[Federal Register Volume 67, Number 216 (Thursday, November 7, 2002)]
[Rules and Regulations]
[Pages 67793-67795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28281]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No. 021031262-2262-01; I.D. 103002A]
RIN 0648-AQ56
Sea Turtle Conservation; Shrimp Trawling Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; request for comments.
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SUMMARY: NMFS issues this temporary authorization to allow the use of
limited tow times by shrimp trawlers as an alternative to the use of
Turtle Excluder Devices (TEDs) in certain waters off Louisiana and
Alabama. The exempted area in Louisiana consists of all the Louisiana
state waters east of 92[deg] 20' W. long. (approximately at Fresh Water
Bayou in Vermilion Parish, Louisiana); Federal waters are not included.
The
[[Page 67794]]
exempted area in Alabama consists of the inshore waters (inshore waters
are landward of the COLREGS demarcation line) of Bon Secour Bay, Mobile
Bay, and Mississippi Sound, south of the Intracoastal Waterway. This
exemption will be in effect for 30 days and is necessary to relieve the
economic hardship on shrimpers while ensuring adequate protection of
threatened and endangered sea turtles.
DATES: This action is effective from November 1, 2002 through December
2, 2002. Comments on this action are requested, and must be received by
December 2, 2002.
ADDRESSES: Comments on this action should be addressed to the Chief,
Endangered Species Division, Office of Protected Resources, NMFS, 1315
East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Bob Hoffman, 727-570-5312, or Barbara
A. Schroeder, 301-713-1401.
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.
The incidental take and mortality of sea turtles as a result of
trawling activities have been documented in the Gulf of Mexico and
along the Atlantic Ocean seaboard. Under the ESA and its implementing
regulations, taking sea turtles is prohibited, with exceptions
identified in 50 CFR 223.206 and 50 CFR 224.104. The regulations
require most shrimp trawlers and summer flounder trawlers operating in
the southeastern United States (Atlantic Area, Gulf Area, and Summer
flounder fishery-sea turtle protection area, all as defined in 50 CFR
222.102) to have a NMFS-approved TED installed in each net that is
rigged for fishing to provide for the escape of sea turtles. TEDs
currently approved by NMFS include single-grid hard TEDs and hooped
hard TEDs conforming to a generic description, two types of special
hard TEDs (the flounder TED and the Jones TED), and one type of soft
TED (the Parker soft TED).
The TEDs incorporate an escape opening, usually covered by a
webbing flap, that allows sea turtles to escape from trawl nets. To be
approved by NMFS, a TED design must be shown to be at least 97 percent
effective in excluding sea turtles during experimental TED testing (50
CFR 223.207(e)). The TED must meet 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. In the Atlantic Area, these requirements are currently
[gteqt]35 inches ([gteqt]89 cm) in width and [gteqt]12 inches
([gteqt]30 cm) in height. In the Gulf Area, the requirements are
[gteqt]32 inches ([gteqt]81 cm) in width and [gteqt]10 inches
([gteqt]25 cm) in height.
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. For example, debris can clog a
TED which renders the TED ineffective at catching shrimp as well as
excluding turtles. 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 for up to 30 days, 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. The tow times 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 October 10 and 23, 2002, the NMFS Southeast Regional
Administrator received requests from the Secretary of the Louisiana
Department of Wildlife and Fisheries (LADWF) and the Director of the
Alabama Department of Conservation and Natural Resources' (ALDCNR)
Marine Resources Division, respectively, to allow the use of tow times
as an alternative to turtle excluder devices (TEDs) in state waters
because of excessive storm-related debris on the fishing grounds. The
increase in debris on the shrimping grounds was the result of Tropical
Storm Isidore and Hurricane Lili. After an investigation, the LADWF and
ALDCNR determined that this debris is affecting the fishermen's ability
to use TEDs effectively. Both Louisiana and Alabama have stated that
their marine enforcement agencies will enforce the tow time
restrictions.
NMFS gear technicians interviewed fishermen and surveyed parts of
the affected areas in Louisiana and Alabama on October 23 and 24, 2002.
The interviews and surveys conducted by the gear technicians and phone
conversations between NMFS Southeast Region Protected Resources staff
and state resource agency staffs confirmed that there are problems with
debris in Louisiana from the Mississippi/Louisiana border around the
mouth of the Mississippi River to approximately Fresh Water Bayou in
Vermilion Parish, Louisiana and in Alabama from Bon Secour Bay to the
Alabama/Mississippi border between the Intracoastal Waterway and the
barrier islands.
