[Federal Register Volume 63, Number 70 (Monday, April 13, 1998)]
[Rules and Regulations]
[Pages 17948-17958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9565]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No. 980331080-8080-01; I.D. 032398C]
RIN 0648-AK66


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS issues this interim final rule to amend the regulations 
that require most shrimp trawlers to use Turtle Excluder Devices (TEDs) 
in the southeastern Atlantic, including the Gulf of Mexico, to reduce 
the incidental capture of endangered and threatened sea turtles during 
shrimp trawling. Specifically, this interim final rule allows the use 
of a new design of soft TED--the Parker soft TED--subject to certain 
limitations. The intent of this rule is to allow shrimpers the option 
of using a new design of soft TED.

DATES: This rule is effective April 13, 1998. Comments on this rule are 
requested, and must be received by June 12, 1998.

ADDRESSES: Requests for a copy of the environmental assessment (EA) 
prepared for this interim final rule and 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. Requests for copies of the reports on 1997 TED testing should be 
addressed to the Chief, Harvesting Systems Division, Mississippi 
Laboratories, Southeast Fisheries Science Center, NMFS, P.O. Drawer 
1207, Pascagoula, MS 39568-1207.

FOR FURTHER INFORMATION CONTACT: 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). 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, subpart D. Existing sea turtle conservation 
regulations (50 CFR 227, subpart D) require most shrimp trawlers 
operating in the Gulf and Atlantic Areas, defined at 50 CFR 217.12, to 
have a NMFS-approved TED installed in each net rigged for fishing, year 
round. TEDs currently approved by NMFS for shrimp trawling include 
single-grid hard TEDs, hooped hard TEDs conforming to a generic 
description, and two types of special hard TEDs.
    On December 19, 1996, NMFS promulgated a final rule (61 FR 66933) 
that concluded a rulemaking process that had begun with an advance 
notice of proposed rulemaking published on September 13, 1995 (61 FR 
47544). The final rule established the Atlantic and Gulf Shrimp 
Fishery-Sea Turtle Conservation Areas (SFSTCAs) with special 
conservation requirements to reduce the mortality and subsequent 
strandings of sea turtles associated with intensive shrimp trawling in 
nearshore waters. Included in the requirements for the SFSTCAs was the 
prohibition, effective March 1, 1997, of the use of soft TEDs. The 
December 19, 1996 final rule also removed the approval of all existing 
soft TEDs in the rest of the Gulf and Atlantic Areas, effective 
December 19, 1997. Some of the factors considered in the determination 
to remove the approval of soft TEDs were the difficulty of installing 
soft TEDs correctly in various styles of nets, observations of sea 
turtle takes in the then-approved soft TEDs during commercial trawling, 
and poor turtle release during retesting of approved soft TEDs in 
various styles of nets.

TED Certification Procedures

    New TED designs must undergo and pass certification trials by the 
designer and NMFS gear experts before they can be approved for use by 
the Assistant Administrator for Fisheries (AA). Two different 
certification protocols were published by NMFS, one on June 29, 1987 
(52 FR 24244), and the other on October 9, 1990 (55 FR 41092). The 
notices publishing these protocols provide a detailed description of 
the testing procedures and criteria. Both

[[Page 17949]]

protocols target a 97-percent exclusion rate of turtles. The original 
protocol, referred to as the Canaveral protocol, was established for 
the testing of TEDs in the Cape Canaveral, Florida, navigation channel 
which had been known for its historical high abundance of loggerhead 
sea turtles. The exclusion rate was determined by comparing the turtle 
capture rates of two simultaneously towed nets, one equipped with the 
candidate TED and the other with no TED installed. By 1989, however, 
there were not enough turtles at Canaveral to conduct TED testing. NMFS 
developed an alternate testing protocol using juvenile, captive-reared 
turtles. In this protocol, referred to as the small turtle protocol, a 
known number of turtles are introduced into a TED-equipped trawl and 
the number of escapes in a series of 25 introductions is recorded. The 
turtle exclusion rate of the candidate TED must statistically equal or 
exceed the exclusion rate of the control TED to pass the certification 
trial. A technical review committee, composed of industry and 
conservation representatives, is convened to review and confirm the 
video-taped documentation of all test results.
    Both protocols also rely on evaluation by an experienced team of 
NMFS divers who are familiar with working in and around operating 
trawls and who conduct preliminary observations and make underwater 
video recordings of candidate TED designs. Videotapes are then reviewed 
by the candidate TED designer or representative in order to determine 
whether tuning or modifications are necessary prior to testing. When 
the designer is satisfied with the configuration of the candidate TED, 
testing is initiated. This process has resulted in significant on-site 
modifications to some candidate soft TED designs and has corrected 
design and installation problems that could otherwise have caused the 
failure of the design. Under this process, four soft TEDS passed 
certification and were approved for use: The Morrison, Parrish, 
Andrews, and Taylor. The Morrison and Parrish TEDs were approved after 
being tested under the Canaveral protocol, and the Taylor and Andrews 
TEDs were approved based on testing under the small turtle protocol. 
All four of the soft TED designs were tested and then approved on the 
basis of testing conducted in only one size and style of net.

