69826 Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 

(143) On December 2, 2002, the 

Oregon Department of Environmental 

Quality submitted a SIP revision to 

repeal the Perchloroethylene Dry 

Cleaning rule and revise related parts of 

the Introduction and Definitions 

sections of Division 232. 

(i) Incorporation by reference. 

(A) The following sections of the 

Oregon Administrative Rules 340: 232–

0010 and 232–0030, as effective October 

14, 1999.

[FR Doc. 04–26476 Filed 11–30–04; 8:45 am] 

BILLING CODE 6560–50–P

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.

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°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 EastWest 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,

Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 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°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°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°, 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°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).

69828 Federal Register / Vol. 69, No. 230 / Wednesday, December 1, 2004 / Rules and Regulations 

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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 679

[Docket No. 031124287–4060–02; I.D. 

112304C]

Fisheries of the Exclusive Economic 

Zone Off Alaska; Reallocation of 

Pacific Cod in the Bering Sea and 

Aleutian Islands Management Area

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Reallocation.

SUMMARY: NMFS is reallocating the 

projected unused amount of Pacific cod 

from catcher vessels using pot gear to 

vessels using trawl gear and catcher 

processor vessels using hook-and-line 

gear in the BSAI. These actions are 

necessary to allow the 2004 total 

allowable catch (TAC) of Pacific cod to 

be harvested.

DATES: Effective November 26, 2004, 

until 2400 hours, A.l.t., December 31, 

2004.

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228.

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish 

Fishery of the Bering Sea and Aleutian 

Islands Area (FMP) prepared by the 

North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679.

The 2004 final harvest specifications 

for groundfish of the BSAI (69 FR 9242, 

February 27, 2004), established the 

Pacific cod TAC as 199,338 metric tons 

(mt). Pursuant to § 679.20(a)(7)(i)(A), 

3,987 mt was allocated to vessels using 

jig gear, 101,662 mt to vessels using 

hook-and-line or pot gear, and 93,689 

mt to vessels using trawl gear. The share 

of the Pacific cod TAC allocated to trawl 

gear was further allocated 50 percent to 

catcher vessels and 50 percent to 

catcher/processor vessels 

(§ 679.20(a)(7)(i)(B)). The share of the 

Pacific cod TAC allocated to hook-andline or pot gear was further allocated 80 

percent to catcher/processor vessels 

using hook-and-line gear; 0.3 percent to 

catcher vessels using hook-and-line 

gear; 3.3 percent to catcher/processor 

vessels using pot gear; 15 percent to 

catcher vessels using pot gear; and 1.4 

percent to catcher vessels less than 60 

ft (18.3 meters) length overall that use 

either hook-and-line or pot gear 

(§ 679.20(a)(7)(i)(C)).

On October 15, 2004, 12,700 mt of 

Pacific cod from the trawl gear 

allocation and 2,000 mt from the jig gear 

allocation was reallocated to vessels 

using hook-and-line gear and vessels 

using pot gear (69 FR 61607, October 20, 

2004).

As of November 16, 2004, the 

Administrator, Alaska Region, NMFS 

(Regional Administrator), has 

determined that catcher vessels using 

pot gear will not be able to harvest 3,960 

mt of Pacific cod allocated to those 

vessels under § 679.20(a)(7)(i)(C) and 

the subsequent reallocation on October 

15, 2004 (69 FR 61607, October 20, 

2004). Therefore, in accordance with 

§ 679.20(a)(7)(ii)(C)(2), NMFS 

apportions 3,960 mt of Pacific cod from 

catcher vessels using pot gear to vessels 

using trawl gear and catcher/processor 

vessels using hook-and-line gear.

The harvest specifications for Pacific 

cod included in the harvest 

specifications for groundfish in the 

BSAI (69 FR 9242, February 27, 2004) 

are revised as follows: 97,795 mt to 

catcher/processor vessels using hookand-line gear, 11,735 mt to catcher 

vessels using pot gear, 41,431 mt to 

catcher/processor vessels using trawl 

gear, and 40,717 mt to catcher vessels 

using trawl gear.

Classification

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA, 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such a requirement 

is impracticable and contrary to the 

public interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the reallocation of Pacific cod 

specified for catcher vessels using pot 

gear to vessels using trawl gear and 

catcher processor vessels using hookand-line in the BSAI and therefore 

would cause disruption to the industry 

by requiring unnecessary closures, 

disruption within the fishing industry, 

and the potential for regulatory discards 

when the current allocations are 

reached. This reallocation will relieve a 

restriction on the industry and allow for 

the orderly conduct and efficient 

operation of this fishery.

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment.

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: November 24, 2004.

Alan D. Risenhoover,

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service.

[FR Doc. 04–26499 Filed 11–26–04; 3:12 pm]

BILLING CODE 3510–22–S