[Federal Register Volume 65, Number 168 (Tuesday, August 29, 2000)]
[Rules and Regulations]
[Pages 52348-52350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21936]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 000822243-0243-01; I.D. 082100D]
RIN 0648-AO43


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 Galveston Bay, Texas, 
north of the Galveston jetties, east of the Galveston Island 
Interstate-45 Causeway, west of the ``Shellfish Line'' in East Bay (the 
line running from the entrance to Robinson Bayou to the tide gauge at 
Marsh Point), and, in Upper Galveston Bay, south of the overhead power 
lines crossing from near Evergreen Point to near Barbours Cut, and, in 
Trinity Bay, south of the line running from the entrance of Double 
Bayou to Umbrella Point. Dense concentrations of marine organisms have 
been documented in this area and are clogging TEDs, rendering the TEDs 
ineffective in expelling sea turtles from the shrimp nets as well as 
negatively impacting fishermen's catches.

DATES: This action is effective from August 23, 2000 through 11:59 p.m. 
local time on September 22, 2000. Comments on this action are 
requested, and must be received by September 22, 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.

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

[[Page 52349]]

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 Texas Parks and Wildlife Department (TPWD), informed the NMFS 
Southeast Regional Administrator on August 18, 2000, that the shrimp 
fishery in Galveston Bay has been experiencing serious problems since 
early August caused by an unusually high abundance of the bryozoan, 
Zoobotryon verticillatum. TPWD has observed heavy catches of the 
bryozoans in working shrimp vessels in Galveston Bay, and has supplied 
NMFS with photographic documentation of the problem. TPWD divers have 
also encountered the bryozoans in mats over 2 feet (61 cm) thick along 
the bottom of the bay.
    Drought conditions have produced salinities exceeding 30 parts per 
thousand in Galveston Bay. Elevated salinities and water temperatures 
are believed to be responsible for the extraordinarily high 
concentrations of bryozoans, Zoobotryon verticillatum. The dense, 
filamentous bryozoan fills shrimp nets and becomes lodged in the TEDs 
after relatively short periods of towing, rendering the TEDs 
ineffective in expelling sea turtles from the shrimp nets as well as 
negatively impacting fishermen's catches.
    The TPWD requested that NMFS use its authority to allow the use of 
limited tow times for a 30-day period as an alternative to the use of 
TEDs in Galveston Bay, north of the Galveston jetties, east of the 
Galveston Island Interstate-45 Causeway, west of the ``Shellfish Line'' 
in East Bay (the line running from the entrance to Robinson Bayou to 
the tide gauge at Marsh Point), and, in Upper Galveston Bay, south of 
the overhead power lines crossing from near Evergreen Point to near 
Barbours Cut, and, in Trinity Bay, south of the line running from the 
entrance of Double Bayou to Umbrella Point. Essentially, most of 
Galveston Bay, excluding the upper half of Trinity Bay and the eastern 
quarter of East Bay, is included in the exemption area requested by 
TPWD. According to local shrimpers, they were able to relocate to 
bryozoan-free areas initially, but, as the bryozoan concentration has 
spread, they are unable to find clear areas to trawl throughout 
virtually all of the bay. TPWD's investigation has confirmed the 
widespread nature of the problem. Under the current conditions, tows 
longer than 20-30 minutes cannot be made because of the large catches 
of bryozoans. Shrimpers report that shrimp can be found interspersed 
within the bryozoan mats. TEDs become quickly blocked with the 
organisms, making them non-functional for turtle escape and sometimes 
requiring shrimpers to empty the net from the mouth rather than the 
tail bag. This process is much slower and a sea turtle that might be 
incidentally caught with the bryozoan mats would be submerged for a 
longer period of time than if the net can be emptied from the tail bag.

Special Environmental Conditions

    The AA finds that the impacts of the current drought conditions in 
eastern Texas on Galveston 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 Galveston Bay. TPWD is continuing to monitor the situation 
and will cooperate with NMFS in determining the ongoing extent of the 
bryozoan occurrence in Galveston Bay. Moreover, TPWD 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. NMFS and 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.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in Galveston 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 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. If 
shrimpers intend primarily to harvest shrimp that are intermixed with 
the bryozoans, then they will most likely want to remove their TEDs, 
but they will have to contend with extremely heavy catches of the 
bryozoan that will force them to use very short tows. On the other 
hand, TEDs do help exclude certain types of debris and allow shrimpers 
to conduct longer tows.
    Shrimpers should consider legally modifying their TEDs to exclude 
the bryozoan mats to allow them to catch shrimp in clear areas of 
bottom. NMFS' gear experts recommend several modifications 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

[[Page 52350]]

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 Galveston Bay 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 temporary 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 Galveston Bay, Texas, north of the 
Galveston jetties, east of the Galveston Island Interstate-45 Causeway, 
west of the ``Shellfish Line'' in East Bay (the line running from the 
entrance to Robinson Bayou to the tide gauge at Marsh Point), and, in 
Upper Galveston Bay, south of the overhead power lines crossing from 
near Evergreen Point to near Barbours Cut, and, in Trinity Bay, south 
of a line running from the entrance of Double Bayou to Umbrella Point. 
`` 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. 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. This authorization is in 
effect until 11:59 p.m. local time on September 22, 2000.

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 temporary 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 
Galveston Bay. This authorization will expire automatically at 11:59 
p.m. on September 22, 2000, 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 Executive Order 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 
temporary rule. It is impracticable and contrary to the public interest 
to provide prior notice and opportunity for comment. The AA finds that 
unusually high densities of bryozoans (Zoobotryon verticillatum) 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 temporary rule 
relieves a restriction, it is not subject to a 30-day delay in 
effective date. NMFS is making the rule effective August 23, 2000 
through 11:59 p.m. local time on September 22, 2000.
    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: August 23, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries National Marine Fisheries 
Service.
[FR Doc. 00-21936 Filed 8-23-00; 4:56 pm]
Billing Code: 3510-22-S