[Federal Register Volume 67, Number 216 (Thursday, November 7, 2002)]
[Rules and Regulations]
[Pages 67793-67795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28281]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 021031262-2262-01; I.D. 103002A]
RIN 0648-AQ56


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 authorization to allow the use of 
limited tow times by shrimp trawlers as an alternative to the use of 
Turtle Excluder Devices (TEDs) in certain waters off Louisiana and 
Alabama. The exempted area in Louisiana consists of all the Louisiana 
state waters east of 92[deg] 20' W. long. (approximately at Fresh Water 
Bayou in Vermilion Parish, Louisiana); Federal waters are not included. 
The

[[Page 67794]]

exempted area in Alabama consists of the inshore waters (inshore waters 
are landward of the COLREGS demarcation line) of Bon Secour Bay, Mobile 
Bay, and Mississippi Sound, south of the Intracoastal Waterway. This 
exemption will be in effect for 30 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 December 
2, 2002. Comments on this action are requested, and must be received by 
December 2, 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 governing sea turtle take prohibitions and 
exemptions 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 NOAA Assistant Administrator for Fisheries (AA) may authorize 
compliance with tow time restrictions as an alternative to the TED 
requirement for up to 30 days, 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 as measured from the time that the trawl doors enter 
the water until they are removed from the water. 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 10 and 23, 2002, the NMFS Southeast Regional 
Administrator received requests from the Secretary of the Louisiana 
Department of Wildlife and Fisheries (LADWF) and the Director of the 
Alabama Department of Conservation and Natural Resources' (ALDCNR) 
Marine Resources Division, respectively, to allow the use of tow times 
as an alternative to turtle excluder devices (TEDs) in state waters 
because of excessive storm-related debris on the fishing grounds. The 
increase in debris on the shrimping grounds was the result of Tropical 
Storm Isidore and Hurricane Lili. After an investigation, the LADWF and 
ALDCNR determined that this debris is affecting the fishermen's ability 
to use TEDs effectively. Both Louisiana and Alabama have stated that 
their marine enforcement agencies will enforce the tow time 
restrictions.
    NMFS gear technicians interviewed fishermen and surveyed parts of 
the affected areas in Louisiana and Alabama on October 23 and 24, 2002. 
The interviews and surveys conducted by the gear technicians and phone 
conversations between NMFS Southeast Region Protected Resources staff 
and state resource agency staffs confirmed that there are problems with 
debris in Louisiana from the Mississippi/Louisiana border around the 
mouth of the Mississippi River to approximately Fresh Water Bayou in 
Vermilion Parish, Louisiana and in Alabama from Bon Secour Bay to the 
Alabama/Mississippi border between the Intracoastal Waterway and the 
barrier islands.

Special Environmental Conditions And Alternative to Required Use of 
TEDs

    The AA finds that debris washed into portions of state waters of 
Louisiana and Alabama 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 state waters of Louisiana (no 
Federal waters are included with this authorization) from east of 
92[deg] 20' W. long. (approximately at Fresh Water Bayou, in Vermilion 
Parish, Louisiana) and in Alabama inshore waters (inside the COLREGS 
demarcation line) including Bon Secour Bay, Mobile Bay, and Mississippi 
Sound south of the Intracoastal Waterway. This authorization will be in 
effect for a period of 30 days, unless terminated earlier. 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. A shrimp trawler utilizing this 
authorization must limit tow times to no more than 75 minutes measured 
from the time trawl doors enter the water until they are retrieved from 
the water.
    The ALDCNR and LADWF are continuing to monitor the situation and 
will cooperate with NMFS in determining the ongoing extent of the 
debris problem in these areas. Moreover, the marine enforcement 
agencies of

[[Page 67795]]

these states have stated that they will enforce the restricted tow 
times. Ensuring compliance with tow time restrictions is critical to 
effective sea turtle protection, and the commitment from these agencies 
to enforce tow time restrictions is an important factor enabling NMFS 
to issue this authorization. NMFS and the respective state marine 
enforcement agencies will monitor the situation to ensure there is 
adequate protection for sea turtles in these areas and to determine 
whether debris in these areas continues to make TED use impracticable.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in the affected areas 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 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]51', 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. This action does not 
authorize any other departure from the TED requirements, nor does it 
authorize 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 the affected 
areas. This authorization will expire automatically on December 2, 
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 applicable regulations.
    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 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 
opportunity to 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) which authorizes the use of this emergency exemption.
    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 making the rule effective November 1, 
2002 through December 2, 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 rule. 
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. 02-28281 Filed 11-01-02; 4:23 pm]
BILLING CODE 3510-22-S