[Federal Register Volume 67, Number 104 (Thursday, May 30, 2002)]
[Rules and Regulations]
[Pages 37723-37725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13564]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No. 020523129-2129-01; I.D. No.052202A]
RIN 0648-AQ06
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 is imposing, for a 30-day period, additional restrictions
on shrimp trawlers in offshore Atlantic waters west of 77 57.5' W.
longitude (approximately Cape Fear, NC) and north of 30 N. latitude
(just north of St. Augustine, FL). Shrimp fishermen operating in this
area are required to use turtle excluder devices (TEDs) with escape
openings modified to exclude leatherback turtles and are prohibited
from fishing at night between 1 hour after sunset and 1 hour before
sunrise. NMFS is taking this action because we have determined that
higher than normal shrimping effort, particularly long tows conducted
at night, and the use of less efficient TEDs by some shrimpers are the
causes of extraordinarily high mortality and strandings of sea turtles
that are listed as endangered or threatened. This action is necessary
to reduce mortality of listed sea turtles incidentally captured in
shrimp trawls.
DATES: This action is effective from May 24, 2002 through June 24,
2002. Comments on this action are requested, and must be received by
June 24, 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.
[[Page 37724]]
Schroeder, (301) 713-1401. For assistance in modifying TED escape
openings to exclude leatherback sea turtles, fishermen may contact gear
specialists at the NMFS, Pascagoula, MS laboratory by phone (228) 762-
4591 or by fax (228) 769-8699.
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) are
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia
mydas) turtles are listed as threatened, except for nesting populations
of green turtles in Florida and on the Pacific coast of Mexico, which
are listed as endangered.
The incidental take of these species as a result of shrimp trawling
activities has been documented in the Gulf of Mexico and in the
Atlantic Ocean. Under the Endangered Species Act (ESA) and its
implementing regulations, taking sea turtles is prohibited, with
exceptions identified in 50 CFR 223.206. Existing sea turtle
conservation regulations (50 CFR part 223, subpart B) require most
shrimp trawlers operating in the Gulf and Atlantic areas to have a
NMFS-approved TED installed in each net rigged for fishing, year-round.
The use of TEDs reduces mortality of loggerhead, green, Kemp's ridley,
and hawksbill sea turtles. Because leatherback turtles are larger than
the escape openings of most NMFS-approved TEDs, use of these TEDs is
not an effective means of protecting leatherback turtles.
Through a final rule (60 FR 47713, September 14, 1995), NMFS
established regulations to provide protection for leatherback turtles
when they occur in locally high densities during their annual, spring
northward migration along the Atlantic seaboard (``the Leatherback
Contingency Plan''). Within the Leatherback Conservation Zone, NMFS may
close an area for 2 weeks when leatherback sightings exceed 10 animals
per 50 nm (92.6 km) during repeated aerial surveys pursuant to [sect]
223.206(d)(2)(iv)(A) through (C).
NMFS has recently proposed amending the sea turtle conservation
regulations to provide more comprehensive protection to all sizes and
species of sea turtles from trawling (66 FR 50148, October 2, 2001). A
major element of the proposed amendment is the use of larger escape
openings on TEDs. Recent data have shown that the current regulatory
minimum opening sizes of TEDs are not sufficient to allow large green
and loggerhead turtles to escape. In addition, the Leatherback
Contingency Plan which was developed to ensure that larger openings
would be deployed when necessary to protect leatherbacks has been
insufficient because the plan is limited to a geographic area that does
not always encompass areas where the larger opening is needed.
Implementation of the 2 week actions specified in the plan also often
lag behind the time when they are most needed.
The sea turtle conservation regulations provide a mechanism to
implement further restrictions of fishing activities, if necessary to
avoid unauthorized takings of sea turtles that may be likely to
jeopardize the continued existence of listed species or that would
violate the terms and conditions of an incidental take statement or
incidental take permit. Upon a determination that incidental takings of
sea turtles during fishing activities are not authorized, additional
restrictions may be imposed to conserve listed species and to avoid
unauthorized takings. Restrictions may be effective for a period of up
to 30 days and may be renewed for additional periods of up to 30 days
each (50 CFR 223.206(d)(4)).
