[Federal Register Volume 60, Number 96 (Thursday, May 18, 1995)]
[Rules and Regulations]
[Pages 26691-26694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12180]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No. 950427119-5314-02; I.D. 051195A]
RIN 0648-AH98


Sea Turtle Conservation: Restrictions Applicable to Shrimp 
Trawling Activities; Modification of Additional Turtle Excluder Device 
Requirements Within Certain Statistical Zones

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
[[Page 26692]] Atmospheric Administration (NOAA), Commerce.

ACTION: Modification of temporary requirements; request for comments.

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SUMMARY: NMFS is modifying the temporary requirements effective April 
30, and published on May 3, 1995, to protect sea turtles from shrimp 
trawling activities in some portions of the Gulf of Mexico. This 
modification to the temporary requirements is being made to ease a 
burdensome requirement on shrimp trawlers while still providing 
protection for sea turtles. The modification partially rescinds the 
temporary prohibition on the use of try nets by shrimp trawlers in the 
areas subject to the temporary requirements, unless the try nets are 
equipped with NMFS-approved TEDs other than soft or bottom-opening 
TEDs, by allowing try nets with a headrope length of 12 feet (3.6 m) or 
less and a footrope length of 15 feet (4.5 m) or less to be used 
without a TED installed. All other requirements, including the boundary 
of the affected areas remain unchanged.

DATES: This action is effective May 12, 1995 through 11:59 p.m. (local 
time) on May 29, 1995. Comments on this action must be submitted by 
June 12, 1995.

ADDRESSES: Comments on this action and requests for a copy of the 
environmental assessment (EA) prepared for this action should be 
addressed to the Chief, Endangered Species Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 813-570-5312, or 
Russell Bellmer, 301-713-1401.

SUPPLEMENTARY INFORMATION:
    On April 30, 1995 (60 FR 21741; May 3, 1995), temporary 
requirements were placed on shrimp trawling in nearshore waters along 
two sections of the Texas and Louisiana coast in order to conserve 
listed species of sea turtles, especially the severely endangered 
Kemp's ridley. These requirements were necessitated by the continued 
high rates of sea turtle strandings occurring along areas of the Texas 
coast, and the measures implemented were consistent with NMFS' November 
14, 1994 Biological Opinion on the shrimp trawl fishery and the NMFS 
Shrimp Fishery Emergency Response Plan (ERP). The ERP was signed by the 
Assistant Administrator for Fisheries, NOAA, (AA) on March 14, 1995 and 
was immediately distributed widely among industry and environmental 
groups. A notice of availability for the ERP was published on April 21, 
1995 (60 FR 19885).
    A complete discussion of sea turtle strandings in Texas was 
contained in the temporary requirements (60 FR 21741; May 3, 1995), and 
a summary of strandings is provided here. For the 3 consecutive weeks 
beginning April 9 and ending April 29, strandings in Zone 20 were 3, 3, 
and 15 turtles per week. Of these 21 turtles, 7 were Kemp's ridleys. In 
Zone 18 for the same period, 12, 16, and 6 turtles stranded per week. 
Of these 34 turtles, 28 were Kemp's ridleys. Restrictions to the shrimp 
fishery went into effect on April 30, 1995, and in the following week 
strandings fell to 2 turtles, including 1 Kemp's ridley, in Zone 20, 
but rose to 8 turtles, including 5 Kemp's ridleys in Zone 18. With the 
exception of Zone 20 during the week following implementation of the 
restrictions, all these strandings approach or exceed the incidental 
take levels (ITLs) established for those zones.
    The Biological Opinion provides that conservation measures be 
implemented as mortality levels approach ITLs established in the 
Incidental Take Statement in order to ensure that shrimping is not 
likely to jeopardize the continued existence of Kemp's ridley. The 
Biological Opinion specifically provides that such measures be 
implemented immediately when sea turtle takings, indicated or 
documented, reach 75 percent of the established levels. The 
conservation measures are intended to allow shrimp fishing to continue 
while reducing the likelihood of further sea turtle strandings. The ERP 
provides further guidance on the nature and geographic scope of such 
measures.
    A description of the sea turtle stranding events, temporary 
requirements, and the areas in which they apply are detailed in the 
temporary requirements (60 FR 21741; May 3, 1995) and are not repeated 
here.
    Pursuant to 50 CFR 227.72(e)(2)(ii)(B)(1), try nets of up to 20 
feet (6.1 m) in headrope length have been exempted from the TED 
requirements, because they are only intended for use in brief sampling 
tows not likely to result in turtle mortality. Turtles are, however, 
caught in try nets, and either through repeated captures or long tows, 
try nets can contribute to the mortality of sea turtles. Takes of sea 
turtles in try nets, including one mortality, have been documented by 
NMFS, and in the NMFS bycatch observer program from 1992 through 1995, 
try nets accounted for 43% of the observed turtle captures.

