[Federal Register Volume 86, Number 213 (Monday, November 8, 2021)]
[Rules and Regulations]
[Pages 61712-61714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24175]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 211029-0220]
RIN 0648-BK98


Temporary Rule Authorizing Limited Tow Times in Lieu of Turtle 
Excluder Devices by Shrimp Trawlers in Specific Louisiana Waters

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 fishers to use limited tow times as an alternative to 
Turtle Excluder Devices (TEDs) in specific Louisiana state waters (from 
91[deg] 23' West longitude eastward to the Louisiana/Mississippi 
border, and seaward out 3 nautical miles (5.6 kilometers)). This action 
is necessary because environmental conditions resulting from Hurricane 
Ida are preventing fishers from using TEDs effectively.

DATES: Effective from November 5, 2021 through December 6, 2021.

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--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)). 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

[[Page 61713]]

special environmental conditions in a particular area makes trawling 
with TED-equipped nets impracticable. Namely, TEDs can become clogged 
with debris, which can prevent target species from passing into the 
codend of the net and sea turtles from escaping through the TED 
opening. 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. For a 
trawl that is not attached to a door, the tow time begins at the time 
the codend enters the water and ends at the time the codend is emptied 
of catch on deck. 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 21, 2021, the NMFS Southeast Regional Administrator 
received a request from the Louisiana Department of Wildlife and 
Fisheries (LDWF) to allow the use of tow times as an alternative to 
TEDs because of excessive storm-related debris on the fishing grounds 
as a result of Hurricane Ida. The request identified the affected area 
as inside and outside waters from the Mississippi/Louisiana state line 
westward to the Freshwater Bayou Canal, located due west of Vermilion 
Bay. When a TED is clogged with debris it can no longer catch shrimp 
effectively, nor can it effectively exclude turtles. Despite contrary 
assertions in the request from LDWF, sea turtle interactions with 
shrimp trawls have been extensively documented in Louisiana state 
waters by NMFS observers, and a temporary exemption from the TED 
requirements can help minimize the effects of those interactions on sea 
turtles during such special conditions. Louisiana has stated that their 
marine enforcement agents will enforce the tow time restrictions.
    Field investigation by the Southeast Fisheries Science Center, 
Pascagoula Lab, Gear Monitoring Team determined debris is affecting 
fisher's ability to use TEDs effectively within the area bounded by 
91[deg] 23' West longitude (i.e., where the COLREGS demarcation line 
intersects the ship channel coming out of the Atchafalaya River), 
eastward to the Louisiana/Mississippi border, and seaward out 3 
nautical miles (5.6 kilometers).

Special Environmental Conditions

    The AA finds that debris washed into hurricane-affected Louisiana 
state waters 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 specific Louisiana state waters (from 
91[deg] 23' West longitude eastward to the Louisiana/Mississippi 
border, and seaward out 3 nautical miles (5.6 kilometers)). 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. For 
a trawl that is not attached to a door, the tow time begins at the time 
the codend enters the water and ends at the time the codend is emptied 
of catch on deck.

Continued Use of TEDs

    NMFS encourages shrimp trawlers in the affected areas to continue 
to use TEDs if they can do so effectively, even though they are 
authorized under this action to use restricted tow times.
    NMFS gear experts have provided several general operational 
recommendations to fishers to maximize the debris exclusion ability of 
TEDs that may allow some fishers 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 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 Louisiana state waters (i.e., from 91[deg] 23' West 
longitude eastward to the Louisiana/Mississippi border, and seaward out 
3 nautical miles (5.6 kilometers)) 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 document 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 
December 6, 2021, 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.

[[Page 61714]]

    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 
Ida in a timely manner, while continuing to provide effective 
protection for sea turtles.
    For the same reasons, 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).
    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.

    Authority: 16 U.S.C. 1531-1543.

    Dated: November 1, 2021.
Carrie Diane Robinson,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2021-24175 Filed 11-5-21; 8:45 am]
BILLING CODE 3510-22-P