[Federal Register Volume 59, Number 124 (Wednesday, June 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15784]


[[Page Unknown]]

[Federal Register: June 29, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 940674-4174; I.D. 060694A]
RIN 0648-AG71

 

Sea Turtle Conservation; Restrictions Applicable to Shrimp 
Trawling Activities

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues this rule to require shrimp trawlers using Turtle 
Excluder Devices (TEDs) in the Gulf and Atlantic Areas to attach 
flotation devices to the TEDs if they are single-grid TEDs with bottom 
escape openings. Flotation devices adequate to lift TEDs from the sea 
floor are specified. This action is necessary to improve the ability of 
bottom-opening, single-grid TEDs to safely exclude sea turtles.

DATES: This rule is effective July 8, 1994. Comments on this notice are 
requested, and must be received by August 8, 1994.

ADDRESSES: Requests for a copy of the environmental assessment prepared 
for this action, and comments on this action, should be addressed to 
Dr. William Fox, Jr., Director, Office of Protected Resources, NMFS, 
1335 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Heather Weiner, NMFS Office of 
Protected Resources (301/713-2319), or Charles A. Oravetz, Chief, 
Protected Species Management Branch, NMFS, Southeast Region (813/893-
3366).

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act of 1973 
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback 
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are 
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia 
mydas) turtles are listed as threatened, except for breeding 
populations of green turtles in Florida and on the Pacific coast of 
Mexico, which are listed as endangered.
    The incidental take and mortality of these species, as a result of 
shrimp trawling activities, have been documented in the Gulf of Mexico 
and along the Atlantic seaboard. Under the ESA and its implementing 
regulations, taking sea turtles is prohibited, with some exceptions. 
The incidental taking of turtles during shrimp trawling in the Gulf and 
Atlantic Areas is excepted from the taking prohibition if specified sea 
turtle conservation measures are employed, such as the use of TEDs. 
Existing sea turtle conservation regulations (50 CFR part 227) require 
most shrimp trawlers operating in the Gulf and Atlantic Areas to have a 
NMFS-approved TED installed in each net rigged for fishing, year round. 
The required use of TEDs has significantly reduced shrimp trawler 
related mortalities of sea turtles.
    NMFS regulations also set forth criteria for allowable 
modifications to NMFS-approved TEDs including the use of flotation 
devices. Under 50 CFR 227.72(e)(iv)(A), floats may be attached to TEDs 
only if they are attached to the outside of the net or inside the net 
behind the rear surface, at the top of the TED. They may not be 
attached to a flap. In previous TED certification tests, bottom-
opening, single-grid TEDs were tested with flotation. However, because 
it was not previously evident to NMFS gear specialists that the lack of 
flotation on bottom-shooting TEDs may prevent turtle release if used in 
certain ways, flotation was not required. NMFS now has new information 
that the lack of flotation on bottom-opening, single-grid TEDs is 
likely preventing sea turtles from safely exiting the trawls.

Recent Strandings

    Large numbers of stranded sea turtles were reported during April 
and May, 1994, along the coasts of Texas, Georgia and north Florida, 
and more recently, along western Louisiana. One hundred and ninety-
three dead turtles, 136 of which were Kemp's ridleys, were found 
stranded during April and May on the Texas coast. Texas waters were 
closed to shrimping on May 13 and the strandings subsided. Only 17 
additional turtles were reported stranded in Texas from May 13 to May 
31. The reported 5-year (1989-1993) average strandings for the Texas 
coast during April and May is 49.
    As shrimping effort shifted to western Louisiana after the Texas 
closure, turtle strandings began on the Louisiana shoreline. Twenty-
three strandings, mostly Kemp's ridleys, were reported in western 
Louisiana between May 14 and May 31, 1994. Fifty-four sea turtle 
strandings were reported in Georgia during April and the beginning of 
May, 1994; most were loggerheads. Thirty-one strandings were reported 
in north Florida from April 1 through May 22, 1994. The 5-year average 
of reported strandings in Georgia and north Florida for April and May 
are 47 and 37, respectively.
    The exact cause of the strandings has not been precisely 
determined. Many of the stranded turtles from Texas were necropsied and 
many had more fish remains in their stomachs than normally expected. 
Tissue samples were collected for contaminant analysis and are being 
examined. Necropsies did not reveal the cause of mortality. Most of the 
animals appeared to be healthy and actively feeding at the time of 
death.
    The Texas strandings were associated with strandings of fish, 
consisting mostly of sea catfish. The State of Texas documented the 
presence of toxic dinoflagellates (red tide) associated with the fish 
and turtle strandings; however, no indication of poisoning was evident 
in the turtle necropsies. Also, there were several menhaden purse seine 
vessels operating off the Texas coast at the time of the strandings. 
NMFS observers were placed on the menhaden vessels and monitored 29 
sets. The observers did not document any take of sea turtles. This is 
consistent with historical observations of menhaden purse seine 
vessels. No unusual environmental or other large-scale fishing 
activities were noted off Georgia, north Florida, or Louisiana during 
the period the strandings occurred.

