[Federal Register Volume 68, Number 35 (Friday, February 21, 2003)]
[Rules and Regulations]
[Pages 8456-8471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4136]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222, 223 and 224

[Docket No. 000320077-2302-03; I.D. 062501B]
RIN 0648-AN62


Endangered and Threatened Wildlife; Sea Turtle Conservation 
Requirements

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

ACTION: Final rule.

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SUMMARY: NMFS is amending the turtle excluder device (TED) regulations 
to enhance their effectiveness in reducing sea turtle mortality 
resulting from trawling in the southeastern United States. NMFS has 
determined that: some current approved TED designs do not adequately 
exclude leatherback turtles and large, immature and sexually mature 
loggerhead and green turtles; several approved TED designs are 
structurally weak and do not function properly under normal fishing 
conditions; and modifications to the trynet and bait shrimp exemptions 
to the TED requirements are necessary to decrease lethal take of sea 
turtles. These amendments are necessary to protect endangered and 
threatened sea turtles in the Atlantic Area (all waters of the Atlantic 
Ocean south of the North Carolina/Virginia border and adjacent seas, 
other than the Gulf Area, and all waters shoreward thereof) and Gulf 
Area (all waters of the Gulf of Mexico west of 81o W. long. and all 
waters shoreward thereof).

DATES: This final rule will take effect April 15, 2003, however it is 
not applicable in the Gulf Area until August 21, 2003.

ADDRESSES: Copies of: Epperly, S. P. and W.G. Teas. 2002. Turtle 
excluder devices - Are the escape openings large enough? Fish. Bull. 
100:466-474, can be obtained through the following Web site: http://fishbull.noaa.gov/fcontent.htm, or can be requested, along with copies 
of an Environmental Assessment/Regulatory Impact Review/Final 
Regulatory Flexibility Analysis, from the Protected Resources Division, 
Southeast Regional Office, 9721 Executive Center Drive, North, Suite 
102 St. Petersburg, FL, 33702.

FOR FURTHER INFORMATION CONTACT: Robert Hoffman (ph. 727-570-5312, fax 
727-570-5517, e-mail [email protected]), or Barbara A. Schroeder 
(ph. 301-713-1401, fax 301-713-0376, e-mail 
[email protected]).

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 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 
(81 cm) in width and [gteqt]10 inches ([gteqt]25 cm) in height (these 
measurements are taken simultaneously).
    The use of TEDs has contributed to population increases documented 
for Kemp's ridley turtles. Kemp's ridleys are the smallest sea turtle 
species, and adults can easily pass through the current TED opening 
dimensions. Once the most critically endangered sea turtle, Kemp's 
ridley nesting levels have increased from 700-800 per year in the mid-
1980's to over 6,000 nests in 2000. Since 1990, corresponding with the 
more widespread use of TEDs in U.S. waters, the total annual mortality 
of Kemp's ridley turtles has been reduced by 44-50 percent (TEWG, 
2000). NMFS believes that the use of TEDs has had a significant 
beneficial impact on the survival and recovery of sea turtle species.
    NMFS is concerned that TEDs are not adequately protecting all 
species and size classes of turtles. There is new information showing 
that 33-47 percent of stranded loggerheads and 1-7 percent of stranded 
green turtles are too large to fit through the current TED openings. 
Comprehensive scientific data on the body depths of these turtles were 
not available when the original TED sizes were specified. The original 
TED sizes were also much too small to allow leatherback sea turtles the 
largest species to escape. Instead, NMFS has attempted to address the 
incidental catch of leatherbacks through a regime of reactive closures 
that has proven ineffective. There is also concern about the status of 
loggerhead and leatherback turtle populations: the northern nesting 
population of loggerheads appears to be stable or declining (TEWG, 
2000) and nesting of leatherbacks is declining on several main nesting 
beaches in the western North Atlantic (NMFS SEFSC, 2001).
    NMFS completed a biological opinion (Opinion) in December 2002, on 
Shrimp Trawling in the Southeastern United States, under the Sea Turtle 
Conservation Regulations and as managed by the Fishery Management Plans 
for Shrimp in the South Atlantic and Gulf of Mexico. Based on 
information in a NOAA technical memorandum completed in November 2002, 
(NOAA Technical Memorandum NMFS-SEFSC-490) the Opinion estimated that 
62,000 loggerhead turtles and 2,300 leatherback turtles are killed as a 
result of an interaction with a shrimp trawl. Information in this 
Opinion also indicate that up to 75 percent of the loggerhead turtles 
in the Gulf of Mexico and about 2.5 percent of

[[Page 8457]]

the loggerheads in the Atlantic that encounter a shrimp trawl are too 
large to escape the current minimum openings. The implementation of 
this rule, however, is expected to allow all size classes of loggerhead 
and leatherback turtles to escape. The Opinion estimated that 
implementation of this rule will decrease shrimp trawl related 
mortality by 94 percent for loggerheads and 96 percent for 
leatherbacks.
    To protect large green, loggerhead and leatherback turtles NMFS 
proposed modifying the TED regulations to ensure that TEDs are capable 
of releasing these large turtles (66 FR 17852, April 5, 2000; 66 FR 
50148, October 2, 2001). The proposed changes would have been 
applicable in all inshore and offshore waters of the Southeast United 
States as follows: (1) Require all hard TEDs to have a grid with a 
minimum inside measurement of 32 inch (81 cm) by 32 inch (81 cm); (2) 
require the use of either the double cover flap TED, a TED with a 
minimum opening of 71-inch (180-cm) straight-line stretched mesh, or 
the Parker soft TED with a 96- inch (244-cm) opening; (3) disallow the 
use of the hooped hard TED; (4) disallow the use of weedless TEDs and 
the Jones TED; (5) disallow the use of accelerator funnels; (6) require 
bait shrimpers to use TEDs in states where a state-issued bait shrimp 
license holder can also fish for food shrimp from the same vessel; and 
(7) require the use of tow times on small try nets.

Public Comments

    The measures in this final rule are based, in part, on comments 
received on the Advanced Notice of Proposed Rule Making (ANPR) (65 FR 
17852, April 5, 2000), the proposed rule (66 FR 50148, October 2, 2001) 
and eight public hearings held throughout the southeastern United 
States. NMFS received 23 comments as a result of the ANPR and 8,273 
comments as a result of the proposed rule and public hearings; of the 
8,273 responses, 7,714 were letters from the public which were similar 
in content. NMFS reviewed all of the comments received. Where 
appropriate, comments are grouped according to general subject matter, 
and references are made only to some groups or individuals, and not to 
all groups or individuals who may have made similar comments.
    Comment 1: Some fishermen believe that the economic analysis that 
NMFS completed for the proposed rule is flawed in the following ways: 
(1) The cost to retrofit TEDs is far too low; (2) the 20 percent profit 
margin used is too high; (3) the cumulative loss of shrimp as a result 
of the proposed changes in addition to existing requirements is not 
considered; (4) an analysis of possible shrimp loss due to the 
prohibition of accelerator funnels is lacking; (5) the analysis of the 
economic impact to small businesses is inadequate; (6) the percentage 
of shrimp loss is too low and should be 15 to 20 percent; (7) 
information on gear replacement frequency is inaccurate; and (8) the 
economic analysis does not consider the effects the rule will have on 
fishermen in combination with depressed shrimp prices.
    Response: NMFS has completed a Final Regulatory Flexibility 
Analysis (FRFA) and Regulatory Impact Review (RIR), in conjunction with 
an environmental assessment, on this final rule's effects in accordance 
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and 
Executive Order (E.O.) 12866. This EA/RIR/FRFA analyzes this final 
rule's effects on the shrimp fishery in combination with past TED and 
Bycatch Reduction Devices (BRD) rules. It also analyzes this final 
rule's effects on the shrimp fishery in light of current shrimp price 
information as well as the best available information from existing 
databases on profit margins, gear costs, and the durability of and cost 
to replace equipment. The average replacement cost for a leatherback 
TED was assumed to be $220, 4 TEDS were assumed necessary for small 
vessels and 8-10 TEDs for large vessels, and the average useful life of 
a TED was assumed to be 3 years. In the assessment of the proposed rule 
NOAA Fisheries assumed a 1-year life span for the equipment and used a 
cost of $45 dollars for replacement. Because the equipment was only 
expected to last 1 year NOAA Fisheries felt that replacement costs 
would be low because the fishermen would have to replace the gear 
anyway so the only actual cost increase would be from the difference in 
cost of a leatherback TED verses the current TEDs. The assumption of a 
20-percent profit margin was eliminated and, instead, vessel profits 
were internally calculated based on expected revenues and variable 
costs. Shrimp loss under current regulations as well as the proposed 
regulations was considered and discussed in the analysis. Estimates of 
shrimp loss under different TED requirements were derived from test 
data and provided by the NMFS Southeast Fisheries Science Center 
(SEFSC). Testing methods are described in the responses to comments 11 
and 12 of this section. The tests used currently authorized TEDs which 
include the use of accelerator funnels.
    To incorporate the effects of the depressed shrimp prices, 2001 
prices were utilized throughout the assessment. The results of the 
analysis indicate that, under status quo conditions including depressed 
shrimp prices, while profits (defined as average revenue minus average 
variable costs) per vessel in the Southeast shrimp trawl fishery, are 
expected to increase over the next 5 years, this will be accomplished 
due to contraction of the fishery in terms of total effort, which is 
expected to decline by approximately 5.4 percent. The effort 
contraction is comprised of growth in the small vessel fleet, coupled 
with reductions in the large vessel fleet. Since large vessels are more 
costly to operate, the resultant physical profile of the fleet is, on 
average, smaller with lower variable costs. The net effect is that 
shrimp landings per vessel increase, while variable costs per vessel 
decline, resulting in an increase in profits, as defined, per vessel. 
Revenues remain, however, on the average, insufficient to cover both 
operating and fixed costs. The net impact of the proposed rule is not 
expected to significantly adversely affect this outcome, with the 
change in average profits per vessel ranging from a gain of 0.5 percent 
to a loss of 2.4 percent from the status quo.
    Comment 2: Some fishermen believe that the shrimp fishery is 
bearing the majority of the burden for the recovery of sea turtles. 
They feel the government should help them out by implementing such 
things as: (1) a TED buy-back program; (2) tax incentives for using 
TEDs; and (3) price controls and subsidies on shrimp, similar to what 
corn, soybean, and wheat farmers receive. Fishermen also believe that 
the government should provide better enforcement of Public Law 101-162 
section 609(b). Response: Only Congress can authorize programs such as 
equipment buy-backs, tax incentives, and price controls and subsidies.
    Public Law 101-162 section 609(b) prohibits the importation of 
shrimp harvested with fishing technology that may adversely affect such 
species of sea turtles. Under section 609, shrimp may be imported from 
a harvesting nation for which the U.S. government has certified that 
the nation has demonstrated that its regulatory program governing the 
incidental taking of sea turtles is comparable to that of the United 
States. The Court of Appeals for the Federal Circuit recently upheld 
the government's interpretation of section 609 allowing import of 
shrimp from countries that are not certified if the exporter and an 
official of the harvesting nation attest that the individual