Changes to the TED Testing Protocol

    In the preamble of the December 19, 1996, final rule, that 
prohibited the use of soft TEDs, NMFS acknowledged that the two 
existing scientific protocols used in approving TEDs did not address 
some deficiencies in soft TEDs. The discussion in the preamble of that 
rule stipulated that future testing of soft TEDs would address soft 
TED-specific problems with the testing protocols, to assure that any 
subsequently approved soft TED would effectively exclude turtles. In 
conducting this year's testing of soft TEDs and in developing this 
interim final rule, NMFS has adopted changes to the methods, 
statistical risks of error, and application of results of the small 
turtle test protocol (originally published at 55 FR 41092, October 9, 
1990).
    One of the changes in methodology has been the adoption of a top-
opening, curved-bar style (e.g., the SuperShooter TM design) 
hard TED, with an accelerator funnel and extended webbing flap, as the 
control TED. The old control, the NMFS TED, was not representative of 
gear in actual commercial use, and the metal-framed door over the 
escape opening in the original NMFS TED occasionally hindered the 
escape of the small turtles used in the testing. This change in the 
control TED should tend to make the small turtle protocol more 
conservative in approving new TED designs. For instance, in comparison 
testing conducted in 1995, the NMFS TED excluded 24 out of 25 turtles, 
while the top-opening, curved-bar, hard TED excluded 25 out of 25 
turtles, with a shorter average escape time.
    An additional change to the method was made by alternating the 
release position of the turtles in the net among the center, port, and 
starboard sides of the net. Previously, turtles had been released only 
at the center of the net. In testing hard TEDs, releasing turtles in 
the center posed no problem because the hard TED is compact and is 
installed in the aft portion of the net. All 25 turtles in the test 
sample encountered and successfully negotiated all the components of 
the hard TED (the accelerator funnel, the grid, the escape opening, and 
the webbing flap) to escape. In testing soft TEDs, however, test 
turtles released at the center of the headrope tended to pass straight 
down the center of the net and rarely contacted the sides of the soft 
TED. The sides, or wings, of soft TEDs are the most likely areas to 
observe pocketing or slack areas of webbing, and the wing areas of 
candidate soft TEDs accounted for most of the turtle captures observed, 
even though many turtles in a trial sample never encountered the wings. 
TED testing of commercially purchased Andrews soft TEDs in June 1996 
first revealed the possible bias from using all center releases when 
testing soft TEDs. Turtles introduced into the trawl in front of the 
wings of the Andrews TEDs were captured in 21 out of 30 trials, while 
15 out of 15 turtles escaped when introduced at the center line. To 
eliminate this potential bias and to better test the effectiveness of 
all parts of soft TEDs, the 1997 TED testing sessions were conducted 
with turtle releases in the port, starboard, and center of the trawls 
for both the control and candidate TEDs.
    The statistical protocol applied to the TED testing results has 
also been modified to be more conservative in approving new candidate 
TEDs. The turtle exclusion rate of the candidate TED must statistically 
equal or exceed the exclusion rate of the control TED to pass the 
certification trial. Depending on the exclusion rate of the control 
TED, the number of captures by a candidate TED would prove it to be 
statistically worse than the control TED and cause it to fail the 
certification trial. Depending on the capture level used to reject a 
candidate TED, there is a risk that the failed candidate TED was 
actually an acceptable TED that happened to perform poorly within the 
limits of the trial. If a higher number of captures are selected as the 
failure point, the risk of rejecting an acceptable TED is reduced; 
however, the risk of accepting an unacceptable TED is correspondingly 
increased. In applying the TED testing results from the small turtle 
protocol prior to 1997, the number of captures required to fail a TED 
was selected so that the risk of rejecting a good TED would be 
approximately 10 percent. For the 1997 TED testing, NMFS determined 
that a higher risk of rejecting a good candidate TED would be adopted 
to lower the risks of approving a poor candidate TED. For the 1997 TED 
testing session, the risk of rejecting a good TED was increased to 
approximately 20 percent (the actual failure points selected 
corresponded to 15 percent and 22 percent risks for the June and 
September testing sessions, respectively). This change in the 
statistical protocol meant that candidate TEDs had to show a higher 
standard of turtle exclusion, relative to the control TED, than in any 
previous TED testing session.
    The most important change in the TED testing protocol, however, is 
the application of the testing results only to the specific trawl and 
TED combinations tested. The four previously approved soft TED designs 
were tested only once in one size and style of net prior to approval. 
The TEDs were then approved for use in any style and size of net. The 
testing of commercially purchased Morrison soft

[[Page 17950]]

TEDs in 1994 and Andrews soft TEDs in 1996 revealed that soft TED 
incompatibility with some net types and high variability in 
installations were problems with the effectiveness of those soft TEDs. 
Under the new protocol, the approval of successful candidate soft TEDs 
will be limited to demonstrably compatible net sizes and styles.

