[Federal Register Volume 64, Number 197 (Wednesday, October 13, 1999)]
[Rules and Regulations]
[Pages 55434-55438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26693]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 980331080-9269-02; I.D. 091799A]
RIN 0648-AK66
Sea Turtle Conservation; Shrimp Trawling Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule.
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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing this
interim final rule to amend the regulations that require most shrimp
trawlers to use turtle excluder devices (TEDs) in the southeastern
Atlantic, including the Gulf of Mexico, to reduce the incidental
capture of endangered and threatened sea turtles during shrimp
trawling. Specifically, we are extending for one additional year the
approved use of the Parker soft TED.
DATES: This rule is effective October 13, 1999. Comments on this rule
are requested, and must be received by December 13, 1999.
ADDRESSES: Comments on this action 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, 727-570-5312.
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 breeding
populations of green turtles in Florida and on the Pacific coast of
Mexico, which are listed as endangered.
[[Page 55435]]
The incidental take and mortality of these species, 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
identified in 50 CFR 223.206. Existing sea turtle conservation
regulations (50 CFR 223.206 and 223.207) require most shrimp trawlers
operating in the Gulf and Atlantic Areas, defined at 50 CFR 222.102, to
have a NMFS-approved TED installed in each net rigged for fishing, year
round. Current TEDs approved by NMFS for shrimp trawling include
single-grid hard TEDs, hooped hard TEDs conforming to a generic
description, two types of special hard TEDs, and one type of soft TED-
the Parker soft TED.
NMFS approved the Parker TED through an April 13, 1998, interim
final rule (63 FR 17948). Without an extension, that rule would lapse
on October 13, 1999. NMFS limited the duration of that rule to 18-
months so that if an evaluation of the effectiveness of the Parker TED
in commercial use showed that the Parker TED was not effective at
excluding sea turtles, NMFS could allow the Parker TED to lapse. If the
Parker TED was found to be effective at excluding sea turtles, the
interim rule would be adopted as final incorporating any necessary
technical changes that might result from the TED testing and commercial
use during the 18-month period. At this time, NMFS' data are
inconclusive, and NMFS is unable to make a final determination
regarding the effectiveness of Parker TEDs under commercial fishing
condition. To provide for further data collection, NMFS is extending
the effectiveness of the interim rule for 12 months.
Evaluation of the Parker TED
NMFS looked at many aspects of the Parker soft TED's performance
over the past 2 years in both the Gulf of Mexico and the South
Atlantic. Observers placed aboard commercial trawlers have documented
sea turtle capture rates and finfish bycatch reduction. Intensive law
enforcement efforts have been used to ensure and document fishermen's
compliance with the technical requirements for using the Parker TED.
NMFS' gear specialists have traveled extensively throughout the
Southeast to provide training to net shops and trawler fleets in the
proper installation and use of the Parker TED. The gear specialists
have also provided follow-up assistance to fishermen and net makers.
Observer Information
NMFS' observer information generally shows that the Parker TED does
not have a problem with sea turtle captures. In 1997-1998, observers
documented three turtle captures in nets equipped with Parker TEDs in
nearshore waters in the South Atlantic area. A total of 190 tows were
observed, for 515 hours of trawling. The resulting turtle catch rate
(Catch per unit effort, or CPUE) was 0.005 turtles per 100 ft. (30.5 m)
headrope-hour. In 1997, observers documented 62 tows in the South
Atlantic area aboard trawlers equipped with hard TEDs. One turtle was
observed captured in 161 hours of trawling, for a CPUE of 0.005 turtles
per 100 ft (30.5 m) headrope-hour. Observations in the Gulf of Mexico
revealed a similar situation, although turtle catch rates in the Gulf
are much lower overall. In 1998, 133 tows using Parker TEDs, totaling
1,352 trawl hours, were observed in the offshore waters of the Gulf of
Mexico: no turtle captures were observed. We also observed 2,081
offshore shrimp tows using hard TEDs, for a total of 9,632 hours. Two
turtles were captured, representing a CPUE of 0.0001. The observed
catch rates for shrimp trawlers using hard TEDs and Parker TEDs are
small and, therefore, it is difficult to make definitive comparisons.
Observers experienced difficulty in finding vessels using Parker TEDs
to make trips with, contributing somewhat to the small number of Parker
TED tows observed. Still, the available observer data indicates that
the Parker TED's turtle catch rate is probably comparable to the catch
rates of hard TEDs.
