[Federal Register Volume 62, Number 155 (Tuesday, August 12, 1997)]
[Rules and Regulations]
[Pages 43124-43125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21170]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[I.D. 080497A]
RIN 0648-AH97


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Notice of exemption and request for comments.

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SUMMARY: NMFS issues this document to allow use of 55-minute tow times 
by shrimp trawlers in inshore waters in Alabama as an alternative to 
the requirement to use Turtle Excluder Devices (TEDs). This area was 
affected by Hurricane Danny on and about July 19, 1997. NMFS has been 
notified by the Director of the Marine Resources Division of the 
Alabama Department of Conservation and Natural Resources that large 
amounts of debris in Alabama's bays as a result of the hurricane are 
causing extraordinary difficulty with the performance of TEDs. NMFS 
will monitor the situation to ensure that there is adequate protection 
for sea turtles in this area and to determine whether impacts from the 
hurricane continue to make TED use impracticable.

DATES: This action is effective from August 6, 1997 through September 
5, 1997. Comments on this action are requested, and must be received by 
September 5, 1997.

ADDRESSES: Comments on 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 
Barbara A. Schroeder, 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 these species, 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 
identified in 50 CFR 227.72. Existing sea turtle conservation 
regulations (50 CFR part 227, subpart D) 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 sea turtle conservation regulations provide for the use of 
limited tow times as an alternative to the use of TEDs for vessels with 
certain specified characteristics or under certain special 
circumstances. The provisions of 50 CFR 227.72 (e)(3)(ii) specify that 
the Assistant Administrator for Fisheries, NOAA (Assistant 
Administrator), may authorize ``compliance with tow time restrictions 
as an alternative to the TED requirement, if [he] determines that the 
presence of algae, seaweed, debris or other special environmental 
conditions in a particular area makes trawling with TED-equipped nets 
impracticable.'' The provisions of 50 CFR 227.72(e)(3)(i) specify the 
maximum tow times that may be used when authorized as an alternative to 
use of TEDs. The tow times may be no more than 55 minutes from April 1 
through October 31 and no more than 75 minutes from November 1 through 
March 31. NMFS has selected these tow time limits to minimize the level 
of mortality of sea turtles that are captured by trawl nets that are 
not equipped with TEDs.

Recent Events

    On July 19, 1997, Hurricane Danny hit the Alabama coast. The 
hurricane remained stationary over Mobile Bay and the south Alabama 
coast for an entire day and deposited record amounts of rain on the 
area. The Director of the Marine Resources Division of the Alabama 
Department of Conservation and Natural Resources (Alabama Director) 
stated in a July 28 letter to the NMFS Southeast Regional Administrator 
that ``[t]he aftermath of the destructive wind and seas left a 
tremendous amount of debris in Alabama's bays.'' He further stated that 
the ``inordinate amount of debris is causing extraordinary difficulty 
with the performance of [TEDs] in these areas'' and that ``TEDs are 
being rendered inoperable by the debris that is being picked up.'' His 
letter requested that NMFS use its authority to allow the use of 55-
minute tow times as an alternative to TEDs for a 30-day period in 
Alabama's inshore waters that are open to shrimping.

Special Environmental Conditions

    The Assistant Administrator finds that the impacts of Hurricane 
Danny may have created special environmental conditions that may make 
trawling with TED-equipped nets impracticable. Therefore, the Assistant 
Administrator issues this document to authorize the use of restricted 
tow times as an alternative to the use of TEDs in the inshore waters of 
Alabama. The State of Alabama is continuing to investigate the 
situation and is cooperating with NMFS in determining the ongoing 
extent and nature of the debris problem in Alabama inshore waters. 
Moreover, the Alabama Director has stated that Alabama's enforcement 
officers would assist with the enforcement of the restricted tow times. 
Ensuring compliance with tow time restrictions is critical to effective 
sea turtle protection, and the commitment from the Alabama Director to 
provide additional enforcement of the tow time restrictions is an 
important factor enabling NMFS to issue this authorization.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in Alabama inshore waters to 
continue to use TEDs if possible, even though they may be authorized 
under this notice to use restricted tow times. NMFS studies have shown 
that the problem of clogging, either by seagrass, algae, or other 
debris is not unique to TED-equipped nets. When fishermen trawl in 
problem areas, they may experience clogging with or without TEDs. A 
particular concern of fishermen, however, is that clogging in a TED-
equipped net may hold open the turtle escape opening and increase the 
risk of shrimp loss. On the other hand, TEDs also help exclude certain 
types of debris and allow shrimpers to conduct longer tows.

