Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60013 

applicable emission limits, Wisconsin 

Administrative Code section NR 

422.145. 

(i) Incorporation by reference. 

Department of Natural Resources 

Findings of Fact, Conclusions of Law, 

and Decision AM–04–200 dated 

November 24, 2004. 

[FR Doc. 05–20604 Filed 10–13–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 222 and 223 

[Docket No. 051007258–5258–01; I.D. 

100505D] 

RIN 0648–AT96 

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 

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 off Cameron Parish, 

Louisiana (approximately 92°37′ W. 

long.), westward to the boundary shared 

by Matagorda and Brazoria Counties, 

Texas, and extending offshore 50 

nautical miles. This action is necessary 

because environmental conditions 

resulting from Hurricane Rita are 

preventing some fishermen from using 

TEDs effectively. 

DATES: Effective from October 11, 2005 

through November 10, 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 EastWest 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 

some are 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, 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 27, 2005, the NMFS 

Southeast Regional Administrator 

received requests from the Louisiana 

Department of Wildlife and Fisheries 

(LADWF) and the Texas Parks and 

Wildlife Department (TPWD) to allow 

the use of tow times as an alternative to 

TEDs in state and federal waters because 

of the presence of excessive stormrelated debris on the fishing grounds as 

a result of Hurricane Rita. 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 

Louisiana, westward to the boundary 

shared by Matagorda and Brazoria 

Counties, Texas, 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 Federal waters by Hurricane 

Rita off Cameron Parish, Louisiana 

(approximately 92°37′ W. long.), 

westward to the boundary shared by 

Matagorda and Brazoria Counties, 

Texas, 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 Cameron Parish, Louisiana 

(approximately 92°37′ W. long.), 

westward to the boundary shared by 

Matagorda and Brazoria Counties, 

Texas, and extending offshore 50 

nautical miles, for a period of 30 days. 

Tow times must be limited to no more 

60014 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

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°, 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 Rita off 

Cameron Parish, Louisiana 

(approximately 92° 37′ W. long.), 

westward to the boundary shared by 

Matagorda and Brazoria Counties, 

Texas, and extending offshore 50 

nautical miles, for a period of 30 days. 

Through this temporary rule, shrimp 

trawlers may choose either restricted 

tow times or TEDs to comply with the 

sea turtle conservation regulations, 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 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 November 10, 

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 Rita in a timely manner. 

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. Many fishermen may be unable 

to operate under the special 

environmental conditions created by 

Hurricane Rita without an alternative to 

using TEDs. Providing a 30–day delay in 

effective date would prevent the agency 

from providing the affected industry 

relief from the effects of Hurricane Rita 

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: October 11, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 05–20597 Filed 10–11–05; 1:14 pm] 

BILLING CODE 3510–22–S