[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Rules and Regulations]
[Pages 55860-55864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27012]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No.991007270-9270-01; I.D.090399E]
RIN 0648-AM89
Sea Turtle Conservation; Summer Flounder Trawling Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing this
interim final rule to amend the regulations that require summer
flounder trawlers to use Turtle Excluder Devices (TEDs) in waters off
Virginia and North Carolina to reduce the incidental capture of
endangered and threatened sea turtles. NMFS is reguiring that any
approved hard TED or
[[Page 55861]]
special TED installed in a summmer flounder trawl be installed in a TED
extension (a cylinder of webbing in which the TED is installed). NMFS
also is introducing specifications for the TED extensionand requiring
that the TED extension be constructed of webbing no larger than 3.5-
inch (8.9 cm) stretched mesh. This interim final rule is necessary to
prevent adverse impacts to turtles in the upcoming fall/winter summer
flounder trawling season.
DATES: This rule is effective November 15, 1999. Comments on this rule
are requested, and must be received by December 14, 1999.
ADDRESSES: Requests for a copy of the environmental assessment (EA)
prepared for this interim final rule, and 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. Requests for copies of the reports on 1999 TED testing should be
addressed to the Chief, Harvesting Systems Division, Mississippi
Laboratories, Southeast Fisheries Science Center, NMFS, P.O. Drawer
1207, Pascagoula, MS 39568-1207.
FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 727-570-5312.
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 breeding
populations of green turtles in Florida and on the Pacific coast of
Mexico, which are listed as endangered.
The incidental capture and mortality of these sea turtles during
summer flounder trawling has been documented along the Atlantic
seaboard. 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 223.205 and
223.206) require summer flounder trawlers operating in Atlantic waters
between Cape Charles, VA and the NC/SC border to have a NMFS-approved
TED installed in each net rigged for fishing, when sea turtles are
present. TEDs currently approved by NMFS for summer flounder trawling
include single-grid hard TEDs and hooped hard TEDs conforming to a
generic description, the Parker soft TED, and two types of special hard
TEDs.
Current TED Requirements
The use of TEDs has been required in the summer flounder trawl
fleet off North Carolina and southern Virginia since the fall of 1992
through a series of temporary or interim rules. NMFS published a final
rule on January 24, 1996 (61 FR 1846), that finalized the requirements
for flounder trawlers to use TEDs in the ``summer flounder fishery-sea
turtle protection area'' which includes the offshore waters between
37 deg.05' N. lat. (Cape Charles, VA) and the NC/SC border. That final
rule also provides for a seasonal exemption from the TED requirement
north of Oregon Inlet, NC, from January 15 through March 15, annually.
In addition, NMFS has tested and approved the use of a special hard
TED, the Flounder TED, that was specifically designed for the summer
flounder fishery (58 FR 54066, October 20, 1993). The Flounder TED is
probably the primary style used in the fishery. It incorporates large
holes in the bottom of the grid to allow the passage of large flatfish.
Although the Parker soft TED may be used in the summer flounder
fishery, its construction would likely cause a large loss of finfish
catch, and NMFS believes that it is not used in the flounder fishery.
The regulations for the technical specifications are at 50 CFR
223.207. These specifications are quite detailed with respect to the
final configuration of the TEDs themselves and any allowable
modifications, such as accelerator funnels and webbing flaps. The
specifications are intended to allow fisherman to choose all the other
performance and construction variables of their trawl gear to match
their fishing needs, consistent with any restrictions imposed for
fishery management purposes. The mesh size of the trawl webbing, in
particular, is usually chosen by the fisherman or regulated for fishery
management purposes, and NMFS has never specified the size of webbing
in which the TED must be installed. Shrimp trawlers generally install
TEDs in webbing no larger than 2 inches (5.1 cm). At the time TEDs were
first required in the summer flounder fishery, trawl mesh sizes of 3.5
or 4 inches (8.9 or 10.2 cm) were typical.
Amendment 10 to the Summer Flounder, Scup, and Black Sea Bass
Fishery Management Plan
Amendment 10 was prepared by the Mid-Atlantic Fishery Management
Council (the Council) and the Atlantic States Marine Fisheries
Commission, in consultation with the New England and South Atlantic
Fishery Management Councils. On December 3, 1997, NMFS published a
final rule (62 FR 63872) to implement a number of changes to the summer
flounder regulations, as proposed in Amendment 10. Previously, a
minimum mesh size requirement of 5.5-inch (14.0 cm) diamond mesh or 6-
inch (15.2 cm) square mesh had applied to the codend of the net. The
final rule extended this minimum mesh size requirement to the body and
extension(s) of the net, effective June 3, 1998. The reason for the
change in the mesh regulations was that the Council was concerned about
the ``choking off'' or the constriction of codends in trawl nets in the
summer flounder fishery, as a way of circumventing the codend mesh size
requirements. The Council was concerned that continued poor compliance
with mesh-size regulations would result in higher fishing mortality
rates and in a decreased rate of stock recovery for summer flounder.
Applying the minimum mesh-size throughout the codend, extension(s), and
body of the net was intended to eliminate this problem.