[[Page 8458]]

shipment of shrimp was harvested under conditions that do not adversely 
affect sea turtles. Turtle Island Restoration Network v. Evans, 284 
F.3d 1282 (Fed. Cir. March 21, 2002).
    NMFS has been actively engaged with the Department of State (DOS) 
in enforcing section 609 of Public Law 101-162, since it was enacted in 
1990. Nations with shrimp fisheries in the Atlantic, Pacific and Indian 
Oceans, the Caribbean Sea, and the Gulf of Mexico have faced trade 
restrictions on their commercially harvested shrimp exports to the 
United States. In most cases, these embargoes remained in place until 
the national government implemented a sea turtle protection program 
comparable in effectiveness to that of the United States. Embargoes on 
wild caught shrimp from nations with ineffective enforcement regimes 
have also been enacted. NMFS and DOS visit participating countries 
regularly to observe the performance of the foreign TED programs and 
ensure that certifications made pursuant to section 609 are based on 
the best information available. DOS has determined that section 609's 
embargo provision only applies to wild-harvested shrimp and not to 
aquacultured shrimp which make up the majority of U. S. imports.
    Comment 3: Some fishermen commented that the larger TEDs could not 
be pulled by boats with small trawls and that large turtles would be 
unable to pass through the neck of the trawl to reach the grid. Also, a 
71-inch (180-cm) opening installed in a small trawl will not properly 
support the TED. The TED would become wobbly, lose its angle, and may 
rip away from the trawl.
    Response: During their June 2002, TED testing trip to Panama City, 
FL, NMFS gear technicians tested the 71-inch (180- cm) opening in a 
small trawl and found that it could be effectively used in a trawl with 
a 120-mesh extension. The gear technicians used a model leatherback 
turtle to determine if it could move through the trawl neck and reach 
the grid. The model turtle is an aluminum pipe frame that is made to 
resemble a leatherback turtle that is 40 inches wide (102 cm) by 21 
inches deep (53 cm). These dimensions are based on the average 
measurements taken of 15 nesting leatherback turtles. The gear 
technicians were able to pass the model through the trawl with a 120 
mesh extension to the grid and out the 71 inch (180 cm) opening. NMFS 
believes that the use of a 71 inch (180 cm) TED or the double cover 
flap TED in a small trawl will be effective for large turtle release 
and fishing efficiency.
    Gear technicians also tested the use of a 140-mesh extension in a 
small trawl. The trawl's performance was not altered by the use of the 
larger extension. The larger extension also made the installation of 
the large TED easier and the extra webbing made for a stronger 
installation and allowed the TED to maintain its angle better. The 
model leatherback also passed through the trawl to the grid and out the 
opening more easily than it did through the trawl with the 120 mesh 
extension. NMFS believes that fishermen who use small trawls may want 
to use a 140 mesh extension with the new, larger TED to provide better 
fishing and turtle release performance.
    Comment 4: Some fishermen and the Georgia Department of Natural 
Resources (GA DNR) believe that the grid size should be 32 inches (81 
cm) measured from the outside of the TED frame, not the inside. This is 
the grid size many fishermen use.
    Response: NMFS is requiring a minimum grid size of 32 inches (81 
cm) by 32 inches (81 cm) outside measurement, rather than the inside 
measurement originally proposed. TEDs of this size can be used 
effectively with the larger escape opening dimensions. This change may 
eliminate gear replacement costs for many fishermen.
    Comment 5: The GA DNR believes that the dimensions of the cuts for 
the new opening should be the same dimensions as those for the current 
leatherback TED, not the dimensions that were proposed. GA DNR reports 
that only 9 out of 61 captains who use the current leatherback TED 
claim that the TED loses shape faster than the 35 inch (89 cm) by 12 
inch (30 cm) TED. They also suggest that to reduce stress in the trawl, 
the grid should be oval with dimensions of at least 31 inches (79 cm) 
by 42 inches (107 cm).
    Response: NMFS disagrees that the dimensions of the new opening 
should be those currently required for the leatherback opening. 
However, NMFS agrees that the dimensions should be altered from the 
opening specified in the proposed rule. Based on further information 
from fishermen who use the current leatherback TED and additional 
testing of the new opening, the cuts for the new 71-inch (181-cm) TED 
will be as follows: Two 26 inch (66 cm) cuts forward of the TED frame 
and one 71-inch (181- cm) cut across the top of the opening. NOAA gear 
technicians tested the 71-inch (181-cm) TED with three different cuts, 
to determine which cut would be most capable of releasing a leatherback 
turtle. This testing was conducted by using the model leatherback 
described in the response to comment 3. The model leatherback passed 
through the 71-inch (181-cm) TED with an opening made with a 71-inch 
(181-cm) by 26-inch (66-cm) cut more easily than it did through the 71-
inch TED with an opening made with a 71-inch (181 cm) by 20-inch (51-
cm) cut; however, there was little to no difference between an opening 
made with a 71- inch (181-cm) by 26-inch (66-cm) cut and an opening 
made with an 83-inch (211-cm) by 26-inch (66-cm) cut (the dimensions of 
the current leatherback TED). NMFS believes that the 71-inch (181- cm) 
by 26-inch (66-cm) cut results in a stronger TED than the 83- inch 
(211-cm) by 26-inch (66-cm) cut because the former cut takes out less 
webbing.
    Although an oval grid with measurements of 31 inches (79 cm) by 42 
inches (107 cm) may work well with the new opening sizes, NMFS believes 
that other size and shaped grids will also work well. Allowing 
different grid sizes and shapes will allow fishermen greater 
flexibility in customizing their gear to help meet the demands of the 
different areas in which they fish.
    Comment 6: Net makers, fishermen, and various state agencies are 
concerned with the elimination of gear that works well in their areas 
such as the Coulon TED, weedless TED, and accelerator funnels. 
Fishermen believe that the new TED requirements will minimize options 
to choose gear that will optimize shrimp catch while still protecting 
turtles.
    Response: NMFS agrees and is allowing the weedless TED, hooped hard 
TED (of which the Coulon TED is one type), and accelerator funnels to 
be used in certain areas and with certain conditions. These areas and 
conditions are described in detail in the codified language below, and 
are only briefly described here. Hooped hard TEDs, of which the Coulon 
TED is a variety, can be modified to release large loggerhead turtles 
but cannot be modified to release leatherback turtles; therefore, NMFS 
believes that this TED, with the modifications to release large 
loggerheads, can be used in those inshore areas where leatherbacks are 
uncommon. The weedless TED can be strengthened through the use of a 
brace bar which will reinforce the grid bars to keep them from bending 
toward the back of the TED. This will eliminate the problem which 
caused NMFS to propose banning the weedless TED. Recent testing by gear 
technicians has shown that accelerator funnels with increased 
dimensions to allow the escape of large loggerhead and leatherback 
turtles can work effectively.
    Comment 7: Louisiana fishermen encounter a large number of objects 
and debris that force open the TED flap

[[Page 8459]]

