[Federal Register Volume 70, Number 187 (Wednesday, September 28, 2005)]
[Rules and Regulations]
[Pages 56593-56595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19373]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 050922245-5245-01; I.D. 092005A]
RIN 0648-AT89


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 rule for a period of 30 days, to 
allow shrimp fishermen to use limited tow times as an alternative to 
Turtle Excluder Devices (TEDs) in state and Federal waters from the 
Florida/Alabama border, westward to the boundary of Cameron Parish, 
Louisiana (approximately 92[deg] 37' W. long.), and extending offshore 
50 nautical miles. This action is necessary because environmental 
conditions resulting from Hurricane Katrina are preventing some 
fishermen from using TEDs effectively.

DATES: Effective from September 23, 2005 through October 24, 2005.

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 East-West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Michael Barnette, 727-551-5794.

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-related trawling activities in 
the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and 
its implementing regulations,

[[Page 56594]]

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 
allow sea turtles to escape. 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, which 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. Each tow 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 12, 2005, the NMFS Southeast Regional Administrator 
received requests from the Marine Fisheries Division of the Alabama 
Department of Conservation and Natural Resources (ALDCNR) and the 
Louisiana Department of Wildlife and Fisheries (LADWF) to allow the use 
of tow times as an alternative to TEDs in state and Federal waters 
because of the presence of excessive storm-related debris on the 
fishing grounds as a result of Hurricane Katrina. NMFS received a 
similar request from the Mississippi Department of Marine Resources 
(MDMR) on September 13. When a TED is clogged with debris, it can no 
longer catch shrimp effectively nor can it effectively exclude turtles. 
Phone conversations between NMFS Southeast Region's Protected Resources 
staff, fishermen, and state resource agency staffs confirm there are 
problems with debris in state and Federal waters off Alabama, westward 
to the boundary of Cameron Parish, Louisiana, and extending offshore 50 
nautical miles, which are likely to affect the effectiveness of TEDs.

Special Environmental Conditions

    The AA finds that debris washed into state and fFederal waters by 
Hurricane Katrina from the Florida/Alabama border, westward to the 
boundary of Cameron Parish, Louisiana (approximately 92[deg] 37' W. 
long.), and extending offshore 50 nautical miles, 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 
state and federal waters off Alabama, westward to the boundary of 
Cameron Parish, Louisiana (approximately 92[deg] 37' W. long.), and 
extending offshore 50 nautical miles, for a period of 30 days. Tow 
times must be limited to no more than 55 minutes measured from the time 
trawl doors enter the water until they are retrieved from the water.

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 trap debris either on or 
in front of 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 
state and Federal waters affected by Hurricane Katrina off Alabama, 
westward to the boundary of Cameron Parish, Louisiana (approximately 
92[deg] 37' W. long.), and extending offshore 50 nautical miles, for a 
period of 30 days. Through this temporary rule, shrimp trawlers may 
chose either restricted tow times or TEDs to comply with the sea turtle 
conservation regulations, as prescribed above.

[[Page 56595]]

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 indicates compliance cannot be 
monitored effectively. This authorization will expire automatically on 
October 24, 2005, 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 Executive Order 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)(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 the agency from 
providing the affected industry relief from the effects of Hurricane 
Katrina in a timely manner.
    The AA finds that unusually high amounts of debris are creating 
special environmental conditions that make trawling with TED-equipped 
nets impracticable. Many fishermen may be unable to operate under these 
conditions without an alternative to the use of TEDs. Therefore, 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) to provide alternatives to comply 
with the sea turtle regulations in a timely manner. For the reasons 
above, 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).
    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: September 23, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 05-19373 Filed 9-23-05; 2:14 pm]
BILLING CODE 3510-22-S