[Federal Register Volume 63, Number 198 (Wednesday, October 14, 1998)]
[Rules and Regulations]
[Pages 55053-55055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27408]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[I.D.100598B]
RIN 0648-AH97


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Notification of an exemption and request for comments.

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SUMMARY: NMFS issues this rule to allow the use of limited 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 Georges on and about September 27 to 29, 1998. 
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 in the aftermath of the 
hurricane are causing extraordinary difficulty with the performance of 
TEDs. NMFS will monitor the situation to ensure 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 rule is effective from October 7, 1998 through October 31, 
1998, when tow times must be limited to no more than 55 minutes 
measured from the time trawl doors enter the water until they are 
retrieved from the water, and from November 1, 1998 until November 6, 
1998, when tow times must be limited to no more than 75 minutes. 
Comments on this rule are requested, and must be received by November 
6, 1998.

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 populations of 
green turtles in Florida and on the Pacific coast of Mexico, which are 
listed as endangered.
    The incidental take of these species, as a result of shrimp 
trawling activities, have been documented in the Gulf of Mexico and 
along the Atlantic. 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 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 the 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 September 27, Hurricane Georges hit the Mississippi and Alabama 
coasts. The hurricane remained nearly stationary over the coastal area 
and South Alabama for about two days and deposited as much as 36 inches 
of rain on some areas. The combination of heavy rains and hurricane 
storm surge produced severe flooding in south Mississippi and South 
Alabama rivers. The Director of the Marine Resources Division of the 
Alabama Department of Conservation and Natural Resources (Alabama 
Director) stated in a September 30 letter to the NMFS Southeast 
Regional Administrator that the flooding ``has deposited 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 ``the debris clogs 
the TEDs making them inoperable for the exclusion of turtles and 
reduces the catch of shrimp.'' 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.
    Coastal areas in Louisiana and Mississippi were also affected by 
Hurricane Georges. NMFS has been consulting with the Louisiana

[[Page 55054]]

Department of Wildlife and Fisheries and the Mississippi Department of 
Marine Resources to determine the extent of debris problems that may 
have resulted from the storm's passage. At this time, no requests for 
exemption have been submitted from these states and the temporary TED 
exemption is only for inshore waters of Alabama.

Special Environmental Conditions

    The Assistant Administrator finds that the impacts of Hurricane 
Georges have created special environmental conditions that may make 
trawling with TED-equipped nets impracticable. Therefore, the Assistant 
Administrator issues this rule 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 monitor the situation 
and is cooperating with NMFS in determining the ongoing extent 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 who are 
authorized under this rule to use restricted tow times to continue to 
use TEDs if possible. NMFS studies have shown that the problem of 
clogging by seagrass, algae or by 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.
    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 be slit in a fore-and-aft 
direction to facilitate the exclusion of debris.
    All of the preceeding 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 rule authorizes the use of 
restricted tow times as an alternative to the required use of TEDs. 
This rule 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 rule 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. Through October 31, 1998, a shrimp trawler utilizing 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. From November 1, 1998 until November 6, 1998, tow times must 
be limited to no more than 75 minutes measured from the time trawl 
doors enter the water until they are retrieved from the water.

Additional Conditions

    NMFS expects that shrimp 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 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 publication 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 rule 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 document 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 automatically on November 6, 1998, unless it 
is explicitly extended through another notice published in the Federal 
Register.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The AA has determined that this action is necessary to respond to 
an emergency situation to allow more

[[Page 55055]]

efficient fishing for shrimp, while providing adequate protection for 
endangered and threatened sea turtles pursuant to the ESA and other 
applicable law.
    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 rule. 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 George, 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 
timeframe. 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 rule is 
effective immediately. As prior notice and an opportunity for public 
comment are not required to be provided for this rule 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 actions such as this. Copies of the EA are available (see 
ADDRESSES).

    Dated: October 7, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-27408 Filed 10-7-98; 4:37 pm]
BILLING CODE 3510-22-F