[Federal Register Volume 73, Number 219 (Wednesday, November 12, 2008)]
[Rules and Regulations]
[Pages 66803-66805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26850]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 0810061316-81420-02]
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.

-----------------------------------------------------------------------

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 waters off of Texas (extending 
offshore 9 nautical miles from the Texas/Louisiana boundary southward 
to the boundary shared by Matagorda and Brazoria Counties; 
approximately 95[deg] 32' W. long.). The previous 30-day variance of 
the TED requirements was from October 8 through November 7, 2008. This 
action is necessary because environmental conditions resulting from 
Hurricane Ike persist on the fishing grounds, preventing some fishermen 
from using TEDs effectively.

DATES:  Effective from November 8, 2008, through December 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

[[Page 66804]]

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, NMFS 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 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 staff, 
fishermen, and the states' resource agency staffs confirmed there were 
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 were 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. Subsequent to these requests, NMFS issued a 30-day 
exemption to the TED requirements from September 26 through October 26, 
2008, for waters off of Louisiana affected by Hurricanes Gustav and Ike 
(73 FR 57010, October 1, 2008).
    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. Subsequent to this request, NMFS 
issued a 30-day exemption to the TED requirements from October 8 
through November 7, 2008, for waters off of Texas affected by Hurricane 
Ike (73 FR 60638, October 14, 2008). Specifically, the affected waters 
encompassed by that exemption extended from the Texas/Louisiana 
boundary southward to the boundary shared by Matagorda and Brazoria 
Counties (approximately 95[deg] 32' W. long.), and offshore 20 nautical 
miles.
    On October 20, 2008, NMFS received a request from the LADWF 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 Gustav and Ike. Subsequent to this request, NMFS 
issued a 30-day exemption to the TED requirements from October 29 
through November 28, 2008, for waters off of Louisiana affected by 
Hurricanes Gustav and Ike (73 FR 65277, November 3, 2008). 
Specifically, the waters affected extend from the western end of 
Timbalier Island (approximately 90[deg] 33' W. long.) eastward to the 
Plaquemines/Jefferson Parish line (approximately 89[deg] 54' W. long.), 
and offshore 15 nautical miles.
    On October 31, 2008, the NMFS Southeast Regional Administrator 
received a request from 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 is still present on the fishing grounds as a result of Hurricane 
Ike. Texas has stated that their marine enforcement agents will enforce 
the tow time restrictions.
    Field investigations and interviews conducted by NMFS Gear 
Technicians and phone conversations between NMFS Southeast Region's 
Protected Resources staff, fishermen, and state resource agency staff 
confirm there are problems with debris in state waters off of Texas. 
Available information indicates the debris field extends offshore 9 
nautical miles from the Texas/Louisiana boundary southward to the 
boundary shared by Matagorda and Brazoria Counties; approximately 
95[deg] 32' W. long. Investigations conducted by NMFS indicate some 
shrimp fishermen continue to use TEDs in these areas as the TED is able 
to exclude debris from the trawl; however, these investigations also 
indicated there are still significant amounts of large debris that can 
and does render TEDs ineffective at releasing turtles. These 
investigations 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.

[[Page 66805]]

Special Environmental Conditions

    The AA finds that debris washed into hurricane-affected state 
waters off of Texas, extending offshore 9 nautical miles from the 
Texas/Louisiana boundary southward to the boundary shared by Matagorda 
and Brazoria Counties (approximately 95[deg] 32' W. long.), 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 waters off of Texas extending offshore 9 nautical 
miles from the Texas/Louisiana boundary southward to the boundary 
shared by Matagorda and Brazoria Counties (approximately 95[deg] 32' W. 
long.), for a period of 30 days. Tow times must be limited to no more 
than 75 minutes, 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 waters off Texas, extending offshore 9 
nautical miles from the Texas/Louisiana boundary southward to the 
boundary shared by Matagorda and Brazoria Counties (approximately 
95[deg] 32' W. long.), 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 law 
enforcement, state authorities, or NMFS indicates compliance cannot be 
monitored effectively. This authorization will expire automatically on 
December 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 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: November 6, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-26850 Filed 11-6-08; 8:45 am]
BILLING CODE 3510-22-S