[Federal Register Volume 68, Number 166 (Wednesday, August 27, 2003)]
[Rules and Regulations]
[Pages 51508-51515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21858]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No.030725185-3207-02; 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: Final rule.

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SUMMARY: NMFS is amending the turtle excluder device (TED) regulations 
that require most shrimp trawlers to use Turtle Excluder Devices (TEDs) 
in the southeastern Atlantic and the Gulf of Mexico, to reduce the 
incidental capture of endangered and threatened sea turtles during 
shrimp trawling. Specifically, NMFS is allowing the use of a design of

[[Page 51509]]

a hooped hard TED (``the Coulon TED'') that is capable of releasing 
large loggerhead and green turtles as well as leatherback turtles.

DATES: This final rule is effective August 21, 2003.

ADDRESSES: Copies of the environmental assessment can be obtained from 
the Protected Resources Division, Southeast Regional Office, 9721 
Executive Center Drive, North, Suite 102 St. Petersburg, Florida, 
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.
    Sea turtles are incidentally taken and killed as a result of 
numerous activities, including fishery 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, or if in accordance with the 
terms and conditions of a biological opinion issued under section 7 of 
the ESA or an incidental take permit issued under section 10 of the 
Act. 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 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, see 50 CFR 223.206) 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, the flounder TED, and one type of soft TED the 
Parker soft TED (see 50 CFR 223.207).
    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 (50 CFR 223.207(e)(1)). 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.

February 21, 2003, Amendments 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. The February final rule 
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 has tested a new hooped hard TED design developed in 
Louisiana (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 
in offshore waters 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 (55 FR 41092, October 9, 
1990). 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.
    Therefore, on July 30, 2003, NMFS published a proposed rule (68 FR 
44722) requesting comments on allowing the use of a large hooped hard

[[Page 51510]]

TED in the offshore waters of the Atlantic and Gulf of Mexico. NMFS 
received two comments on the proposed rule.

Pubic Comments

    Comment 1: The University of Georgia Marine Extension Service is 
concerned that the codified text specifying construction materials for 
TEDs in the proposed rule requires that if steel rod is used to 
construct a single grid hard TED or an inshore hooped hard TED the 
steel rod used must have an outside diameter of 1/2 inch (1.27 cm). 
This is a significant change from the required 1/4 inch (.64 cm) 
currently required.
    Response: NMFS thanks the commenter for bringing this to our 
attention. This is a typographical error in the proposed rule and has 
been corrected in this final rule.
    Comment 2: An environmental organization stated that although they 
do not oppose NMFS allowing the use of the Coulon TED, they asserted 
that any certified TED must continue to be reviewed, monitored and 
enforced to ensure that it is effectively releasing sea turtles. The 
commenter stated that NMFS must increase the monitoring and enforcement 
of the TED regulations to ensure that these devices are performing as 
specified.
    Response: NMFS agrees that any TED certified for use in the shrimp 
fishery should be monitored to ensure proper performance. NMFS 
Southeast Fisheries Science Center's Harvesting Systems and Engineering 
Branch works closely with the industry, net manufacturers, observer 
program, and enforcement to ensure that any problems encountered with 
the performance of TEDs during fishing conditions is addressed through 
further gear development and testing. NMFS enforcement will continue to 
enforce and monitor the TED requirements, including the Coulon TED. 
However given the anticipated limited use of the Coulon TED, NMFS does 
not intend to commit extra resources towards monitoring this device.

Provisions of the Final Rule

    NMFS is issuing a rule allowing the use of an offshore hooped hard 
TED that has to 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 with a 
minimum outside diameter of 5/8 inch (1.59 cm) or aluminum tubing with 
a minimum outside diameter of 1 inch (2.54 cm) and 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) (see Figure 1 for 
illustrations of the offshore hooped hard TED and its dimensions)
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    This final rule will also 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 is 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 (see 50 CFR 223.207(d)(3)(iii)).
    The third allowable modification for hooped hard TEDs is the use of 
a hinged door frame to partially cover the escape opening. The door 
frame must be at least as wide as the escape opening, may be up to a 
maximum of 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. If a water deflector fin is used with a 
hinged door it must be welded to the posterior edge of the door frame, 
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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Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an environmental assessment (EA) for this final rule 
that evaluates the potential impact on the environment that may result 
from the final rule. The EA found that the implementation of this final 
rule will not have a significant impact on the quality of the human 
environment and that the preparation of an environmental impact 
statement is not necessary. A copy of the EA is available from NMFS 
(see ADDRESSES).
    Under the existing TED regulations published on February 21, 2003, 
offshore fishermen can choose to use a single grid hard TED with either 
a 71-inch (180-cm) opening or a double cover flap, or they can use a 
Parker soft TED with a leatherback opening. Until this final rule 
becomes effective, hooped hard TED use would not be legal in offshore 
waters. Accordingly, if the effectiveness of this rule is delayed, it 
would burden fishermen whocurrently use hooped hard TEDS in offshore 
waters and plan to continue using them by forcing them either to 
abstain from fishing until the rule becomes effective, or else purchase 
an additional TED of one of the varieties described above. If the rule 
becomes effective immediately, then there will be no need for such 
substantial duplicative expenditures in order to fish during that 
period. Therefore, because this rule relieves a restriction, the 
Assistant Administrator for Fisheries, NOAA, finds good cause under the 
Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1) to waive 
the 30 day delay in effectiveness for this final rule.
    The Endangered Species Act provides the statutory basis for this 
final 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 final rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
This final rule, if adopted, will not have a significant economic 
impact on a substantial number of small entities because the provisions 
of the final rule would not require any action or purchase on the part 
of fishermen, but rather 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 this TED style due to 
its efficiency in releasing both turtles and fish bycatch, while 
retaining shrimp. Therefore, 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: August 21, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 223 will be 
amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

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

0
2. In Sec.  223.207, paragraphs (a)introductory text, (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 1/4 inch 
(0.64 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) \ 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

[[Page 51515]]

TED with an angle between 5[deg] and 45[deg] 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 by a hinge device 
that allows 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. 03-21858 Filed 8-21-03; 5:02 pm]
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