[Federal Register Volume 65, Number 66 (Wednesday, April 5, 2000)]
[Proposed Rules]
[Pages 17852-17854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8388]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 000320077-0077-01; I.D. 021500C]
RIN 0648-AN62


Endangered and Threatened Wildlife; Sea Turtle Conservation 
Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: NMFS issues this advance notice of proposed rulemaking to 
announce that it is considering technical changes to the requirements 
for turtle excluder devices (TEDs). NMFS proposes to modify the size of 
the TED escape opening, modify or decertify hooped hard TEDs and 
weedless TEDs, and change the requirements for the types of flotation 
devices allowed. NMFS is also considering modifications to the 
leatherback conservation zone regulations to provide better protection 
to leatherback turtles. The proposed measures are necessary to 
effectively protect all life stages and species of sea turtles.

DATES: Written comments (see ADDRESSES) will be accepted through May 5, 
2000.

ADDRESSES: Written comments on this action and request for copies of 
the 1999 TED opening evaluation report and the Leatherback Contingency 
Plan should be addressed to the Chief, Endangered Species Division, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910. Comments may also be sent via fax to 301-713-0376. 
Comments will not be accepted if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz (ph. 727-570-5312, 
fax 727-570-5517, e-mail [email protected]), or Barbara A. 
Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail 
[email protected]).

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. The loggerhead (Caretta caretta) and green 
turtles (Chelonia mydas) 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 take and mortality of sea turtles as a result of 
trawling activities has been documented in the Gulf of Mexico and along 
the Atlantic seaboard. Under the ESA and its implementing regulations, 
taking sea turtles is prohibited, with exceptions identified in 50 CFR 
Part 223. The incidental taking of turtles during shrimp or summer 
flounder trawling is excepted from the taking prohibition of section 9 
of the ESA if the conservation measures specified in the sea turtle 
conservation regulations (50 CFR Part 223) are followed. The 
regulations require most shrimp trawlers and summer flounder trawlers 
operating in the Southeastern United States. (Atlantic Area and Gulf 
Area) to have a NMFS-approved TED installed in each net that is rigged 
for fishing to provide for the escape of sea turtles. TEDs currently 
approved by NMFS include single-grid hard TEDs and hooped hard TEDs 
conforming to a generic description, two types of special hard TEDs 
(the flounder TED and the Jones TED), and one type of soft TED-the 
Parker soft TED.

[[Page 17853]]

    TEDs incorporate an escape opening, usually covered by a webbing 
flap, that allow sea turtles to escape from trawl nets. To be certified 
by NMFS, a TED design must be shown to be 97 percent effective in 
excluding sea turtles during experimental TED testing. TEDs must meet 
generic criteria based upon certain parameters of TED design, 
configuration, and installation, including height and width dimensions 
of the TED opening through which the turtles escape. In the Atlantic 
Area, these requirements are 35 inches (89 cm) in 
width and 12 inches (30) in height. In the Gulf 
Area the requirements are 32 inches (81 cm) in width and 
10 inches (25 cm) in height.

NMFS TED Opening Study

    The proportion of large, mature loggerheads and greens that are 
documented to strand on coastal beaches appear to be greater than the 
proportion that would be expected given the size distribution of sea 
turtles found in nearshore waters (Turtle Expert Working Group, in 
preparation). The disparity in size may be a result of the minimum size 
requirement for TED openings which only allows smaller turtles to 
escape. NMFS (Epperly and Teas, 1999; copies available, see ADDRESSES) 
conducted analyses of the size of TED openings in relation to the 
carapace width and body depth of stranded sea turtles and concluded 
that body depth, not carapace width, was a factor in the turtle's 
ability to exit the TED opening. Up to 47 percent of the body depths 
for stranded loggerheads and 7percent for green turtles exceeded the 
minimum height requirements for TED openings.

