[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Proposed Rules]
[Pages 20571-20575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8698]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 040412112-4112-01; I.D. 040104C]
RIN 0648-AS02


Endangered and Threatened Wildlife; Sea Turtle Conservation 
Requirements

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

ACTION: Proposed rule.

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SUMMARY: NMFS is proposing to amend the turtle excluder device (TED) 
regulations that require most shrimp trawlers to use 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 proposes to allow the use of a double 
cover flap TED with a modified flap design. This modification would 
allow the use of a flap that extends up to 24 inches (61 cm) past the 
posterior edge of the TED frame. This modification has been tested and 
meets the regulatory requirements for efficiency at releasing sea 
turtles.

DATES: Written comments (see ADDRESSES) will be accepted through May 3, 
2004.

ADDRESSES: You may submit comments, identified by the docket number 
040412112-4112-01 and/or the Regulatory Information Number (RIN) 0648-
AS02, by any of the following

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methods: (1) E-mail: [email protected]. Include docket number 
040412112-4112-01 and/or RIN number 0648-AS02 in the subject line of 
the message; (2) Federal eRulemaking Portal: http://www.regulations.gov.
    Follow the instructions for submitting comments; (3) Fax: 727-570-
5517, Attention Mr. Robert Hoffman; (4) Mail: Comments on paper, disk, 
or CD-ROM should be addressed to the Assistant Regional Administrator 
for Protected Resources, NMFS Southeast Regional Office, 9721 Executive 
Center Drive North, Suite 102, St. Petersburg, FL 33702.
    All submissions received must include the agency name and docket 
number for this proposed rule. For access to the background documents 
or comments received, see contact information below.

FOR FURTHER INFORMATION CONTACT: Robert Hoffman (ph. 727-570-5312, fax 
727-570-5517, 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 Sec.  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 
ESA. 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, see Sec.  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 Sec.  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 (Sec.  223.207(e)(1)). Most approved hard TEDs are described 
in the regulations (Sec.  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 February 2003 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, fishermen have reported that 
the current double cover flap TED design stretches over time. This 
stretching causes a gap between the flap panels and the grid frame 
which causes shrimp loss.
    Since September 2003, and in accordance with Sec.  223.207(e)(2), 
NMFS has issued 208 experimental permits to fishermen to test a 
modified double cover flap TED with longer flap panels. This 
modification to the double cover flap TED was designed by NMFS gear 
technicians in cooperation with industry. The modification incorporates 
the use of flap panels that extend 24 inches (61 cm) past the posterior 
edge of the TED frame and are sewn down the entire length of the 
outside edge of each flap panel. The current double cover flap TED 
design only allows the flap panels to extend 6 inches (15 cm) past the 
posterior edge of the TED frame. Interviews with permitted fishermen 
have indicated that the new design works well.

Long Flap Paneled Double Cover Flap TED Testing

    NMFS tested the modified double cover flap 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 flap 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.
    The long flap double cover flap TED was also tested for its ability 
to release wild turtles of a range of sizes using a modified version of 
the Cape Canaveral testing protocol published in the Federal Register 
on October 9, 1990, (55 FR 41092). The 1990 protocol called for the use 
of a series of double rigged tows, in an area with a high sea turtle 
concentration (such as the Cape Canaveral Shipping Channel), in which 
one trawl is a naked net (no TED) and the other includes the 
experimental TED. The catch of turtles in the naked net is compared to 
the captures in the net with the TED installed to determine if the TED 
was at least 97 percent effective at releasing turtles as required by 
Sec.  223.207(e)(1). NMFS has modified this protocol to better protect 
turtles and to increase its accuracy. The modifications include the use 
of two trawls, each rigged with the experimental TED and a video camera 
mounted by the TED escape opening that can be monitored on board the 
research vessel. Once the NMFS technician on board the research vessel 
sees a turtle encounter the TED, the turtle is given 10 minutes to 
escape. If the turtle does not escape within 10 minutes, the trawl is 
retrieved and the turtle is released. Any turtle that does

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not escape within 10 minutes is considered to have been captured.
    Using this modified Cape Canaveral protocol, NMFS tested the 
modified double cover flap TED off the coast of Georgia between 
November 13 and November 18, 2003, and in the Cape Canaveral Channel 
between February 19 through March 12, 2004. In total, 33 turtles were 
exposed to this TED with 32 of the turtles escaping within the 10-
minute exposure period for a 97 percent success rate. The turtles 
exposed to the modified double cover flap TED included one leatherback, 
seven Kemp's ridleys, and 25 loggerheads. The single turtle that did 
not escape within the 10 minute limit was a juvenile loggerhead.

