[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Rules and Regulations]
[Pages 66766-66768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32189]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No. 950427117-8292-05; I.D. 112398G]
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 renewed the authorization 
for shrimp trawlers to use limited tow times as an alternative to the 
otherwise required use of Turtle Excluder Devices (TEDs) in the inshore 
waters of Mississippi. Its previous authorization expired on November 
23, 1998. NMFS also has extended the same authorization in Alabama 
inshore waters which otherwise would expire December 1, 1998 (63 FR 
62959, November 10, 1998). The intent of this action is to provide 
adequate protection for threatened and endangered sea turtles when 
debris conditions may make TED-use impracticable.
DATES: The renewal and the extention are both effective from November 
30, 1998 through December 30, 1998. Comments on this notification are 
requested and must be received by December 30, 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, 727-570-5312, or 
Barbara A. Schroeder, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that inhabit 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, has 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 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 2 days and deposited as much as 36 inches 
(91 cm) of rain on some areas. The combination of heavy rains and 
hurricane storm surge produced severe flooding in south Mississippi, 
Alabama, and Louisiana rivers. This flooding deposited large amounts of 
debris in the inshore waters of those states.
    After the hurricane, NMFS was notified by the Director of the 
Marine Resources Division of the Alabama Department of Conservation and 
Natural Resources (Alabama Director), the Director of the Mississippi 
Department of Marine Resources (Mississippi Director), and the 
Secretary of the Louisiana Department of Wildlife and Fisheries that 
the debris conditions created great difficulty for shrimpers in inshore 
waters by fouling the trawl nets and clogging the TEDs. As a result of 
the special environmental conditions that may have made trawling with 
TED-equipped nets impracticable, the Assistant Administrator issued 
emergency notifications to authorize the use of restricted tow times as 
an alternative to the use of TEDs in the inshore waters of the three 
affected states. In Alabama inshore waters, the authorization was 
effective from October 7, 1998, through November 5, 1998 (63 FR 5505, 
October 14, 1998), and was then extended through November 30 (63 FR 
62959, November 10, 1998) after the Alabama Director informed NMFS that 
the debris conditions in Mississippi Sound had been worsening as debris 
had been flushed out of Mobile Bay and into Mississippi Sound. In 
Mississippi inshore waters and Louisiana inshore waters northeast of 
the Mississippi River, the use of limited tow times as an alternative 
to TEDs was authorized from October 23 through November 22, 1998 (63 FR 
57620, October 28, 1998).
    NMFS has received letters from the Mississippi Director and the 
Alabama Director, dated November 17 and November 19, 1998, 
respectively, stating that excessive debris conditions continue to 
exist. The letter from the Alabama Director requested the extension of 
the authorization to use limited tow times as an alternative to the use 
of TEDs in Alabama inshore waters and the letter from the Mississippi 
Director requested the renewal of the authorization to use limited tow 
times as an alternative to the use of TEDs in Mississippi inshore 
waters. The letter from the Alabama Director stated that many nearshore 
areas remain untrawlable despite shrimpers' efforts so far to remove 
the debris.

Special Environmental Conditions

    The Assistant Administrator finds that special environmental 
conditions following Hurricane Georges have persisted in Alabama and 
Mississippi inshore waters and may make trawling with TED-equipped nets 
impracticable. Therefore, the Assistant Administrator, by this notice, 
renews the authorization to use restricted tow times as an alternative 
to the use of TEDs in the inshore waters of Mississippi and extends the 
authorization to use restricted tow times as an alternative to

[[Page 66767]]

the use of TEDs in the inshore waters of Alabama. The states of 
Mississippi and Alabama are continuing to monitor the situation and are 
cooperating with NMFS in determining the ongoing extent of the debris 
problem in their inshore waters. Moreover, both states' enforcement 
officers have assisted with the enforcement of the restricted tow 
times. In his November 19 letter, the Alabama Director reported that 
compliance with the tow times has been excellent, according to the 
enforcement officers, and the attitude and cooperation of the fishermen 
have been very good. He stated that Alabama enforcement officers will 
continue to monitor the area for the duration of this exemption 
extension. In Mississippi, the Department of Wildlife, Fisheries, and 
Parks, Marine Enforcement Division reported to the Mississippi Director 
that compliance with the tow time limits has also been excellent. 
Ensuring compliance with tow time restrictions is critical to effective 
sea turtle protection, and the enforcement effort undertaken by the 
states and the compliance among the fishermen are important factors 
enabling NMFS to issue this authorization.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in Mississippi and 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 that 
may allow some fishermen to continue using TEDs without resorting to 
restricted tow times. Hard TEDs that are made of either solid rod or 
hollow pipe in a bottom-opening configuration and that incorporate a 
bent angle at the escape opening are recommended. 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. 
Finally, 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 Alabama (not subject to 
special requirements effective in the Gulf Shrimp Fishery-Sea Turtle 
Conservation area). This notice extends, through December 30, 1998, the 
authorization to use restricted tow times as an alternative to the 
otherwise required use of TEDs in the inshore waters of Alabama and 
renews the same authorization in Mississippi inshore waters, effective 
from November 30, 1998 through December 30, 1998. 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 Mississippi or Alabama, 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, 
through December 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 Mississippi and 
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 
Mississippi or 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 onboard 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 
December 31, 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 action. It would be contrary to the public interest to 
provide prior notice and opportunity for comment because doing so 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, creating 
a special

[[Page 66768]]

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 it is not subject to a 
delay in effective date under 5 U.S.C. 553(d)(1).
    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 27, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-32189 Filed 11-30-98; 3:45 pm]
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