[Federal Register Volume 59, Number 125 (Thursday, June 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15876]


[[Page Unknown]]

[Federal Register: June 30, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 930479-4171; I.D. 052794A]
RIN 0648-AG69

 

Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Final rule.

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

SUMMARY: NMFS amends the regulations protecting sea turtles to allow 
compliance with tow-time limits as an alternative to the use of turtle 
excluder devices (TEDs) by shrimp trawlers in a 30-square mile (48.3-
square km) area off the coast of North Carolina (North Carolina 
Restricted Area) through November 30, 1994. This area seasonally 
exhibits high concentrations of red and brown algae that make trawling 
with TEDs impracticable. This final rule authorizes a 30-minute tow 
limit through August 15, 1994; a 55-minute tow limit from August 16 
through October 31, 1994; and a 75-minute tow limit from November 1 
through November 30, 1994, to allow shrimp trawlers to harvest shrimp 
efficiently during their traditional shrimping season (March through 
November) and maintain adequate protection for sea turtles in this 
area.

EFFECTIVE DATE: June 27, 1994.

ADDRESSES: Send comments to Dr. William Fox, Jr., Director, Office of 
Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 
20910. Comments on the collection-of-information requirement subject to 
the Paperwork Reduction Act should be directed to the Office of 
Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 
20910; Attention: Phil Williams; and to the Office of Information and 
Regulatory Affairs of OMB, Washington, DC 20503, Attention: Desk 
Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Phil Williams, Acting Chief, 
Endangered Species Division, NMFS (301/713-2319), or Charles A. 
Oravetz, Chief, Protected Species Program, 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), U.S.C. 1531 et seq. Incidental capture by shrimp trawlers has 
been documented for five species of sea turtles that occur in offshore 
waters of North Carolina. Sea turtle conservation regulations at 50 CFR 
parts 217 and 227 require all shrimp trawlers, regardless of length, in 
offshore waters of the Atlantic Area, including off North Carolina, to 
have an approved TED installed year-round in each net rigged for 
fishing, unless specifically exempted.
    NMFS has allowed shrimpers in the North Carolina restricted area to 
limit tow-times, rather than use TEDs, due to the presence of algae 
that makes trawling with TED-equipped nets impracticable. A 
comprehensive list of cites relating to this exemption is as follows: 
57 FR 33452 (July 29, 1992); 57 FR 40859 (September 8, 1992); 57 FR 
45986 (October 6, 1992); 57 FR 52735 (November 5, 1992); 57 FR 57968 
(December 8, 1992); 58 FR 19631 (April 12, 1993); 58 FR 28793 (May 12, 
1993); 58 FR 33219 (June 11, 1993); 58 FR 38537 (July 13, 1993); and 58 
FR 43820 (August 18, 1993).
    NMFS proposed a permanent exemption on May 25, 1993 (58 FR 30007), 
and a discussion of special environmental conditions, an assessment of 
the algae problem, a history of the local fishery, and a discussion of 
tow times can be found there. Comments received on the proposed rule 
were addressed in an interim final rule extending the tow-time 
allowance through November 30, 1993 (September 21, 1993, 58 FR 48975). 
No comments were received on the most recent interim final rule.
    This final rule implements the exemption through November 30, 1994, 
instead of permanently, as provided in the proposed rule. NMFS decided 
to implement this final rule only for the current fishing season for 
several reasons. First, NMFS believes that close review of algae 
conditions and tow time compliance is necessary to ensure that the 
exemption is effective in preventing incidental takes. Second, NMFS is 
considering implementation of an incidental take permit system under 
section 10 of the ESA that could authorize this exemption through an 
incidental take permit. An incidental take permit would require 
periodic NMFS review and a conservation plan, thereby ensuring 
consistent enforcement and mitigation of any incidental takes.
    NMFS' review of the North Carolina restricted area exemption 
program for the 1992-1993 season indicates that sea turtle mortalities 
do not appear to be associated with the allowance of tow times in lieu 
of TEDs. NMFS has reached this conclusion based on the lack of 
observer-documented takes, the observed compliance with tow-time 
restrictions, the cooperation of the fishermen, the small number of 
participants in the fishery, and the local knowledge required to trawl 
in the restricted area without losing gear on bottom obstructions 
(which effectively limits entry into the fishery). These factors are 
discussed in previous temporary rules and in the proposed rule (see 
above citations). NMFS is particularly concerned about possible 
interactions between shrimping operations and turtles during the turtle 
nesting season. NMFS will continue to monitor this situation during the 
remainder of the 1994 shrimping season.
    Based on information received during the 1992-1993 season, NMFS has 
determined that algal concentrations may be characteristic of the 
restricted area or may recur in an intermittent or unpredictable 
pattern and, thus, render TED-use impracticable. NMFS will continue to 
monitor algal concentrations to determine whether these concentrations 
are consistently problematic or whether there are times or seasons when 
TEDs could be used. Shrimp trawling observed out of Sneads Ferry, NC, 
on April 28, 1994, confirmed the presence of algal concentrations 
sufficient to clog three of four Anthony Weedless TEDs used in the 
observed tows.
    This rule makes effective for the remainder of the traditional 
shrimping season, through November 30, 1994, the policies and 
procedures that were temporarily in effect in the North Carolina 
restricted area under previous exemptions. Specifically, under this 
final rule, tow times in the North Carolina restricted area are limited 
to 30 minutes through August 15; 55 minutes from August 16 through 
October 31; and 75 minutes from November 1 through November 30, 1994. 
These measures should not, in the long run, significantly impact 
fishermen's normal trawl times, since heavy algae concentrations 
characteristic of the warmer months cause fishermen to voluntarily 
shorten tow times to approximately 15-30 minutes. When algal 
concentrations are light, shrimpers usually opt to use TEDs.
    Also, under this final rule, registration with the Director, 
Southeast Region, NMFS (Regional Director), is required before a vessel 
may trawl in the restricted area, and vessels using the tow-time 
alternative are required to carry a NMFS-approved observer if requested 
to do so by the Regional Director. The observer will monitor compliance 
with required conservation measures, including restricted tow times, 
and resuscitation of any captured turtles in accordance with 50 CFR 
227.72(e)(1)(i). Data collected by observers may be used for 
enforcement purposes. Violations of tow-time restrictions documented by 
North Carolina enforcement officers may be prosecuted under the ESA by 
the Office of the General Counsel, NMFS, Southeast Region. In addition, 
violators may face prosecution under State law. NMFS and North Carolina 
Division of Marine Fisheries (NCDMF) will jointly monitor compliance 
with the tow-time alternative.
    In addition, this rule makes a technical correction to the general 
tow-time provision of 50 CFR 227.72(e)(3)(i). The interim rule 
published September 21, 1993 (58 FR 48977) inadvertently amended this 
section to apply only to 1993. This final rule revises the general tow 
time provision to apply every year, as intended.