Provisions of the Proposed Rule

    The proposed rule would allow the use of a double cover flap TED 
with flap panels that extend between 6 inches (15 cm) but no more than 
24 inches (61 cm) past the posterior edge of the grid with the use of 
edge lines in all areas and at all times where and when TEDs are 
required. The proposed rule would only modify the existing requirements 
for the double cover flap TED in a permissive manner, i.e. fishermen 
may now use longer flaps and edge lines on double cover flap TEDs, and 
they are not required to change existing gear.
    Specifically, the proposed rule would allow a single-grid hard TED 
with the escape opening cut of at least 56 inches (142 cm) wide and 20 
inches (51 cm) forward and aft, covered with a split flap composed of 
two equal size rectangular panels. 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 edge of the panels may extend no more than 24 inches (61 
cm) past the posterior edge of grid, and may be sewn down the entire 
length of the outside edge of each flap panel. To better preserve the 
shape of the webbing panels over time, edge lines can be used around 
the edges of the unattached portion of the flap panels to help maintain 
the shape of the flap. Edge lines can only be used if the flap panels 
are sewn down the entire length of the outside edge of each flap panel.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a draft environmental assessment/intitial regulatory 
impact review/Regulatory Flexibility Act analysis (EA/RIR/IRFA) for 
this proposed rule that evaluates the potential impact on the 
environment that may result from the proposed rule. The EA/IRFA/RIR 
found that the implementation of this proposed 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.
    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 fishery. Among these vessels, approximately 2,600 vessels are 
currently permitted to operate in the Gulf of Mexico EEZ commercial 
shrimp trawl fishery. Small vessels in the Southeast shrimp trawl 
fishery are estimated to harvest an average of 4,752 lb (2,155 kg) of 
shrimp valued at $12,435 in gross revenues, requiring 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 valued at $142,880 in gross 
revenues, requiring average variable cost expenditures of $126,089 and 
generating a profit of $16,089. All participants in the trawl fishery 
would be affected by the proposed action in that each would have the 
opportunity to utilize proposed gear modification. However, the 
preferred alternative would not impose a requirement to use the 
proposed longer flaps, nor would the use of double-cover TEDs rather 
than other certified TED designs be required. The proposed rule, 
therefore, would create options and not obligations. Use of the 
proposed modified TED will require no special skills other than those 
currently necessary to operate in the fishery. No duplicative, 
overlapping, or conflicting Federal rules have been identified. All 
business entities participating in the commercial shrimp fisheries are 
considered small entities, so the issue of disproportionality does not 
arise. The proposed rule will not impose any additional fishing 
restrictions on participants in the fishery. The proposed rule would 
simply allow greater flexibility to select the gear configuration that 
best suits the operational conditions of the individual shrimping 
operation. Thus, current operational behaviors, including when to 
shrimp, where to shrimp, and how long to shrimp, as well as where 
product is marketed, can continue unchanged. Minor costs associated 
with additional netting necessary to extend the flaps may be incurred. 
However, these costs should not impact profitability and, in fact, 
would only be incurred should the operator determine that the current 
flap dimensions result in excessive shrimp loss, such that modification 
would result in a net financial gain. Thus, no reduction in profits are 
expected for any small entities.
    The proposed rule is not expected to result in any direct adverse 
economic impacts on small entities. The issue of significant 
alternatives is, therefore, not relevant. However, two alternatives 
were considered but not analyzed for their economic impact. The first 
was to allow the longer flap, but at a maximum length of something less 
than 24 inches (60.96 cm). The second was to allow the longer flap with 
a maximum length of 24 inches (60.96 cm) but only allow it to be sewn 
down each side by six inches. Tests of the long flap double cover flap 
TED, with a 24-inch (60.96-cm) flap sewn all the way down both sides 
(the flap configuration of the preferred alternative), have shown that 
this flap configuration is at least 97 percent effective at releasing 
sea turtles; therefore, to approve either of these more restrictive 
alternatives would arbitrarily limit a fisherman's ability to modify 
his gear. Therefore the only alternatives considered for further 
analysis were the preferred action and the no action alternative. The 
no action alternative would maintain current flap specifications, 
thereby continuing reported, but unsubstantiated and unquantified, 
shrimp loss that results from stretching of the flaps. This 
alternative, therefore, would not eliminate the unanticipated shrimp 
loss associated with current specifications, nor provide gear 
flexibility as per the NMFS' intent.
    A copy of the EA/RIR/IRFA is available from NMFS (see ADDRESSES).
    The Endangered Species Act provides the statutory basis for this 
proposed rule.

List of Subjects in 50 CFR Part 223

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

    Dated: April 12, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, 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.

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    2. In Sec.  223.207, paragraphs (d)(3)(iii) is revised to read as 
follows:


Sec.  223.207  Approved TEDs.

* * * * *
    (d) * * *
    (3) * * *
    (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 24 inches (61 cm) past the posterior edge of the 
grid (Figure 16 to this part). Each panel may be sewn down the entire 
length of the outside edge of each panel. Chafing webbing described in 
paragraph (d)(4) of this section may not be used with this type of 
flap.
    (A) Edge lines. Optional edge lines can be used in conjunction with 
this flap. The line must be made of polyethylene with a maximum 
diameter of 3/8 inches (.95 cm). A single length of line must be used 
for each flap panel. The line must be sewn evenly to the unattached, 
inside edges and trailing edges, of each flap panel. When edge lines 
are installed, the outside edge of each flap panel must be attached 
along the entire length of the flap panel.
    (B) [Reserved]
    3. In part 223, Figure 16 is revised to read as follows:
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TP16AP04.007

[FR Doc. 04-8698 Filed 4-15-04; 8:45 am]
BILLING CODE 3510-22-C