Federal Register, Volume 60 Issue 193 (Thursday, October 5, 1995)

[Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
[Rules and Regulations]
[Pages 52121-52128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24608]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[I.D. 060995B]

Endangered and Threatened Wildlife; Revised Sea Turtle/Shrimp
Fishery Emergency Response Plan

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

ACTION: General statement of policy; request for comments.

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SUMMARY: NMFS has revised, and is publishing herein, the Sea Turtle/
Shrimp Fishery Emergency Response Plan (ERP) that describes NMFS'
policy to ensure compliance with the sea turtle conservation
regulations promulgated under the Endangered Species Act (ESA) and
provides guidance for the use of future rulemaking in response to
elevated sea turtle strandings associated with shrimping in the
southeastern United States. The ERP has been revised in response to
comments on the ERP and the receipt of new technical information. This
notice contains a revised ERP in its entirety and invites public review
and comment.

DATES: The revised ERP describes NMFS' policy effective October 4,
1995.

[[Page 52122]]
Comments will be accepted through December 4, 1995.

ADDRESSES: Comments on this notice 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

NMFS consults on shrimp fishing operations in the southeastern
United States that may affect sea turtles listed as threatened or
endangered, pursuant to section 7 of the ESA, 16 U.S.C. 1531 et seq.
These shrimp fishing operations are managed, in part, under the Gulf of
Mexico Shrimp Fishery Management Plan and the South Atlantic Shrimp
Fishery Management Plan, both implemented pursuant to the Magnuson
Fisheries Management and Conservation Act, 16 U.S.C. 1801 et seq., and
the Sea Turtle Conservation Regulations at 50 CFR part 227, subpart D,
implemented under the ESA.
Unprecedented sea turtle stranding levels in Texas, Louisiana, and
Georgia associated with shrimp fishing during 1994 resulted in a
reinitiation of consultation pursuant to 50 CFR 402.16 on shrimp
fishing in the southeastern United States. The resulting Biological
Opinion (Opinion), issued on November 14, 1994, concluded that
continued long-term operation of the fishery under the existing
management regime was likely to jeopardize the continued existence of
the Kemp's ridley population and prevent the recovery of loggerheads,
but identified a reasonable and prudent alternative to allow the
fishery to continue while avoiding jeopardy. One of the components of
the alternative was to develop an ERP by March 14, 1995, to identify
actions NMFS would take to ensure compliance with sea turtle
conservation regulations. The ERP also provides internal guidance for
the use of future rulemaking in response to elevated sea turtle
strandings associated with shrimping in the southeastern United States.
On March 17, 1995, NMFS distributed the ERP widely among all
concerned parties, including shrimp industry and environmental
organizations for their information and comment. In addition, formal
notice of availability for the ERP was published on April 21, 1995 (60
FR 19885).

ERP Implementation and Recent Events

The guidelines in the ERP have been used by NMFS throughout the
1995 shrimping season for its stranding reporting and public
notification procedures, for its enforcement efforts, and for the
scope, timing and structure of its temporary restrictions on shrimp
fishing. While the ERP has served to guide NMFS and apprise the public
of when and how restrictions may be imposed by NMFS, justification for
these restrictions and changes thereto have been provided concurrently
with the restrictions themselves. Any deviations from the ERP
guidelines, and the relationship to the ERP, have also been explained
with the restrictions.
Temporary requirements were placed on shrimp trawling in nearshore
waters along two sections of the Texas and Louisiana coast on April 30,
1995 (60 FR 21741, May 3, 1995), on the Georgia coast on June 21, 1995
(60 FR 32121, June 20, 1995), and on the Georgia and the southern
portion of the South Carolina coast on August 11, 1995 (60 FR 42809,
August 17, 1995) to conserve sea turtles, especially the endangered
Kemp's ridley. These requirements were necessitated by the continued
high rates of sea turtle strandings occurring in these areas along with
documented shrimping effort. A complete description of the sea turtle
stranding events, temporary requirements, and the areas in which they
have applied is provided in the temporary requirements (60 FR 21741,
May 3, 1995, 60 FR 32121, June 20, 1995, 60 FR 42809, August 17, 1995),
and is not repeated here.
In all cases, strandings decreased in those areas where temporary
requirements were imposed, indicating that the measures identified in
the ERP have been successful at reducing high stranding levels. This is
further evidenced by the contrast in the number of Kemp's ridley
strandings that occurred on Texas offshore beaches in 1994 and 1995. In
the entire state, 48 Kemp's ridleys stranded in April 1995 prior to the
implementation of emergency rulemaking, corresponding closely with the
50 ridley strandings reported in Texas during April in 1994. The
emergency gear restrictions effective April 30, 1995 were implemented
in areas where 42 of these strandings occurred. Although ridley
strandings increased drastically to 71 sea turtles during May of 1994,
during May of 1995 there were only 17 ridley strandings, despite the
slightly later start to the Texas closure (May 15, 1995 versus May 13,
1994). This contrast between years illustrates the effectiveness of the
emergency restriction in arresting ridley mortalities. The decline in
mortalities, whether due to the gear modifications and improved turtle
exclusion, or to reduced shrimping effort in areas of ridley abundance
due to shrimpers leaving the affected areas, was consistent with the
intent of the ERP. Implementation of restrictions at other times and in
other zones have similarly reduced sea turtle strandings, demonstrating
the effectiveness of certain gear restrictions. Cumulative strandings
of Kemp's ridleys are considerably lower than 1994. While overall
cumulative strandings of all species of sea turtles have been
relatively high in 1995, not all of these strandings appear to be the
result of shrimp fishing, and further appear to occur over the course
of the season rather than episodically. These issues are being
considered in additional rulemaking as announced in the Advance Notice
of Proposed Rulemaking (ANPR) published on September 13 (60 FR 47544).
Through the ANPR, NMFS announced that it is considering proposing
regulations that would identify special sea turtle management areas in
the southeastern Atlantic and Gulf of Mexico and impose additional
conservation measures to protect sea turtles in these areas. Comments
received on the ANPR and the revised ERP will be considered in future
rulemaking.

