[Federal Register Volume 69, Number 230 (Wednesday, December 1, 2004)]
[Rules and Regulations]
[Pages 69826-69828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26500]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 041124330-4330-01; I.D. 111904C]
RIN 0648-AS91


Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Temporary rule.

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SUMMARY: NMFS issues this temporary authorization for a period of 30 
days, to allow the use of limited tow times by shrimp trawlers as an 
alternative to the use of Turtle Excluder Devices (TEDs) in the state 
waters of Alabama and the state waters of Louisiana from the 
Mississippi/Louisiana border to a line at 90[deg]03'00'' West longitude 
(approximately the west end of Grand Isle). This action is necessary 
because environmental conditions as a result of Hurricane Ivan are 
hampering the fishermen's ability to use TEDs effectively.

DATES: Effective from November 26, 2004 through December 27, 2004.

ADDRESSES: Requests for copies of the Environmental Assessment on this 
action should be addressed to the Chief, Marine Mammal Division, Office 
of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-570-5794, or 
Barbara A. Schroeder, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act of 1973 
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback 
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) turtles 
are listed as endangered. The loggerhead (Caretta caretta) and green 
(Chelonia mydas) turtles are listed as threatened, except for breeding 
populations of green turtles in Florida and on the Pacific coast of 
Mexico, which are listed as endangered.
    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, the taking of sea turtles is prohibited, with 
exceptions identified in 50 CFR 223.206(d), or according to the terms 
and conditions of a biological opinion issued under section 7 of the 
ESA, or according to 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 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.
    The regulations governing sea turtle take prohibitions and 
exemptions provide for the use of limited tow times as an alternative 
to the use of TEDs for vessels with certain specified characteristics 
or under certain special circumstances. The provisions of 50 CFR 
223.206(d)(3)(ii) specify that the NOAA Assistant Administrator for 
Fisheries (AA) may authorize compliance with tow time restrictions as 
an alternative to the TED requirement if the AA determines that the 
presence of algae, seaweed, debris, or other special environmental 
conditions in a particular area makes trawling with TED-equipped nets 
impracticable. The provisions of 50 CFR 223.206(d)(3)(i) specify the 
maximum tow times that may be used when tow-time limits are authorized 
as an alternative to the use of TEDs. The tow times may be no more than 
55 minutes from April 1 through October 31 and no more than 75 minutes 
from November 1 through March 31, as measured from the time that the 
trawl doors enter the water until they are removed from the water. 
These tow time limits are designed to minimize the level of mortality 
of sea turtles that are captured by trawl nets not equipped with TEDs.

Recent Events

    On September 27, 28, and 29, 2004, the NOAA Fisheries' Southeast 
Regional Administrator received requests from the Marine Fisheries 
Division of the Alabama Department of Conservation and Natural 
Resources (ADCNR), the Mississippi Department of Marine Resources 
(MDMR), and the Louisiana Department of Wildlife and Fisheries (LDWF), 
respectively, to allow the use of tow times as an alternative to TEDs 
in state waters due to the presence of excessive storm-related debris 
on the fishing grounds as a result of Hurricane Ivan. Subsequent to 
these requests, NOAA Fisheries issued a 30-day variance of the TED 
requirements from October 12 through November 11, 2004.
    On November 15, 2004, the NOAA Fisheries' Southeast Regional 
Administrator received requests from the Marine Fisheries Division of 
the ADCNR and LDWF for an additional 30-day period allowing the use of 
tow times as an alternative to TEDs in state waters due to the presence 
of excessive storm-related debris that is still present on the fishing 
grounds as a result of Hurricane Ivan. After an investigation, the 
ADCNR and LDWF have determined that this debris continues to affect the 
fishermen's ability to use TEDs effectively. When a TED is clogged with 
debris, it can no longer catch shrimp effectively nor can it 
effectively exclude turtles. Alabama and Louisiana have stated that 
their marine enforcement agencies will increase patrols to enforce the 
tow time restrictions.
    NOAA Fisheries gear technicians interviewed fishermen and surveyed 
parts of the affected areas in Alabama,

[[Page 69827]]

Mississippi, and Louisiana. The interviews and surveys conducted by the 
gear technicians indicate that problems with debris exist in Alabama 
and Louisiana state waters, which are likely to affect the 
effectiveness of TEDs. Debris did not appear to be a significant 
problem throughout the majority of Mississippi state waters.

