[Federal Register Volume 60, Number 167 (Tuesday, August 29, 1995)]
[Rules and Regulations]
[Pages 44780-44784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21401]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No.950427119-5214-06; I.D. 081495A]
RIN 0648-AH98


Sea Turtle Conservation; Restrictions Applicable to Shrimp 
Trawling Activities; Additional Turtle Excluder Device Requirements 
Within Certain Fishery Statistical Zones

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

ACTION: Temporary additional restrictions on fishing by shrimp trawlers 
in the inshore and nearshore waters off Texas and a portion of 
Louisiana to protect sea turtles; request for comments.

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SUMMARY: NMFS is imposing temporary additional restrictions on shrimp 
trawlers fishing in all inshore waters and offshore waters out to 12 
nautical miles (nm) (22.2 km) from the COLREGS line, between the United 
States-Mexico border and 93 deg. W. long. This area includes all of the 
Texas coast and the western portion of the Louisiana coast, and 
includes NMFS shrimp fishery statistical Zones 17 through 21. The 
restrictions include prohibitions on the use by shrimp trawlers of: 
Soft turtle excluder devices (TEDs); try nets with a headrope length 
greater than 15 ft (4.6 m), unless the try nets are equipped with 
approved TEDs other than soft TEDs; and a webbing flap that completely 
covers the escape opening in NMFS-approved top-opening TEDs. This 
action is based upon a ruling from U.S. District Judge, Southern 
District of Texas, Galveston Division, in Center for Marine 
Conservation v. Brown, No. G-94-660 (S.D. TX, Aug. 1, 1995) in order to 
facilitate administration and enforcement of the court order.

DATES: This action is effective August 24, 1995 until 30 minutes past 
sunset (local time) on September 10, 1995. Comments on this action must 
be submitted by September 26, 1995.

ADDRESSES: Comments on this action and requests for a copy of the 
supplemental biological opinion (BO) prepared for this action should be 
addressed to the Chief, Endangered Species Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 813-570-5312, or 
Phil Williams, 301-713-1401.

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 sea turtles 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 exceptions set 
forth at 50 CFR 227.72. The incidental taking of turtles during shrimp 
trawling in the Gulf and Atlantic Areas (defined in 50 CFR 217.12) is 
excepted from the taking prohibition, if the sea turtle conservation 
measures specified in the sea turtle conservation regulations (50 CFR 
part 227, subpart D) are employed. The regulations 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 conservation regulations provide a mechanism to implement 
further restrictions of fishing activities, if necessary to avoid 
unauthorized takings of sea turtles that may be likely to jeopardize 
the continued existence of listed species or that would violate the 
terms and conditions of an incidental take statement (ITS) or 
incidental take permit. Upon a determination that incidental takings of 
sea turtles during fishing activities are not authorized, additional 
restrictions may be imposed to conserve listed species and to avoid 
unauthorized takings that may be likely to jeopardize the continued 
existence of a listed species. Restrictions may be effective for a 
period of up to 30 days and may be renewed for additional periods of up 
to 30 days each (50 CFR 227.72(e)(6)).

[[Page 44781]]


Biological Opinion

    On November 14, 1994, NMFS issued a BO that concluded that the 
continued long-term operation of the shrimp fishery in the nearshore 
waters of the southeastern United States resulting in levels of 
mortalities observed in 1994 was likely to jeopardize the continued 
existence of the highly endangered Kemp's ridley and could prevent the 
recovery of the loggerhead. This BO resulted from an ESA section 7 
consultation that was reinitiated in response to the unprecedented 
number of dead sea turtles that stranded along the coasts of Texas, 
Louisiana, Georgia, and Florida in the spring and summer of 1994, 
coinciding with heavy nearshore shrimp trawling activity. Pursuant to 
section 7(b)(3) of the ESA, NMFS provided a reasonable and prudent 
alternative to the existing management measures that would allow the 
shrimp fishery to continue without jeopardizing the continued existence 
of the Kemp's ridley sea turtle. In addition, the BO was accompanied by 
an ITS, pursuant to section 7(b)(4)(I) of the ESA, that specifies the 
impact of such incidental taking on the species. The ITS, establishment 
of the indicated take levels (ITLs), and development of the Shrimp 
Fishery/Emergency Response Plan (ERP) as required in the reasonable and 
prudent alternative of the November 14, 1994, BO have been discussed in 
previous Federal Register publications (60 FR 19885, April 21, 1995, 60 
FR 21741, May 3, 1995, 60 FR 26691, May 18, 1995, 60 FR 31696, June 16, 
1995, 60 FR 32121, June 20, 1995, and 60 FR 42809, August 17, 1995) and 
are not repeated here.