Comments on the March 14, 1995 ERP and Temporary Requirements

Since the publication of the ERP and the implementation of
temporary requirements referenced above, NMFS has received numerous
written comments and has also met with interested constituents to
receive oral comments. Some comments were addressed through the
temporary requirements cited in the previous section, but are again
discussed here in order to present a complete record for decisions
relating to the ERP.
Comment. Individual shrimpers and the Texas Seafood Processors
Association stated that the prohibition on all try nets without turtle
excluder devices (TEDs) is unreasonable for those using small try nets.
Response. NMFS determined that an alternative existed to the try
net prohibition that would allow fishermen to work efficiently, while
reducing the likelihood of turtle entrapment. Accordingly, NMFS
modified the temporary requirements to allow the use of try nets
without TEDs installed if the try nets were smaller than 12 feet (3.6
m) in headrope length and 15 feet (4.6

[[Page 52123]]
m) in footrope length, effective May 12, 1995 (60 FR 26691, May 18,
1995). While this modification has been made in all temporary
restrictions, the ERP is now being revised as well to reflect this
change.
Comment. The requirement to use a shortened flap over the escape
opening results in excessive shrimp loss.
Response. NMFS gear experts conducted underwater investigations on
a top-opening hard TED with a shortened webbing flap and determined
that it would not result in any significant shrimp loss. Furthermore,
shrimp retention in TED-equipped nets can be maximized by use of an
accelerator funnel which helps propel shrimp through TED grids and away
from the turtle escape opening. However, NMFS has received numerous
complaints from the shrimp industry about perceived loss of shrimp.
Further, unlike 1994, NMFS has documented a high compliance rate with
gear requirements, and therefore, believes that the shortened flap
requirement should be re-evaluated on a case by case basis, but retains
the shortened webbing flap requirement as part of the potential
restrictive measures under the ERP.
Comment. The Texas Shrimp Association (TSA) and the National
Fisheries Institute (NFI) objected to the manner in which NMFS prepared
and implemented the ERP. NFI and TSA asserted that the process of
preparation precluded meaningful industry participation, circumvented
requirements under the Administrative Procedure Act, and imposed TED
use restrictions without adequate time for shrimpers to adjust. TSA
proposed an alternative to the ERP to limit inshore and nearshore
fishing activity, with the stated objective of relieving pressure from
incidental capture in areas where turtles are concentrated.
Response. The ERP was required by the November 14, 1994 Opinion in
order to ensure that sea turtle mortalities attributable to shrimp
fishing were not likely to jeopardize the species. The Opinion required
that the ERP be developed by March 14, 1995, in order that NMFS have
time to compile and analyze historic stranding data and still have a
plan prior to the start of the 1995 shrimping season. The ERP does not
modify the existing sea turtle conservation regulations nor does it
have any binding effect on the public. The existing regulations already
provide authority for emergency temporary action (such as TED use
restrictions) to prevent unauthorized takings of sea turtles. The
temporary restrictions implemented this season were based on the
authority of 50 CFR 227.72(e)(6), and justification for these actions
were contained in the record for each one. The ERP simply provides
guidance on when and how NMFS will exercise its discretion in
implementing such temporary measures under this existing regulatory
authority. The ERP was widely distributed upon its completion in March
and is published herein in its entirety for public review and comment.
The TSA alternative proposal to limit inshore and nearshore fishing
activity to protect turtles, if implemented, would involve major
changes to current conservation measures and would be subject to the
rulemaking process. TSA has submitted its proposal as a petition for
rulemaking under the APA, and NMFS is reviewing this petition in the
context of an ANPR (60 FR 47544, September 13, 1995).
Comment. The Georgia Fisherman's Association (GFA) objected to the
temporary restrictions in Georgia, particularly the prohibition on the
use of bottom-shooting, hard TEDs and requested NMFS to rescind this
restriction. The Sea Turtle Restoration Project of Earth Island
Institute (EII) and NFI also urged NMFS to modify its temporary
restriction as requested by GFA. GFA asserted that shrimpers were
having problems with top-shooting hard TEDs because they lose shrimp,
gather debris, are less effective at excluding turtles, and they twist
and roll when installed with floats.
NMFS has also received verbal reports from Georgia fishermen that
debris accumulates in the top-opening TEDs, thus hindering the release
of turtles. GFA agreed that the banning of soft TEDs was warranted as
they are not as effective as hard TEDs, but GFA stated that the
simultaneous ban on soft TEDs and bottom-opening hard TEDs would make
analysis of the relative contributions of the two gear types to sea
turtle mortality and strandings impossible.
Response. Fishermen in the Atlantic have generally not used top-
opening hard TEDs in recent years and may be having particular
difficulty adapting to a new gear type. NMFS has investigated
shrimpers' complaints and has had gear specialists working with Georgia
shrimpers during the imposition of the temporary restrictions.
Gear specialists have been able to resolve problems associated with
switching hard TEDs from bottom-opening to top-opening and in the
installation of flotation devices to prevent nets from twisting. No
problems with clogged top-opening TEDs which would trap sea turtles
have been observed. NMFS specialists have also noted that as shrimpers
become familiar with the gear changes they can fish effectively. In
spite of the ability of NMFS gear specialists to resolve the alleged
problems with top-opening hard TEDs experienced by individual shrimp
fishermen in Georgia, NMFS has continued to receive complaints on the
temporary prohibition of the use of bottom-opening hard TEDs, the
strongly preferred gear choice for many Georgia fishermen.
A preliminary analysis of recent strandings and compliance rates
following the July 15, 1995 opening of Texas offshore waters to
shrimping indicates that strandings were highest in areas where the use
of soft TEDs was prevalent. In two areas in Texas where strandings were
low, no difference in stranding rates could be distinguished based on
the differing proportions of the fleet using top- versus bottom-opening
hard TEDs. Although other factors, particularly the distribution of
shrimping effort, may have contributed to the observed stranding
patterns in Texas, the data suggested that prohibiting the use of soft
TEDs would provide more effective protection for sea turtles than
prohibiting the use of bottom-opening hard TEDs. Therefore, NMFS
implemented only the soft TED and try net restrictions described in the
ERP in Georgia and South Carolina in response to elevated sea turtle
strandings (60 FR 42809, August 17, 1995). This approach was intended
to protect sea turtles and to help determine the effectiveness of each
restriction. However, strandings in waters off Georgia and South
Carolina in the week following the implementation of these
restrictions, met or exceeded the indicated incidental take levels
(ITLs) established for those areas. Consequently, NMFS is re-evaluating
its recent restrictions and may prohibit the use of bottom-opening hard
TEDs and require the use of shortened webbing flaps over escape
openings should high levels of strandings continue in these areas.
Comment. The National Biological Survey (NBS), U.S. Department of
the Interior, recommended that shrimp statistical Zone 21 be included
in the interim special management area. NBS stated that a review of the
stranding database shows that this area documents larger than average
Kemp's ridley strandings when compared to the upper Texas Coast or
Louisiana. NBS also asserted that Zone 21 was difficult to survey and
therefore, strandings may go undocumented. NBS felt that the additional
two weeks that would be required to implement restrictions in Zone 21
may jeopardize the survival of the Kemp's ridley.