Special Environmental Conditions

    The AA finds that debris washed into the state waters of Alabama 
and the state waters of Louisiana from the Mississippi/Louisiana border 
to a line at 90[deg]03'00'' West longitude (approximately the west end 
of Grand Isle) by Hurricane Ivan has created special environmental 
conditions that make trawling with TED-equipped nets impracticable. 
Therefore, the AA issues this notification to authorize the use of 
restricted tow times as an alternative to the use of TEDs in the state 
waters of Alabama and the state waters of Louisiana from the 
Mississippi/Louisiana border to a line at 90[deg]03'00'' West longitude 
(approximately the west end of Grand Isle) for a period of 30 days. Tow 
times must be limited to no more than 75 minutes measured from the time 
trawl doors enter the water until they are retrieved from the water. 
The marine patrols of the affected states are continuing to monitor the 
situation and will cooperate with NMFS in determining the extent of the 
ongoing debris problem in this area. Moreover, the affected states have 
stated that their marine patrols will enforce the restricted tow times. 
Ensuring compliance with tow time restrictions is critical to effective 
sea turtle protection, and the commitment from the affected states' 
marine patrols to enforce tow time restrictions is an important factor 
enabling NMFS to issue this authorization.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in the affected areas to continue 
to use TEDs if possible, even though they are authorized under this 
action to use restricted tow times.
    NMFS' gear experts have provided several general operational 
recommendations to fishermen to maximize the debris exclusion ability 
of TEDs that may allow some fishermen to continue using TEDs without 
resorting to restricted tow times. To exclude debris, NMFS recommends 
the use of hard TEDs made of either solid rod or of hollow pipe that 
incorporate a bent angle at the escape opening, in a bottom-opening 
configuration. In addition, the installation angle of a hard TED in the 
trawl extension is an important performance element in excluding debris 
from the trawl. High installation angles can result in debris clogging 
the bars of the TED; NMFS recommends an installation angle of 45[deg], 
relative to the normal horizontal flow of water through the trawl, to 
optimize the TED's ability to exclude turtles and debris. Furthermore, 
the use of accelerator funnels, which are allowable modifications to 
hard TEDs, is not recommended in areas with heavy amounts of debris or 
vegetation. Lastly, the webbing flap that is usually installed to cover 
the turtle escape opening may be modified to help exclude debris 
quickly: the webbing flap can either be cut horizontally to shorten it 
so that it does not overlap the frame of the TED or be slit in a fore-
and-aft direction to facilitate the exclusion of debris. The use of the 
double cover flap TED will also aid in debris exclusion.
    All of these recommendations represent legal configurations of TEDs 
for shrimpers fishing in the affected areas. This action does not 
authorize any other departure from the TED requirements, including any 
illegal modifications to TEDs. In particular, if TEDs are installed in 
trawl nets, they may not be sewn shut.

Alternative to Required Use of TEDs

    The authorization provided by this rule applies to all shrimp 
trawlers that would otherwise be required to use TEDs in accordance 
with the requirements of 50 CFR 223.206(d)(2) who are operating in the 
state waters of Alabama and the state waters of Louisiana from the 
Mississippi/Louisiana border to a line at 90[deg]03'00'' West longitude 
(approximately the west end of Grand Isle) for a period of 30 days. 
Instead of the required use of TEDs, shrimp trawlers may opt to comply 
with the sea turtle conservation regulations by using restricted tow 
times, as prescribed above.

Alternative to Required Use of TEDs; Termination

    The AA, at any time, may withdraw or modify this temporary 
authorization to use tow time restrictions in lieu of TEDs, through 
publication of a rule in the Federal Register, if necessary, to ensure 
adequate protection of endangered and threatened sea turtles. Under 
this procedure, the AA may modify the affected area or impose any 
necessary additional or more stringent measures, including more 
restrictive tow times, synchronized tow times, or withdrawal of the 
authorization if the AA determines that the alternative authorized by 
this rule is not sufficiently protecting turtles or no longer needed. 
The AA may also terminate this authorization if compliance cannot be 
monitored effectively. This authorization will expire automatically on 
December 27, 2004, unless it is explicitly extended through another 
notification published in the Federal Register.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The AA has determined that this action is necessary to respond to 
an environmental situation to allow more efficient fishing for shrimp, 
while providing adequate protection for endangered and threatened sea 
turtles pursuant to the ESA and applicable regulations.
    Pursuant to 5 U.S.C. 553(b)(3)(B), the AA finds that there is good 
cause to waive prior notice and opportunity to comment on this rule. 
The AA finds that unusually high amounts of debris are creating special 
environmental conditions that make trawling with TED-equipped nets 
impracticable. Prior notice and opportunity to comment are 
impracticable and contrary to the public interest in this instance 
because providing notice and comment would prevent NMFS from executing 
its functions to protect threatened and endangered sea turtles. 
Additionally, debris would likely move out of the area before NMFS 
could implement this rule to protect sea turtles, thereby rendering the 
action obsolete.
    For the same reasons, the AA finds that there is good cause to 
waive the 30-day delay in effective date pursuant to 5 U.S.C. 
553(d)(3). Further, because this short-term exemption to the 
requirement to use TEDs relieves a restriction, the AA finds that this 
temporary rule should not be subject to a 30-day delay in effective 
date, pursuant to 5 U.S.C. 553(d)(1). Therefore, NMFS is making the 
rule effective November 26, 2004 through December 27, 2004.
    Since prior notice and an opportunity for public comment are not 
required to be provided for this action by 5 U.S.C. 553, or by any 
other law, the analytical requirements of 5 U.S.C. 601 et seq. are 
inapplicable.
    The AA prepared an Environmental Assessment (EA) for this rule. 
Copies of the EA are available (see ADDRESSES).


[[Page 69828]]


    Dated: November 26, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 04-26500 Filed 11-26-04; 3:12 pm]
BILLING CODE 3510-22-S