[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]
BILLING CODE 3510-22-F