[Federal Register Volume 73, Number 191 (Wednesday, October 1, 2008)]
[Rules and Regulations]
[Pages 57010-57011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23117]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 0809241260-81267-01]
RIN 0648-XK78


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 rule for a period of 30 days, to 
allow shrimp fishermen to use limited tow times as an alternative to 
Turtle Excluder Devices (TEDs) in state and Federal waters offshore of 
Louisiana (from the Mississippi/Louisiana boundary to the Texas/
Louisiana boundary) extending offshore 20 nautical miles. This action 
is necessary because environmental conditions resulting from Hurricanes 
Gustav and Ike are preventing some fishermen from using TEDs 
effectively.

DATES: Effective from September 26, 2008 through October 27, 2008.

ADDRESSES: Requests for copies of the Environmental Assessment on this 
action should be addressed to the Assistant Regional Administrator, 
Protected Resources Division, NMFS, 263 13th Avenue South, St. 
Petersburg, FL 33701.

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 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 5 and 15, 2008, the NMFS Southeast Regional 
Administrator received requests from the Louisiana Department of 
Wildlife and Fisheries (LDWF) and the Mississippi Department of Marine 
Resources (MDMR), respectively, to allow the use of tow times as an 
alternative to turtle excluder devices (TEDs) in state and Federal 
waters because of excessive storm-related debris on the fishing grounds 
as a result of Hurricanes Gustav and Ike. When a TED is clogged with 
debris, it can no longer catch shrimp effectively nor can it 
effectively exclude turtles. Phone conversations between NMFS Southeast 
Region's Protected Resources staff, fishermen, and the states' resource 
agency staffs confirm there are problems with debris in state and 
Federal waters off Louisiana (from the Mississippi/Louisiana boundary 
to the Texas/Louisiana boundary) extending offshore 20 nautical miles, 
which are likely to affect the effectiveness of TEDs; discussions 
between NMFS Southeast Region's Protected Resources staff, fishermen, 
and the states' resource agency staffs, and a survey of Mississippi 
waters found no significant remaining issues stemming from storm-
related debris on the shrimp fishing grounds. Louisiana has stated that 
their marine enforcement agents will enforce the tow time restrictions.

Special Environmental Conditions

    The AA finds that debris washed into hurricane-affected state and 
Federal waters off of Louisiana (from the Mississippi/Louisiana 
boundary to the Texas/Louisiana boundary), extending offshore 20 
nautical miles, 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 state and Federal waters off of 
Louisiana (from the Mississippi/Louisiana boundary to the Texas/
Louisiana boundary) extending offshore 20 nautical miles, for a period 
of 30 days. Tow times must be limited to no more than 55 minutes 
measured from the time trawl doors enter the

[[Page 57011]]

water until they are retrieved from the water.
    A survey of Mississippi waters found no significant remaining 
issues stemming from storm-related debris in the shrimp fishery. 
Therefore, the MDMR request for an exemption was not granted.

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 , 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 hurricane-affected state and Federal waters off Louisiana 
(from the Mississippi/Louisiana boundary to the Texas/Louisiana 
boundary), extending offshore 20 nautical miles, for a period of 30 
days. 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 on 
October 27, 2008, 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 
an environmental situation to allow more efficient fishing for shrimp, 
while providing effective 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 
temporary rule. The AA finds that unusually high amounts of post-
hurricane debris are creating special environmental conditions that 
make trawling with TED-equipped nets impractical. Prior notice and the 
opportunity to receive public 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 
timely relief from the effects of Hurricanes Gustav and Ike, while 
providing effective protection for sea turtles.
    Many shrimp fishermen in Louisiana may be unable to operate under 
the special environmental conditions created by Hurricanes Gustav and 
Ike without an alternative to the use of TEDs. Therefore, 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. For the reasons 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: September 26, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-23117 Filed 9-26-08; 4:15 pm]
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