[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]
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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.
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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