Recent Events
NMFS has been notified by the Georgia Department of Natural
Resources (GADNR) that extraordinarily high numbers of threatened and
endangered sea turtles have stranded, especially off southern Georgia.
From May 5, 2002, through May 19, 2002, a total of 89 dead sea turtles
have washed ashore along the Georgia coast (shrimp zones 30 and 31). Of
these, 66 are loggerheads, 10 are Kemp's ridleys, 3 are leatherbacks,
and 10 have not been identified to species. By comparison, the 12-year
average of stranded sea turtles in Georgia for this 2-week period is
18, so the 89 strandings are 5 times more than normal. Considering that
strandings are only a minimum estimate of actual mortality, these
strandings represent a serious impact to the recovery and survival of
the local sea turtle populations.
Information from GADNR and NOAA enforcement indicates that there is
a high level of shrimp effort off Georgia, which is typical for this
time of year. Georgia state waters are closed to shrimping, so the
fishery is currently operating only in Federal waters, targeting high-
value, large white shrimp. These sources also indicate that the
behavior of the fishery is somewhat different than in previous years.
There are a large number of very large, powerful shrimp vessels from
Gulf states (estimated at 25-30 boats) that are participating in the
fishery. These boats are generally capable of fishing more, larger
trawls at higher speeds than the local boats. Although white shrimp are
generally only caught during the day, these large vessels are fishing
24-hours-a-day and using long tow times (up to 12 hours in some cases)
to maximize effort given the distance from their local ports. Local
fishermen fish mostly in the day to target white shrimp using tow times
of 2 to 4 hours. The 24-hour fishing, in conjunction with long tow
times, represents a significant increase in effort in this area. An
aerial survey to monitor shrimping effort on May 21 found that most of
the large trawlers were concentrated in the southern part of the state,
in the area of highest strandings.
This spring has seen a very high abundance of leatherback turtles
migrating close to the Atlantic coast in Florida, Georgia, South
Carolina, and North Carolina. Under the Leatherback Contingency Plan, a
14-day requirement to use leatherback-excluding TEDs was implemented
for Zone 31 (north and central Georgia) through May 3. Weather and
logistical problems have prevented effective aerial surveys since then,
and the requirement to use the larger-opening TEDs has lapsed. GADNR
estimates that up to 70 percent of the local fishermen are using
leatherback-excluding TEDs, which are also effective at releasing large
green and loggerhead turtles. The large, Gulf vessels have been fishing
south of Zone 31 or arrived after May 3, and NMFS believes that most
are not using TEDs with large openings.
NMFS believes that the increased shrimping effort, particularly the
switch to nighttime fishing and very long tow-times, in conjunction
with the use of TEDs with smaller escape openings is responsible for
the sharp increase in turtle mortality and strandings along the Georgia
coast.
Analysis of Other Factors
NMFS has analyzed other factors that might have contributed to the
turtle strandings, including environmental conditions. No possible
causes other than shrimp trawling have been identified. A single vessel
fishing for sharks using drift gillnets a fishing method that is known
to capture and kill sea turtles has been operating in Federal waters in
the Florida-Georgia border area in the past month. A NMFS observer has
been aboard that vessel for every trip since April 29 and no sea turtle
interactions have been observed. There is no evidence of a red tide or
[[Page 37725]]
other harmful plankton bloom event or any major disease factor. The
condition of the stranded turtles has indicated that they were
generally healthy and actively foraging prior to their deaths, which is
consistent with strandings resulting from shrimp trawling. The
carcasses have primarily been coming ashore in the vicinity of areas
where shrimping effort has been concentrated. NMFS and state personnel
will continue to investigate factors other than shrimping that may
contribute to sea turtle mortality in the area, including other
fisheries and environmental factors.
