[Federal Register Volume 68, Number 146 (Wednesday, July 30, 2003)]
[Proposed Rules]
[Pages 44722-44728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19375]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 030725185-3185-01; I.D.071403B]
RIN 0648-AR34


Endangered and Threatened Wildlife; Sea Turtle Conservation 
Requirements

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes to amend 
the regulations that require most shrimp trawlers to use Turtle 
Excluder Devices (TEDs) in the southeastern Atlantic, including the 
Gulf of Mexico, to reduce the incidental capture of endangered and 
threatened sea turtles during shrimp trawling. Specifically, NMFS 
proposes to allow the use of a specific design of a hooped hard TED 
(``the Coulon TED'') that is capable of releasing large loggerhead and 
green turtles as well as leatherback turtles.

DATES: Written comments (see ADDRESSES) will be accepted through August 
14, 2003.

ADDRESSES: Written comments on this action should be addressed to the 
Chief, Endangered Species Division, Office of Protected Resources, 
NMFS, by regular mail to 1315 East-West Highway, Silver Spring, MD 
20910 or by fax to 301-713-0376. Comments will not be accepted if 
submitted via e-mail or the Internet.

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) 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.
    Sea turtles are incidentally taken and killed as a result of 
trawling activities in the Gulf of Mexico and along the Atlantic 
seaboard. Under the ESA and its implementing regulations, taking sea 
turtles is prohibited, with exceptions identified in 50 CFR 223.206. 
The incidental taking of turtles during shrimp or summer flounder 
trawling is exempted from the taking prohibition of section 9 of the 
ESA if the conservation measures specified in the sea turtle 
conservation regulations (50 CFR part 223) are followed. 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) to have a NMFS-approved 
Turtle Excluder Device (``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, the flounder TED, and one type of 
soft TED the Parker soft TED. Hooped hard TEDs are currently approved 
for use only in the inshore waters of the Atlantic. Effective August 
21, 2003, hooped hard TEDs will be approved for use in inshore waters 
of the Gulf Area as well.
    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 97 percent effective in 
excluding sea turtles during testing based upon specific testing 
protocols (55 FR 41092, October 9, 1990). Most approved hard TEDs are 
described in the regulations (50 CFR 223.207 (a)) according to 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.

[[Page 44723]]

February 21, 2003, Amendment to the Sea Turtle Conservation Regulations

    On February 21, 2003, NMFS issued a final rule (68 FR 8456), 
amending the sea turtle conservation regulations to protect large 
loggerhead, green, and leatherback sea turtles. The final rule became 
effective April 15, 2003, with the exception of the Gulf Area where it 
will become effective on August 21, 2003. It requires that all shrimp 
trawlers fishing in the offshore waters of the southeastern United 
States (Atlantic Area and Gulf Area) and the inshore waters of Georgia 
and South Carolina use either a double cover flap TED, a single-grid 
hard TED with a 71-inch (180-cm) opening, or a Parker soft TED with a 
96-inch (244-cm) opening in each net rigged for fishing. In inshore 
waters, except those of Georgia and South Carolina, the rule allows the 
use of a single-grid hard TED with a 44-inch (112-cm) opening, a Parker 
soft TED with a 56-inch (142-cm) opening, and a hooped hard TED with a 
35-inch (89-cm) by 27-inch (69-cm) escape opening.
    Since publication of the final rule (68 FR 8456, February 21, 
2003), NMFS tested a new hooped hard TED design developed in Louisiana 
(this hooped hard TED is called the Coulon TED) that contains a larger 
escape opening than the hooped hard TED design used in inshore waters. 
Louisiana fishermen prefer the Coulon TED due to its higher shrimp 
retention, and its efficiency and quickness in releasing both turtles 
and fish bycatch. Because of the desire of fishermen to continue to use 
this style of TED and their assertion that it could indeed be made 
large enough to release leatherback turtles, the Southeast Fisheries 
Science Center's Harvesting Systems and Engineering Branch worked with 
the inventor of the Coulon TED and fishermen who use it to develop and 
test a large Coulon style TED to evaluate its ability to release large 
loggerhead, green, and leatherback turtles.

