[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Proposed Rules]
[Pages 18102-18116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10087]



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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.

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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 NMFS-approved 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 deg.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

[[Page 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 high-quality, 
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 bottom-opening 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

[[Page 18104]]

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

[[Page 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 NMFS-approved 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 bottom-opening 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

[[Page 18106]]

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 non-shrimp-
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 deep-water 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

[[Page 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 cost-effective 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

[[Page 18108]]

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 
Gulf-wide 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

[[Page 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 federally-managed 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

[[Page 18110]]

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

[[Page 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 well-tuned 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 video-taped 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 TED-equipped 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

[[Page 18112]]

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 TED-use 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.

[[Page 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 deg.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 Georgia-South 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-

[[Page 18114]]

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. In-water 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 top-opening 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 short-duration 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

[[Page 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 Sec. 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:


Sec. 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 Georgia-Florida border to 
the North Carolina-South 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 Sec. 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:


Sec. 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-and-aft direction.
* * * * *
    (iii) Soft TEDs (applicable until December 31, 1996). Soft TEDs are 
TEDs

[[Page 18116]]

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