Gear Observations

    An alternative explanation for the abnormally high turtle 
strandings is the heavy shrimping effort that was, or is currently 
taking place along the Texas, Louisiana, Georgia, and north Florida 
coasts at the same time the strandings are occurring. Law enforcement 
boardings of shrimp vessels in these areas during April and May 
revealed a good level of compliance with TED regulations. However, some 
of the observed TEDs were installed at very steep angles, which could 
reduce the ability of turtles to exit the net. Current TED regulations 
require single-grid style TEDs to be installed in the trawl at a 30 to 
50-degree angle when the trawl is in a normal horizontal fishing 
position. An angle greater than 50 degrees will cause clogging of the 
TED and hinder turtle release.
    NMFS gear specialists, who accompanied NMFS and Coast Guard 
enforcement patrols to assist shrimpers with TED operational problems, 
noted a large number of bottom-opening grid TEDs that had no flotation 
or inadequate flotation. Of 128 boardings, 45 vessels (35 percent) were 
found to be using bottom-opening, single-grid style TEDs without floats 
or with inadequate flotation. Chafing of the trawl nets below the TEDs 
was observed, indicating that the TEDs were dragging the bottom. If the 
TEDs drag across the bottom, the turtle escape opening is closed or 
restricted, preventing safe turtle release from the trawl.
    NMFS has limited empirical test data to verify that bottom-exiting, 
single-grid hard TEDs without proper flotation hinder turtle release. 
However, based on limited testing and behavioral observations while 
turtles are in the trawl, it is highly likely that TEDs dragging across 
the bottom will hinder or prevent turtle release. During recent NMFS 
testing of TEDs with juvenile turtles, seven small turtles were 
introduced into a bottom-exiting TED without floats. All seven turtles 
failed to exit the trawl; five passed through the TED bars and two were 
unable to escape through the exit opening because the TED was dragging 
across the sea bottom.
    Additionally, NMFS analyzed data from the trawler bycatch observer 
program conducted between April 1992 and May 1994. These data provide 
further evidence that bottom-exiting, single-grid TEDs sometimes fail 
to properly release sea turtles. Three hundred and twenty-seven tows 
were sampled. Turtle captures occurred in 27 of these tows. Some 
turtles were captured in soft TEDs and some in try nets, but 10 of the 
captures occurred in bottom-opening, single-grid hard TEDs. Information 
on the use of floats was not collected in this study.

Conclusion

    NMFS believes that single-grid TEDs having escape openings on the 
bottom may not effectively release sea turtles, if sufficient flotation 
is not used to keep the trawl bottom and escape opening off the sea 
floor. This type of TED has an opening cut in the bottom of the net 
adjacent to the deflector grid and a flap covering the opening to 
prevent shrimp loss. If, because of the weight of the TED, the flap is 
pressed against the trawl by the sea floor, turtles may not be able to 
escape. Turtles trapped in this manner may drown and would be released 
before the net is brought to the surface, because the exit opening 
would be open as the trawl is retrieved from the bottom. Thus, shrimp 
fishermen with TEDs installed legally, but without proper flotation, 
could be unaware they are killing sea turtles, because there would be 
no sea turtle carcass left in the net. Furthermore, turtles killed in 
this manner may not be detected by observers or enforcement personnel.
    The addition of an adequate amount of flotation will lift the TED 
off the sea floor and allow turtles deflected by the grid to escape out 
the bottom opening. Hard plastic or aluminum floats are recommended for 
use in either shallow or deep water fishing (deeper than 10 fathoms). 
Polyvinyl chloride floats are recommended for use in water depths of 
less than 10 fathoms because they lose some flotation capacity under 
high water pressure. Because most shrimp trawling occurs in shallow 
waters and turtle captures in deep waters are rare, polyvinyl chloride 
floats, hard plastic, or aluminum floats may be used successfully by 
the shrimp industry to reduce sea turtle incidental captures in bottom-
opening TEDs.
    NMFS expects that this rule will impose a minimal burden on 
shrimpers because the required floats are relatively inexpensive, and 
because adequate flotation improves trawling efficiency and decreases 
gear chafing.