Recent Events

Texas Strandings

    The waters off Texas were closed to shrimp fishing on May 15, 1995, 
for the annual closure that is coordinated by State and Federal 
fisheries managers to allow shrimp to grow larger and therefore more 
valuable. The closure period is usually marked by low levels of sea 
turtle strandings, and during the 8 weeks of the 1995 Texas closure, 
only 15 sea turtle strandings, including two Kemp's ridleys, were 
reported on offshore Texas beaches.
    On July 15, 1995, Texas waters, out to 200 nm (370.6 km) from 
shore, re-opened to shrimping. The Texas opening produced the expected 
heavy level of shrimping effort but significantly fewer strandings than 
were documented in the week following the opening in 1994. There were 
18 strandings in 1995 versus 49 in 1994. Most of the strandings 
occurred in Zones 19 and 20, which had 11 and four, respectively, 
including three Kemp's ridleys. The strandings in Zones 19 and 20 
exceeded the established ITLs of three and two, respectively, while 
strandings in Zones 17, 18, and 21 remained below the ITLs. Only one 
turtle stranded in Zone 21, two Kemp's ridleys stranded in Zone 18, and 
none stranded in Zone 17. During the second week following the Texas 
re-opening, seven sea turtles stranded on Texas offshore beaches. The 
three strandings in Zone 20 exceeded the ITL for that Zone, and the 
four strandings in Zone 19 matched 75 percent of the ITL. No turtles 
stranded in Zones 18 or 21 or the Texas portion of Zone 17. Again, a 
total of seven strandings compares favorably with the 30 strandings 
that occurred in Texas during the second week after the re-opening in 
1994. During the third week following the Texas re-opening, strandings 
remained fairly low statewide, with five turtles, all of which occurred 
in Zones 19 and 21, where the ITLs were met or exceeded.
    Enforcement reports indicated significant improvements in TED 
deployment in the fleet of shrimp trawlers operating in Texas offshore 
waters in July 1995. Generally, observed TEDs were properly installed, 
and floats were being used correctly in bottom-opening hard-grid TEDs. 
Observed compliance has been very high: Out of 361 boardings conducted 
by U.S. Coast Guard Group Galveston through July 27, only 7 TED 
violations were documented, for an observed compliance rate over 98 
percent.
    Since Texas waters re-opened to shrimping, Coast Guard District 
Eight Office of Law Enforcement summarized boarding information for 
NMFS and reported that soft-TED use was much more common in the zones 
of high strandings. In Zones 19 and 20, soft TEDs were seen on 20 and 
34.3 percent, respectively, of the shrimp trawlers boarded, while in 
Zones 17, 18, and 21, soft TEDs were in use on only 0.0, 1.6, and 9.7 
percent, respectively, of the trawlers boarded. Also, 79 percent of the 
trawlers boarded in Zone 18 were voluntarily using top-opening hard 
grid TEDs, as had been requested by NMFS. In 1994 and the spring of 
1995, Zone 18 had the highest rates of Kemp's ridley strandings in 
Texas. The two strandings in Zone 18 in the first 2 weeks following the 
Texas opening, therefore, represents a substantial improvement, related 
in large part to the voluntary adoption of recommended TED types by 
shrimpers. However, a relatively large percentage of trawlers operating 
in Zones 19 and 20, the two zones where stranding levels have been 
approached or exceeded for two consecutive weeks, are using soft TEDs.
    Due to these strandings, NMFS intended to implement emergency 
restrictions on the shrimp fishery along the entire Texas coast out to 
10 nm (18.5 km) identical to those implemented on the shrimp fishery 
along the coast of Georgia and a portion of South Carolina (60 FR 
42809, August 17, 1995), i.e., prohibiting soft TEDs, and requiring 
hard-grid TEDs in trynets with a headrope length of greater than 12 ft 
(3.6 m) and a footrope length of greater than 15 ft (4.5 m).

