[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Proposed Rules]
[Pages 91097-91104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30224]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223

[Docket No. 161109999-6999-01]
RIN 0648-BG45


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Proposed rule; request for comments; notice of public hearings.

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SUMMARY: We are proposing to withdraw the alternative tow time 
restriction and require 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, Florida--to use turtle excluder devices (TEDs) 
designed to exclude small turtles in their nets. The intent of this 
proposed 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 also are 
proposing to amend the definition of tow times to better clarify the 
intent and purpose of tow times to reduce sea turtle mortality, and to 
refine additional portions of the TED requirements to avoid potential 
confusion.

DATES: Written comments (see ADDRESSES) will be accepted through 
February 14, 2017. Public hearings on the proposed rule will be held in 
January 2017. See SUPPLEMENTARY INFORMATION for meeting dates, times, 
and locations.

ADDRESSES: You may submit comments on this proposed rule, identified by 
0648-BG45, by any of the following methods:
     Federal e-Rulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=[NOAA-NMFS-2016-0151], click the ``Comment Now!' icon, 
complete the required fields, and enter or attach your comments
     Mail: Michael Barnette, Southeast Regional Office, NMFS, 
263 13th Avenue South, St. Petersburg, FL 33701.
     Fax: 727-824-5309; Attention: Michael Barnette.
    Instructions: NMFS may not consider comments if they are sent by 
any other method, to any other address or individual, or received after 
the comment period ends. All comments received are a part of the public 
record and NMFS will generally post for public viewing on 
www.regulations.gov without change. All personal identifying 
information (for example, name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter N/A in the required fields, if you wish to remain 
anonymous). You may submit attachments to electronic comments in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-551-5794.

SUPPLEMENTARY INFORMATION: 

Background

    All sea turtles in U.S. waters are listed as either endangered or 
threatened under the Endangered Species Act of 1973 (ESA). In the 
Atlantic Ocean and Gulf of Mexico, the Kemp's ridley (Lepidochelys 
kempii), leatherback (Dermochelys coriacea), and hawksbill 
(Eretmochelys imbricata) turtles are listed as endangered. The 
loggerhead (Caretta caretta; Northwest Atlantic Ocean distinct 
population segment) and green (Chelonia mydas; North Atlantic and South 
Atlantic Ocean distinct population segments) turtles are listed as 
threatened.
    Sea turtles are incidentally taken, and some are killed, as a 
result of numerous activities including fishery-related trawling 
activities in the Gulf of Mexico and along the Atlantic seaboard. Under 
the ESA and its implementing regulations, taking (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 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) are followed. The same conservation 
measures also apply to endangered sea turtles (50 CFR 224.104).
    The regulations require most shrimp trawlers operating in the 
southeastern United States to have an approved TED installed in each 
net that is rigged for fishing, to allow sea turtles to escape. 
Approved TED types include single-grid

[[Page 91098]]