Preliminary Comments

    NMFS made the ERP available to all concerned parties for their 
information and to solicit comments on the ERP. NMFS distributed the 
ERP widely among shrimp industry and environmental organizations 
immediately upon the ERP's completion in March, 1995. In addition, 
formal notice of availability for the ERP was published on April 21, 
1995 (60 FR 19885). Furthermore, NMFS widely distributes weekly reports 
of stranding events and distributed the ERP implementation, in which 
fishermen were reminded of the specific restrictions that would be 
implemented if continued, elevated sea turtle strandings occurred. All 
of the restrictive measures imposed by NMFS in response to elevated sea 
turtle strandings were identified in the ERP and weekly implementation 
notices. Nonetheless, while NMFS received general comments regarding 
the necessity of the ERP, only one comment was received from any 
segment of the shrimp industry concerning the potential restrictions 
discussed in the ERP. This commenter objected to the possible 
restrictions on soft TEDs and asked that NMFS assess alternatives for 
flap restrictions. The required use of TEDs in try nets was acceptable 
and the commenter stated that many local fishermen already used TEDs in 
try nets. Among the general comments, NMFS has also received proposals 
from several segments of the shrimp fishery which contain alternative 
means to limit nearshore fishing pressure and resulting levels of 
turtle capture. NMFS is evaluating these proposals and may revise the 
ERP to incorporate the alternative conservation measures.
    Since the temporary requirements have been implemented, however, 
NMFS has received numerous comments on this action. These have come 
primarily by telephone and at a meeting hosted by shrimp industry 
representatives and attended by the NMFS personnel on May 5, 1995. 
Although the official comment period for the April 30, 1995 temporary 
requirements does not end until May 27, 1995, NMFS believes that the 
overwhelming number of comments regarding a particular aspect of the 
restrictions warrants immediate agency response.
    Many shrimpers have stated that the prohibition on all try nets 
without TEDs is unreasonable. Try nets are small nets that are intended 
for very short tows--usually less than 15 minutes--to sample shrimp 
abundance before or during trawling with the main nets. Shrimp 
fishermen have complained, however, that NMFS has not provided any 
alternative to the prohibition that would allow them to monitor their 
catch rates [[Page 26693]] and catch composition, forcing them to fish 
inefficiently, to their own detriment and that of turtles. NMFS now 
believes that the prohibition of all try nets is burdensome and that an 
alternative exists that will allow fishermen to work efficiently, while 
reducing the likelihood of turtle entrapment in shrimp trawl gear.
Alternatives for Try Net Use
    Under the existing sea turtle conservation regulations, try nets 
with a headrope length of 20 feet (6.1 m) or less are exempt from the 
required use of TEDs. A 20-foot (6.1-m) headrope try net can have a 
fairly wide spread of 15 to 16 feet (4.5 to 4.8 m), and its mouth may 
open up several feet (approx. 1 m) off the bottom. By attaching extra 
webbing called a ``tongue'' or a ``bib'' to the center of the headrope 
and attaching an additional towing wire to this bib, the try net's 
mouth can be made to open even higher. These large try nets are 
certainly capable of capturing sea turtles. Indeed, a 20-foot (6.1-m) 
try net is little different from the 25- and 30-foot (7.6- and 9.1-m) 
headrope length nets that are commonly used as main trawl nets on 
smaller trawlers, and which are subject to TED requirements. The larger 
try nets are also capable of retaining larger catches, which may 
