[Federal Register Volume 66, Number 245 (Thursday, December 20, 2001)]
[Rules and Regulations]
[Pages 65658-65660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31275]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 011214299--1299--01; I.D.121001B]
RIN 0648-AP75


Sea Turtle Conservation; Shrimp Trawling Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; request for comments.

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SUMMARY: NMFS is imposing, for a 30-day period, an additional 
restriction on shrimp trawlers that are required to have a turtle 
excluder device (TED) installed in each net rigged for fishing, and 
that are operating in Atlantic offshore waters out to 10 nautical miles 
(nm)(18.3 km) from the coast of Florida between 28 deg.N. latitude and 
the Georgia-Florida border. During this 30-day period shrimp vessels 
operating in this area must use a TED with an escape opening large 
enough to exclude leatherback turtles, as specified in the regulations. 
The use of such TEDs by shrimp trawlers has previously been required 
under similar circumstances. This action is necessary to prevent 
mortality of endangered leatherback sea turtles incidentally captured 
in shrimp trawls, and is prompted by recent strandings of such turtles.

DATES: This action is effective from December 14, 2001 through January 
14, 2002. Comments on this action are requested, and must be received 
by January 14, 2002.

ADDRESSES: Comments on this action should be addressed to Phil 
Williams, Chief, Endangered Species Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Georgia Cranmore, 727-570-5312, or 
Barbara A. Schroeder, 301-713-1401. For assistance in modifying TED 
escape openings to exclude leatherback sea turtles, fishermen may 
contact gear specialists at the NMFS, Pascagoula, MS laboratory by 
phone 228-762-4591 or by fax 228-769-8699.

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act of 1973 
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback 
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are 
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia 
mydas) turtles are listed as threatened, except for populations of 
green turtles in Florida and on the Pacific coast of Mexico, which are 
listed as endangered.
    The incidental take of sea turtles as a result of shrimp trawling 
activities has been documented in the Gulf of Mexico and in the 
Atlantic Ocean. Under the ESA and its implementing regulations, taking 
sea turtles is prohibited, subject to exceptions identified in 50 CFR 
223.206. Existing sea turtle conservation regulations (50 CFR part 223, 
subpart B) require most shrimp trawlers operating in the Gulf and 
Atlantic areas to have a NMFS-approved TED installed in each net rigged 
for fishing, year-round.
    The regulations provide a mechanism to implement further 
restrictions of fishing activities, if necessary, to avoid takings of 
sea turtles that would (1) likely jeopardize the continued existence of 
listed species or (2) that would violate the terms and conditions of an 
incidental take statement or incidental take permit. Upon a 
determination that incidental takings of sea turtles during fishing 
activities are likely to trigger either scenario, additional 
restrictions may be imposed to conserve listed species and to avoid 
such takings. Restrictions may be effective for a period of up to 30 
days and may be renewed for additional periods of up to 30 days each 
(50 CFR 223.206(d)(4)).

Leatherback Sea Turtles

    Leatherback sea turtles are the largest species of sea turtle. They 
weigh between 600 and 1,300 pounds (272 and 590 kg) and have carapaces 
5 to 6 ft (1.5 to 1.8 m) in length. Leatherbacks are widely distributed 
and can range from the tropics to extreme northern and southern 
latitudes during their feeding and reproductive migrations. They nest 
in small but significant numbers on U.S. beaches and are primarily seen 
in coastal waters of the southeast U.S. during their northern 
springtime migration, especially when high abundances of jellyfish 
occur nearshore. However, they can be found in U.S. waters throughout 
the year.

[[Page 65659]]

    Because of their size, leatherbacks are not likely to escape from 
trawls, even when the trawls are equipped with approved TEDs, unless 
the size of the opening is sufficient to allow escape. The sea turtle 
conservation regulations specify a minimum TED opening size in the 
Atlantic of 35 inches (89 cm) horizontally and 12 inches (30.5 cm) 
vertically. When the regulations requiring TEDs in shrimp trawls year-
round were adopted (57 FR 57348, December 4, 1992), NMFS recognized 
that the then-existing TEDs would not protect leatherbacks, and the 
biological opinion (BO) on the regulations concluded that leatherback 
mortality would remain a problem that must be addressed to avoid 
jeopardizing the recovery of this species. Consequently, the August 19, 
1992, BO's incidental take statement required that the episodic take of 
leatherback turtles by shrimp trawlers during periods of high jellyfish 
abundance must be eliminated. This could be accomplished by temporary 
area closures, by requiring an increase in the size of TED openings to 
allow leatherbacks to escape at times when their abundance is high, by 
limiting tow times, or by implementing some other protective measure. 
To address this problem, the 1992 sea turtle conservation regulations 
included the provisions of 50 CFR 223.206(d)(4), to provide ``a 
mechanism to prevent sea turtle mortalities...when existing 
restrictions on the shrimp fishery are found to be ineffective (57 FR 
18453).''

