[Federal Register Volume 65, Number 80 (Tuesday, April 25, 2000)]
[Rules and Regulations]
[Pages 24132-24134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10203]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 991207322-0107-03; I.D. 041300A]
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 Gulf of Mexico offshore waters bounded by the line 
originating at the tip of the south jetty at Port Mansfield Channel and 
terminating at the tip of the north jetty at Aransas Pass, Texas. 
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 April 19, 2000 through May 19, 
2000. Comments on this action are requested, and must be received at 
the appropriate address or fax number (see ADDRESSES) by May 19, 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. 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]).
    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:

[[Page 24133]]

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 may 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 up to 30 days and may be 
renewed for additional periods 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 500 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, 
ranging 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 Atlantic coastal waters of the southeast U.S. during their 
northern springtime migration, especially when high abundances of 
jellyfish occur nearshore. Less is known about the distribution of 
leatherbacks in the Gulf, though stranding records suggest a peak in 
nearshore abundance during the Spring. However, they can be found in 
U.S. waters throughout the year.
    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 Gulf 
of 32 inches (89 cm) horizontally and 10 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

    The Sea Turtle Salvage and Stranding Network has reported that high 
numbers of endangered leatherback sea turtles have stranded along the 
Texas coast in March and through April 8. A total of nine leatherbacks 
have stranded this Spring, with five of those stranding the week of 
April 2 on Padre Island. By comparison, the total annual number of 
leatherbacks stranding statewide has averaged 12 over the past 6 years. 
Eight of the nine animals have stranded dead, and one was rehabilitated 
and released after the NOAA Protected Resources Enforcement Team (PRET) 
rescued it from an illegal gillnet. All the leatherbacks have been 
adults, and one was confirmed through a necropsy as a pre-nesting 
female. Considering the rarity of leatherbacks--no documented nests 
have occurred in Texas since the 1930's (Hildebrand, 1995) and although 
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 Spring shrimp season in the Gulf of Mexico is traditionally 
characterized by lighter effort than the late Summer, but offshore 
trawling for brown shrimp and nearshore trawling for white shrimp are 
currently active. National Park Service employees on Padre Island have 
reported shrimp trawlers operating close to the beach in the area of 
the leatherback strandings. The PRET has recently been patrolling the 
south Texas coast and has encountered trawlers working close to the 
beach in relatively small numbers, but many of those have been large, 
slab trawlers with extensive fishing power. 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 are the likely causes of most 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 on and near the shrimping 
grounds. Leatherback turtles are likely to remain in the area for the 
next month, and shrimp trawling with TEDs with openings that are not 
large enough to release leatherbacks would be expected to continue to 
take leatherbacks unnecessarily.

Analysis of Other Factors

    One of the leatherback strandings on Padre Island resulted from 
entanglement in an illegally set gillnet. That turtle was rescued, 
rehabilitated, and released. Two days after that turtle was found, a 
Mexican gillnet boat, fishing illegally in U.S. waters, was apprehended 
by the Coast Guard. Also that week, a shrimp trawler in the vicinity of 
Port Mansfield Channel was found with all four of its TEDs sewn shut. 
Nevertheless, shrimping conducted in compliance with the TED 
regulations would also be expected to capture and drown leatherbacks 
due to the small minimum size for TED openings. Shrimping is also the 
main fishery in the area of the strandings. Illegal gillnetting and 
shrimping are possible sources of leatherback mortality. Ongoing law 
enforcement efforts by the Coast Guard, Texas Parks and Wildlife 
Department, and the NOAA PRET will continue to address these activities 
and the threat they pose to sea turtles. NMFS and stranding network 
personnel will continue to investigate factors other than shrimping 
that may contribute to leatherback sea turtle mortality in Texas, 
including other fisheries and environmental factors.

[[Page 24134]]

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 mortality seen in south Texas over 
the past weeks would violate the ITS and result in unauthorized 
takings. NMFS believes that a requirement for large TED opening size is 
the least restrictive means available to provide additional protection 
for leatherback turtles. Therefore, the Assistant Administrator for 
Fisheries, NOAA (AA) issues this determination that further takings of 
leatherback turtles in Gulf of Mexico waters off south Texas 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 Gulf of Mexico offshore waters seaward of the COLREGS 
demarcation line, bounded by the line originating at the tip of the 
south jetty at Port Mansfield Channel, Texas, thence due east to the 
point 26 deg.33.75' N. lat, 097 deg.05 W. long., thence slightly east 
of north to the point 27 deg.50' N. lat., 096 deg.50.7' W. long., 
thence due west and terminating at the tip of the north jetty at 
Aransas Pass, Texas, 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 April 19, 
2000 through 11:59 p.m. (local time) May 19, 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.

References Cited

    Hildebrand, H.H. 1995. A Historical Review of the Status of Sea 
Turtle Populations in the Western Gulf of Mexico. pp. 447-453 in 
Biology and Conservation of Sea Turtles, Revised Edition. K.A. 
Bjorndal, ed. Smithsonian Institution.

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 opportunity to 
comment were 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 April 19, 2000 through 
May 19, 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. The AA also prepared an EA for the current action. Copies 
of the EAs are available (see ADDRESSES).

    Dated: April 19, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries.
[FR Doc. 00-10203 Filed 4-19-00; 4:23 pm]
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