[Federal Register Volume 66, Number 6 (Tuesday, January 9, 2001)]
[Rules and Regulations]
[Pages 1601-1603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-449]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No.980331080-0286-03; I.D. 092100A]
RIN 0648-AK66


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing this 
final rule to amend the regulations that require most shrimp trawlers 
to use Turtle Excluder Devices (TEDs) in the waters of the Atlantic and 
Gulf Areas of the United States, to reduce the incidental capture of 
endangered and threatened sea turtles during shrimp trawling. 
Specifically, NMFS is permanently approving the Parker soft TED for use 
in the waters of the Atlantic and Gulf Areas of the United States.

DATES: This final rule is effective January 9, 2001.

ADDRESSES: 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.

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 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 these species as a result of 
shrimp 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 223.206. Existing sea turtle conservation 
regulations (50 CFR 223.206 and 223.207) require most shrimp trawlers 
operating in the Gulf and Atlantic Areas, defined at 50 CFR 222.102, to 
have a NMFS-approved TED installed in each net rigged for fishing, 
year- round. TEDs currently approved by NMFS for shrimp trawling 
include single-grid hard TEDs and hooped hard TEDs conforming to a 
generic description, and two types of special hard TEDs. One type of 
soft TED-the Parker soft TED - was approved through October 13, 2000.
    NMFS approved the Parker TED for use in the waters of the Atlantic 
and Gulf Areas of the United States through an interim final rule (63 
FR 17948, April 13, 1998). The interim final rule was set to expire on 
October 13, 1999. At that time, NMFS determined that while there was 
sufficient information on the use and effectiveness of the Parker TED 
to continue to allow its use, there was insufficient information to 
permanently approve it. Also, industry expressed interest in the 
testing for approval of variations of the Parker soft TED design. 
Therefore, NMFS extended its approval for 1 year (64 FR 55434, October 
13, 1999), to allow time for the collection of additional data on the 
use and effectiveness of the Parker TED and to allow time for the 
shrimp industry to tests new soft TED designs. The extension expired on 
October 13, 2000.
    NMFS looked at many aspects of the Parker soft TED's performance 
over the past 30 months in both the Gulf of Mexico and the South 
Atlantic. Observers placed aboard commercial trawlers have documented 
sea turtle capture rates and finfish bycatch reduction. Intensive law 
enforcement efforts have ensured and documented compliance with the 
technical requirements for using the Parker TED. NMFS' gear specialists 
provided initial training to net shops and trawler fleets in the proper 
installation and use of the Parker TED. Follow-up assistance was also 
provided to fishermen and net makers as they adapted to using the new 
soft TED.

Observer Information

    NMFS' observer information generally shows that the rate of sea 
turtle capture in the Parker soft TED is comparable to hard TEDs. In 
1997-1998 in the southeastern Atlantic, observers documented three 
turtle captures in nets equipped with Parker TEDs. A total of 190 tows 
were observed, for 515 hours of trawling. The resulting turtle catch 
rate (``Catch per unit effort,'' or ``CPUE'') was 0.005 turtles per 100 
ft (30.5 m) headrope-hour. During the same time period, observers 
documented 1 turtle capture in nets equipped with hard TEDs. A total of 
62 tows were observed, for 161 hours of trawling, for a CPUE of 0.005 
turtles per 100 ft (30.5 m) headrope-hour. Observations in the Gulf of 
Mexico revealed a similar situation, although turtle catch rates in the 
Gulf are much lower overall. In 1998, no turtle captures were 
documented by observers in 133 tows using Parker TEDs, totaling 1,352 
hours of trawling. During the same time period, 2 turtle captures were 
documented by observers in nets equipped with hard TEDs. A total of 
2,081 tows were observed, for a total of 9,632 hours of trawling, 
representing a CPUE of 0.0001. All of these observed catch rates for 
shrimp trawlers using hard TEDs and Parker TEDs are small and it is 
therefore difficult to make definitive comparisons.
    Shrimp loss in the Parker TED was also a concern, therefore 
observer data was collected to test the Parker TED's reliability 
catching shrimp. Observer data from the Gulf and South Atlantic 
Fisheries Development Foundation and South Carolina Department of 
Natural Resources showed that nets equipped with a Parker TED 
experienced an 11.9 and 8.4 percent reduction in shrimp catch, 
respectively, compared to a hard TED-equipped net.

