[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Rules and Regulations]
[Pages 55858-55860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26976]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 950427117-9271-10; I.D.100499D]
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 issues this temporary action to allow the use of limited 
tow times as an alternative to the requirement to use Turtle Excluder 
Devices (TEDs) by shrimp trawlers operating south and west of Cape 
Lookout, North Carolina, in the offshore waters out to 3 nautical miles 
(nm) (5.5 km). NMFS has been notified by the Director of the Division 
of Marine Fisheries of the North Carolina Department of Environmental 
and Natural Resources (NCDMF) that large amounts of debris in Atlantic 
Ocean waters along the southern portion of the State in the aftermath 
of the Hurricanes' Dennis and Floyd are causing 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 hurricanes continue to make TED use 
impracticable.

DATES: This action is effective from October 12, 1999, through November 
12, 1999. Comments on this action are requested, and must be received 
by November 12, 1999.

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 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

[[Page 55859]]

(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 
223.206. Existing sea turtle conservation regulations (50 CFR part 223, 
subpart B) 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 223.206 (d)(3)(ii) specify that the Assistant Administrator 
for Fisheries, NOAA (AA), may authorize compliance with tow time 
restrictions as an alternative to the TED requirement, if [she] 
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 
223.206(d)(3)(i) specify the maximum tow times that may be used when 
tow-time limits are 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. These tow time limits are designed to minimize the level of 
mortality of sea turtles that are captured by trawl nets not equipped 
with TEDs.

Recent Events

    At the end of August 1999, Hurricane Dennis moved slowly along the 
Outer Banks of North Carolina, hitting the coast with heavy winds and 
surf. Dennis lingered along the North Carolina coast and came ashore 
east of Beaufort, NC, on September 4. Less than 2 weeks later, 
Hurricane Floyd also struck North Carolina, making landfall at Cape 
Fear. Hurricane Floyd's most severe damage has resulted from the heavy 
rainfalls and record flooding in inland areas of North Carolina. The 
two hurricanes caused heavy discharge from flooding rivers which has 
deposited debris in the State's nearshore coastal waters. In an October 
1 letter to the NMFS Southeast Regional Administrator, the Director of 
the NCDMF stated:

    Since the passage of the storm, the [NCDMF] has received 
complaints from shrimp fishermen about debris, including old tires, 
being caught in shrimp trawls and clogging their TEDs. The [NCDMF] 
has also observed this debris in sample trawls made after the storm 
aboard our research vessel, the R/V CAROLINA COAST. This debris 
includes old tires which have broken loose from our artificial 
reefs, trees, pilings, shingles, and wood washed into the ocean by 
flood waters. The material becomes lodged in the TEDs rendering them 
ineffective in expelling sea turtles as well as negatively impacting 
fishermen's catches.

    The NCDMF requested that NMFS use its authority to allow the use of 
limited tow times as an alternative to TEDs in offshore waters out to 3 
nm (5.5 km) from Cape Lookout to the North Carolina/ South Carolina 
border.
    The effects of the flooding from Hurricane Floyd have been 
particularly severe in the eastern inland portions of North Carolina. 
The inshore shrimp fishing areas in Core, Pamlico, and Albemarle sounds 
that provide the majority of the State's shrimp catch have also likely 
been inundated with debris. At this time, however, those inshore areas 
are still experiencing considerable flooding and freshwater intrusion, 
and most of the shrimp are likely to have been washed out of the 
sounds. NMFS and the NCDMF will continue to monitor the situation in 
those inshore areas to determine the need for any additional action.