Special Environmental Conditions And Alternative to Required Use of
TEDs
The AA finds that debris washed into portions of state waters of
Louisiana and Alabama from Tropical Storm Isidore and Hurricane Lili
have 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 the state waters of Louisiana (no
Federal waters are included with this authorization) from east of
92[deg] 20' W. long. (approximately at Fresh Water Bayou, in Vermilion
Parish, Louisiana) and in Alabama inshore waters (inside the COLREGS
demarcation line) including Bon Secour Bay, Mobile Bay, and Mississippi
Sound south of the Intracoastal Waterway. This authorization will be in
effect for a period of 30 days, unless terminated earlier. Instead of
the required use of TEDs, shrimp trawlers may opt to comply with the
sea turtle conservation regulations found at 50 CFR 223.206(d)(3)(i) by
using restricted tow times. A shrimp trawler utilizing this
authorization must limit tow times to no more than 75 minutes measured
from the time trawl doors enter the water until they are retrieved from
the water.
The ALDCNR and LADWF are continuing to monitor the situation and
will cooperate with NMFS in determining the ongoing extent of the
debris problem in these areas. Moreover, the marine enforcement
agencies of
[[Page 67795]]
these states have stated that they will enforce the restricted tow
times. Ensuring compliance with tow time restrictions is critical to
effective sea turtle protection, and the commitment from these agencies
to enforce tow time restrictions is an important factor enabling NMFS
to issue this authorization. NMFS and the respective state marine
enforcement agencies will monitor the situation to ensure there is
adequate protection for sea turtles in these areas and to determine
whether debris in these areas continues to make TED use impracticable.
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 studies have shown that the
problem of clogging by seagrass, algae or by other debris is not unique
to TED-equipped nets. When fishermen trawl in problem areas, they may
experience clogging with or without TEDs. A particular concern of
fishermen, however, is that clogging in a TED-equipped net may hold
open the turtle escape opening and increase the risk of shrimp loss. On
the other hand, TEDs also help exclude certain types of debris and
allow shrimpers to conduct longer tows.
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 result in debris clogging
the bars of the TED; NMFS recommends an installation angle of
45[deg]51', 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 leatherback modification or 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, nor does it
authorize use of any TED modified in such a manner that it no longer
meets the requirements for any of the TEDs approved pursuant to 50 CFR
223.207. In particular, if TEDs are installed in trawl nets, they may
not be sewn shut.
Alternative to Required Use of TEDs; Termination
The AA, at any time, may modify the alternative conservation
measures through publication 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 or synchronized tow times, if the AA determines
that the alternative authorized by this temporary rule is not
sufficiently protecting turtles, as evidenced by observed lethal takes
of turtles aboard shrimp trawlers, elevated sea turtle strandings, or
insufficient compliance with the authorized alternative. The AA may
also terminate this authorization for these same reasons, or if
compliance cannot be monitored effectively, or if conditions do not
make trawling with TEDs impracticable. A document will be published in
the Federal Register announcing any additional sea turtle conservation
measures or the termination of the tow time option in the affected
areas. This authorization will expire automatically on December 2,
2002, 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 emergency situation to allow more efficient 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,
because it is impracticable. The AA finds that unusually high amounts
of debris are creating special environmental conditions that make
trawling with TED-equipped nets impracticable. The AA has determined
that the use of limited tow times for the described area and time would
not result in a significant impact to sea turtles. Notice and
opportunity to comment are impracticable in this instance because
providing notice and comment would prevent the agency from providing
relief soon enough to provide the intended benefit. The public was
provided with notice and an opportunity to comment on 50 CFR
223.206(d)(3)(ii) which authorizes the use of this emergency exemption.
Pursuant to 5 U.S.C. 553(d)(3), for the same reasons the AA
determined that there was good cause to waive prior notice and
opportunity to comment, the AA finds good cause to waive the 30-day
delay in effective date. NMFS is making the rule effective November 1,
2002 through December 2, 2002.
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: November 1, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 02-28281 Filed 11-01-02; 4:23 pm]
BILLING CODE 3510-22-S