Observations by Law Enforcement

    The Protected Resources Enforcement Team (PRET) is a specially-
equipped team of NMFS law enforcement officers that focus enforcement 
attention on protected resources issues primarily TEDs- in the 
southeastern United States. In 1998, the PRET's first year in 
operation, the team logged 488 hours of at-sea patrols, boarding 261 
vessels as part of the TED compliance project. PRET boardings in 1998 
focused on nearshore shrimping grounds along the coasts of Texas, 
Louisiana, Georgia, and South Carolina. A large portion of the PRET's 
efforts in 1999 had been dedicated to patrols along the Texas coast, 
due to the continuing concern over the number of dead sea turtles that 
strand on Texas beaches. From March 16, 1999, through August 19, 1999, 
the PRET boarded 241 vessels along the Texas and Louisiana coasts.
    Enforcement efforts in the South Atlantic prior to October 1999 
also indicated that use of the Parker TED in the shrimp fleet was very 
low. The PRET only encountered one trawler

[[Page 1602]]

equipped with Parker TEDs during 53 boardings in 1998. NMFS gear 
specialists accompanied SCDNR enforcement officers on patrols of state 
waters during May 1999. Out of approximately 40 trawlers boarded at 
sea, two were using Parker soft TEDs. The U.S. Coast Guard Group in 
Charleston, SC reported encountering only a total of 4 boats with 
Parker TEDs over the prior 2 years. No violations were reported from 
these seven boardings.
    Since October 13, 1999, the PRET has concentrated their patrols in 
the Gulf of Mexico, where there was virtually no Parker soft TED use. 
The Parker TED is currently being used more in the Atlantic than in the 
Gulf, but even in the Atlantic the use is low (less than 50 boats). The 
Atlantic shrimping fleet is routinely inspected for TED compliance by 
the U.S. Coast Guard, state natural resources agency marine patrols, 
and NMFS law enforcement agents. No Parker TED violations have been 
documented in the Atlantic. While exact statistics on the numbers of 
inspections are not available, law enforcement agencies have found that 
the compliance rate on the boats that do use the Parker TED is good.

Parker Soft TED Tests

    During 1998 and 1999, industry representatives expressed an 
interest in the testing for approving of Parker TED variations. NMFS 
issued the required testing permits to industry but there have been no 
new developments in Parker TED design reported by industry. Therefore, 
NMFS has no new Parker TED variations to approve and is approving only 
the version of the Parker TED previously approved.

Observations of Gear Specialists

    The installation specifications for the Parker TED included an 
unprecedented level of technical detail compared to our previous soft 
TED regulations. The specifications included new requirements such as 
limiting installation to only certain styles of nets, exact mesh counts 
for fixing the location of the soft TED panel in the net, and detailed 
sewing instructions for attaching the panel to the net. As discussed in 
the April 13, 1998, interim final rule (63 FR 17948), NMFS believes 
that this level of technical specificity is required for the Parker TED 
to achieve a proper shape and exclude turtles effectively.
    NMFS provided intensive technical training to assist the shrimp 
industry to adopt these stringent technical requirements. During 1998 
and 1999, NMFS gear specialists held training sessions throughout the 
southeastern United States to improve TED technical operation and 
compliance. Technical assistance included the development of improved 
training and educational materials which were distributed through the 
Coast Guard, Sea Grant and through TED skill building workshops. 
Workshops included multimedia presentations and hands-on instruction 
which were highly effective in transferring technical information. TED 
operational manuals were distributed to assist fishermen in complying 
with TED regulations and assist in solving TED operational problems. In 
spring 1998, the training specifically focused on net shops around the 
entire Atlantic and Gulf coasts. Training sessions included a review of 
the Parker TED regulatory requirements and included hands-on training 
for installing Parker TEDs. Generally, net makers did not experience 
difficulty with the technical installation requirements for the Parker 
TED; however, NMFS' gear specialists provided follow-up visits to work 
with net makers requiring further assistance. During the Spring of 
1999, NMFS gear specialists visited net shops along the Texas coast to 
provide follow-up Parker TED training if necessary, but found no net 
shops still making Parker TEDs in Texas. In the Atlantic, NMFS' gear 
specialists confirmed that only one net shop in each state (Florida, 
Georgia, South Carolina, and North Carolina) was still installing 
Parker TEDs in 2000. Those shops reported no ongoing technical 
problems.
    NMFS' gear specialists held workshops to train Federal and state 
law enforcement personnel in the technical installation requirements 
for the Parker soft TED. NMFS' gear specialists also accompanied 
federal and state law enforcement personnel during at-sea and dockside 
boardings to provide hands-on technical training and to collect 
information on TED technical performance and compliance. This 
assistance was provided in North Carolina, South Carolina, Georgia, 
Florida, Alabama, Louisiana, and Texas.
    During the period May-July 1999, 3 NMFS gear specialists provided 
22 days of assistance to fishermen in North Carolina, South Carolina 
and Georgia in modifying their TEDs to comply with the leatherback 
turtle contingency plan (60 FR 47713, September 14, 1995). Although 
almost all fishermen used hard TEDs with a large escape opening to 
comply with the leatherback contingency plan, the gear specialists 
found 10 vessels in McClellanville, South Carolina, that were equipped 
with Parker TEDs, modified to use the leatherback escape opening. The 
fishermen reported little difficulty in successfully making the 
leatherback modification to their Parker TEDs.