hard TEDs and hooped hard TEDs conforming to a generic description, and 
the Parker soft TED (see 50 CFR 223.207). However, skimmer trawls, 
pusher-head trawls, and vessels using wing nets (butterfly trawls) 
currently may employ alternative tow time restrictions in lieu of 
installing TEDs, under 50 CFR 223.206(d)(2)(ii)(A). The alternative tow 
time restrictions currently limit tow times to 55 minutes from April 1 
through October 31, and 75 minutes from November 1 through March 31.
    TEDs incorporate an escape opening, usually covered by a webbing 
flap, which allows sea turtles to escape from trawl nets. A TED design 
must be shown to be 97 percent effective in excluding sea turtles 
during testing based upon specific testing protocols (50 CFR 
223.207(e)(1)) to meet standards for approval. Most approved hard TEDs 
are described in the regulations (50 CFR 223.207(a)) according to 
generic criteria based upon certain parameters of TED design, 
configuration, and installation, including minimum height and width 
dimensions of the TED opening through which the turtles escape.
    We previously examined the incidental bycatch and mortality of sea 
turtles in the shrimp fisheries in 2011-2012, stemming from concerns 
related to elevated sea turtle strandings in the northern Gulf of 
Mexico. On June 24, 2011 (76 FR 37050), we published a notice of intent 
to prepare an EIS and conduct scoping meetings on potential measures to 
reduce sea turtle bycatch in the shrimp fisheries. On May 10, 2012 (77 
FR 27411), we published a proposed rule that, if implemented, would 
require all skimmer trawls, pusher-head trawls, and wing nets 
(butterfly trawls) to use TEDs in their nets. We also prepared a draft 
environmental impact statement (DEIS), which included a description of 
the purpose and need for evaluating the proposed action and other 
potential management alternatives, the scientific methodology and data 
used in the analyses, background information on the physical, 
biological, human, and administrative environments, and a description 
of the effects of the proposed action and other potential management 
alternatives on the aforementioned environments. A notice of its 
availability was published on May 18, 2012 (77 FR 29636). At the time 
the 2012 DEIS was prepared, information on the effects of the skimmer 
trawl fisheries on sea turtle populations was extremely limited. New 
information gained after the preparation of the 2012 DEIS indicated 
that a significant number of sea turtles observed interacting with the 
skimmer trawl fisheries (i.e., those found in shallow (< 60 feet), 
state waters) had a body depth that would allow them to pass between 
the required maximum 4-inch (10.2 centimeter (cm)) bar spacing of a 
standard, approved TED and proceed into the back of the net (i.e., they 
would not escape the trawl net). Therefore, the conservation benefit of 
expanding the TED requirement to skimmer trawls, pusher-head trawls, 
and wing nets (butterfly trawls) was much less than originally 
anticipated. As a result, we determined that a final rule to withdraw 
the alternative tow time restriction and require all skimmer trawls, 
pusher-head trawls, and wing nets (butterfly trawls) to use TEDs was 
not warranted (February 7, 2013; 78 FR 9024).
    Following the withdrawal of the proposed rule, we initiated 
additional TED testing, evaluating both small sea turtle exclusion and 
shrimp retention within the skimmer trawl fisheries. This testing has 
produced several TED configurations that all use a TED grid with 3-inch 
(7.6 cm) bar spacing (i.e., less than the current 4-inch bar spacing 
maximum) and escape-opening flap specifications that would allow small 
turtles to effectively escape the trawl net, which could be employed by 
trawl vessels in areas where these small turtles occur.
    Additionally, anecdotal information, law enforcement data, and past 
public comment during scoping for the 2012 DEIS indicate that the 
alternative tow time requirements are exceeded by the skimmer trawl 
fleets, though to what extent is unclear. Tow times are inherently 
difficult to enforce widely due to the time required to monitor a given 
vessel, as well as the ability to do so covertly to observe unbiased 
fishing operations. Furthermore, anecdotal information indicates that 
skimmer trawl vessels have increased the size and amount of gear they 
use to fish, allowing them to fish in deeper water. In some cases, 
vessels are rigged with both skimmer trawl frames and outriggers for 
use with conventional otter trawl nets. As a result of these larger 
skimmer trawl nets, there is a possibility that a sea turtle could be 
captured within the mouth of the net and not be visible during a 
cursory cod end inspection, a scenario that is compounded by the fact 
that many vessels fish at night. For these reasons, and because of the 
increased abundance of sea turtles in the northern Gulf of Mexico, 
particularly juvenile Kemp's ridley sea turtles, we are re-evaluating 
the efficacy of sea turtle conservation requirements associated with 
the skimmer trawl fisheries, and analyzing the effectiveness of current 
TED requirements in the otter trawl fisheries.
    On March 15, 2016 (81 FR 13772), we published a notice of intent to 
prepare an EIS and conducted five scoping meetings in April 2016. 
Information and public comment gathered during that process was 
incorporated into this DEIS, and a notice of its availability was 
published elsewhere in today's issue of the Federal Register. The 
analysis included in this DEIS demonstrates that withdrawing the 
alternative tow time restriction and requiring 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, Florida--to use 
TEDs in their nets would reduce incidental bycatch and mortality of sea 
turtles in the southeastern U.S. shrimp fisheries and, therefore, may 
be a necessary and advisable action to conserve threatened and 
endangered sea turtle species.
    The Biscayne Bay wing net fishery is not required to use the new 
TEDs included in this rulemaking since the fishery operates by sight 
fishing at the surface close to the vessel using small, light 
monofilament nets during the winter months. We anticipate the 
incidental capture of sea turtles would be a rare event based on the 
time, location, and operational parameters of the fishery. If a sea 
turtle was incidentally captured, it would be immediately obvious to 
the operator, and could be quickly released.

