projected reduction in sea 
turtle mortality attributable to the new regulations, and evaluations 
of relative reproductive values or adult equivalents of ``small'' 
female sea turtles

[[Page 70054]]

documented to have been incidentally captured and killed in skimmer 
trawls, pusher-head trawls, and wing nets within the southeastern U.S. 
shrimp fisheries.
    Response: At present, we do not have stock assessment models for 
all sea turtle species impacted by this regulation. The conservation 
need for TEDs to reduce the bycatch of Kemp's ridley sea turtles in the 
skimmer trawl fisheries was identified in the Kemp's Ridley Recovery 
Plan (NOAA and USFWS 2011). A formal threats assessment identified 
skimmer trawls, among the trawl types not currently required to use 
TEDs, as a significant mortality threat, collectively resulting in an 
estimated annual mortality, adjusted for reproductive value, of 1,218 
adult females annually (NOAA and USFWS 2011, Table A1-7). At the 
November 2014 meeting of the Kemp's Ridley Recovery Team (https://www.fws.gov/kempsridley/pdfs/KempsRidley_BiNationalTeam_Nov2014.pdf), 
the team identified requiring TEDs in the skimmer trawl fisheries 
(i.e., the largest component of the trawl fisheries not currently 
required to use TEDs) as one of the four most critical recovery actions 
that needed to be completed.
    With regard to size, observer data from skimmer trawl vessels show 
interactions with green sea turtles ranging from 21.0 cm to 33.5 cm 
curved carapace length (CCL) and Kemp's ridley sea turtles ranging from 
19.3 cm to 45.6 cm CCL (Stokes and Gearhart 2016). We did not 
explicitly define ``small'' because the size range varies across 
species and can change over time. In general, the term ``small'' refers 
to the small juvenile stage.
    Comment 31: NOAA's data is insufficient to support this regulation.
    Response: While we disagree and believe sufficient information has 
been gathered and presented to the public, all of which warrants 
measures to reduce sea turtle bycatch and mortality in the skimmer 
trawl fisheries, we do note this final rule differs from the proposed 
rule due to further data analysis. We have presented four years of 
observer data that demonstrates skimmer trawls capture sea turtles in 
their nets, some of which resulted in mortalities. Likewise, we have 
included information indicating that post-interaction mortality may 
occur to trawl-caught sea turtles that are released alive and in 
seemingly otherwise normal condition. We have also conducted extensive 
TED testing on skimmer trawl vessels using a variety of configurations 
and fishing under a variety of different conditions to determine the 
resultant catch loss under each scenario. Additional economic and 
social data are included and discussed in the FEIS and these have been 
determined to be the best available data. A new analysis of sea turtle 
bycatch and bycatch mortality in the otter trawl shrimp fisheries 
(Babcock et al. 2018 as referenced in the FEIS) indicates bycatch by 
otter trawlers is significantly lower than previously estimated, and 
further supports the need for sea turtle conservation in the skimmer 
trawl fisheries; this information is discussed further in the FEIS. 
While more data is always beneficial and desired, we believe sufficient 
data has been gathered, analyzed, and presented to support this action. 
Where data was lacking or the efficacy of TEDs merited further 
evaluation, as was the case with requiring the use of TEDs in pusher-
head trawls, wing-nets, and smaller skimmer trawls, we narrowed the 
scope of the final rule accordingly.
    Comment 32: New regulations are unnecessary, as NOAA's own data 
indicates sea turtle populations are recovering under the status quo.
    Response: While there have been improvements in nesting numbers of 
several species of sea turtles, we still have recovery goals to meet 
for all ESA-listed sea turtle species. As mentioned in our response to 
Comment 10, in order to promote the continued conservation of these 
populations, we must continue to consider and implement conservation 
measures that will provide adequate protection for sea turtle 
populations and help us achieve our ESA recovery goals and objectives. 
The ESA requires us to issue regulations deemed necessary and advisable 
to provide for the conservation of any species listed as threatened and 
broadly authorizes the promulgation of regulations as may be 
appropriate to enforce the Act. Therefore, while these species remain 
listed under the ESA, we are required to continue our efforts to 
recover these species. Specific recovery metrics that would result in 
downlisting or delisting from the ESA are in the recovery plans for 
each sea turtle species. In addition, as noted in our response to 
Comment 30, the Kemp's Ridley Recovery Team identified requiring TEDs 
in skimmer trawls as one of the four most critical recovery actions 
that needed to be completed. Therefore, implementing this requirement 
is consistent with our statutory duty to implement the recovery plan 
under section 4(f) of the ESA.
    Comment 33: NOAA does not have sufficient evidence of tow time 
violations; most fishers abide by tow times for reasons other than 
possibility of sea turtle bycatch.
    Response: We disagree, as there have been cited violations of tow 
time limits by skimmer trawl fishers. While we are unable to quantify 
the extent to which tow time violations occur, we do have evidence that 
it is an issue that needs to be addressed. Moreover, we have observer 
data that document sea turtle mortality has resulted from capture in 
skimmer trawl nets occurring within the tow time limits, as well as 
information indicating post-interaction mortality is at a significant 
level, even though captured sea turtles are released alive and may seem 
in healthy condition when released. Therefore, we believe tow time 
limits are not as effective in reducing sea turtle bycatch and 
mortality as previously thought.
    Comment 34: NOAA's catch loss rates based on TED use are 
manipulated and vastly under-estimated. NOAA conducted TED testing at 
times that are not representative of peak fishing activity, which 
results in an underestimate of catch loss.
    Response: We conducted extensive fishery-independent and fishery-
dependent testing during the 2013, 2014, 2015, and 2016 fishing seasons 
using a variety of TED configurations and under a variety of fishery 
conditions off Louisiana, Mississippi, Alabama, and North Carolina. We 
used an established protocol to conduct this testing. Prior to 
analysis, data were reviewed and unsuccessful tows were removed from 
the dataset. Unsuccessful tows were comprised of bogged gear, bag 
untied, torn nets, hung gear, bags dumped together, and fouled tickler 
chain. Successful tows were defined as tows in which the gear worked 
properly and the trawl was hauled in perfect condition. Tows with TED 
obstructions such as debris or crab pots were not removed from the data 
set and were included for analysis. However, tows in which the TED was 
twisted were considered captain related gear handling errors and were 
removed prior to analysis. In addition, tows with less than 2 kg of 
shrimp per net for both nets were removed prior to analysis.
    We also attempted to conduct fishery-dependent work during the 
opening of shrimp season where catch rates would be expected to be 
highest, but were unable to find vessels willing to participate; 
fishers desired to focus on the season opener to maximize fishing time 
and catch. We attempted several times to address this issue with 
industry. Therefore, the resulting data from this research represents 
the best available science, and we believe it adequately reflects 
average fishing conditions. We document these findings

[[Page 70055]]