Restrictions on Fishing for Shrimp Trawlers
Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental
taking of sea turtles in 50 CFR 223.206(d) does not authorize
incidental takings during fishing activities if the takings would
violate the restrictions, terms or conditions of an ITS or incidental
take permit, or may be likely to jeopardize the continued existence of
a species listed under the ESA. Therefore, the Assistant Administrator
for Fisheries, NOAA (AA) issues this determination that further takings
of threatened and endangered sea turtles in Atlantic Ocean waters off
the southeast coast of the U.S. by shrimp trawlers using TEDs with
small escape openings and shrimping during nighttime hours are
unauthorized because such takes may be likely to jeopardize the
continued existence of the sea turtle populations. The AA, thus,
imposes this additional restriction to shrimp trawling activities to
conserve threatened and endangered sea turtles. The AA has determined
that conservation measures are necessary in an area larger than the
current hot-spot of strandings to prevent fishing with practices that
are harmful to sea turtles from simply relocating to other areas in the
South Atlantic. Additionally, the use of large, leatherback size TED
openings will allow for easier escape for all turtle species,
decreasing stress and mortality to the turtles. Specifically, the AA
requires shrimp trawlers, who are required to use TEDs, fishing in
offshore Atlantic waters west of 77 57.5' W. longitude (approximately
Cape Fear, NC) and north of 30 N. latitude (just north of St.
Augustine, FL) to use TEDs with escape openings modified to exclude
leatherback turtles (meeting the specifications at 50 CFR
223.207(a)(7)(ii)(B)(1) or (2) or [sect] 223.207(c)(1)(iv)(B)) and
prohibits shrimp trawling in the same area between 1 hour after sunset
and 1 hour before sunrise. This restriction is effective from May 24,
2002 through 11:59 p.m. (local time) June 24, 2002.
This restriction has been announced on the NOAA weather channel, in
newspapers, and other media. Shrimp trawlers may also call (727)570-
5312 for updated information on shrimping restrictions.
Additional Conservation Measures
The AA may withdraw or modify a determination concerning
unauthorized takings or any restriction on shrimping activities if the
AA determines that such action is warranted. Notification of any
additional sea turtle conservation measures, including any extension of
this 30-day action, will be published in the Federal Register pursuant
to 50 CFR 223.206(d)(4).
NMFS will continue to monitor sea turtle strandings to gauge the
effectiveness of these conservation measures.
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 provide adequate protection for threatened
and endangered sea turtles pursuant to the ESA and other applicable
law.
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 action.
It would be impracticable to provide prior notice and opportunity for
comment because providing notice and comment would prevent the agency
from implementing this action in a timely manner to protect threatened
and endangered sea turtles. Notice and opportunity to comment was
provided on the proposed rule (57 FR 18446, April 30, 1992) on the
final rule establishing the procedures for taking this action.
Furthermore, the AA finds good cause under 5 U.S.C. 553(d)(3) not to
delay the effective date of this rule for 30 days. Such delay would
also prevent the agency from implementing this action in a timely
manner to protect threatened and endangered sea turtles. Accordingly,
the AA is making the rule effective May 24, 2002 through June 24,
2002.. As stated above, this restriction has been announced on the NOAA
weather channel, in newspapers, and other media.
As prior notice and an opportunity for public comment are not
required to be provided for this notification by 5 U.S.C. 553, or by
any other law, the analytical requirements of 5 U.S.C. 601 et seq. are
inapplicable.
As required by 50 CFR 223.207(d)(4)(iv), NMFS has consulted with
the marine fisheries officials in Florida, Georgia, South Carolina, and
North Carolina on this emergency action. The required nighttime closure
will complement existing nighttime closures of state waters in Georgia,
South Carolina, and North Carolina.
The AA prepared an Environmental Assessment (EA) for the final rule
(57 FR 57348, December 4, 1992) requiring TED use in shrimp trawls and
creating the regulatory framework for the issuance of notifications
such as this. The AA also prepared an EA for this action. Copies of the
EA are available (see ADDRESSES).
Dated: May 24, 2002.
John Oliver
Acting Assistant Administrator for Fisheries National Marine Fisheries
Service.
[FR Doc. 02-13564 Filed 5-24-02; 3:04 pm]
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