[Federal Register Volume 69, Number 106 (Wednesday, June 2, 2004)]
[Rules and Regulations]
[Pages 31035-31038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12433]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No.040412113-4152-01; I.D. 040104C]
RIN 0648-AS02


Endangered and Threatened Wildlife; Sea Turtle Conservation 
Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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

SUMMARY: NMFS is amending the turtle excluder device (TED) regulations 
that require most shrimp trawlers to use TEDs in the southeastern 
Atlantic and the Gulf of Mexico to reduce the incidental capture of 
endangered and threatened sea turtles during shrimp trawling. 
Specifically, NMFS is allowing the use of a double cover flap TED with 
a modified flap design. This modification will allow the use of a flap 
that extends up to 24 inches (61 cm) past the posterior edge of the TED 
frame. This modification has been tested and meets the regulatory 
requirements for efficiency at releasing sea turtles.

DATES: Effective May 27, 2004.

ADDRESSES: Copies of the environmental assessment can be obtained from 
the Protected Resources Division, Southeast Regional Office, 9721 
Executive Center Drive, North, Suite 102 St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT: Robert Hoffman (ph. 727-570-5312, fax 
727-570-5517, e-mail [email protected]).

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, taking sea turtles is prohibited, with 
exceptions identified in 50 CFR 223.206, or if in accordance with the 
terms and conditions of a biological opinion issued under section 7 of 
the ESA or 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 take prohibition 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.

February 21, 2003, Amendments to the Sea Turtle Conservation 
Regulations

    On February 21, 2003, NMFS issued a final rule (68 FR 8456), 
amending the sea turtle conservation regulations to protect large 
loggerhead, green, and leatherback sea turtles. The February 2003 final 
rule requires that all shrimp trawlers fishing in the offshore waters 
of the southeastern United States (Atlantic area and Gulf area) and the 
inshore waters of Georgia and South Carolina use either a specified 
double cover flap TED, a single-grid hard TED with a 71-inch (180-cm) 
opening, or a Parker soft TED with a 96-inch (244-cm) opening in each 
net rigged for fishing. In inshore waters, except those of Georgia and 
South Carolina, the rule allows the use of a single-grid hard TED with 
a 44-inch (112-cm) opening, a Parker soft TED with a 56-inch (142-cm) 
opening, and a hooped hard TED with a 35-inch (89-cm) by 27-inch (69-
cm) escape opening.
    Since publication of the final rule, fishermen have reported that 
the current double cover flap TED design stretches over time. This 
stretching causes a gap between the flap panels and the grid frame. 
Fishermen report that this stretching causes loss of shrimp catch. 
While this loss is unsubstantiated and unquantified, fishermen sought 
the ability to modify the double cover flap TED design to allow longer 
flap panels and longer edge lines. Fishermen have concluded that this 
modification allows retention of shrimp catch.
    Accordingly, since September 2003, NMFS has issued 230 experimental 
permits, in accordance with Sec.  223.207(e)(2), to fishermen to test a 
modified double cover flap TED with longer flap panels. This 
modification to the double cover flap TED was designed by NMFS gear 
technicians in cooperation with industry. The modification incorporates 
the use of flap panels that extend 24 inches (61 cm) past the posterior 
edge of the TED frame and are sewn down the entire length of the 
outside edge of each flap panel. The current double cover flap TED 
design only allows the flap panels to extend 6 inches (15 cm) past the 
posterior edge of the TED frame. Interviews with permitted fishermen 
have indicated that the new design works well in retaining shrimp 
catch.

Long Flap Paneled Double Cover Flap TED Testing

    NMFS tested the modified double cover flap TED using testing 
protocols designed to evaluate a TED's ability to release large 
turtles. The protocols were developed during the testing and approval 
of the double cover flap TED (66 FR 24287, May 14, 2001). NMFS used the 
average carapace measurements of 15 nesting female leatherback turtles 
to construct a pipe-framed model of a leatherback turtle. This model 
measured 40 inches wide by 21 inches (102 cm by 53 cm) deep. The test 
was performed by a diver swimming repeatedly through the trawl with the 
model and pushing it through the TED opening. During these tests, the 
diver was able to push the model through the opening with ease. When 
the model was inverted (simulating the dorsal surface of the turtle 
oriented against the TED frame), the diver was still able to push