Special Environmental Conditions

    The AA finds that the impacts of Hurricanes Floyd and Dennis have 
created special environmental conditions that may make trawling with 
TED-equipped nets impracticable. Therefore, the AA issues this notice 
to authorize the use of restricted tow times as an alternative to the 
use of TEDs in the offshore waters of the territorial sea of the State 
of North Carolina from the North Carolina/South Carolina border to 
076 deg.32' W., the line of longitude through Cape Lookout. The NCDMF 
is continuing to monitor the situation and is cooperating with NMFS in 
determining the ongoing extent of the debris problem in North Carolina 
offshore waters. Moreover, the NCDMF Director has stated that the 
State's enforcement officers would enforce the restricted tow times. 
Ensuring compliance with tow time restrictions is critical to effective 
sea turtle protection, and the commitment from the NCDMF 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 North Carolina offshore waters 
to continue to use TEDs if possible, even though they are authorized, 
under this notice, to use restricted tow times. 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 
fishermen's concern, 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. To exclude debris, NMFS recommends hard TEDs made 
of either solid rod or of hollow pipe that incorporate a bent angle at 
the escape opening, in a bottom-opening configuration. 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 shortened by cutting it horizontally 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 above-listed recommendations represent legal 
configurations of TEDs for shrimpers in the offshore areas of North 
Carolina (not subject to special requirements effective in the Atlantic 
Shrimp Fishery-Sea Turtle Conservation Area). This notice authorizes 
the use of restricted tow times as an alternative to the required use 
of TEDs. This action 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.

[[Page 55860]]

Alternative to Required Use of TEDs

    The authorization provided by this temporary action applies to all 
shrimp trawlers that are operating in offshore waters of the 
territorial sea (within 3 nm (5.5 km)) of the State of North Carolina, 
from the North Carolina/South Carolina border to 076 deg.32' W., the 
line of longitude through Cape Lookout, in areas which the State has 
opened to shrimping and who would otherwise be required to use TEDs in 
accordance with the requirements of 50 CFR 223.206(d)(2). ``Offshore 
waters,'' as defined at 50 CFR 222.102, means the marine and tidal 
waters seaward 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, 1999 until November 12, 1999, 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 State Requirements

    The affected area for this exemption lies entirely within the state 
waters of North Carolina. Nothing in this notice should be considered 
to affect any State fishing requirement. The NCDMF Director may issue a 
proclamation specifying additional requirements for shrimp trawlers 
working under this exemption. Fishermen must comply with all applicable 
State requirements, including any proclamations by the NCDMF Director 
issued to help implement this authorization.

Additional Conditions

    NMFS expects that shrimp trawlers operating in North Carolina 
offshore 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 NCDMF Director, 
rather than simply dispose the debris at sea. Proper disposal of debris 
should help the restoration of the shrimping grounds in the wake of the 
hurricanes. 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 AA, 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 AA 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 AA 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 by 
insufficient compliance with the authorized alternative. The AA may 
also terminate this authorization for these same reasons or for the 
reasons that compliance cannot be monitored effectively, or that 
conditions do not make trawling with TEDs impracticable. The AA 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 North Carolina offshore waters. This authorization 
will expire automatically on November 12, 1999, 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 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 AA finds that there is good 
cause to waive prior notice and opportunity to comment on this rule. It 
is impracticable and contrary to the public interest to provide prior 
notice and opportunity for comment. The AA finds that an unusually 
large amount of debris exists in the aftermath of Hurricanes Dennis and 
Floyd, creating special environmental conditions that may make trawling 
with TED-equipped nets impracticable. The AA 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 time frame. The public was provided with notice 
and an opportunity to comment on 50 CFR 223.206(d)(3)(ii).
    Pursuant to 5 U.S.C. 553(d)(1), because this rule relieves a 
restriction, it is not subject to a 30-day delay in notice. NMFS is 
making the rule effective October 12, 1999, to ensure that North 
Carolina has adequate time to issue any necessary proclamations.
    Since prior notice and an opportunity for public comment are not 
required to be provided for this action 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 AA 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 notices such as 
this. Copies of the EA are available (see ADDRESSES).

    Dated: October 8, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-26976 Filed 10-12-99; 4:31 pm]
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