Development of Improved Soft TEDs

    In March 1997, NMFS gear experts began working with members of the 
shrimp industry to plan research and development for improved soft 
TEDs. Based on comments received during the 1996 rulemaking and through 
consultation with the shrimp industry, priority was placed on 
researching improvements for a top-opening, panel-style soft TED 
similar to the Morrison TED and for a bottom-opening, funnel-style soft 
TED similar to the Andrews TED. Shrimp fishermen and net makers 
proposed a variety of alternative soft TEDs, most of them variations on 
the Andrews or Morrison TED, for testing. From March to May 1997, NMFS 
issued 12 permits to fishermen to conduct commercial fishing efficiency 
testing with the experimental soft TEDs.
    NMFS conducted a series of TED tests using the small turtle 
protocol from June 5 through 19, 1997. At the outset of the testing, 
eight different soft TEDs were identified for investigation. These 
candidates had been developed through cooperation with the shrimp 
industry and commercial fishing trials. The eight soft TEDs included 
five variations on the Morrison TED, two variations on the Andrews TED, 
and one soft TED that was similar to the Morrison and Taylor TEDs. Over 
the course of the testing, a total of 18 different soft TEDs were 
examined and tested as successive modifications were made to eliminate 
any identified design problems. Complete copies of the June 1997 TED 
testing report are available (see ADDRESSES); a summary of the relevant 
findings and gear developments follows.
    Eleven variations of a top-opening Morrison/Taylor style soft TED 
were examined during the June TED testing session. This testing 
confirmed several of the observations about Morrison-style TED designs 
that NMFS gear experts had made during earlier testing in 1994 and 
1996. Generally, the large escape opening in the top of the trawl 
incorporated in the Morrison TED design is easily negotiated by 
turtles, whose natural preference is to escape toward the surface. 
Turtles that avoid entanglement in the TED panel usually escape 
relatively quickly. Several critical factors in the soft TED design or 
installation that could produce entanglement were slack webbing, 
webbing that curved upward instead of lying taut and flat, and pockets 
of webbing near the attachment of the edges of the excluder panel to 
the trawl. In mesh sizes of 8 inches (20.3 cm) or even 6 inches (15.2 
cm), turtles could become entangled if they encountered webbing in the 
parts of the trawl with any of those design or installation flaws.
    The Parker TED, which was the last Morrison-style TED tested during 
the June session, incorporates design features that overcome the design 
and installation problems previously observed in Morrison-style TEDs. 
The Parker TED is a single panel design, so it does not use any wing 
panels which had been shown to be problematic. It uses a triangular 
section of 8-inch (20.3-cm) mesh polypropylene or polyethylene webbing 
in the front and center portion of the excluder panel, but is 
surrounded on the sides and rear portion of the excluder panel by 
strips of 4-inch (10.2-cm) mesh webbing. The problem areas for 
installation--slack areas and pockets near the edges--are, therefore, 
separated from the large-mesh center of the panel by the 4-inch (10.2-
cm) mesh webbing. Even the small turtles used in the June testing 
session experienced no threat of becoming entangled in the 4-inch 
(10.2-cm) mesh webbing. Additionally, the 4-inch (10.2-cm) mesh webbing 
strips create a greater amount of water resistance and drag than the 
larger mesh center. The increased drag on the sides and rear of the 
panel worked to pull the entire panel very tight and flat. The Parker 
TED excluded 25 out of 25 test turtles introduced into the net, 
compared to 24 releases out of 25 trials scored by the control TED, a 
top-opening, curved-bar, hard TED. The Parker soft TED was tested in a 
43-foot (13.1-m) headrope length Mongoose-style trawl during the June 
test session.
    Following the June 1997 TED testing session, NMFS, in consultation 
with the shrimp fishing industry, decided to pursue additional testing 
of the Parker TED to ensure that it would function properly in other 
trawl styles and sizes than the 43-foot (13.1-m) Mongoose trawl in 
which it was tested. Commercial fishermen, primarily in the Atlantic 
Area, participated in an extensive testing program to evaluate the 
Parker TED in various gear configurations under commercial fishing 
conditions. One hundred and ninety seven shrimpers (100 in the Gulf of 
Mexico, 97 in the Atlantic) received authorizations to conduct fishing 
efficiency testing with experimental versions of the Parker TED. The 
permits require fishermen to submit reports on their catch upon 
completion of the permitted testing period. One hundred of the permits 
issued for Parker TED testing have expired, and reports have been 
submitted by 42 shrimpers from the Atlantic. Twenty-three of the 
reports submitted were from fishermen that did not use the Parker TED. 
Eighteen shrimpers that used the Parker TED reported good bycatch 
reduction and shrimp retention. Additionally, they reported at least 17 
turtle takes (one fishermen reported ``numerous turtle captures''). All 
reported captures were in try nets, except for one turtle that was 
exiting the Parker TED as the net was retrieved. All captured turtles 
were reportedly released alive and in good condition.
    These anecdotal reports are similar to reports from observers on 
commercial shrimp vessels testing the effectiveness of Parker TEDs as 
bycatch reduction devices in the Atlantic during the fall and winter of 
1997. Fifty-four tows of Parker TEDs were observed during 19 sea days 
off Georgia. Three sea turtle takes were observed during these trials; 
a ridley and a loggerhead were observed in nets with grid TEDs 
installed that were blocked by crab traps, and a Kemp's ridley 
reportedly had not yet reached the Parker TED and slid through the 
trawl and out of the TED while the net was being retrieved. During 
similar trials off South Carolina, no sea turtle takes were observed 
during 30 tows in trawls with Parker TEDs installed.
    NMFS conducted a second series of small turtle TED testing from 
September 15 through 28, 1997. This testing focused on evaluating the 
Parker TED in various styles of trawls and fishing configurations and 
on testing alternative designs of Andrews-style TEDs. The Parker TED 
was examined in eight different style trawls, using a range of center-
bridle adjustments on tongue and bib trawls and with two different 
styles of escape opening.
    The Parker TED proved to be compatible with most net types and gear 
configurations tested. Gear experts evaluated the trawling 
configuration of the various installations underwater and tested the 
different style nets with a sub-sample of up to 10 turtles to confirm 
the divers' evaluation of the effectiveness of the various 
installations. A total of 107 turtles were introduced into the various 
trawl/Parker TED combinations, and all were released effectively. The 
Parker TED assumed a proper configuration and excluded all of the 
turtles introduced into the net in a 2-seam balloon trawl, a 4-seam 
semi-balloon trawl, a 4-seam semi-balloon trawl with a bib attached, a 
straight-wing flat net,

[[Page 17951]]