provide an incentive to tow them for longer periods, increasing the 
possibility of lethally taking a sea turtle. NMFS originally allowed 
the try net TED exemption based on the presumption that try nets would 
be fished for no more than 20-30 minutes.
    As the size of the try net decreases, so does the potential for 
adversely affecting sea turtles. A small try net, with a headrope 
length of 12 feet (3.6 m), would only have a spread of about 8-9 feet 
(2.4-2.7 m) and would only open 1-2 feet (0.3-0.6 m) high. Such a net 
would also have a very small tail bag to accumulate shrimp catch, and 
there would be little incentive to use it longer than necessary to 
monitor shrimp catch rate. NMFS believes that a try net of this size is 
less likely to capture a sea turtle, and is unlikely to be fished long 
enough to kill a turtle if it were captured. This size net, however, 
would still be large enough for shrimp trawlers to monitor their shrimp 
catch rates.
    In order to provide an alternative that will allow fishermen to 
sample their shrimp catch rates, while providing sea turtles with 
needed protection from entrapment in shrimp trawl nets, NMFS is 
partially rescinding the prohibition on the use of try nets without a 
top-opening, hard TED installed. The temporary prohibition on the use 
of try nets, unless equipped with NMFS-approved TEDs other than soft or 
bottom-opening TEDs, as described in the temporary requirements (60 FR 
21741; May 3, 1995) is being modified and still apply to try nets with 
a headrope length greater than 12 feet (3.6 m) or a footrope length 
greater than 15 feet (4.5 m). However, try nets with a headrope length 
of 12 feet (3.6 m) or less and a footrope length of 15 feet (4.5 m) or 
less may be used without a TED installed. Footrope length is defined in 
50 CFR 217.12 as ``the distance between the points at which the ends of 
the footrope are attached to the trawl net, measured along the 
forwardmost webbing.'' Headrope length is defined in 50 CFR 217.12 as 
``the distance between the points at which the ends of the headrope are 
attached to the trawl net, measured along the forewardmost webbing.'' 
Any bibs or tongues added to a net would be included in the measurement 
and add to overall headrope length.
    This modification to the temporary requirement affects only the 
prohibition relating to try nets. The other prohibitions, the affected 
area, and the effective dates remain unchanged. For clarity, however, 
all the restrictions in effect, including the one modification, will be 
set forth in the requirements section below.
Requirements
    This action is authorized by 50 CFR 227.72(e)(6). The definitions 
in 50 CFR 217.12 are applicable to this action, as well as all relevant 
provisions in 50 CFR parts 217 and 227. For example, Sec. 227.71(b)(3) 
provides that it is unlawful to fish for or possess fish or wildlife 
contrary to a restriction specified or issued under Sec. 227.72(e)(3) 
or (e)(6).
    NMFS hereby notifies owners and operators of shrimp trawlers (as 
defined in 50 CFR 217.12) that, starting May 12, 1995, and ending 11:59 
p.m. (local time) on May 30, 1995, fishing by shrimp trawlers in 
offshore waters, seaward to 10 nm (18.5 km) from the COLREGS line, 
along 2 sections of the Texas and Louisiana coast, the first bounded 
between 27 deg. N. lat. and 28 deg. N. lat. and the second bounded 
between 95 deg.13' W. long. and 93 deg.20.5' W. long., is prohibited 
unless shrimp trawlers comply with the following restrictions to the 
exceptions for incidental taking in 50 CFR 227.72(e):
    1. Use of soft TEDs described in 50 CFR 227.72(e)(4)(iii) is 
prohibited.
    2. Use of hard TEDs with bottom escape openings and special hard 
TEDs with bottom escape openings is prohibited. Approved hard TEDs and 