in the FEIS and the primary study (Gearhart in press).
    Comment 35: NOAA has not provided any data on wing nets or anchored 
vessels; TEDs will not work in vessels anchored and fishing tidal 
current.
    Response: To date, we have not conducted TED testing on wing nets 
or anchored vessels. This gear fishes very differently from trawl 
vessels. This lack of research, among other reasons, has led us to 
change the preferred alternative in the FEIS and adjust our final rule 
accordingly.
    Comment 36: Averaging observer catch data to all vessels, including 
small vessels that work in shallow water where sea turtles may not be 
as abundant, and extrapolating the skimmer trawl observer data to the 
wing net and pusher-head trawl fisheries is inappropriate.
    Response: In order to determine the effects the shrimp fisheries 
have on threatened and endangered sea turtles, we must consider the 
entirety of the fisheries instead of just limited, observed vessels. 
Averaging limited data across an entire fishery is an acceptable 
practice, and has been conducted for numerous fisheries for several 
decades. We maintain the skimmer trawl observer data gathered over 
several years and in numerous states is the best available information 
on the skimmer trawl fisheries. Averaging these data helps to avoid 
overestimating or underestimating, which may occur when using data from 
a single year. We do not have discrete sea turtle abundance data that 
would lend itself to further refining catch rates by water depth or 
area to support or refute the commenter's assertion that sea turtles 
are not as abundant in shallow water. Therefore, we disagree with the 
first portion of this comment. We do agree, however, that applying 
observer data from skimmer trawls to wing nets and pusher-head trawls 
is problematic. In addition, comments raising safety and other 
practical concerns about using TEDs on small skimmer trawls factored 
into the decision to change the preferred alternative and modify the 
final rule to focus solely on skimmer trawl vessels 40 feet and greater 
in length.
    Comment 37: NOAA grossly overestimates sea turtle mortality 
attributable to the skimmer trawl fisheries; the commenter asserts the 
average skimmer trawl vessel would experience one sea turtle mortality 
every eight years by only considering sea turtles released dead (n=3).
    Response: We disagree with the commenter's assertion that sea 
turtle mortality is overestimated, and note the commenter fails to take 
into consideration post-interaction mortality in their estimate. We 
went to considerable lengths in the DEIS and FEIS to describe the 
process by which we estimated bycatch mortality using the best 
available information. Based on that information, we believe the 
combined skimmer trawl, pusher-head trawl, and wing net fisheries 
(i.e., 5,837 total vessels) may result in 2,165-2,942 sea turtle 
mortalities per year. Averaged across the whole fleet evenly, this 
would result in one sea turtle mortality per vessel every 1.98-2.7 
years. Annual fishing effort, however, is not evenly distributed among 
vessels in the fleet, so this rate is of limited utility. The majority 
of the skimmer trawl, pusher-head trawl, and wing net fleet consists of 
part-time vessels that do not fish as often as full-time vessels. 
Therefore, we expect the rate to be significantly higher among the 
smaller population of full-time skimmer trawl, pusher-head trawl, and 
wing net vessels, many of which are 40 feet and greater in length.
    Comment 38: NOAA's observer data demonstrates otter trawls with 
installed TEDs resulted in higher sea turtle mortality than skimmer 
trawls without TEDs.
    Response: We disagree with this comment. As noted previously, we 
take into consideration post-interaction mortality when considering the 
effect of the skimmer trawl fleet (i.e., on vessels not using TEDs) on 
sea turtle populations. The period and sample sizes (i.e., hours of 
fishing effort observed) differ between the otter and skimmer trawl 
fleets for calculating mortality rates by gear type. From 2011-2015, we 
observed 13 sea turtles released dead from otter trawls fishing with 
TED-equipped nets (https://www.fisheries.noaa.gov/webdam/download/93552747), while during 2012-2015 we observed 3 sea turtles released 
dead from skimmer trawl vessels fishing without TEDs. During the 
respective periods, however, we observed 86,658 hours of effort on 
otter trawlers (E. Scott-Denton, NMFS, pers. comm.), while only 2,699 
hours of effort were observed on skimmer trawl vessels. That equates to 
one observed dead turtle released every 6,666 hours on otter trawlers 
versus one observed dead turtle released every 900 hours on skimmer 
trawl vessels. This indicates considerably more observed lethal sea 
turtle interactions with skimmer trawl vessels than otter trawlers.
    A new analysis of sea turtle bycatch and bycatch mortality in the 
otter trawl shrimp fisheries (Babcock et al. 2018) indicates bycatch by 
otter trawlers is significantly lower than previously estimated in past 
biological opinions. Furthermore, the results suggest that skimmer 
trawlers working without TEDs may result in more sea turtle mortalities 
than otter trawlers working with TEDs, even with lower total annual 
effort. This information is discussed in more detail in the FEIS.
    Comment 39: A six-month delay in effectiveness is unrealistic given 
NOAA's own data indicates it would take more than two years to 
fabricate enough TEDs for vessels to use.
    Response: We agree, and while the estimates are based on the best 
available information, we acknowledge that there is considerable 
uncertainty associated with estimating how many new TEDs will actually 
be installed, as well as how quickly the necessary TEDs will be 
constructed. TED production time was one of the factors considered when 
we decided to change the preferred alternative to one that will affect 
nearly 82 percent fewer vessels and require much less production time 
for the necessary number of TEDs. We also have extended the delay in 
effectiveness until April 1, 2021.
    Comment 40: NOAA must maintain oversight over the electronic 
logbook data program.
    Response: Electronic logbooks (ELBs) are required under a fishery 
management plan developed by the Gulf of Mexico Fishery Management 
Council, pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act, only on selected vessels with a Federal Gulf of Mexico 
shrimp moratorium permit. The vast majority of vessels that use skimmer 
trawls do not have Federal permits and, thus, are not required to use 
ELBs. While we do maintain effective oversight over the ELB program, 
the program itself is not associated with this final rule.

Gear and Fishery-Related Comments

    Comment 41: NOAA's proposed regulation is discriminatory against 
certain fishers since it maintains tow times for bait shrimpers.
    Response: The proposed regulation, as well as the final rule, 
focuses on the segments of the shrimp fisheries that are documented to 
have levels of bycatch mortality that can be reduced using TEDs. The 
bait shrimp fishery operates with tow times shorter than the 
alternative tow-time requirements per 50 CFR 223.206(d)(2)(ii)(A), to 
ensure shrimp are captured and transferred to a live well alive and in 
good condition. Based on this information, we determined the bait 
shrimp fishery presents a low risk of sea turtle bycatch and mortality 
and does not warrant additional restrictions at this time.

[[Page 70056]]