[[Page 31036]]

the model through the opening with ease.
    The long flap double cover flap TED was also tested for its ability 
to release wild turtles of a range of sizes using a modified version of 
the Cape Canaveral testing protocol published in the Federal Register 
on October 9, 1990, (55 FR 41092). The 1990 protocol called for the use 
of a series of double rigged tows, in an area with a high sea turtle 
concentration (such as the Cape Canaveral Shipping Channel), in which 
one trawl is a naked net (no TED) and the other includes the 
experimental TED. The catch of turtles in the naked net is compared to 
the captures in the net with the TED installed to determine if the TED 
was at least 97 percent effective at releasing turtles as required by 
Sec.  223.207(e)(1). NMFS has modified this protocol to better protect 
turtles and to increase its accuracy. The modifications include the use 
of two trawls, each rigged with the experimental TED and a video camera 
mounted by the TED escape opening that can be monitored on board the 
research vessel. Once the NMFS technician on board the research vessel 
sees a turtle encounter the TED, the turtle is given 10 minutes to 
escape. If the turtle does not escape within 10 minutes, the trawl is 
retrieved and the turtle is released. Any turtle that does not escape 
within 10 minutes is considered to have been captured.
    Using this modified Cape Canaveral protocol, NMFS tested the 
modified double cover flap TED off the coast of Georgia between 
November 13 and November 18, 2003, and in the Cape Canaveral Channel 
between February 19 through March 12, 2004. In total, 33 turtles were 
exposed to this TED with 32 of the turtles escaping within the 10-
minute exposure period for a 97-percent success rate. The turtles 
exposed to the modified double cover flap TED included one leatherback, 
seven Kemp's ridleys, and 25 loggerheads. The single turtle that did 
not escape within the 10-minute limit was a juvenile loggerhead.
    Therefore, on April 16, 2004, NMFS published a proposed rule (69 FR 
20571) requesting comments on allowing the use of a long flap double 
cover flap TED in the Atlantic and Gulf of Mexico. No responsive 
comments were received on the proposed rule.

Provisions of the Final Rule

    This final rule will allow the use of a double cover flap TED with 
flap panels that extend between 6 inches (15 cm) but no more than 24 
inches (61 cm) past the posterior edge of the grid with the use of edge 
lines in all areas and at all times where and when TEDs are required. 
This final rule will only modify the existing requirements for the 
double cover flap TED in a permissive manner, i.e., fishermen may now 
use longer flaps and edge lines on double cover flap TEDs, but if they 
choose not to make this modification, they are not required to change 
existing gear.
    Specifically, this final rule allows a single-grid hard TED with 
the escape opening cut of at least 56 inches (142 cm) wide and 20 
inches (51 cm) forward and aft, covered with a split flap composed of 
two equal size rectangular panels. Each panel must be no less than 58 
inches (147 cm) wide and may overlap each other no more than 15 inches 
(38 cm). The panels may only be sewn together along the leading edge of 
the cut. The edge of the panels may extend no more than 24 inches (61 
cm) past the posterior edge of grid, and may be sewn down the entire 
length of the outside edge of each flap panel. To better preserve the 
shape of the webbing panels over time, edge lines can be used around 
the edges of the unattached portion of the flap panels to help maintain 
the shape of the flap. Edge lines can only be used if the flap panels 
are sewn down the entire length of the outside edge of each flap panel.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an environmental assessment/Regulatory Flexibility 
Act analysis/regulatory impact review (EA/RFA/RIR) for this final rule 
that evaluates the potential impact on the environment that may result 
from the final rule. The EA/RFA/RIR found that the implementation of 
this rule will not have a significant impact on the quality of the 
human environment and that the preparation of an environmental impact 
statement is not necessary.
    The final rule is not expected to result in any direct adverse 
economic impacts on small entities. However, an RFA was conducted. 
Based on a compilation of data from the shrimp landings file for the 
Gulf, Florida trip ticket data, and data from the Georgia shrimp 
landings system, the maximum known gross revenue for an individual 
fishing craft in the Gulf and South Atlantic shrimp fisheries in 1999 
was approximately $724,000 in nominal dollars. While this figure could 
be an underestimate of the true maximum value since currently available 
data does not allow all shrimp landings from different parts of the 
region and their associated revenues to be linked to a particular 
fishing craft, this figure is sufficiently less than $3.5 million, 
supporting the presumption that all firms in the Gulf and South 
Atlantic shrimp trawl fisheries are small business entities.
    It is estimated that 11,244 small vessels (vessels less than or 
equal to 60 ft (18.3 m)) and 2,368 large vessels (vessels greater than 
60 ft (18.3 m)), or a total of 13,572 vessels, operate in the Southeast 
shrimp fishery. Among these vessels, approximately 2,600 vessels are 
currently permitted to operate in the Gulf of Mexico EEZ commercial 
shrimp trawl fishery. Small vessels in the Southeast shrimp trawl 
fishery are estimated to harvest an average of 4,752 pounds of shrimp 
valued at $12,435 in gross revenues, requiring average variable cost 
expenditures of $8,708 and generating a profit of $3,727. Large vessels 
in the Southeast shrimp trawl fishery are estimated to harvest an 
average of 42,656 pounds of shrimp valued at $142,880 in gross 
revenues, requiring average variable cost expenditures of $126,089 and 
generating a profit of $16,089. All participants in the trawl fishery 
would be affected by the proposed action in that each would have the 
opportunity to utilize proposed gear modification. However, the 
preferred alternative does not impose a requirement to use the longer 
flaps, nor would the use of double-cover TEDs rather than other 
certified TED designs be required. The final rule, therefore, creates 
options without additional obligations. Use of the modified TED will 
require no special skills other than those currently necessary to 
operate in the fishery. No duplicative, overlapping, or conflicting 
federal rules have been identified. All business entities participating 
in the commercial shrimp fisheries are considered small entities, so 
the issue of disproportionality does not arise. The final rule will not 
impose any additional fishing restrictions on participants in the 
fishery. The final rule would simply allow greater flexibility to 
select the gear configuration that best suits the operational 
conditions of the individual shrimping operation. Thus, current 
operational behaviors, including when to shrimp, where to shrimp, and 
how long to shrimp, as well as where product is marketed, can continue 
unchanged. Minor costs (approximately $2.00 per vessel) associated with 
additional netting necessary to extend the flaps may be incurred. 
However, these costs should not impact profitability and, in fact, 
would only be incurred should the operator determine that the current 
flap dimensions result in excessive shrimp loss, such that modification 
would result in a net