[[Page 43125]]

    NMFS gear experts provide several operational recommendations to 
fishermen to maximize the debris exclusion ability of TEDs that may 
allow some fishermen to continue using TEDs without resorting to 
restricted tow times. NMFS has had good experience with hard TEDs made 
of either solid rod or hollow pipe that incorporate a bent angle at the 
escape opening and recommends use of this type of TED, in a bottom-
opening configuration, to help exclude debris. In addition, the 
installation angle of a hard TED in the trawl extension is an important 
performance element in excluding debris from the trawl. High 
installation angles can result in debris clogging the bars of the TED; 
NMFS recommends an installation angle of 45 deg., relative to the 
normal horizontal flow of water through the trawl, to optimize the 
TED's ability to exclude turtles and debris. Furthermore, the use of 
accelerator funnels, which are allowable modifications to hard TEDs, is 
not recommended in areas with heavy amounts of debris or vegetation. 
Lastly, the webbing flap that is usually installed to cover the turtle 
escape opening may be modified to help exclude debris quickly: The 
webbing flap can either be cut horizontally to shorten it so that it 
does not overlap the frame of the TED or it may be slit in a fore-and-
aft direction to facilitate the exclusion of debris.
    All of the above-listed recommendations represent legal 
configurations of TEDs for shrimpers in the inshore areas of Alabama 
(not subject to special requirements effective in the Gulf Shrimp 
Fishery-Sea Turtle Conservation area). This notice authorizes the use 
of restricted tow times as an alternative to the required use of TEDs. 
This document does not authorize any other departure from the TED 
requirements, including any illegal modifications to TEDs. In 
particular, if TEDs are installed in trawl nets, they may not be sewn 
shut.

Alternative to Required Use of TEDs

    The authorization provided by this document applies to all shrimp 
trawlers that would otherwise be required to use TEDs in accordance 
with the requirements of 50 CFR 227.72(e)(2) who are operating in 
inshore waters of the State of Alabama, in areas which the State has 
opened to shrimping. ``Inshore waters,'' as defined at 50 CFR 217.12, 
means the 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. 
Instead of the required use of TEDs, shrimp trawlers may opt to comply 
with the sea turtle conservation regulations by using restricted tow 
times. A shrimp trawler using this authorization must limit tow times 
to no more than 55 minutes, measured from the time trawl doors enter 
the water, until they are retrieved from the water.

Additional Conditions

    NMFS expects that shrimper trawlers operating in Alabama inshore 
waters without TEDs in accordance with this authorization will retrieve 
debris that is caught in their nets and return it to shore for 
disposal, or to other locations defined by the Alabama Director, rather 
than simply disposing of the debris at sea. Proper disposal of debris 
should help the restoration of the shrimping grounds in the wake of the 
hurricane. Shrimp trawlers are reminded that regulations under 33 
U.S.C. 1901 et seq. (Act to Prevent Pollution from Ships) may apply to 
disposal at sea.

Alternative to Required Use of TEDs; Termination

    The Assistant Administrator, at any time, may modify the 
alternative conservation measures through notice in the Federal 
Register, if necessary to ensure adequate protection of endangered and 
threatened sea turtles. Under this procedure, the Assistant 
Administrator may modify the affected area or impose any necessary 
additional or more stringent measures, including more restrictive tow 
times or synchronized tow times, if the Assistant Administrator 
determines that the alternative authorized by this document is not 
sufficiently protecting turtles, as evidenced by observed lethal takes 
of turtles aboard shrimp trawlers, elevated sea turtle strandings, or 
insufficient compliance with the authorized alternative. The Assistant 
Administrator may also terminate this authorization for these same 
reasons, or if compliance cannot be monitored effectively, or if 
conditions do not make trawling with TEDs impracticable. The Assistant 
Administrator may modify or terminate this authorization, as 
appropriate, at any time. A notice will be published in the Federal 
Register announcing any additional sea turtle conservation measures or 
the termination of the tow time option in Alabama inshore waters. This 
authorization will expire on September 5, 1997, unless it is explicitly 
extended through another document published in the Federal Register.

Classification

    This action is taken under 50 CFR 227.72 and is exempt from review 
under E.O. 12866.
    Pursuant to section 553(b)(B) of the Administrative Procedures Act 
(APA), the Assistant Administrator finds that there is good cause to 
waive prior notice and opportunity to comment on this action. It is 
impracticable, unnecessary, and contrary to the public interest to 
provide prior notice and opportunity for comment. The Assistant 
Administrator finds that an unusually large amount of debris exists in 
the aftermath of Hurricane Danny, creating special environmental 
conditions that may make trawling with TED-equipped nets impracticable. 
The Assistant Administrator has determined that the use of limited tow 
times for the described area and time would not result in a significant 
impact to sea turtles. Notice and comment are contrary to the public 
interest in this instance because providing notice and comment would 
prevent the agency from providing relief within the necessary time 
frame. Furthermore, the public had notice and an opportunity to comment 
on 50 CFR 227.72(e)(3)(ii) when that regulation was finalized.
    Pursuant to section 553(d)(1) of the APA, for the reasons cited 
above, and because this action relieves a restriction, this action is 
effective immediately. As prior notice and an opportunity for public 
comment are not required to be provided for this action by 5 U.S.C. 
553, or any other law, the analytical requirements of 5 U.S.C. 601 et 
seq., are inapplicable.
    The Assistant Administrator prepared an Environmental Assessment 
(EA) for the final rule (57 FR 57348, December 4, 1992) requiring TED 
use in shrimp trawls and creating the regulatory framework for the 
issuance of notices such as this. Copies of the EA are available (see 
ADDRESSES).

    Dated: August 6, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service..
[FR Doc. 97-21170 Filed 8-6-97; 4:11 pm]
BILLING CODE 3510-22-P