[Federal Register Volume 64, Number 238 (Monday, December 13, 1999)]
[Rules and Regulations]
[Pages 69416-69418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32154]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No.99120 7322-9322-01; I.D.120399A]
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 is imposing, for a 30-day period, an additional 
restriction on shrimp trawlers required to have a turtle excluder 
device (TED) installed in each net that is rigged for fishing, 
operating in Atlantic offshore waters out to 10 nautical miles 
(nm)(18.3 km) from the coast of Florida between 28 deg. N. latitude and 
the Georgia-Florida border. Shrimp vessels operating in this area must 
use a TED with an escape opening large enough to exclude leatherback 
turtles, as specified in the regulations. This action is necessary to 
reduce mortality of endangered leatherback sea turtles incidentally 
captured in shrimp trawls.

DATES: This action is effective from December 8, 1999 through January 
7, 2000. Comments on this action are requested, and must be received by 
January 7, 2000.
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. For assistance in modifying TED 
escape openings to exclude leatherback sea turtles, fishermen may 
contact gear specialists at the NMFS, Pascagoula, MS laboratory by 
phone (228)-762 4591 or by fax (228) 769-8699.

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 in the 
Atlantic Ocean. Under the Endangered Species Act (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 a mechanism to implement further 
restrictions of fishing activities, if necessary to avoid unauthorized 
takings of sea turtles that may be likely to jeopardize the continued 
existence of listed species or that would violate the terms and 
conditions of an incidental take statement or incidental take permit. 
Upon a determination that incidental takings of sea turtles during 
fishing activities are not authorized, additional restrictions may be 
imposed to conserve listed species and to avoid unauthorized takings. 
Restrictions may be effective for a period of up to 30 days and may be 
renewed for additional periods of up to 30 days each (50 CFR 
223.206(d)(4)).

Leatherback Sea Turtles

    Leatherback sea turtles are the largest species of sea turtle. They 
weigh between 600 and 1300 pounds (272 and 590 Kg) and have carapaces 5 
to 6 ft (1.5 to 1.8 m) in length. Leatherbacks are widely distributed 
and can range from the tropics to sub-Arctic waters during their 
feeding migrations. They nest in low numbers on U.S. beaches and are 
primarily seen in coastal waters of the southeast U.S. during their 
northern springtime migration, especially when high abundances of 
jellyfish occur nearshore. However, they can be found in U.S. waters 
throughout the year.

[[Page 69417]]

    Because of their size, leatherbacks are not likely to escape from 
trawls, even when equipped with approved TEDs. The sea turtle 
conservation regulations specify a minimum TED opening size in the 
Atlantic of 35 inches (89 cm) horizontally and 12 inches (30.5 cm) 
vertically. When the regulations requiring TEDs in shrimp trawls year-
round were adopted (57 FR 57348, December 4, 1992), NMFS recognized 
that the then-existing TEDs would not protect leatherbacks, and the 
biological opinion on the regulations concluded that leatherback 
mortality would remain a problem that must be addressed to avoid 
jeopardizing the recovery of this species. Consequently, the August 19, 
1992, biological opinion's incidental take statement included as a term 
and condition which specified that the episodic take of leatherback 
turtles by shrimp trawlers during periods of high jellyfish abundance 
must be eliminated. This could be accomplished by temporary area 
closures, by requiring an increase in size of TED openings to allow 
leatherbacks to escape at times when their abundance is high, by 
limiting tow times, or by implementing some other protective measure. 
In part, to address this problem, the 1992 sea turtle conservation 
regulations included the provisions of 50 CFR 223.206(d)(4), to provide 
``a mechanism to prevent sea turtle mortalities * * *when existing 
restrictions on the shrimp fishery are found to be ineffective (57 FR 
18453).''

Recent Events

    NMFS has been notified by the Florida Fish and Wildlife 
Conservation Commission that extraordinarily high numbers of endangered 
leatherback sea turtles stranded along northeast Florida beaches in 
November 1999. From October 28 to November 29, a total of 15 
leatherback turtles have washed ashore from Nassau through Brevard 
counties in shrimp zones 28, 29, and 30. By comparison, the total 
annual number of leatherbacks stranding statewide has averaged 23 over 
the past 10 years, and has averaged only 3 in zones 28-30 in November. 
Considering the rarity of leatherbacks--an average of only 45-50 
females nest in Florida each year--and the fact that strandings are 
only a minimum estimate of actual mortality, these strandings represent 
a serious impact to the recovery and survival of the local population.
    The late fall and early winter is traditionally a major shrimping 
season along northeast Florida, when shrimp leave the estuaries to the 
north and migrate southward along the coast as waters cool. Shrimp 
fishing along the coast is currently active. The Florida Marine Patrol 
has been responding to citizen complaints about shrimp trawlers fishing 
too near the beach or at night, in violation of state fishing 
requirements. The trawlers have been reported in the same areas as the 
leatherback strandings. The minimum size for TED openings specified in 
the sea turtle conservation regulations is not large enough to release 
leatherback turtles, and capture and drowning in shrimp trawls is the 
likely cause of the leatherback strandings. Even if shrimp trawling 
were not the cause of the strandings observed thus far, the high 
leatherback mortality level indicates that leatherbacks are present in 
unexpectedly high abundance on and near the shrimping grounds. Shrimp 
trawling with TEDs with openings that are not large enough to release 
leatherbacks would be expected to continue to unnecessarily take 
leatherbacks.

