[Federal Register Volume 67, Number 216 (Thursday, November 7, 2002)]
[Rules and Regulations]
[Pages 67795-67798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 021030260-2260-01; I.D. 102502A]
RIN 0648-AQ52


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

[[Page 67796]]

alternative to the use of Turtle Excluder Devices (TEDs) in the waters 
off Mississippi in an area from the coastline of Mississippi at its 
intersection with the line of longitude 89[deg] 30' W., thence 
southward to its intersection with the line of latitude 30[deg] 10' N., 
thence eastward to the line of longitude 89[deg] 05.5' W. 
(approximately even with the southern tip of Cat Island), thence 
northward to the line of latitude 30[deg] 13.8' N. (approximately even 
with the western tip of Cat Island), thence westward to the line of 
longitude 89[deg] 10' W., thence northward to its intersection with the 
coastline of Mississippi, thence continuing along the coastline to the 
original point. This action would remain in effect for a period of 20 
days and is necessary to relieve the economic hardship on shrimpers 
while ensuring adequate protection of threatened and endangered sea 
turtles.

DATES: This action is effective from November 1, 2002 through November 
21, 2002. Comments on this action are requested, and must be received 
by November 21, 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. 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) turtles 
are listed as endangered. The 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 sea turtles as a result of 
trawling activities have been documented in the Gulf of Mexico and 
along the Atlantic Ocean seaboard. Under the ESA and its implementing 
regulations, taking sea turtles is prohibited, with exceptions 
identified in 50 CFR 223.206 and 50 CFR 224.104. The regulations 
require most shrimp trawlers and summer flounder trawlers operating in 
the southeastern United States (Atlantic Area, Gulf Area, and Summer 
flounder fishery-sea turtle protection area, all as defined in 50 CFR 
222.102) 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).
    The TEDs incorporate an escape opening, usually covered by a 
webbing flap, that allows sea turtles to escape from trawl nets. To be 
approved by NMFS, a TED design must be shown to be at least 97 percent 
effective in excluding sea turtles during experimental TED testing (50 
CFR 223.207(e)). The TED 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 currently 
[gteqt]35 inches ([gteqt]89 cm) in width and [gteqt]12 inches 
([gteqt]30 cm) in height. In the Gulf Area, the requirements are 
[gteqt]32 inches ([gteqt]81 cm) in width and [gteqt]10 inches 
([gteqt]25 cm) in height.
    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. For example, 
debris can clog a TED which renders the TED ineffective at catching 
shrimp as well as excluding turtles. 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 the AA 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

    On October 16, 2002, the NMFS Southeast Regional Administrator 
received a request from the Mississippi Director of Marine Resources to 
allow the use of tow times as an alternative to TEDs in Mississippi 
state waters because of excessive storm related debris on the fishing 
grounds. After an investigation, the Mississippi Department of Marine 
Resources (DMR) has determined that this debris is affecting the 
fishermen's ability to use TEDs effectively. As part of the request, 
the DMR sent photo documentation of the debris. Mississippi's Marine 
Patrol director has also sent NMFS a letter dated October 21, 2002, 
stating that the Mississippi Marine Patrol will enforce the tow time 
restrictions.
    NMFS gear technicians surveyed the western and central portion of 
Mississippi Sound on October 8 and 9, 2002. They focused their survey 
on areas where vessels were actively fishing in concentrated groups. 
Some areas that fishermen indicated were untrawlable were not able to 
be surveyed because no trawlers were working those areas. The survey 
found that there were larger than normal amounts of grass on the 
tickler chains of the trawls but no large debris was observed in any of 
the nets in any of the surveyed areas and most of the boats seemed to 
be satisfied with the shrimp catch, despite excessive grass. During a 
phone conversation between NMFS Southeast Regional Office Protected 
Resources staff and DMR staff, DMR staff indicated that their 
investigation showed that the majority of the problems and the 
complaints from fishermen were concentrated west of the Cat Island 
Channel which was not in the area surveyed by NMFS gear technicians. 
The boundaries for the use of tow times encompass the areas indicated 
by the DMR as having problems with excessive debris, and include the 
western extreme of Mississippi Sound and Cat Island Channel.
    The duration for this authorization will be set initially for 20 
days. Although regulations at 50 CFR 223.206 (d)(3)(v) allow such 
authorizations to be valid for up to 30 days, the levels of debris 
documented by DMR and NMFS are not extreme and several weeks have 
already passed since the storms. Therefore, NMFS believes that a 
shorter authorization will be sufficient.
    NMFS and the DMR Marine Patrol will monitor the situation to ensure 
there is adequate protection for sea turtles in this area and to 
determine whether debris in these areas continues to make TED use 
impracticable. The intent of this action is to relieve the economic 
hardship on shrimpers while ensuring adequate protection of threatened 
and endangered sea turtles.