The TED Extension
Hard TEDs and special hard TEDs are almost always installed into a
short cylinder of webbing, called a TED extension, rather than
installed directly into the trawl. The TED extension can then be sewn
directly to the net, connecting the codend to the body, or any other
extension. Using TED extensions not only makes correct construction of
a TED easier, but in the summer flounder fishery, where TEDs are only
required in certain areas, it greatly simplifies the process of
installing and removing the TED as the boat moves into and out of the
summer flounder-sea turtle protection area.
When summer flounder trawlers were about to begin working in the
summer flounder-sea turtle protection area in the fall of 1998,
fishermen began reporting problems installing and using TEDs with the
newly required 5.5-inch (14.0-cm) mesh in the TED extension. They were
concerned that, when using a larger mesh, the TED would be attached to
fewer individual meshes and would therefore be weaker. In addition,
they reported difficulties installing the TEDs at an appropriate angle
to the water flow because of the longer individual meshes. Proper TED
angle is an important performance factor for the TED's ability to
exclude turtles and retain catch. Lastly, some captains were concerned
that the large mesh in the immediate vicinity of the TED might
[[Page 55862]]
present an entanglement risk to the turtles.
Summary of Observer Results
Through experimental testing of soft TEDs, which use panels of
relatively large mesh webbing, NMFS has repeatedly observed that sea
turtles can become entangled in trawl webbing as small as 4-inch (10.2-
cm), particularly when the turtles have to maneuver in a constricted
space or when the webbing is poorly installed and slack. As soon as
this potential problem with the large mesh TED extensions was noted,
NMFS placed observers aboard summer flounder trawlers. Between November
30, 1998 and February 19, 1999, 140 flounder hauls were observed on
boats fishing between the mouth of Chesapeake Bay and Cape Lookout, NC.
Thirteen turtles were observed captured in nets equipped with working
TEDs installed in large mesh webbing. Of those, the observers
specifically noted in five cases that the turtles had reached the TEDs,
but had become entangled in the TED extensions when their flippers
protruded through the 5.5 inch (14.0 cm) mesh. In four of the other
captures, the TED openings were blocked by large amounts of fish around
the TED, which was attributed by one captain to the new 5.5 inch (14.0
cm) mesh size. Excluding one turtle that was dead before it was caught,
0.033 turtles were caught per observed hour of trawling with TEDs
during the winter of 1998-1999 (NMFS, unpublished data). All of the
observed captures were north of Cape Hatteras. This capture rate, with
TEDs, is twice the capture rate of 0.0167 turtles per hour, without
TEDs, that was observed during the 1991-1992 season (Epperly et al.,
1995). Although other factors--primarily the warm ocean temperatures
last winter and their effect on turtle distribution--make direct
comparisons of these catch rates difficult, the data still indicated
that the effectiveness of the TEDs was likely seriously compromised by
the large mesh webbing.
Summary of TED Testing Results
NMFS decided to further investigate the risk of turtle capture in
large-mesh TED extensions during controlled TED testing. In June 1999,
NMFS gear researchers conducted a TED testing session in the clear
waters off Panama City, FL. Small loggerhead turtles were introduced
into a flounder trawl with 5.5 inch (14.0 cm) mesh webbing throughout,
including the TED extension. Four out of eight turtles became entangled
in the webbing immediately forward of the TED and could not escape
during the 5-minute time limit for the test. It was observed in
previous TED testing that the turtles are stopped by the bars of the
TED and must spend some amount of time exploring the extension before
they find the exit hole and escape. During this active exploration,
they can easily insert their head or flipper into a large opening but
can then become entangled. NMFS originally intended to try to quantify
any increased capture rate due to the large-mesh webbing more precisely
using more test turtles. It quickly became clear that the capture rate
was excessive, however, and the test was terminated. When the mesh size
of the TED extension was changed to 3.5 inches (8.9 cm), and no
entanglements occurred.
Provisions of this Interim Final Rule
After considering the comments of the Council, reports from
fishermen, observer data, and TED testing results, NMFS has determined
that the use of large-mesh webbing around a TED installed in a summer
flounder trawl can result in high rate of sea turtle entanglement and
capture. The use of smaller webbing in a TED extension can prevent
these captures. Fishermen have traditionally used a smaller mesh size
for TED extensions, which has the advantages of greater strength,
consistency of installation, and reduced clogging with bycatch.
Therefore, to avoid adverse impacts on sea turtles, NMFS is requiring
the use of TED extensions with hard TEDs and special hard TEDs
installed in summer flounder trawls. NMFS is also specifying the mesh
size for the TED extension. The TED extension must be constructed of
webbing no larger than 3.5 inch (8.9 cm) stretched mesh. The TED
extension must extend at least 24 inches (61.0 cm) but nor more than 36
inches (91.4 cm) forward of the leading edge of the TED and aft of the
trailing edge of the grid.
Relationship of This Rule to Other Regulations
This rule is intended to clarify explicitly the requirements
affecting the use of approved TEDs in summer flounder trawls.
