[Federal Register Volume 69, Number 199 (Friday, October 15, 2004)]
[Rules and Regulations]
[Pages 61155-61157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23190]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No.;I.D. 100404B]
RIN 0648-AS79
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 Mississippi, 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 excessive debris as a result of Hurricane Ivan may
affect 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.
DATES: Effective from October 12, 2004 through November 12, 2004.
ADDRESSES: Requests for copies of the Environmental Assessment on this
action should be addressed to the Chief, Marine Mammal 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
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(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. Taking endangered sea
turtles is prohibited under the ESA, subject to limited exceptions.
Through section 4(d) of the ESA, NMFS implemented regulations at 50 CFR
223.206 extending the taking prohibition to threatened sea turtles.
Exceptions to the taking prohibition are also authorized 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 because of excessive storm-related debris on the
fishing grounds as a result of Hurricane Ivan. After an investigation,
the ADCNR, MDMR, and LDWF have determined that this debris is affecting
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, Mississippi, 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, Mississippi, and Louisiana. The
interviews and surveys conducted by the gear technicians indicate that
problems with debris exist in Alabama, Mississippi, and Louisiana state
waters that are likely to affect the effectiveness of TEDs.
Special Environmental Conditions
The AA finds that debris washed into the state waters of Alabama
and Mississippi 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 temporary
rule to authorize the use of restricted tow times as an alternative to
the use of TEDs in the state waters of Alabama and Mississippi and the
state waters of Louisiana from the Mississippi/Louisiana border to a
line at 90o 03' 00'' West longitude (approximately the west end of
Grand Isle) for a period of 30 days. Through October 31, 2004, a shrimp
trawler utilizing this authorization must limit tow times to no more
than 55 minutes, measured from the time trawl doors enter the water
until they are completely retrieved from the water. From November 1,
2004, through November 12, 2004, unless terminated earlier, 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. The use of TEDs negates the tow
time restrictions. 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
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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 Mississippi, 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.
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 notice 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 information from
enforcement, state authorities, or NMFS indicate compliance cannot be
monitored effectively. This authorization will expire automatically on
November 12, 2004, unless it is explicitly extended through publication
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 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)(3)(B), the AA finds that there is good
cause to waive prior notice and opportunity to comment on this
temporary rule as such procedures are impracticable and contrary to the
public interest. Unusually high amounts of debris are creating special
environmental conditions that make trawling with TED-equipped nets
impracticable. Providing notice and comment would prevent the agency
from providing relief within the necessary time frame because shrimp
loss and sea turtle lethal take is likely to occur in the interim
period prior to finalizing this temporary rule. These resources would
be impacted unnecessarily through a notice and comment period process.
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). The temporary rule grants a short-term exemption to the
requirement to use TEDs, and, therefore, allows fishermen to choose
between deploying TEDs or using tow-times. This temporary rule relieves
a restriction and is not subject to a 30-day delay in effective date,
pursuant to 5 U.S.C. 553(d)(1). NMFS is making the rule effective
October 12, 2004 through November 12, 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).
Dated: October 12, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 04-23190 Filed 10-12-04; 3:54 pm]
BILLING CODE 3510-22-S