[[Page 67797]]

Special Environmental Conditions And Alternative to Required Use of 
TEDs

    The AA finds that debris washed into portions of Mississippi sound 
from Tropical Storm Isidore and Hurricane Lili have created special 
environmental conditions that 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 
the waters off Mississippi in an area from the coastline of Mississippi 
at its intersection with the line of longitude 89[deg] 30' W., thence 
southward to its intersection with the line of latitude 30 10' N., 
thence eastward to the line of longitude 89[deg] 05.5' W. 
(approximately even with the southern tip of Cat Island), thence 
northward to the line of latitude 30[deg] 13.8' N. (approximately even 
with the western tip of Cat Island), thence westward to the line of 
longitude 89[deg] 10' W., thence northward to its intersection with the 
coastline of Mississippi, thence continuing along the coastline to the 
original point. This authorization will remain in effect for a period 
of 20 days. Instead of the required use of TEDs, shrimp trawlers may 
opt to comply with the sea turtle conservation regulations found at 50 
CFR 223.206(d)(3)(i) by using restricted tow times. Through October 31, 
2002, 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. Starting 
November 1, 2002, tow times must be limited to no more than 75 minutes 
measured from the time trawl doors enter the water until they are 
retrieved from the water.
    DMR Marine Patrol is continuing to monitor the situation and will 
cooperate with NMFS in determining the ongoing extent of the debris 
problem in this portion of Mississippi Sound. Moreover, the DMR 
Director of the Marine Patrol has stated that the DMR Marine Patrol 
will enforce the restricted tow times. Ensuring compliance with tow 
time restrictions is critical to effective sea turtle protection, and 
the commitment from the DMR Director of the Marine Patrol to enforce 
tow time restrictions is an important factor enabling NMFS to issue 
this authorization.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in the affected areas to continue 
to use TEDs if they can be used effectively, 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 by other 
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. On the other hand, TEDs also help exclude certain 
types of debris and allow shrimpers to conduct longer tows.
    NMFS' gear experts have provided several general operational 
recommendations to fishermen 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. 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 of the TED or be slit in a fore-
and-aft direction to facilitate the exclusion of debris. The use of the 
leatherback modification or the double cover flap TED will also aid in 
debris exclusion.
    All of these recommendations represent legal configurations of TEDs 
for shrimpers fishing in the affected areas of Mississippi Sound. This 
action does not authorize any other departure from the TED 
requirements, nor does it authorize the use of any TED modified in such 
a manner that it no longer meets the requirements for any of the TEDs 
approved pursuant to 50 CFR 223.207. In particular, if TEDs are 
installed in trawl nets, they may not be sewn shut.

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. 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 Mississippi 
Sound. This authorization will expire automatically on November 21, 
2002, 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 rule, 
because it is impracticable. The AA finds that unusually high amounts 
of debris 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 impracticable in this instance because providing notice and comment 
would prevent the agency from providing relief soon enough to provide 
the intended benefit. 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)(3), for the same reasons the AA 
determined that there was good cause to waive prior notice and 
opportunity to comment, the AA finds good cause to waive the 30-day 
delay in effective date. NMFS is

[[Page 67798]]

making the rule effective November 1, 2002 through November 21, 2002.
    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 this action. 
Copies of the EA are available (see ADDRESSES).

    Dated: November 1, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 02-28280 Filed 11-01-02; 4:23 pm]
BILLING CODE 3510-22-S