    Comment 42: Biscayne Bay wing net vessels should be restricted to a 
maximum tow time of 10 minutes with observers to evaluate potential 
bycatch issues.
    Response: Biscayne Bay wing nets are limited by state law to a 
frame size much smaller than frames of wing nets in other states. They 
also fish by sight in surface waters, and use nets constructed of light 
monofilament webbing. We have initially concluded this fishery may not 
present a threat to sea turtles. However, further investigation is 
needed to make a final determination.
    Comment 43: Beam trawl vessels operating in the Corpus Christi Bay, 
Texas bait shrimp fishery should be exempt from the proposed TED 
requirements, similar to the Biscayne Bay wing net fishery exemption.
    Response: Beam trawl vessels are exempt from existing TED 
requirements if they comply with provisions at 50 CFR 
223.206(d)(2)(ii)(B)(1). The proposed and final regulations do not 
change the requirements for beam trawlers, which are currently required 
to fish with TEDs, excluding those that comply with the aforementioned 
exception.
    Comment 44: TED requirements present safety issues when used on 
small vessels (e.g., walking out on frames to remove debris snagged in 
TEDs, extension can result in net getting entangled in the propeller, 
etc.).
    Response: The TED is installed just in front of where the tail bag 
is brought alongside or onboard the vessel for dumping, so walking out 
on frames to remove debris from the TED is unnecessary. Further, this 
rule exempts skimmer trawl vessels less than 40 feet in length to allow 
us additional time to examine issues related to TED use on these 
smaller vessels, including potential safety issues, which may be more 
significant for them. Skimmer trawl vessels less than 40 feet in length 
will continue to be required to comply with the existing tow time 
requirements.
    Comment 45: An installed TED on a small vessel may introduce issues 
with dumping the catch, as the TED extension may prevent the net from 
fully clearing the surface and complicate hauling it on deck. If the 
vessel is moving during the process, the TED may cause the net to twist 
tight, further complicating the situation.
    Response: Skimmer trawl vessels less than 40 feet in length are 
exempt from the TED requirement in this final rule, but must continue 
to comply with the existing tow time requirements. We intend to examine 
issues that may be unique to these vessels to determine methods to 
mitigate those issues in the future. With respect to a twisting net, we 
found during TED testing this can be alleviated by either changing the 
location of the lazy line attachment on the trawl or changing the 
lifting point in the rigging to allow the TED to clear the water during 
haul back.
    Comment 46: TEDs installed in skimmer nets exhibit a rolling action 
that twists the net and closes it, making it ineffective at catching 
anything.
    Response: This rule will only authorize top-opening TEDs. Top-
opening TEDs often begin with a half twist in the net when deployed. 
During active fishing with skimmer frames lowered and nets and bullets 
deployed, water flow opens the trawl and causes the TED to untwist and 
adjust into the proper fishing position. We anticipate that fishers 
will have to become familiar with how TEDs function and behave in their 
nets or under their specific fishing conditions, and adjust their 
activities to ensure their nets with installed TEDs are fishing 
correctly.
    Comment 47: Excessive debris such as crab traps and tree limbs will 
accumulate on the TED grid and result in excessive catch loss.
    Response: We acknowledge that the inshore/nearshore skimmer trawl 
fisheries encounter more debris while fishing compared to the offshore 
shrimp fisheries. Abandoned crab traps and debris, particularly debris 
after storms, currently present issues for skimmer trawl vessels. TEDs 
may actually help exclude some of this debris. In situations where 
there are numerous abandoned crab traps or excessive debris, fishers 
regularly check their nets to ensure entrained traps and debris are not 
negatively affecting their catch rates. We expect fishers to continue 
this practice with TEDs installed in their nets. Depending on the net 
and TED size, the diameter of the trawl just ahead of the TED is not 
large enough to allow crab traps or large debris to reach the TED. The 
use of TEDs facilitates crab trap and debris removal, alleviating the 
need for zippers that typically are used in skimmer trawls for debris 
removal, as discussed in response to Comment 7.
    Comment 48: The proposed tow time definition presents issues for 
vessels without hydraulics (i.e., time to raise/lower gear) or for 
small vessels due to safety (e.g., raising and lowering rig constantly 
presents stability issues).
    Response: We agree the proposed tow time definition may present 
issues for small vessels or vessels rigged without hydraulics. As a 
result, we have amended the tow time definition in this final rule to 
avoid issues related to constantly raising and lowering the skimmer 
trawl rig.
    Comment 49: Small vessels cannot use a standard TED grid and need a 
smaller grid to fit in the nets.
    Response: In response to comments relating to the feasibility of 
using TEDs on small vessels, and because we have not comprehensively 
tested TEDs on small vessels, we have changed our preferred 
alternative. As a result, skimmer trawl vessels less than 40 feet in 
length will have to continue to follow the tow time requirements. We 
will examine this and other issues related to TED use on small vessels 
and present solutions or adaptations to these potential issues so that 
TEDs could be effectively used on these smaller vessels in the future.
    Comment 50: In some skimmer vessels, the entire net would have to 
be specially made to fit effective TEDs in the net.
    Response: Nets used on skimmer trawl vessels 40 feet and greater in 
length can accommodate a standard TED, and as discussed in response to 
Comment 20, necessary modifications to rigging, if any, are expected to 
be minor.
    Comment 51: Some skimmer vessels use A-frame rigging designed for 
short nets. The use of TEDs would require lengthening the net, and 
modifications to the A-frame rigging to pick up the nets, which could 
cost anywhere from $1,000-$10,000, depending on the size of vessel, 
extent of change, and costs of material and labor.
    Response: The installation of a TED into a skimmer trawl adds four 
to five feet of length to the trawl. It may be necessary to install the 
TED farther forward in the trawl to partially compensate for the added 
length. Adjusting the lazy line attachment point on the tailbag may 
also be necessary to compensate for the added length. Each of these 
adjustments alleviates the need to change rigging configurations to 
compensate for TED installation.
    Comment 52: The use of TEDs by small vessels with limited 
horsepower would slow the boat down to the point it would be 
ineffective.
    Response: We do not expect skimmer trawl vessels to have difficulty 
pushing nets with TEDs installed due to limited horsepower. These 
vessels are typically powered to move trawls that contain significant 
amounts of catch. This catch increases the drag on the vessel. The 
addition of a TED is inconsequential with respect to the drag in the 
net relative to the catch. Instead, drag is reduced through TED use by 
reducing the amount of bycatch entrained in the net.

[[Page 70057]]

    Comment 53: Fishers have serious concerns that TEDs would not work 
on their type or size of vessel and result in them having to convert to 
otter trawls, which would cost $20,000-$30,000.
    Response: Results of TED testing indicates that TEDs will work 
effectively on vessels encompassed by this final rule (i.e., skimmer 
trawl vessels 40 feet and greater in length). We do not believe the 
associated economic effects of TED use in skimmer trawls are sufficient 
to make switching gears necessary, particularly considering TEDs are 
already required in the otter trawl fisheries.

Recommendations

    Comment 54: NOAA needs to prepare a detailed enforcement plan, 
including the number of officers and vessels needed; minimum/maximum 
enforcement levels by time and area; the use of partner agencies, 
observers, and trained volunteer patrols; use of onboard cameras; 
implementation of emergency closures if enforcement (compliance) is not 
adequate; and other approaches to achieve a 94 percent TED compliance 
level.
    Response: Our Office of Law Enforcement (OLE) is committed to 
enforcing the laws and regulations associated with TEDs. On a 
continuing basis, OLE management is evaluating how it can best use its 
resources in meeting OLE's overall mission of protecting the marine 
resources of the United States. OLE meets this mission through formal 
and informal relationships with other enforcement partners. TED 
compliance is but one regulatory requirement OLE and its partners are 
responsible for enforcing. We have had extensive discussions on this 
subject with our enforcement partners, and have developed a TED 
Compliance Policy that we also intend to integrate for the skimmer 
trawl fisheries. The TED Compliance Policy (https://www.fisheries.noaa.gov/webdam/download/93552419) outlines what data 
will be used, the time periods for calculating compliance, and 
discusses measures that would be taken if TED effectiveness falls below 
the TED compliance thresholds designated in the April 18, 2014, 
biological opinion on the southeastern shrimp fisheries.
    Comment 55: NOAA should conduct a detailed analysis of sea turtle 
abundance, fishing effort, and stranding patterns to determine hotspots 
of sea turtle mortality in the fishery.
    Response: A detailed analysis of sea turtle mortality hot spots 
would be a valuable exercise. But given the annual variability in sea 
turtle distribution, population size, and seasonal influences such as 
water temperature, wind speed and direction, and prey availability, as 
well as numerous other factors, the recommended analysis would not 
likely change how this rule is implemented. The use of TEDs can 
significantly reduce fishery-related bycatch and mortality on a regular 
basis, regardless of variability in sea turtle distribution, hence it 
is our preferred action over other alternatives considered in the DEIS 
and FEIS.
    Comment 56: NOAA should investigate and promptly enact appropriate 
time and area closures for the fishery to protect important sea turtle 
habitat and populations.
    Response: We regularly investigate all significant events in an 
attempt to learn the causative factor(s) for sea turtle mortality. In 
some cases, these factors are not readily identifiable, even after 
several years of investigation. If we determine an activity or source 
of mortality and habitat impacts can be prevented or mitigated by time/
area closures, we would explore that option at the appropriate time 
based on available information.
    Comment 57: TED use should be based on inside/outside waters as 
defined by the Louisiana Statutes 45:495, and only required in outside 
waters.
    Response: Fisheries observer data from skimmer trawl vessels 
demonstrate that sea turtles occur within areas defined as inside 
waters by the Louisiana Statutes. The inside/outside waters definition 
also does not correlate with bathymetric or other sea turtle habitat 
preferences in a manner that lends itself to practical consideration. 
This recommendation would not effectively achieve our recovery goals 
and objectives of reducing bycatch and mortality of sea turtles in the 
shrimp fisheries.
    Comment 58: Maintain existing tow times and enforce them through 
mandatory use of electronic vessel monitoring.
    Response: The use of electronic vessel monitoring systems (VMS) is 
a potential management option, but one that was not considered due to 
the inherent difficulties in requiring such a system on thousands of 
vessels of differing sizes and configurations. Whereas VMS could be 
more effective on a more homogenous fleet of larger vessels, we 
determined it was not viable for the skimmer trawl fisheries. We have 
also looked at other options, such as a data logger to monitor tow 
times. However, since the revised tow time definition included in this 
final rule allows the frame to continually fish, it is impractical to 
configure a data logger to monitor tow times. We have documented that 
sea turtle bycatch and mortality, including post-interaction mortality, 
can occur within the allowable tow time limits. Therefore, TEDs 
represent the most effective measure to reduce sea turtle bycatch and 
mortality in these fisheries.
    Comment 59: NOAA should provide TEDs to all fishers and allow a 
one-year trial period before making the requirement effective.
    Response: We are currently exploring avenues for financial support 
that could provide TEDs to affected fishers. We do expect that affected 
fishers could receive assistance from the Fishery Finance Program, 
which could provide low-interest loans for fishers to purchase the 
required TEDs, although the program has not been used for this type of 
gear purchase in the past. Given the number of fishers affected and 
number of TEDs required, we are delaying effectiveness of this final 
rule until April 1, 2021. While this delay in effectiveness is not 
considered a trial period, it does provide fishers additional time to 
adapt to fishing with TEDs in their specific fishing conditions.
    Comment 60: NOAA should have mitigation measures for the loss of 
shrimp due to TED use, as well as economic assistance to purchase TEDs. 
NOAA should explore opportunities to provide fishers TED training or 
TEDs with funding allocated to one or more of the Trustee 
Implementation Groups under the DEEPWATER HORIZON oil spill program.
    Response: As previously mentioned in Comment 59, we are exploring 
measures to provide financial support for affected fishers to acquire 
TEDs. We have also considered the need for outreach and training 
efforts to assist fishers with the installation and maintenance of TEDs 
in their nets. We will be scheduling and announcing future TED training 
workshops to be conducted during the phase-in period.
    Comment 61: NOAA needs to conduct a sea turtle stock assessment to 
determine population levels to determine if additional regulations are 
necessary.
    Response: We disagree with this comment. While stock assessments 
for all sea turtle species would be beneficial for management purposes, 
we are mandated to implement management measures deemed necessary and 
advisable to recover threatened and endangered species under our 
purview. Given that fisheries observer data indicates sea turtle 
bycatch and mortality is occurring in the skimmer trawl fisheries, 
delaying management