Large Hooped Hard TED Testing

    NMFS tested the large Coulon style TED using testing protocols 
designed to evaluate a TED's ability to release large turtles. The 
protocols were developed during the testing and approval of the double 
cover TED (66 FR 24287, May 14, 2001). NMFS used the average carapace 
measurements of 15 nesting female leatherback turtles to construct a 
pipe-framed model of a leatherback turtle. This model measured 40 
inches wide by 21 inches (102 cm by 53 cm) deep. The test was performed 
by a diver swimming repeatedly through the trawl with the model and 
pushing it through the TED opening. During these tests, the diver was 
able to push the model through the opening with ease. When the model 
was inverted (simulating the dorsal surface of the turtle oriented 
against the TED frame), the diver was still able to push the model 
through the opening with ease.
    A large Coulon style TED with a hinged door covering the escape 
opening to within 12 inches (30 cm) from the back edge of the opening 
was also tested to determine its ability to release small turtles. The 
small turtle protocol calls for the release of 25 turtles, released one 
at a time, into a trawl towed at 2.5 knots. Each turtle is given 5 
minutes to escape; if the turtle does not escape within 5 minutes, it 
is retrieved by divers and is considered to have been captured. The 
capture rate is then compared to that of a control TED (in this case a 
top opening double cover flap TED).
    During the week of June 22, 2003, 25 small turtles were exposed to 
the large Coulon style TED with a hinged door and all 25 turtles 
escaped quickly and easily. The Southeast Fisheries Science Center's 
Harvesting Systems and Engineering Branch believes that this particular 
configuration of the large Coulon style TED would be the most difficult 
for small turtles to escape from because of the weight and size of the 
door. However, when compared to the control TED, the average escape 
times did not differ significantly; the average escape time for the 
control TED was 62 seconds compared to 68 seconds for the Coulon style 
TED with the hinged door.
    Based upon the tests described above, NMFS determined that the 
large Coulon style TED meets the regulatory turtle release rate 
requirement.

Provisions of the Proposed Rule

    NMFS proposes to allow a specific design of a hooped hard TED for 
offshore use, along with allowable modifications for hooped hard TEDs. 
The offshore hooped hard TED must meet certain minimum construction 
standards, in addition to the construction standards specified for hard 
TEDs generally. The frame for this TED must be made of aluminum rod a 
minimum of 5/8 inch (1.59 cm) in diameter or aluminum tubing a minimum 
of 1 inch (2.54 cm) in diameter with a minimum wall thickness of 1/8 
inch (0.32 cm). The escape opening must have a horizontal measurement 
of no less than 40 inches (102 cm) wide and a forward measurement of no 
less than 35 inches (89 cm). The front hoop on an offshore hooped hard 
TED must have an inside horizontal measurement of at least 40 inches 
(102 cm) and an inside vertical measurement of at least 30 inches (76 
cm). The minimum clearance between the deflector bars and the forward 
edge of the escape opening must be at least 23\1/4\ inches (59 cm). The 
measurement between support bars must be no less than 40 inches (102 
cm). The clearance between the deflector bars and the forward edge of 
the escape opening must be no less than 23\1/4\ inches (59 cm)(see 
Figure 1 for illustrations of the offshore hooped hard TED and its 
dimensions).
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[[Page 44725]]

