18102 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

(Civil Justice Reform) and has

determined that this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of State regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific State, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

the Federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act of 1969 (42

U.S.C. 4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

that is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface

mining, Underground mining.

Dated: April 17, 1996.

Russell F. Price,

Acting Regional Director, Western Regional

Coordinating Center.

[FR Doc. 96–10056 Filed 4–23–96; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 217 and 227

[Docket No. 950830222–6103–02; I.D.

011696D]

RIN 0648–AH89

Sea Turtle Conservation; Revisions to

Sea Turtle Conservation

Requirements; Restrictions to Shrimp

Trawling Activities; Hearings

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; hearings; request

for comments.

SUMMARY: NMFS proposes to amend the

regulations protecting sea turtles to

enhance their effectiveness in reducing

sea turtle mortality resulting from

shrimp trawling in the Atlantic and Gulf

Areas in the southeastern United States.

Proposed amendments to strengthen the

sea turtle conservation measures are:

Removal of the approval of the use of all

soft turtle excluder devices (TEDs)

effective December 31, 1996; requiring

by December 31, 1996, the use of NMFSapproved hard TEDs in try nets with a

headrope length greater than 12 ft (3.6

m) or a footrope length greater than 15

ft (4.6 m); establishing Shrimp Fishery

Sea Turtle Conservation Areas

(SFSTCAs) in the northwestern Gulf of

Mexico consisting of the offshore waters

out to 10 nautical miles (nm)(18.5 km)

along the coasts of Louisiana and Texas

from the Mississippi River South Pass

(west of 89°08.5′ W. long.) to the U.S.-

Mexican border, and in the Atlantic

consisting of the inshore waters and

offshore waters out to 10 nm (18.5 km)

along the coasts of Georgia and South

Carolina from the Georgia-Florida

border to the North Carolina-South

Carolina border; and, within the

SFSTCAs, removing the approval of all

soft TEDs, imposing the new try net

restrictions, and prohibiting the use of

bottom-opening hard TEDs, effective 30

days after publication of the final rule.

DATES: Comments on this proposed rule

must be submitted on or before June 10,

1996.

ADDRESSES: Comments on this proposed

rule and requests for a copy of the

environmental assessment (EA)

prepared for this proposed rule 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

Therese A. Conant, 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 kempi), leatherback

(Dermochelys coriacea), and hawksbill

(Eretmochelys imbricata) are listed as

endangered. 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.

The incidental take and mortality of

sea turtles as a result of shrimp trawling

activities have been documented in the

Gulf of Mexico and along the Atlantic

seaboard. Under the ESA and its

implementing regulations, taking sea

turtles is prohibited, with exceptions set

forth at 50 CFR 227.72. The incidental

taking of turtles during shrimp trawling

in the Gulf and Atlantic Areas is

excepted from the taking prohibition if

the conservation measures specified in

the sea turtle conservation regulations

(50 CFR part 227, subpart D) are

employed. The regulations require most

shrimp trawlers operating in the Gulf of

Mexico and Southeast U.S. Atlantic to

have a NMFS-approved TED installed in

each net rigged for fishing, year round.

1994–95 Events

Beginning in April 1994, coinciding

with heavy nearshore shrimp trawling

activity, unusually high numbers of

dead sea turtles stranded along the

coasts of Texas, Louisiana, Georgia, and

northeast Florida. The strandings

continued through May and occurred in

highest numbers where shrimping

activity was heaviest. Texas waters were

closed to shrimping from May 13

through July 7, 1994. During that time,

Texas strandings decreased, but again

increased when Texas waters reopened.

In response, NMFS increased

enforcement efforts and technical

assistance. Subsequently, strandings

again decreased. Finally, when NMFS

resumed normal enforcement efforts,

high numbers of dead turtles again

stranded on northern Texas beaches. As
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18103

a result of these strandings, NMFS

reinitiated consultation on the shrimp

fishery pursuant to section 7 of the ESA,

and concluded in its November 14,

1994, Biological Opinion (Opinion) that

the long-term operation of the shrimp

fishery, resulting in mortality of Kemp’s

ridleys at levels observed in 1994, was

likely to jeopardize the continued

existence of the Kemp’s ridley

population and could prevent the

recovery of the loggerhead population.

The major apparent cause of the 1994

strandings was determined to be the

improper use of TEDs by shrimpers in

the Gulf of Mexico. Other causes

identified were: (1) Certification of TEDs

that are ineffective or incompatible with

net types; and (2) intensive ‘‘pulse’’

fishing in areas of high sea turtle

abundance during the spring and

summer of 1994. The simultaneous

occurrence of intensive fishing effort

and Kemp’s ridley sea turtles may have

led to the repeated submergence of

individual turtles in short time periods,

which may have contributed to the high

level of mortality.

The Opinion contained a reasonable

and prudent alternative and Incidental

Take Statement that required NMFS to

develop and implement a Shrimp

Fishery Emergency Response Plan (ERP)

to respond to future stranding events

and to ensure compliance with sea

turtle conservation measures. As a

general statement of policy, the ERP

provided for elevated enforcement of

TED regulations in two areas: The

Atlantic Interim Special Management

Area, which included shrimp fishery

statistical Zones 30 and 31 (northeast

Florida and Georgia); and the Northern

Gulf Interim Special Management Area,

which included statistical Zones 13

through 20 (Louisiana and Texas from

the Mississippi River to North Padre

Island). The ERP also identified

stranding levels comprising the

incidental take level required with the

Opinion, and identified management

measures to be implemented in the

event of elevated strandings or observed

noncompliance with the regulations. A

detailed discussion of the ERP was first

published in a notice of availability (60

FR 19885, April 21, 1995) and again

when it was revised (60 FR 52121,

October 5, 1995), and is not repeated

here.

With the onset of nearshore shrimping

in Texas in April 1995 and in Georgia

in June 1995, sea turtle strandings again

climbed to high levels. Temporary

requirements to reduce sea turtle

mortality were placed on shrimp

trawling in nearshore waters along two

sections of the Texas and Louisiana

coast on April 30, 1995 (60 FR 21741,

May 3, 1995), and on the Georgia coast

on June 21, 1995 (60 FR 32121, June 20,

1995). The 30-day requirements

included the prohibition of soft TEDs

and bottom-opening hard TEDs,

prohibition of the use of a webbing flap

completely covering the escape opening

on a TED, and prohibition of large try

nets (over 12 ft (3.6 m) headrope length)

without a NMFS-approved TED

installed. Compliance with the

regulatory requirements was observed to

be high, and turtle strandings decreased

after restrictions were implemented in

both the Gulf and Atlantic. A detailed

discussion of those restrictions, and

reasons therefor, is provided in the

preamble to those rules and is not

repeated here.

Every year, offshore waters along

Texas boundaries are closed to shrimp

fishing out to 200 nm (370.6 km) for 6

to 8 weeks in the late spring and early

summer. The Texas closure is

coordinated each year by State and

Federal fishery managers to allow

shrimp to grow to more valuable sizes

and increase profits in the fishery. The

exact dates of the closing and reopening

is set by the State of Texas, which

monitors shrimp sizes and distributions

to determine the optimum time to open

the fishery. Generally, the closure

begins around May 15 and ends around

July 7. In 1995, the waters off Texas

were closed to shrimp fishing from May

15 to July 15. The closure period is

usually marked by low levels of sea

turtle strandings, and is followed by

very large increases in strandings when

waters reopen to shrimping, with many

shrimpers from Texas and other states

participating. For example, during the

period between 1990–94, stranding data

suggest an 8–1/2 fold increase in sea

turtle strandings in Texas between the

reopening of the waters off Texas to

shrimping and the period of the closure.

A detailed discussion of the strandings

and events is provided in the preamble

of a proposed rule to temporarily

implement additional restrictions on

shrimp trawlers (60 FR 31696, June 16,

1995) and is not repeated here.

Although a repeat of the 1994

stranding levels had been possible,

NMFS did not take restrictive actions

before Texas waters reopened in 1995 to

attempt to reduce strandings, because of

several factors: (1) NMFS gear experts

observed that the deployment of highquality, properly installed TEDs in the

Texas shrimp trawl fleet was greatly

improved over 1994; (2) enforcement

reports and contacts with shrimp

industry participants indicated that a

large proportion of shrimpers would

voluntarily use NMFS’s preferred gear

for turtle escapement (top-opening hard

TEDs); and (3) the 1995 reopening did

not occur until July 15, the latest date

in recent years. Pre-opening surveys

conducted by Texas indicated that

shrimp off Texas were abundant but

widely distributed and shrimp trawl

effort would, therefore, not likely be

concentrated in small areas. Thus, the

proposed rule was withdrawn (60 FR

43106, August 18, 1995).

The 1995 Texas opening produced the

expected heavy level of shrimping effort

but significantly fewer strandings than

were documented in the week following

the opening in 1994: 18 strandings were

reported in 1995 compared with 49 in

1994. However, in those areas where

strandings were high, law enforcement

information revealed differing levels of

cooperation with NMFS’ request to use

top-opening hard TEDs. The United

States Coast Guard (USCG) District Eight

Office of Law Enforcement summarized

boarding information for NMFS and

reported that soft TED use was much

more common in those NMFS shrimp

fishery statistical zones where

strandings were highest. In Zones 19

and 20, soft TEDs were seen on 20 and

34.3 percent, respectively, of the shrimp

trawlers boarded, while in Zones 17, 18,

and 21, soft TEDs were in use on only

0.0, 1.6, and 9.7 percent, respectively, of

the trawlers boarded. Aerial surveys of

shrimping effort following the Texas

opening conducted by LGL Ecological

Research Associates showed that

shrimping effort in close proximity to

the beach, i.e., within 1 mile (1.6 km),

was highest in Zones 19 and 20, where

strandings were also highest. The low

nearshore effort in Zones 18 and 21,

along with the insignificant use of soft

TEDs (as mentioned previously), was

likely a contributor to the low turtle

strandings in those zones upon

reopening.

Temporary requirements were

imposed in coastal waters along Georgia

and the southern portion of South

Carolina on August 11, 1995 (60 FR

42809, August 17, 1995). In the

temporary requirements, NMFS allowed

the use of bottom-opening hard grid

TEDs while prohibiting the use of soft

TEDs and larger try nets without hard

TEDs due to comments received

objecting to the imposition of multiple

gear restrictions in previous actions.

The commenters stated that the relative

contribution of soft TEDs and bottomopening hard TEDs to sea turtle

strandings could not be distinguished

and that use of bottom-opening hard

TEDs should be allowed to determine

their effectiveness.

In an unrelated action, a Federal

District Court imposed temporary

requirements upon shrimpers in a
18104 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

portion of the Gulf as a result of a

motion for temporary injunctive relief

filed by plaintiffs in Center for Marine

Conservation v. Brown, No. G–94–660

(S.D. Tx, Aug. 1, 1995). NMFS

published a rule (60 FR 44780, August

24, 1995) that mirrored these

restrictions, imposed along the entire

Texas coast and the western portion of

Louisiana effective on August 3, 1995. A

description of the ruling, restrictions,

and reasons therefor, is provided in the

preamble to the rule and is not repeated

here. However, the restrictions imposed

in both the Gulf and Atlantic areas were

similar in that soft TEDs were

prohibited while bottom-opening hard

grid TEDs were allowed.

Strandings in Texas and South

Carolina were generally low while the

rules prohibiting soft TEDs were in

effect. In Georgia, however, strandings

were elevated, with 27 sea turtles

stranding on Georgia offshore beaches

over the 4-week period from August 13,

1995 to September 9, 1995. This

difference in effectiveness of the two

rules in the two areas may be

attributable to the preference of Texas

shrimpers for top-opening TEDs,

whereas Georgia shrimpers generally

prefer bottom-opening hard TEDs.