[[Page 52124]]

Response. NMFS is investigating, as a requirement of the November
14, 1994 Opinion, which areas should require special management
considerations, due to high turtle abundance or important nesting or
foraging habitats. Upon identification of such areas, NMFS will propose
management measures to mitigate the effects of intensive shrimping
pulses.
Comment. The Center for Marine Conservation (CMC), EII, and the
Houston Audubon Society and Help Endangered Animals-Ridley Turtles
(HEART) supported in general the temporary conservation requirements to
reduce turtle strandings as a reasonable compromise that allows
shrimping to continue in a manner that is compatible with turtle
conservation. However, EII felt that the ERP, in general, was too weak
to provide for strong and clear trigger mechanisms that would prevent
1994's high level of strandings. EII asserted that the accuracy of the
indicated take levels (ITLs) established in the ERP were questionable.
While recognizing the difficulty of accurately determining stranding
levels in inshore waters, CMC noted that these waters are very
important to turtles and urged that the temporary restrictions be
imposed as necessary. HEART urged that the temporary restrictions be
made permanent, describing a number of gear problems associated with
soft TEDs, bottom-shooting TEDs and try nets. CMC and EII noted (as did
NBS in the previous comment) that a 3-4 week waiting period to
implement area closures is unacceptable for the Kemp's ridley; that it
cannot tolerate another mass mortality event such as occurred in 1994.
EII urged that NMFS issue a regulation that automatically implements
gear restrictions or closures. Finally, CMC and EII urged that
sufficient resources be devoted to monitor strandings, especially in
Louisiana, where monitoring has been inadequate, but where fishing
activity may have shifted with area gear restrictions in Texas.
Response. NMFS recently published an ANPR (60 FR 47544, September
13, 1995) to consider rulemaking identifying which areas should require
special management considerations, due to high turtle abundance or
important nesting or foraging habitats. Upon identification of such
areas, NMFS will propose permanent management measures to mitigate the
effects of intensive shrimping pulses. This action could also include
bays and estuaries that are important to turtles and shrimping. Also,
NMFS is considering, as a separate rulemaking, whether to propose
severe restrictions on the use of soft TEDs, which have been repeatedly
implicated as being ineffective at excluding turtles, often because of
poor installation or maintenance.
The ERP was designed to, among other things, identify NMFS plans to
respond to high sea turtle strandings during 1995 through emergency
rulemaking. A permanent management regime will be put forth as a
proposed rule and the public provided ample opportunity for comment.
Many elements of the ERP may be superseded once permanent rules are in
place, by the 1996 shrimping season. The ERP is based on the best
available scientific information gained through recent gear trials, the
scientific literature on sea turtle biology and extensive discussions
with gear and turtle scientists. In addition, the ERP (including the
identified restrictions, and the indicated take levels) was presented
at meetings with scientists and industry and comments were received.
However, the NMFS Opinion issued on November 14, 1994 calls for an
Expert Working Group (EWG) to be convened to identify the level of
mortality that can be sustained by sea turtle populations, to determine
the level of mortality reflected by strandings, and to identify an
acceptable stranding level. NMFS convened the EWG in Miami June 26-28,
1995 to review the Opinion and available data bases including those
upon which the Opinion and the ERP are based. This expert working group
consisted of sea turtle population biologists and life history experts
including experts nominated by the shrimp industry and environmental
community. As a result of this initial meeting, NMFS is completing
additional data analyses which will be reviewed by the EWG in the next
scheduled meeting in November.
In addition, because of concerns expressed by some in industry and
the environmental community, NMFS has undertaken an extensive technical
review of the stranding triggers in the ERP. This review is planned to
be completed in the next several weeks and NMFS plans to review its
results with representatives of the shrimp industry and environmental
community. If these analyses result in new trigger numbers, they will
be included in subsequent publications of the revised ERP for public
review.
NMFS is also concerned that strandings be monitored accurately and
comprehensively both on inshore and offshore facing beaches. NMFS
increased its support for the monitoring of strandings, including in
Louisiana, where there had previously been little or no coverage.