Skimmer Trawls, Pusher-Head Trawls, and Wing Nets

    Developed in the early 1980s, the skimmer trawl was intended for 
use in some areas primarily to catch white shrimp, which have the 
ability to jump over the headrope of standard otter trawls while being 
towed in shallow water. The skimmer net frame allows the net to be 
elevated above the water while the net is fishing, thus preventing 
shrimp from escaping over the top. Owing to increased shrimp catch 
rates, less debris and/or fish and other bycatch, and lower fuel 
consumption than otter trawlers, the use of skimmer nets quickly spread 
throughout Louisiana, Mississippi, and Alabama. The basic components of 
a skimmer trawl include a frame, the net, heavy weights, skids or 
``shoes,'' and tickler chains. The net frame is usually constructed of 
steel or aluminum pipe or tubing and is either L-shaped (with an 
additional stiff leg) or a trapezoid design. When net frames are 
deployed, they are aligned perpendicularly to the vessel and cocked or 
tilted forward and

[[Page 91099]]

slightly upward. This position allows the net to fish better and 
reduces the chance of the leading edge of the skid digging into the 
bottom and subsequently damaging the gear. The frames are maintained in 
this position by two or more stays or cables to the bow. The outer leg 
of the frame is held in position with a ``stiff leg'' to the horizontal 
pipe and determines the maximum depth at which each net is capable of 
working. The skid, or ``shoe,'' is attached to the bottom of the outer 
leg, which allows the frame to ride along the bottom, rising and 
falling with the bottom contour. The bottom of the gear includes 
tickler chains and lead lines. The skimmer trawl is the most popular 
trawl type after the otter trawl, and is widely used in Louisiana 
waters.
    Vietnamese fishers who moved into Louisiana in the early 1980s 
introduced the pusher-head trawl, also known as the ``xipe'' or 
chopstick net. The pusher-head trawl net is attached to a rigid or 
flexible frame similar to the wing net; however, the frame mounted on 
the bow of the boat is attached to a pair of skids and fished by 
pushing the net along the bottom.
    Wing nets, also known as butterfly trawls or ``paupiers'', were 
introduced in the 1950s and used on stationary platforms and on shrimp 
boats either under power or while anchored. A wing net consists of a 
square metal frame which forms the mouth of the net. Webbing is 
attached to the frame and tapers back to a cod end. The net can be 
fished from a stationary platform or a pair of nets can be attached to 
either side of a vessel. The vessel is then anchored in tidal current 
or the nets are ``pushed'' through the water by the vessel. The 
contents of the wing net, as well as the contents of skimmer and 
pusher-head trawls, can be picked up and dumped without raising the 
entire net out of the water, which is necessary with an otter trawl.
    Pusher-head trawls and wing nets (butterfly trawls) are both 
allowable gear types in several Gulf of Mexico coastal states, however, 
their use is largely overshadowed by skimmer trawls in shallow, coastal 
waters. In the DEIS, we estimate approximately 93 percent of non-otter 
trawl effort in the shrimp fisheries is conducted by skimmer trawls.

Sea Turtle Bycatch in Skimmer Trawls, Pusher-Head Trawls, and Wing Nets

    We initiated observer effort on Gulf of Mexico skimmer trawl 
vessels in 2012. A total of 39 sea turtles were captured during 
observed trips consisting of 2,699.23 tow hours from 2012 through 2015. 
Additionally, in 2015 the North Carolina Division of Marine Fisheries 
observed 238 tows over 62 days, which is 6.21 percent of the total 
annual skimmer trawl fishing effort. They observed four sea turtle 
captures (Brown 2016). The incidental capture of sea turtles in skimmer 
trawls has been documented in North Carolina during other studies as 
well (Coale et al, 1994; Price and Gearhart 2011).
    In the DEIS, we calculated sea turtle catch per unit effort rates 
based on observed effort in the skimmer trawl fisheries. The catch rate 
was multiplied by total average effort (i.e., 539,394 effort hours in 
the Gulf of Mexico non-otter trawl fisheries and 4,356 effort hours in 
the North Carolina skimmer trawl fishery) to determine total sea turtle 
take in these fisheries. The analysis resulted in a total anticipated 
take of 7,928 captured sea turtles in the combined skimmer trawl, 
pusher-head trawl, and wing net fisheries.
    We then estimated sea turtle mortalities as a result of these 
fisheries based on observed mortality rates and taking into 
consideration the effects of post-interaction mortality on captured and 
released sea turtles. That analysis concluded a TED requirement for all 
skimmer trawl, pusher-head trawl, and wing net vessels could reduce 
annual sea turtle mortalities from those currently occurring under the 
status quo by 789-1,543 in the near term and 1,730-2,500 after TED 
compliance rises to final anticipated levels. The methodology for this 
analysis is described in detailed in the DEIS. Therefore, we 
preliminarily determined that the measures proposed here are necessary 
and advisable to conserve threatened and endangered sea turtle species. 
We have further preliminarily determined that the measures proposed 
here are necessary and appropriate to enforce the requirements of the 
ESA.
    We anticipate a six-month delayed effective date upon publication 
of a final rule in the Federal Register. Due to the number of TEDs 
required for the affected vessels and the time required to construct 
these TEDs, our analysis indicates additional effort may be needed to 
construct the new TEDs. One way to address this concern is a phased-in 
approach for implementing the new TED requirements that takes these 
issues into account. Thus, we are specifically soliciting public 
comment on how to best structure a phased implementation, so as to 
achieve the desired conservation benefit promptly, while providing 
adequate time for the devices to be constructed and installed.
    Potential scenarios include basing the approach on landings, where 
vessels with the highest landings would be the first vessels required 
to install the new TEDs, and vessels with lower landings would be 
required to install the new TEDs later in time. Vessels could be placed 
in categories based on their recorded landings, with each category 
being addressed in multiple phases over time. The intention would be to 
first implement the requirement where it would achieve the greatest 
conservation benefit for listed sea turtles. Based on the assumption 
that higher landings would be associated with higher levels of effort 
and, therefore, higher numbers of sea turtle interactions, those 
vessels should be the first required to install the devices. Another 
approach could be to phase the TED requirement based on vessel size, 
where the largest vessels would be the first vessels required to 
install the devices. Similar to the landings based approach, this would 
view vessel size as a proxy for effort and the associated sea turtle 
interactions. One of the challenges with any approach will be the 
ability to definitively identify all vessels subject to the requirement 
and provide adequate notice to the owners and operators as to precisely 
when the new devices must be installed.