Sea Turtle Conservation Measures

    Based on this new information, NMFS has reinitiated consultation 
under section 7 of the ESA on the biological opinion issued in 
conjunction with shrimp trawling regulations that require the use of 
TEDs. This opinion concluded that the regulations will not jeopardize 
the continued existence of sea turtles, providing that, shrimpers use 
flotation devices on bottom-opening, single-grid TEDs adequate to lift 
the TEDs off the sea floor. Implementation of this reasonable and 
prudent measure ensures that the shrimp fishery will not likely 
jeopardize the continued existence of sea turtles. The Assistant 
Administrator for Fisheries, NOAA, (AA) has determined that incidental 
takings of sea turtles during shrimp trawl fishing in the Gulf and 
Atlantic Areas are unauthorized unless the takings are consistent with 
the applicable biological opinions and associated incidental take 
statements.
    NMFS is taking immediate action because it anticipates that high 
sea turtle strandings related to shrimp trawling with TEDs without 
adequate flotation may continue through the summer. In addition, NMFS 
expects that the use of adequate flotation devices will be required 
during future shrimping seasons. Therefore, through publication of this 
interim final rule, NMFS is inviting comments on measures that could 
permanently require flotation devices on bottom-opening, single-grid 
TEDs.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    Pursuant to section 553(b)(B) of the Administrative Procedure Act 
(APA), the AA finds there is good cause to waive prior notice and 
opportunity to comment on this rule. It is impracticable and contrary 
to the public interest to provide prior notice and opportunity for 
comment because unusually high levels of turtle strandings have been 
reported in Texas, Louisiana, Georgia and north Florida and continue to 
occur as shrimping continues. Any delay in this action will likely 
result in additional fatal takings of listed sea turtles.
    Pursuant to section 553(d) of the APA, the AA finds there is good 
cause to reduce the required 30-day delay in the effective date for 
this rule to 14 days. A 14-day delay will minimize additional turtle 
mortalities, while at the same time provide fishermen sufficient time 
to procure and install floats.
    Because neither section 553 of the APA nor any other law requires 
that general notice of proposed rulemaking be published for this 
action, under section 603(b) of the Regulatory Flexibility Act, an 
initial Regulatory Flexibility Analysis is not required.
    The AA prepared an Environmental Assessment (EA) for the final rule 
(57 FR 57348, December 4, 1992) requiring TED-use in shrimp trawls. A 
supplemental EA prepared specifically for this action concludes that 
this action will have no significant impact on the human environment. A 
copy of the EA is available (see ADDRESSES) and comments on it are 
requested.

List of Subjects in 50 CFR Part 227

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: June 22, 1994.
Henry R. Beasley,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 227 is amended 
as follows:

PART 227--THREATENED FISH AND WILDLIFE

    1. The authority citation for part 227 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.

    2. In Sec. 227.72, a new paragraph (e)(4)(i)(I) is added and 
paragraph (e)(4)(iv)(A) is revised to read as follows:


Sec. 227.72  Exceptions to prohibitions.

* * * * *
    (e) * * *
    (4) * * *
    (i) * * *
    (I) Flotation. Floats must be attached to the top one-half of all 
single-grid hard TEDs with bottom escape openings. The floats may be 
attached either outside or inside the net, but not to a flap. Floats 
attached inside the net must be behind the rear surface.
    (1) For single-grid TEDs with a circumference of 120 inches (304.8 
cm) or more, a minimum of either one round aluminum float, no smaller 
than 9.8 inches (25.0 cm) in diameter, or one round hard plastic float, 
no smaller than 9.8 inches (25.0 cm) in diameter, or two expanded 
polyvinyl chloride floats, no smaller than 6.75 inches by 8.75 inches 
(17.2 cm by 22.2 cm), must be attached with heavy twine or rope.
    (2) For single-grid TEDs with a circumference of less than 120 
inches (304.8 cm), a minimum of either one round aluminum float, no 
smaller than 9.8 inches (25.0 cm) in diameter, or one round hard 
plastic float, no smaller than 9.8 inches (25.0 cm) in diameter, or one 
expanded polyvinyl chloride float, no smaller than 6.75 inches by 8.75 
inches (17.2 cm by 22.2 cm), must be attached with heavy twine or rope.
* * * * *
    (iv) * * *
    (A) Floats may be attached to the TED, either outside or inside the 
net, but not to a flap. Floats attached inside the net must be behind 
the rear surface at the top of the TED. Any use of floats under this 
paragraph (e)(4)(iv)(A) must be in addition to floats that are required 
by paragraph (e)(4)(i)(I) of this section.
* * * * *
[FR Doc. 94-15784 Filed 6-24-94; 3:09 pm]
BILLING CODE 3510-22-W