Advance Notice of Proposed

Rulemaking and the Texas Shrimp

Association Petition for Rulemaking

On September 13, 1995 (60 FR 47544),

NMFS published an Advance Notice of

Proposed Rulemaking (ANPR), which

announced that it was considering

proposing regulations that would

identify special sea turtle management

areas in the southeastern Atlantic and

Gulf of Mexico and impose additional

conservation measures to protect sea

turtles in those areas. The ANPR was in

response to the need for such measures

identified in NMFS’ biological opinions

on shrimp trawling, as well as the 1995

stranding and regulatory events and

additional information regarding the

need to more effectively protect sea

turtles from incidental capture and

mortality in the shrimp trawl fishery. At

the same time, NMFS also announced

receipt of a petition for rulemaking from

the Texas Shrimp Association (TSA) to

revise the current sea turtle

conservation requirements for the

shrimp trawl fishery in the southeastern

United States. The petition was based

on a report: ‘‘Sea Turtle and Shrimp

Fishery Interactions—Is a New

Management Strategy Needed?’’

prepared by LGL Ecological Research

Associates, Inc., for TSA (LGL Report).

NMFS solicited public comment on the

LGL Report and information on sea

turtles and shrimp trawling and the

need for identification of certain areas

in the southeastern United States that

require special management measures,

and what those measures should be.

Comments on the ANPR and the TSA

Petition for Rulemaking

NMFS received over 900 responses to

the request for comments on the ANPR

and the petition for rulemaking based

on the LGL Report (60 FR 47544,

September 13, 1995). NMFS has

reviewed all comments received.

Comments are grouped according to

general subject matter, and references

are made only to some organizations or

associations, and not to all of the groups

or private individuals who may have

made similar comments.

Soft TEDs

Comment 1: Shrimp industry

associations, environmental

organizations and a state agency support

prohibiting the use of soft TEDs. These

commenters cite problems with soft

TED efficiency in excluding turtles and

the inability to enforce proper

installation and use of soft TEDs.

However, many industry representatives

supported the LGL Report, which does

not specify prohibiting soft TEDs.

Several other industry groups stated

that, since soft TEDs are certified to

exclude 97 percent of the turtles

encountered and TED compliance has

approached 100 percent, soft TEDs

should be allowed and that shrimpers

should be educated on correct

installation to improve soft TED

effectiveness.

Response: NMFS agrees that

documented TED compliance has

generally been excellent. NMFS also

recognizes that some soft TEDs have

performed well in certification trials

and are currently approved for use.

However, even though soft TEDs must

be constructed exactly to the

specifications in the regulations, soft

TEDs are more difficult than hard TEDs

to construct and install properly to

achieve proper turtle exclusion. Soft

TEDs are frequently installed incorrectly

and are installed in certain types of

trawl nets that can cause the soft TEDs

to pocket or bag and, thus, entangle sea

turtles. Consequently, soft TEDs that

may release turtles under controlled,

pristine conditions, such as the

certification trials, might not release

turtles in actual open-water use. Hard

TEDs by comparison are less subject to

variability, and therefore are more

consistent in their effectiveness at turtle

exclusion. For further detail see the

discussion below, under the heading

‘‘Eliminate Soft TEDs as Approved

TEDs.’’

Recent stranding data also indicate

that soft TEDs are entangling sea turtles.

Analysis of strandings and compliance

rates following the July 15, 1995,

opening of Texas offshore waters to

shrimping indicates that strandings

were highest in areas where the use of

soft TEDs was prevalent. Although other

factors, particularly the distribution of

shrimping effort, may have contributed

to the observed stranding patterns in

Texas, the data suggest that prohibiting

the use of soft TEDs would provide

more effective protection for sea turtles.

NMFS also agrees that enforcement of

requirements for soft TEDs is highly

problematic. Thorough inspection of a

soft TED on board a shrimp trawler at

sea is virtually impossible. The

inspection of large areas of soft TED

webbing inside a wet, heavy, slack trawl

filled with debris and bycatch in the

confined area of a trawler’s aft deck is

difficult, and it requires a great deal of

time to examine the panel completely to

determine whether it is properly

attached, meets regulatory

specifications, and is free of holes. Even

then, it is impossible for an enforcement

officer to determine whether the soft

TED will achieve a proper shape during

actual use. Also, the long time spent

inspecting a soft TED can represent

significant lost fishing time for the

shrimper.

Furthermore, because of the inherent

complications and difficulties in

installing soft TEDs, they can be

improperly installed even before they

are used. This may be due to

misunderstandings regarding what

constitutes a legal soft TED. Recently,

the USCG training center in New

Orleans ordered trawl nets with three

types of soft TEDs from a major soft TED

manufacturer to use in USCG training

sessions. Upon receipt, the USCG and

NMFS determined that none of the soft

TEDS met the specifications set forth in

the regulations.

In summary, NMFS has observed that

soft TEDs are difficult to manufacture

and install properly and that, even if

installed properly, they stretch, bag and

pocket with use, and thus entangle

turtles. Accordingly, NMFS proposes to

remove its approval of the use of soft

TEDs in order to help alleviate

shrimping-related mortality of sea

turtles.

Comment 2: The South Carolina

Department of Natural Resources

(SCDNR) provided comments

advocating the elimination of soft TEDs

on the basis of the same problems cited

in the response to Comment 1, but also

stated that some South Carolina

shrimpers prefer to use soft TEDs in the

fall because of their ability to reduce
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18105

menhaden bycatch. The commenter

recommended allowing the use of soft

TEDs in the fall, but prohibiting their

use during the rest of the year.

Response: NMFS recognizes that

TEDs offer shrimpers various benefits,

including the reduction of fish bycatch.

The primary purpose of TEDs, however,

is the exclusion of sea turtles

incidentally captured in trawls. For the

reasons already discussed, NMFS does

not believe that soft TEDs in commercial

use are sufficiently effective at turtle

exclusion. Encouraging shrimpers to

remove and re-install soft TEDs in their

nets in different seasons would likely

increase the potential for improper soft

TED installations. There are other

bycatch reduction devices, specifically

created to eliminate finfish bycatch, that

are compatible with hard TED designs.

Try Nets

Comment 3: Several commenters from

the shrimp industry stated that TEDs do

not exist for try nets and that most

industry participants use 15–18 ft (4.6 -

5.5 m) headrope try nets. One state

agency recommended limiting the size

of legal try nets to 16 ft (4.9 m) in

footrope length to be consistent with

proposals from the South Atlantic

Fishery Management Council on the use

of bycatch reduction devices in try nets.

Commenters from the environmental

community recommended TEDs in try

nets greater than 12 ft (3.6 m) headrope

and one group recommended that all try

nets be required to have TEDs.

Response: Although try nets 20 feet or

less 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, NMFS has

documented that turtles are caught in

try nets, and either through repeated

captures or long tows, try nets

contribute to the mortality of sea turtles.

Takes of sea turtles in try nets,

including two deaths, have been

documented by NMFS, and anecdotal

accounts suggest multiple sea turtle

captures in try nets are occurring in

Georgia waters. Law enforcement

personnel stated that a fisherman

reported that another individual caught

25 sea turtles in a try net with a

headrope length of 20 ft (6.1 m) in 2

days of fishing. For further detail see the

discussion below, under the heading

‘‘Reduce the Size of Try Nets that are

Exempt from TED Use.’’

NMFS is proposing to require the

installation of NMFS-approved TEDs in

try nets with a headrope length greater

than 12 ft (3.6 m). NMFS proposes a 15

ft (4.5 m) footrope length cut-off as the

appropriate corresponding dimension

for a 12 ft (3.6 m) headrope length net.

Phone interviews with net shops in the

northern Gulf of Mexico suggested that

try nets of this size were readily

available. Try nets of this size have only

a small tail bag to accumulate shrimp

catch, and there would be little

incentive to use it longer than necessary

to monitor shrimp catch rates. NMFS

believes that a try net of this size is less

likely to capture a sea turtle and would

unlikely to be fished long enough to kill

a turtle if it were captured. This size net,

however, would still be large enough for

shrimpers to monitor shrimp catch

rates. NMFS also believes that a NMFSapproved TED can and should be

installed in the larger try nets should

shrimpers elect to monitor their catch

rate with larger net sizes.

Shortened Webbing Flaps over TED

Escape Openings

Comment 4: Shrimpers objected to the

requirement to shorten webbing flaps

over TED escape openings implemented

by emergency restrictions in 1995, citing

excessive shrimp loss. Other

commenters stated that shortened

webbing flaps should be required at all

places and times, or in response to high

levels of sea turtle strandings. SCDNR

commented that requiring shortened

webbing flaps would cause concern

among shrimpers because of the

perceived loss of large amounts of

shrimp, but suggested that shortened

flaps be required only on bottomopening TEDs, if necessary.

Response: NMFS recognizes that

many shrimpers are extremely

concerned over shrimp loss through

TEDs with shortened flaps, and some

shrimpers may have experienced real

shrimp losses due to shortened flaps

under the temporary restrictions.

Properly installed webbing flaps do not

hinder turtle release, although TEDs

with shortened flaps appear to allow

turtles to escape more quickly. NMFS

required shortened webbing flaps in

response to stranding events where

heavy shrimp trawling effort was

present and non-compliance (i.e.,

sewing down full-length webbing flaps)

may contributed to strandings. While

shortened flaps would make it more

difficult to sew closed the escape

opening of a TED, instances of egregious

non-compliance were not frequent.

Consequently, NMFS does not believe

that the TED regulations should be

changed to require shortened webbing

flaps on top- or bottom-opening hard

TEDs. With bottom-opening TEDs,

webbing flaps may be held shut if the

TED rides on the bottom due to

insufficient flotation or heavy loading of

the cod end, but turtle escape would

still be impossible with a shortened flap

if the escape opening were blocked by

the sea bottom.

Accelerator Funnels

Comment 5: SCDNR suggested that

turtles could become entangled in

accelerator funnels, which are allowable

modifications to hard TEDs.

Response: NMFS has conducted

exhaustive research of TEDs equipped

with accelerator funnels and has not

documented any turtle entanglements

associated with their use in any

certification testing or trials. The

required dimensions for accelerator

funnels are even larger than the required

dimensions for hard TED escape

openings. Furthermore, NMFS believes

that accelerator funnels enhance shrimp

retention and are a valuable option for

shrimpers. NMFS does not intend to

propose prohibiting the use of

accelerator funnels with hard TEDs,

unless other information becomes

available that indicates that accelerator

funnels are problematic.

The LGL Report

Almost all commenters provided

comments regarding the management

plan in the LGL Report. Most indicated

general support, but many others

rejected the management proposal in the

LGL Report and its analytical basis,

either in part or completely.

Comment 6: Numerous commenters

asserted that the LGL Report

represented the best available

information on shrimp trawling-sea

turtle interactions in the Gulf of Mexico

and should therefore be implemented.

Response: NMFS has considered and

incorporated all new information from

the LGL Report and other sources in its

analysis and biological opinions on the

shrimp trawling-sea turtle interaction

problem. The LGL report, however, does

not contain any novel research data;

rather, it reanalyzes previously collected

data. NMFS agrees with some of the

conclusions of the LGL Report,

particularly that nearshore shrimp

trawling is associated with sea turtle

mortality and strandings. NMFS reached

this same conclusion in its November

14, 1994, Biological Opinion.

Comment 7: A large number of

commenters from within the shrimp

industry indicated that they did not

support the large area closures

mandated in the LGL Report when sea

turtle strandings rise. These commenters

stated that shrimp fishery management

needs greater stability, and areas where

capture of turtles is most likely should

be subject to permanent, special

regulations, but not closures. Other

members of the shrimp trawling
18106 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

industry commented that closures

should not be considered until other

alternatives have been examined. Still

other comments from within the shrimp

industry supported closures that also

shut down operation of other activities,

such as oil and gas exploration, oil rig

removal, boating, and other commercial

and recreational fisheries.

