[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Rules and Regulations]
[Pages 77054-77057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24604]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No.050922245-5345-05; I.D. 092005A, 100505D]
RIN 0648-AT89


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 30-day temporary rule to allow shrimp 
fishermen to continue to use limited tow times as an alternative to 
Turtle Excluder Devices (TEDs) in inshore and offshore waters from the 
Florida/Alabama border, westward to the Louisiana/Texas border, and 
extending offshore 20 nautical miles. The previous 30-day variances of 
the TED requirements were from September 23 through October 23, 2005; 
October 11 through November 10, 2005; October 22 through November 23, 
2005; and from

[[Page 77055]]

November 24 through December 23, 2005, for waters affected by 
Hurricanes Katrina and Rita. These variances were initially for 50 
nautical miles, while the most recent variance was for 20 nautical 
miles. After an investigation, NMFS has determined that excessive 
debris is still affecting fishermen's ability to use TEDs effectively 
in an area extending approximately 20 nm offshore. This action is 
necessary because environmental conditions resulting from Hurricanes 
Katrina and Rita persist on the fishing grounds, preventing some 
fishermen from using TEDs effectively.

DATES: Effective from December 23, 2005, through 11:59 p.m, local time, 
January 23, 2006.

ADDRESSES: Requests for copies of the National Environmental Policy Act 
Categorical Exclusion (CE) 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, 727-551-5794.

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 some are killed, as a 
result of numerous activities, including fishery-related 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 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 50 
CFR 223.206) to have a NMFS-approved TED installed in each net that is 
rigged for fishing to allow sea turtles to escape. 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 B the Parker soft TED (see 50 CFR 223.207).
    TEDs incorporate an escape opening, usually covered by a webbing 
flap, which 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. Each tow 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 12, 2005, the NMFS Southeast Regional Administrator 
received requests from the Marine Fisheries Division of the Alabama 
Department of Conservation and Natural Resources (ALDCNR) and the 
Louisiana Department of Wildlife and Fisheries (LADWF) to allow the use 
of tow times as an alternative to TEDs in inshore and offshore waters 
because of excessive storm related debris on the fishing grounds as a 
result of Hurricane Katrina. NMFS received a similar request from the 
Mississippi Department of Marine Resources (MDMR) on September 13. On 
September 27, 2005, the NMFS Southeast Regional Administrator received 
requests from the LADWF and the Texas Parks and Wildlife Department 
(TPWD) to allow the use of tow times as an alternative to TEDs in 
inshore and offshore waters because of excessive storm related debris 
on the fishing grounds as a result of Hurricane Rita. Subsequent to 
these requests, NMFS issued 30-day exemptions to the TED requirements 
from September 23 through October 23, 2005, and October 11 through 
November 10, 2005, for waters affected by Hurricanes Katrina and Rita, 
respectively (70 FR 56593 and 70 FR 60013, respectively).
    On October 11, 2005, the NMFS Southeast Regional Administrator 
received requests from the ALDCNR, MDMR, LADWF, and the TPWD for an 
additional 30-day period allowing the use of restricted tow times as an 
alternative to TEDs in inshore and offshore waters because of excessive 
storm-related debris that was still present on the fishing grounds as a 
result of Hurricanes Katrina and Rita. Subsequent to these requests, 
NMFS issued a 30-day extension encompassing both previous exemptions to 
the TED requirements, from October 23, 2005, through November 23, 2005 
(70 FR 61911).
    On November 15, 2005, the NMFS Southeast Regional Administrator 
received requests from the Marine Fisheries Division of the ALDCNR, 
MDMR, LADWF, and TPWD for an additional 30-day period allowing the use 
of restricted tow times as an alternative to TEDs in state and federal 
waters because of excessive storm-related debris on the fishing grounds 
as a result of Hurricanes Katrina and Rita. Subsequent to these 
requests, NMFS issued a 30-day extension encompassing both previous 
exemptions to the TED requirements, from November 23, 2005, through 
December 23, 2005 (70 FR 71406).
    On December 7, 2005, the NMFS Southeast Regional Administrator 
received a request from the Marine Fisheries ALDCNR to allow the use of 
tow times as an alternative to TEDs in inshore and offshore waters 
because of excessive storm related debris on the fishing grounds as a 
result of Hurricane Katrina. NMFS received similar requests on December 
19, 2005, from MDMR and

[[Page 77056]]

LADWF due to the cumulative effects of Hurricanes Katrina and Rita. The 
area cumulatively affected by the two hurricanes currently extends from 
the Florida/Alabama border, westward to the Louisiana/Texas border, and 
offshore 20 nautical miles. ALDCNR interviewed shrimp fishermen who 
indicated there are still serious debris problems out to 20 nautical 
miles, while MDMR's investigation indicates debris problems are still 
very serious nearshore, with continuing problems into the exclusive 
economic zone. LADWF's investigation and interviews with shrimp 
fishermen indicates there are still significant debris problems in 
state and federal waters. Interviews between these state agencies and 
NMFS indicated some shrimp fishermen continue to use TEDs in these 
areas as the TED is able to exclude debris from the trawl; however, 
these interviews also indicated there are still significant amounts of 
large debris that can render TEDs ineffective at releasing turtles. 
When a TED is clogged with debris it neither catches shrimp nor 
excludes turtles effectively.

Special Environmental Conditions

    The AA finds that debris washed into inshore and offshore waters by 
Hurricanes Katrina and Rita off Alabama, westward to the Louisiana/
Texas border, and extending offshore 20 nautical miles, has created 
ongoing special environmental conditions that make trawling with TED-
equipped nets impracticable. Therefore, the AA issues this notification 
to extend the current authorization for the use of restricted tow times 
as an alternative to the use of TEDs in inshore and offshore waters off 
Alabama, westward to the Louisiana/Texas border, and extending offshore 
20 nautical miles, through 11:59 p.m., local time, January 23, 2006. 
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.

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 trap debris either on or 
in front of 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 temporary 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 inshore and offshore waters affected by Hurricanes Katrina 
and Rita off Alabama, westward to the Louisiana/Texas border, and 
extending offshore 20 nautical miles, through January 23, 2006. Through 
this temporary rule, shrimp trawlers may choose either restricted tow 
times or TEDs to comply with the sea turtle conservation regulations, 
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 notice 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 temporary rule is not sufficiently protecting turtles or no longer 
needed. The AA may also terminate this authorization if information 
from enforcement, state authorities, or NMFS indicates compliance 
cannot be monitored effectively. This authorization will expire 
automatically at 11:59 p.m., local time, January 23, 2006, 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 Executive Order 12866.
    The AA has determined that this action is necessary to respond to 
special environmental conditions to allow effective 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)(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 has created ongoing 
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 the agency from 
providing the affected industry relief from the effects of Hurricanes 
Katrina and Rita in a timely manner.
    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) to provide alternatives 
to comply with the sea turtle regulations in a timely manner. Many 
fishermen may be unable to operate under the special environmental 
conditions created by Hurricanes Katrina and Rita without an 
alternative to using TEDs. Providing a 30-day delay in effective date 
would prevent the agency from providing the affected industry relief 
from the effects of Hurricanes Katrina and Rita in a timely manner. For 
the reasons stated above, 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).
    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.

[[Page 77057]]

    On November 18, 2005, a CE determination was completed for NMFS' 
issuance of temporary rules authorizing the use of Sec.  
223.206(d)(3)(ii). The proposed extension would also be encompassed by 
the November 18 CE.

    Dated: December 23, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 05-24604 Filed 12-23-05; 12:48 pm]
BILLING CODE 3510-22-S