Revision of the Emergency Response Plan

NMFS continues to review the ERP and has revised it as a result of
public comments received and new technical information obtained. The
ITLs, which were not available when the ERP was adopted in March, are
published as part of the revised ERP. This ERP is NMFS' policy to
ensure compliance with sea turtle conservation regulations and to
respond to sea turtle stranding events. The revised ERP, in its
entirety, follows.

The Sea Turtle/Shrimp Fishery Emergency Response Plan

In developing this ERP, NMFS reviewed stranding data, as well as
other information, that resulted in identification of certain areas
that NMFS believes provide important habitat for Kemp's ridleys, and
that, as part of the ERP, will be subject to continuous elevated
scrutiny. These areas are identified in the ERP, and will allow NMFS to
more efficiently conduct its enforcement operations under this plan.
Identification of these areas in the ERP does not foreclose nor
prejudge the identification of areas requiring special sea turtle
management considerations, required as one of the components of the
reasonable and prudent alternative within one year of the date of
issuance of the Opinion, which will be subject to rulemaking
procedures, including prior notice and opportunity to comment. Other
activities within the special management areas, including hopper
dredging, oil and gas activities, permitted power boat races, military
operations and federally managed fisheries, are reviewed via the
section 7 process of the ESA, but may also be reviewed during these
rulemaking procedures, as necessary.

Indicated Take Levels

The Opinion is accompanied by an incidental take statement,
pursuant to section 7(b)(4)(i) of the ESA, that specifies the impact of
incidental taking on the species. The incidental take statement
provides two levels to identify the expected incidental take of sea
turtles by shrimp fishing. The incidental take levels are based upon
either documented takes or indicated takes measured by stranding data.
Stranding data are considered an indicator of lethal take in the shrimp
fishery during periods in which intensive shrimping effort occurs and
there are no significant or intervening natural or human sources of
mortality other than shrimping conclusively

[[Page 52125]]
identified as the cause of strandings. While actual strandings in any
zone in any week may meet or exceed the levels identified as the
indicated take levels, this does not necessarily mean that the
incidental take level for the shrimp fishery has been met or exceeded
for purposes of section 7 of the ESA and that consultation is required
to be reinstated pursuant to 50 CFR 402.16. Rather, NMFS must consider
whether there are other natural or human sources of mortality other
than shrimping that can be conclusively identified; strandings as a
result of such sources will not be used in calculating whether the
incidental take level for the shrimp fishery has been met or exceeded.
NMFS has established ITLs by identifying the weekly average number
of sea turtle strandings documented in each NMFS statistical zone for
the last 3 years, 1992-94, while special consideration was given for
anomalous years. In Texas, Louisiana, and Georgia, where strandings
were anomalously high in 1994, the years 1991-93 were used to determine
historical levels. In addition, the 1993 strandings of over 100 small
Kemp's ridleys in a small section of Louisiana have been excluded from
the averages due to the anomalous nature of that event. The weekly
average was computed as a 5-week running average (2 weeks before and
after the week in question) to reflect seasonally fluctuating events
such as fishery openings and closures and turtle migrations. The ITL
for each zone was set at 2 times the weekly 3-year stranding average.
For weeks and zones where the historical average is less than one, the
ITL has been set at two strandings. Table 1 contains the ITLs for each
week and statistical zone, except for Zones 1-3, 6-17, 21, and 24,
because the ITL is 2 for all weeks in these zones (note: there is no
Zone 22 or 23).