Response: NMFS does not consider

closures of the shrimp fishery to be an

acceptable management measure to

protect sea turtles, accept as a measure

of last resort, only to be considered in

the most extreme situation, when other

alternatives are ineffective. No shrimp

fishery closures have been implemented

by NMFS to protect sea turtles, as NMFS

has sought to implement sea turtle

conservation measures that would allow

shrimp fishing to continue while

providing adequate protection for sea

turtles.

NMFS believes that closures that

include other, unrelated activities, are

inappropriate when the other activities

are not implicated as significant causes

of turtle strandings. However, NMFS

does review other Federal activities and

applies necessary, activity-specific

restrictions to protect sea turtles through

the section 7 process of the ESA. As a

result of section 7 consultations,

seasonal restrictions are imposed on

hopper dredging activities in the

Atlantic, and observers are required for

dredging and explosive rig removals in

the Gulf of Mexico. When listed species

takes are anticipated, incremental

modifications to activities are required.

Through the section 7 process and

through research conducted or funded

by NMFS, NMFS is continually striving

to identify and reduce other nonshrimp-trawling sources of sea turtle

mortality.

Comment 8: Several environmental

organizations, numerous private

individuals, and the Department of the

Interior’s Office of the Secretary

objected to the LGL Report’s proposal

that TED requirements be eliminated

beyond 10 km offshore in the Gulf of

Mexico. Some stated reasons included:

(1) The LGL Report fails to consider

impacts on sea turtle species other than

the Kemp’s ridley; (2) Even though

turtle catch rates in deep water may be

lower than nearshore, shrimpers do

catch turtles offshore; (3) Turtles caught

in offshore waters are more likely to be

large adults, which are more valuable to

populations by virtue of their

reproductive status; and (4) Trawl times

in deep water are much longer than in

nearshore waters, and mortality rates are

likely much higher for captured turtles.

Commenters from the shrimp industry

stated that fishing should be allowed

when and where turtles are not

abundant without expensive and

unnecessary restrictions.

Response: NMFS agrees that the LGL

Report did not fully consider and

discuss the impact of offshore shrimp

trawling on sea turtles or biologically

justify removing the TED requirements

for shrimp trawlers beyond 10 km from

shore. The LGL Report focused largely

on the lack of correlation between deepwater trawling and sea turtle strandings

as indication that no interaction was

occurring. Numerous sources of data

indicate that sea turtles are present in

offshore waters and are captured and

killed by shrimp trawling, but the

carcasses of those sea turtles would be

highly unlikely to float far enough to

become stranded and thereby be

counted by the stranding network.

Instead, such mortality would likely go

undetected. The LGL Report estimated

that 4,653 sea turtles per year would be

captured in shrimp trawls in offshore

waters with no means of escape. NMFS

has not verified this estimate, but

believes that such a high level of take

and subsequent mortality is not

acceptable when reasonable measures to

reduce the level of lethal take exist and

are already in place.

Comment 9: Commenters from the

fishing industry and the conservation

community called for peer review of the

Shrimp Fishery Emergency Response

Plan (ERP) (60 FR 19885, April 21, 1995;

60 FR 52121, October 5, 1995), the

Opinion, and the LGL Report.

Response: The Opinion itself required

NMFS to assemble a team of population

biologists, sea turtle scientists, and life

history specialists (the Expert Working

Group) to compile and examine

information on the status of sea turtle

species. The Expert Working Group,

including scientists from government

and academia as well as scientists

selected by the shrimp industry and

conservation community, has been

convened to analyze Kemp’s ridley and

loggerhead sea turtle population status

and dynamics. Their findings will be

used to reexamine the basis for and the

conclusions of the ERP, the Opinion,

and the LGL Report.

Special Sea Turtle Management Areas

Comment 10: Numerous suggestions

for different sea turtle special

management areas were received. One

industry association supported the area

identified in the LGL Report (i.e.

inshore and offshore waters of the Gulf

of Mexico out to 10 km from shore,

except for areas off of Sabine Pass and

the Tortugas where the zone would

extend to 18 km), but recommended that

further analysis be conducted to

determine whether other areas should

be added or removed from the proposed

sea turtle conservation zone. A sea turtle

conservation organization

recommended a ‘‘turtle safe migratory

swimway’’ in the Gulf of Mexico from

shore out to 15 fathoms depth. Two

environmental organizations proposed

an area which would include Statistical

Zone 18 and half of Zones 17 and 19,

from shore out to 15 fathoms depth.

Another conservation group

recommended the interim special

management areas identified in the ERP

be retained and expanded to include

inshore and offshore waters out to 10

nm (18.4 km) in Statistical Zones 12–21,

Zones 30–31, Zone 5 on the west coast

of Florida, and Zones 27–28 on the east

coast of Florida—with consideration

given to including South Carolina

because of high strandings in 1995.

Smaller areas of special protection were

proposed by an individual and by

SCDNR for the areas immediately

offshore of Sea Rim State Park, TX and

Cape Island, SC to protect juvenile

Kemp’s ridleys and nesting female

loggerheads.

Response: At this time, NMFS does

not believe that Gulf of Mexico waters

east of the Mississippi River South Pass

need to be included in a sea turtle

conservation area that addresses turtle

mortality resulting from shrimp

trawling.

Most of the recommended special

conservation areas focused on

protecting Kemp’s ridley sea turtles in

the nearshore waters of the Gulf of

Mexico. NMFS agrees with the critical

importance of this area in terms of its

habitat value for juvenile Kemp’s ridley

turtles and the interaction of such

turtles with shrimp trawl activities. At

this time, NMFS does not believe,

however, that all nearshore waters of the

Gulf of Mexico need to be included in

special conservation areas for shrimp

fishery management. The nearshore

waters of the eastern Gulf do provide

important Kemp’s ridley habitat, but

there is little evidence of a shrimp trawl

interaction problem there. The eastern

Gulf shrimp fishery behaves quite

differently and is subject to different

state restrictions than the western Gulf

fishery.

At this time, NMFS does believe that

special conservation areas are necessary

in the Atlantic, too, although relatively

fewer comments were received to that

effect. Shrimp trawl-related sea turtle

strandings have remained a perennial

problem in Georgia, South Carolina, and

northeast Florida. In the Atlantic, sea

turtle habitat and shrimping grounds

overlap in a much more restricted area

than in the Gulf, and the relatively
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18107

fewer shrimp trawlers in the Atlantic

have the potential to impact sea turtles

heavily there. NMFS agrees with the

comment that the waters near the

important loggerhead nesting beaches at

Cape Romain, SC, should be included in

the conservation area. NMFS believes

that a shrimp fishery-sea turtle

conservation area in South Carolina

should include waters along the entire

coast, instead of just Zone 32, in order

to include waters off Cape Island.

Further, inshore waters of Georgia and

South Carolina should be included in a

special management area. State

management of shrimping in South

Carolina and Georgia already prohibits

shrimping in almost all the bays and

sounds. The state definitions of bay and

sound waters differ, however, from

inshore waters defined by the COLREGS

lines. During the temporary gear

restrictions in Georgia and South

Carolina, some parts of the bays and

sounds that were open to shrimping

were subject to different gear

requirements, creating a confusing

situation and undermining sea turtle

protection efforts. At this time, NMFS

believes that these small inshore areas

should be included in an Atlantic

conservation area to ensure uniformity

of regulatory requirements over what is

essentially one fishery.

NMFS, at this time, does not believe

that inshore waters should be included

in special conservation areas in the Gulf

of Mexico, on the other hand. Although

inshore waters do represent important

turtle habitat in the Gulf, they do not

appear to require additional

management measures to address

shrimp fishery interaction problems. In

the Gulf of Mexico, while sea turtle

interactions do occur in inshore waters,

the problem does not appear to be as

severe as in nearshore waters, as

evidenced by the relatively few sea

turtle strandings encountered in inshore

waters. NMFS does not agree with the

assertion of the LGL Report that a

significant portion of sea turtle

strandings on offshore beaches in Texas

is the result of inshore shrimp fishing.

Inshore waters of the western Gulf,

particularly Texas bays, are separated

from the open Gulf by barrier islands

and connected to the Gulf in only a few

narrow passes. The limited fishing areas

and resulting shortened tow times in

inshore waters probably mitigate

problems of sea turtle interactions. In

addition, intensive pulses of fishing

effort, which have been a problem in

nearshore areas, do not generally occur

in inshore waters. Shrimp fishermen in

inshore waters tend to use only

restricted, local areas and normally do

not migrate en masse to aggregate in

limited areas. Lastly, shrimpers in Texas

inshore waters are subject to restrictions

on hours fished and daily catch limits

and to an effort limitation program that

restricts entry into the fishery and

prohibits new entrants with boats

greater than 60 ft (18.3 m) in length.

Comment 11: Recommendations on

the measures to be taken within special

management areas also varied among

commenters. Proposed actions for

special management areas included:

Permanent closures of special areas to

shrimp trawlers; closures of areas to

shrimp trawlers until November 30,

1996, to allow Kemp’s ridleys to recover

from the 1994 mortality levels;

increased enforcement efforts;

prohibition of nighttime shrimp

trawling; gear restrictions or area

closures implemented in response to sea

turtle strandings.

Response: At this time, NMFS

believes that permanent closures of

large areas to shrimp trawling are not

necessary to achieve adequate sea turtle

protection and believes that the adverse

economic impacts of such actions

would be unjustifiably extreme. Small

area closures may be more appropriate

when there is biological evidence

requiring additional sea turtle

protection efforts and only when effects

from shrimp trawling cannot be

mitigated in any other way. NMFS

considers fishery closures to be a last

resort response (see Comment 7).

NMFS agrees that effective and

concentrated enforcement of TED

requirements in special management

areas is necessary. In 1995, NMFS

created and deployed a TED law

enforcement team that focused NMFS

enforcement efforts in the interim

special management areas and areas

where sea turtle strandings or reported

non-compliance were high. NMFS and

the USCG intend to continue vigorous

enforcement of TED requirements in the

future and the TED law enforcement

team will continue to augment existing

enforcement efforts.

Prohibiting nighttime shrimping is a

means to reduce shrimp trawling effort

and enhance sea turtle protection, but

NMFS does not believe that it should be

employed at this time. In the Gulf of

Mexico, the major fisheries for pink and

brown shrimp are conducted mainly at

night in deeper waters, when the target

species are active, and nighttime

closures would be incompatible with

these fisheries. Trawling for white

shrimp, on the other hand, is mainly

done during the day in nearshore

waters. Therefore, where white shrimp

are the primary target species, nighttime

closures may be compatible with

operation of the fishery. Texas, Georgia,

and South Carolina already have

nighttime closures for management of

shrimp stocks in some nearshore waters.

A specific proposal was received, which

recommended that NMFS coordinate

with the States of Georgia and South

Carolina to implement nighttime

closures in Federal waters, concurrent

with nighttime closures in State waters.

Enforcement of closed areas would be

greatly enhanced by cooperating Federal

action. Coordinated state-Federal

closures may also be a boon to local,

primarily daytime shrimpers, by

reducing the pressure to fish round the

clock. This proposal may provide

additional protection for sea turtles, and

NMFS will investigate further whether

closures in Federal waters offshore of

Georgia and South Carolina would be

consistent with State management goals

and the interests of local shrimpers.

NMFS implemented special gear

restrictions in response to high

stranding levels several times in 1995.

Emergency restrictions on gear types

proved to be disruptive to the shrimp

industry, with some shrimpers losing

time fishing while re-gearing to comply

with the new requirements. NMFS

agrees with the comments (see

Comment 7) that greater stability is

needed in shrimp fishery management.

NMFS, therefore, believes that gear

types that are known to be problematic

for sea turtles should be restricted

through permanent measures imposed

through the notice and comment

rulemaking process, instead of through

temporary emergency actions.