Additional Revisions to the TED Requirements

    We are proposing to amend the TED requirements to clarify that tow 
times are mandatory for vessels not required to use TEDs, as well as to 
clarify the tow time definition. The requirements currently define a 
tow time for trawls that are not attached to an otter door as the time 
the cod end enters the water until it is removed from the water. 
Skimmer trawls can still fish while the cod end is raised, and there is 
concern that turtles could be entangled or otherwise entrained in other 
portions of the net that would not be visible by raising just the cod 
end. As such, this definition may not properly address the need to 
ensure sea turtles are not drowned in trawl nets while fishing without 
TEDs. Therefore, we are proposing to revise the tow time definition to 
specify that the entire net (i.e., including the net frame) be removed 
from the water at the end of a tow when not using TEDs in the net. We 
also are amending the name of various TED escape openings and webbing 
flaps to avoid confusion about where these openings and flaps may be 
used. For example, we propose to amend the ``71-inch offshore opening'' 
to just the ``71-inch opening'' as this TED escape opening can also be 
used in inshore waters.

[[Page 91100]]

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    We prepared an initial regulatory flexibility analysis (IRFA), as 
required by section 603 of the Regulatory Flexibility Act (RFA), for 
this proposed rule. The IRFA describes the economic effects this 
proposed rule, if adopted, would have on small entities. A description 
of this action, why it is being considered, the objectives of, and 
legal basis for this proposed 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 IRFA follows.
    The ESA provides the statutory basis for this proposed rule. This 
proposed rule would not establish any new reporting, record-keeping, or 
other compliance requirements beyond the requirement to use TEDs when 
using skimmer trawls, pusher-head trawls, and wing nets (butterfly 
trawls). TEDs are typically installed by the net manufacturer, so no 
special skills would be expected to be required of fishers for TED 
installation. Some training would be necessary for the maintenance and 
routine use of TEDs by fishers who have not historically had to use 
these devices. However, TEDs have been required for vessels harvesting 
shrimp with otter trawls for many years. A majority of the vessels 
directly regulated by this proposed rule also used otter trawls between 
2011 and 2014 and, thus, are expected to know how to properly maintain 
and use TEDs. Further, the skills required for properly maintaining and 
using TEDs in skimmer trawls, pusher-head trawls, and wing nets 
(butterfly trawls) is thought to be consistent with the skillset and 
capabilities of commercial shrimp fishers in general. As a result, 
special professional skills training would not be expected to be 
necessary.
    This proposed rule is expected to directly regulate 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 only wing nets 
(butterfly trawls) in Biscayne Bay in Miami-Dade County, Florida. An 
estimated 5,837 vessels have been identified as using this gear (5,660 
vessels in the Gulf of Mexico and 177 vessels in the South Atlantic). 
Although some of the directly regulated shrimp vessels are thought to 
be owned by businesses with the same or substantively the same 
individual owners, and thus would be considered affiliated, ownership 
data for these vessels is incomplete. It is not currently feasible to 
accurately determine whether businesses that own these vessels are, in 
fact, affiliated. As a result, although it will result in an 
overestimate of the actual number of businesses directly regulated by 
this proposed rule, for the purposes of this analysis, it is assumed 
that each vessel is independently owned by a single business. We have 
not identified any other entities that might be directly regulated by 
this proposed rule. Therefore, this proposed rule would be expected to 
directly regulate 5,837 businesses.
    The average annual gross revenue (2014 dollars) over the period 
2011-2014 for vessels that harvested shrimp using skimmer trawls, 
pusher-head trawls, or wing nets (butterfly trawls) was approximately 
$31,861 for vessels in the Gulf of Mexico (5,660 vessels) and $37,250 
for vessels in the South Atlantic (177 vessels). The largest average 
annual gross revenues earned by a single business over this period were 
approximately $1.85 million.
    On December 29, 2015, NMFS 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 114111) for RFA compliance purposes only 
(80 FR 81194; December 29, 2015). The $11 million standard became 
effective on July 1, 2016, and is to be used in place of 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 
proposed rule are determined to be small businesses for the purpose of 
this analysis.
    This proposed rule would require all commercial fishing vessels 
using skimmer trawls, pusher-head trawls, and wing nets (butterfly 
trawls) in the Southeastern U.S. shrimp fishery (North Carolina through 
Texas), with the exception of vessels that use only wing nets 
(butterfly trawls) in Biscayne Bay in Miami-Dade County, Florida, to 
use TEDs designed to exclude small sea turtles when shrimping. Although 
these TEDs, as designed, successfully result in the reduced bycatch of 
small sea turtles, 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 (more 
tows or trips), increasing effort will also increase operating costs. 
The difference between shrimp prices and fuel prices is directly 
related to profitability (i.e., as the difference increases, profits 
increase). With the exception of 2014, this difference has been very 
small in the past several years and thus vessels are already operating 
on small economic margins. Increasing effort is therefore likely to be 
economically risky, particularly for vessels that only or primarily 
harvest after the seasonal openings because catch per unit effort 
steadily declines over time and 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, vessels are not expected 
to compensate for lost shrimp and the associated gross revenues by 
increasing effort.
    As a result, vessels affected by this proposed rule would be 
expected to experience adverse economic effects from two sources: 
reduced shrimp revenue and increased gear costs associated with the 
purchase, installation, maintenance, and replacement of newly required 
TEDs. Revenue loss from reduced shrimp harvest would be expected to be 
recurrent (yearly), barring changes in fishing practices, and the 
increased gear costs would recur periodically based on the loss, 
maintenance, and replacement cycles of TEDs (under normal use and 
proper maintenance, a TED would be expected to last at least three 
years).
    In this analysis, the average shrimp loss is assumed to be 6.21 
percent on average (estimated range of 3.07 percent-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 proposed rule 
on individual vessels will vary based on individual performance (i.e., 
shrimp loss may be higher or lower than the average; because these 
fishers have not traditionally had to use TEDs, and initial shrimp loss 
may be higher and persist until greater familiarity with the gear is 
acquired) and gear purchase

[[Page 91101]]

