[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.
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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