Stranding Notification Procedures

Sea Turtle stranding information is reported to the NMFS National
Stranding Coordinator by the Sea Turtle Stranding and Salvage Network
(STSSN). During 1995, STSSN State Coordinators submit weekly reports
and contact the STSSN National Coordinator immediately if strandings
approach or exceed historical averages. The STSSN National Coordinator
will contact NMFS Southeast Regional Office, Protected Species Branch,
and the NMFS National Sea Turtle Coordinator (NSTC) upon receipt and
evaluation of information suggesting that strandings are elevated to
near historical levels. The STSSN National Coordinator will be
responsible for forwarding information regarding the strandings to the
NMFS Southeast Regional Office.
This early notification by STSSN State Coordinators will not
necessarily initiate management actions, but will serve as notification
that stranding levels are approaching levels that may require
implementation of management measures in the ERP. Implementation of the
ERP is defined below under A for interim special management areas and B
for areas outside of the interim special management areas.

Public Notification Procedures

Summaries of stranding reports, enforcement activities and other
activities implementing the requirements of the November 14, 1994 BO
will continue to be forwarded regularly via fax to NMFS laboratories,
port samplers and enforcement agents, Coast Guard Districts, state
fishery agencies, STSSN State Coordinators, Sea Grant agents, and
industry and environmental organizations. Additionally, any emergency
rulemaking will be announced through press releases and will be
broadcast on the NOAA Weather Radio, immediately upon filing of the
regulation for public inspection at the Office of the Federal Register.

Emergency Response Plan (ERP) Procedures

A. Interim Special Management Areas

Data collected by the STSSN provide information regarding the
species composition, nearshore distribution, and mortality of sea
turtles. Stranding data illustrated by statistical zones identify two
areas of historically high Kemp's ridley strandings including much of
Texas and Louisiana, and the coast of Georgia and northeast Florida.
Although few strandings have been reported in statistical zones of low
STSSN effort in Louisiana, in-water research, including telemetry and
mark/recapture efforts, and historical data, have illustrated the
importance of Louisiana waters (as well as those of Texas) as Kemp's
ridley habitat.
Historical stranding levels indicate that NMFS can anticipate
elevated Kemp's ridley strandings within these two areas. These areas
therefore require elevated scrutiny and protection under this Plan to
reduce the impacts of the shrimp fishery on Kemp's ridleys. The
Northern Gulf Interim Special Management Area includes waters off
Louisiana and Texas seaward of the COLREGS line within NMFS statistical
zones from (and including) Zone 13 through Zone 20 out to 10 nautical
miles (nm) (18.5 km). The Atlantic Interim Special Management Area
includes waters off Georgia and northeast Florida seaward of the
COLREGS line within NMFS statistical Zones 30 and 31 out to 10 nm (18.5
km).
Through the section 7 consultation process, other activities within
the special management areas are also being reviewed, including hopper
dredging, oil and gas activities, permitted power boat races, military
operations and federally managed fisheries. During 1995, observers will
be deployed during these activities as needed.
Elevated Enforcement Within the Interim Special Management Areas
In 1995, from April 1 through November 30, members of a trained TED
law enforcement team will coordinate with the Coast Guard, local NMFS
and state enforcement agents to investigate compliance with TED
regulations in the Interim Special Management Areas. Throughout this
period, members of the TED law enforcement team (in addition to local
NMFS enforcement personnel) will be deployed in the Interim Special
Management Areas, including at least one in the Atlantic Interim
Special Management area.
Implementation of Emergency Rules Within the Special Management Areas
Reports of elevated stranding levels, as described below, in any
statistical zone within the Interim Special Management Areas may result
in implementation of emergency rulemaking for the NMFS statistical zone
of elevated strandings, and contiguous statistical zones or portions of
contiguous statistical zones, as necessary. The precise geographic
scope of the area requiring such measures will be defined in the rule.
Within the Interim Special Management Areas, regulations restricting
shrimping will be implemented when 75 percent or more of the weekly ITL
is reached for 2 consecutive weeks, or when the Assistant Administrator
for Fisheries, NOAA (AA), in consultation with the Director, Southeast
Region, NMFS (Regional Director), the Southeast Enforcement Division
Special Agent in Charge (SAC), the Southeast General Counsel Senior
Enforcement Attorney (SEA) and the Protected Resources Office Director
(OD), determines that other factors including noncompliance or high
nearshore shrimping effort require additional management measures. Any
restrictions necessary within the Interim Special Management Areas will
result in emergency rulemaking pursuant to the regulations under 50 CFR
227.72(e)(6). Justification for the rulemaking will be included in

