[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8990-8992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1623]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 050922245-6038-06; I.D. 020906A]
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 10 nautical miles. The previous 30-day variances of 
the TED requirements were from September 23 through October 24, 2005; 
October 11 through November 10, 2005; October 24 through November 23, 
2005; November 23 through December 23, 2005; and from December 23, 
2005, through January 23, 2006, 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, the Alabama Department of Conservation and Natural 
Resources (ALDCNR), Mississippi Department of Marine Resources (MDMR), 
and the Louisiana Department of Wildlife and Fisheries (LADWF) have 
determined that excessive debris is still affecting fishermen's ability 
to use TEDs effectively in an area extending approximately 10 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 February 16, 2006 through 11:59 p.m, local time, 
March 20, 2006.

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, 727-551-5794.

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 223) are 
followed. The regulations require most shrimp trawlers and summer 
flounder trawlers operating in

[[Page 8991]]

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, 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 ALDCNR and 
the 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 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 24, 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 Division of the 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 the MDMR and the LADWF due to the 
cumulative effects of Hurricanes Katrina and Rita. At that time, the 
area cumulatively affected by the two hurricanes extended from the 
Florida/Alabama border, westward to the Louisiana/Texas border, and 
offshore 20 nautical miles. NMFS issued a 30-day extension encompassing 
both previous exemptions to the TED requirements, from December 23, 
2005, through January 23, 2006 (70 FR 77054).
    On January 23, 2006, the NMFS Southeast Regional Administrator 
received a request from the ALDCNR, MDMR and the LADWF for an 
additional 30-day period allowing the use of restricted tow times as an 
alternative to turtle excluder devices in inshore and offshore waters 
because of excessive storm-related debris on the fishing grounds as a 
result 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 10 
nautical miles. Phone conversations between NMFS Southeast Region's 
Protected Resources staff, fishermen, and state resource agency staffs 
confirm there are problems with debris in state and federal waters from 
the Florida/Alabama border, westward to the Louisiana/Texas border, and 
offshore 10 nautical miles. ALDCNR interviewed shrimp fishermen who 
indicated there are still serious debris problems out to 10 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 
and does render TEDs ineffective at releasing turtles. NMFS Gear 
Technician's investigations indicate that debris large enough to clog 
TEDs tends to be nearshore and does not extend past 10 nautical miles. 
They also indicate that most offshore fishermen are using their TEDs 
due to the fact the debris offshore is of a nature and size that the 
TEDs can ``shoot'' the debris from the trawl.

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 10

[[Page 8992]]

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 10 nautical miles, through 11:59 
p.m., local time, March 20, 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.
    Due to Hurricanes Katrina and Rita, tow time authorizations have 
been granted in the affected area since September 23, 2005. Evidence 
from state and Federal investigations indicate that more fishermen are 
using TEDs even though tow times are authorized because TEDs are 
effective at shooting the debris from the trawl. This indicates that 
although there is still much debris in the affected areas, the problem 
is dissipating. The end of this authorization will represent five 
months of tow time authorizations. This amount of time will have 
allowed fishermen to find areas that can be trawled effectively with 
TEDS. Therefore, based on the dissipating debris problem and the amount 
of time fishermen have had to fish under tow time restrictions NMFS 
believes that this will be the last time tow time authorizations will 
be required due to debris problems caused by Hurricanes Katrina and 
Rita.

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 
inshore and offshore waters affected by Hurricanes Katrina and Rita off 
Alabama, westward to the Louisiana/Texas border, and extending offshore 
10 nautical miles, through March 20, 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 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, March 20, 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.
    The AA prepared an Environmental Assessment (EA) for this rule. 
Copies of the EA are available (see ADDRESSES).

    Dated: February 16, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 06-1623 Filed 2-16-06; 1:42 pm]
BILLING CODE 3510-22-S