[[Page 70058]]

action to conduct stock assessments is not warranted.
    Comment 62: If TEDs are required, implementation should be phased 
in over two to three years by breaking vessels into size classes or 
based on landings.
    Response: We considered public comments such as this when 
determining how to implement the final rule. Since the revised final 
rule affects approximately 82 percent fewer fishers than the preferred 
alternative in the DEIS, we determined a single delayed implementation 
date would be most appropriate for fishers, management, and enforcement 
since this alternative requires much less production time for the 
necessary number of TEDs.
    Comment 63: Due to issues with debris clogging in shallow water and 
the assumption a TED would lose angle, thereby increasing catch loss, 
NOAA should exempt TED use in waters 2-4 feet in depth.
    Response: As mentioned in our response to Comment 7, TED testing 
aboard commercial vessels indicates that TEDs operate effectively in 
depths as shallow as 2 feet. Therefore, an exemption based on water 
depth is not warranted.
    Comment 64: NOAA should exempt all skimmer trawls less than 40 feet 
in length from the TED requirements.
    Response: Based on public comment and further deliberation, we 
revised our final rule to exempt skimmer trawl vessels less than 40 
feet in length.
    Comment 65: NOAA should look at other sea turtle issues such as 
vessel impacts, pollution, explosive demolition of oil rigs, and other 
fisheries including recreational fisheries, etc.
    Response: Sea turtles face a variety of threats including vessel 
impacts, pollution, and bycatch in other fisheries. We address the 
impacts of various threats to sea turtles, and several other management 
actions that mitigate these impacts on sea turtle populations are 
discussed in Section 3 of the DEIS and FEIS.
    Comment 66: Ban trawlers.
    Response: We believe the use of TEDs in trawl nets reduces sea 
turtle bycatch in these fisheries to acceptable levels, which meets our 
goals and objectives for sea turtle conservation. A ban on all trawl 
gear is an extreme measure not warranted to support sea turtle 
conservation.
    Comment 67: The TED implementation strategy should be based on what 
provides the greatest conservation benefit, and a phased approach may 
be necessary.
    Response: Based on public comments raising performance and safety 
issues with TED use on smaller vessels and regarding the economic 
impacts of the proposed rule, and new information indicating 
significantly lower levels of sea turtle mortality in the offshore 
fleet, we have revised the regulation to now limit the TED requirements 
to skimmer trawl vessels 40 feet and greater in length. The more 
focused scope of the final rule will allow for faster implementation of 
the TED requirement and is expected to result in a significant 
conservation benefit of 801-1,168 sea turtles annually in the 
Southeastern U.S. shrimp fisheries. We may address other trawls, such 
as pusher-head trawls, wing nets, and try nets, as well as small 
skimmer trawl vessels, in future rulemaking.
    Comment 68: Double rig trawlers should be banned in the lakes and 
inside waters.
    Response: Double rig (otter) trawlers are currently required to use 
TEDs in their nets. As state shrimp fishery management issues unrelated 
to sea turtle bycatch and mortality are outside the purview of this 
action, we do not have any additional response to this comment.

Classification

    This final rule has been determined to be significant for purposes 
of Executive Order 12866 because it may raise novel legal or policy 
issues out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order. This significant 
regulation is considered regulatory under Executive Order 13771. 
Depending on the assumptions used, the estimated cost of this rule in 
2016 dollars is between 3.24 and 3.85 million. A discussion on the 
basis for these estimates is in the FEIS.
    We prepared a FRFA, as required by Section 603 of the Regulatory 
Flexibility Act (RFA), for this final rule. The FRFA describes the 
economic effects this final rule would have on small entities. A 
description of the action, why it is being considered, the objectives 
of, and legal basis for this final rule are contained at the beginning 
of this section in the preamble and in the SUMMARY section of the 
preamble. A copy of the full analysis is available from us (see 
ADDRESSES). A summary of the FRFA follows.
    The ESA provides the statutory basis for this final rule. We did 
not receive any comments from the U.S. Small Business Administration's 
Office of Advocacy on the IRFA in the proposed rule. We received 18 
comments from the public regarding the IRFA in the proposed rule and 
the economic effects analysis in the DEIS; see comments 11-28 in the 
preamble of this rule. Comment 39 regarding the delay in the 
effectiveness of this rule is also germane. These comments and our 
responses are incorporated here by reference. The preferred alternative 
and the tow time definition in this final rule were changed from the 
proposed rule, based in part on these comments. The reasons for these 
changes are discussed in the preamble and also incorporated here by 
reference.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. This final rule would not establish any new reporting, 
record-keeping, or other compliance requirements beyond the requirement 
to use a TED when vessels 40 feet and greater in length use skimmer 
trawls to harvest shrimp in the southeastern United States. The net 
manufacturer typically installs TEDs, so fishers are not expected to 
have special skills. Some learning will likely be necessary for the 
maintenance and routine use of TEDs by fishers who have not 
historically had to use these devices. TEDs have been required in otter 
trawls for many years. A majority of the vessels directly regulated by 
this rule also used otter trawls between 2011 and 2014. Thus, many if 
not most vessel owners and captains are expected to be knowledgeable of 
how to maintain and use TEDs. As a result, the skills required for TED 
use are thought to be consistent with the skillset and capabilities of 
commercial shrimp fishers in general and special professional skills 
would not be expected to be necessary. Further, we plan to engage in 
significant outreach efforts (e.g., TED workshops and complimentary 
inspections by our Gear Monitoring Team) to educate owners and captains 
of affected skimmer vessels regarding how to use and maintain TEDs.
    This final rule is expected to directly regulate businesses that 
operate vessels 40 feet and greater in length using skimmer trawls in 
the southeastern U.S. shrimp fisheries (North Carolina through Texas). 
An estimated 1,062 vessels use this gear (1,047 vessels in the Gulf of 
Mexico and 15 vessels in the South Atlantic). Although some vessels are 
known to be owned by businesses with the same, or substantially the 
same, individual owners and, thus, would be considered affiliated, 
ownership data is incomplete. It is not currently feasible to 
accurately determine the number of individual businesses these 1,062 
vessels represent. While it will result in an overestimate of the 
actual number of businesses directly regulated by this rule, for the 
purposes of this analysis, we assume