a 4 bars to 1 point (4b1p) taper Mongoose net, and a 3b1p taper 
Mongoose net. (For a discussion of net tapers, see the section 
``Restriction of Soft TED Use to Specified Net Sizes, and Styles'' 
following.)
    In the Mongoose-style trawls and trawls with bibs, the soft TED's 
configuration was evaluated at a range of center bridle adjustments. 
TED testing conducted in November 1994 had indicated that the tension 
on the towing bridle attached to the tongue could influence the shape 
of the excluder panel on the Morrison TED. In all of these net styles 
tested with the Parker TED, the excluder panel maintained a good shape 
over the range of center bridle adjustments. Some installations showed 
an upward curl at the edge of the panel in the 4-inch (10.2-cm) mesh 
section, but the 8-inch (20.3-cm) mesh webbing remained flat. On the 
Mongoose-style trawls and trawls with bibs, a sub-sample of 10 turtles 
was run with the center bridle at an extremely short setting to test 
the TED's performance under the most adverse configuration. All of the 
turtles passed easily through the TED.
    The Parker TED was also tested with a leatherback turtle-sized 
escape opening. An extra large opening covered with a chain-weighted 
flap was an approved modification for the Morrison TED. The leatherback 
escape opening modification of the Parker TED excluded all four of the 
turtles exposed to it. The chain-weighted webbing flap was not a 
barrier to turtle escape because it did not tightly seal the escape 
opening.
    Two net styles that were evaluated by divers revealed potential 
incompatibility with the Parker TED: a 2-seam balloon net with a bib 
attached and an 86-foot (26.2-m) headrope length strongly tapered 
(6b1p) Mongoose net. In both nets, the excluder panel rolled strongly 
upward at the edges, pulling up the 8-inch (20.3-cm) mesh as well, 
creating the possibility for turtle entanglement in the distorted 
portion of the panel. Diver evaluations indicated that Parker TEDs 
would not always be effective in these net types.
    The Environmental Assessment (EA) prepared for the interim final 
rule contains a complete discussion of all of the soft TED evaluations 
conducted during 1997 and of the factors that led NMFS to select this 
interim final rule as the preferred course of action. Complete copies 
of the EA for this rule are available (see ADDRESSES). In summary, NMFS 
is allowing the use of the Parker TED in most trawl styles because it 
passed the certification trials for numerous trawl styles and sizes and 
because gear specialists were confident that the TED can be replicated 
by net manufacturers in a manner that precludes stretching and bagging 
problems that lead to turtle captures in other styles of soft TEDs. 
Additionally, NMFS considered the favorable shrimp retention 
characteristics of the Parker TED. The South Carolina Department of 
Natural Resources (SCDNR) compared shrimp and finfish catches between 
nets equipped with the Parker soft TED and a top-opening, curved-bar 
hard TED aboard a commercial shrimp trawler. In 30 comparison tows 
during September through December 1997, the Parker TED-equipped net 
caught 9.1 percent less shrimp than the hard TED-equipped net. No sea 
turtle takes were observed during these 30 tows.
    Individual fishermen in the Atlantic Area who received 
authorizations to conduct commercial efficiency testing (50 CFR 227.72; 
Office of Management and Budget collection control number 0648-0309, 
expiration date April 30, 1999) with the Parker TED have confirmed the 
SCDNR results with qualitative observations. Industry members of the 
soft TED advisory panel believed that the observed shrimp loss would be 
acceptable to shrimpers who prefer soft TEDs because of the TED's 
handling and possible bycatch reduction characteristics.
    Although there is no expressed requirement for consideration of 
shrimp retention capabilities when certifying TEDs, NMFS believes that 
certification of TEDs that result in low shrimp landings is 
inappropriate and may be misleading to shrimpers. In the interest of 
authorizing TEDs that will be effective for shrimpers, amendments to 
the TED regulations in 1992 (57 FR 57357, December 4, 1992) gave the AA 
authority to issue permits for experimentation to improve shrimp 
retention efficiency of existing TEDs, as well as for developing 
additional TEDs. NMFS believes that soft TEDs with excessive shrimp 
loss will, at best, not be used. At worst, excessive shrimp loss may 
lead fishermen to disable or modify the TED after purchasing it. NMFS 
continues to believe that it is important to quantify the shrimp loss 
and finfish reduction characteristics of new soft TED designs to better 
assess their acceptance and effectiveness during commercial use. 
Although no precise level of shrimp loss acceptable to the industry has 
been identified at this time, 9 percent appears to be well within the 
reported tolerance limits. NMFS will continue to work with the industry 
to assess the shrimp retention rates for new soft TEDs that appear to 
be effective at excluding sea turtles, and to determine more precisely 
the level of shrimp loss that would be unacceptable to the shrimp 
industry and likely to prevent the use or correct installation of TEDs. 
NMFS also expects to conduct an additional session of TED testing for 
turtle release, including other variations on the Andrews TED and 
possibly the Parker TED, in May or June 1998.
    In the preamble to the December 19, 1996, final rule, NMFS noted 
that, while existing soft TEDs were ineffective and the problems 
inherent in using soft webbing material as a turtle excluder were 
serious and widespread, there were still positive attributes of soft 
TEDs and a strong desire, expressed by shrimp fishermen and the 
Congress, to continue using soft TEDs. NMFS, therefore, stated its 
intention to undertake intensive efforts to identify technical 
solutions or modifications for soft TEDs that would effectively exclude 
sea turtles. The final rule stated that NMFS would work with a panel of 
stakeholders and gear experts to propose solutions for soft TEDs. The 
preamble to the final rule stated, ``This process should produce 
multiple initiatives for further evaluation, possibly including 
entirely new soft TED designs. If any of these initiatives produce a 
soft TED that is demonstrated to effectively exclude turtles, it will 
be approved for use without delay * * *. NMFS intends that successful 
improvements and modifications to existing soft TEDs that result in 
such TEDs effectively excluding sea turtles will be incorporated in the 
TED regulations through rulemaking.'' For this reason, the Parker TED 
is being certified through an interim final rule. The interim final 
rule is effective for 18 months in order to minimize possible adverse 
impacts on turtles. The 18-month period will allow NMFS to evaluate new 
information regarding the performance of the Parker TED under field 
conditions (see the section ``Justification for Period of 
Effectiveness'').

Approval of the Parker TED

    Through this interim final rule, NMFS is approving the use of a new 
soft TED design known as the Parker TED, effective April 13, 1998, 
through October 13, 1999. The approval of the Parker TED restricts its 
use to specified trawls, based on the demonstrated effectiveness of the 
Parker TED in those trawls. The Parker TED is approved for use in all 
sizes and styles of trawls, except two-seam trawls with bibs or tongues 
attached, triple-wing trawls, and trawls in which the body taper is 
greater than 4b1p. Use of the Parker TED will be monitored through at-
sea

[[Page 17952]]

observers on vessels to further assess shrimp catch and finfish bycatch 
reduction rates and to ensure that turtle release rates are applicable 
in commercial fishing activities.