Additional Sea Turtle Conservation Measures

    Pursuant to the provisions of 50 CFR 227.72(e) (3) and (6), the 
Assistant Administrator for Fisheries, NOAA, (AA) may modify the 
required conservation measures by publishing notification in the 
Federal Register, if necessary, to ensure adequate protection of 
endangered and threatened sea turtles. Under this procedure, the AA 
would impose any necessary additional or more stringent measures, 
including more restrictive tow times, synchronized tow times, or 
termination of the tow-time alternative, if the AA determines that: (1) 
The concentration of algae no longer makes trawling with TEDs 
impracticable; (2) there is insufficient compliance with the required 
conservation measures; (3) compliance cannot be monitored effectively; 
(4) significant or unanticipated levels of lethal or non-lethal takings 
or strandings of sea turtles have occurred in or near the North 
Carolina restricted area; or (5) the incidental take level, authorized 
by biological opinion, of one mortality of Kemp's ridley, green, 
hawksbill, or leatherback turtles, or two mortalities of loggerhead 
turtles attributable to shrimp fishing in the North Carolina restricted 
area is met or exceeded during the exemption period.

Classification

    The AA has determined that this rule is consistent with the ESA and 
other applicable law and is ``not significant'' for purposes of E.O. 
12866.
    The General Counsel of the Department of Commerce certified to the 
Small Business Administration that the proposed rule if adopted would 
not have a significant economic impact on a substantial number of small 
entities. As a result, a final regulatory flexibility analysis was not 
prepared.
    The AA prepared an Environmental Assessment (EA) for this rule that 
concludes that the rule will have no significant impact on the human 
environment. A copy of the EA is available (see ADDRESSES) and comments 
on it are requested.
    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act, namely, registration to trawl in the 
North Carolina restricted area. This collection of information has been 
approved by the Office of Management and Budget (OMB) under OMB control 
number 0648-0267. The public reporting burden for this collection of 
information is estimated to average 7 minutes per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, may be sent to NMFS or OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 227

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

    Dated: June 24, 1994.
Charles Karnella,
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, paragraphs (e)(3)(i) and (e)(3)(ii)(B) are 
revised to read as follows:


Sec. 227.72  Exceptions to prohibitions.

* * * * *
    (e) * * *
    (3) * * * (i) Duration of tows. If tow-time restrictions are 
utilized pursuant to paragraphs (e)(2)(ii), (e)(3)(ii), or (e)(3)(iii) 
of this section, a shrimp trawler must limit tow times to no more than 
55 minutes from April 1 through October 31; and to no more than 75 
minutes from November 1 through March 31. A shrimp trawler in the North 
Carolina restricted area must limit tow times to no more than 30 
minutes from May 16 through August 15. The tow time is measured from 
the time that the trawl door enters the water until it is removed from 
the water. For a trawl that is not attached to a door, the tow time is 
measured from the time the codend enters the water until it is removed 
from the water.
    (ii) * * *
    (B) North Carolina restricted area. From June 27, 1994 through 
November 30, 1994, a shrimp trawler in the North Carolina restricted 
area, as an alternative to complying with the TED requirement of 
paragraph (e)(2)(i) of this section, may comply with the tow-time 
restrictions set forth in paragraph (e)(3)(i) of this section. The 
owner or operator of a shrimp trawler who wishes to operate his or her 
shrimp trawler in the North Carolina restricted area must register 
pursuant to paragraph (e)(3)(v) of this section, with registration 
received by the Director, Southeast Region, NMFS, at least 24 hours 
before the first use of such tow times. Registration may be made by 
telephoning (813) 893-3141 or writing to 9721 Executive Center Drive, 
St. Petersburg, FL 33702. The owner or operator of a shrimp trawler in 
the North Carolina restricted area must carry onboard a NMFS-approved 
observer upon written notification by the Director, Southeast Region, 
NMFS. Notification shall be made to the address specified for the 
vessel in either the NMFS or state fishing permit application, the 
registration or documentation papers, or otherwise served upon the 
owner or operator of the vessel. The owner or operator must comply with 
the terms and conditions specified in such written notification. All 
observers will report any violations of this section, or other 
applicable regulations and laws; such information may be used for 
enforcement purposes.
* * * * *
[FR Doc. 94-15876 Filed 6-27-94; 12:12 pm]
BILLING CODE 3510-22-W