Regulations affecting summer flounder trawl gear have been promulgated
by NMFS under two different legal authorities. Regulations pursuant to
the ESA are contained in 50 CFR parts 222 and 223, while regulations
pursuant to the Magnuson-Stevens Fishery Conservation Management Act
are contained in 50 CFR part 648. This interim final rule does not
change the mesh size requirements of 50 CFR 648.104(a)(1) for the body,
codend, or extension(s) - other than the TED extension - portions of a
summer flounder trawl net. Nor does this rule change any other aspect
of the regulations for TED construction and installation, specified in
50 CFR 223.207. In particular, webbing flaps used to cover the escape
openings of hard TEDs in summer flounder trawls must be constructed of
webbing no larger than 1-5/8 inch (4.1 cm) stretched mesh, as specified
at 50 CFR 223.207(d)(3).
Request for Comments
NMFS is requesting input and will accept written comments (see
ADDRESSES) on this interim final rule until December 14, 1999. Any
comments, suggestions, or additional data and information on this
action will be taken into consideration before a final determination is
made.
References
Epperly, S.A., J. Braun, A.J. Chester, F.A. Cross, J.V. Merriner,
and P.A. Tester. 1995. Winter distribution of sea turtles in the
vicinity of Cape Hatteras and their interactions with the summer
flounder trawl fishery. Bulletin of Marine Science, 56(2):547-568.
NMFS. Unpublished data. Mid-Atlantic coastal trawl fishery observer
data 98/99. Northeast Fisheries Science Center.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds that
good cause exists, under 5 U.S.C. 553(b)(B), to waive prior notice and
an opportunity for public comment on this rule. It is impracticable and
contrary to the public interest to provide prior notice and opportunity
for comment because the fall summer flounder fishery is expected to
begin off Virginia and North Carolina in November. Trawling with TEDs
installed in large-mesh webbing is known to capture turtles at a high
rate, and turtle abundances are probably highest in the fishing areas
in the earliest part of the season. Preventable deaths of endangered
and threatened species would occur unless TED extension mesh size
changes are made prior to the beginning of fall fishing effort.
Furthermore, this fishery is highly valuable and anticipated by the
participants, but is limited by quota allocations, and it frequently is
very short. Consequently, fishers may experience significant, avoidable
impacts if TED extension mesh sizes are changed during the course of
the fishery and fishers lose any of their limited fishing time coming
into compliance.
[[Page 55863]]
Fishers traditionally have to re-equip their nets with TEDs and make
any needed net repairs before the fall season begins. Prompt
implementation of this mesh size change will allow them to use their
rigging time to come into compliance. With sufficient opportunity to
make the changes, the mesh size changes in themselves pose a minimal
burden on the fishers. The cost of the required materials (new webbing)
is estimated at less than $20 per net, and many fishers can make the
needed changes themselves, estimated at about two person-hours per
boat. Finally, the use of small mesh webbing adjacent to the TED had
been a traditional gear configuration in this fishery prior to the June
3, 1998, requirement for the larger mesh size specified through the
Magnuson-Stevens Fishery Conservation Management Act in 50 CFR part
648. Thus, this interim final rule allows for the traditional practice.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., are inapplicable.
This rule does not contain a collection-of-information requirement
for purposes of the Paperwork Reduction Act.
The AA prepared an EA for this rule which concludes that this rule
will have no significant impact on the human environment. A copy of the
EA is available (see ADDRESSES).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: October 8, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 223 is amended
as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531 - 1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.
2. In Sec. 223.206, paragraph (d)(2)(iii)(A) is revised to read as
follows:
Sec. 223.206 Exceptions to prohibitions relating to sea turtles.
* * * * *
(d) * * *
(2) * * *
(iii) * * *
(A) TED requirement. (1) Any summer flounder trawler in the summer
flounder fishery-sea turtle protection area must have an approved TED
installed in each net that is rigged for fishing. A net is rigged for
fishing if it is in the water, or if it is shackled, tied, or otherwise
connected to any trawl door or board, or to any tow rope, cable, pole
or extension, either on board or attached in any manner to the summer
flounder trawler. Exceptions to the TED requirement for summer flounder
trawlers are provided in paragraph (d)(2)(iii)(B) of this section.
(2) Any approved hard TED or special hard TED installed in a summer
flounder trawl must be installed in a TED extension. The TED extension
is a cylindrical piece of webbing distinct from the main trawl's body,
wings, codend, and any other net extension(s). The TED extension must
be constructed of webbing no larger than 3.5 inch (8.9 cm) stretched
mesh. The TED extension must extend at least 24 inches (61.0 cm) but
not more than 36 inches (91.4 cm) forward of the leading edge of the
TED and aft of the trailing edge of the grid.
* * * * *
PART 223 [Amended]
3. Figure 6 to part 223 is added to read as follows:
BILLING CODE 3510-22-F
[[Page 55864]]
FIGURE 6 to Part 223--TED Extension in Summer Flounder Trawl
[GRAPHIC] [TIFF OMITTED] TR15OC99.001
[FR Doc. 99-27012 Filed 10-14-99; 8:45 am]
BILLING CODE 3510-22-C