decisions (how many TEDs are purchased/carried).
    Additionally, in this analysis, neither the ex-vessel price per 
pound of domestically harvested shrimp nor the expected cost per TED is 
modeled to change in response to supply and demand conditions. 
Specifically, the estimated decrease in the harvest of domestic shrimp 
(as a result of increased shrimp loss due to this proposed rule) is not 
modeled to result in an increase in the ex-vessel price of domestic 
shrimp, nor has the projected increase in the demand for TEDs been 
modeled to result in an increase in the average price of a TED. The 
assumed lack of change in shrimp ex-vessel prices is likely more 
realistic than the assumed constant price of a TED because imported 
shrimp dominate the U.S. market and available evidence suggests the 
demand for shrimp is highly elastic. Upward price pressure on TEDs will 
be affected by the number of available suppliers (there are currently 
six), their capacity to meet production demand (each can currently 
produce 20 TEDs per week), the timeframe for compliance, and the total 
number of TEDs needed (estimated to be 23,266 in order to fully outfit 
all of the vessels directly regulated by this proposed rule). The total 
number of TEDs needed will be affected by vessel purchase decisions 
(i.e., how many spare TEDs vessels choose to carry), and the number of 
vessels that can successfully remain in operation in the face of the 
higher operating costs and reduced revenue. Although not expected, if 
the ex-vessel price of shrimp increases as a result of reduced supply, 
the effects provided in this analysis will be overstated. Conversely, 
if the price of a TED increases, then the adverse economic effects 
associated with the costs of purchasing TEDs will be understated.
    Because the increased gear costs associated with purchasing TEDs 
would be periodic, whereas the shrimp loss would be ongoing and 
recurrent, the following analysis only presents 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 and would be expected to vary with fishing 
adaptations (fishers may become more skilled in and familiar with the 
operation and use of TEDs, thereby reducing shrimp loss), and TED 
replacement schedules (both planned and unplanned).
    All of the monetary effects provided in this analysis are in 2014 
dollars. Over all of the businesses expected to be affected (5,837 
vessels), this proposed rule would be expected to result in a reduction 
in gross revenue of approximately $6.2 million and TED costs of 
approximately $7.5 million, thereby resulting in a total adverse effect 
of approximately $13.7 million in the first year. The average adverse 
effects per vessel would be $1,062, $1,285, and $2,347 with respect to 
lost gross revenue, TED costs, and the total adverse effect, 
respectively. These effects would not be expected to be uniform across 
Gulf of Mexico and South Atlantic vessels. Gulf of Mexico vessels would 
be expected to experience average adverse effects of $1,085, $1,298, 
and $2,383 with respect to lost gross revenue, TED costs, and the total 
adverse effect, respectively. The comparable values for South Atlantic 
vessels would be $146, $1,219, and $1,365.
    In the Gulf of Mexico, vessels were placed into one of six (6) 
categories: average Federally-permitted vessel (Federal Gulf of 
Mexico), Q5, Q4, Q3, Q2, and Q1. The average annual gross revenue 
ranges for these categories are as follows: greater than or equal to 
$255,000 (Federal Gulf of Mexico), less than $255,000 but greater than 
or equal to $119,000 (Q5), less than $119,000 but greater than or equal 
to $52,000 (Q4), less than $52,000 but greater than or equal to $29,000 
(Q3), less than $29,000 but greater than or equal to $17,000 (Q2), and 
less than $17,000 (Q1). In the South Atlantic, vessels were placed into 
nine (9) 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 greater than 
or equal to $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 less than $456,000 but greater than or equal 
to $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 less than $216,000 but greater than or equal 
to $119,000. Finally, a vessel was placed in the SPA Secondary category 
if less than 50 percent of its gross revenue came from shrimp and its 
average annual gross revenue was greater than or equal to $119,000. The 
ranges are the same as in the Gulf of Mexico for the Q5, Q4, Q3, Q2, 
and Q1 categories.
    It should not be inferred that every vessel in a particular 
category has a particular permit associated with the category name, as 
that is not always the case. For the purpose of this analysis, vessels 
in the Q1, Q2, and Q3 categories are considered part-time vessels 
(i.e., vessels that are only engaged in commercial fishing part-time) 
in both the Gulf of Mexico and the South Atlantic, while 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 proposed rule and their average annual gross 
fishing revenue from 2011 through 2014 are 3,386 vessels and $4,524 for 
Q1 vessels, followed by 534 vessels and $22,773 (Q2), 655 vessels and 
$39,130 (Q3), 781 vessels and $77,698 (Q4), 232 vessels and $160,932 
(Q5), and 72 vessels and $405,664 (Federal Gulf of Mexico). The 
expected average adverse effect (reduced shrimp revenue and TED cost) 
of the proposed rule in the first year for these vessels is $1,510, 
$2,200, $2,813, $4,568, $6,467, and $3,303 for vessels in the Q1, Q2, 
Q3, Q4, Q5, and Federal Gulf of Mexico categories, respectively.
    Although the average adverse effects of the proposed rule could be 
compared to the average gross revenue to generate an estimate of the 
average relative (percent) effect of the proposed 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 proposed rule at the vessel 
level. For example, using this approach (``average to average'') for 
category Q1, the average estimated effect of the cost of the proposed 
rule would be approximately 33.4 percent ($1,510/$4,524; the projected 
average adverse effect per vessel of this proposed rule would be 33.4 
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 effect of this proposed rule. Using 
this approach, the relative adverse effect of this proposed rule, as a 
percentage of average annual gross revenue, increases to 199.4 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

[[Page 91102]]