Analysis of Other Factors

    Examination of the strandings in northeast Florida does not 
indicate any significant sources of mortality other than shrimp 
trawling. The carcasses have primarily been coming ashore in the 
vicinity of areas where shrimping effort has been concentrated. NMFS 
and state personnel will continue to investigate factors other than 
shrimping that may contribute to leatherback sea turtle mortality in 
Florida, including other fisheries and environmental factors.

Restrictions on Fishing by Shrimp Trawlers

    Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental 
taking of sea turtles in 50 CFR 223.206(d) does not authorize 
incidental takings during fishing activities if the takings would 
violate the restrictions, terms or conditions of an ITS or incidental 
take permit, or may be likely to jeopardize the continued existence of 
a species listed under the ESA. The August 19, 1992, biological opinion 
includes a condition under the ITS that specifies that NMFS must 
eliminate the episodic take of leatherback turtles by shrimp trawlers 
through area closures, requirements for large TED opening sizes, 
limitations on tow times, or some other protective measure. Failure by 
NMFS to take action to address the significant and ongoing level of 
mortality seen in northeast Florida over the past month clearly would 
violate the ITS and result in unauthorized takings. Therefore, the 
Assistant Administrator for Fisheries, NOAA (AA) issues this 
determination that further takings of leatherback turtles in Atlantic 
Ocean waters off northeast Florida by shrimp trawlers using TEDs with 
small escape openings are unauthorized and imposes this additional 
restriction to shrimp trawling activities to conserve endangered 
leatherback sea turtles. Specifically, the AA closes all Atlantic 
offshore waters within 10 nm (18.5 km) seaward of the COLREGS 
demarcation line, bounded on the south by 28 deg. N. lat. and on the 
north by 30 deg.42'45.6'' N. lat. (the Georgia-Florida border), to 
fishing by shrimp trawlers required to have a TED installed in each net 
that is rigged for fishing, unless the TED installed has an escape 
opening large enough to exclude leatherback turtles, meeting the 
specifications at 50 CFR 223.207(a)(7)(ii)(B) or 223.207(c)(1)(iv)(B). 
These regulations specify modifications that can be made to either 
single-grid hard TEDs or Parker soft TEDs to allow leatherbacks to 
escape. This restriction is effective from December 8, 1999 through 
11:59 p.m. (local time) January 7, 2000.
    This restriction has been announced on the NOAA weather channel, in 
newspapers, and other media. Shrimp trawlers may also call (727)570-
5312 for updated area closure information.

Additional Conservation Measures

    The AA may withdraw or modify a determination concerning 
unauthorized takings or any restriction on shrimping activities if the 
AA determines that such action is warranted. Notification of any 
additional sea turtle conservation measures, including any extension of 
this 30-day action, will be published in the Federal Register pursuant 
to 50 CFR 223.206(d)(4).
    NMFS will continue to monitor sea turtle strandings to gauge the 
effectiveness of these conservation measures.

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 provide adequate protection for endangered 
leatherback 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 action. 
It would be contrary to the public interest to provide prior notice and 
opportunity for comment because providing notice and comment would 
prevent the agency from implementing this action in a timely manner to 
protect endangered leatherback sea turtles. Notice and

[[Page 69418]]

opportunity to comment was provided on the proposed rule (57 FR 18446, 
April 30, 1992) for the final rule establishing the procedures to take 
this action. Furthermore, the AA finds good cause also under 5 U.S.C. 
553(d)(3) not to delay the effective date of this rule for 30 days. 
Such delay would also prevent the agency from implementing this action 
in a timely manner to protect endangered leatherback sea turtles. 
Accordingly, the AA is making the rule effective December 8, 1999 
through January 7, 2000. Also as stated above, this restriction has 
been announced on the NOAA weather channel, in newspapers, and other 
media.
    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 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 notifications 
such as this. Copies of the EA are available (see ADDRESSES).

    Dated: December 8, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-32154 Filed 12-8-99; 2:22 pm]
BILLING CODE 3510-22-F