[[Page 70059]]

that each vessel is independently owned by a single business and, thus, 
the terms vessels and businesses are used interchangeably. Therefore, 
we expect this rule to directly regulate 1,062 businesses.
    The average annual gross revenue (2014 dollars) over the period 
2011-2014 for vessels 40 feet and greater in length that harvested 
shrimp using skimmer trawls was approximately $76,529 for vessels in 
the Gulf of Mexico (1,047 vessels) and $258,756 for vessels in the 
South Atlantic (15 vessels). The largest average annual gross revenue 
earned by a single business over this period was approximately $1.85 
million. We have not identified any other small entities that might be 
directly affected by this regulatory action.
    On December 29, 2015, we issued a final rule establishing a small 
business size standard of $11 million in annual gross receipts 
(revenue) for all businesses primarily engaged in the commercial 
fishing industry (NAICS code 11411) for RFA compliance purposes only 
(80 FR 81194, December 29, 2015). The $11 million standard became 
effective on July 1, 2016, and replaces the prior Small Business 
Administration standards of $20.5 million, $5.5 million, and $7.5 
million for the finfish (NAICS 114111), shellfish (NAICS 114112), and 
other marine fishing (NAICS 114119) sectors of the U.S. commercial 
fishing industry in all our rules subject to the RFA after July 1, 2016 
(Id. at 81194). In addition to this gross revenue standard, a business 
primarily involved in commercial fishing is classified as a small 
business if it is independently owned and operated, and is not dominant 
in its field of operations (including its affiliates). Based on the 
information above, all businesses directly regulated by this rule are 
determined to be small businesses for the purpose of this analysis.
    This final rule is expected to directly regulate all commercial 
fishing entities operating vessels 40 feet and greater in length that 
use skimmer trawls in the southeastern U.S. shrimp fisheries, or an 
estimated 1,062 businesses. Data from 2011 through 2014 indicate that 
9,711 vessels (8,401 in the Gulf of Mexico and 1,310 in the South 
Atlantic) participated in the southeastern U.S. shrimp fisheries during 
this time. Thus, this rule would directly regulate about 11 percent of 
the vessels in these fisheries, which is considered a substantial 
number based on existing guidance. As previously discussed, all of 
these affected entities have been determined, for the purpose of this 
analysis, to be small entities. Therefore, we determine that this rule 
would affect a substantial number of small entities.
    This final rule would require all commercial fishing businesses 
that operate vessels 40 feet and greater in length using skimmer trawls 
in the southeastern U.S. shrimp fisheries (North Carolina through 
Texas) to use TEDs designed to exclude small sea turtles when 
shrimping. These TEDs successfully result in the reduced bycatch of 
small sea turtles, but they also result in shrimp loss and, thus, 
reduced shrimp harvest per tow. Although it may be theoretically 
possible to compensate for this reduction in harvest with additional 
effort (i.e., more tows or trips), increasing effort will also increase 
operating costs. With the exceptions of 2013 and 2014, the differential 
between shrimp and fuel prices has generally been very small in the 
past several years and, therefore, vessels are already operating on 
small positive or negative economic margins. Increasing effort is 
therefore likely to be economically risky in the short term, 
particularly for vessels that only or primarily harvest after season 
openings because catch per unit of effort steadily declines over the 
course of a trip and a season and thus the additional revenue from each 
tow or trip steadily declines as well. Further, if additional effort 
was cost-effective or profitable, this effort would already be 
occurring and part of baseline fishing behavior. Therefore, we do not 
expect that individual vessels would or could compensate for lost 
shrimp and the associated gross revenues by increasing effort.
    Vessels affected by this final rule would likely experience 
economic losses from two sources: Reduced shrimp revenue resulting from 
loss of shrimp catch caused by the use of TEDs and increased gear costs 
associated with the purchase, installation, maintenance, and 
replacement of newly required TEDs. Revenue loss from reduced shrimp 
harvest is expected to be recurring, barring changes in fishing 
practices, and the increased gear costs due to the purchase and 
installation of TEDs are expected to occur in the first year (i.e., 
prior to the effective date of this rule). Under normal use and proper 
maintenance, a TED would last more than three years and likely much 
longer for many vessels. In addition, TEDs can often be repaired by the 
owner or operator if they have or can easily obtain the proper 
knowledge. TEDs have been required in otter trawls for many years and a 
majority of the vessels directly regulated by this regulatory action 
also used otter trawls between 2011 and 2014. Thus, many if not most 
vessel owners and captains are expected to be knowledgeable of how to 
maintain and use TEDs. Further, we plan to engage in significant 
outreach efforts to educate the owners and captains of affected skimmer 
vessels regarding how to use and properly maintain TEDs. Therefore, TED 
costs are not assumed to recur on an annual basis.
    In this analysis, we assume the average shrimp loss to be 6.21 
percent (estimated range of 3.07-10.61 percent), the estimated cost per 
TED is $325 for small vessels (vessels less than 60 feet) and $550 for 
large vessels (vessels 60 feet or longer), and vessels are assumed to 
purchase/carry enough TEDs for the nets towed plus one spare set. 
Therefore, the actual effects of this final rule on individual vessels 
will vary based on gear purchase decisions (e.g., how many nets are 
used, how many spares are kept, and how many TEDs are purchased) and 
individual performance. Individual vessels may experience higher or 
lower shrimp loss than the average given their experience with TEDs. 
For example, fishers that have not traditionally had to use TEDs may 
initially experience shrimp loss greater than the average, which could 
persist until they become more familiar with the equipment, while 
shrimp loss for those who have experience with TEDs may be below the 
average.
    Further, in this analysis, we expect neither the ex-vessel price 
per pound of shrimp nor the cost per TED to change in response to 
supply and demand conditions. Specifically, the estimated decrease in 
the harvest of domestic shrimp from catch loss due to the use of TEDs 
is not expected to result in an increase in the ex-vessel price of 
domestically-harvested shrimp, nor do we expect an increase in the 
average price (cost) of a TED. The maximum estimated number of TEDs 
necessary to outfit all of the vessels regulated by this regulatory 
action is 4,242. The assumed stability in shrimp ex-vessel prices is 
based on the fact that imported shrimp dominate the U.S. market and 
available evidence suggests the demand for shrimp is highly elastic. 
Whether the price of TEDs increases and the magnitude of that increase 
will be determined by the number of available producers (there are 
currently six), their capacity to meet demand (each can currently 
produce 20 TEDs per week), the timeframe for compliance, and the total 
number of TEDs needed. The total number of TEDs needed will be affected 
by vessel owners' purchase decisions and the number of vessels that can 
successfully remain in operation in the face of the higher operating 
costs and

[[Page 70060]]