Court Order

    On August 1, 1995, the Federal District Court of the Southern 
District of Texas, Galveston Division, ordered certain gear 
restrictions, effective from August 3 through September 10, 1995, in 
Center for Marine Conservation v. Brown. The court order is effective 
in all inshore waters and offshore waters out to 12 nm (22.2 km) in 
NMFS statistical Zones 17 through 21, and includes a prohibition on the 
use of soft TEDs, a requirement to use hard grid TEDs with trynets with 
a headrope length greater than 15 ft (4.6 m), and a prohibition on the 
use of full length webbing flaps completely covering the escape 
opening. The court further noted that proper flotation, as required by 
existing sea turtle conservation regulations, must be used on bottom-
opening hard TEDs. In

[[Page 44782]]

addition, the court allowed shrimpers an additional 10 days, until 
August 11, 1995, to comply with the order, if they would provide an 
affidavit stating that they could not comply with the order prior to 
that date because at the time the order was issued either they were at 
sea or hard-TEDs were not available.
    NMFS issued a press release on August 2, 1995, that announced and 
described the court order. In addition, NMFS has discussed the order in 
its weekly reports. NMFS is now implementing this temporary action to 
implement the court order in regulatory form. While this action was not 
required by the court, NMFS believes that it will facilitate 
administration and enforcement of the court order, and provide greater 
certainty and notice to shrimpers as to the requirements of the order. 
Specifically, NMFS is applying certain regulatory definitions and terms 
to this court order. Additionally, with this action, U.S. Coast Guard 
and NMFS enforcement agents will be able to enforce the requirements of 
the order as authorized by law. The order was effective August 3, 1995, 
and this rule is being made effective immediately upon filing with the 
Federal Register.
    The court explicitly allowed NMFS to use discretion to take any 
further action necessary to protect sea turtles in addition to the 
judicial order. However, at this time, NMFS believes that this action, 
which mirrors the court order, will be adequate to reduce sea turtle 
strandings to levels required by the relevant BOs, including those 
issued November 14, 1994; April 26, 1995; August 8, 1995; and the one 
accompanying this action. While this action does not include further 
gear restrictions, it allows NMFS to require owners and operators of 
shrimp trawlers in Zones 17 to 21 to carry a NMFS-approved observer 
upon written notification by the Regional Director of NMFS.

Requirements

    This action is taken under/authorized by 50 CFR 227.72(e)(6), the 
exemption for incidental taking of sea turtles in 50 CFR 227.72(e)(1) 
does not authorize incidental takings during fishing activities if the 
takings violate the restrictions, terms or conditions of an ITS or 
incidental take permit, or may be likely to jeopardize the continued 
existence of a species listed under the ESA. Based on the court ruling 
in Center for Marine Conservation v. Brown and the foregoing analysis 
of relevant factors, the Assistant Administrator for Fisheries (AA) has 
determined that continued takings of sea turtles by shrimp fishing off 
Texas and the western portion of Louisiana are unauthorized and 
therefore takes this action.
    All relevant provisions in 50 CFR parts 217 and 227, including the 
definitions in 50 CFR 217.12 are applicable to this action. For 
example, Sec. 227.71(b)(3) provides that it is unlawful to fish for or 
possess fish or wildlife contrary to a restriction specified or issued 
under Sec. 227.72(e)(3) or (e)(6). Under 50 CFR 217.12, inshore is 
defined as marine and tidal waters landward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions 
at Sea, 1972), as depicted or noted on nautical charts published by 
NOAA (Coast Charts, 1:80,000 scale) and as described in 33 CFR part 80, 
and offshore is defined as marine and tidal waters seaward of the 72 
COLREGS demarcation line.
    NMFS hereby notifies owners and operators of shrimp trawlers (as 
defined in 50 CFR 217.12) that from August 24, 1995 until 30 minutes 
past sunset (local time) on September 10, 1995, fishing by shrimp 
trawlers in all inshore waters and offshore waters seaward to 12 nm 
(22.2 km) from the COLREGS line along the coast of Texas between the 
United States-Mexico border through the western portion of Louisiana 
coast to 93 deg. W. long. (Zones 17 through 21), shall be in compliance 
with all applicable provisions of 50 CFR 227.72(e) except as modified 
below:
    1. The use of soft TEDs described in 50 CFR 227.72(e)(4)(iii) is 
prohibited.
    2. The use of try nets with a headrope length greater than 15 ft 
(4.6 m), is prohibited, unless the try nets are equipped with a NMFS-
approved hard TED or special hard TED (described in 50 CFR 
227.72(e)(4)(ii)). Try nets with a headrope length of 15 ft (4.6 m) or 
less remain exempt from the requirement to have a TED installed in 
accordance with 50 CFR 227.72(e)(2)(ii)(B)(1).