NMFS has reservations about using

sea turtle strandings to trigger area

closures on a long-term basis.

Monitoring strandings provides the best

available information on levels and

sources of sea turtle mortality in a costeffective manner. There are, however,

problems inherent in using stranding

information to implement specified

measures in response to certain events.

Under the guidance of the ERP in 1995,

NMFS had to quickly review all

available information to determine

whether other natural or anthropogenic

sources of mortality were significantly

contributing to the strandings before

imposing restrictions on the local

shrimp fishery. Strandings represent

nearshore mortality, identify the

problem after it has begun, provide

minimum indication of total mortality,

and are contingent upon local

environmental conditions and beach

accessibility. Permanent rulemaking,

improved industry communication, and

industry cooperation are needed to

provide effective, long-term protection

to sea turtles without relying on
18108 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

continual emergency rulemaking.

Additionally, new indicated take levels

(mathematical interpretations of

historical stranding levels) are being

developed that attempt to identify when

strandings are occurring at unusual

levels. The new indicated take levels are

likely to include cumulative levels in

addition to weekly levels. NMFS is

committed to continuing to monitor

closely sea turtle strandings and identify

when nearshore mortality is occurring at

an unusual and potentially

unsupportable level. NMFS has already

established a procedure for restricting

shrimp trawling and other types of

fishing activities if necessary to protect

sea turtles. This procedure is set forth at

50 CFR 227.72(e)(6). While the ERP

provided concrete triggers based on

stranding levels to determine when

rulemaking under this procedure should

be invoked, this rule does not propose

such a framework. Rather, NMFS will

monitor strandings, and if necessary,

invoke the procedure specified at 50

CFR 227.72(e)(6) to promulgate

emergency, temporary rules to address

the threat to sea turtles. Use of this

authority has been upheld recently in

the Center for Marine Conservation v.

Brown, No. G–94–660 (S.D. Tx., Feb. 23,

1996).

Reduce Intensive Nearshore Fishing

Effort

Comment 12: One environmental

organization commented that

overcapitalization in the Gulf of Mexico

shrimp fishery causes excessive shrimp

fishing effort, which exacerbates sea

turtle interaction problems as well as

other environmental problems. That

organization and two others

recommended implementing restricted

entry programs in the shrimp fishery.

Response: Overcapitalization and

associated overfishing have been

problems in many fisheries. NMFS

concurs that the Gulf of Mexico shrimp

fishery is overcapitalized, with possibly

as many as three times more shrimp

vessels operating than necessary to

harvest the same amount of shrimp

annually (Ward, 1989). This situation

does create heavy pressures on the

natural and economic resources of Gulf

shrimpers. In the state of Texas,

shrimpers and resource managers have

developed a limited entry program for

the inshore fishery to address these

problems. NMFS believes that economic

considerations and economic

consequences should be the driving

concerns in the development of any

plan that would systematically limit

entry throughout the Gulf of Mexico.

Any such limited entry program should,

therefore, be implemented either

through actions of the states or through

the Gulf of Mexico Fishery Management

Council. The socio-economic

consequences, both beneficial and

adverse, of a Gulf-wide limited entry

program would be extensive. NMFS

believes that use of the ESA to reduce

overcapitalization of the shrimp

industry is inappropriate without

compelling biological considerations

that outweigh the socio-economic

considerations. Even then, effort

reduction measures should be targeted

at problem areas where additional sea

turtle protection is required, and not

necessarily applied generally.

Comment 13: A shrimp industry

association and an environmental

conservation organization commented

that the relocation of shrimping effort

from other states into Texas waters

caused by the Texas Closure is

detrimental to sea turtles. The shrimp

industry association proposed

discontinuing the Texas Closure to

avoid this problem. Both groups

proposed the alternative of expanding

the Texas Closure Gulf-wide. A Gulfwide closure would relieve the shrimp

fishing effort in Texas upon reopening,

because most shrimpers would likely

stay in their home state waters to take

advantage of high shrimp catches there.

SCDNR stated that a coordination of

opening dates for shrimping in state

waters between Georgia and South

Carolina would reduce intensive pulses

of fishing that occur in nearshore waters

off those states when each state’s waters

open.

Response: NMFS agrees that intense

shrimping effort before and after the

Texas Closure poses a threat to sea

turtles, and both of the proposed

measures likely would reduce effort in

Texas before and after the Closure. The

Texas Closure period does, however,

provide a complete removal of

shrimping effort for a limited period and

greatly decreases turtle strandings. A

Gulf-wide closure would provide

complete protection for sea turtles from

shrimp trawling during the closure and

would also reduce the pulse of intense

shrimping that occurs in Texas after the

current Texas Closure ends. Of course,

shrimping effort would spike

simultaneously throughout the Gulf, not

just in Texas, following the end of a

Gulf-wide closure. However, the spike

may not be as severe, since effort would

be dispersed throughout the Gulf rather

than concentrated exclusively in Texas.

The rationale for the current Texas

Closure is the management of shrimp

stocks to increase harvest of larger, more

valuable shrimp off Texas, not sea turtle

protection considerations. NMFS has

been encouraging the other Gulf states

to examine the benefits and feasibility of

implementing Gulf waters closures that

could be coordinated with the timing of

the Texas Closure. In addition, the

Government of Mexico implemented a

Gulf-wide closure of its waters to

shrimp trawling in 1995, in concert with

the Texas Closure. At this time,

however, NMFS prefers not to pursue

changes to the established shrimp

management regime in the Gulf of

Mexico, such as the Texas Closure, and

instead has evaluated alternative

measures to reduce nearshore shrimping

effort (see Comment 14 below).

Furthermore, for reasons described in

the response to comment 12, such

action should occur through the

Magnuson Act or state laws.

NMFS agrees with the comment

received from SCDNR. Currently, South

Carolina opens most of its State waters

to shrimping in mid-May, while Georgia

State waters do not open until June.

Consequently, many trawlers from each

state take advantage of both openings

and effort becomes highly concentrated.

In both Georgia and South Carolina

during 1995, the level of trawling

activity as determined by aerial surveys

was 2–3 times higher during the first

week after each state’s opening than

during any other week of the season. A

coordinated opening date would allow

local shrimpers to stay in their home

state waters to take advantage of the

local opening. Concentration of effort in

nearshore waters would be greatly

reduced, and impacts to sea turtles

would also likely be substantially

reduced. NMFS is encouraging the

appropriate resource management

agencies in each state and the local

shrimp industry to move forward with

coordinated opening dates, as this

action is within state authority to

achieve. The benefits of the resulting

reduced fishing effort upon openings

may be significant for sea turtles and

could mitigate concerns over the

adverse effects on sea turtles of repeat

captures.

Comment 14: The LGL Report and

TSA petition presented a specific

proposal incorporating varying gear

requirements and maximum net sizes

designed to reduce nearshore shrimping

effort. LGL has proposed a revision to its

plan, subsequent to the TSA petition,

which further specifies that vessels with

a length greater than 60 ft (18.3 m)

would also be excluded from fishing in

the nearshore waters of the entire Gulf.

Most commenters indicated general

support for efforts to reduce nearshore

shrimping effort either throughout the

Gulf of Mexico or in waters off Texas,

but SCDNR expressed skepticism that

efforts to reduce the number of shrimp
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18109

vessels could be reasonably

implemented. As addressed previously

(see Comments 7 and 8), commenters

disagreed on other aspects of the LGL

plan, such as the use of closures and the

removal of TED requirements in most

offshore waters.

Response: The Opinion found that

intensive pulses of nearshore shrimp

trawling effort contributed to the high

level of sea turtle strandings and

mortality in 1994, and strandings in

1995 again demonstrated this

relationship when strandings in

Georgia, South Carolina, and Texas

jumped sharply upwards immediately

following the opening of nearshore state

waters to shrimp trawling.

Consequently, reduction of nearshore

shrimping effort could provide

additional protection for sea turtles. In

general, however, management attempts

to reduce effort in fisheries by restrictive

gear requirements have not been

successful when unaccompanied by

other means to limit entry or allocate

catch. NMFS has examined various

plans intended to reduce intensive

levels of nearshore shrimping effort that

occur in the Gulf of Mexico to

determine their possible effectiveness,

including plans that make only gear

requirement changes and plans that also

have vessel-size requirements.

The effects of the various proposals

on shrimping effort were evaluated

using the General Bioeconomic Fishery

Simulation Model (GBFSM) developed

by Dr. Wade Griffin at Texas A&M

University. This computer model

describes the behavior of the Gulf

shrimp fleet in response to economic

and biological factors in the fishery. The

plans evaluated included absence of any

TED requirements, the status quo sea

turtle conservation regulations, the TSA

petition/LGL plan, the LGL plan as

subsequently modified by LGL to

exclude boats greater than 60 ft (18.3 m)

in length from nearshore waters, and the

modified LGL plan reduced in scope to

be effective only in nearshore Texas

waters for a time period approximately

3 weeks prior to and 3 weeks after the

Texas Gulf shrimp fishery closure and

with offshore TED requirements

maintained. The GBFSM predicted the

following: The LGL plan would increase

nearshore shrimping effort slightly; the

modified LGL plan would reduce

nearshore shrimping effort by

approximately 65 percent throughout

Texas and Louisiana; and the reduced

scope, modified LGL plan would reduce

nearshore shrimping effort off of Texas

by approximately 60 percent only in the

period shortly before and after the Texas

Closure. A more thorough discussion of

these evaluations can be found in the

EA for this proposed rule. While NMFS

has evaluated the potential for effort

changes in the various proposals, the

extent of effects on turtles have not been

determined. These effort reduction

proposals have generated significant

controversy within the shrimping

industry. NMFS will continue to

evaluate the feasibility and benefits of

various means to reduce intense

nearshore shrimping effort, but does not

believe that current information on

biological benefits and socio-economic

impacts is sufficient to justify

implementing these effort reduction

measures at this time.

Other Measures

Comment 15: A shrimp industry

association stated that NMFS needs to

continue research on the size of Kemp’s

ridley sea turtle populations. Results of

this research should be made available

to the shrimping industry and the

general public.

Response: NMFS agrees. The Expert

Working Group is tasked with

evaluating existing information to

provide the best possible estimates of

the Kemp’s ridley population and rates

of population decline or recovery. The

Expert Working Group is making some

recommendations for better sea turtle

population assessments. NMFS

considers continued and improved

stock assessment a priority in its sea

turtle research program.

The results of NMFS research are

public information. This comment,

however, underscores the need for

improved communications between

NMFS and those affected by the sea

turtle conservation regulations. NMFS

has an extensive industry outreach

program that focusses on the critical

issues of proper TED use and

maximization of gear efficiency. NMFS

must consider whether this forum is

appropriate for dissemination of sea

turtle population status information or

whether other communication avenues

should be explored.

Comment 16: A conservation group

commented that gill netting should be

banned in sea turtle special

management areas in order to remove an

unnecessary threat to sea turtle

recovery.

Response: Gill nets can and do

entangle and kill sea turtles. Several

Gulf of Mexico states have taken action

to address gill net bycatch problems—

which include not only sea turtles, but

many species of finfish. Florida and

Texas currently ban the use of gill nets

in their State waters, which extend out

to 9 nm (16.7 km) in the Gulf of Mexico.

Louisiana has recently developed a

partial ban on gill nets, and there are

anti-gill net initiatives underway in

Mississippi. Because of these existing

gill net restrictions, NMFS does not

believe that a gill net ban imposed by

NMFS for the protection of sea turtles is

presently warranted in waters generally

subject to the jurisdiction of the states,

although NMFS will continue to

evaluate impacts to sea turtles from

state-regulated fisheries. For federallymanaged marine fisheries, NMFS is

required to conduct consultations in

accordance with section 7 of the ESA.

Through the consultation process,

NMFS can evaluate and restrict, as

necessary, federally-managed fisheries

and their fishing gear that impact sea

turtles. Additional permanent NMFS

regulations restricting gill netting do not

appear necessary at this time.

