Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61911 

exceptionally large or small restraints. 

This combination of restraints is needed 

to assure the robustness of automatic 

suppression systems under real world 

conditions. It is also important to note 

that when Appendix A was amended in 

November 2003, the Britax Expressway 

ISOFIX was unique in design, in that it 

was the only child restraint system 

available with rigid Lower Anchors and 

Tethers for Children (LATCH) 

attachments. While the agency has 

identified a small percentage of child 

restraint systems that weigh more than 

the Britax Expressway ISOFIX, the 

inclusion of heavier child restraint 

system designs is not inconsistent with 

the intent of Appendix A of FMVSS No. 

208. Further, while the Britax 

Expressway ISOFIX is approximately 

0.5 kg (1.1 lb) heavier than the heaviest 

child restraint system that was removed 

from Appendix A as amended in the 

November 2003 final rule, the agency 

does not consider this to be an 

indication that child restraint system 

designs are increasing in weight. 

As noted earlier, FMVSS No. 213 is a 

performance standard, and does not 

specify particular design constraints 

such as mass and/or dimensions. Honda 

did not provide any rationale for its 

proposal to limit child restraint system 

designs to a maximum of 8.5 kg (18.7 

lb). NHTSA has not identified any realworld data to support the need to limit 

the weight of child restraint systems, 

and specifically as it relates to the 

performance of occupant detection 

systems for automatic air bag 

suppression. Further, specification of a 

child restraint system mass limit, when 

considered in conjunction with the 

mass of the dummy used in air bag 

suppression testing, would effectively 

establish a weight threshold for weightbased air bag suppression systems. It is 

not the intent of the agency to specify 

such a threshold. Each vehicle 

manufacturer is responsible for meeting 

the requirements of FMVSS No. 208 

when using any of the child restraint 

systems listed in Appendix A. 

In consideration of the foregoing, 

NHTSA is denying Honda’s petition for 

rulemaking to amend FMVSS No. 213 to 

adopt a design weight limit for child 

restraint systems used with the 3-yearold dummy. In accordance with 49 CFR 

Part 552, this completes the agency’s 

review of the petition. 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117 and 30166; delegation of authority at 

49 CFR 1.50. 

Issued on: October 13, 2005. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking. 

[FR Doc. 05–21465 Filed 10–26–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 222 and 223 

[Docket No.050922245–5276–02; I.D. 

092005A, 100505D] 

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. 

SUMMARY: NMFS issues this temporary 

rule to allow shrimp fishermen to 

continue to use limited tow times as an 

alternative to Turtle Excluder Devices 

(TEDs) in inshore and offshore waters 

from the Florida/Alabama border, 

westward to the boundary shared by 

Matagorda and Brazoria Counties, 

Texas, and extending offshore 50 

nautical miles, as initially authorized in 

rules published on September 28 and 

October 14, 2005. This action is 

necessary because environmental 

conditions resulting from Hurricanes 

Katrina and Rita persist on the fishing 

grounds, preventing some fishermen 

from using TEDs effectively. 

DATES: Effective from October 24, 2005, 

through 11:59 p.m, local time, 

November 23, 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 

61912 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 

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 inshore and 

offshore waters because 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. 

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 inshore and offshore waters 

because of excessive storm-related 

debris on the fishing grounds as a result 

of Hurricane Rita. Subsequent to these 

requests, NMFS issued 30–day 

exemptions to the TED requirements 

from September 23 through October 23, 

2005, and October 11 through November 

10, 2005, for waters affected by 

Hurricanes Katrina and Rita, 

respectively (70 FR 56593 and 70 FR 

60013, respectively). 

On October 11, 2005, the NMFS 

Southeast Regional Administrator 

received requests from the ALDCNR, 

MDMR, LADWF, and the TPWD for an 

additional 30–day period allowing the 

use of restricted tow times as an 

alternative to TEDs in inshore and 

offshore waters because of excessive 

storm-related debris that is still present 

on the fishing grounds as a result of 

Hurricanes Katrina and Rita. After an 

investigation, NMFS has determined 

that this debris is still affecting 

fishermen’s ability to use TEDs 

effectively, which is not expected to 

dissipate anytime soon. When a TED is 

clogged with debris it can no longer 

catch shrimp effectively nor can it 

effectively exclude turtles. NMFS has 

investigated the continuing problems 

with debris and has determined that 

shrimp fisherman may continue to use 

limited two times as an alterative to 

TEDs in inshore and offshore waters in 

the affected area off Alabama westward 

through Texas. 

Special Environmental Conditions 

The AA finds that debris washed into 

inshore and offshore waters by 

Hurricanes Katrina and Rita off 

Alabama, westward to the boundary 

shared by Matagorda and Brazoria 

Counties, Texas, and extending offshore 

50 nautical miles, has created ongoing 

special environmental conditions that 

make trawling with TED-equipped nets 

impracticable. Therefore, the AA issues 

this notification to extend the two 

previous authorizations for the use of 

restricted tow times as an alternative to 

the use of TEDs in inshore and offshore 

waters off Alabama, westward to the 

boundary shared by Matagorda and 

Brazoria Counties, Texas, and extending 

offshore 50 nautical miles, through 

11:59 p.m. on November 23, 2005. 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 through 

October 31, 2005, and no more than 75 

minutes from the time trawl doors enter 

the water until they are retrieved, 

November 1 through November 23, 

2005; thus, the permitted tow time will 

change part way through this exemption 

period. 

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 inshore and 

offshore waters affected by Hurricanes 

Katrina and Rita off Alabama, westward 

to the boundary shared by Matagorda 

and Brazoria Counties, Texas, and 

extending offshore 50 nautical miles, 

through November 23, 2005. 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 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Rules and Regulations 61913 

compliance cannot be monitored 

effectively. This authorization will 

expire automatically at 11:59 p.m., local 

time, on November 23, 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 special 

environmental conditions 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 has 

created ongoing 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 Hurricanes Katrina and 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 

Hurricanes Katrina and 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 Hurricanes Katrina and Rita in a 

timely manner. For the reasons stated 

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 24, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 05–21485 Filed 10–24–05; 2:28 pm] 

BILLING CODE 3510–22–S