[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Rules and Regulations]
[Pages 62959-62961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30127]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No. 950427117-8275-04; I.D. No. 100598B]
RIN 0648-AH97


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Temporary rule; request for comments.

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SUMMARY: NMFS notifies fishermen that it has extended the authorization 
for shrimp trawlers to use limited tow times in the inshore waters of 
Alabama as an alternative to the otherwise required use of Turtle 
Excluder Devices (TEDs) through November 30, 1998. Without this 
extension, the authorization would have expired November 6, 1998. NMFS 
has been notified by the Director of the Marine Resources Division of 
the Alabama Department of Conservation and Natural Resources (Alabama 
Director) that debris conditions in Alabama's inshore waters resulting 
from the passage of Hurricane Georges have persisted or even worsened. 
Because the use of TEDs may continue to be impracticable, NMFS has 
extended the authorization to use limited tow times. The intent of this 
extension is to provide adequate protection for threatened and 
endangered sea turtles when debris conditions may make TED-use 
impracticable.

DATES: This extension is effective from November 5, 1998 through 
November 30, 1998. Comments on this notification are requested, and 
must be received by December 7, 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.


[[Page 62960]]



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 Alabama Director stated in a September 30, 1998, 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.
    As a result of the special environmental conditions that may have 
made trawling with TED-equipped nets impracticable, the Assistant 
Administrator issued an emergency notification to authorize the use of 
restricted tow times as an alternative to the use of TEDs in the 
inshore waters of Alabama (63 FR 55053, October 14, 1998). That 
notification was effective from October 7, 1998 through November 5, 
1998.
    The Alabama Director recently informed the NMFS Southeast Regional 
Administrator in a November 3, 1998 letter that debris conditions in 
Mississippi Sound have been worsening as debris has been flushed out of 
Mobile Bay and into Mississippi Sound. Shrimpers continue to collect 
large amounts of debris, but many areas remain untrawlable. The Alabama 
Director reports that shrimp trawlers are generally not able to work 
closer than one-half mile from shore due to the large amounts of 
nearshore debris. He requested that the authorization to use limited 
tow times be extended to November 30, 1998, to allow additional time to 
remove the debris.

Special Environmental Conditions

    The Assistant Administrator finds that special environmental 
conditions following Hurricane Georges have persisted in Alabama 
inshore waters and may make trawling with TED-equipped nets 
impracticable. Therefore, the Assistant Administrator, by this notice, 
extends the authorization to use 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, Alabama's enforcement officers have assisted 
with the enforcement of the restricted tow times. In his November 3, 
1998, letter, the Alabama Director reported that shrimpers have given 
the Alabama enforcement officers excellent cooperation in following the 
tow time limits. He stated that Alabama enforcement officers will 
continue to monitor the area for the duration of this exemption 
extension. Ensuring compliance with tow time restrictions is critical 
to effective sea turtle protection, and the Alabama Director's 
commitment 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 notification 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

[[Page 62961]]

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 Alabama (not subject to 
special requirements effective in the Gulf Shrimp Fishery-Sea Turtle 
Conservation area). This notice extends, through November 30, 1998, the 
authorization to use restricted tow times in the inshore waters of 
Alabama as an alternative to the otherwise required use of TEDs. This 
notice 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 notification 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, through November 
30, 1998, may opt to comply with the sea turtle conservation 
regulations by using restricted tow times. If they do so, their tow 
times must not exceed 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 this 
authorization through publication of a notice in the Federal Register, 
if the Assistant Administrator determines that the alternative 
authorized 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. If necessary, the Assistant Administrator could modify the 
affected area or impose any necessary additional or more stringent 
measures, including more restrictive tow times or synchronized tow 
times. The Assistant Administrator may also terminate this 
authorization at any time for these same reasons, or if compliance 
cannot be monitored effectively, or if conditions do not make trawling 
with TEDs impracticable. This authorization will expire automatically 
at midnight on December 1, 1998, unless it is 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 Assistant Administrator 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 5 U.S.C. 553(b)(B), the Assistant Administrator finds 
that there is good cause to waive prior notice and opportunity to 
comment on this extension. It would be contrary to the public interest 
to provide prior notice and opportunity for comment because providing 
notice and comment would prevent the agency from providing relief 
within the necessary timeframe. The Assistant Administrator finds that 
an unusually large amount of debris exists in the aftermath of 
Hurricane Georges, has created a special environmental conditions that 
may make trawling with TED-equipped nets impracticable and that the use 
of limited tow times for the described area and time instead of TEDs 
would adequately protect threatened and endangered sea turtles. Notice 
and comment are contrary to the public interest in this instance
    Because this action relieves a restriction, under 5 U.S.C. 
553(d)(1) it is not subject to a delay in effective date.
    As prior notice and an opportunity for public comment are not 
required to be provided for this notification by 5 U.S.C. 553, or by 
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 requiring TED use in shrimp trawls and creating 
the regulatory framework for the issuance of notices such as this (57 
FR 57348, December 4, 1992). Copies of the EA are available (see 
ADDRESSES).

    Dated: November 5, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-30127 Filed 11-5-98; 2:36 pm]
BILLING CODE 3510-22-F