Comment 17: A conservation group

commented that user fees of $100 to

$200 should be required annually from

shrimp trawlers that operate in the

exclusive economic zone (EEZ).

Additionally, recreational fishermen in

the EEZ should be required to pay a $30

annual user fee. Funds raised from these

user fees would be applied for

education and conservation efforts.

Response: NMFS does not believe that

this proposal is feasible or advisable at

this time. Although the concept of user

fees supporting the management and

conservation of public resources has

been the subject of recent Congressional

interest and debate, NMFS does not

believe the ESA authorizes the

assessment of user fees as proposed by

this commenter.

Comment 18: Two environmental

organizations commented that NMFS

should implement a vessel registration

system for shrimp trawlers in the Gulf

of Mexico and the southeastern U.S.

Atlantic. A vessel registration system

would help determine the number of

vessels participating in the fishery and

would help facilitate emergency

restrictions and enforcement against

repeat offenders.

Response: Development of a vessel

registration system for shrimp trawlers

is a requirement of the November 14,

1994 Opinion, and NMFS is developing

a proposed rule to implement shrimp

trawler registration in 1996. A vessel

registration system would provide

NMFS with invaluable information on

the number and characteristics of

shrimp vessels operating in the

southeastern United States. This

information would substantially

increase NMFS’ ability to manage the

sea turtle-shrimp trawl interaction

problem with the greatest effectiveness

and the least impact to shrimpers.

Vessel registration would also allow

NMFS to contact all shrimpers to inform
18110 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

them of any changes in regulations.

Shrimpers have stated repeatedly in the

past that they did not feel they had

received sufficient notice of regulation

changes and that compliance with sea

turtle conservation requirements was

therefore difficult. Additionally, vessel

registration would provide NMFS a

means to penalize offenders for multiple

or flagrant ESA violations. Lastly,

registration of participants in the shrimp

fishery would facilitate selection of

individuals who could serve as

representatives for their peers to advise

NMFS on technical and policy issues

relating to the shrimp industry and the

sea turtle conservation regulations (see

the discussion under the heading

‘‘Shrimp Industry Advisory Panel’’).

The use of a registration system to

improve communications between

NMFS and the shrimp industry may be

the single-most important benefit of

such a system.

Comment 19: A shrimp industry

association called on NMFS to continue

to develop better communication

‘‘among all user groups and all

concerned parties,’’ and another

industry group recommended that

conservation measures be developed in

consultation with all stakeholders.

Response: NMFS agrees that good

communication is critical to resolving

many of the problems affecting sea

turtle recovery. NMFS works with

numerous agencies and concerned

parties in the evaluation and

management of a variety of threats to sea

turtles, and NMFS recognizes that the

need for better communication is most

extreme in the shrimp fishery. A large

number of individuals are involved in

the shrimp fishery, and their diverse,

multilingual backgrounds, their

demanding work schedules, and their

mobility throughout the southeastern

U.S. shrimping grounds complicate

communications. NMFS believes that

industry feedback and contribution can

improve the regulatory process relating

to TEDs and sea turtle conservation.

(See the discussion under the heading

‘‘Shrimp Industry Advisory Panel’’)

Comment 20: An industry group

called for a revision to the November 14,

1994, Opinion pursuant to the

requirement for reinitiation of

consultation found at 50 CFR 402.16.

Response: NMFS has reinitiated

consultation several times during the

1995 shrimp fishing season to address

takings exceeding the incidental take

statement and new information

revealing a change in impacts to the

listed species from actions not

previously considered. Much of the

November 14, 1994 Opinion has been

revised by the Opinion accompanying

this action (see ADDRESSES) and has

incorporated all new available scientific

and commercial data.

In addition to the comments

addressed above, NMFS received some

comments that were not germane to the

request for comments on the ANPR and

the petition for rulemaking based on the

LGL Report. Those comments have been

noted by NMFS but are not responded

to here.

Provisions of the Proposed Rule

NMFS intended the ERP to guide its

actions and to ensure compliance with

sea turtle conservation regulations when

strandings approached or exceeded the

identified incidental take levels. In

addition, the November 14, 1994,

Opinion requires that NMFS identify

areas requiring special sea turtle

management consideration, due to high

sea turtle abundance or important

nesting or foraging habitats and that

NMFS propose permanent management

measures to mitigate the impacts of

intensive nearshore shrimping and of

repeated incidental capture of

individual turtles. Thus, NMFS

proposes the following measures to

replace the guidance provided by the

ERP.

Eliminate Soft TEDs as Approved TEDs

and Eliminate the Provision of the

Regulations Allowing Soft TEDs to be

Approved

NMFS proposes that all soft TEDs be

removed from the list of approved TEDs,

effective December 31, 1996. This

delayed effective date should ensure no

adverse impact to shrimpers using soft

TEDs. Since soft TEDs generally must be

replaced annually, shrimpers will have

ample notice to replace their soft TEDs

with hard TEDs prior to December 31,

1996, without significantly shortening

the usage they may get out of their

existing soft TEDs.

Even though soft TEDs have been

certified and approved for use, pursuant

to the testing protocols, they have been

identified as ineffective at releasing sea

turtles under normal fishing conditions,

even when new and professionally

installed. The use of soft TEDs by the

shrimping fleet has been associated with

elevated sea turtle strandings following

the Texas Closure to shrimp fishing.

Because of the inherent properties of

synthetic webbing, soft TEDs are

difficult to install properly. Installation

procedures for soft TEDs must be

changed for every type and size of trawl

net, and some soft TEDs cannot be

installed properly in some nets without

major modifications requiring

underwater observations. Once

installed, their actual in-water

configuration, shape, and performance

cannot be determined even by

professional net makers. Furthermore,

changes made by a trawler captain to

the fishing configuration of a net to

match fishing conditions—such as

changing door sizes or angles, adding

flotation to the headrope, or adjusting

center bridle tension on tongue or bib

trawls—and the accumulation of catch

and debris in the trawl will all affect the

shape of the soft TED and thus its

effectiveness at releasing turtles. In

actual use, soft TEDs are easily damaged

by bottom debris and bycatch,

particularly sharks and dogfish. Broken

meshes in the soft TED excluder panel

can entangle a turtle or even allow a

turtle to pass directly through the TED

and be captured in the cod end of the

net.

NMFS has developed two certification

protocols for the approval of TED

designs. These protocols were published

on June 29, 1987 (52 FR 24244) and on

October 9, 1990 (55 FR 41092), along

with detailed descriptions of the testing

and evaluation criteria. Both protocols

target a 97 percent turtle exclusion rate.

The process through which most soft

TEDs were certified removed most of

the confounding conditions mentioned

above, as testing was conducted under

ideal conditions necessary for net

observation, but not reflective of

commercial trawling conditions. The

certification process also fails to

simulate actual field performance

because design sponsors have the

opportunity to fine-tune and adjust their

installations with the assistance of

NMFS gear experts and underwater

videotapes of soft TED deployment.

From the 1994 evaluation of various

commercially available soft TEDs, it is

clear that some installations of the same

soft TED design will entangle turtles,

indicating that the fine-tuning made

during certification, but not necessarily

included in the regulatory

specifications, may have been critical to

their passing testing. Because of these

problems, NMFS is evaluating possible

changes to the certification protocols

which would better determine and

account for actual commercial trawling

conditions, and would eliminate the

fine-tuning that takes place in the

certification process but may not

necessarily be reflected in the TED

specifications. Such fine-tuning may

improve the apparent performance of

poor candidate TEDs under testing

conditions. Although NMFS is

reviewing the certification and approval

process for new TED designs, currently

there is ample evidence that indicates

that soft TEDs do not exclude turtles
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18111

under actual trawling conditions despite

their certification and previous

approval. On the basis of this evidence,

NMFS is proposing with this rule, to

prohibit the use of soft TEDs currently

approved and rescind their approvals,

while undertaking a review of its

general certification protocols.

In addition, soft TEDs have high

shrimp loss rates. NMFS has

determined, both through in-house and

outside testing, that all soft TED designs

lose significant amounts of shrimp. The

high shrimp loss rates of soft TEDs may

be posing a problem for sea turtles.

While the shrimp loss rates of welltuned hard TEDs are only about 1

percent (Renaud et al., 1991), shrimp

loss rates for approved soft TEDs are

much higher. The approval of TEDs that

lose shrimp, however, may have worked

to the detriment of shrimpers and

turtles. Shrimpers may not have the

resources to make their own

comparisons of TED effectiveness and

may lack the information needed to

make a change to more efficient TED

types. Some shrimpers may respond to

the high loss of shrimp experienced

with soft TEDs by disabling or

modifying their soft TED. By limiting

NMFS approval to only hard TEDs—

those types that have the highest rates

of shrimp retention—the incentive for

shrimpers not to fully comply with the

TED requirements should be reduced.

A perceived advantage of soft TEDs

over hard TEDs is their lower cost. An

installed soft TED at a net shop typically

costs $50–$100. A hard TED fully

installed in webbing typically costs

$250–$300; uninstalled hard TEDs may

be as inexpensive as $75. NMFS

estimates, however, that soft TEDs

require replacement on an annual basis,

whereas hard TEDs last 2–3 years or

more. In addition, the high shrimp

retention rates of hard TEDs compared

to soft TEDs likely will make up any

cost difference through better shrimp

catches.

Morrison Soft TED

The Morrison TED is the soft TED of

choice in the Atlantic shrimp fishery.

Gear specialists observed that some

Morrison TEDs have shortened escape

openings that could prevent the release

of a turtle. Other TEDs had escape

openings that were of the proper size,

but twine or rope was laced through the

webbing along the sides of the exit hole

cut. Since the escape opening of a

Morrison TED consists of a single slit

that requires the flow of water to push

the loose webbing on the sides of the cut

apart to form an escape opening,

reinforcing the edges of the cut would

prevent the webbing from opening wide

enough to allow a turtle to escape. On

several Morrison TEDs, the webbing of

the excluder panel was cut or broken so

that a turtle might pass directly through

the TED into the tailbag of the net. Other

Morrison TEDs had large openings at

the sides of the panel where the panel

was improperly sewn to the trawl net or

the attachment between the TED and the

trawl was worn away and not repaired.

These holes might also allow a turtle to

pass directly through the TED, or cause

it to become entangled in loose

webbing. Lastly, on some TEDs that

appeared to be in good condition, gear

experts noticed that the excluder panel

had slack areas. When water flows

through the excluder panel, excess

webbing can form pockets instead of a

smooth, taut ramp of webbing, that

could entangle turtles. Statements made

to gear specialists by shrimpers

confirmed that turtles were in fact

becoming entangled in pockets in soft

TED excluder panels.

A particular concern regarding soft

TEDs was the variability of their

construction and installation and that,

even with proper construction

according to regulations, commercially

available soft TEDs were not effectively

releasing turtles because of

incompatibilities of the TED design with

various net sizes and designs. In order

to examine this concern, NMFS

purchased seven trawl nets equipped

with Morrison soft TEDs installed by

five primary suppliers from the

southeastern United States Three

different trawl types were studied: The

mongoose trawl, the straight wing flat

trawl, and the tapered wing flat trawl.

These nets were observed and videotaped underwater by NOAA divers as

the nets were fished in various

configurations. This diver evaluation

revealed that pockets could form in

legally installed Morrison soft TEDs.

This tendency was especially noticeable

in mongoose and straight-wing flat

trawls.

These distortions in TED shape would

lead to turtle capture, as was discovered

in further testing. Experimental trawling

in the Cape Canaveral ship channel was

conducted to evaluate turtle exclusion

for the soft TEDs. A straight-wing flat

net captured five sea turtles—three

through entanglement in the TED

panel— in 21 experimental tows of 1

hour or less. A straight wing flat net and

two mongoose nets were tested and did

not capture turtles. A turtle was

observed remaining in one of the

mongoose net tows, but it escaped as the

trawl was retrieved. In later tests at

Panama City, FL, in October 1994, a

total of 24 small turtles were introduced

by divers into three of the test nets:

eight were captured, for an average

escape rate of only 66 percent from

trawls with commercially available and

legally installed soft TEDs.

