[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Rules and Regulations]
[Pages 28741-28743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13512]



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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No.950201033-5136-02; I.D. 040395C]
RIN 0648-AG37


Sea Turtle Conservation; Shrimp Trawling Requirements; Turtle 
Excluder Device Exemption

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

ACTION: Temporary rule.

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

SUMMARY: NMFS temporarily 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, 1995. This area 
seasonally exhibits high concentrations of red and brown algae that 
make trawling with TEDs impracticable. Specific tow-time limits are 
required as follows: A 30-minute tow limit through August 15, 1995; a 
55-minute tow limit from August 16 through October 31, 1995; and a 75-
minute tow limit from November 1 through November 30, 1995. The purpose 
of this temporary rule is 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: Effective from May 30, 1995 through November 30, 1995.

ADDRESSES: Copies of the environmental assessment (EA) prepared for 
this temporary rule may be obtained from the Chief, Endangered Species 
Division, Office of Protected Resources, NMFS, 1315 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 Chief, Endangered Species Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910; and 
to the Office of Information and Regulatory Affairs of Office of 
Management and Budget (OMB), Washington, DC 20503, Attention: Desk 
Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Russell J. Bellmer, (301) 713-1401, or 
Charles A. Oravetz, (813) 570-5312.

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), 16 U.S.C. 1531 et seq. Incidental capture by 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 
inshore and 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.
    Pursuant to the regulations at 50 CFR 227.72(e)(3)(ii), NMFS has 
promulgated 30-day exemptions to allow shrimpers in a certain area off 
North Carolina, [[Page 28742]] defined at 50 CFR 217.12 as 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 these actions 
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 15, 1993; 58 FR 28793, 
May 17, 1993; 58 FR 33219, June 16, 1993; 58 FR 38537, July 19, 1993; 
58 FR 43820, August 18, 1993.
    In addition to these 30-day exemptions, NMFS proposed a permanent 
exemption on May 25, 1993 (58 FR 30007), which contained a discussion 
of special environmental conditions, an assessment of the algae 
problem, a history of the local fishery, and of tow times. Comments 
received on the proposed rule were addressed in an interim final rule 
extending the tow-time allowance through November 30, 1993 (58 FR 
48975, September 21, 1993). No comments were received on the interim 
final rule. A final rule (59 FR 33697, June 30, 1994) was issued 
allowing tow-time limits through November 30, 1994. That final rule 
with a sunset was issued instead of a permanent final rule because NMFS 
decided that future exemptions should be provided through an incidental 
take permit under section 10(a) of the ESA. The rationale is included 
in the cited Federal Register publication and is not repeated here. No 
comments were received on the final rule.
    The present temporary rule provides an exemption to the TED 
requirement through November 30, 1995. This temporary rule will allow 
the harvest of shrimp in the North Carolina restriction area while 
providing protection of sea turtles until an incidental take permit 
under section 10(a) of the ESA can be processed. On February 16, 1995 
(60 FR 8956), NMFS authorized non-Federal entities to apply for permits 
for the incidental take of threatened species. An incidental take 
permit would enable a state to develop its own conservation plan, 
including funding, monitoring and enforcement of activities under the 
permit and the plan. North Carolina has indicated its intent to apply 
for an incidental take permit in connection with shrimp fishing in the 
North Carolina restricted area, thus this exemption is promulgated on a 
temporary rather than a permanent basis. Any review of an application 
for an incidental take permit and any issuance of such a permit will 
comply with section 10 of the Act and its implementing regulations at 
50 CFR parts 217 and 222. As a matter of policy, NMFS does not intend 
to promulgate a rule providing this exemption in the future. Rather, 
NMFS believes future exemptions should be provided through an 
incidental take permit issued pursuant to section 10(a) of the ESA.
    NMFS' review of vessels operating in the North Carolina restricted 
area for the 1993-94 season indicates that sea turtle mortalities do 
not appear to be associated with the authorization of tow times in lieu 
of TEDs. NMFS has reached this conclusion based on the low number of 
takes documented by observers (two turtles caught alive and released), 
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 actions promulgated 
by NMFS, including the proposed rule (see above citations). However, 
NMFS is 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 1995 
shrimping season.
    Based on information received during the 1993-94 season, as in 
previous years, 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 3 of 4 TEDs used in the observed 
tows. On June 23, 1994, algae concentrations were high enough to 
partially clog 3 of 4 TEDs. The fourth TED was completely clogged, and 
an unidentified sea turtle of medium size was pinned in front of the 
TED. The turtle appeared lively and swam away. The tow time was 56 
minutes.
    This temporary rule makes effective for the remainder of the 
traditional shrimping season, through November 30, 1995, the policies 
and procedures of the rule promulgated last year. Specifically, under 
this temporary 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, 
1995. 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 should use TEDs.
    Under this temporary rule, owners and operators of shrimp vessels 
must register with the Director, Southeast Region, NMFS (Regional 
Director), before fishing 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 will jointly monitor compliance with the 
tow-time alternative.

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 nonlethal takings 
or strandings of sea turtles have occurred in or near the North 
Carolina restricted area; (5) shrimp trawlers are having a significant 
adverse effect on sea turtles in the exemption area; or (6) the 
incidental take level, authorized by the biological opinion, of one 
mortality of Kemp's [[Page 28743]] 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 temporary rule is consistent with 
the ESA and other applicable law and is 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 temporary rule. It is unnecessary to 
provide prior notice and opportunity for comment because NMFS has 
provided public notice and opportunity for comment on the same rule 
promulgated last year. Those comments were addressed in the publication 
of the final rule last year, which is identical to this temporary rule, 
and the AA finds that it is unnecessary to seek additional comments on 
the same rule again this year.
    Because this rule relieves a restriction, under section 553(d) of 
the APA a 30-day delay in effective date is not required.
    An EA prepared for this temporary rule concludes that this action 
will have no significant impact on the human environment. A copy of the 
EA is available (see ADDRESSES).
    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 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: May 25, 1995.
Richard H. Schaefer,
Acting Assistant Administrator for Fisheries, 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, paragraph (e)(3)(ii)(B) is temporarily suspended 
and paragraph (e)(3)(ii)(C) is temporarily added to read as follows:


Sec. 227.72  Exceptions to prohibitions.

* * * * *
    (e) * * *
    (3) * * *
    (ii) * * *
    (C) North Carolina restricted area. From May 30, 1995, through 
November 30, 1995, 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 fish 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 tow times set 
forth in paragraph (e)(3)(i) of this section. Registration may be made 
by telephoning (813) 570-5312 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 aboard 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 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. 95-13512 Filed 5-30-95; 4:03 pm]
BILLING CODE 3510-22-F