[Federal Register Volume 69, Number 230 (Wednesday, December 1, 2004)]
[Rules and Regulations]
[Pages 69826-69828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26500]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No. 041124330-4330-01; I.D. 111904C]
RIN 0648-AS91
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 authorization for a period of 30
days, to allow the use of limited tow times by shrimp trawlers as an
alternative to the use of Turtle Excluder Devices (TEDs) in the state
waters of Alabama and the state waters of Louisiana from the
Mississippi/Louisiana border to a line at 90[deg]03'00'' West longitude
(approximately the west end of Grand Isle). This action is necessary
because environmental conditions as a result of Hurricane Ivan are
hampering the fishermen's ability to use TEDs effectively.
DATES: Effective from November 26, 2004 through December 27, 2004.
ADDRESSES: Requests for copies of the Environmental Assessment on this
action should be addressed to the Chief, Marine Mammal Division, Office
of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-570-5794, 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.
Sea turtles are incidentally taken and killed as a result of
numerous activities, including fishery 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
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, 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, that 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. 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 September 27, 28, and 29, 2004, the NOAA Fisheries' Southeast
Regional Administrator received requests from the Marine Fisheries
Division of the Alabama Department of Conservation and Natural
Resources (ADCNR), the Mississippi Department of Marine Resources
(MDMR), and the Louisiana Department of Wildlife and Fisheries (LDWF),
respectively, to allow the use of tow times as an alternative to TEDs
in state waters due to the presence of excessive storm-related debris
on the fishing grounds as a result of Hurricane Ivan. Subsequent to
these requests, NOAA Fisheries issued a 30-day variance of the TED
requirements from October 12 through November 11, 2004.
On November 15, 2004, the NOAA Fisheries' Southeast Regional
Administrator received requests from the Marine Fisheries Division of
the ADCNR and LDWF for an additional 30-day period allowing the use of
tow times as an alternative to TEDs in state waters due to the presence
of excessive storm-related debris that is still present on the fishing
grounds as a result of Hurricane Ivan. After an investigation, the
ADCNR and LDWF have determined that this debris continues to affect the
fishermen's ability to use TEDs effectively. When a TED is clogged with
debris, it can no longer catch shrimp effectively nor can it
effectively exclude turtles. Alabama and Louisiana have stated that
their marine enforcement agencies will increase patrols to enforce the
tow time restrictions.
NOAA Fisheries gear technicians interviewed fishermen and surveyed
parts of the affected areas in Alabama,
[[Page 69827]]
Mississippi, and Louisiana. The interviews and surveys conducted by the
gear technicians indicate that problems with debris exist in Alabama
and Louisiana state waters, which are likely to affect the
effectiveness of TEDs. Debris did not appear to be a significant
problem throughout the majority of Mississippi state waters.
Special Environmental Conditions
The AA finds that debris washed into the state waters of Alabama
and the state waters of Louisiana from the Mississippi/Louisiana border
to a line at 90[deg]03'00'' West longitude (approximately the west end
of Grand Isle) by Hurricane Ivan 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 the state
waters of Alabama and the state waters of Louisiana from the
Mississippi/Louisiana border to a line at 90[deg]03'00'' West longitude
(approximately the west end of Grand Isle) for a period of 30 days. Tow
times must be limited to no more than 75 minutes measured from the time
trawl doors enter the water until they are retrieved from the water.
The marine patrols of the affected states are continuing to monitor the
situation and will cooperate with NMFS in determining the extent of the
ongoing debris problem in this area. Moreover, the affected states have
stated that their marine patrols will enforce the restricted tow times.
Ensuring compliance with tow time restrictions is critical to effective
sea turtle protection, and the commitment from the affected states'
marine patrols to enforce tow time restrictions is an important factor
enabling NMFS to issue this authorization.
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 result in debris clogging
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 the
state waters of Alabama and the state waters of Louisiana from the
Mississippi/Louisiana border to a line at 90[deg]03'00'' West longitude
(approximately the west end of Grand Isle) for a period of 30 days.
Instead of the required use of TEDs, shrimp trawlers may opt to comply
with the sea turtle conservation regulations by using restricted tow
times, 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 rule 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 compliance cannot be
monitored effectively. This authorization will expire automatically on
December 27, 2004, 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 E.O. 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 adequate protection for endangered and threatened sea
turtles pursuant to the ESA and applicable regulations.
Pursuant to 5 U.S.C. 553(b)(3)(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 NMFS from executing
its functions to protect threatened and endangered sea turtles.
Additionally, debris would likely move out of the area before NMFS
could implement this rule to protect sea turtles, thereby rendering the
action obsolete.
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). Further, because this short-term exemption to the
requirement to use TEDs relieves a restriction, 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). Therefore, NMFS is making the
rule effective November 26, 2004 through December 27, 2004.
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).
[[Page 69828]]
Dated: November 26, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 04-26500 Filed 11-26-04; 3:12 pm]
BILLING CODE 3510-22-S