Prior to certification of the Morrison

TED, the University of Georgia Sea

Grant Program evaluated the Morrison

TED for shrimp retention. In testing

under commercial fishing conditions

against a trawl not equipped with a

TED, the Morrison TED was shown to

have a shrimp loss rate of 17 percent.

NMFS observers aboard commercial

trawlers in South Carolina documented

a 7 percent loss rate from Morrison

TEDs.

Parrish Soft TED

The Parrish soft TED was approved

for use in 1987 following successful

certification trials at the Cape Canaveral

ship channel. The Parrish TED passed

the certification trials based on turtle

exclusion rates, but the Parrish TEDequipped net had a reduction in shrimp

catch compared to the control net

ranging from 26 percent to 79.5 percent.

The Parrish TED never became widely

accepted in the shrimp industry. The

developer and only manufacturer of the

Parrish TED has ceased sales and

production of the design. NMFS does

not believe that any Parrish TEDs are

currently in use.

Andrews Soft TED

The Andrews TED is the primary

bottom-opening soft TED in use today

and is the most popular soft TED in the

southwest Florida shrimp fishery. Some

shrimp industry members have stated

that the bottom-opening, Andrews soft

TED is the optimum TED for the

Sanibel-Tortugas fishing grounds of

southwest Florida because of its ability

to exclude the large loggerhead sponges

that occur there.

The Andrews TED’s 5–inch (12.7–cm)

mesh size is the smallest mesh excluder

panel of the soft TEDs. In response to

shrimpers who stated that they needed

a bottom-opening soft TED with a larger

mesh size for better shrimp retention,

NMFS conducted certification testing on

8–inch (20.3–cm), 7–inch (17.8–cm), 6–

inch (15.2–cm), and mixed mesh sizes.

None of these designs passed the TED

certification standards. Nonetheless,

enforcement efforts have found many

instances of Andrews style TEDs

illegally constructed of large-mesh

webbing. Some shrimpers using these

illegal TEDs stated that the TEDs were

legal Parrish TEDs, which have an 8–

inch (20.3–cm) mesh, but the TEDs met

none of the criteria of a Parrish TED. It

appears that there is some confusion

among shrimpers and misrepresentation

by manufacturers as to the legal
18112 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

dimensions of the Parrish and Andrews

TEDs. The use of a TED with illegal

dimensions would adversely affect

turtles by increasing the possibility of

entanglement. Also, if the Andrews TED

funnel is excessively long, slack

webbing and pockets would appear that

would have the potential for trapping

turtles.

The Andrews TED 5–inch (12.7–cm),

when compared to a bottom-opening

hard TED, had a shrimp loss of 23

percent. The larger mesh sizes, despite

not passing TED certification standards,

were tested for shrimp loss. Rates in

those comparisons ranged from 5 to

12.25 percent shrimp loss in Andrews

soft TEDs versus nets without TEDs.

Taylor Soft TED

NMFS believes that the Taylor TED

has only very limited use in the shrimp

fishery.

The Taylor TED is a top-opening soft

TED with a 6–inch (15.2–cm) mesh

excluder panel. The minimum length of

the Taylor TED is 10 ft (3 m) to allow

its installation in small trawls. The

Taylor TED design was certified in a 30–

foot (9.1–m) headrope semi-balloon

trawl net and became an officially

approved TED in May 1993. Because the

Taylor TED is a relatively recent design,

NMFS gear specialists have not

encountered many examples of the

Taylor TED in use or documented

installation problems specific to the

Taylor TED. It is, however, a similar

design to the Morrison TED in that it is

a sloping, top-opening, single-panel

TED and would be likely to have the

same problems of pocketing and loose

webbing if installed improperly.

Taylor TEDs in actual use in the

commercial shrimp fleet have in fact

been found to be ineffective at sea turtle

exclusion. In 1,174 hours of observed

trawling with Taylor TED-equipped

nets, 3 sea turtle captures have been

documented. This rate of sea turtle

capture with the Taylor TED exceeds

the sea turtle capture rate calculated by

Henwood and Stuntz (1987) for shrimp

trawlers in the Gulf of Mexico operating

without any TEDs.

NMFS has little data on shrimp

retention rates of the Taylor TED; in

limited testing of the Taylor TED and

another TED with a similar apex design,

the University of Georgia Sea Grant

program reported an overall shrimp loss

of about 16 percent.

Reduce the Size of Try Nets that are

Exempt from TED Use

NMFS proposes to reduce the size of

try nets that are exempt from the TEDuse requirement, effective December 31,

1996. Instead of the present exemption

for try nets 20 ft (6.1 m) (50 CFR

227.72(e)(2)(ii)(1)) or less in headrope

length, only try nets 12 ft (3.6 m) or less

in headrope length and 15 ft (4.6 m) or

less in footrope length would be

exempt.

Try nets are small nets that are

deployed by shrimp trawlers before and

during tows with the main nets to

determine the presence and catch rates

of shrimp, bycatch, and debris.

Shrimpers use try nets to help decide

the location and duration of tows with

the main nets. Try net tows of 15–30

minutes appear sufficient to determine

fishing conditions and catch rates.

NMFS has been collecting

information that challenges the

assumption that try nets up to 20 ft (6.1

m) do not pose a threat to sea turtles

because of their small size and short tow

duration. Specifically, the larger try nets

do capture turtles. Recent analysis of

observed commercial trawling in the

Gulf of Mexico indicates that catch rates

(per foot of headrope) of turtles in large

try nets (approx. 20 ft (6.1 m) headrope

length) are approximately the same as

those calculated in the 1987 report

(Henwood & Stuntz), a figure that the

National Academy of Sciences used in

their 1990 report recommending the

required use of TEDs in shrimp trawls.

Further, in the regional bycatch observer

program from 1992 through 1995, try

nets accounted for 43 percent of the

observed turtle captures. The

assumption that try nets are only towed

for short periods of time also may be

invalid. In addition to numerous

anecdotal reports from shrimpers to this

effect, NMFS gear specialists have

observed shrimpers regularly towing try

nets for periods well over an hour. Since

long try net tows defeat their purpose of

assessing catch rates, the apparent

intention of these long tows is to use the

try nets as auxiliary nets to increase the

overall shrimp capture, using a TED-less

net. Such use of try nets may be

seriously contributing to turtle capture,

mortality, and strandings.

While the large try nets (up to 20 ft

(6.1 m)) currently exempted from TED

requirements pose a threat to sea turtles,

NMFS believes that small try nets likely

do not. In experimental trawling at the

Cape Canaveral ship channel,

conducted in September 1994, the

capture of sea turtles in try nets of two

different sizes was assessed. One

loggerhead was captured in a 15 ft (4.0

m) (originally reported as 13 ft)

headrope length try net in 59 tows,

while nine loggerheads were captured

in a 20 ft (6.1 m) headrope length try net

in 57 tows. The try nets used in these

trials were tongue trawls, meaning that

the net is towed via a third towing

bridle (in addition to those attached to

the doors) attached to a triangle of

webbing in the center of the headrope.

The headrope length measurement

includes the length along this additional

triangle of webbing; thus, a 15 ft tongue

trawl try net is approximately the same

as a 13 ft standard trawl in door-to-door

distance. In order to clarify the

applicability of the 1994 study regarding

try net headrope length, NMFS intends

to repeat a similar study during the

comment period for this proposed rule.

Information gathered in that study may

result in a modification to the try net

headrope length exemption adopted in

the final rule. Nonetheless, these results

suggest that small try nets have a much

lower sea turtle catch rate, even when

adjusted for headrope length, than large

try nets and primary shrimp trawls. In

the May 18, 1995 (60 FR 26691)

modification to the emergency

restrictions to shrimp trawling in some

areas of the Gulf of Mexico, NMFS

determined that the use of try nets with

headrope lengths of 12 ft (3.6 m) or less

and footrope lengths of 15 ft (4.6 m) or

less did not pose a serious risk to sea

turtles, even in areas where shrimp

trawler-related mortality of Kemp’s

ridley sea turtles was high.

Installation of TEDs in try nets with

headrope lengths of 12 ft (3.6 m) or less

and footrope lengths of 15 ft (4.6 m) or

less appears to be impracticable. The

proposed delayed effective date should

provide the necessary time for

shrimpers to acquire hard TEDs and

install them in the larger try nets or to

adjust to estimating catch rates with

smaller try nets.

Establish Shrimp Fishery Sea Turtle

Conservation Areas (SFSTCAs)

NMFS proposes to establish two

permanent Shrimp Fishery-Sea Turtle

Conservation Areas (SFSTCAs) with

special conservation requirements to

reduce the mortality and subsequent

strandings of sea turtles associated with

intensive shrimp trawling in nearshore

waters.

As mentioned previously, the

November 14, 1994, Opinion contained

a reasonable and prudent alternative

that required action to mitigate the

impacts of intensive nearshore

shrimping effort on sea turtles,

including the identification of areas

requiring special sea turtle management

considerations. The ERP identified

interim special management areas,

based on nearshore habitat for

endangered Kemp’s ridleys, in which

NMFS specified a policy of heightened

TED law enforcement efforts and

management response to elevated sea

turtle mortality.
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18113

The SFSTCA in the northwestern Gulf

of Mexico would consist of the offshore

waters out to 10 nm (18.5 km) along the

coasts of Louisiana and Texas from the

Mississippi River South Pass (west of

89°08.5′ W. long.) to the U.S.-Mexican

border. The Atlantic SFSTCA would

consist of the inshore waters and

offshore waters out to 10 nm (18.5 km)

along the coasts of Georgia and South

Carolina from the Georgia-Florida

border to the North Carolina-South

Carolina border. The Gulf SFSTCA

would be similar to the Gulf interim

special management area of the ERP, but

it would add waters off statistical Zone

21 in south Texas. Strandings of Kemp’s

ridleys in Zone 21 tend to include adult

and large sub-adult individuals

compared to the primarily juvenile and

sub-adult animals in northern Texas,

and the extreme importance of adults,

particularly reproductive females, to the

recovery of Kemp’s ridleys appear to

warrant the inclusion of Zone 21 in the

SFSTCA.

The Atlantic SFSTCA was identified

based on the distributions of sea turtle

strandings and the shrimp trawl fleets.

The proposed Atlantic SFSTCA would

differ from the Atlantic interim special

management area by excluding northern

Florida and including nearshore waters

of South Carolina and by adding waters

inshore of the COLREGS lines. In 1995,

NMFS did not determine that shrimp

trawler related mortality and strandings

in northeast Florida were excessive and

required emergency action. The State of

Florida prohibited the fishing by large

shrimp trawlers within 1 nm (1.9 km) of

the beach on the east coast of Florida,

effective July 1, 1995. Sea turtle

strandings in Zone 30 in Florida

declined progressively from June

through August, possibly as a result of

the State restrictions on trawling. NMFS

believes that the State restrictions on net

fishing in northeast Florida represent

existing measures mitigating the

impacts of nearshore shrimping, and

that inclusion of northeast Florida in the

SFSTCA is not warranted at this time.

Sea turtle strandings in 1995 did,

however, necessitate emergency gear

restrictions twice along the Georgia

coast and once in Zone 32 in South

Carolina. South Carolina waters opened

to shrimping on May 16, 1995, and

Georgia waters opened on June 1, 1995.

In the week following the opening,

significant spikes in sea turtle

strandings occurred in both States. In

Georgia, statewide strandings increased

from 6 the week prior to the opening to

21 in the week following the opening.