Gulf of Mexico vessels, the relative adverse effect as a percentage of 
gross revenue would be expected to be 199.4 percent for Q1 vessels, 9.8 
percent (Q2), 7.3 percent (Q3), 6.0 percent (Q4), 4.2 percent (Q5), and 
1.0 percent (Federal Gulf of Mexico). These results demonstrate that, 
although the expected effects in absolute monetary terms are greater 
for vessels in the Q4, Q5, and Federal Gulf of Mexico categories, 
(i.e., vessels that generate the highest average annual gross revenues 
and are considered full-time vessels), the relative effect of this 
proposed rule would be greater on vessels in the Q1, Q2, and Q3 
categories (i.e., part-time vessels that have the lowest average annual 
gross revenues).
    For South Atlantic vessels, the number of vessels expected to be 
directly affected by this proposed rule and their average gross revenue 
for 2011-2014 are 123 vessels and $5,350 for Q1 vessels, followed by 19 
vessels and $22,797 (Q2), 17 vessels and $39,329 (Q3), 13 vessels and 
$717,843 (Q4), 3 vessels and $835,270 (RSLA), and 1 vessel for each of 
the SPA Secondary and AS categories. Because the expected number of 
entities affected by the proposed rule in the SPA Secondary and AS 
categories is so small, neither baseline economic information nor 
expected economic effects can be reported for them due to 
confidentiality restrictions. The expected average adverse effect 
(reduced shrimp revenue and TED cost) of this proposed rule in the 
first year is $1,290, $1,378, $1,667, $1,627, $1,573 for vessels in the 
Q1, Q2, Q3, Q4 and RSLA categories, respectively. Using the same 
vessel-level analytical approach discussed in the previous paragraph 
and applied to Gulf of Mexico vessels, the relative adverse effect as a 
percentage of gross revenue for South Atlantic vessels would be 
expected to be 96.5 percent for Q1 vessels, 6.2 percent (Q2), 4.4 
percent (Q3), 2.4 percent (Q4), and 0.2 percent (RSLA). The expected 
effects in absolute monetary terms for the South Atlantic vessels do 
not follow as markedly the same pattern as do 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, but range of the difference is only a couple hundred dollars 
for South Atlantic vessels and not thousands of dollars as expected in 
the Gulf of Mexico, and the relative effects are not expected to be as 
great. However, as in the Gulf of Mexico, the relative effects on the 
part-time vessels in the South Atlantic also exceed that of full-time 
vessels. In addition, similar to the results for Gulf of Mexico 
vessels, the effects on the South Atlantic Q1 vessels may be so great 
as to render continued operation as a commercial fishing vessel 
economically infeasible.
    In spite of the results presented above, this analysis neither 
assumes nor concludes that any specific individual or total number of 
vessels would be expected to stop operating as a commercial fishing 
business due to the expected adverse effects of this proposed rule. The 
results suggest that a high number of the part-time vessels may not 
continue operating as a result of this proposed rule. However, based on 
available data, a general economic assessment utilizing gross revenue 
and operating cost information suggests that the financial conditions 
for many vessels are and have been poor, particularly for part-time 
vessels as the average net revenues for Q1, Q2, and Q3 vessels were 
negative based on 2012 data for non-permitted vessels in the Gulf of 
Mexico. Yet, at least some of these vessels continue to commercially 
harvest shrimp. This suggests either that available data incompletely 
capture the ``economics'' of these operations, or that the decision to 
harvest shrimp is based on criteria other than, or in addition to, 
considerations of profit and loss (e.g., personal consumption of 
harvested shrimp and the associated value, the value some fishermen 
