[Federal Register Volume 64, Number 205 (Monday, October 25, 1999)]
[Rules and Regulations]
[Pages 57397-57399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27692]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No.950427117-9278-11;I.D. 100899A]
RIN 0648-AN30
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 by shrimp trawlers as an alternative to the use of Turtle
Excluder Devices (TEDs) in inshore waters of Matagorda Bay, Texas, east
of the line running from the Matagorda Jetties, along the Matagorda
Ship Channel, to Matagorda Ship Channel Mile Marker 54 (Lat.
28 deg.33'38N, Long.96 deg.30'50W) and thence to
Sand Point (Lat. 28 deg.34'08N, Long.
96 deg.29'29W), including Carancahua and Tres Palacios Bays.
DATES: This action is effective from October 19, 1999 through November
18, 1999. Comments on this action are requested, and must be received
by November 18, 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 (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
The Director of the Division of Coastal Fisheries, TPWD, stated in
a September 22 letter to the NMFS Southeast Regional Administrator that
the shrimp fishery in Matagorda Bay has been experiencing serious
problems since early to mid-August caused by an unusual infestation of
the bryozoan, Bugula sp. TPWD has received complaints from shrimp
fishermen about unusually dense concentrations of what the fishermen
called sauerkraut weed (later identified as a bryozoan, Bugula sp.)
being caught in shrimp trawls and clogging their TEDs. TPWD has also
observed this phenomenon in sample trawls made aboard cooperating
shrimp vessels, and supplied NMFS with photographic documentation of
the problem.
Drought conditions have produced salinities exceeding 30 parts per
thousand in Matagorda Bay. Elevated salinities and water temperatures
are believed to be responsible for the extraordinarily high
concentrations of the bryozoan, Bugula sp. The dense, filamentous
bryozoan becomes lodged in the TEDs after relatively short periods of
towing, rendering the TEDs ineffective in expelling sea turtles as well
as negatively impacting fishermen's catches.
The TPWD letter requested that NMFS use its authority to allow the
use of limited tow times as an alternative to the use of TEDs in
Matagorda Bay, bounded on the west by a line running from the Matagorda
Jetties north along the Matagorda Ship Channel to Mile Marker 54 and
east to Sand Point. Essentially, most of Matagorda Bay, excluding
Lavaca Bay and the western edge of Matagorda Bay proper, is included in
the exemption area requested by TPWD. According to TPWD personnel, the
problematic concentrations of Bugula sp. are difficult to pinpoint or
chart precisely, due to tidal and wind action which continuously moves
and shifts the bryozoans from area to area. A NMFS gear specialist,
working with Matagorda Bay shrimpers in early October, confirmed the
severity and wide distribution of the bryozoan clogging problem. TPWD
has asked NMFS to authorize the use of limited tow times for most of
Matagorda Bay for a 30-day period.
NMFS and the Texas Parks and Wildlife Department (TPWD) will
monitor the situation to ensure there is adequate protection for sea
turtles in this area and to determine whether bryozoan concentrations
continue to make TED use impracticable. The intent of this action is to
relieve the economic hardship on Matagorda Bay shrimpers while ensuring
adequate protection of threatened and endangered sea turtles.
Special Environmental Conditions
The AA finds that the impacts of the current drought conditions in
southern Texas on Matagorda Bay have created special environmental
conditions that may make trawling with TED-equipped nets impracticable.
Therefore, the AA issues this notification to authorize the use of
restricted tow times as an alternative to the use of TEDs in inshore
waters of Matagorda Bay, Texas, east of the line running from the
Matagorda Jetties, along the Matagorda Ship Channel, to Matagorda Ship
Channel
[[Page 57398]]
Mile Marker 54 (Lat. 28 deg.33'38N,
Long.96 deg.30'50W) and thence to Sand Point (Lat.
28 deg.34'08N, Long. 96 deg.29'29W), including
Carancahua and Tres Palacios Bays. TPWD is continuing to monitor the
situation and will cooperate with NMFS in determining the ongoing
extent of the bryozoan problem in Matagorda Bay. Moreover, the TPWD
Director of Coastal Fisheries has stated that TPWD' game wardens would
enforce the restricted tow times and commit additional effort to the
task. Ensuring compliance with tow time restrictions is critical to
effective sea turtle protection, and the commitment from the TPWD
Director of Coastal Fisheries 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 Matagorda Bay, Texas, to
continue to use TEDs if possible, even though they are authorized under
this action 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 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 observed large amounts of
Bugula sp. in Matagorda Bay and noticed extremely heavy concentrations
of cannonball jellyfish. Matagorda Bay shrimpers were generally using
TEDs with a narrow bar spacing to eliminate these jellyfish. If
fishermen remove their TEDs, they will have to contend with extremely
heavy catches of cannonball jellyfish that will force them to use very
short tows. NMFS intends to continuing working with local shrimpers to
find a technical TED configuration that will exclude jellyfish while
minimizing clogging from Bugula.
While working on a specific solution for this situation, NMFS' gear
experts have provided several general 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 the use of
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. Even lower angles may be
necessary to exclude the bulky bryozoan. 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 these recommendations represent legal configurations of TEDs
for shrimpers fishing in inshore waters of Matagorda Bay, i.e., inshore
of the 72 COLREGS demarcation line, who are not subject to special
requirements effective in the Gulf Shrimp Fishery-Sea Turtle
Conservation Area. 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.
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 223.206(d)(2) who are operating in
inshore waters of Matagorda Bay, Texas, east of the line running from
the Matagorda Jetties, along the Matagorda Ship Channel, to Matagorda
Ship Channel Mile Marker 54 (Lat. 28 deg.33'38N,
Long.96 deg.30'50W) and thence to Sand Point (Lat.
28 deg.34'08N, Long. 96 deg.29'29W), including
Carancahua and Tres Palacios Bays. This area excludes Lavaca Bay and
the southwestern edge of Matagorda Bay. ``Inshore waters,'' as defined
at 50 CFR 222.102, 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
opt to comply with the sea turtle conservation regulations by using
restricted tow times. Through October 31, 1999, 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 18,
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.
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 insufficient
compliance with the authorized alternative. The AA 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 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 Texas inshore waters
(Matagorda Bay). This authorization will expire automatically on
November 18, 1999, unless it is explicitly extended through another
notification 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
[[Page 57399]]
and contrary to the public interest to provide prior notice and
opportunity for comment. The AA finds that unusually high densities of
the bryozoan (Bugula sp) are 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 effective date.
NMFS is making the rule effective October 19, 1999 through November 18,
1999.
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 19, 1999.
Andrew A. Rosenberg, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-27692 Filed 10-19-99; 4:59 pm]
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