In Zone 32 in South Carolina, strandings

increased from 0 in the week prior to

the opening to 6 in the first week of the

opening. The continued association of

nearshore shrimp effort with sea turtle

strandings in these states demonstrates

the need for additional measures to

mitigate adverse impacts to turtles. The

proposed SFSTCA would also add the

northern portion of South Carolina,

even though strandings there did not

result in emergency actions. The

northern border of Zone 32 in South

Carolina occurs at Cape Romain—the

largest loggerhead sea turtle nesting

beach north of Cape Canaveral.

Therefore, restriction of the SFSTCA to

only Zone 32 could concentrate shrimp

effort near Cape Romain and increase

the potential for adverse impacts to

nesting female sea turtles. By including

the entire coast of South Carolina, the

borders of the SFSTCA would be

simpler and clearer, the Cape Romain

area would be included, and relatively

few additional shrimpers would be

affected, since South Carolina’s primary

shrimping grounds are in the south and

central portion of the state. The

proposed Atlantic SFSTCA would also

include inshore waters as well as

nearshore waters along the Georgia and

South Carolina coast. The specification

in the ERP that management measures

be restricted to offshore waters was not

appropriate for that region. The GeorgiaSouth Carolina Low Country is

characterized by numerous broad

sounds and extremely high tidal ranges.

Tidal flow can have a powerful

influence on the movement of turtles,

their prey, and turtle carcasses. In the 2

months following the opening of

Georgia state waters to shrimping on

June 1, 1995, 21 sea turtles stranded in

inshore areas. In addition, state

regulations permit shrimp trawling

under the same license inside the

COLREGS lines in Georgia and South

Carolina, and the fishery is therefore not

functionally divided between offshore

and inshore components. Extension of

conservation measures into inshore

waters in Georgia and South Carolina

appears necessary to provide protection

to turtles wherever they may be

vulnerable to capture in shrimp trawls

and to ensure even enforceability of the

measures near the mouths of the

sounds.

Enhance TED Effectiveness in the

SFSTCAs

NMFS proposes to implement the

elimination of the approval of the use of

soft TEDs, the reduction in TED-exempt

try net size, and the prohibition on the

use of bottom-opening hard TEDs in the

proposed SFSTCAs on an accelerated

schedule to provide additional

protection to sea turtles during the 1996

shrimp season.

The proposed SFSTCAs represent

areas that require special management

to mitigate the effects of intensive

nearshore shrimping effort on sea

turtles. These areas have exhibited very

high nearshore shrimping activity and

high levels of sea turtle strandings. The

continuing sea turtle mortality has been

determined by NMFS to result from the

improper use of TEDs and the use of

ineffective TEDs by shrimp trawlers.

Therefore, NMFS believes that there is

a heightened need to implement

measures to improve TED effectiveness

in the SFSTCAs.

In addition to the elimination of the

approval of soft TED use and the

reduction of TED-exempt try net size,

NMFS believes that bottom-opening

hard TEDs should be prohibited in the

SFSTCAs to protect sea turtles from

forced submergence.

NMFS gear specialists joined

enforcement agents to determine

whether problems with TEDs were a

factor in the increased levels of

strandings that occurred in 1994. Two

problems encountered with hard TEDs

were TEDs installed at illegally steep

angles and bottom-opening hard TEDs

without flotation. The lack of flotation

on bottom-opening hard TEDs, although

then allowed under the existing

regulations, caused the TED to drag on

the sea floor, holding the turtle escape

opening closed. A review of past gear

trials with bottom-opening TEDs

supported this finding. As a result,

NMFS concluded that the lack of

flotation on bottom-opening hard TEDs

could be a major contributor to sea

turtle mortality and amended the

regulations to require flotation on

bottom-opening single-grid hard TEDs

(59 FR 33447, June 29, 1994; 60 FR

15512, March 24, 1995).

In spite of the flotation requirement

for bottom-opening hard TEDs, NMFS

remains concerned that bottom-opening

hard TEDs in commercial use still

capture and drown turtles, particularly

small turtles, such as juvenile Kemp’s

ridleys. The amounts of flotation

required do not always correctly offset

the weight of the TED itself, and the

effective buoyancy of closed-cell foam

floats, which are the most popular floats

in use by the shrimp industry, is

reduced with increasing water depths.

Furthermore, the accumulation of

shrimp catch, bycatch, mud, and debris

in the trawl can weigh down the

attached flotation and cause the exit of

a bottom-opening hard TED to be

obstructed by the bottom. Observations

by gear specialists of wear and chafing

on webbing on the bottom of bottom-
18114 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

opening TEDs in the shrimp fleet are

indicators that the TEDs do periodically

ride hard on the bottom. NMFS has

received and responded to requests from

the shrimp industry to allow

modifications to bottom-opening TEDs,

such as webbing chafing gear and

rollers, to reduce wear and damage to

gear caused by contact with the bottom,

even with the current flotation

requirements.

NMFS gear experts have also found

that top-opening TEDs are more efficient

at releasing turtles than bottom-opening

TEDs, even under ideal conditions. Inwater testing of hard-grid TEDs in May

1995 revealed that small turtles require

almost twice as long to escape from a

bottom-opening TED versus a topopening TED (an average of 125.6

seconds versus an average of 68.8

seconds). This difference would likely

be exaggerated under commercial

trawling conditions. Gear experts

attribute much of this difference in

escape times to the air-breathing turtles’

natural tendency to explore the top of

the trawl for an escape-opening as they

attempt to resurface for air. Small turtles

that have been observed entrapped in

trawls do spend the majority of their

time at the top of the trawl.

Physiological studies on small sea

turtles of the effects of capture in trawls

on stress levels show that high stress

levels are developed during shortduration forced submergences and that

the turtles may require 7 to 9 hours to

recover from the stress effects of

submergences no longer than 7.3

minutes (Stabenau et al., 1991). Repeat

captures and forced submergences in

shrimp trawls, compounded by longer

release times from bottom-opening

TEDs, could be producing stress and

blood acidosis levels that are

contributing to the mortality of sea

turtles, particularly small juveniles and

sub-adults.

The implementation of these gear

requirement changes in the SFSTCAs is

proposed to occur on a more rapid

schedule than the requirements outside

the SFSTCA because of the more critical

need to better protect sea turtles and

manage shrimp trawl-sea turtle

interactions in these areas. The impact

of this faster schedule on the shrimp

trawl fleet is expected to be small,

though. The proposed SFSTCAs in the

Gulf and Atlantic include areas that

were either included in the ERP’s

interim special management areas as

potentially subject to gear restrictions or

were actually included in gear

restrictions implemented during 1995 in

response to sea turtle mortality

emergencies. Shrimp trawlers subject to

any gear restrictions in 1995 will

already have been required to purchase

hard TEDs and either reduce the size of

their try nets or install hard TEDs in

their try nets. No additional burden

would be imposed on those shrimpers

to acquire new gear. In the Gulf

SFSTCA, Zones 13–16 were not subject

to gear restrictions, but shrimpers in

that area were notified of potential

additional gear requirements as

specified in the ERP. Nearshore

shrimpers in Louisiana, however, are

reportedly already using primarily hard

TEDs and the elimination of the

approval of soft TED use should affect

only a small proportion of shrimpers.

Finally, there is no significant financial

burden associated with requiring the

use of top-opening TEDs instead of

bottom-opening TEDs. Most shrimpers

can convert existing bottom-opening

hard TEDs to top-opening easily.

Shrimp Industry Advisory Panel

NMFS wishes to establish a shrimp

industry panel to provide

individualized advice to the agency on

all management aspects of the TED

regulations, although NMFS does not

have sufficient information to make a

specific proposal at this time. Such a

panel would convene periodically to

bring concerns of the industry and

particular problems with regulations to

the attention of the agency. It would

provide a forum for NMFS to discuss

matters such as revisions to gear types,

new TED designs, and improvements to

the TED regulations. NMFS does

attempt to seek input from fishermen

regarding its management actions

through comment periods, public

hearings, TED technology transfer

workshops, and informal contacts;

however, these means are not optimal

for overcoming serious communication

barriers between NMFS and shrimpers.

Several problems contribute to this

communications barrier including

distrust on the part of shrimpers that

their input is honestly heard, the

conflict of shrimpers’ work demands

with their full participation in a

dialogue with fishery managers, and the

absence of a forum where open

discussions about problems and plans to

overcome them can be held. Another

difficulty is the large number of

participants in the shrimp fishery, and

the fact that relatively few of them

belong to industry associations that can

represent their collective views.

NMFS intends to pursue the creation

of a shrimp industry advisory panel, but

must first clarify the exact means of

doing so. In addition to comments on

this proposed rule, NMFS is also

seeking comments on implementation of

a shrimp industry panel and specifically

on methods to identify and select

shrimp industry representatives to serve

on the panel that would fairly reflect the

interests of the various diverse sections

of the shrimp trawling fleets. If a

feasible way to select membership for

the panel can be developed, NMFS will

attempt to identify and obtain necessary

funding to implement the panel.

Request for Comments

NMFS will accept written comments

(see ADDRESSES) on this proposed rule

and on the proposed shrimp industry

advisory panel until June 10, 1996. In

addition, NMFS will conduct ten public

hearings on this action.

The hearings are scheduled as

follows:

1. May 10, 1996, at 7 p.m., St.

Petersburg, FL

2. May 14, 1996, at 7 p.m., Cameron,

LA

3. May 15, 1996, at 6 p.m., Thibodaux,

LA

4. May 16, 1996, at 6 p.m., Mobile, AL

5. May 21, 1996, at 6 p.m., Port Isabel,

TX

6. May 22, 1996, at 6 p.m., Corpus

Christi, TX

7. May 22, 1996, at 7 p.m., Bolivia, NC

8. May 23, 1996, at 6 p.m., Galveston,

TX

9. May 23, 1996, at 6:30 p.m.,

Charleston, SC

10. May 24, 1996, at 6:30 p.m.,

Brunswick, GA

The hearings will be held at the

following locations:

1. University of South Florida, Davis

Hall, Room 130, 140 7th Avenue South,

St. Petersburg, FL 33701

2. Cameron Elementary School,

Auditorium, 510 Marshall Street,

Cameron, LA 70631

3. Thibodaux Civic Center, Plantation

Room, 310 North Canal Boulevard,

Thibodaux, LA 70301

4. Mobile Civic Center, Meeting Room

16, 401 Civic Center Drive, Mobile, AL

36601

5. Port Isabel Community Center,

Conference Room, 213 Yturria Street,

Port Isabel, TX 78578

6. Texas A&M University Agricultural

Research & Extention Center, Route 2,

Box 589 (Highway 44, 5 miles west of

airport), Corpus Christi, TX 78406

7. North Carolina Cooperative

Extension Service, Brunswick County

Government Center, Agriculture

Building, (Foods Lab), 10 Referendum

Drive, Bolivia, NC 28422

8. Texas-Galveston County Court

House, (Jury assembly room, 1st floor),

722 Moody, Galveston, TX 77550

9. South Carolina Marine Resources

Research Institute, (Auditorium), 217
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules 18115

Fort Johnson Road, Charleston, SC

29412

10. University of Georgia Marine

Extension Service Office, (Conference

room), 715 Bay Street, Brunswick, GA

31520

References Cited

Henwood, T.A. and W.E. Stuntz.

1987. Analysis of Sea Turtle Captures

and Mortalities during Commercial

Shrimp Trawling. Fishery Bulletin: Vol.

85, No.4, pp. 813–817.

Renaud, M., G. Gitschlag, E. Klima, A.

Shah, D. Koi, and J. Nance. 1991.

Evaluation of the Impacts of Turtle

Excluder Devices (TEDs) on Shrimp

Catch Rates in Coastal Waters of the

United States Along the Gulf of Mexico

and Atlantic, September 1989 through

August 1990. NOAA Technical

Memorandum, NMFS-SEFC–288.