reduced revenue. Though not expected, if the ex-vessel price of shrimp 
increases due to reduced supply, this analysis will overstate the 
adverse economic effects of lost shrimp revenue. Conversely, if the 
price of a TED increases, the adverse economic effects associated with 
TED costs will be understated.
    Because the increased gear costs associated with purchasing TEDs 
would be incurred in the first year but only periodically thereafter, 
whereas shrimp loss would recur on each trip in every year, the 
following analysis focuses on first-year results (i.e., results that 
include both TED purchase costs and shrimp revenue reduction). The 
adverse effects in subsequent years will be less than those in the 
first year. As previously stated, effects in subsequent years would be 
expected to vary with fishing adaptations (e.g., fishers may become 
more skilled in how the nets with TEDs are fished, thereby reducing 
shrimp loss), as well as unpredictable and unknown TED replacement 
schedules. In this analysis, all of the monetary effects provided are 
in 2014 dollars.
    Over all of the businesses expected to be affected (1,062 vessels), 
this final rule would be expected to result in a reduction in gross 
revenue of approximately $2.29 million, TED costs of approximately 
$1.38 million, and thus a total adverse effect of approximately $3.67 
million in the first year, assuming no vessels cease operations as a 
result of this rule. The average adverse effects per vessel in the 
first year would be $2,159 lost gross revenue and $1,298 in TED costs, 
and, thus, the average total adverse effect per vessel would be $3,457. 
These effects are not expected to be uniform across Gulf of Mexico and 
South Atlantic vessels. The 1,047 vessels in the Gulf of Mexico are 
expected to experience average adverse effects of $2,184, $1,298, and 
$3,482 in the first year with respect to lost gross revenue, TED costs, 
and total adverse effects, respectively. In general, the comparable 
values for the 15 South Atlantic vessels are much less at $429, $1,300, 
and $1,729, respectively.
    However, these values insufficiently capture the range of 
differences in the economic performance of vessels across the 
fisheries. To examine these differences, we placed vessels in a 
category based on their average annual gross (total) revenue from 2011-
2014. These categories are based on vessel categories developed for or 
derived from the annual economic reports for Federally-permitted 
vessels in the Gulf of Mexico and the South Atlantic, and a 2014 
economic report for non-Federally-permitted vessels in the Gulf of 
Mexico. Vessels were placed in the category that their average annual 
gross revenue most closely approximated. In the South Atlantic, the 
distribution of gross revenue between shrimp and non-shrimp species was 
also taken into account.
    In the Gulf of Mexico, vessels were placed into one of six 
categories: Average Federally-permitted vessel (Federal Gulf of 
Mexico), Q5, Q4, Q3, Q2, and Q1. Specifically, in the Gulf of Mexico, 
the average annual gross revenue ranges for the Federal Gulf, Q5, Q4, 
Q3, Q2, and Q1 categories are as follows: >/=$255,000, <$255,000 and >/
=$119,000, <$119,000 and >/=$52,000, <$52,000 and >/=$29,000, <$29,000 
and >/=$17,000, and <$17,000. In the South Atlantic, vessels were 
placed into nine categories: Rock shrimp (RSLA), primary penaeid (SPA 
Primary), secondary penaeid (SPA Secondary), average Federally-
permitted South Atlantic penaeid vessel (AS), Q5, Q4, Q3, Q2, and Q1. A 
vessel was placed in the RSLA category if 50 percent or more of its 
gross revenue came from shrimp and its average annual gross revenue was 
>/=$456,000. A vessel was placed in the AS category if 50 percent or 
more of its gross revenue came from shrimp and its average annual gross 
revenue was <$456,000 and >/=$216,000. A vessel was placed in the SPA 
Primary category if 50 percent or more of its gross revenue came from 
shrimp and its average annual gross revenue was <$216,000 and >/
=$119,000. Finally, a vessel was placed in the SPA Secondary category 
if <50 percent of its gross revenue came from shrimp and its average 
annual gross revenue was >/= $119,000. The ranges are the same as in 
the Gulf of Mexico for the Q5, Q4, Q3, Q2, and Q1 categories.
    These categories should not be presumed to imply that every vessel 
in a particular category has a particular permit associated with the 
category name, as that is not always the case. Among these vessel 
categories for vessels in both areas, vessels in the Q1, Q2, and Q3 
categories are considered, for the purpose of this analysis, as part-
time commercial shrimp vessels (i.e., vessels that are only engaged in 
commercial fishing part-time) and vessels in each of the other 
categories are considered full-time vessels.
    For Gulf of Mexico vessels, the number of vessels expected to be 
directly regulated by this final rule and their average annual gross 
revenue for 2011-2014 by category are as follows: 265 vessels and 
$6,661 (Q1), followed by 116 vessels and $23,060 (Q2), 169 vessels and 
$39,947 (Q3), 303 vessels and $80,411 (Q4), 139 vessels and $163,311 
(Q5), and 55 vessels and $397,640 (Federal Gulf of Mexico). The 
expected average adverse effect (reduced shrimp revenue and TED cost) 
of this regulatory action in the first year for these vessels by 
category is $1,615, $2,175, $2,697, $4,677, $6,450, and $3,558 for 
vessels in each category, Q1-Q5 and Federal Gulf of Mexico, 
respectively.
    Although the average adverse effects of this final rule could be 
compared to the average gross revenue to generate an estimate of the 
average relative (percent) effect of the rule by category, this 
``average to average'' approach (average adverse effect/average gross 
revenue for each category) would provide a distorted perspective of the 
actual expected effects of this rule at the vessel level. For example, 
using this ``average to average'' approach for category Q1, the average 
estimated adverse effect of this rule would be approximately 24 percent 
($1,615/$6,661), and thus the projected average adverse effect of this 
rule per vessel in the Q1 category would be 24 percent of average 
annual gross revenue). Although this outcome would not likely be 
considered insignificant, examination of the adverse effect by vessel 
(adverse effect/average gross revenue for that vessel), then averaged 
across all vessels, provides a much clearer picture of the expected 
economic burden of this regulatory action because it accounts for the 
heterogeneity of vessels within categories. Using this approach, the 
relative adverse effect of this rule as a percentage of average annual 
gross revenue increases to 85 percent for vessels in the Q1 category. 
This result demonstrates that most of these vessels generate minimal 
fishing revenue year-to-year, and the costs of the TEDs alone are 
likely to be financially unbearable even before factoring in the loss 
of shrimp revenue. Applying this approach (analysis at the vessel 
level, then averaging across all vessels) to all revenue categories for 
Gulf of Mexico vessels, the percent loss relative to gross revenue 
would be expected to be 85 percent (Q1), 9.5 percent (Q2), 6.9 percent 
(Q3), 5.9 percent (Q4), 4.2 percent (Q5), and 1.1 percent (Federal Gulf 
of Mexico). These results demonstrate that, although the expected 
effects in absolute monetary terms are greater for the vessels that 
generate the highest average annual gross revenues and are considered 
full-time vessels (i.e., Q4, Q5 and Federal Gulf of Mexico vessels), 
the relative effect of this rule would be greater on part-time vessels 
with the lowest

[[Page 70061]]