Leatherback Contingency Plan

    NMFS in cooperation with the U.S. Fish and Wildlife Service, South 
Carolina, Georgia, and Florida developed the Leatherback Contingency 
Plan (copies available, see ADDRESSES) to reduce leatherback mortality 
in shrimp trawls. Leatherback sea turtles are too large to be excluded 
through the standard size TED opening; when mature they can weigh 
between 600 and 1300 pounds (273 and 591 kg). The Leatherback 
Contingency Plan established procedures to identify when and where TEDs 
with large escape openings should be used to protect leatherbacks 
during their annual, spring migration along the Atlantic seaboard. In 
1995, NMFS established the leatherback conservation zone regulations 
(50 CFR 223.206) to implement the Leatherback Contingency Plan (60 FR 
25260, May 12, 1995; 60 FR 25663, May 12, 1995). The waters north of 
Cape Canaveral, Florida to the North Carolina-Virginia border were 
identified as the leatherback conservation zone. Within this zone, 
weekly aerial surveys for leatherback sightings are conducted from 
January 1 through June 30 of each year. If sightings, in replicate 
surveys, exceed 10 leatherback turtles per 50 nautical miles (nm)(92.6 
km) of trackline, NMFS will close, for a 2-week period, waters within 
1 deg.lat. of the trackline to shrimp trawlers unless they use a TED 
modified with the leatherback exit opening.
    In 1999, NMFS became concerned that the leatherback conservation 
zone regulation was not adequate to protect leatherbacks. In the spring 
of 1999, NMFS implemented the 2-week closures in areas of South 
Carolina and North Carolina (64 FR 25460, May 12, 1999; 64 FR 27206, 
May 19, 1999; 64 FR 28761, May 27, 1999; 64 FR 29805, June 3, 1999). In 
implementing the regulation, it was determined that replicate surveys 
were not always feasible due to weather, staff, or equipment 
constraints and that a sighting of less than 10 leatherbacks per 50 nm 
(92.6 km) in the replicate survey was not necessarily an indication 
that the turtles had moved away from the closed area, and that the 2-
week closure duration was insufficient to ensure protection while 
leatherbacks were present in the area.
    From October 1 through to December 15, 1999, 15 leatherbacks 
stranded in Nassau through Brevard counties on the east coast of 
Florida. Since these strandings occurred outside of the seasonal 
provisions specified in the leatherback conservation zone regulation, 
NMFS issued an emergency 30-day rule requiring shrimp trawlers to use 
the leatherback TED modification (64 FR 69416, December 13, 1999). The 
30-day restriction was necessary because leatherbacks were expected to 
be present in the area through that period. The leatherback 
conservation zone regulation is also limited to only a portion of the 
Atlantic coast. From 1986 through 1999 an average of 9 leatherbacks per 
year have been found stranded in the western Gulf with a high of 21 
leatherbacks in 1999. Leatherbacks are also documented to strand in the 
eastern Gulf with an average of 5 per year from 1986 through 1999, with 
a high of 19 in 1989.
    In summary, the leatherback conservation zone regulation may not 
adequately address leatherback mortality in shrimp trawls for the 
following reasons: The aerial surveys are limited to the Spring and do 
not cover the Fall when leatherbacks are known to strand, the 
leatherback conservation zone does not encompass all areas where 
leatherbacks may be present, the ability to conduct the replicate 
surveys required in the regulation is constrained by weather, staff and 
equipment and may not adequately determine whether leatherbacks have 
moved from the survey area, and the 2-week closures may not encompass 
the time that leatherbacks are present in high numbers in certain 
areas. Therefore, NMFS would like comments on whether the leatherback 
conservation zone regulation should be modified based on the problems 
identified previously or eliminated by requiring the use of leatherback 
TED modifications with long flaps year-round or, at a minimum, along 
the Atlantic Area in the Spring and Fall, or in other specified areas 
or during other specified times of the year.

TED Opening Size Options

    NMFS is considering two options to modify TED openings. The first 
option would require the leatherback modification (the opening must 
have a 142-inch (361-cm) circumference with a corresponding 71-inch 
(180-cm) straight line stretched measurement) with a minimum 32-inch 
(81-cm) grid for all TEDs in all areas at all times. The advantages of 
this option are (1) decreased escape times for all turtles (this size 
opening will release leatherbacks and all large loggerhead and green 
turtles); (2) elimination of the leatherback conservation zone 
regulation which may not adequately protect leatherbacks; and (3) the 
leatherback TED modification would allow long flaps on bottom opening 
TEDs which may reduce shrimp loss and eliminate debris in the trawl. 
The disadvantages of this option are the 32-inch (81-cm) grid TED may 
not fit into small nets and small vessels may not be able to handle 
this size TED. Also, data on shrimp retention with the leatherback TED 
modification are lacking. NMFS intends to conduct tests on shrimp loss 
in the leatherback TED modification by early 2000.
    The second option would require the use of an opening that is 35-
inch (89-cm) wide by 16-inch (41-cm) high with a minimum 30-inch (76-
cm) grid in all areas at all times. The advantages of this option are 
(1) increased release of larger loggerhead turtles and small 
leatherbacks; and (2) based on reports from NMFS enforcement agents and 
gear specialists, many fisherman already use this size opening or 
larger. The disadvantages are (1) this size opening will not release 
most leatherback turtles; and (2) use of this opening will require the 
continued use and modification of

[[Page 17854]]

the leatherback conservation zone regulation.

Other TED Modifications (Hooped Hard TED, Weedless TED, Flotation 
Devices)

    Information from enforcement personnel and recent net shop surveys 
conducted by NMFS gear specialists have shown little or no use of the 
hooped hard TED. Enforcement personnel also report confusion with the 
differing regulatory requirements for escape openings for single grid 
and hooped hard TEDs. The weedless TED (a TED with the deflector bars 
not attached to the bottom to the grid frame) has been documented by 
NMFS enforcement with bent bars and spacing more than 4 inches (10-cm) 
apart. The bars of the weedless TED may bend during commercial use due 
to poor construction or inherent weakness in the design. NMFS TED 
testing in 1996 showed that weedless TEDs with the bars bent inward 
(toward the codend of the trawl) caught 100 percent of the turtles 
introduced into the trawl net. NMFS is considering either eliminating 
the weedless TED or requiring reinforcement of the bars. NMFS is 
soliciting public comment on these options.
    NMFS enforcement has documented improper or inoperable flotation 
which will cause the TED to drag on the bottom resulting in damage and 
improper function. Flotation devices such as spongex do not perform 
well on deep-water offshore trawls because they collapse and lose 
buoyancy. NMFS is seeking public comment on whether different 
flotation, such as aluminum or hard plastic should be required in deep 
water areas where traditional spongex floats are ineffective.

Conclusion

    NMFS is seeking advanced public input on potential changes to the 
TED regulations. NMFS wants to improve the performance of TEDs to 
protect large turtles, streamline and simplify the regulations, and 
improve the ability to enforce such regulations. The options NMFS is 
currently considering are:
    Requiring the leatherback opening and long flap with a minimum 32-
inch (81-cm) grid in all areas; or
    Requiring a 35-inch (89-cm) by 16-inch (41-cm) opening with a 
minimum 30-inch (76-cm) grid in all areas;
    Modifying or decertifying hooped hard TEDs and weedless TEDs;
    Changing the requirements for the types of flotation devices 
allowed;
    Modifying or eliminating the leatherback conservation zone 
regulation to provide better protection to leatherback turtles.

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701.

    Dated: March 31, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-8388 Filed 4-4-00; 8:45 am]
BILLING CODE 3510-22-F