place on the commercial fishing lifestyle, etc.).
    Despite acknowledgement that reducing revenues and imposing 
additional costs on businesses that already operate under a tenuous 
financial situation will, with some unknown degree of certainty, result 
in some vessels exiting the commercial shrimp industry, this analysis 
does not forecast how many vessels may do so. Instead, this analysis 
simply notes that the total reduction in gross revenues and total 
adverse effects associated with this proposed rule will increase as 
more vessels cease operation. Conversely, the more vessels that cease 
commercial fishing, the more likely that demand pressure on TED prices 
will be reduced (i.e., TED prices will not increase over the assumed 
prices used in this analysis) and the total costs associated with 
purchasing TEDs will decrease as fewer vessels will need to buy them. 
Further, for vessels that continue to operate, they may harvest some 
portion of the shrimp traditionally harvested by the exiting vessels, 
thereby mitigating some of the shrimp loss to these vessels as a result 
of TED use.
    Seven alternatives, including no action, were considered for the 
action in this proposed rule (Alternative 3 is the preferred 
alternative). The first alternative (Alternative 1, no action) to the 
action in this proposed rule would not expand the required use of TEDs 
and, as a result, would not achieve the objective of reducing the 
incidental bycatch and mortality of sea turtles in the Southeastern 
U.S. commercial shrimp fisheries.
    The second alternative (Alternative 2) to the action in this 
proposed rule would have expanded the required use of TEDs to only 
vessels using skimmer trawls, pusher-head trawls, and wing nets 
(butterfly trawls) that were 26 feet and greater in length. This 
alternative would have been expected to affect fewer vessels (3,103) 
and reduce the total expected increase in TED costs and shrimp revenue 
loss compared to this proposed rule. However, this alternative was not 
selected because it would be expected to result in less protection of 
sea turtles (1,509-2,179 turtles, or a mid-point estimate of 1,844 
turtles) than this proposed rule (1,730-2,500 turtles, or a mid-point 
estimate of 2,115 turtles).
    The third alternative (Alternative 4) to the action in this 
proposed rule would have expanded the required use of TEDs to only 
vessels using skimmer trawls that were 26 feet and greater in length. 
This alternative would have been expected to affect fewer vessels 
(2,913) and reduce the total expected increase in TED costs and the 
shrimp revenue loss compared to this proposed rule. However, this 
alternative was not selected because it would be expected to result in 
less protection of sea turtles (1,412-2,040 turtles, or a mid-point 
estimate of 1,726 turtles) than this proposed rule.
    The fourth alternative (Alternative 5) to the action in this 
proposed rule would have expanded the required use of TEDs to all 
vessels using skimmer trawls regardless of vessel length. This 
alternative would, similar to Alternative 4, have been expected to 
affect fewer vessels (5,432) and reduce the total expected increase in 
TED costs and shrimp revenue loss compared to this proposed rule. 
However, this alternative was not selected because it would be expected 
to result in less protection of sea turtles (1,624-2,348 turtles, or a 
mid-point estimate of 1,986 turtles) than this proposed rule.
    The fifth and sixth alternatives (Alternatives 6 and 7) to the 
action in this proposed rule would have expanded the required use of 
TEDs to all shrimp vessels regardless of trawl type but varying by 
fishing location (Alternative 6, state waters only; Alternative 7, all 
waters). These alternatives were not selected because they would have 
been expected to affect