Restriction of Soft TED Use to Specified Net Sizes and Styles

    The December 19, 1996, final rule that removed the approval of four 
types of soft TEDs identified difficulty of installation and 
incompatibility with certain net types among the key problems with the 
existing soft TEDs. The results of the two TED testing sessions in 1997 
underlined the importance of matching the candidate soft TEDs closely 
with specific installation and net requirements. This interim final 
rule provides detailed specifications for construction and installation 
of the Parker TED. The specificity of these requirements ensures that 
Parker TEDs constructed and installed according to the requirements 
will be effective TEDs and controls the problems with previous soft TED 
designs of incompatibility with various net types and improper 
installation. To ensure the proper installation of the Parker TED, NMFS 
intends to conduct special TED training sessions for soft TED makers. 
The TED manufacturers' training program will include certificates of 
training to the manufacturers and the development and distribution to 
fishermen of a list of manufacturers who have been trained in the new 
soft TED installation.
    Because of the specificity of the Parker TED's requirements, 
enforcement officers will be better able to inspect the Parker TED and 
determine whether it is installed in a manner that will allow it to 
function effectively. Given the problems with previous versions of soft 
TEDs, NMFS has developed a 1998 soft TED enforcement plan to help 
ensure that the reintroduction of soft TEDs into the fishery will be 
successful. Among the elements of that plan, enforcement officers and 
gear experts will closely monitor the commercial implementation of the 
Parker TED at net shops and dockside trawlers, with the goal of finding 
and correcting any misapplication of the Parker TED's regulatory 
requirements. In addition to these education and monitoring 
initiatives, the 1998 enforcement plan includes enhanced resources 
dedicated toward TED at-sea enforcement and compliance. In previous 
years, most at-sea law enforcement has been conducted by the U.S. Coast 
Guard and by some state law enforcement agencies. In 1998, NMFS will be 
fielding enforcement officers for at-sea boardings to augment existing 
enforcement activities. These enforcement officers will be available to 
detect and deter TED violations in areas and times with historically 
high sea turtle strandings.
    The specifications for the new soft TED design necessarily 
incorporate more terminology specific to net-making than the 
regulations for the previously approved soft TEDs, and, therefore, new 
definitions for trawl styles and webbing characteristics are added to 
the regulations. Definitions for three classes of trawls are added: 
Two-seam trawls; four-seam, straight-wing trawls; and four-seam, 
tapered-wing trawls. These classes encompass the three main types of 
net-body geometry in use in the commercial fishery. The two-seam trawls 
have a very simple design with top and bottom body panels of webbing 
that are directly attached to each other down the sides of the trawl 
(producing two sewing seams). The two-seam trawl is commonly known as a 
balloon trawl in the commercial shrimping industry. The four-seam 
trawls, on the other hand, incorporate two additional webbing panels 
between the top and bottom body panels down the sides; these side 
panels are called ``wings.'' Four-seam, straight-wing trawls, as the 
name implies, use wings whose upper and lower edges are parallel over 
its entire length. Western jib trawls and straight-wing flat nets are 
the primary styles of nets of this class in commercial use. In four-
seam, tapered-wing trawls, the wing panels are triangular or 
trapezoidal in shape so that the top and bottom edges of the wings 
converge toward the rear of the trawl. Examples of four-seam, tapered-
wing trawls in commercial shrimping use are the four-seam, semi-balloon 
trawls and tapered-wing flat nets. The Parker TED was evaluated in 
trawls of all three classes and is being approved for use through this 
interim final rule in all three classes of trawl. The installation 
requirements for the Parker TED vary, however, depending on the class 
of trawl used. In a four-seam, tapered-wing trawl and a two-seam trawl, 
the leading edge of the Parker TED excluder panel runs the width of the 
bottom body panel of the trawl. That is, the leading edge runs from 
``seam-to-seam.'' In a four-seam, straight wing trawl, the leading edge 
of the excluder panel must be installed to run the width of the bottom 
body panel of the trawl and up half the height of each wing on either 
side.
    Another major design element in shrimp trawl design is the 
inclusion of tongues or bibs. Tongues and bibs are additional pieces of 
webbing that extend the top, center portion of the leading edge of the 
trawl and include an eye for attachment of a towing bridle. This third 
bridle, in addition to the primary towing bridles that lead to the 
trawl doors or dummy-doors, allows the towing tension to be distributed 
away from the sides and toward the center of the trawl. The length of 
the third bridle is adjustable by the fisherman to vary the net's 
horizontal and vertical spreads. Tongues and bibs perform the same 
function in the trawl; tongues are usually formed into the top body 
panel and lie behind the headrope while bibs are usually added-on 
panels that are attached forward of the headrope. For the purposes of 
this interim final rule, however, tongues and bibs will be considered 
the same and only a regulatory definition of ``tongue'' is being added. 
Mongoose trawls are perhaps the best-known style of tongue trawls in 
commercial use. Mongoose trawls incorporate a four-seam, tapered-wing 
design in the body of the net, although bibs or tongues are combined 
with other classes of trawls as well. The Parker TED was evaluated in a 
variety of trawls with tongues. The Parker TED's configuration was 
distorted in a two-seam trawl with a tongue, but it retained a good 
configuration in four-seam trawls with tongues even at extreme ranges 
of center bridle tension and headrope flotation. The Parker TED is, 
therefore, being approved for use in four-seam trawls (both straight- 
and tapered-wing) with tongues, but not in two-seam trawls with 
tongues. A somewhat rare use of tongues is seen in the so-called 
``triple-wing trawls,'' which incorporate a tongue in the center of the 
footrope in addition to a tongue in the headrope and are thus pulled 
with four towing bridles. The Parker TED was not evaluated in a triple-
wing trawl and, consequently, is not approved for use in a triple-wing 
trawl.
    Another element in shrimp trawl design is trawl taper. The fore-
and-aft length of a trawl, relative to its headrope length, is largely 
determined by the rate of taper of the edges of the top and bottom body 
panels of the trawl. Taper is usually expressed as the ratio between 
the cuts in the components of the mesh that reduce the width of the 
panel of webbing and the cuts straight aft that extend the length of 
the panel of webbing. An understanding of net-making terminology is 
necessary to comprehend the conventions used in describing net taper. 
An individual mesh is composed of four equal lengths of twine, joined 
by four knots, and the webbing is usually hung in the body of a trawl 
so that all the meshes form diamond shapes, with the long axis of the 
diamonds oriented fore-and-aft. The two lengths of twine and the 
intervening

