[Federal Register Volume 63, Number 208 (Wednesday, October 28, 1998)]
[Rules and Regulations]
[Pages 57620-57622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28826]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[I.D. 102098A]
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.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this rule to allow the use of limited tow times by 
shrimp trawlers in the inshore waters of Mississippi and in the inshore 
waters of Louisiana, north and east of the Mississippi River to its 
terminus at the South Pass, 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 Mississippi Department of Marine Resources that 
large amounts of debris in Mississippi Sound in the aftermath of the 
hurricane are causing difficulty with the performance of TEDs. NMFS has 
been notified by the Secretary of the Louisiana Department of Wildlife 
and Fisheries that his department had received documentation that 
hurricane-related debris was interfering with TED performance in their 
shrimping grounds east of the river. 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 23, 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 23, 
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 
23, 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 made landfall on the Mississippi 
coast.

[[Page 57621]]

The hurricane remained stationary over the Mississippi coast for over 
24 hours and deposited as much as 30 inches (76 cm) of rain on some 
areas. The combination of heavy rains and 10-12 foot (3.0 m-3.7 m) 
hurricane storm surge produced severe flooding in all three Mississippi 
coastal counties. The Director of the Mississippi Department of Marine 
Resources (Mississippi Director) sent an October 13 letter to the NMFS 
Southeast Regional Administrator stating, ``Most of the coastal rivers 
in Mississippi exceeded flood stage and deposited large amounts of 
debris into [Mississippi Sound], which has resulted in problems for 
shrimpers.'' He further stated that the ``debris...is having a negative 
impact on trawl and TED performance'' and that ``[w]hen TEDs become 
clogged they can no longer effectively exclude sea turtles, possibly 
increasing the chance of mortality to these endangered animals.'' 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 
Mississippi's inshore waters.
    Flooding, high winds, and storm surge also affected areas in 
eastern Louisiana. The Secretary of the Louisiana Department of 
Wildlife and Fisheries (Louisiana Secretary) sent an October 20 letter 
to the NMFS Southeast Regional Administrator stating, ``We have 
acquired documentation that debris caused by Hurricane Georges is 
interfering with TED performance in [Louisiana waters east of the 
Mississippi River].'' His letter requested that an exemption from the 
required use of TEDs be granted immediately in the affected area.
    Coastal areas of Alabama were also affected by Hurricane Georges. 
NMFS has already authorized the use of limited tow times, as an 
alternative to the required use of TEDs, in Alabama inshore waters (63 
FR 55053; October 14, 1998).

Special Environmental Conditions

    The Assistant Administrator finds that the impacts of Hurricane 
Georges have created special environmental conditions in some areas 
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 Mississippi, and in the inshore waters of Louisiana, 
north and east of the Mississippi River to its terminus at South Pass. 
The States of Mississippi and Louisiana are continuing to monitor the 
situation and are cooperating with NMFS in determining the ongoing 
extent of the debris problem. Moreover, the Mississippi Director has 
stated that Marine Enforcement Division of the Mississippi Department 
of Wildlife, Fisheries, and Parks has agreed to assist with the 
enforcement of the restricted tow times, and the Louisiana Secretary 
has pledged that his department will enforce tow time restrictions for 
the duration of any exemption period. Ensuring compliance with tow time 
restrictions is critical to effective sea turtle protection, and the 
commitments from the Mississippi Director and the Louisiana Secretary 
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 Mississippi and Louisiana 
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 preceding recommendations represent legal configurations 
of TEDs for shrimpers in the inshore areas of Mississippi and eastern 
Louisiana (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 all 
inshore waters of the State of Mississippi and in the inshore waters of 
the State of Louisiana, north and east of the Mississippi River to its 
terminus at South Pass, in areas which the states have 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 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 23, 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 Mississippi or 
eastern Louisiana 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

[[Page 57622]]

the Mississippi Director or the Louisiana Secretary, 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 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 Mississippi inshore waters. 
This authorization will expire automatically on November 23, 1998, 
unless it is explicitly extended through another notification to be 
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 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 22, 1998.
Gary C. Matlock,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-28826 Filed 10-23-98; 3:31 pm]
BILLING CODE 3510-22-F