causing shrimp loss. They claim that contrary to NMFS statements that 
larger openings will allow debris to escape, the shrimp losses will be 
compounded with the larger opening as water pressure forces these items 
to stay against the grid and the same water pressure opens the flap.
    Response: The experiences of fishermen on the east coast who have 
used the leatherback TED extensively indicate that if this TED is 
properly maintained it will expel debris better than TEDs with smaller 
openings. NMFS realizes that fishing conditions in the Atlantic may 
differ from the Gulf; however, NMFS believes that there is a greater 
chance of debris blocking the grid and holding open the flap in TEDs 
with smaller openings which may result in greater shrimp loss. Larger 
openings would prevent the debris from accummulating in front of the 
TED thereby allowing the flap to close.
    Comment 8: Environmental organizations state that the proposed rule 
allows the use of the Parker soft TED which should be eliminated as an 
approved TED. They claim soft TEDs stretch over time and are less 
effective than hard grid TEDs in excluding turtles.
    Response: NMFS looked at many aspects of the Parker soft TED's 
performance over a 30-month period in both the Gulf of Mexico and the 
Atlantic Ocean. Observer data show a favorable comparison between the 
efficiency of the Parker TED and approved hard TEDs. Information from 
NOAA enforcement indicates that the Parker TED is used more in the 
Atlantic than in the Gulf, but even in the Atlantic the use is low (<50 
boats). NOAA enforcement has found that the compliance rate is good on 
the boats that do use the Parker TED. NMFS' gear specialists provided 
training to net shop owners, net manufacturers, and fishermen in the 
proper installation and use of the Parker TED. For these reasons, NMFS 
believes that this TED can be used effectively to protect turtles. 
However, as with all TEDs, maintenance is important. For example, 
netting can stretch over time which can cause a Parker soft TED to lose 
its shape. Similar maintenance (e.g. to maintain TED angle) is also 
required for hard TEDs.
    Comment 9: Fishing organizations believe the Andrews-style soft TED 
should be re-certified for use as an approved TED.
    Response: NMFS disapproved the use of the Andrews soft TED (61 FR 
66933, December 19, 1996) after extensive testing demonstrated that 
this TED did not exclude turtles effectively. Modifications to the 
Andrews soft TED were tested by NMFS with direction from an industry-
led TED testing advisory panel in 1996, 1997, and 1998. Most design 
versions of this TED did not pass the small turtle protocol with the 
exception of two designs tested in 1998. Following the 1997 tests, 
members of the industry-led soft TED advisory panel evaluated shrimp 
retention with the modified Andrews TED aboard a commercial shrimp 
trawler. The panel reported that the modified Andrews TED had an 
estimated shrimp loss of 20 percent when compared to a hard TED. The 
TED testing review committee (which is made up of representatives from 
the shrimp industry, environmental groups and NMFS) recommended that 
before pursuing final certification of the designs tested in 1998, 
industry should test these designs for shrimp retention. To NMFS' 
knowledge, these designs have not been tested for shrimp retention by 
industry.
    Comment 10: Fishermen, environmental organizations, and state 
agencies believe that the double cover flap TED needs further testing 
to determine its ability to exclude sea turtles.
    Response: Results from NMFS' testing indicate the double cover flap 
TED design was effective at excluding the model leatherback described 
in the response to comment 3. During TED testing in 2000, 2001, and 
2002, a total of 71 loggerhead turtles (captive-reared 2- and 3-year 
olds) were exposed to the double cover flap TED under test protocols (5 
minute exposure). Of the 71 turtles, 69 escaped and 2 were captured 
which equates to a 97 percent escape success rate. The model 
leatherback was sent through the double cover flap a total of 10 times, 
5 times in a bottom opening version and 5 times in a top opening 
version. The test was performed by a diver swimming through the trawl 
with the model and pushing it through the TED opening. During this 
test, the diver was able to push the model through either opening with 
ease. When the model was inverted (simulating the dorsal surface of the 
turtle being against the TED frame) the diver was still able to push 
the model through the opening with ease. During offshore testing of the 
double cover flap TED, aboard the R/V GEORGIA BULLDOG in May 2002, a 
total of 7 wild turtles were videotaped escaping (all turtles were hard 
shell turtles and appeared to be loggerheads). The time it took for 
turtles to escape, once encountering the TED, ranged from 12 seconds to 
1 minute and 11 seconds. Based on estimation of carapace length, NMFS 
believes that both adult and sub-adult turtles were represented in the 
sample.
    Comment 11: Some shrimp fishermen believe that the shrimp loss data 
gathered by NMFS on the double cover flap TED are flawed in many 
respects, including: (1) the tests were not conducted in areas 
representative of where they fish; (2) sample sizes were too small to 
be statistically valid; (3) the tests were done outside the shrimping 
season with low catch rates and low loads in the bag end. Higher loads 
would cause more water to back up and force open the flap and cause 
additional shrimp loss.
    Response: Since publication of the proposed rule, NMFS conducted 
further testing of the double cover flap TED. From January through 
August, 2002, the double cover flap TED has been tested against current 
commercially available TEDs for shrimp loss aboard 12 commercial shrimp 
trawlers in the Gulf Area, and one trawler in the Atlantic Area. In the 
Gulf Area, 7 vessels fished in inshore and near shore areas (2 in 
Texas, 2 in Louisiana, 1 in Mississippi, 1 in Alabama and 1 in 
Florida). Offshore testing was conducted along the northeast coast of 
Florida by one vessel, the pink shrimp grounds of southwest Florida by 
two vessels, Louisiana by two vessels and Texas by one vessel. In order 
to obtain statistically valid data, a minimum of 20 comparative tows 
were conducted during each trip. Testing has included the shrimp season 
openings in Texas, Louisiana, and Mississippi. A total of 305 
comparative tows were conducted. The double cover flap TED experienced 
a 0.1 percent shrimp gain when compared to current commercially 
available TEDs, which is not statistically different from zero.
    Excessive shrimp loss due to back washing and large catch loads 
were not experienced during the tests to date. Additionally, several 
vessel captains have remarked that the double cover flap appears to 
work better in excluding debris such as sticks, grass, and jellyfish.
    Comment 12: Fishermen were concerned about missing data on shrimp 
loss estimates used in the proposed rule. They allege the NMFS report 
on shrimp loss data did not contain information from 58 tows comparing 
shrimp loss between the modfication and standard TEDs and that the lack 
of providing data from all observed tows may reflect selective 
reporting. They also believe the report lacked information on trawl 
sizes used during the tests and the size of the shrimp that were 
caught.
    Response: The data set in question resulted from testing conducted 
in 2000.

[[Page 8460]]

 That data set did not include unsuccessful tows. Unsuccessful tows are 
those that include problems which would bias the data in a manner 
unrelated to the TED, i.e., fouled tickler chain, torn nets, and 
catches dumped together. As a result, data gathered from such tows can 
not be used to make a judgment on the functioning of the TED. The 58 
tows referenced in this comment had one or more of these problems and 
were therefore not included in the data set. However, all tows are 
recorded by the observer and any problems are noted. These records are 
archived and are available upon request.
    Shrimp size is not always recorded by the observer. The database 
may provide shrimp size for selected trips and can be queried upon 
request. Trawl sizes varied depending on the captain of the vessel; 
however, during comparative tows, the size and type of each trawl used 
during a tow were the same for the control TED and the experimental 
TED.
    Comment 13: Various state agencies and fishermen indicate that 
large turtles are not found in their state waters. Since 1968, three 
turtles were recorded caught in shrimp trawl nets during independent 
fishery trawl surveys conducted in state waters by Alabama, 
Mississippi, Louisiana and Texas.
    Response: NMFS does not agree that the lack of sea turtle captures 
in state waters during fishery independent sampling represents an 
absence of sea turtles. Stranding information, observed captures, and 
survey data indicate that large loggerhead and leatherback turtles can 
be found in Alabama, Mississippi, Louisiana, and Texas state waters.
    The fishery independent sampling that is the subject of these 
comments is conducted mostly with small trawls of 16 ft. (5 m) or less 
(although a small percentage were conducted with 40- ft. (12-m) 
trawls), with short tow times (10 to 15 minutes) which reduce the 
probability that the trawls would catch sea turtles. The purpose of 
these sampling programs is generally to record target catch and finfish 
bycatch and, therefore, are not necessarily representative of shrimp 
fishing effort and/or areas fished. However, NMFS did consider this 
information and researched the possibility of allowing the use of 
smaller TED sizes in all Gulf state waters. Based on the information 
below, leatherbacks occur in all offshore waters which warrants the use 
of a TED capable of releasing them.
    Strandings in inshore waters likely are underestimated due to the 
difficulty in surveying areas that generally are marshlands or do not 
have sandy beaches. For the same reasons, offshore strandings on much 
of the coastline of Louisiana are underestimated.
    The greatest proportion of loggerheads stranding that are too large 
to fit through current TED openings is in the Gulf Area, where the 
current minimum height opening is 10 inches (25 cm) (compared to 12 
inches (31 cm) in the Atlantic Area). In the western Gulf of Mexico, an 
annual average of 63 percent of stranded loggerheads offshore and 48 
percent of stranded loggerheads inshore were larger than the dimensions 
of the current minimum TED opening. In the eastern Gulf of Mexico, the 
values are 89 percent offshore and 80 percent inshore. The proportions 
are less in the Atlantic Area: 27 percent offshore and 17 percent 
inshore, but because the number of turtles stranding in the Atlantic 
Area is higher, the actual number of animals too large to fit through 
the openings is comparable to the number of strandings that are too 
large in the Gulf Area. Based on 1995-99 data, each year approximately 
250 loggerheads that are too large to fit through existing TED openings 
strand in each area; approximately 13 percent of these occur in inshore 
waters. Based on strandings, reported incidental captures, NMFS 
Beaufort project, Cooperative Marine Turtle Tagging, N.C. public 
sightings, observer data (Gulf and South Atlantic Fisheries Development 
Foundation and NMFS), aerial surveys (SETS, Pascagoula Oil Platform 
Association data, GOM red drum surveys of 1987, 1995, and 1999, NEFSC 
1995 and 1998 surveys, CETAP, SEAS92 and SECAS95, MATS95, GulfCet I, 
GulfCet II, and GoMex surveys), and telemetry tracks, loggerheads are 
distributed ubiquitously in the Southeast United States, generally 
occurring in all areas, inshore and offshore, and at all times when 
shrimp trawling activity is likely to occur.
    Leatherback turtles are distributed throughout the Southeast United 
States, but are not as abundant as loggerheads. Leatherbacks are 
predominantly found in offshore waters but infrequently enter inshore 
waters. In the Gulf Area, 8 percent of leatherbacks stranding were 
found on inshore beaches and in the Atlantic Area 11 percent were 
reported from inshore waters. The actual number of turtles stranding in 
inshore waters, however, is small: seven in the Gulf Area from 1995-
1999 and 21 in the Atlantic Area for the same time period, for an 
average of six leatherback turtles stranding annually in southeast 
inshore waters. Based on the same information used for loggerhead 
turtles above, leatherbacks occur offshore during all seasons when 
shrimp trawling activity is expected to occur. The number of strandings 
on offshore beaches is significantly more than in inshore waters: the 
average is 56 animals per year in the Atlantic and Gulf Areas offshore 
beaches combined.
    This information is discussed in greater detail in Appendix A of 
the environmental assessment prepared for this final rule, which can be 
obtained from NMFS (see ADDRESSES).
    Comment 14: Fishermen believe that better abundance and 
distribution data on sea turtles are needed, and that NMFS should 
identify an acceptable level of strandings. They have observed more 
turtles today than ever before and anticipate an increase in 
interactions.
    Response: NMFS agrees that increases in stranding levels may be 
related to increases in certain turtle populations, but the populations 
of particular concern for this final rule -leatherbacks and northern 
subpopulation loggerheads- are not increasing. In addition, there are 
many other factors that could cause strandings to increase including a 
change in fishing practices. NMFS is unable to identify a stranding 
level that would trigger an adjustment to management measures. In their 
1998 report to NMFS, the Turtle Expert Working Group (TEWG) analyzed 
existing data on the population status and trends of the loggerhead and 
Kemp's ridley turtles. The TEWG concluded that an estimation, derived 
from stranding data, of the maximum number of individual loggerheads or 
Kemp's ridleys that can be taken incidentally to commercial fishing 
could not be made. The TEWG determined that strandings were an 
underestimate of nearshore mortality and were inadequate for 
determining the population's actual status. Recovery goals for the 
Atlantic populations are identified in the joint NMFS and U.S. Fish and 
Wildlife ESA Recovery Plans completed in the early 1990s (see ADDRESSES 
for copies or visit http://www.nmfs.noaa.gov/endangered.htm). NMFS 
agrees that data on abundance and distribution can be improved. NMFS is 
currently supporting in-water population studies in Florida and North 
Carolina. NMFS also conducted a pilot aerial survey for loggerhead and 
leatherback turtles in the coastal waters of the Mid-Atlantic in July 
2000, to investigate whether line transect methodology can be used to 
produce precise estimates of marine turtle abundance. NMFS intends to 
revise the existing recovery plans in the near future. These revisions 
will likely include additional research recommendations to improve our 
understanding of turtle abundance and distribution.