[[Page 17953]]

knot on the left and right sides of the mesh are known as ``points,'' 
and the individual lengths of twine are known as ``bars.'' Since a 
single bar is half the width of an entire mesh cutting, a bar on the 
outside edge of a panel of webbing reduces the width of that row of 
meshes by one half mesh. Continuing cutting in the direction through 
the bars on the opposite sides of each mesh and leaving an uncut edge 
of bars all lying in the same line produce an ``all-bar'' taper. An 
all-bar taper reduces the width of a panel of webbing by one mesh for 
every two rows of twine cut. The all-bar taper is the steepest angle of 
taper that is used in any portion of the soft TED design in this 
interim final rule. Lesser degrees of taper can be produced by 
interspersing bar cuts with point cuts--cuts straight aft through both 
lengths of twine in a point. A point cut extends the length of a 
webbing panel by one mesh without reducing the width. For example, ``2 
bars, 1 point'' (2b1p) indicates a taper in which the net maker would 
cut a sequence of two bars (inward) followed by one point (aft). This 
2b1p taper would reduce the width of a webbing panel by one mesh for 
every four rows of twine cut. Other bar-point combinations are 
possible, such as 4b1p, 6b1p, and 8b1p, which would correspond to 
increasingly steeper tapers approaching the angle of an all-bar taper. 
A ``straight'' or ``all-point'' cut indicates a cut that leaves all 
points along the cut edge and that does not reduce the width of the 
webbing panel. Figure 1 illustrates the components of trawl webbing and 
offers examples of different tapers:

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    The concept of tapers is important to this interim final rule's 
construction requirements for both the Parker TED design and for the 
limitations on the styles of nets in which the Parker TED may be 
installed. This interim final rule allows the Parker TED to be 
installed and used in a range of trawl sizes. The installation points 
of the Parker TED may be moved forward or aft within the body of the 
trawl to the location where the panel fits properly as an excluder 
panel. During the 1997 TED testing sessions, the Parker TED was shown 
to be effective and to assume a proper configuration in a variety of 
trawls with tapers on the edges of the body panels of 4b1p or more 
gradual. In large trawls that use a strong body taper (6b1p was 
tested), the geometry of the trawl body appeared incompatible with the 
Parker TED. Therefore, this interim final rule allows installation of 
the Parker TED only in trawls with tapers on the edges of the body 
panels of 4b1p or less.

Justification for Period of Effectiveness

    This interim final rule is effective from April 13, 1998 through 
October 13, 1999. This period of effectiveness is necessary to allow 
for the further testing of the soft TED designs and for the publishing 
of final protocols. The time period will also allow for the evaluation 
of the implementation of the commercial, training, and enforcement 
programs of the Parker TED. A minimum of 12 months is necessary to 
observe these new designs under all seasonal commercial fishing 
conditions. A rulemaking window of 6 months after 1 year of field 
testing will provide NMFS with ample time to review, analyze, and 
present the data and will give the public an opportunity for comment 
prior to publication of the final rule. Additionally, shrimpers will 
have time to make modifications to TEDs that may be required as a 
result of observations during the next year prior to the subsequent 
shrimp season in spring of 2000. A period of effectiveness beyond the 
18-month period may unnecessarily impact turtles should the data 
analysis indicate that these soft TED designs are not effective at 
excluding turtles under normal fishing conditions.

Request for Comments

    NMFS will accept written comments (see ADDRESSES) on this interim 
final rule until June 12, 1998. NMFS also intends to conduct an 
additional TED testing session, including continuing evaluations of 
soft TED designs, in May or June 1998. NMFS will announce the 
completion of the testing report from that session through a notice of 
availability in the Federal Register. NMFS may accept additional 
comments relevant to this action, following release of that TED testing 
report and prior to promulgation of a final rule replacing this interim 
final rule.

Classification

    This action has been determined to be significant for purposes of 
E.O. 12866.
    The Assistant Administrator for Fisheries, NOAA (AA), finds that 
good cause exists, under 5 U.S.C. 553(b)(B), to waive prior notice and 
an opportunity for public comment on this rule. It is impracticable and 
contrary to the public interest to provide prior notice and opportunity 
for comment because the shrimp fishery is currently underway in the 
offshore and eastern Gulf of Mexico with virtually all of those shrimp 
trawlers required to use TEDs. The provisions of this rule allow those 
fishermen the option of using a new design of soft TEDs in order to 
comply with the TED requirement. Additionally, effort in the nearshore 
and inshore shrimp fisheries in the Gulf and Atlantic Area will 
increase around the beginning of May. Fishermen traditionally spend the 
months of March and April rigging their vessels for the season. Delay 
in providing these fishermen with an additional option for compliance 
with the TED requirements would create disruption in the fishery 
through added gear costs and lost fishing time if fishermen commit to 
the use of certain gear during their vessel rigging period and 
subsequently choose to re-rig to use the newly approved soft TED 
design. Furthermore, the Gulf of Mexico Fishery Management Council and 
the South Atlantic Fishery Management Council have both stressed the 
economic and environmental importance of reducing the bycatch of 
finfish in shrimp trawls. The Councils have moved to require bycatch 
reduction devices be installed in shrimp trawls through Amendment 9 to 
the Fishery Management Plan for the Gulf of Mexico Shrimp Fishery and 
through Amendment 2 to the Fishery Management Plan for the South 
Atlantic Shrimp Fishery. Soft TEDs, generally, are known to have 
valuable bycatch reduction abilities, and the introduction of this new 
soft TED design into the fishery will result in finfish bycatch 
reduction and may eventually provide fishermen with an additional 
option for complying with the gear requirements of the two fishery 
management plans' amendments. Because this interim final rule does not 
create any new regulatory burden but instead relieves regulatory 
restrictions by providing an additional option for complying with the 
existing sea turtle conservation requirements, under 5 U.S.C. 
553(d)(1), it is not subject to a 30-day delay in effective date.
    Because prior notice and opportunity for public comment are not 
required by 5 U.S.C. 553 or by any other law, under 5 U.S.C. 603(b) the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq. are not applicable to this rule. Accordingly, an initial 
Regulatory Flexibility Analysis was not prepared for this rule.
    The AA prepared an Environmental Assessment (EA) for the final rule 
(57 FR 57348, December 4, 1992) requiring TED use in shrimp trawls. An 
EA prepared specifically for this action concludes that this interim 
final rule will have no significant impact on the human environment. A 
copy of the EA is available (see ADDRESSES).