[[Page 91103]]

more vessels (9,711, both alternatives) and result in greater expected 
increases in TED costs and shrimp revenue loss compared to this 
proposed rule.

Locations and Times of Public Hearings

    Public hearings will be held at the following locations:
    1. Larose--Larose Regional Park and Civic Center, 307 East 5th 
Street, Larose, LA 70373.
    2. Gretna--Coastal Communities Consulting, Inc. Offices, 925 
Behrman Highway, Suite 15, Gretna, LA 70056.
    3. Belle Chasse--Belle Chasse Auditorium, 8398 Highway 23, Belle 
Chasse, LA 70037.
    4. Biloxi--Biloxi Visitor's Center, 1050 Beach Boulevard, Biloxi, 
MS 39530.
    5. Bayou La Batre--Bayou La Batre Community Center, 12745 Padgett 
Switch Road, Bayou La Batre, AL 36509.
    6. Morehead City--Crystal Coast Civic Center, 3505 Arendell Street, 
Morehead City, NC 28557.
    The public hearing dates are:
    1. January 9, 2017, 4 p.m. to 6 p.m., Larose, LA.
    2. January 10, 2017, 12 p.m. to 2 p.m., Gretna, LA.
    3. January 10, 2017, 4 p.m. to 6 p.m., Belle Chasse, LA.
    4. January 11, 2017, 4 p.m. to 6 p.m., Biloxi, MS.
    5. January 12, 2017, 10 a.m. to 12 p.m., Bayou La Batre, AL.
    6. January 18, 2017, 12 p.m. to 2 p.m., Morehead City, NC.
    Vietnamese translation services will be available at the January 
10, 2017, meeting in Gretna, LA.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species; Exports; Imports; 
Transportation.

    Dated: December 12, 2016.
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 
proposed to be 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) 
to read as follows:


Sec.  223.206   Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (2) * * *
    (ii) * * *
    (A) * * *
    (3) Has only a wing net rigged for fishing and is fishing only in 
Miami-Dade County, Florida;
* * * * *
    (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 that the trawl door enters the water and 
ends at the time that 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 
that the entire net enters the water and ends at the time that the 
entire net is removed from the water. Tow times may not exceed:
* * * * *
0
3. In Sec.  223.207,
0
a. Revise paragraphs (a)(4), (a)(6), (a)(7)(ii)(B) and (C), and 
(d)(3)(ii) and (iii); and
0
b. 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 installed in skimmer trawls, pusher-head trawls, and 
wing nets, 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. 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. A TED installed in a skimmer trawl, pusher-head 
trawl, or wing net rigged for fishing must have the escape opening 
oriented at the top of the net.
    (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 (d)(3)(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 
(d)(3)(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

[[Page 91104]]

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. 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 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, pusher-head trawl, or wing net 
exceeds 45[deg], or if a double cover opening straight bar TED (at any 
allowable angle) is used by a skimmer trawl, pusher-head trawl, or wing 
net, the flap must not consist of twine size greater than number 15 
(1.32-mm thick) on webbing flaps described in paragraphs (d)(3)(i), 
(d)(3)(ii), (d)(3)(iii), or (d)(3)(iv) of this section.
* * * * *
[FR Doc. 2016-30224 Filed 12-15-16; 8:45 am]
 BILLING CODE 3510-22-P