[[Page 8461]]

    Comment 15: Fishermen are concerned that data are lacking on the 
causal relationship between strandings and shrimp fishing. For example, 
in May of 2000, 22 turtles stranded along the South Carolina coast 
while the shrimp fishery was operating. Yet in May 2001, 21 turtles 
stranded along that coast in the absence of shrimp fishing. They stated 
that recreational fishers and boaters, habitat loss, and pollution are 
all sources of strandings.
    Response: NMFS agrees there are many causes that contribute to 
strandings. Causes include, but are not limited to, diseases, boat 
strikes, ingestion of marine debris, dredging, power plant entrainment, 
and incidental capture in fisheries. The cause of death can only be 
determined in a limited number of cases such as when gear is associated 
with the carcass. However, there are other sources of data that provide 
substantial evidence to indicate that shrimp trawling is the main 
contributing factor to sea turtle mortality (Magnuson et al., 1990; 
Caillouet et al., 1991, 1996; Crowder et al., 1995; TEWG, 2000). In 
1989, a Committee on Sea Turtle Conservation was formed under the 
auspices of the National Research Council (NRC). The charge to NRC was 
to review the scientific and technical information pertaining to the 
conservation of sea turtles and the causes and significance of turtle 
mortality. The NRC found that, ``Of all known factors, by far the most 
important source of death was the incidental capture of turtles 
(especially loggerheads and Kemp's ridleys) in shrimp trawling.'' The 
NRC report is based on numerous data sources including shrimping effort 
correlations with stranding levels, independent trawl surveys, and tags 
returned from turtles that were incidentally captured in shrimp trawl 
nets. In addition to the NRC report, NMFS' observers have documented 
incidental capture of sea turtles in shrimp trawl nets throughout the 
southeastern Atlantic Ocean and Gulf of Mexico. The NMFS Shrimp Trawl 
Observer Program observed 2,833 sea days between January 2000 and May 
2002. During this time NMFS observers documented the incidental capture 
of 49 sea turtles. These turtles were captured in various locations (4 
were captured in the offshore waters of Texas, 5 in the offshore waters 
of Alabama, 1 in the nearshore waters (state waters) of Alabama, 5 in 
the nearshore waters of South Carolina, 1 in the offshore waters of 
Louisiana, 2 in the nearshore waters of Louisiana, 2 in the nearshore 
waters of Mississippi, 4 in the offshore waters of eastern Florida, 14 
in the nearshore waters of western Florida, and 10 in the offshore 
waters of western Florida).
    The November 2000 TEWG report cites studies that show that the use 
of TEDs has significantly reduced strandings over the period 1980-1997 
by an estimated 40 percent in South Carolina and 58 percent in Georgia, 
relative to strandings estimates without TEDs. The TEWG also indicates 
that a significant TED effect on strandings is detectable through the 
time series analysis of biweekly data, in spite of the increasing trend 
in annual strandings. Recent work in Georgia that takes shrimp landings 
into account show strandings per unit of shrimp catch were reduced 37 
percent with the use of TEDs.
    Comment 16: Some environmental groups and state agencies commented 
that data collected from key nesting beaches in the Atlantic Ocean 
indicate that the leatherback turtle nesting population may be 
declining. Globally, leatherbacks are experiencing a severe decline. 
They also state that the northern nesting population of loggerhead 
turtles has declined and the portion of the northern nesting population 
that nests in South Carolina has decreased by as much as 47 percent in 
the past 20 years. Therefore, they allege that large TEDs are essential 
to ensure the recovery of these species. Large TEDs allow large 
juvenile and sexually mature loggerheads and green turtles, as well as 
leatherback turtles to escape and decrease escape times for all turtles 
thereby making TEDs more effective.
    Response: NMFS is requiring larger openings of TEDs as described in 
the Summary of the Final Rule and the Provisions and Justification of 
the Final Rule section of this notice.
    Comment 17: Fishermen believe that current data do not justify the 
use of these larger TEDs in all areas and times. The year-round use of 
the leatherback TED is unnecessary. Additional research is necessary to 
ensure that burdens are not placed on the industry without a 
corresponding benefit to turtles.
    Response: Data from multiple sources, including at-sea observer 
programs, aerial sightings, public reports, incidental captures and 
strandings documented through the Sea Turtle Stranding and Salvage 
Network (STSSN), support the use of a TED capable of releasing 
leatherback turtles in all offshore waters and a TED capable of 
releasing large loggerhead turtles throughout the southeastern Atlantic 
Ocean and Gulf of Mexico. Loggerheads are documented in all inshore and 
offshore areas, whereas leatherbacks are predominantly found in 
offshore waters but infrequently enter inshore waters. Additionally, 
both loggerheads and leatherbacks occur in shrimping areas during all 
seasons when shrimp trawling activity is expected to occur (see NMFS 
response to Comment 13).
    Comment 18: The Gulf and South Atlantic Fisheries Foundation states 
that there must be appropriate resources to conduct a comprehensive 
industry review of turtle information and perform analysis of the 
massive data sets. This would include stock assessment evaluations and 
economic analysis.
    Response: A significant amount of available data were reviewed by 
the NRC when they made their 1990 findings (see comment 15). The latest 
stock assessment on the leatherback and loggerhead turtles conducted by 
NMFS (National Marine Fisheries Service Southeast Fisheries Science 
Center, 2001) was extensively reviewed by an independent peer review 
process UM Independent System for Peer Reviews - whose findings 
supported the quality of the stock assessment and can be obtained upon 
request (see ADDRESSES).
    Comment 19: Environmental organizations believe that the effects on 
sea turtle populations as a result of inadequate TEDs far outweigh the 
impacts that may occur on nesting beaches; whereas, fishermen believe 
that nesting beach and nest protection should be stressed before new 
regulations on fishermen take place.
    Response: NMFS shares responsibility with the U.S. Fish and 
Wildlife Service (USFWS) for sea turtle recovery actions under the ESA. 
NMFS is responsible for addressing threats in the marine environment 
while the USFWS oversees recovery actions on the nesting beaches. As 
outlined in all of the Atlantic sea turtle joint ESA Recovery Plans, 
both threats on the nesting beaches and in the marine environment must 
be addressed in order to recover these listed species. Programs to 
protect nests and hatchlings have been ongoing for many years. A 
primary example is the joint Mexico/U.S. protection program for Kemp's 
ridleys at Rancho Nuevo that began in the late 1970s. Nesting beaches 
throughout the southeastern U.S. are protected by the states, 
Department of Interior, Department of Defense, and the public. NMFS 
must continue to reduce incidental capture in shrimp trawl fisheries 
when data support that modifications to existing TED requirements are 
necessary.
     Comment 20: Environmental organizations feel it is illegal for 
NMFS to imperil threatened and endangered species by delaying the 
implementation of this final rule to alleviate short-term

[[Page 8462]]

economic impacts. They believe that the provisions of the proposed rule 
should be implemented as is, without the 1-year delay.
    Response: This final rule will be implemented for the Atlantic Area 
on April 15, 2003, and for the Gulf Area 6 months after its publication 
in the Federal Register. NMFS believes that the 6-month delay in the 
Gulf Area is appropriate because fishermen in the Gulf Area use smaller 
TEDs with smaller grids than fishermen in the Atlantic Area, and the 
Gulf Area also has the majority of hooped hard TED users, bait 
shrimpers, and weedless TED users. Most fishermen in the Atlantic have 
been subject to the implementation of the leatherback contingency plan 
and likely already have the equipment to comply with the new 
regulations. The GA DNR reports that many shrimpers (up to 60 percent) 
use the leatherback TED year-round. Net shops in the Atlantic Area are 
more likely to stock the required equipment. Net shops in the Gulf Area 
will need additional time to supply the equipment necessary to comply 
with these new regulations. In addition, the six months will provide 
opportunity to evaluate preliminary results from the Gulf and South 
Atlantic Fisheries Foundation study on the shrimp fishery and sea 
turtles. In the proposed rule, NMFS had initially discussed a 12-month 
delay in implementation. In light of the additional time allowed for 
public comment, NMFS now believes that an additional 12-month delay is 
not warranted.
    Comment 21: State agencies from Mississippi, Alabama, Louisiana and 
Texas believe that their bait shrimp industries are tightly regulated 
by state laws and additional Federal regulations are unnecessary. Texas 
Parks and Wildlife believes that the new regulations would require the 
state to make major changes to their license program to provide bait-
only licenses.
    Response: NMFS enforcement and gear specialists have seen an 
increase in boats claiming to be bait shrimpers but possessing more 
than 32 lb (14.5 kg) of dead shrimp. Increased tow times are necessary 
to land this much dead shrimp. Longer tow times would increase the 
likelihood of entangling a sea turtle and, without a TED installed, 
increase the chance of injury or mortality. When there is no incentive 
to limit tow times as a part of normal fishing operations, tow time 
limits are extremely difficult to enforce. Also, the possession of both 
bait and food shrimping licenses aboard the same vessel may allow such 
vessels to exploit the bait shrimping exemption as a loophole. 
Therefore, NMFS is limiting the bait shrimp TED exemption to shrimpers 
with a valid state bait-shrimp license for which such state license 
allows the licensed vessel to participate in the bait shrimp fishery 
only.
    The new requirements for bait shrimpers should not affect state 
programs that have separate bait and food shrimp licenses. The new 
requirements do not eliminate dual-license programs; rather, dual-
license holders will be required to use a TED. Texas Parks and Wildlife 
can decide whether or not a separate bait-only license is warranted to 
allow bait shrimpers to fish without a TED.
    Comment 22: Environmental groups believe that TEDs should be 
required on all try nets. Tow time limitations do not work and are 
unenforceable.
    Response: Sea turtles are captured in try nets. The NMFS observer 
program from 1992 through 1995 documented that try nets accounted for 
43 percent of the observed turtle captures. In 2001, shrimpers 
operating in the Atlantic Area reported capturing more than 20 turtles 
in their smaller try nets without TEDs installed. NMFS required 
shrimpers deploying try nets with head rope lengths greater than 12 ft. 
(3.6 m) or foot rope length greater than 15 ft. (4.6 m) to have a TED 
installed but exempted the smaller try nets (61 FR 66933, December 19, 
1996). Experimental trawling completed in 1994 and 1996 indicated that 
small try nets (<= 12 ft. (3.6 m)) were less likely to catch turtles. A 
total of 100 tows deploying three sizes of try net, 12 ft. (3.6 m), 15 
ft. (4.6 m), and 20 ft. (6.2 m), were conducted in Cape Canaveral Ship 
Channel. Thirty-five turtles were caught. Of these, 17 were caught in 
the 20-ft. (6.2-m) net, 10 in the 15-ft (4.6-m) net, and 8 in the 12-ft 
(3.6-m) net. NMFS believes that when used as intended, small try nets 
pose little threat to turtles. NMFS initially issued this exemption 
without tow time restrictions because it felt that this type of gear 
naturally lent itself to short tow times. However, information from 
GADNR indicates that some fishermen are using try nets as another 
fishing trawl, towing it for long periods of time. NMFS will continue 
to monitor this issue. If tow time limitations do not prevent the 
capture of sea turtles in try nets, then NMFS will consider other 
alternatives, such as requiring TEDs in all try nets.
    Comment 23: Environmental organizations believe that NMFS should 
allocate adequate funding toward ensuring shrimpers' compliance with 
these regulations. They believe that one way to accomplish this is to 
increase enforcement personnel. They also believe that NMFS should 
establish a mandatory observer program to cover a representative sample 
of shrimp vessels in the southeastern United States.
    Response: NOAA Enforcement, in partnership with the USCG and 
deputized state law enforcement agencies, have been successful in 
enforcing these regulations. Further, based on information from these 
agencies, the vast majority of fishermen follow the regulations.
    The NMFS Shrimp Trawl Bycatch Observer Program has observed over 
2,800 sea days on shrimp trawl vessels since 2000. This level of 
observer coverage is expected to continue in the future. NMFS is 
required to have observer coverage for the shrimp fishery, but the 
sampling is inadequate, given fleet size. Because of the massive size 
of the shrimp fleet and the amount of resources (funding and personnel) 
it would require, the establishment of a sampling program that would 
result in precise estimates of turtle bycatch has not been possible. 
Currently, limited resources are focused on specific issues that need 
evaluation such as testing new TED designs and BRDs.
    Comment 24: Fishermen from Alabama, Mississippi, and Louisiana have 
complied with current TED regulations and additional burdens should not 
be placed on them without adequate data to support the new 
requirements.
    Response: Shrimpers in the southeastern United States have made 
great contributions to the protection of endangered species through 
their use of TEDs over the last decade and more. Those efforts have 
borne fruit, as evidenced by the population increases of the critically 
endangered Kemp's ridley turtles, which are small enough to escape 
through the current TEDs. However, studies have shown that 33-47 
percent of the loggerhead turtles stranded throughout the southeastern 
United States are too large to fit through the current TED openings. 
This is a much greater percentage than this size group represents in 
the population at large. The continued disproportionate loss of this 
size class will seriously hamper recovery efforts for this species, and 
might require change in its status from threatened to endangered. 
Leatherback turtles are severely endangered throughout the world. 
Nesting numbers on their main nesting beach in the western north 
Atlantic have decreased by 15 to 17 percent per year since 1987. NMFS 
believes that increasing the size of current TED openings is necessary 
to ensure the conservation and recovery of these listed species.

