[Federal Register Volume 73, Number 199 (Tuesday, October 14, 2008)]
[Rules and Regulations]
[Pages 60638-60640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 0810061316-81321-01]
RIN 0648-XL11


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 
Texas (from the Texas/Louisiana boundary southward to the boundary 
shared by Matagorda and Brazoria Counties; approximately 95[deg] 32'W. 
long.) extending offshore 20 nautical miles. This action is necessary 
because environmental conditions resulting from Hurricane Ike are 
preventing some fishermen from using TEDs effectively.

DATES:  Effective from October 8, 2008 through November 7, 2008.

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

[[Page 60639]]

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 29, 2008, the NMFS Southeast Regional Administrator 
received a request from the Texas Parks and Wildlife Department (TPWD) 
to allow the use of 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 Hurricane 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 state's resource 
agency staff confirm there are problems with debris in state and 
Federal waters off Texas (from the Texas/Louisiana boundary southward 
to the boundary shared by Matagorda and Brazoria Counties; 
approximately 95[deg] 32'W. long.) extending offshore 20 nautical 
miles, which are likely to affect the effectiveness of TEDs. Texas 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 Texas (from the Texas/Louisiana boundary 
southward to the boundary shared by Matagorda and Brazoria Counties; 
approximately 95[deg] 32'W. long.), 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 Texas 
(from the Texas/Louisiana boundary southward to the boundary shared by 
Matagorda and Brazoria Counties; approximately 95[deg] 32'W. long.) 
extending offshore 20 nautical miles, for a period of 30 days. Tow 
times must be limited to no more than 55 minutes until October 31, and 
no more than 75 minutes thereafter, as measured from the time that the 
trawl doors enter the water until they are removed 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 45E, 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 
hurricane-affected state and Federal waters off Texas (from the Texas/
Louisiana boundary southward to the boundary shared by Matagorda and 
Brazoria Counties; approximately 95[deg] 32'W. long.), 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 
November 7, 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 rule. 
The AA finds that unusually high amounts of debris are creating special 
environmental conditions that make trawling with TED-equipped nets 
impracticable. Prior

[[Page 60640]]

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 Hurricane Ike in a timely manner, while continuing 
to provide effective protection for sea turtles.
    Many fishermen may be unable to operate under the special 
environmental conditions created by Hurricane 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.

    Dated: October 7, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-24280 Filed 10-8-08; 4:15 am]
BILLING CODE 3510-22-S