[Federal Register Volume 67, Number 104 (Thursday, May 30, 2002)]
[Rules and Regulations]
[Pages 37723-37725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13564]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 020523129-2129-01; I.D. No.052202A]
RIN 0648-AQ06


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, additional restrictions 
on shrimp trawlers in offshore Atlantic waters west of 77 57.5' W. 
longitude (approximately Cape Fear, NC) and north of 30 N. latitude 
(just north of St. Augustine, FL). Shrimp fishermen operating in this 
area are required to use turtle excluder devices (TEDs) with escape 
openings modified to exclude leatherback turtles and are prohibited 
from fishing at night between 1 hour after sunset and 1 hour before 
sunrise. NMFS is taking this action because we have determined that 
higher than normal shrimping effort, particularly long tows conducted 
at night, and the use of less efficient TEDs by some shrimpers are the 
causes of extraordinarily high mortality and strandings of sea turtles 
that are listed as endangered or threatened. This action is necessary 
to reduce mortality of listed sea turtles incidentally captured in 
shrimp trawls.

DATES: This action is effective from May 24, 2002 through June 24, 
2002. Comments on this action are requested, and must be received by 
June 24, 2002.

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: Bob Hoffman, (727) 570-5312, or 
Barbara A.

[[Page 37724]]

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 nesting 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 use of TEDs reduces mortality of loggerhead, green, Kemp's ridley, 
and hawksbill sea turtles. Because leatherback turtles are larger than 
the escape openings of most NMFS-approved TEDs, use of these TEDs is 
not an effective means of protecting leatherback turtles.
    Through a final rule (60 FR 47713, September 14, 1995), NMFS 
established regulations to provide protection for leatherback turtles 
when they occur in locally high densities during their annual, spring 
northward migration along the Atlantic seaboard (``the Leatherback 
Contingency Plan''). Within the Leatherback Conservation Zone, NMFS may 
close an area for 2 weeks when leatherback sightings exceed 10 animals 
per 50 nm (92.6 km) during repeated aerial surveys pursuant to [sect] 
223.206(d)(2)(iv)(A) through (C).
    NMFS has recently proposed amending the sea turtle conservation 
regulations to provide more comprehensive protection to all sizes and 
species of sea turtles from trawling (66 FR 50148, October 2, 2001). A 
major element of the proposed amendment is the use of larger escape 
openings on TEDs. Recent data have shown that the current regulatory 
minimum opening sizes of TEDs are not sufficient to allow large green 
and loggerhead turtles to escape. In addition, the Leatherback 
Contingency Plan which was developed to ensure that larger openings 
would be deployed when necessary to protect leatherbacks has been 
insufficient because the plan is limited to a geographic area that does 
not always encompass areas where the larger opening is needed. 
Implementation of the 2 week actions specified in the plan also often 
lag behind the time when they are most needed.
    The sea turtle conservation 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)).

Recent Events

    NMFS has been notified by the Georgia Department of Natural 
Resources (GADNR) that extraordinarily high numbers of threatened and 
endangered sea turtles have stranded, especially off southern Georgia. 
From May 5, 2002, through May 19, 2002, a total of 89 dead sea turtles 
have washed ashore along the Georgia coast (shrimp zones 30 and 31). Of 
these, 66 are loggerheads, 10 are Kemp's ridleys, 3 are leatherbacks, 
and 10 have not been identified to species. By comparison, the 12-year 
average of stranded sea turtles in Georgia for this 2-week period is 
18, so the 89 strandings are 5 times more than normal. Considering that 
strandings are only a minimum estimate of actual mortality, these 
strandings represent a serious impact to the recovery and survival of 
the local sea turtle populations.
    Information from GADNR and NOAA enforcement indicates that there is 
a high level of shrimp effort off Georgia, which is typical for this 
time of year. Georgia state waters are closed to shrimping, so the 
fishery is currently operating only in Federal waters, targeting high-
value, large white shrimp. These sources also indicate that the 
behavior of the fishery is somewhat different than in previous years. 
There are a large number of very large, powerful shrimp vessels from 
Gulf states (estimated at 25-30 boats) that are participating in the 
fishery. These boats are generally capable of fishing more, larger 
trawls at higher speeds than the local boats. Although white shrimp are 
generally only caught during the day, these large vessels are fishing 
24-hours-a-day and using long tow times (up to 12 hours in some cases) 
to maximize effort given the distance from their local ports. Local 
fishermen fish mostly in the day to target white shrimp using tow times 
of 2 to 4 hours. The 24-hour fishing, in conjunction with long tow 
times, represents a significant increase in effort in this area. An 
aerial survey to monitor shrimping effort on May 21 found that most of 
the large trawlers were concentrated in the southern part of the state, 
in the area of highest strandings.
    This spring has seen a very high abundance of leatherback turtles 
migrating close to the Atlantic coast in Florida, Georgia, South 
Carolina, and North Carolina. Under the Leatherback Contingency Plan, a 
14-day requirement to use leatherback-excluding TEDs was implemented 
for Zone 31 (north and central Georgia) through May 3. Weather and 
logistical problems have prevented effective aerial surveys since then, 
and the requirement to use the larger-opening TEDs has lapsed. GADNR 
estimates that up to 70 percent of the local fishermen are using 
leatherback-excluding TEDs, which are also effective at releasing large 
green and loggerhead turtles. The large, Gulf vessels have been fishing 
south of Zone 31 or arrived after May 3, and NMFS believes that most 
are not using TEDs with large openings.
    NMFS believes that the increased shrimping effort, particularly the 
switch to nighttime fishing and very long tow-times, in conjunction 
with the use of TEDs with smaller escape openings is responsible for 
the sharp increase in turtle mortality and strandings along the Georgia 
coast.