[[Page 8463]]

    Comment 25: Eight years ago the shrimp fishing industry offered a 
well-funded plan for turtle recovery that included money to protect 
nesting beaches in Mexico and helped to fund the head start program, in 
lieu of TEDs, but NMFS would not accept it. Fishermen are willing to 
pay to protect sea turtles and protect eggs and nests in lieu of TEDs. 
The money can go to protect nesting beaches and hatch eggs to release 
into the wild.
    Response: Nesting beach habitat conservation plays an important 
role in the recovery of sea turtles. However, the protection of turtles 
in the water is equally important. The use of TEDs is a major factor in 
the recent population increase of Kemp's ridley turtles. Kemp's ridleys 
are the smallest sea turtles, and adult size animals can pass through 
the current TED openings. Since 1990, corresponding with the more 
widespread use of TEDs in U.S. waters, the total annual mortality 
(including natural mortality) of Kemp's ridleys has been reduced by 44-
50 percent. At the same time, nesting has gone from 700-800 nests per 
year in the late 1980s to approximately 6,000 nests in 2000. This kind 
of increase in nesting numbers could not have happened without in-water 
protection provided by TEDs. NMFS believes that the use of TEDs can 
have a significant impact on the survival and recovery of sea turtles. 
The majority of loggerhead turtles nesting in the United States takes 
place on the east coast, where there is comprehensive nesting beach and 
nest protection. Even with these comprehensive conservation and 
protection programs in place, the northern nesting population of 
loggerhead sea turtles (from northeast Florida north) is at best stable 
and possibly declining, demonstrating that in-water protection of sea 
turtles is still required to achieve recovery.
    Comment 26: Fishermen and environmental organizations believe that 
NMFS should investigate the impact of recreational shrimping on sea 
turtles. Recreational trawls may reach 16 ft. (4.88 m) in width with a 
fleet estimated at 8,000 boats. At 16 ft. (4.88 m) these trawls are the 
same size as try nets which already require TEDs.
    Response: The majority of recreational shrimp fishermen pull their 
trawls out of the water by hand, and this naturally limits the size of 
the trawl and the tow times (a large full net would not be able to be 
retrieved by hand). They must also use tow times as specified at 50 CFR 
223.206(d)(3)(i). NMFS believes this fishery poses little threat to sea 
turtles because of the combination of short tow times and small trawls. 
Any recreational fisherman who does not pull his or her trawl in by 
hand must use a TED.
    Comment 27: Members of the United States Congress commented that 
food safety is a national security issue and the proposed rule may 
result in the United States becoming more dependent on foreign produced 
foods at a time of national hazard.
    Response: NMFS believes regulations to increase the size of current 
TED openings would allow for adequate protection of listed species, 
possibly avoiding the curtailment of the shrimp fishery in the 
southeastern United States, and thus allowing the shrimp fishery to 
continue to harvest shrimp.
    Comment 28: Fishermen believe that NMFS' method for announcing and 
convening public hearings for the proposed rule was inadequate. NMFS 
should do direct mailings of notices to shrimpers by using lists that 
the state agencies have from selling shrimp licenses.
    Response: While NMFS procedures for public notification satisfy 
legal requirements, NMFS agrees that public notification of our 
proposed actions could be improved. NMFS increased coordination with 
affected entities, by extending the public comment period on the 
proposed rule by 90 days, funding a major industry workshop in Tampa, 
FL, and participating in three industry-sponsored meetings in 
Louisiana. NMFS is currently developing a mailing list based on public 
hearing participation to distribute information on future meetings and 
notices to the people these actions affect.

Provisions and Justification for the Final Rule

    NMFS is adopting the proposed measures as a final rule with the 
changes specified below, based on a review of the public comments and 
additional analyses of biological and commercial information. The 
changes to the proposed rule consist of specifying different TED-
openings and configurations for inshore and offshore waters and 
allowing the use of accelerator funnels, hooped hard TEDs, and weedless 
TEDs with modifications. Once the final rule is published in the 
Federal Register the changes will be effective April 15, 2003, in the 
Atlantic Area and after 6 months in the Gulf Area.

Summary of the Final Rule

    The final amendments to the TED regulations are applicable to 
trawling in all inshore and offshore waters of the southeastern United 
States as follows: (a) Require all hard TEDs to have a grid with a 
minimum outside measurement of 32 inches (81-cm) by 32 inches (81-cm); 
(b) require the use of either the double cover flap TED, a TED with a 
minimum opening of 71 inch (180 cm) straight-line stretched mesh, or 
the Parker soft TED with a minimum 96-inch (244-cm) opening in offshore 
waters (from the COLREGS demarcation line seaward) and in all inshore 
waters off of Georgia and South Carolina; and require a TED-opening in 
all inshore waters (from the COLREGS Demarcation line landward) except 
for the inshore waters of Georgia and South Carolina of at least 44-
inch (112-cm) straight-line stretched mesh measurement with a 20-inch 
(51-cm) vertical taut height, with each measurement taken separately on 
all hard TEDs (see Figure 1) or a
    Parker soft TED with a 56-inch (142-cm) opening; (c) disallow the 
use of the hooped hard TED in all offshore waters and in the inshore 
waters of Georgia and South Carolina; and allow a hooped hard TED in 
inshore waters, other than Georgia and South Carolina, to have a 
minimum size of 35 inches (89 cm) by 27 inches (67 cm) on the top 
opening, with a minimum inside horizontal measurement of at least 35 
inches (89 cm) and an inside vertical measurement of at least 30 inches 
(76 cm) on the front hoop, with a clearance between the deflector bars 
and the inside of the front hoop no less than 20 inches (51 cm); (d) 
eliminate the special regulations for the leatherback conservation zone 
and for flaps on bottom opening TEDs in the shrimp fishery sea turtle 
conservation areas (SFSTCA); (e) disallow the use of the Jones TED; (f) 
allow the use of the weedless TED with a brace bar; (g) require all 
accelerator funnels to have a stretched mesh opening of no less than 44 
inches (112 cm) in the 44-inch (112-cm) TED and no less than 71 inches 
(180 cm) in the 71-inch (180-cm) TED and the double cover flap TED; (h) 
require bait shrimpers to use TEDs in states where a state-issued bait 
shrimp license holder can also fish for food shrimp from the same 
vessel;(i) require the use of tow times on small try nets; and (k) 
change the language of the flounder TED rule to clarify that the new 
escape opening sizes are not required in the Atlantic summer flounder 
bottom trawl fishery as a result of this rule change, although the 
agency is currently evaluating the need for such restrictions.
    The justification for the changes and adoption of the final 
modifications to the TED regulations are discussed below for each 
measure.
BILLING CODE 3510-22-S

[[Page 8464]]

[GRAPHIC] [TIFF OMITTED] TR21FE03.001

BILLING CODE 3510-22-C

[[Page 8465]]

Increase of the Minimum Size of TED Grids and TED Openings in all 
Inshore and Offshore Waters of the Southeastern United States

    The 71-inch (180-cm) TED, the double cover flap TED, the Parker 
soft TED with a 96-inch (244-cm) opening, the Parker soft TED with the 
56-inch (142-cm) opening and the 44-inch (112-cm) TED are large enough 
to exclude 100 percent of nesting loggerhead and green turtles based on 
the information in Epperly and Teas (2002) and the measurements of 
nesting loggerhead turtles taken by the South Carolina Department of 
Natural Resources (SCDNR) in the spring and summer of 2000 as 
referenced in the proposed rule (66 FR 50148). This is particularly 
important for loggerhead turtles, as population models indicate that a 
reduction in mortality in these size classes would result in the 
greatest annual population increase rate (Crouse et al., 1987; 
Hopewell, 1998).
    Leatherback turtles are too large to fit through the current size 
TED openings; when mature, they can weigh between 600 and 1,300 lb (273 
and 591 kg). The use of the 71-inch (180-cm) TED, the double cover flap 
TED, and the Parker soft TED with a 96-inch (244-cm) opening in all 
offshore waters in the southeastern United States and the inshore of 
Georgia and South Carolina will ensure the use of TEDs capable of 
releasing leatherback turtles in the waters where they are most 
commonly found and in areas and times not currently covered by the 
leatherback contingency plan. This final rule eliminates the unplanned, 
temporary actions implemented under the leatherback conservation zone 
which will increase predictability for the industry. NMFS believes that 
the inshore waters of Georgia and South Carolina have a higher 
potential for the presence of leatherback turtles because they are 
mostly open sounds with little barrier from nearshore oceanic habitat.
    See NMFS response to comment 13 in this document for a summary of 
the aerial, standings, observer, and other data used to support this 
rule.