[[Page 52126]]
the Federal Register notice, and will include the best readily
available information on:
a. Affected area;
b. Current and historical strandings, shrimp landings and shrimping
effort (if available). Any unusual aspect of the strandings will be
identified (e.g., species composition, size classes, and carcass
anomalies);
c. Enforcement efforts with emphasis on boardings and compliance;
d. Other mortality factors if any, and unusual environmental
conditions, with an evaluation of their significance; and
e. Any fishing practices or gear types that may be contributing to
the strandings (e.g., percent soft TEDs as determined from enforcement
boardings).
Restrictions on the fishery will include any or all of the
following:
1. The use of soft TEDs described in 50 CFR is prohibited.
2. The use of hard TEDs with bottom escape openings and special
hard TEDs with bottom escape openings is prohibited. Approved hard TEDs
and special hard TEDs must be configured with the slope of the
deflector bars upward from forward to aft and with the escape opening
at the top of the trawl.
3. The use of try nets with a headrope length greater than 12 ft
(3.6 m) or a footrope length greater than 15 ft (4.6 m) is prohibited
unless a NMFS-approved top-opening, hard TED or special hard TED is
installed when the try nets are rigged for fishing. Try nets with a
headrope length 12 ft (3.6 m) or less and a footrope length 15 ft (4.6
m) or less would be exempt from the TED-use requirement in accordance
with 50 CFR 227.72 (e)(2)(ii)(B)(1).
4. The use of a webbing flap that completely covers the escape
opening in the trawl is prohibited. Any webbing that is attached to the
trawl, forward of the escape opening, be cut to such a length that the
trailing edge of such webbing does not approach to within 2 inches (5.1
cm) of the posterior edge of the TED grid. The requirements for the
size of the escape opening would be unchanged.
These restrictions will be implemented through emergency rulemaking
pursuant to the regulations under 50 CFR 227.72(e)(6), and will remain
in effect for 30 days. Changes to the restrictions, or to the size and
extent of the area covered by the restrictions, and any extension of
the restrictions may be required through additional 30-day rules. All
restrictions will be predicated on ensuring protection to sea turtles.
Area Closures Within the Special Management Areas
Two consecutive weeks of elevated strandings, at 75 percent or more
of the ITL after implementation of an emergency rule restricting shrimp
fishing, will result in area closures from the COLREGS line, out to 10
nm (18.5 km) within the statistical zone of elevated strandings, and
contiguous statistical zones or portions of contiguous zones, as
necessary. Area closures will be implemented through emergency
rulemaking notices pursuant to 50 CFR 227.72(e)(6), and will remain in
effect for 30 days. Changes to the size and extent of the area closure,
and any extension of the closure, may be required through additional
30-day rules.
Decision Not to Implement Restriction or Closures Within Special
Management Areas
The Regional Director, in consultation with the SAC, SEA, and the
OD, may make a determination that emergency rulemaking is not necessary
despite stranding levels reaching or exceeding 75 percent of the ITL
for 2 consecutive weeks within the Interim Special Management Areas.
This determination will be summarized in a Memorandum for the Record,
and must receive the concurrence of the AA. The Memorandum for the
Record will include the information listed in a. through e., above,
must demonstrate that sea turtle mortalities appear to be due to
sources other than shrimping, and must identify actions that can be
taken immediately to reduce nearshore mortalities.

B. Areas Outside of the Interim Special Management Areas

(Zones 1 through 11, 21 through 29, and 32 through 36)
The STSSN National Coordinator, with assistance from PSB staff and
the NSTC as requested, will be responsible for communicating with the
STSSN State Coordinators to evaluate local conditions and mortality
factors present in the statistical zones of elevated strandings. The
best available information will be solicited and reviewed through
communication with appropriate NMFS laboratories as well as state and
local marine scientists and managers. The local NMFS enforcement agent,
Coast Guard and state enforcement agency may also be asked to increase
enforcement efforts within statistical zones of elevated strandings.
A consensus Decision Memorandum to the RD will be prepared by PSB
staff, the STSSN National Coordinator, and the NSTC regarding whether
further action is warranted in any statistical zone within which
strandings remain elevated above historical levels for 1 month. The
Decision Memorandum must be timely and contain the following best
readily available information:
a. Affected area;
b. Current and historical strandings, shrimp landings and shrimping
effort (if available). Any unusual aspect of the strandings will be
identified (e.g., species composition, size classes, and carcass
anomalies);
c. Enforcement efforts with emphasis on boardings and compliance;
d. Other mortality factors if any, and unusual environmental
conditions, with an evaluation of their significance;
e. Identification of any fishing practices or gear types that may
be contributing to the strandings (for e.g., percent soft TEDs as
determined from enforcement boardings); and
f. Recommended further actions, if any, which may include continued
investigation, elevated enforcement, or implementation of emergency
regulations restricting shrimping or closing areas. Restrictions if
necessary, will be consistent with those described within the
discussion of the interim special management areas under A., above.
The Regional Director, in consultation with the SAC, SEA, and the
OD, will make a determination regarding further action within 48 hours
of receipt of the Decision Memorandum. Actions contrary to those
recommended in the Decision Memorandum must be summarized in a
Memorandum for the Record, and receive the concurrence of the AA.
Continued elevated strandings reaching or exceeding 75 percent of the
ITL for more than 2 consecutive weeks after restrictions are taken, as
noted in item f. under B. and listed in A., may result in area closures
from the COLREGS line, out to 10 nm (18.5 km) within the statistical
zone of elevated strandings, and contiguous zones or portions of
contiguous zones, as necessary.

Request for Comments

Any emergency rulemaking that may be necessary to implement the ERP
will be implemented pursuant to 50 CFR 227.72(e)(6) and the
Administrative Procedure Act, 5 U.S.C. 551 et seq. Since NMFS received
comments on the rule establishing 50 CFR 227.72(e)(6) in 1992, and
since full opportunity for public comment may not exist if temporary
restrictions must be implemented on an emergency basis, NMFS is
requesting comments on this

[[Page 52127]]
revised ERP. NMFS will evaluate all comments received and will consider
making additional revisions to the ERP to incorporate public comments.
Furthermore, the Opinion requires a number of other management
initiatives. In fulfilling one of these requirements, a rule is being
prepared to establish special sea turtle management areas and/or
contingency restrictions to the shrimp fishery (60 FR 47544, September
13, 1995). Such rulemaking will be done through normal rulemaking
procedures, including publication of a proposed rule with a public
comment period and, as appropriate, public hearings, prior to
publication of a final rule with a delayed effective date. Public
comments which provide alternative management measures for ensuring
successful operation of the shrimp trawl fishery while promoting
recovery of sea turtle populations may be used in the development of a
proposed rule. Such comments are therefore specifically solicited. All
comments received on this ERP will also be considered during that
rulemaking.