List of Subjects

50 CFR Part 217

    Endangered and threatened species, Exports, Fish, Imports, Marine 
mammals.

50 CFR Part 227

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: April 6, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR parts 217 and 227 
are amended as follows:

PART 217--GENERAL PROVISIONS

    1. The authority citation for part 217 continues to read as 
follows:

    Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544, 
unless otherwise noted.

    2. In Sec. 217.12, definitions for ``Four-seam, straight-wing 
trawl'', ``Four-seam, tapered-wing trawl'', ``Taper'', ``Tongue'', 
``Triple-wing trawl'', and ``Two-seam trawl'' are being added, in 
alphabetical order, to read as follows:


Sec. 217.12  Definitions.

* * * * *
    Four-seam, straight-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing are parallel over the entire length.
    Four-seam, tapered-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two

[[Page 17956]]

side panels of webbing. The upper and lower edges of the side panels of 
webbing converge toward the rear of the trawl.
* * * * *
    Taper, in reference to the webbing used in trawls, means the angle 
of a cut used to shape the webbing, expressed as the ratio between the 
cuts that reduce the width of the webbing by cutting into the panel of 
webbing through one row of twine (bar cuts) and the cuts that extend 
the length of the panel of webbing by cutting straight aft through two 
adjoining rows of twine (point cuts). For example, sequentially cutting 
through the lengths of twine on opposite sides of a mesh, leaving an 
uncut edge of twines all lying in the same line, produces a relatively 
strong taper called ``all-bars''; making a sequence of 4-bar cuts 
followed by 1-point cut produces a more gradual taper called ``4 bars 
to 1 point'' or ``4b1p''; similarly, making a sequence of 2-bar cuts 
followed by 1-point cut produces a still more gradual taper called 
``2b1p''; and making a sequence of cuts straight aft does not reduce 
the width of the panel and is called a ``straight'' or ``all-points'' 
cut.
* * * * *
    Tongue means any piece of webbing along the top, center, leading 
edge of a trawl, whether lying behind or ahead of the headrope, to 
which a towing bridle can be attached for purposes of pulling the trawl 
net and/or adjusting the shape of the trawl.
* * * * *
    Triple-wing trawl means a trawl with a tongue on the top, center, 
leading edge of the trawl and an additional tongue along the bottom, 
center, leading edge of the trawl.
    Two-seam trawl means a design of shrimp trawl in which the main 
body of the trawl is formed from a top panel and a bottom panel of 
webbing that are directly attached to each other down the sides of the 
trawl.
* * * * *

PART 227--THREATENED FISH AND WILDLIFE

    3. The authority citation for part 227 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also 
issued under 16 U.S.C. 1361 et seq.

    4. In Sec. 227.72, the second sentence of paragraph (e)(2)(iv)(B) 
is amended by replacing the text ``or paragraph (e)(4)(iii)(E)'' with 
the text ``or, prior to October 13, 1999, paragraph 
(e)(4)(iii)(A)(4)(ii)''; the first sentence of paragraph (e)(4)(iv) is 
amended by removing the text ``, except for the modifications described 
in paragraph (e)(4)(iii)(E)''; and paragraph (e)(4)(iii) is revised to 
read as follows:


Sec. 227.72  Exceptions to prohibitions.