Ward, J.M. 1989. Modeling Fleet Size

in the Gulf of Mexico Shrimp Fishery

1966–1979. NOAA Technical

Memorandum NMFS-SEFC–229, 8p.

Stabenau, E.K., T.A. Heming, and J.F.

Mitchell. 1991. Respiratory, acid-base,

and ionic status of Kemp’s ridley sea

turtles (Lepidochelys kempi) subjected

to trawling. Comparative Biochemistry

and Physiology A 99:107–111.

Classification

This action has been determined to be

not significant for purposes of E.O.

12866.

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

proposed rule would not have

significant economic impact on a

substantial number of small entities,

because the provisions of the proposed

rule would impose only a minor

economic burden on shrimpers. The

Assistant Administrator for Fisheries,

NOAA, (AA) prepared an EA for this

proposed rule and copies are available

(see ADDRESSES).

List of Subjects

50 CFR Part 217

Endangered and threatened species,

Exports, Fish, Imports, Marine

mammals, Transportation.

50 CFR Part 227

Endangered and threatened species,

Exports, Imports, Marine mammals,

Transportation.

Dated: April 19, 1996.

Rolland A. Schmitten,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR parts 217 and 227 are

proposed to be amended as follows:

PART 217—GENERAL PROVISIONS

1. The authority citation for part 217

continues to read as follows:

Authority: 16 U.S.C. 1531–1544; and 16

U.S.C. 742a et seq., unless otherwise noted.

2. In § 217.12, the definitions for

‘‘Atlantic Shrimp Fishery-Sea Turtle

Conservation Area’’ and ‘‘Gulf Shrimp

Fishery-Sea Turtle Conservation Area’’

are added, in alphabetical order, and the

definition of ‘‘Approved TED’’ is

revised, to read as follows:

§ 217.12 Definitions.

* * * * *

Approved TED means:

(1) A hard TED that complies with the

generic design criteria set forth in 50

CFR 227.72(e)(4)(i). (A hard TED may be

modified as specifically authorized by

50 CFR 227.72(e)(4)(iv)); or

(2) A special hard TED that complies

with the provisions of 50 CFR

227.72(e)(4)(ii); or

(3) Prior to December 31, 1996, a soft

TED that complies with the provisions

set forth in 50 CFR 227.72(e)(4)(iii).

* * * * *

Atlantic Shrimp Fishery-Sea Turtle

Conservation Area (Atlantic SFSTCA)

means the inshore and offshore waters

along the coast of the States of Georgia

and South Carolina from the GeorgiaFlorida border to the North CarolinaSouth Carolina border extending to 10

nautical miles (18.5 km) offshore.

* * * * *

Gulf Shrimp Fishery-Sea Turtle

Conservation Area (Gulf SFSTCA)

means the offshore waters along the

coast of the States of Texas and

Louisiana from the South Pass of the

Mississippi River to the U.S.-Mexican

border extending to 10 nautical miles

(18.5 km) offshore.

* * * * *

PART 227—THREATENED FISH AND

WILDLIFE

3. The authority citation for part 227

continues to read as follows:

Authority: 16 U.S.C. 1531 et seq.

4. In § 227.72, paragraphs

(e)(2)(ii)(B)(1), (e)(4)(i)(F), (e)(4)(iii)

introductory text, (e)(5) heading and

(e)(5)(i) are revised to read as follows:

§ 227.72 Exceptions to prohibitions.

* * * * *

(e) * * *

(2) * * *

(ii) * * *

(B) * * *

(1) (i) Effective December 31, 1996, a

single test net (try net) with a headrope

length of 12 ft (3.6 m) or less and with

a footrope length of 15 ft (4.6 m) or less,

if it is either pulled immediately in front

of another net or is not connected to

another net in any way, if no more than

one test net is used at a time, and if it

is not towed as a primary net;

(ii) Prior to December 31, 1996, in the

Gulf SFSTCA or the Atlantic SFSTCA,

a single test net (try net) with a

headrope length of 12 ft (3.6 m) or less

and with a footrope length of 15 ft (4.6

m) or less, if it is either pulled

immediately in front of another net or

is not connected to another net in any

way, if no more than one test net is used

at a time, and if it is not towed as a

primary net;

(iii) Prior to December 31, 1996, in

areas other than the Gulf SFSTCA or the

Atlantic SFSTCA, a single test net (try

net) with a headrope length of 20 ft (6.1

m) or less, if it is either pulled

immediately in front of another net or

is not connected to another net in any

way, if no more than one test net is used

at a time, and if it is not towed as a

primary net;

* * * * *

(4) * * *

(i) * * *

(F) Position of escape opening. (1) In

areas other than the Gulf SFSTCA or the

Atlantic SFSTCA, the entire width of

the escape opening from the trawl must

be centered on and immediately forward

of the frame at either the top or bottom

of the net when the net is in its

deployed position. The escape opening

must be at the top of the net when the

slope of the deflector bars from forward

to aft is upward, and must be at the

bottom when such slope is downward.

For a single-grid TED, the escape

opening must be cut horizontally along

the same plane as the TED, and may not

be cut in a fore-and-aft direction.

(2) In the Gulf SFSTCA and the

Atlantic SFSTCA, the entire width of

the escape opening from the trawl must

be centered on and immediately forward

of the frame at the top of the net when

the net is in its deployed position. The

slope of the deflector bars from forward

to aft must be upward. For a single-grid

TED, the escape opening must be cut

horizontally along the same plane as the

TED, and may not be cut in a fore-andaft direction.

* * * * *

(iii) Soft TEDs (applicable until

December 31, 1996). Soft TEDs are TEDs
18116 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Proposed Rules

with deflector panels made from

polypropylene or polyethylene netting.

In the Gulf SFSTCA and the Atlantic

SFSTCA, soft TEDs are not approved

TEDs. Prior to December 31, 1996, in

areas other than the Gulf SFSTCA and

Atlantic SFSTCA, the following soft

TEDs are approved TEDs:

* * * * *

(5) Revision of generic design criteria,

allowable modification of hard TEDs,

additional special hard TEDs.

(i) The Assistant Administrator may

revise the generic design criteria for

hard TEDs set forth in paragraph (e)(4)(i)

of this section, may approve special

hard TEDs in addition to those listed in

paragraph (e)(4)(ii) of this section, or

may approve allowable modifications to

hard TEDs in addition to those

authorized in paragraph (e)(4)(iv) of this

section, by a regulatory amendment, if,

according to a NMFS-approved

scientific protocol, the TEDs

demonstrate a sea turtle exclusion rate

of 97 percent or greater (or an equivalent

exclusion rate). Testing under the

protocol must be conducted under the

supervision of the Assistant

Administrator, and shall be subject to

all such conditions and restrictions as

the Assistant Administrator deems

appropriate. Any person wishing to

participate in such testing should

contact the Director, Southeast Fisheries

Science Center, NMFS.

* * * * *

[FR Doc. 96–10087 Filed 4–19–96; 4:16 pm]

BILLING CODE 3510–22–F

50 CFR Parts 672 and 676

[Docket No. 960401095–6095–01; I.D.

032596A]

RIN 0648–AH61

Groundfish of the Gulf of Alaska;

Limited Access Management of

Federal Fisheries In and Off of Alaska;

Improve IFQ Program

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS issues a proposed rule

to amend portions of the regulations

implementing the Individual Fishing

Quota (IFQ) Program for the Pacific

halibut and sablefish fixed gear fisheries

in and off of Alaska. This proposed rule

also would eliminate a prohibition

pertaining to IFQ sablefish in the

regulations governing the groundfish

fisheries in the Gulf of Alaska (GOA).

After the first year of the IFQ Program’s

operation, the North Pacific Fishery

Management Council (Council) and

NMFS recognize aspects of the program

that need further refinement. This

action is necessary to make those

refinements and is intended to improve

the ability of NMFS to manage the

Pacific halibut and sablefish fixed gear

fisheries.

DATES: Comments must be received by

May 24, 1996.

ADDRESSES: Comments must be sent to

Ronald J. Berg, Chief, Fisheries

Management Division, Alaska Region,

NMFS, P.O. Box 21668, Juneau, AK

99802–1668; Attn: Lori J. Gravel, or

deliver to Room 453, 709 W. 9th Street,

Juneau, AK.

FOR FURTHER INFORMATION CONTACT:

James Hale, 907–586–7228.

SUPPLEMENTARY INFORMATION:

Background

Regulations codified at 50 CFR part

676 implement the IFQ Program, a

limited access system for management

of the Pacific halibut (Hippoglossus

stenolepis) and sablefish (Anoplopoma

fimbria) fixed gear fisheries in and off of

Alaska, under the authority of the

Northern Pacific Halibut Act with

respect to halibut and the Magnuson

Fishery Conservation and Management

Act with respect to sablefish. Further

information on the rationale for and

implementation of the IFQ Program is

contained in the preamble to the final

rule implementing that program

published in the Federal Register,

November 9, 1993 (58 FR 59375), and in

the preambles to subsequent rules

amending those regulations.

This action would amend various

portions of the regulations

implementing the IFQ Program and

eliminate a prohibition in the GOA

groundfish regulations that pertains to

IFQ sablefish. These changes are

intended to improve the ability of

fishermen to conduct fishing operations

under the IFQ Program, to refine NMFS’

ability to administer the program

effectively, and to make the program

more responsive to conservation and

management goals for Pacific halibut

and sablefish fisheries.

Elimination of the 72–hour ‘‘Fair Start’’

Provision

Section 672.7(k) would be repealed to

eliminate the prohibition against

deploying fixed gear during the 72–hour

period preceding the opening of fixed

gear sablefish fishing seasons. Currently,

fishermen with hook-and-line gear

legally deployed in other GOA fisheries

during the 72–hour period immediately

before the opening of sablefish seasons

are prohibited from participating in

those seasons. Under open access, this

prohibition was designed to prevent

such fishermen from gaining an

advantage over fishermen who could

not legally deploy hook-and-line gear

until the opening of the sablefish

season. The regulation, written in

conformity with a similar restriction in

the Pacific halibut fishery regulations

(50 CFR part 301), was necessary under

an open access system to ensure that all

fishermen in fixed gear sablefish

fisheries would have equitable

opportunities for harvest during

extremely brief fishing seasons. NMFS

has determined that this prohibition is

no longer necessary. Under the IFQ

Program, which lengthened GOA fixed

gear sablefish seasons, the race for fish

and the preemption of grounds are no

longer problems. The regulation

at § 672.7(k) would therefore be

removed.

Revision of the Owner-aboard

Restriction

Section 676.13(f)(1) would be revised

to allow fishermen to leave their vessels

during the time between their arrival in

port and the beginning of landing

operations. Current IFQ regulations

require IFQ holders to be aboard vessels

used to harvest IFQ fish during all

fishing operations. The Council

intended this requirement to ensure that

the catcher vessel fleet remain primarily

an owner-operator fleet and that the IFQ

Program not profoundly change the

socio-economic character of the fixed

gear fishing fleet or the coastal Alaskan

communities where this fleet is based.

To this end, § 676.13(f)(1) requires IFQ

holders to remain onboard vessels

containing IFQ harvest until all IFQ

species have been offloaded. A

provision at § 676.22(d) permits

waiving of the owner-aboard restriction

in the event of extreme personal

emergency.

While continuing to require that IFQ

holders be aboard during harvest and

landing of IFQ fish, except as allowed

by the emergency waiver provision, the

Council recognizes that less urgent

occasions may oblige an IFQ holder to

leave his or her vessel while in port but

before offloading of IFQ fish has

commenced. Section 676.14(b)(1) allows

IFQ landings only between the hours of

0600 and 1800, Alaska local time

(A.l.t.). A fisherman who arrives in port

after 1800 hours (hrs), A.l.t., must

remain on his or her vessel overnight

until IFQ landings may commence the

following day. Such inconveniences are

not necessary to preserve the intent of

the Council.