Dated: September 26, 1995.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.

APPENDIX TO STATEMENT OF POLICY--TABLES

Table 1.--Sea Turtle Indicated Take Level (ITL) for Shrimp Fishery Statistical Zones
[Zones 1-3, 6-17, 21, and 24 are not included in the table because the ITL is 2 for all weeks in these Zones. There is no Zone 22 or 23.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gulf of Mexico Zone 4 Zone 5 Zone 18 Zone 19 Zone 20 Zone 25 Zone 26 Zone 27 Zone 28
--------------------------------------------------------------------------------------------------------------------------------------------------------
Week Week period ITL ITL ITL ITL ITL ITL ITL ITL ITL
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........ 1/1-1/7.................................. 2 2 2 2 2 2 2 3 2
2........ 1/8-1/14................................. 2 2 2 2 2 2 2 4 2
3........ 1/15-1/21................................ 2 2 2 2 2 2 2 4 2
4........ 1/22-1/28................................ 2 2 2 2 2 2 2 5 2
5........ 1/29-2/4................................. 2 2 2 2 2 2 2 5 2
6........ 2/5-2/11................................. 2 2 2 2 2 2 2 6 3
7........ 2/12-2/18................................ 2 2 2 2 2 2 2 5 3
8........ 2/19-2/25................................ 2 2 2 2 2 2 2 4 3
9........ 2/26-3/4................................. 2 2 2 2 2 2 3 5 2
10........ 3/5-3/11................................. 2 2 2 2 2 2 3 5 3
11........ 3/12-3/18................................ 2 2 2 2 2 2 3 4 3
12........ 3/19-3/25................................ 2 3 2 2 3 2 3 5 3
13........ 3/26-4/1................................. 2 2 2 2 3 2 3 6 5
14........ 4/2-4/8.................................. 2 2 2 2 3 2 3 5 6
15........ 4/9-4/15................................. 2 2 2 2 4 2 2 5 6
16........ 4/16-4/22................................ 2 2 3 2 4 2 3 6 6
17........ 4/23-4/29................................ 2 3 3 2 4 2 4 7 6
18........ 4/30-5/6................................. 3 3 4 2 3 2 4 7 5
19........ 5/7-5/13................................. 3 3 3 2 3 2 4 7 6
20........ 5/14-5/20................................ 3 4 2 2 2 2 5 7 6
21........ 5/21-5/27................................ 3 3 2 2 2 2 6 7 5
22........ 5/28-6/3................................. 3 2 2 2 2 3 5 6 7
23........ 6/4-6/10................................. 2 2 2 2 2 2 5 5 7
24........ 6/11-6/17................................ 3 2 2 2 2 2 5 5 6
25........ 6/18-6/24................................ 3 2 2 2 2 2 5 5 5
26........ 6/25-7/1................................. 2 2 3 2 2 2 5 4 5
27........ 7/2-7/8.................................. 2 2 3 3 2 2 5 4 4
28........ 7/9-7/15................................. 2 2 3 3 2 2 5 4 3
29........ 7/16-7/22................................ 2 2 3 3 2 2 5 5 4
30........ 7/23-7/29................................ 2 2 4 4 2 2 4 4 5
31........ 7/30-8/5................................. 2 2 3 2 2 2 3 4 5
32........ 8/6-8/12................................. 2 2 2 2 2 2 4 4 4
33........ 8/13-8/19................................ 2 2 2 2 2 2 3 4 4
34........ 8/20-8/26................................ 2 2 3 2 2 2 3 3 4
35........ 8/27-9/2................................. 2 2 3 2 2 2 3 4 4
36........ 9/3-9/9.................................. 2 2 3 2 2 2 3 4 4
37........ 9/10-9/16................................ 2 2 4 2 2 2 2 4 4
38........ 9/17-9/23................................ 2 2 4 2 2 2 2 4 4
39........ 9/24-9/30................................ 2 2 4 2 2 2 2 4 4
40........ 10/1-10/7................................ 2 2 4 2 2 2 2 3 3
41........ 10/8-10/14............................... 2 2 3 2 2 2 2 2 3
42........ 10/15-10/21.............................. 2 2 2 2 2 2 2 2 3
43........ 10/22-10/28.............................. 2 2 2 2 2 2 2 2 3
44........ 10/29-11/4............................... 2 2 2 2 2 2 2 2 2
45........ 11/5-11/11............................... 2 2 2 2 2 2 2 2 2
46........ 11/12-11/18.............................. 2 2 2 2 2 2 2 2 2
47........ 11/19-11/25.............................. 2 2 2 2 2 2 2 2 2
48........ 11/26-12/2............................... 2 2 2 2 2 2 2 2 2
49........ 12/3-12/9................................ 2 2 2 2 2 2 2 2 2
50........ 12/10-12/16.............................. 2 2 2 2 2 2 2 2 2
51........ 12/17-12/23.............................. 2 2 2 2 2 2 2 2 2
52........ 12/24-12/31.............................. 2 2 2 2 2 2 2 3 2
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 52128]]
Table 1.--Sea Turtle Indicated Take Level (ITL) for Shrimp Fishery Statistical Zones
[Zones 1-3, 6-17, 21, and 24 are not included in the table because the ITL is 2 for all weeks in these Zones. There is no Zone 22 or 23.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Southeast Atlantic Zone 29 Zone 30 Zone 31 Zone 32 Zone 33 Zone 34 Zone 35 Zone 36