average annual gross revenues (i.e., Q1, Q2, and Q3 vessels).
    The number of South Atlantic vessels expected to be directly 
regulated by this final rule and, where disclosable, their average 
annual gross revenue for 2011-2014 by category are as follows: 4 
vessels and $5,832 (Q1) vessels, 5 vessels and $70,860 (Q4), and 3 
vessels and $835,270 (RSLA). In addition, 1 vessel in the SPA Secondary 
category and 2 vessels in the Q2 category are expected to be affected. 
Because the expected number of businesses affected by this regulatory 
action in the SPA Secondary and Q2 categories is so small, neither 
baseline economic information nor expected economic effects directly 
derived from that baseline economic information can be reported for 
these entities due to confidentiality restrictions. The expected 
average adverse effect (reduced shrimp revenue and TED cost) of this 
regulatory action in the first year for these vessels is $1,378, 
$2,180, and $1,308 for vessels in the Q1, Q4 and RSLA categories, 
respectively. Using the same vessel-level analytical approach discussed 
above for Gulf of Mexico vessels, the percent loss relative to gross 
revenue expected for South Atlantic vessels by category is 77.5 percent 
(Q1), 7.9 percent (Q2), 3.4 percent (Q4), 0.2 percent (RSLA), and 0.1 
percent (SPA Secondary). Using the same vessel-level analytical 
approach discussed above for Gulf of Mexico vessels, the percent loss 
relative to gross revenue expected for South Atlantic vessels by 
category would be 69.1 percent (Q1), 7.6 percent (Q2), 4.9 percent 
(Q3), 2.8 percent (Q4), and 0.2 percent (RSLA). Although the expected 
effects in absolute monetary terms for the South Atlantic vessels do 
not follow as markedly the same pattern as those for Gulf of Mexico 
vessels, full-time vessels in the South Atlantic would generally be 
expected to experience greater average adverse effects than part-time 
vessels. However, the range of the difference is only several hundred 
dollars for South Atlantic vessels and not thousands of dollars as 
expected in the Gulf of Mexico. Further, although the relative effects 
in general are not expected to be as great for South Atlantic vessels, 
the relative effects on the part-time vessels in the South Atlantic 
still exceed those of full-time vessels. Although the effects on some 
South Atlantic part-time vessels may be so great as to render continued 
operation as a commercial fishing vessel economically infeasible, as 
with some part-time vessels in the Gulf of Mexico, only 6 part-time 
vessels are affected in the South Atlantic.
    The average lifespan of a TED is inversely related to how often it 
is used for harvesting shrimp (i.e., the more it is used in a 
particular period of time, the shorter its lifespan will be). At some 
point over the 10-year time period considered in the analysis, there 
will be recurring TED costs for the Q2, Q3, Q4, and Q5 vessels, the 
frequency of which will vary with the average number of days they 
shrimp in each year level. Because the Q4 and Q5 vessels spend more 
days shrimping in a year on average, they will experience recurring TED 
costs more often than the Q2 and Q3 vessels. The Q1 vessels are not 
expected to experience recurring TED costs in this analysis because 
TEDs are expected to last about 15 years due to the relatively small 
number of days they spend shrimping on average in any given year.
    In spite of the results presented above, the preceding analysis 
does not assume nor conclude that any specific individual or total 
number of vessels would be expected to stop operating in the 
southeastern U.S. shrimp fisheries because of this final rule. However, 
the vessels most likely to shut down because of these adverse effects 
are the part-time vessels (i.e., Q1, Q2, and Q3 vessels). These vessels 
have the lowest average annual gross revenues per vessel, are thought 
to earn relatively high negative net revenues (losses) on average, and 
are, therefore, the least able to absorb revenue reductions and cost 
increases. On the other hand, at least some of these vessels continued 
to commercially harvest shrimp in 2013 and 2014 after experiencing 
relatively high losses in 2012. This suggests either available data 
incompletely captures the ``economics'' of these operations (e.g., the 
value of shrimp retained for personal consumption or bartering purposes 
is not considered), or the decision to harvest shrimp is based on 
criteria other than, or in addition to, considerations of economic 
profit and loss, such as personal consumption of harvested shrimp and 
associated value and lifestyle bonus (i.e., the value of the commercial 
fishing lifestyle).
    Nonetheless, in theory, vessels and businesses in general are 
expected to shut down when they cannot cover their variable costs. 
However, data on variable costs is not available for all vessels 
affected by this final rule. Estimates of average variable costs for a 
relatively small sample of the affected vessels are available, as are 
estimates of net revenues, but those estimates are insufficient with 
respect to determining how many and which vessel owners may choose to 
stop operating. Thus, the most appropriate measure to use for 
projecting how many and which vessels may stop operating is the 
percentage loss in average annual gross revenue, estimates of which are 
available for all of the affected vessels.
    There is no single ``hard and fast'' decision rule for determining 
what percentage loss in gross revenue will definitively cause a vessel 
or any other business to stop operating. However, given the 
characteristics of the part-time vessels as noted above, it is 
reasonable to assume that an adverse effect (i.e., the combination of 
additional costs and revenue reductions) in the first year that 
represents more than 20 percent of their average annual gross revenue 
would be sufficient to cause them to shut down. Applying this 
assumption to the vessels affected by this rule results in the 
following findings.
    The number of part-time skimmer trawl vessels 40 feet and greater 
in length projected to potentially shut down in the Gulf of Mexico is 
178, or approximately 2 percent of the 8,401 shrimp vessels in the Gulf 
of Mexico, 17 percent of the 1,047 affected shrimp vessels in the Gulf 
of Mexico, and about 32 percent of the 550 part-time shrimp vessels 
affected in the Gulf of Mexico. The number of part-time vessels 
projected to shut down in the South Atlantic is only 2, or 
approximately 0.1 percent of the 1,310 shrimp vessels in the South 
Atlantic, 13 percent of the 15 affected vessels in the South Atlantic, 
and one-third of the 6 part-time shrimp vessels affected in the South 
Atlantic. As some uncertainty exists with respect to how business 
owners will respond, these estimates should be viewed with some 
caution.
    In general, if vessels shut down, they will no longer be landing 
shrimp or other species, nor will they be generating gross revenues or 
net revenues associated with those landings (i.e., their loss in 
landings and gross revenue is 100 percent). Further, the average 
percentage loss in annual gross revenue per vessel will in turn 
increase, particularly in the long term because shutting down causes a 
long-term reduction in landings and gross revenue for the vessels that 
shut down. In theory, the loss of net revenues may improve or worsen 
average economic performance within the affected group of vessels 
depending on whether the economic performance (as measured by net 
revenues) of the vessels that shut down is better or worse than the 
average affected vessel. Because the vessels shutting down are thought 
to experience relatively high losses, average net revenues for those 
that continue operating would be expected to improve. On the other 
hand, because

[[Page 70062]]

vessels that shut down will no longer require TEDs, the number of TEDs 
needed, the total costs of purchasing those TEDs, and the average cost 
of TEDs per affected vessel will decrease. The decrease in TED costs 
will help to mitigate the adverse effects across all vessels, but the 
losses in gross revenue would generally be expected to far outweigh the 
reductions in TED costs and thus the average adverse effect per 
affected vessel would be expected to increase. Further, the reductions 
in total TED costs would not reduce such costs for the vessels that 
continue operating as those would be expected to remain unchanged.
    Seven alternatives, including no action, were considered for this 
final rule. The first alternative (no action) to the rule would not 
expand the required use of TEDs. The ``no action'' alternative would 
not achieve the objective of reducing the incidental bycatch and 
mortality of ESA-listed sea turtles, particularly small sea turtles, in 
the southeastern U.S. shrimp fisheries in order to aid in protection 
and recovery.
    The second alternative to the final rule would have expanded the 
required use of TEDs to vessels 26 feet and greater in length using 
skimmer trawls, pusher-head trawls, and wing nets (butterfly trawls) to 
harvest shrimp in the southeastern U.S. This alternative was not 
selected as it would have been expected to affect more vessels (3,103) 
and increase the total expected TED costs and shrimp revenue loss 
compared to this rule. In addition, this alternative would have 
potentially caused an additional 680 part-time vessels to cease 
operations, and it would have taken almost 1.5 additional years to 
produce the number of TEDs necessary for all vessels to comply compared 
to this rule. This alternative was also not selected because, to date, 
we have no fishery observer data or TED testing information on any 
vessels using pusher-head trawls or wing nets in the southeastern U.S. 
shrimp fisheries. Concerns were expressed about applying data regarding 
the use of TEDs in skimmer trawl operations to pusher-head trawls and 
wing nets. New information indicated significant differences in the 
manner pusher-head trawls and wing nets operate compared to skimmer 
trawls, and therefore we determined additional gear testing is needed 
for those types.
    The third alternative to the final rule would have expanded the 
required use of TEDs to vessels that use skimmer trawls, pusher-head 
trawls, and wing nets (butterfly trawls) in the southeastern U.S. 
shrimp fisheries (North Carolina through Texas), with the exception of 
vessels that use wing nets in Biscayne Bay in Miami-Dade County, 
Florida. This alternative was the preferred alternative in the proposed 
rule. This alternative was not selected because it would have been 
expected to affect significantly more vessels (5,847) and significantly 
increase the total expected TED costs and the shrimp revenue loss 
compared to this rule. This alternative was also not selected would 
have potentially caused an additional 2,630 part-time vessels to cease 
operations, and it would have taken almost 3.5 additional years to 
produce the number of TEDs necessary for all vessels to comply compared 
to this rule. In addition, to date, we have no fishery observer data on 
skimmer trawl vessels less than 26 feet in length or TED testing 
information on skimmer trawl vessels less than 25 feet in length in the 
southeastern U.S. shrimp fisheries. Thus, we do not have adequate 
information to determine the effectiveness and practicability of TEDs 
on skimmer trawl vessels less than 26 feet in length. Some of our 
concerns included the ability to adequately install TEDs in the nets of 
these vessels without significant modifications to vessel rigging. 
Other identified issues included the potential lack of deck space to 
accommodate TEDs. On very small vessels, such as skiffs 18 feet in 
length for example, there is limited space to sort catch and handle 
gear. These types of issues have complicated TED testing, as there is 
little space for observers, and would likely complicate enforcement and 
compliance checks at sea. Further, there were potential navigational 
concerns with TEDs installed on vessels less than 26 feet in length. 
For example, there were concerns the TED extension could interfere with 
the engine while maneuvering a small vessel. A net lengthened to 
accommodate a TED on a small vessel could potentially foul the engine 
and immobilize a vessel, presenting a potential safety issue. We are 
conducting additional testing before requiring TEDs on vessels less 
than 26 feet in length.
    The fourth alternative to the final rule would have expanded the 
required use of TEDs to vessels 26 feet and greater in length using 
skimmer trawls. This alternative would have been expected to affect 
significantly more vessels (2,913) and lead to higher TED costs and 
greater shrimp revenue losses compared to this rule. This alternative 
would have also potentially caused an additional 623 part-time vessels 
to cease operations, and it would have taken almost 1.5 additional 
years to produce the number of TEDs necessary for all vessels to comply 
compared to this rule.
    The fifth alternative to the final rule would have expanded the 
required use of TEDs to all vessels using skimmer trawls regardless of 
vessel length. Similar to the third alternative, this alternative would 
have been expected to affect significantly more vessels (5,432) and 
significantly increase the total expected TED costs and shrimp revenue 
loss compared to the rule. This alternative was also not selected would 
have potentially caused an additional 2,417 part-time vessels to cease 
operations, and it would have taken almost 3.5 additional years to 
produce the number of TEDs necessary for all vessels to comply compared 
to this rule. In addition, this alternative was also not selected for 
the reasons noted above with respect to why the TED requirement was not 
expanded to vessels less than 26 feet in length.
    The sixth and seventh alternatives to the final rule would have 
expanded the required use of TEDs to all shrimp vessels regardless of 
trawl type but varying by fishing location (i.e., state waters only or 
all waters). These alternatives were not selected for the same reasons 
the second, third, and fourth alternatives were not selected. These 
alternatives were also not selected because they would have been 
expected to affect significantly more vessels (9,711 for both 
alternatives) and result in significantly greater expected increases in 
TED costs and shrimp revenue loss, with a relatively minor increase in 
the expected protection of small sea turtles, compared to the rule. 
These alternatives were also not selected because they would have 
potentially caused an additional 3,972 part-time vessels to cease 
operations, and it would have taken more than 7 additional years to 
produce the number of TEDs necessary for all vessels to comply compared 
to this rule.
    Based on the above information, the alternative chosen in this 
final rule has minimized the expected adverse effects on small entities 
compared to the other significant alternatives considered that would 
achieve the objectives of this rule and the ESA.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule

