[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]
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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.
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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
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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
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[FR Doc. 04-12433 Filed 6-1-04; 4:15 pm]
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