Recent Events

    NMFS has been notified by the Florida Fish and Wildlife 
Conservation Commission (FWCC) that extraordinarily high numbers of 
endangered leatherback sea turtles stranded along northeast Florida 
beaches in November and early December 2001. From November 4 to 
December 10, 2001, a total of 15 leatherback turtles and 2 turtles 
reported as leatherbacks, but not yet verified by FWCC, washed ashore 
between St. Johns and Brevard counties in shrimp zones 28 and 29. 
During aerial surveys conducted for right whales, up to 10 leatherback 
turtles per flight were seen during two flights; one of these turtles 
was dead. By comparison, the total annual number of leatherback 
strandings statewide has averaged 24 over the past 10 years, and has 
averaged only 14 per year in zones 28-30. Considering the rarity of 
leatherbacks--an average of only 45-50 females nest in Florida each 
year--and the fact that strandings are only a minimum estimate of 
actual mortality, these strandings represent a serious impact to the 
recovery and survival of the local population.
    The late fall and early winter is traditionally a major shrimping 
season along northeast Florida. During this period, shrimp leave the 
estuaries to the north and migrate southward along the coast as waters 
cool. Shrimp fishing along the coast is currently active. Trawlers have 
been reported in the same areas as the leatherback strandings. The 
minimum size for TED openings specified in the sea turtle conservation 
regulations is not large enough to release leatherback turtles. Shrimp 
trawling with TEDs with openings that are not large enough to release 
leatherbacks is likely to lead to additional takes that would violate 
the terms and conditions of the incidental take permit. NMFS and state 
personnel will continue to investigate factors other than shrimping 
that may contribute to leatherback sea turtle mortality in Florida, 
including other fisheries and environmental factors.

Restrictions on Fishing by Shrimp Trawlers

    Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental 
taking of sea turtles in 50 CFR 223.206(d) does not authorize 
incidental takings during fishing activities if the takings would 
violate the restrictions, terms or conditions of an incidental take 
statement (ITS) or incidental take permit, or if the taking would 
jeopardize the continued existence of a species listed under the ESA. 
The August 19, 1992, biological opinion includes a condition under the 
ITS that specifies that NMFS must eliminate the episodic take of 
leatherback turtles by shrimp trawlers through area closures, 
requirements for large TED opening sizes, limitations on tow times, or 
some other protective measure. Failure by NMFS to take action to 
address the mortality seen in northeast Florida over the past month 
would likely violate the ITS. As a result, NMFS is requiring that 
fishing by shrimp trawlers in all Atlantic offshore waters within 10 nm 
(18.5 km) seaward of the COLREGS demarcation line, bounded on the south 
by 28 deg.N. lat. and on the north by 30 deg.42'45.6"N. lat. (the 
Georgia-Florida border), must be done with a net that is rigged for 
fishing with a TED installed that has an escape opening large enough to 
exclude leatherback turtles, meeting the specifications at 50 CFR 
223.207(a)(7)(ii)(B)(1) and (2) or 223.207(c)(1)(iv)(B). These 
regulations specify modifications that can be made to either single-
grid hard TEDs or Parker soft TEDs to allow leatherbacks to escape. 
This restriction is effective from December 14, 2001 through 11:59 p.m. 
(local time) January 14, 2002.
    This restriction has been announced on the NOAA weather channel, in 
newspapers, and other media.

Additional Conservation Measures

    The AA may withdraw or modify a determination concerning 
unauthorized takings or any restriction on shrimping activities if the 
AA determines that such action is warranted. Notification of any 
additional sea turtle conservation measures, including any extension of 
this 30-day action, will be published in the Federal Register pursuant 
to 50 CFR 223.206(d)(4).
    NMFS will continue to monitor sea turtle strandings to gauge the 
effectiveness of these conservation measures.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The AA has determined that this action is necessary to respond to 
an emergency situation to provide adequate protection for endangered 
leatherback sea turtles pursuant to the ESA and other applicable law.
    Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good 
cause to waive prior notice and opportunity to comment on this action. 
It would be impracticable and contrary to the public interest to 
provide prior notice and opportunity for comment because providing 
notice and comment would prevent the agency from implementing this 
action in a timely manner to protect identified large congregations of 
endangered leatherback sea turtles that are currently present in areas 
where substantial fishing effort is occurring. Furthermore, the AA 
finds good cause also under 5 U.S.C. 553(d)(3) not to delay the 
effective date of this temporary rule for 30 days. Such delay would 
also prevent the agency from implementing this action in a timely 
manner to protect endangered leatherback sea turtles for the same 
reason. Accordingly, the AA is making the rule effective December 14, 
2001 through January 14, 2002. Also as stated, this restriction has 
been announced on the NOAA weather channel, in newspapers, and other 
media.
    As prior notice and an opportunity for public comment are not 
required to be provided for this notification by 5 U.S.C. 553, or by 
any other law, the analytical requirements of 5 U.S.C. 601 et seq., are 
inapplicable.
    The AA prepared an Environmental Assessment (EA) for the final rule 
(57

[[Page 65660]]

FR 57348, December 4, 1992) requiring TED use in shrimp trawls and 
creating the regulatory framework for the issuance of notifications 
such as this. Copies of the EA are available (see ADDRESSES).

    Dated: December 14, 2001.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 01-31275 Filed 12-14-01; 4:34 am]
BILLING CODE 3510-22-S