Disallowing the use of the Hooped Hard TED in all Offshore Waters in 
the Atlantic and Gulf Areas and Changing the Description of a Hooped 
Hard TED for Use in Inshore Waters

    Based on information received from Louisiana fishermen and NMFS 
gear specialists, the hooped hard TED known as the Coulon TED may work 
well as a bycatch reduction device. NMFS was considering disallowing 
the use of hooped hard TEDs in all waters in the proposed rule because 
of enforcement problems seen with this type of fixed-angle TED 
installed backwards. Based on the information in Epperly and Teas 
(2002), and the measurements of nesting loggerheads conducted by the 
SCDNR in the summer of 2000, the modifications to the hooped hard TED 
that are part of this rule will give this TED an escape opening large 
enough to exclude large loggerhead turtles found in inshore waters, 
which will allow its continued use by some of the fishermen who prefer 
it.
    NMFS is not allowing the use of the hooped hard TED in offshore 
waters because the design cannot be modified to be large enough to 
exclude leatherback turtles.

Weedless TEDs; Jones TEDs; and Accelerator Funnels

    The structural integrity of the weedless and Jones TEDs does not 
hold up under commercial use; grid bars bend toward the back of the 
net. This condition has been shown to severely limit the ability of 
these TEDs to exclude turtles. Therefore, NMFS is requiring the use of 
a brace bar to increase the structural integrity of the weedless TED 
and is disallowing the use of the Jones TED. The brace bar for the 
weedless TED must be constructed of the same or stronger material as 
the deflector bars and must be attached across the deflector bars in an 
area defined by the mid point of the outer frame, and the unattached 
ends of the deflector bars. The horizontal brace bar may be offset from 
the deflector bars, using spacers constructed of the same or stronger 
material. The spacers may not exceed 3 inches in length. The Jones TED 
can not be practically strengthened with a brace bar.
    In the proposed rule NMFS proposed disallowing the use of the 
accelerator funnel in the 71-inch (180-cm) TED and the double cover 
flap TED. To exclude large turtles, we felt that the funnel would have 
to be of such a large size that it would not accelerate water and may 
hang out the flap causing shrimp loss. However, based on information 
from fishermen and further investigation by NMFS gear technicians, NMFS 
found that an accelerator funnel that is large enough to release 
leatherback and large loggerhead turtles will work in the single grid 
hard TEDs approved for use in this rule. Accelerator funnels used in 
the 71-inch (180-cm) TED and the double cover flap TED must be attached 
according to the current rules and must have an opening of at least 71 
inches (180 cm) stretched mesh. Accelerator funnels used in the 44-inch 
(112-cm) TED must also be attached according to the current rules and 
must have an opening of at least 44 inches (112 cm) stretched mesh.

Requiring Bait Shrimpers to use TEDs in States Where a State-issued 
Bait Shrimp License Holder can also Fish for Food Shrimp From the Same 
Vessel

    NMFS enforcement and gear specialists have seen an increase in 
boats claiming to be bait shrimpers but possessing more than 32 lb 
(14.5 kg) of dead shrimp. These dead shrimp are likely sold as food 
shrimp. Landing this much dead shrimp was likely the result of an 
increase in tow times beyond the shorter tows used to catch live bait. 
Longer tow times would increase the likelihood of entangling a sea 
turtle and, without a TED installed, increase the chance of injury or 
mortality. When there is no incentive to limit tow times as a part of 
normal fishing operations, tow time limits are extremely difficult to 
enforce. Also, the possession of both bait and food shrimping licenses 
aboard the same vessel may allow such vessels to exploit the bait 
shrimping exemption as a loophole. Therefore, NMFS is limiting the bait 
shrimp TED exemption to shrimpers with a valid state bait-shrimp 
license for which such state license allows the licensed vessel to 
participate in the bait shrimp fishery only.

Requiring the Use of Tow Times on Small Try Nets

    Although sea turtles have been documented as having been captured 
in try nets, experimental trawling completed in 1994 and 1996 indicated 
that small try nets were much less likely to catch turtles. However, as 
discussed in NMFS' response to comment 22, turtle captures in try nets 
may still be a problem. NMFS believes that tow time restrictions will 
give NMFS an enforcement mechanism to help maintain compliance by the 
small number of fishermen who do not use try nets as intended. However, 
NMFS will continue to evaluate this issue. If tow time restrictions do 
not prevent capture of sea turtles in try nets, then NMFS will evaluate 
other options, including requiring TEDs in try nets.

Classification

    This final rule has been determined to be significant for purposes 
of Executive Order 12866.
    The ESA provides the statutory basis for this final rule.
    NMFS prepared a draft Environmental Assessment/Regulatory Impact 
Review/Regulatory Flexibility Act Analysis (EA/RIR/RFAA) for the 
proposed rule that discussed the impact on the

[[Page 8466]]

environment as a result of the proposed rule. NMFS completed a final 
Environmental Assessment/Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (EA/RIR/FRFA) based on comments received during 
the comment period. A copy of the final EA/RIR/FRFA is available from 
NMFS (see ADDRESSES).
    NMFS completed the FRFA, pursuant to 5 U.S.C. 604, without regard 
to whether the proposal would have a significant impact on a 
substantial number of small entities. A summary of this FRFA follows:
    The Endangered Species Act provides the statutory basis for this 
final rule. This final rule will require the use of an approved 
leatherback TED in all shrimp trawl nets operated in all offshore 
waters and the inshore waters of Georgia and South Carolina at all 
times; require the use of an approved loggerhead TED in all shrimp 
trawls licensed or fishing for food shrimp in all inshore waters at all 
times; allow the use of the weedless TED with a brace bar; allow the 
use of hooped hard TEDs in inshore waters with modifications; allow the 
use of accelerator funnels with certain modifications; and require tow 
time restrictions on try nets.
    The objectives of this final rule are to decrease the mortality of 
large loggerhead and green turtles; decrease the mortality of large 
leatherback turtles; decrease the mortality of all threatened and 
endangered sea turtles incidentally taken by shrimp trawl activity by 
eliminating TEDs that are not sufficiently effective in releasing sea 
turtles; improve the enforcement of existing TED regulations; and 
implement a more efficient and effective management scheme with respect 
to conserving large leatherback turtles.
    An excessive number of endangered or threatened sea turtles are 
dying each year due to probable interaction with shrimp trawl gear. The 
Leatherback Contingency Plan with its required surveys and use of 
emergency rules that close areas to trawl activity to reduce sea turtle 
mortality has been shown to be inefficient. An alternative management 
approach is required to both address the excessive mortality of sea 
turtles and eliminate the need for costly and disruptive closures.
    This final rule will impact the Southeast shrimp trawl fishery 
primarily through the imposition of increased costs associated with the 
purchase and maintenance of the required gear and through lost revenue 
opportunities through potential increased shrimp losses associated with 
the gear.
    A fish harvesting business is considered a small business if it is 
independently owned and operated and not dominant in its field of 
operation, and if it has annual receipts not in excess of $3.5 million. 
Based on a compilation of data from the shrimp landings file for the 
Gulf, Florida trip ticket data, and data from the Georgia shrimp 
landings system, the maximum known gross revenue for an individual 
fishing craft in the Gulf and South Atlantic shrimp fisheries in 1999 
was approximately $723,656. While this figure could be an underestimate 
of the true maximum value since currently available data do not allow 
all shrimp landings from different parts of the region and their 
associated revenues to be linked to a particular fishing craft, this 
figure is sufficiently less than $3.5 million to support the 
presumption that all firms in the Gulf and South Atlantic shrimp trawl 
fisheries are small business entities.
    It is estimated that 11,244 small vessels (vessels less than or 
equal to 60 ft. (18.3 m)) and 2,368 large vessels (vessels greater than 
60 ft. (18.3 m)), or a total of 13,572 vessels operate in the Southeast 
shrimp trawl fishery. Note that this figure does not include fishing 
craft that are licensed or known to only participate in shrimp 
fisheries that use non-trawl gear (i.e., butterfly nets, channel nets, 
cast nets, skimmer nets, etc.) since these gear types are not subject 
to the existing or proposed TED requirements. Small vessels in the 
Southeast shrimp trawl fishery are estimated to harvest an average of 
4,752 lb. (2,155.5 kg) of shrimp annually valued at $12,435 in gross 
revenues, with average variable cost expenditures of $8,708 and 
generating a profit of $3,727. Large vessels in the Southeast shrimp 
trawl fishery are estimated to harvest an average of 42,656 pounds of 
shrimp annually valued at $142,880 in gross revenues, with average 
variable cost expenditures of $126,089 and generating a profit of 
$16,089.
    Although all participants in the fishery may be affected by the 
proposed action, it should be noted that the provisions on weedless 
TEDs and hooped hard TEDs will also be expected to affect specific 
subsets of the industry. The weedless TED is used by approximately 15 
percent of Texas shrimpers in the trawl fishery. Therefore, using the 
estimate of the 2,355 vessels reporting landings in Texas, 353 vessels 
would be affected by the weedless TED specifications. With respect to 
the hooped hard TEDs, it is estimated that 300 vessels currently 
utilize this gear.
    This final rule is expected to decrease annual ex-vessel shrimp 
gross revenues by $1.8-$7.3 million, reduce variable costs (due to the 
change in the relative numbers of small vessels vs. large vessels) of 
production by $1.4-$3.7 million, and reduce profits by $444,000-$3.6 
million. Ex-vessel shrimp prices are projected to increase, due to the 
decline in domestic shrimp harvest, by 0.7-1.7 percent per year. The 
proposed action is expected to result in a less than 1.0 percent loss 
in landings, gross revenues and profits in the Southeast shrimp trawl 
fishery, and result in a maximum loss of employment opportunities of 
5.1 percent in the small vessel fleet and 0.5 percent in the large 
vessel fleet. The small vessel fleet is expected to contract by 400-574 
vessels by 2006 relative to status quo conditions as a result of the 
rule, while the large vessel fleet is expected to contract by up to 11 
vessels, also as a result of the rule. The change in average annual 
profits for the average small business entity operating in the 
Southeast shrimp trawl fishery due to the proposed action is expected 
to range from a gain in profits of 0.5 percent to a loss in profits of 
2.4 percent over status quo conditions.
    NMFS received the following comments regarding economic impacts of 
the rule through public comment on the proposed rule: (1) The projected 
cost to retrofit TEDs is too low; (2) the 20- percent profit margin 
used is too high; (3) the cumulative loss of shrimp as a result of the 
proposed changes in addition to existing requirements is not 
considered; (4) an analysis of possible shrimp loss due to the 
prohibition of accelerator funnels is lacking; (5) the analysis of the 
economic impact to small businesses is inadequate; (6) the percent 
shrimp loss is too low and should be 15 to 20 percent; (7) information 
on gear replacement frequency is inaccurate; and (8) the analysis does 
not consider the effects the rule will have on fishermen in combination 
with depressed shrimp prices. In response to these comments, a new 
Regulatory Impact Review and Final Regulatory Flexibility Analysis were 
conducted which incorporated information gathered during the public 
comment period as well as the best available information from existing 
databases on profit margins, gear costs, and the durability and cost of 
replacement of equipment. The average replacement cost for a 
leatherback TED was assumed to be $220, 4 TEDS were assumed necessary 
for small vessels and 8-10 TEDs for large vessels, and the average 
useful life of a TED was assumed to be 3 years. The assumption