Comments on the October 13, 1999, Extension of the Interim Final Rule 
(64 FR 55434)

    We received no comments on the October 13, 1999, extension of 
interim final rule that extended the approved use of the Parker soft 
TED. Comments received on the April 13, 1998 interim final rule (63 FR 
17948) were responded to in the October 13, 1999, extension to that 
interim rule (64 FR 55434).

Provisions of this Final Rule

    It was NMFS' intention to make its approval of the Parker TED 
permanent before the 1-year extension of its approval expired on 
October 13, 2000. However, because of an inadvertent administrative 
delay, NMFS was not able to do this before the approval expired. This 
final rule permanently approves the Parker TED for use in the waters of 
the Atlantic and Gulf Areas of the United States. This final rule makes 
no changes to the technical requirements for the Parker TED nor to the 
restrictions on the styles of net in which it may be installed.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Fisheries, NOAA, (AA) finds that there is good cause to waive providing 
prior notice and opportunity for public comment for this rule. It would 
be contrary to the public interest to delay this rule to provide prior 
notice and an opportunity for public comment because the delay would 
deprive fishermen from using a TED determined by NMFS as meeting the 
criteria for approval and whose approval had expired because of 
administrative delay. Without such delay, the previous approval could 
have been made permanent without a waiver, because providing prior 
notice and opportunity for public comment would not have been required. 
Finally providing an opportunity for public comment is unnecessary 
given the public's opportunity to comment on the original approval rule 
(63 FR 17948, April 13, 1998; 64 FR 55434, October 13, 1999).
    Because this final rule does not create any new regulatory burden, 
but instead relieves regulatory restrictions by allowing an additional 
option for complying with existing sea turtle conservation 
requirements, under 5

[[Page 1603]]

U.S.C. 553(d)(1) it is not subject to a 30-day delay in effective date.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    The AA prepared an Environmental Assessment/Regulatory Impact 
Review (EA/RIR) for the April 13, 1998, interim final rule (63 FR 
17948) that approved the use of the Parker TED through October 13, 
2000. The EA/RIR concluded that the rule will have no significant 
impact on the human environment. An EA/RIR, prepared for this final 
rule, concluded that the permanent use of the Parker soft TED will have 
no significant impact on the human environment. A copy of the EA/RIR is 
available (see ADDRESSES).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: January 2, 2001.
Penelope D. Dalton
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 - 1543; subpart B, Sec. 223.12 also 
issued under 16 U.S.C. 1361 et seq.

    2. Sec. 223.206, paragraph (d)(2)(iv)(B) the third sentence is 
revised to read as follows:


Sec. 223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d)* * *
    (2)* * *
    (iv)* * *
    (B)* * * Within such a closed area, fishing by any shrimp trawler 
required to have a NMFS-approved TED in each net rigged for fishing is 
prohibited, unless the TED installed is one described at Sec.  
223.207(a)(7)(ii)(B) or Sec.  223.207(c)(1)(iv)(B), and the owner or 
operator of the shrimp trawl has notified the Southeast Regional 
Administrator of his or her intention to fish in that area, in 
accordance with the procedure provided in paragraph (d)(5) of this 
section.* * *
* * * * *

    3. In Sec.  223.207, introductory text in paragraph(c), is revised 
to read as follows:


Sec. 223.207  Approved TEDs.

* * * * *
    (c) Soft TEDs. Soft TEDs are TEDs with deflector panels made from 
polypropylene or polyethylene netting. The following soft TEDs are 
approved TEDs:
* * * * *
[FR Doc. 01-449 Filed 1-8-01; 8:45 am]
BILLING CODE 3510-22-S