special hard TEDs must be configured with the slope of the deflector 
bars upward from forward to aft and with the escape opening at the top 
of the trawl.
    3. Use of try nets with a headrope length greater than 12 ft (3.6 
m) or a footrope length greater than 15 ft (4.5 m) is prohibited unless 
a NMFS-approved top-opening, hard TED or special hard TED is installed 
when the try nets are rigged for fishing. Try nets with a headrope 
length 12 ft (3.6 m) or less and a footrope length 15 ft (4.5 m) or 
less are exempt from the TED use requirement in accordance with the 
specifications of 50 CFR 227.72(e)(2)(ii)(B)(1).
    4. Use of a webbing flap that completely covers the escape opening 
in the trawl is prohibited. Any webbing which is attached to the trawl, 
forward of the escape opening, must be cut to a length so that the 
trailing edge of such webbing does not approach to within 2 inches (5.1 
cm) of the posterior edge of the TED grid. The requirements for the 
size of the escape opening are unchanged.
    All provisions in 50 CFR 227.72(e), including, but not limited to 
50 CFR 227.72(e)(2)(ii)(B)(1) (use of try nets), 50 CFR 
227.72(e)(4)(iii) (approval of soft TEDs), 50 CFR 227.72(e)(4)(i)(F) 
(position of escape opening), and 50 CFR 227.72(e)(4)(iv)(C) (webbing 
flap), that do not conform to these requirements are hereby suspended 
for the duration of this action.
    Owners and operators of shrimp trawlers in the area subject to 
restrictions that they may be required to carry a NMFS-approved 
observer aboard such vessel(s) if selected to do so by the Director, 
Southeast Region, NMFS, (Regional Director) upon written notification 
sent to either the address specified for the vessel registration or 
documentation purposes, or otherwise served on the owner or operator of 
the vessel. Shrimp trawlers must comply with the and conditions 
specified in such written notification.
Additional Conservation Measures
    The AA may withdraw or modify the requirement for specific 
conservation measures or any restriction on shrimping activities if the 
AA determines that such action is warranted. Notification of any 
additional sea turtle conservation measures, including any extension of 
this 30-day emergency action, will be published in the Federal Register 
pursuant to 50 CFR 227.72(e)(6).
Classification
    Because neither section 553 of the Administrative Procedure Act 
(APA), nor any other law requires that general notice of proposed 
rulemaking be published for this action, and under 
[[Page 26694]] section 603(b) of the Regulatory Flexibility Act, an 
initial Regulatory Flexibility Analysis is not required.
    This action has been determined to be not significant for purposes 
of E.O. 12866.
    Pursuant to section 553(b)(B) of the APA, the AA finds there is 
good cause to waive prior notice and opportunity to comment on this 
action. It is unnecessary because this action is in response to 
comments received on the temporary requirement published May 3, 1995 
(60 FR 21741). It is also impracticable and contrary to the public 
interest because current restrictions placed upon fishermen are 
unnecessarily burdensome, and any delay in this action imposes 
additional unnecessary fishing restrictions.
    Because this rule relieves a restriction, under section 553(d) of 
the APA a 30-day delay in effective date is not required.
    The AA prepared an EA for the final rule (57 FR 57348, December 4, 
1992) requiring TED use in shrimp trawls and establishing the 30-day 
notice procedures. An EA has been prepared for this action. Copies of 
the EA and the supplemental EA are available (see ADDRESSES).

    Dated: May 12, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 95-12180 Filed 5-12-95; 3:47 pm]
BILLING CODE 3510-22-F