Analysis of Other Factors

    NMFS has analyzed other factors that might have contributed to the 
turtle strandings, including environmental conditions. No possible 
causes other than shrimp trawling have been identified. A single vessel 
fishing for sharks using drift gillnets a fishing method that is known 
to capture and kill sea turtles has been operating in Federal waters in 
the Florida-Georgia border area in the past month. A NMFS observer has 
been aboard that vessel for every trip since April 29 and no sea turtle 
interactions have been observed. There is no evidence of a red tide or

[[Page 37725]]

other harmful plankton bloom event or any major disease factor. The 
condition of the stranded turtles has indicated that they were 
generally healthy and actively foraging prior to their deaths, which is 
consistent with strandings resulting from 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 sea turtle mortality in the area, including other 
fisheries and environmental factors.

Restrictions on Fishing for 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. Therefore, the Assistant Administrator 
for Fisheries, NOAA (AA) issues this determination that further takings 
of threatened and endangered sea turtles in Atlantic Ocean waters off 
the southeast coast of the U.S. by shrimp trawlers using TEDs with 
small escape openings and shrimping during nighttime hours are 
unauthorized because such takes may be likely to jeopardize the 
continued existence of the sea turtle populations. The AA, thus, 
imposes this additional restriction to shrimp trawling activities to 
conserve threatened and endangered sea turtles. The AA has determined 
that conservation measures are necessary in an area larger than the 
current hot-spot of strandings to prevent fishing with practices that 
are harmful to sea turtles from simply relocating to other areas in the 
South Atlantic. Additionally, the use of large, leatherback size TED 
openings will allow for easier escape for all turtle species, 
decreasing stress and mortality to the turtles. Specifically, the AA 
requires shrimp trawlers, who are required to use TEDs, fishing in 
offshore Atlantic waters west of 77 57.5' W. longitude (approximately 
Cape Fear, NC) and north of 30 N. latitude (just north of St. 
Augustine, FL) to use TEDs with escape openings modified to exclude 
leatherback turtles (meeting the specifications at 50 CFR 
223.207(a)(7)(ii)(B)(1) or (2) or [sect] 223.207(c)(1)(iv)(B)) and 
prohibits shrimp trawling in the same area between 1 hour after sunset 
and 1 hour before sunrise. This restriction is effective from May 24, 
2002 through 11:59 p.m. (local time) June 24, 2002.
    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 information on shrimping restrictions.

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 Executive Order 12866.
    The AA has determined that this action is necessary to respond to 
an emergency situation to provide adequate protection for threatened 
and endangered 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 impracticable 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 threatened 
and endangered sea turtles. Notice and opportunity to comment was 
provided on the proposed rule (57 FR 18446, April 30, 1992) on the 
final rule establishing the procedures for taking this action. 
Furthermore, the AA finds good cause 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 threatened and endangered sea turtles. Accordingly, 
the AA is making the rule effective May 24, 2002 through June 24, 
2002.. 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.
    As required by 50 CFR 223.207(d)(4)(iv), NMFS has consulted with 
the marine fisheries officials in Florida, Georgia, South Carolina, and 
North Carolina on this emergency action. The required nighttime closure 
will complement existing nighttime closures of state waters in Georgia, 
South Carolina, and North Carolina.
    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 this action. Copies of the 
EA are available (see ADDRESSES).

    Dated: May 24, 2002.
John Oliver
Acting Assistant Administrator for Fisheries National Marine Fisheries 
Service.
[FR Doc. 02-13564 Filed 5-24-02; 3:04 pm]
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