[[Page 8467]]

of a 20-percent profit margin was eliminated and, instead, vessel 
profits were internally calculated based on expected revenues and 
variable costs. Shrimp loss under current regulations as well as the 
proposed regulations was considered and discussed in the analysis. 
Estimates of shrimp loss under different TED requirements were derived 
from test data and provided by the NMFS SEFSC. The analysis allowed the 
use of an accelerator funnel, consistent with the rule. To incorporate 
the effects of the depressed shrimp prices, 2001 prices were utilized 
throughout the assessment.

Description of Significant Alternatives to the Proposed Rule and 
Discussion of how the Alternatives Attempt to Minimize Economic Impacts 
on Small Entities

    Other than the status quo alternative, there were 4 alternatives 
analyzed including the measures in this final rule (preferred action). 
One of the proposed alternatives, Alternative 1, would increase the 
standard size opening of TEDs to 35 inches (89 cm) by 20 inches (51 cm) 
in all areas; change the minimum grid size to at least 32 inches (81 
cm) by 32 inches (81 cm) in all areas; redescribe the current version 
of the leatherback modification; replace the Leatherback Contingency 
Plan with standardized zones and times where shrimp trawlers are 
required to have TEDs installed that exclude leatherback turtles; 
disallow the use of weedless TEDs and the Jones TED; change the 
requirements for hooped hard TEDs; change the requirements for 
accelerator funnels; require bait shrimpers to use TEDs in states where 
a state-issued bait shrimp license holder can also fish for food shrimp 
from the same vessel; and require tow time restrictions on trynets. 
This alternative would reduce the areal and seasonal extent of the 
leatherback TED requirements from that of the preferred action, but 
fewer endangered sea turtles would be saved and it is unclear whether 
costs would be materially reduced. Costs associated with this 
alternative could be equal to or exceed those of the preferred action.
    Alternative 2 would increase the standard size opening of TEDs to 
35 inches (89 cm) by 16 inches (41 cm) in all areas; change the minimum 
grid size to at least 30 inches (81 cm) by 30 inches (81 cm) in all 
areas; redescribe the current version of the leatherback modification; 
replace the Leatherback Contingency Plan with standardized zones and 
times where shrimp trawlers are required to have TEDs installed that 
exclude leatherback turtles; disallow the use of weedless TEDs and the 
Jones TED; change the requirements for hooped hard TEDs; change the 
requirements for accelerator funnels; require bait shrimpers to use 
TEDs in states where a state-issued bait shrimp license holder can also 
fish for food shrimp from the same vessel; and require tow time 
restrictions on trynets. This alternative would save even fewer sea 
turtles compared to the preferred action with, again, uncertainty 
associated with whether any cost savings could be achieved relative to 
the preferred action.
    Alternative 3 would require the use of a TED capable of releasing a 
leatherback in all waters at all times; change the minimum grid size to 
a minimum grid size of at least 32 inches (81 cm) by 32 inches (81 cm) 
in all areas; redescribe the current version of the leatherback 
modification (71 inch TED); disallow the use of weedless TEDs and the 
Jones TED; disallow the use of hooped hard TEDs; disallow the use of 
accelerator funnels; require bait shrimpers to use TEDs in states where 
a state-issued bait shrimp license holder can also fish for food shrimp 
from the same vessel; and require tow time restrictions on trynets. 
This alternative has more stringent requirements and would, while 
saving the same number of endangered sea turtles as the preferred 
action, likely do so at a higher cost. The status quo alternative would 
not achieve the desired biological goals of the action.
    Copies of the EA/RIR/FRFA are available (see ADDRESSES).

List of Subjects

50 CFR Part 222

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

50 CFR Part 223
    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.
50 CFR Part 224
    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Transportation.

    Dated: February 12, 2003.
John Oliver,
Deputy Assistant Administrator for Operations,National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR parts 222, 223, and 
224 are amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

    1. The authority citation for part 222 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1544; and 16 U.S.C. 742a et seq., 
unless otherwise noted.

Sec.  222.102 [Amended]

    2. In Sec.  222.102, the definition: ``Leatherback conservation 
zone'' is removed.

PART 223--THREATENED MARINE SPECIES AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531 et seq.

    4. In Sec.  223.206:
    a. Paragraph (d)(2)(ii)(B)(1) is removed and paragraphs 
(d)(2)(ii)(B)(2) and (3) are re-designated as paragraphs 
(d)(2)(ii)(B)(1) and (2), respectively.
    b. Paragraph (d)(2)(iv) is removed and paragraph (d)(2)(v) is re-
designated as paragraph (d)(2)(iv).
    c. Paragraph (d)(5) is removed and reserved.
    d. Paragraphs (d)(2)(ii)(A)(2) and (4) are revised, and new 
paragraph (d)(2)(ii)(A)(5) is added to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (2) * * *
    (ii) * * *
    (A) * * *
    (2) Is a bait shrimper that retains all live shrimp on board with a 
circulating seawater system, if it does not possess more than 32 lb. 
(14.5 kg) of dead shrimp on board, if it has a valid original state 
bait-shrimp license, and if the state license allows the licensed 
vessel to participate in the bait shrimp fishery exclusively;
* * * * *
    (4) Is in an area during a period for which tow-time restrictions 
apply under paragraphs (d)(3)(ii) or (iii) of this section, if it 
complies with all applicable provisions imposed under those paragraphs; 
or
    (5) Is using a single test net (try net) with a headrope length of 
12 ft (3.6 m) or less and with a footrope length of 15 ft (4.6 m) or 
less, if it is pulled immediately in front of another net or is not 
connected to another net in any way, if no more than one test net is 
used at a time, and if it is not towed as a primary net, in which case 
the exemption under this paragraph (d)(2)(ii)(A) applies to the test 
net.
* * * * *

    5. In Sec.  223.207, paragraph (a) introductory text, paragraphs 
(a)(3)(ii), (a)(4) through (a)(8), (b)(1), (b)(2), (d)(2), (d)(3), the 
headings of paragraphs

[[Page 8468]]

(c)(1)(iv)(A) and (B) are revised and a new first sentence is added to 
paragraph (c)(1)(iv)(A) and a new last sentence is added to paragraph 
(c)(1)(iv)(B) to read as follows:


Sec.  223.207  Approved TEDs.