Several observer trips have also been made specifically to test the
Parker TED's potential as a bycatch reduction device (BRD). The tests
are made by comparing the catches from two nets pulled simultaneously
by a trawler--one net is equipped with a Parker TED and the other with
a hard TED. The Gulf and South Atlantic Fisheries Development
Foundation (GSAFDF) and the South Carolina Department of Natural
Resources (SCDNR) conducted independent tests of the Parker TED in the
Atlantic in the fall of 1997. The GSAFDF and SCDNR tests showed a
greater shrimp loss compared to standard tests in for hard TED-equipped
net. The bycatch reduction rates for weakfish and Spanish mackerel, the
two primary bycatch species of concern in the Atlantic, were 32.1 and
45.96 percent from the GSAFDF data and 25.02 and 79.78 percent from the
SCDNR data. These tests showed that the Parker TED is effective for
excluding Spanish mackerel but does not meet the 40 percent exclusion
rate for weakfish that is a criterion for certification as a BRD under
the South Atlantic Shrimp Fishery Management Plan. The GSAFDF also did
considerable testing of the Parker TED in 1998 and 1999 in the Gulf of
Mexico where red snapper is the bycatch species of concern. That
testing revealed a 7 percent shrimp loss, compared to a hard TED. A
preliminary analysis of the red snapper catch rate shows a 33 percent
reduction, which would not meet the criterion for certification as a
BRD in the Gulf. Currently a modified Parker TED, using a 4 x 6 inch
(10.2 X 15.2 cm) panel, is being tested as a BRD off South Carolina
through a permit issued by NMFS, to determine whether the smaller-mesh
panel can increase the bycatch reduction rate.
Observations by Law Enforcement
The Protected Resources Enforcement Team (PRET) is a specially-
equipped team of NMFS law enforcement officers that was formed to focus
enforcement attention on protected resources issues-primarily TEDs-in
the Southeast. The PRET has placed priority on ensuring compliance with
the requirements for the newly introduced Parker TED. The PRET has not
encountered many shrimp trawlers actually using the Parker TED, despite
intensive patrol efforts. In 1998, the PRET's first year in operation,
the team logged 488 hours of at-sea patrols, boarding 261 vessels as
part of the TED compliance project. PRET boardings in 1998 focused on
nearshore shrimping grounds along the coasts of Texas, Louisiana,
Georgia, and South Carolina. A large portion of the PRET's efforts in
1999 have been dedicated to patrols along the Texas coast, due to the
continuing concern over the number of dead sea turtles that strand on
Texas beaches. From March 16, 1999, through August 19, 1999, the PRET
boarded 241 vessels along the Texas and Louisiana coasts.
Only two boats using Parker TEDs have been encountered by the PRET
during 449 boardings in the Gulf of Mexico over 2 years. Both boats
were operated by the same company which had installed Parker TEDs on
its boats in 1998. When one of the boats was encountered in the summer
of 1998, the recently-installed Parker TEDs were in good condition and
in full compliance with the regulations. When the second boat was
boarded in the summer of 1999, the boat's Parker TEDs were in bad
disrepair and had apparently received no maintenance in a long time,
possibly not since being installed a year
[[Page 55436]]
earlier. The boat was cited for the violation.
Enforcement efforts in the South Atlantic also indicate that use of
the Parker TED in the shrimp fleet may be very low. The PRET only
documented one trawler equipped with Parker TEDs during 53 boardings in
1998. NMFS gear specialists accompanied SCDNR enforcement officers on
patrols of state waters during May 1999. Out of approximately 40
trawlers boarded at sea, two were using Parker TEDs. The U.S. Coast
Guard Group in Charleston, SC, reports boarding only 4 boats with
Parker TEDs over the past 2 years. No violations were reported from
these seven boardings.
Observations of Gear Specialists
The installation specifications for the Parker TED included an
unprecedented level of technical detail compared to previous soft TED
regulations. The specifications included new requirements such as
limiting installation to only certain styles of nets, exact mesh counts
for fixing the location of the soft TED panel in the net, and detailed
sewing instructions for attaching the panel to the net. As discussed in
the April 13, 1998 interim final rule (63 FR 17948), NMFS believes that
this level of technical specificity is required for the Parker TED to
achieve a proper shape and exclude turtles effectively.
NMFS provided intensive technical training to assist the shrimp
industry to adopt these stringent technical requirements. During 1998
and 1999, NMFS gear specialists held training sessions throughout the
southeastern United States to improve TED technical operation and
compliance. Technology transfer methodology included the development of
improved training and educational materials which were distributed
through the Coast Guard, Sea Grant, by direct mailouts, and through TED
skill building workshops. Workshops included multimedia presentations
and hands-on instruction which have proven highly effective in
transferring technical information. TED operational manuals were
distributed to assist fishermen in complying with TED regulations and
to assist in solving TED operational problems. In spring 1998, the
training specifically focused on net shops around the entire Atlantic
and Gulf coasts. Those training sessions reviewed the new Parker TED
regulatory requirements and included hands-on training installing
Parker TEDs. Generally, the net makers were able to learn how to
install the Parker TED according to the regulations quickly. Gear
specialists provided follow-up visits to work with some net makers who
had difficulties. Subsequent workshops in 1998 and 1999 have been
primarily addressed to the fishermen and to ensuring proper commercial
use of TEDs.