    The proposed rule would allow three modifications for hooped hard 
TEDs. The first is the use of a water deflector fin used to increase 
shrimp retention. The original Coulon TED design incorporates such a 
water deflector fin. This fin can be welded onto the forward edge of 
the escape opening, projecting aft into the TED with an angle of 5 to 
45-degrees from the normal, horizontal plane of the trawl. The fin must 
be constructed of a flat aluminum bar, up to 3/8 inch (0.95 cm) thick 
and up to 4 inches (10.2 cm) deep. The fin may be as wide as the width 
of the escape opening, minus 1 inch (2.5 cm).
    The second allowable modification will be the use of a webbing 
flap. The resultant escape opening for the offshore hooped hard TED 
with a webbing flap must have a stretched mesh circumference of no less 
than 142 inches (361 cm). The end of the flap cannot extend more than 
24 inches (61 cm) past the posterior edge of the frame. This is the 
same webbing flap allowed for use with single-grid hard TEDs with the 
71-inch (180 cm) offshore opening.
    The third allowable modification for hooped hard TEDs will be the 
use of a hinged door frame to partially cover the escape opening. The 
door must be at least as wide as the escape opening, may be up to 24 
inches (61 cm) long, may be covered with taut mesh webbing (the size of 
the mesh cannot be greater than that used for the TED extension 
webbing), and must be connected to the forward edge of the escape 
opening by a hinge device that will allow the door to open upwards 
freely. The posterior edge of the door frame, in the closed position, 
must lie at least 12 inches (30 cm) forward of the posterior edge of 
the escape opening. A water deflector fin may be welded to the 
posterior edge of the door frame. This fin can be welded onto the 
forward edge of the escape opening, projecting aft into the TED with an 
angle of 5-45 degrees from the normal, horizontal plane of the trawl. 
The fin must be constructed of a flat aluminum bar, up to 3/8 inch 
(0.95 cm) thick and up to four inches (10.2 cm) deep. The fin may be as 
wide as the width of the escape opening, minus one inch (2.5 cm). The 
deflector fin must be no less than 12 inches (30 cm) forward of the 
posterior edge of the escape opening, when the door is in the closed 
position. Two stopper ropes or a hinge limiter may be used to limit the 
maximum opening height of the hinged door frame, as long as the minimum 
clearance between any part of the deflector bars and any part of the 
door, including a water deflector fin if installed, in its fully open 
position is at least 23\1/4\ inches (59 cm) for an offshore hooped hard 
TED or at least 20 inches (51 cm) for an inshore hooped hard TED. The 
purpose of the stopper ropes or hinge limiters is to prevent the door 
frame from opening excessively during net deployment and haulback, 
possibly resulting in loss of catch or damage to the door. Any stopper 
ropes or hinge limiters must not restrict the free operation of the 
door, up to its maximum opening (i.e. the door must be able to easily 
swing to the required opening height before the stops or limiters 
affect its movement.) The hinged door cannot be used in combination 
with a webbing flap or with a water deflector fin attached to the 
forward edge of the escape opening (See Figure 2 for illustration of 
the optional hinged door frame, shown with water deflector fin).
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[[Page 44727]]

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The National Marine Fisheries Service (NMFS) prepared an 
environmental assessment (EA) for this proposed rule that evaluates the 
potential impact on the environment that may result from the proposed 
rule. The EA found that the implementation of this proposed rule would 
not have a significant impact on the quality of the human environment 
and that the preparation of an environmental impact statement was not 
necessary. A copy of the EA is available from NMFS (see ADDRESSES).
    The Endangered Species Act provides the statutory basis for this 
proposed rule.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule, if adopted, will not have significant economic 
impact on a substantial number of small entities because the provisions 
of the proposed rule would allow fishermen the option of a hooped hard 
TED design to comply with the TED requirement. Hooped hard TEDs are 
already in use by some fishermen who prefer the Coulon TED due to its 
efficiency in releasing both turtles and fish bycatch, while retaining 
shrimp. As a result, a regulatory flexibility analysis was not 
prepared.