* * * * *
    (e) * * *
    (4) * * *
    (iii) Soft TEDs. Soft TEDs are TEDs with deflector panels made from 
polypropylene or polyethylene netting. Prior to October 13, 1999, the 
following soft TEDs are approved TEDs:
    (A) Parker TED. The Parker TED is a soft TED, consisting of a 
single triangular panel, composed of webbing of two different mesh 
sizes, that forms a complete barrier inside a trawl and that angles 
toward an escape opening in the top of the trawl.
    (1) Excluder Panel. (Figure 5) The excluder panel of the Parker TED 
must be constructed of a single triangular piece of 8-inch (20.3 cm) 
stretched mesh webbing and two trapezoidal pieces of 4-inch (10.2-cm) 
stretched mesh webbing. The webbing must consist of number 48 (3-mm 
thick) or larger polypropylene or polyethylene webbing that is heat-set 
knotted or braided. The leading edge of the 8-inch (20.3-cm) mesh panel 
must be 36 meshes wide. The 8-inch (20.3-cm) mesh panel must be tapered 
on each side with all-bar cuts to converge on an apex, such that the 
length of each side is 36 bars. The leading edges of the 4-inch (10.2-
cm) mesh panels must be 8 meshes wide. The edges of the 4-inch (10.2-
cm) mesh panels must be cut with all-bar cuts running parallel to each 
other, such that the length of the inner edge is 72 bars and the length 
of the outer edge is 89 bars and the resulting fore-and-aft edge is 8 
meshes deep. The two 4-inch (10.2-cm) mesh panels must be sewn to the 
8-inch (20.3-cm) mesh panel to create a single triangular excluder 
panel. The 72-bar edge of each 4-inch (10.2-cm) mesh panel must be 
securely joined with twine to one of the 36-bar edges of the 8-inch 
(20.3-cm) mesh panel, tied with knots at each knot of the 4-inch (10.2-
cm) webbing and at least two wraps of twine around each bar of 4-inch 
(10.2-cm) mesh and the adjoining bar of the 8-inch (20.3-cm) mesh. The 
adjoining fore-and-aft edges of the two 4-inch (10.2-cm) mesh panels 
must be sewn together evenly.
    (2) Limitations on which trawls may have a Parker TED installed. 
The Parker TED must not be installed or used in a two-seam trawl with a 
tongue, nor in a triple-wing trawl (a trawl with a tongue along the 
headrope and a second tongue along the footrope). The Parker TED may be 
installed and used in any other trawl if the taper of the body panels 
of the trawl does not exceed 4b1p and if it can be properly installed 
in compliance with paragraph (c)(1)(iii) of this section.
    (3) Panel installation--(i) Leading edge attachment. The leading 
edge of the excluder panel must be attached to the inside of the bottom 
of the trawl across a straight row of meshes. For a two-seam trawl or a 
four-seam, tapered-wing trawl, the row of meshes for attachment to the 
trawl must run the entire width of the bottom body panel, from seam to 
seam. For a four-seam, straight-wing trawl, the row of meshes for 
attachment to the trawl must run the entire width of the bottom body 
panel and half the height of each wing panel of the trawl. Every mesh 
of the leading edge of the excluder panel must be evenly sewn to this 
row of meshes; meshes may not be laced to the trawl. The row of meshes 
for attachment to the trawl must contain the following number of 
meshes, depending on the stretched mesh size used in the trawl: for a 
mesh size of 2\1/4\ inches (5.7 cm), 152-168 meshes; for a mesh size of 
2\1/8\ inches (5.4 cm), 161-178 meshes; for a mesh size of 2 inches 
(5.1 cm), 171-189 meshes; for a mesh size of 1\7/8\ inches (4.8 cm), 
182-202 meshes; for a mesh size of 1\3/4\ inches (4.4 cm), 196-216 
meshes; for a mesh size of 1\5/8\ inches (4.1 cm), 211-233 meshes; for 
a mesh size of 1\1/2\ inches (3.8 cm), 228-252 meshes; for a mesh size 
of 1\3/8\ inches (3.5 cm), 249-275 meshes; and for a mesh size of 1\1/
4\ inches (3.2 cm), 274-302 meshes.
    (ii) Apex attachment. The apex of the triangular excluder panel 
must be attached to the inside of the top body panel of the trawl at 
the centerline of the trawl. The distance, measured aft along the 
centerline of the top body panel from the same row of meshes for 
attachment of the excluder panel to the bottom body panel of the trawl, 
to the apex attachment point must contain the following number of 
meshes, depending on the stretched mesh size used in the trawl: for a 
mesh size of 2\1/4\ inches (5.7 cm), 78-83 meshes; for a mesh size of 
2\1/8\ inches (5.4 cm), 83-88 meshes; for a mesh size of 2 inches (5.1 
cm), 87-93 meshes; for a mesh size of 1\7/8\ inches (4.8 cm) , 93-99 
meshes; for a mesh size of 1\3/4\ inches (4.4 cm) , 100-106 meshes; for 
a mesh size of 1\5/8\ inches (4.1 cm), 107-114 meshes; for a mesh size 
of 1\1/2\ inches (3.8 cm), 114-124 meshes; for a mesh size of 1\3/8\ 
inches (3.5 cm), 127-135 meshes; and for a mesh size of 1\1/4\ inches 
(3.2 cm), 137-146 meshes.
    (iii) Side attachment. The sides of the excluder panel must be 
attached evenly to the inside of the trawl from the outside attachment 
points of the

[[Page 17957]]

excluder panel's leading edge to the apex of the excluder panel. Each 
side must be sewn with the same sewing sequence, and, if the sides of 
the excluder panel cross rows of bars in the trawl, then the crossings 
must be distributed evenly over the length of the side attachment.
    (4) Escape opening. The escape opening for the Parker soft TED must 
match one of the following specifications:
    (i) Longitudinal cut. A slit at least 56 inches (1.4 m) in taut 
length must be cut along the centerline of the top body panel of the 
trawl net immediately forward of the apex of the panel webbing. The 
slit must not be covered or closed in any manner. The edges and end 
points of the slit must not be reinforced in any way; for example, by 
attaching additional rope or webbing or by changing the orientation of 
the webbing.
    (ii) Leatherback escape opening. A horizontal cut extending from 
the attachment of one side of the deflector panel to the trawl to the 
attachment of the other side of the deflector panel to the trawl must 
be made in a single row of meshes across the top of the trawl and 
measure at least 96 inches (244 cm) in taut width. All trawl webbing 
above the deflector panel between the 96-inch (244-cm) cut and edges of 
the deflector panel must be removed. A rectangular flap of nylon 
webbing not larger than 2-inch (5.1-cm) stretched mesh may be sewn to 
the forward edge of the escape opening. The width of the flap must not 
be larger than the width of the forward edge of the escape opening. The 
flap must not extend more than 12 inches (30.4 cm) beyond the rear 
point of the escape opening. The sides of the flap may be attached to 
the top of the trawl but must not be attached farther aft than the row 
of meshes through the rear point of the escape opening. One row of 
steel chain not larger than \3/16\ inch (4.76 mm) may be sewn evenly to 
the back edge of the flap. The stretched length of the chain must not 
exceed 96 inches (244 cm). A Parker TED using the escape opening 
described in this paragraph meets the requirements of paragraph 
(e)(2)(iv)(B) of this section.
    (B) [Reserved]
* * * * *
    5. Figures 6, 7, 8a and 8b, and 9a and 9b to part 227 are removed 
and reserved, and Figure 5 is revised to read as follows: Figure 5 to 
Part 227--Net Diagram for the Excluder Panel of the Parker Soft TED.

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