[[Page 31037]]

financial gain. Thus, no reduction in profits are expected for any 
small entities.
    Adoption of the no action alternative (not allowing the use of the 
long flap double cover flap TED) would result in the fishermen's 
continued reports, but unsubstantiated and unquantified, loss of shrimp 
resulting from flap stretching over time as the double-cover TEDs are 
used. Thus, adoption of this no-action alternative will result in the 
continuation of an unanticipated adverse consequence of the original 
TED specifications. Although the amount of current shrimp loss as a 
result of this problem, and the subsequent impacts on revenues and 
profitability, are unknown, any perceived unnecessary adverse impacts 
on the economic performance of participants in the fishery further 
erodes the viability of continued participation, jeopardizing both the 
shrimping businesses themselves as well as associated industries.
    A copy of the EA/RFA/RIR is available from NMFS (see ADDRESSES).
    The Assistant Administrator for Fisheries, NOAA, (AA) waives the 
30-day delay in effectiveness of this final rule because this rule 
relieves an existing restriction, and for other good cause. Under the 
existing TED regulations fishermen can choose to use a single grid hard 
TED with a 44-inch opening (112- cm)(inshore only), a 71-inch (180-cm) 
opening, or a double cover flap with a 6-inch (15.3-cm) flap, or they 
can use the inshore or offshore hooped hard TEDs or the Parker soft 
TED. Until this final rule becomes effective, long flap double cover 
flap TED use would not be legal in the southeast shrimp trawl fishery. 
This rule relieves this restriction for all fishermen in the southeast 
shrimp trawl fishery. In addition, there are 230 fishermen who have 
permits to use the long flap double cover flap TED, these permits 
expire on May 31, 2004. Responses from these fishermen indicate that 
shrimp loss is low with this TED and they would like to continue to use 
it. Accordingly, if the effectiveness of this rule is delayed, these 
permits will expire and the fishermen who are currently using this TED 
and plan to continue using it will be forced either to abstain from 
fishing until the rule becomes effective, or else modify their TEDs to 
meet the current requirements and then modify them back when the rule 
becomes effective a short time later. Waiver of the 30 day delay in 
effectiveness will save the fishermen the time and expense of making 
this change for a limited time only. Therefore, the AA waives the 30 
day delay in effectiveness for this final rule.
    The Endangered Species Act provides the statutory basis for this 
proposed rule.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: May 26, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 223 is amended as 
follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq.

0
2. In Sec.  223.207, paragraph (d)(3)(iii) is revised to read as 
follows:


Sec.  223.207  Approved TEDs.

* * * * *
    (d) * * *
    (3) * * *
    (iii) Double cover flap offshore TED flap. This flap must be 
composed of two equal size rectangular panels of webbing. Each panel 
must be no less than 58 inches (147 cm) wide and may overlap each other 
no more than 15 inches (38 cm). The panels may only be sewn together 
along the leading edge of the cut. The trailing edge of each panel must 
not extend more than 24 inches (61 cm) past the posterior edge of the 
grid (Figure 16 to this part). Each panel may be sewn down the entire 
length of the outside edge of each panel. Chafing webbing described in 
paragraph (d)(4) of this section may not be used with this type of 
flap.
    (A) Edge lines. Optional edge lines can be used in conjunction with 
this flap. The line must be made of polyethylene with a maximum 
diameter of 3/8 inches (.95 cm). A single length of line must be used 
for each flap panel. The line must be sewn evenly to the unattached, 
inside edges and trailing edges, of each flap panel. When edge lines 
are installed, the outside edge of each flap panel must be attached 
along the entire length of the flap panel.
    (B) Reserved

0
3. In part 223, Figure 16 is revised to read as follows:
BILLING CODE 3510-22-S

[[Page 31038]]

[GRAPHIC] [TIFF OMITTED] TR02JN04.003

[FR Doc. 04-12433 Filed 6-1-04; 4:15 pm]
BILLING CODE 3510-22-C