List of Subjects in 50 CFR Part 223

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

    Dated: July 25, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531 et seq.
    2. In Sec.  223.207, paragraphs (a)(1), (a)(7)(i), and (a)(8)(i) 
are revised and paragraphs (d)(6) and (d)(7) are added 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'' 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:
    (1) Construction materials--(i) Single-grid and inshore hooped hard 
TED. A single-grid hard TED or an inshore hooped hard TED must be 
constructed of one or a combination of the following materials, with 
minimum dimensions as follows:
    (A) Solid steel rod with a minimum outside diameter of \1/2\ inch 
(1.27 cm);
    (B) Fiberglass or aluminum rod with a minimum outside diameter of 
\1/2\ inch (1.27 cm); or
    (C) Steel or aluminum tubing with a minimum outside diameter of \1/
2\ inch (1.27 cm) and a minimum wall thickness of 1/8 inch (0.32 cm) 
(also known as schedule 40 tubing).
    (ii) Offshore hooped hard TED. An offshore hooped hard TED must be 
constructed of aluminum, with minimum dimensions as follows:
    (A) Solid rod with a minimum outside diameter of 5/8 inch (1.59 
cm); or
    (B) Tubing with a minimum outside diameter of 1 inch (2.54 cm) and 
a minimum wall thickness of 1/8 inch (0.32 cm).
* * * * *
    (7) * * *
    (i) Hooped hard TEDs. * * *(A) Escape opening for inshore hooped 
hard TED. The inshore hooped hard TED escape opening must have a 
horizontal measurement of no less than 35 inches (89 cm) wide and a 
forward measurement of no less than 27 inches (69 cm). A hinged door 
frame may be used to partially cover the escape opening as provided in 
paragraph (d)(7) of this section. Alternatively, 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. 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) Escape opening for offshore hooped hard TED. The offshore 
hooped hard TED escape opening must have a horizontal measurement of no 
less than 40 inches (102 cm) wide and a forward measurement of no less 
than 35 inches (89 cm). A hinged door frame may be used to partially 
cover the escape opening as provided in paragraph (d)(7) of this 
section. Alternatively, a webbing flap may be used as provided in 
paragraph (d)(3)(ii) of this section. The resultant escape opening with 
a webbing flap must have a stretched mesh circumference of no less than 
142 inches (361 cm).
* * * * *
    (8) * * *
    (i) Hooped hard TEDs--(A) Inshore hooped hard TED. The front hoop 
on an inshore hooped 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 forward edge of the escape opening 
must be at least 20 inches (51 cm).
    (B) Offshore hooped hard TED. The front hoop on an offshore hooped 
hard TED must have an inside horizontal measurement of at least 40 
inches (102 cm) and an inside vertical measurement of at least 30 
inches (76 cm). The minimum clearance between the deflector bars and 
the forward edge of the escape opening must be at least 23\1/4\ inches 
(59 cm).
* * * * *
    (d) * * *
    (6) Water deflector fin for hooped hard TEDs. On a hooped hard TED, 
a water deflector fin may be welded to the forward edge of the escape 
opening. The fin must be constructed of a flat aluminum bar, up to 3/8 
inch (0.95 cm) thick and up to 4 inches (10.2 cm) deep. The fin may be 
as wide as the width of the escape opening, minus 1 inch (2.5 cm). The 
fin must project aft into the TED with an angle between 5 and 45 from 
the normal, horizontal plane of the trawl. On an inshore hooped hard 
TED, the clearance between the deflector bars and the posterior edge of 
the deflector fin must be at least 20 inches (51 cm). On an offshore 
hooped hard TED, the clearance between the deflector bars and the 
posterior edge of the deflector fin must be at least 23\1/4\ inches (59 
cm).
    (7) Hinged door frame for hooped hard TEDs. A hinged door frame may 
be attached to the forward edge of the escape opening on a hooped hard 
TED. The door frame must be constructed of materials specified at 
paragraphs (a)(1)(i) or (a)(1)(ii) of this section for inshore and 
offshore hooped hard TEDs, respectively. The door frame may be covered 
with a single panel of mesh webbing that is taut and securely attached 
with twine to the perimeter of the door frame, with a mesh size not 
greater than that used for the TED extension webbing. The door frame 
must be at least as wide as the TED escape opening. The door frame may 
be a maximum of 24 inches (61 cm) long. The door frame must be 
connected to the forward edge of the escape opening

[[Page 44728]]

by a hinge device that will allow the door to open outwards freely. The 
posterior edge of the door frame, in the closed position, must lie at 
least 12 inches (30 cm) forward of the posterior edge of the escape 
opening. A water deflector fin may be welded to the posterior edge of 
the hinged door frame. The fin must be constructed of a flat aluminum 
bar, up to 3/8 inch (0.95 cm) thick and up to four inches (10.2 cm) 
deep. The fin may be as wide as the width of the escape opening, minus 
one inch (2.5 cm). The fin must project aft into the TED with an angle 
between 5[deg] and 45[deg] from the normal, horizontal plane of the 
trawl, when the door is in the closed position. The clearance between 
the posterior edge of the escape opening and the posterior edge of the 
door frame or the posterior edge of the water deflector fin, if 
installed, must be no less than 12 inches (30 cm), when the door is in 
the closed position. Two stopper ropes or a hinge limiter may be used 
to limit the maximum opening height of the hinged door frame, as long 
as they do not obstruct the escape opening in any way or restrict the 
free movement of the door to its fully open position. When the door is 
in its fully open position, the minimum clearance between any part of 
the deflector bars and any part of the door, including a water 
deflector fin if installed, must be at least 20 inches (51 cm) for an 
inshore hooped hard TED and at least 23\1/4\ inches (59 cm) for an 
offshore hooped hard TED. The hinged door frame may not be used in 
combination with a webbing flap specified at paragraph (d)(3) of this 
section or with a water deflection fin specified at paragraph (d)(6) of 
this section.
[FR Doc. 03-19375 Filed 7-29-03; 8:45 am]
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