[[Page 70063]]

or group of rules. As part of this rulemaking process, a small entity 
compliance guide was prepared. The compliance guide will be distributed 
to affected entities by sending copies of the guide to fishing industry 
and interest groups (e.g., Louisiana Shrimp Association, Audubon Nature 
Institute--G.U.L.F., Vietnamese-American Fisher Folk and Families, and 
Coastal Communities Consulting, Inc., etc.) and to state fish and 
wildlife agencies in Louisiana, Mississippi, Alabama, Florida, and 
North Carolina. In addition, copies of this final rule and the 
compliance guide are available from the Regional Administrator (see 
ADDRESSES) and at the following website: https://www.fisheries.noaa.gov/southeast/bycatch/turtle-excluder-device-regulations.
    As noted in the response to comment 8, we intend to offset this 
action as soon as practicable after publication to comply with 
Executive Order 13771.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: December 16, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.206, revise paragraphs (d)(2)(ii)(A)(3) and (d)(3)(i) 
introductory text to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (2) * * *
    (ii) * * *
    (A) * * *
    (3) Has only a pusher-head trawl or a wing net, or has a skimmer 
trawl on a vessel less than 40 ft (12.2 m) in length as indicated on 
the vessel's state vessel registration or U.S. Coast Guard vessel 
documentation.
* * * * *
    (3) Tow-time restrictions--(i) Duration of tows. If tow-time 
restrictions are used pursuant to paragraph (d)(2)(ii), (d)(3)(ii), or 
(d)(3)(iii) of this section, a shrimp trawler must limit tow times. The 
tow time begins at the time the trawl door enters the water and ends at 
the time the trawl door is removed from the water. For a trawl that is 
not attached to a door, the tow time begins at the time the codend 
enters the water and ends at the time the codend is emptied of catch on 
deck. Tow times may not exceed:
* * * * *

0
3. In Sec.  223.207 revise paragraphs (a)(4), (a)(6), (a)(7)(ii)(B) and 
(C), and (d)(3)(ii) and (iii) and add paragraph (d)(3)(v) to read as 
follows:


Sec.  223.207  Approved TEDs.

* * * * *
    (a) * * *
    (4) Space between bars. The space between deflector bars and the 
deflector bars and the TED frame must not exceed 4 inches (10.2 cm), 
except for TEDs required to be installed in skimmer trawls, where the 
space between deflector bars and the deflector bars and the TED frame 
must not exceed 3 inches (7.6 cm).
* * * * *
    (6) Position of the escape opening. The escape opening must be made 
by removing a rectangular section of webbing from the trawl, except for 
a TED with an escape opening size described at paragraph (a)(7)(ii)(A) 
of this section for which the escape opening may alternatively be made 
by making a horizontal cut along the same plane as the TED. A TED 
installed in a skimmer trawl rigged for fishing must have the escape 
opening oriented at the top of the net. For TEDs installed in all other 
trawls, the escape opening must be centered on and immediately forward 
of the frame at either the top or bottom of the net when the net is in 
the deployed position. The escape opening must be at the top of the net 
when the slope of the deflector bars from forward to aft is upward, and 
must be at the bottom when such slope is downward. The passage from the 
mouth of the trawl through the escape opening must be completely clear 
of any obstruction or modification, other than those specified in 
paragraph (d) of this section.
    (7) * * *
    (ii) * * *
    (B) The 71-inch opening. The two forward cuts of the escape opening 
must not be less than 26 inches (66 cm) long from the points of the cut 
immediately forward of the TED frame. The resultant length of the 
leading edge of the escape opening cut must be no less than 71 inches 
(181 cm) with a resultant circumference of the opening being 142 inches 
(361 cm) (Figure 12 to this part). A webbing flap, as described in 
paragraph (d)(3)(ii) or (v) of this section, may be used with this 
escape hole, so long as this minimum opening size is achieved. Either 
this opening or the one described in paragraph (a)(7)(ii)(C) of this 
section must be used in all offshore waters and in all inshore waters 
in Georgia and South Carolina, but may also be used in other inshore 
waters.
    (C) Double cover opening. The two forward cuts of the escape 
opening must not be less than 20 inches (51 cm) long from the points of 
the cut immediately forward of the TED frame. The resultant length of 
the leading edge of the escape opening cut must be no less than 56 
inches (142 cm) (Figure 16 to this part illustrates the dimensions of 
these cuts). A webbing flap, as described in paragraph (d)(3)(iii) or 
(v) of this section, may be used with this escape hole. Either this 
opening or the one described in paragraph (a)(7)(ii)(B) of this section 
must be used in all offshore waters and in all inshore waters in 
Georgia and South Carolina, but may also be used in other inshore 
waters.
* * * * *
    (d) * * *
    (3) * * *
    (ii) 71-inch TED flap. The flap must be a 133-inch (338-cm) by 52-
inch (132-cm) piece of webbing. The 133-inch (338-cm) edge of the flap 
is attached to the forward edge of the opening (71-inch (180-cm) edge). 
The flap may extend no more than 24 inches (61 cm) behind the posterior 
edge of the grid (Figure 12 to this part illustrates this flap).
    (iii) Double cover TED flap. This flap must be composed of two 
equal size rectangular panels of webbing. Each panel must be no less 
than 58 inches (147.3 cm) wide and may overlap each other no more than 
15 inches (38.1 cm). The panels may only be sewn together along the 
leading edge of the cut. The trailing edge of each panel must not 
extend more than 24 inches (61 cm) past the posterior edge of the grid 
(Figure 16 to this part). Each panel may be sewn down the entire length 
of the outside edge of each panel. This paragraph (d)(3) of this 
section notwithstanding, this flap may be installed on either the 
outside or inside of the TED extension. For interior installation, the 
flap may be sewn to the interior of the TED extension along the leading 
edge and sides to a point intersecting the TED frame; however, the flap 
must be sewn to the exterior of the TED extension from the point at 
which it intersects the TED frame to the trailing edge of the flap. 
Chafing webbing described in

[[Page 70064]]

paragraph (d)(4) of this section may not be used with this type of 
flap.
* * * * *
    (v) Small turtle TED flap. If the angle of the deflector bars of a 
bent bar TED used by a skimmer trawl exceeds 45[deg], or if a double 
cover opening straight bar TED (at any allowable angle) is used by a 
skimmer trawl, the flap must consist of twine size not greater than 
number 15 (1.32-mm thick) on webbing flaps described in paragraph 
(d)(3)(i), (ii), (iii), or (iv) of this section.
* * * * *
[FR Doc. 2019-27398 Filed 12-19-19; 8:45 am]
BILLING CODE 3510-22-P