* * * * *
    (a) Hard TEDs. Hard TEDs are TEDs with rigid deflector grids and 
are categorized as ``hooped hard TEDs'' which may only be used in 
inshore waters, except for the inshore waters of Georgia and South 
Carolina and ``single-grid hard TEDs'' such as the Matagorda and 
Georgia TED (Figures 3 & 4 to this part). Hard TEDs complying with the 
following generic design criteria are approved TEDs:
* * * * *
    (3) * * *
    (ii) For any shrimp trawler fishing in the Gulf SFSTCA or the 
Atlantic SFSTCA, a hard TED with the position of the escape opening at 
the bottom of the net when the net is in its deployed position, the 
angle of the deflector bars from the normal, horizontal flow through 
the interior of the trawl, at any point, must not exceed 55[deg], and 
the angle of the bottom-most 4 inches (10.2 cm) of each deflector bar, 
measured along the bars, must not exceed 45[deg] (Figures 14a and 14b 
to this part).
    (4) Space between bars. The space between deflector bars and the 
deflector bars and the TED frame must not exceed 4 inches (10.2 cm).
    (5) Direction of bars. The deflector bars must run from top to 
bottom of the TED, as the TED is positioned in the net, except that up 
to four of the bottom bars and two of the top bars, including the 
frame, may run from side to side of the TED. The deflector bars must be 
permanently attached to the TED frame or to the horizontal bars, if 
used, at both ends.
    (6) Position of the escape opening. The escape opening must be made 
by removing a rectangular section of webbing from the trawl, except for 
a TED with an escape opening size described at paragraph (a)(7)(ii)(A) 
for which the escape opening may alternatively be made by making a 
horizontal cut along the same plane as the TED. The escape opening must 
be centered on and immediately forward of the frame at either the top 
or bottom of the net when the net is in the deployed position. The 
escape opening must be at the top of the net when the slope of the 
deflector bars from forward to aft is upward, and must be at the bottom 
when such slope is downward. The passage from the mouth of the trawl 
through the escape opening must be completely clear of any obstruction 
or modification, other than those specified in paragraph (d) of this 
section.
    (7) Size of escape opening--(i) Hooped hard TED. On a hooped hard 
TED, the escape opening must have a horizontal measurement no less than 
35 inches (89 cm) wide and a forward measurement no less than 27 inches 
(69 cm). A door frame may not be used over the escape opening; however, 
a webbing flap may be used as provided in paragraph (d)(3)(i) of this 
section. The resultant opening with a webbing flap must be a minimum 
width of 35 inches (89 cm) and a minimum height of 20 inches (51 cm), 
with each measurement taken simultaneously.
    (ii) Single-grid hard TEDs. On a single-grid hard TED, the 
horizontal cut(s) for the escape opening may not be narrower than the 
outside width of the TED frame minus 4 inches (10.2 cm) on both sides 
of the grid, when measured as a straight line width. Fore-and-aft cuts 
to remove a rectangular piece of webbing must be made from the ends of 
the horizontal cuts along a single row of meshes along each side. The 
overall size of the escape opening must match one of the following 
specifications:
    (A) 44-inch inshore opening. The escape opening must have a minimum 
width of 44 inches (112 cm) and a minimum height of 20 inches (51 cm) 
with each measurement taken separately. A webbing flap, as described in 
paragraph (d)(3)(i) of this section, may be used with this escape hole, 
so long as this minimum opening size is achieved. This opening may only 
be used in inshore waters, except it may not be used in the inshore 
waters of Georgia and South Carolina.
    (B) The 71-inch offshore opening: The two forward cuts of the 
escape opening must not be less than 26 inches (66 cm) long from the 
points of the cut immediately forward of the TED frame. The resultant 
length of the leading edge of the escape opening cut must be no less 
than 71 inches (181 cm) with a resultant circumference of the opening 
being 142 inches (361 cm) (Figure 12 to this part). A webbing flap, as 
described in paragraph (d)(3)(ii) of this section, may be used with 
this escape hole, so long as this minimum opening size is achieved. 
Either this opening or the one described in paragraph (a)(7)(ii)(C) of 
this section must be used in all offshore waters and in all inshore 
waters in Georgia and South Carolina, but may also be used in other 
inshore waters.
    (C) Double cover offshore opening. The two forward cuts of the 
escape opening must not be less than 20 inches (51 cm) long from the 
points of the cut immediately forward of the TED frame. The resultant 
length of the leading edge of the escape opening cut must be no less 
than 56 inches (142 cm)(Figure 16 to this part illustrates the 
dimensions of these cuts). A webbing flap, as described in paragraph 
(d)(3)(iii) of this section, may be used with this escape hole. Either 
this opening or the one described in paragraph (a)(7)(ii)(B) of this 
section must be used in all offshore waters but also in all inshore 
waters in Georgia and South Carolina, and may be used in other inshore 
waters.
    (8) Size of hoop or grid--(i) Hooped hard TED. The front hoop on a 
hard TED must have an inside horizontal measurement of at least 35 
inches (89 cm) and an inside vertical measurement of at least 30 inches 
(76 cm). The minimum clearance between the deflector bars and the top 
of the front hoop must be at least 20 inches (51 cm).
    (ii) Single-grid hard TED. A single-grid hard TED must have a 
minimum outside horizontal and vertical measurement of 32 inches (81 
cm). The required outside measurements must be at the mid-point of the 
deflector grid.
* * * * *
    (b) * * *
    (1) Flounder TED. (Figure 10 to this part). The Flounder TED is 
approved for use only in the Atlantic summer flounder bottom trawl 
fishery. The Flounder TED is not an approved TED for use by shrimp 
trawlers. The Flounder TED must be constructed of at least 1 1/4 inch 
(3.2 cm) outside diameter aluminum or steel pipe with a wall thickness 
of at least 1/8 inch (0.3 cm). It must have a rectangular frame with 
outside dimensions which can be no less than 51 inches (129.5 cm) in 
length and 32 inches (81.3 cm) in width. It must have at least five 
vertical deflector bars, with bar spacings of no more than 4 inches 
(10.2 cm). The vertical bars must be connected to the top of the frame 
and to a single horizontal bar near the bottom. The horizontal bar must 
be connected at both ends to the sides of the frame and parallel to the 
bottom bar of the frame. There must be a space no larger than 10 inches 
(25.4 cm) between the horizontal bar and the bottom bar of the frame. 
One or more additional vertical bars running from the bottom bar to the 
horizontal bar must divide the opening at the bottom into two or more 
rectangles, each with a maximum height of 10 inches (25.4 cm) and a 
maximum width of 14 1/2 inches (36.8 cm). This TED must comply with 
paragraph (a)(2) of this section. The angle of the deflector bars must 
be between 30 and 55 from the normal, horizontal flow through the 
interior of the trawl. The entire width of the escape opening from the 
trawl must

[[Page 8469]]

be centered on and immediately forward of the frame at the top of the 
net when the net is in its deployed position. The escape opening must 
be at the top of the net and the slope of the deflector bars from 
forward to aft is upward. The escape opening must be cut horizontally 
along the same plane as the TED, and may not be cut in a fore-and-aft 
direction. The cut in the trawl webbing for the escape opening cannot 
be narrower than the outside width of the grid minus 4 inches (10.2 cm) 
on both sides of the grid, when measured as a straight line width. The 
resulting escape opening in the net webbing must measure at least 35 
inches (88.9 cm) in horizontal taut length and, simultaneously, 12 
inches (30.5 cm) in vertical taut height. The vertical measurement must 
be taken at the midpoint of the horizontal measurement. This TED may 
not be configured with a bottom escape opening. Installation of an 
accelerator funnel is not permitted with this TED.
    (2) Weedless TED. The weedless TED must meet all the requirements 
of paragraph (a) of this section for single-grid hard TEDs, with the 
exception of paragraphs (a)(1) and (a)(5) of this section. The weedless 
TED must be constructed of at least 1-1/4 inch (3.2 cm) outside 
diameter aluminum with a wall thickness of at least 1/8 inch (0.3 cm). 
The deflector bars must run from top to bottom of the TED, as the TED 
is positioned in the net. The ends of the deflectors bars on the side 
of the frame opposite to the escape opening must be permanently 
attached to the frame. The ends of the deflector bars nearest the 
escape opening are not attached to the frame and must lie entirely 
forward of the leading edge of the outer frame. The ends of the 
unattached deflector bars must be no more than 4 inches (10.2 cm) from 
the frame and may not extend past the frame. A horizontal brace bar to 
reinforce the deflector bars, constructed of the same size or larger 
pipe as the deflector bars, must be permanently attached to the frame 
and the rear face of each of the deflector bars at a position anywhere 
between the vertical mid-point of the frame and the unattached ends of 
the deflector bars. The horizontal brace bar may be offset behind the 
deflector bars, using spacer bars, not to exceed 5 inches (12.7 cm) in 
length and constructed of the same size or larger pipe as the deflector 
bars. See Figure 15.
* * * * *
    (c) * * *
    (1) * * *
    (iv) * * *
    (A) Inshore opening. This opening is the minimum size opening that 
may be used in inshore waters, except it may not be used in the inshore 
waters of Georgia and South Carolina, in which a larger minimum opening 
is required.***
* * * * *
    (B) Offshore opening. * * * This opening or one that is larger must 
be used in all offshore waters and in the inshore waters of Georgia and 
South Carolina. It also may be used in other inshore waters.
* * * * *
    (d) * * *
    (2) Accelerator funnel. An accelerator funnel may be installed in 
the trawl, if it is made of net webbing material with a stretched mesh 
size of not greater than 1 5/8 inches (4 cm), if it is inserted in the 
net immediately forward of the TED, and if its rear edge does not 
extend past the bars of the TED. The trailing edge of the accelerator 
funnel may be attached to the TED on the side opposite the escape 
opening if not more than one-third of the circumference of the funnel 
is attached, and if the inside horizontal opening as described above in 
maintained. In a bottom opening TED only the top one-third of the 
circumference of the funnel may be attached to the TED. In a top 
opening TED only the bottom one-third of the circumference of the 
funnel may be attached to the TED.
    (i) In inshore waters, other than the inshore waters of Georgia and 
South Carolina in which a larger opening is required, the inside 
horizontal opening of the accelerator funnel must be at least 44 inches 
(112 cm).
    (ii) In offshore waters and the inshore waters of Georgia and South 
Carolina, the inside horizontal opening of the accelerator funnel must 
be at least 71 inches (180 cm).
    (3) Webbing flap. A webbing flap may be used to cover the escape 
opening under the following conditions: No device holds it closed or 
otherwise restricts the opening; it is constructed of webbing with a 
stretched mesh size no larger than 1-5/8 inches (4 cm); it lies on the 
outside of the trawl; it is attached along its entire forward edge 
forward of the escape opening; it is not attached on the sides beyond 
the row of meshes that lies 6 inches (15 cm) behind the posterior edge 
of the grid; the sides of the flap are sewn on the same row of meshes 
fore and aft; and the flap does not overlap the escape hole cut by more 
than 5 inches (13 cm) on either side.
    (i) 44-inch inshore TED flap. This flap may not extend more than 24 
inches (61 cm) beyond the posterior edge of the grid.
    (ii) 71-inch offshore TED Flap. The flap must be a 133-inch (338-
cm) by 52-inch (132-cm) piece of webbing. The 133-inch (338-cm) edge of 
the flap is attached to the forward edge of the opening (71-inch (180-
cm) edge). The flap may extend no more than 24 inches (61 cm) behind 
the posterior edge of the grid (Figure 12 to this part illustrates this 
flap).
    (iii) Double cover flap offshore TED flap. This flap must be 
composed of two equal size rectangular panels of webbing. Each panel 
must be no less than 58 inches (147 cm) wide and may overlap each other 
no more than 15 inches (38 cm). The panels may only be sewn together 
along the leading edge of the cut. The trailing edge of each panel must 
not extend more than 6 inches (15 cm) past the posterior edge of the 
grid (Figure 16 to this part). Chafing webbing described in paragraph 
(d)(4) of this section may not be used with this type of flap.
Figures 12 and 15 to Part 223 [Amended]

    6. In part 223, Figures 1, 2 and 11 are removed and reserved; 
Figures 12a and 12b are removed; new Figure 12 is added; and Figure 15 
is revised to read as follows:

BILLING CODE 3510-22-S

[[Page 8470]]

[GRAPHIC] [TIFF OMITTED] TR21FE03.002


[[Page 8471]]


[GRAPHIC] [TIFF OMITTED] TR21FE03.003


PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    7. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.


Sec.  224.104  [Amended

    8. In Sec.  224.104, paragraph (c) is removed, and paragraph (d) is 
redesignated as paragraph (c).
[FR Doc. 03-4136 Filed 2-20-03; 8:45 am]
BILLING CODE 3510-22-C