[[Page 44783]]

    3. Use of a webbing flap that completely covers the escape opening 
in NMFS-approved top-opening TEDs is prohibited. Any webbing that is 
attached to the trawl forward of the escape opening, must be cut to a 
length so that the tailing edge of such webbing is at least (5.1 cm) 
forward of the posterior edge of the TED grid (see Figure 1.).
    All provisions of 50 CFR 227.72(e), including, but not limited to 
50 CFR 227.72(e)(2)(ii)(B)(1) (use of try nets), and 50 CFR 
227.72(e)(4)(iii) (Soft TEDs), that are inconsistent with these 
prohibitions are hereby suspended for the duration of this action.
    NMFS hereby notifies owners and operators of shrimp trawlers in the 
area subject to restrictions that they are required to carry a NMFS-
approved observer aboard such vessel(s) if directed to do so by the 
Regional Director, upon written notification sent to either the address 
specified for the vessel registration or documentation purposes, or 
otherwise served on the owner or operator of the vessel. Owners and 
operators and their crew must comply with the terms and conditions 
specified in such written notification.

Additional Conservation Measures

    In issuing its order in Center for Marine Conservation v. Brown), 
the court explicitly stated that NMFS may impose any additional 
restrictions if NMFS deems appropriate. Notification of any additional 
sea turtle conservation measures, including any extension or 
modification of this 30-day action, will be published in the Federal 
Register pursuant to 50 CFR 227.72(e)(6).
    NMFS will continue to monitor sea turtle strandings to gauge the 
effectiveness of these conservation measures. If, after these 
restrictions are instituted, strandings in Texas or affected areas of 
Louisiana persist at or above 75 percent of the ITL for 2 weeks, NMFS 
will determine whether to restrict or prohibit fishing by some or all 
shrimp trawlers, as required, in the inshore and offshore waters of all 
or parts of NMFS statistical Zones 17 through 21 seaward to 12 nm (22.2 
km) from the COLREGS line. Contiguous statistical zones or portions of 
those zones may be included in the restrictions or closure, as 
necessary. Expansion of gear restrictions will also be considered as a 
measure to control sea turtle strandings. Area closures or additional 
gear restrictions will be implemented through emergency rulemaking 
notification(s) pursuant to the procedures set forth at 50 CFR 
227.72(e)(6).

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    Because neither section 553 of the Administrative Procedure Act 
(APA), nor any other law requires that general notification 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.
    Pursuant to section 553(b)(B) of the APA, the AA finds that there 
is good cause to waive prior notice and opportunity to comment on this 
rule. It is unnecessary, impracticable and contrary to the public 
interest to provide prior notification and opportunity for comment, 
because the requirements of this action are already in effect as a 
result of the court order issued on August 1, 1995. Furthermore, 
regulatory implementation of the court order will facilitate its 
administration and enforcement and will assist shrimpers to comply with 
the order. Therefore, this action should not be delayed. Last, by 
facilitating compliance with the court order, this action will likely 
mitigate adverse impacts on sea turtles.
    Pursuant to section 553(d) of the APA, the AA finds that there is 
good cause to waive the 30-day delay in effective date. As stated 
above, the requirements of this action are already in effect pursuant 
to the court order.
    The AA prepared an EA for the final rule (57 FR 57348, December 4, 
1992) requiring TED use in shrimp trawls and establishing the 30-day 
notice procedures. Copies of the EA are available (see ADDRESSES).

    Dated: August 23, 1995.
Nancy Foster,
Deputy Administrator for Fisheries, National Marine Fisheries Service.
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[FR Doc. 95-21401 Filed 8-24-95; 2:06 pm]
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