--------------------------------------------------------------------------------------------------------------------------------------------------------
Week Week Period ITL ITL ITL ITL ITL ITL ITL ITL
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........ 1/1-1/7............................................. 2 2 2 2 2 2 2 2
2........ 1/8-1/14............................................ 2 2 2 2 2 2 2 2
3........ 1/15-1/21........................................... 2 2 2 2 2 2 2 2
4........ 1/22-1/28........................................... 2 2 2 2 2 2 2 2
5........ 1/29-2/4............................................ 2 2 2 2 2 2 2 2
6........ 2/5-2/11............................................ 2 2 2 2 2 2 2 2
7........ 2/12-2/18........................................... 2 2 2 2 2 2 2 2
8........ 2/19-2/25........................................... 2 2 2 2 2 2 2 2
9........ 2/26-3/4............................................ 2 2 2 2 2 2 2 2
10........ 3/5-3/11............................................ 2 2 2 2 2 2 2 2
11........ 3/12-3/18........................................... 2 2 2 2 2 2 2 2
12........ 3/19-3/25........................................... 2 2 2 2 2 2 2 2
13........ 3/26-4/1............................................ 4 2 2 2 2 2 2 2
14........ 4/2-4/8............................................. 5 3 2 2 2 2 2 2
15........ 4/9-4/15............................................ 5 5 2 2 2 2 2 2
16........ 4/16-4/22........................................... 5 5 2 2 2 2 2 2
17........ 4/23-4/29........................................... 5 6 3 3 2 3 2 2
18........ 4/30-5/6............................................ 5 9 5 3 3 3 2 2
19........ 5/7-5/13............................................ 4 11 7 5 4 3 2 2
20........ 5/14-5/20........................................... 4 11 7 6 4 5 3 2
21........ 5/21-5/27........................................... 4 11 8 8 4 5 4 2
22........ 5/28-6/3............................................ 4 11 8 8 4 5 4 2
23........ 6/4-6/10............................................ 4 9 7 9 4 7 5 2
24........ 6/11-6/17........................................... 3 8 6 8 4 7 5 2
25........ 6/18-6/24........................................... 2 7 6 7 5 6 3 2
26........ 6/25-7/1............................................ 2 6 6 6 6 6 2 2
27........ 7/2-7/8............................................. 2 7 5 5 7 6 2 2
28........ 7/9-7/15............................................ 2 8 6 4 9 4 2 2
29........ 7/16-7/22........................................... 2 7 5 4 9 4 2 2
30........ 7/23-7/29........................................... 3 8 5 4 8 3 2 2
31........ 7/30-8/5............................................ 3 9 4 3 7 2 2 2
32........ 8/6-8/12............................................ 4 7 4 3 5 2 2 2
33........ 8/13-8/19........................................... 4 6 5 3 4 2 2 2
34........ 8/20-8/26........................................... 3 7 6 3 3 2 2 2
35........ 8/27-9/2............................................ 3 7 5 4 3 2 2 2
36........ 9/3-9/9............................................. 2 6 5 4 3 2 2 2
37........ 9/10-9/16........................................... 2 5 5 3 4 2 2 2
38........ 9/17-9/23........................................... 2 4 3 2 3 2 2 2
39........ 9/24-9/30........................................... 2 2 2 2 3 2 2 2
40........ 10/1-10/7........................................... 2 2 2 2 2 2 2 2
41........ 10/8-10/14.......................................... 2 2 2 2 2 2 2 2
42........ 10/15-10/21......................................... 2 2 2 2 2 3 4 4
43........ 10/22-10/28......................................... 2 2 2 2 2 4 5 4
44........ 10/29-11/4.......................................... 3 2 2 2 2 4 7 4
45........ 11/5-11/11.......................................... 3 2 2 2 2 4 11 4
46........ 11/12-11/18......................................... 3 2 2 2 2 4 11 4
47........ 11/19-11/25......................................... 2 2 2 2 2 3 10 2
48........ 11/26-12/2.......................................... 2 2 2 2 2 2 9 2
49........ 12/3-12/9........................................... 2 2 2 2 2 2 6 2
50........ 12/10-12/16......................................... 2 2 2 2 2 2 2 2
51........ 12/17-12/23......................................... 2 2 2 2 2 2 2 2
52........ 12/24-12/31......................................... 2 2 2 2 2 2 2 2
--------------------------------------------------------------------------------------------------------------------------------------------------------

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[FR Doc. 95-24608 Filed 10-4-95; 8:45 am]
BILLING CODE 3510-22-W