The gear specialists also held workshops for NMFS, Coast Guard, and
state law enforcement personnel. The purpose of these workshops was to
review the complete enforcement process for TEDs, including
descriptions of TEDs, establishing at-sea protocols for boarding
vessels, checking Parker TEDs and hard TEDs for correct installation,
and conducting training of new enforcement officers. NMFS gear experts
also accompanied NMFS, Coast Guard, and state law enforcement personnel
during at-sea and dockside boardings to provide hands-on technical
training and assistance and to collect information on TED technical
performance and compliance. This assistance was provided in North
Carolina, South Carolina, Georgia, Florida, Alabama and Louisiana, and
Texas.
During the period May-July 1999, three NMFS gear specialists
provided 22 days of assistance to fishermen in North Carolina, South
Carolina and Georgia in modifying their TEDs to comply with actions
implemented under the leatherback turtle contingency plan (64 FR 25460,
May 12, 1999; 64 FR 27206, May 19, 1999; 64 FR 28761, May 27, 1999; 64
FR 29805, June 3, 1999). Although almost all fishermen used hard TEDs
with a large escape opening to comply with the leatherback contingency
plan, the gear specialists found 10 vessels in McClellanville, SC, that
were equipped with Parker TEDs modified to use the leatherback escape
opening. The fishermen reported little difficulty in successfully
making the leatherback modification to their Parker TEDs.
During the months of March, April and May, 1999, NMFS gear
specialists visited net shops along the Texas coast to provide follow-
up Parker TED training if necessary, but found no net shops still
making Parker TEDs in Texas. On the East Coast, the gear specialists
have confirmed with one net shop in each state (Florida, Georgia, South
Carolina, and North Carolina) that they were still installing Parker
TEDs in 1999. Those shops reported no ongoing technical problems. One
of those net shops has also made a practice of selling uninstalled TED
excluder panels directly to fishermen. NMFS has not encountered any
trawlers, however, that had one of these do-it-yourself Parker TEDs.
Comments on the April 13, 1998 Interim Final Rule
NMFS received one letter on the April 13, 1998, interim final rule
that allowed the use of the Parker soft TED. The commenter supported
the approval of the Parker TED, but expressed several qualifying
concerns.
Comment 1: The commenter questioned whether the TED testing
conducted on the Parker TED was risk-averse enough, considering the
known problems with testing soft TEDs. Specifically, NMFS had not
tested every net-TED combination with a full sample of 25 test turtles.
Response: The April 13, 1998, interim final rule provided a
detailed discussion of the two TED testing sessions that were used to
approve the Parker soft TED. Those TED testing sessions included
several changes to the testing protocol from previous tests that
significantly increased the test's risk-aversion for approving new
TEDs. The most significant change was to limit the approval of
successful candidate soft TEDs to demonstrably compatible net sizes and
styles. The 1998 TED tests included 107 turtle exposures to Parker TEDs
in various net configurations. All 107 turtles escaped the nets. NMFS
also considered the installation compatibility of the Parker TED in
various nets. On that basis, NMFS excluded 2-seam, balloon trawls with
bibs and trawls in which the body taper is greater than 4 bars - 1
point from use with the Parker TED. Parker TEDs installed in those
trawl styles were observed to curl upwards into the 8-inch (20.3-cm)
mesh section of the excluder panel, creating an area where turtles
might become entangled. NMFS also excluded triple-wing trawls, which
were not tested. The current testing protocol, which combines diver
observations with exposure of small turtles to candidate TEDs, provides
a risk-averse method for approving new soft TED candidates, such as the
Parker TED, in a variety of appropriate net combinations.
The experimental TED testing conducted in 1998 provides a further
example of that risk-averse approach. NMFS conducted additional testing
on the Parker TED in net styles that had previously been excluded from
approval with the Parker TED. A triple-wing net and two sizes of
mongoose nets, all with 6 bars - 1 point (6b1p) body tapers, were
tested. All three net-TED combinations had a strong rolling-up of the
outer edges of the 4 inch (10.2 cm) and the 8 inch (20.3 cm) mesh of
the Parker TED excluder panel. In a test with a 68 ft (20.7 m)
headrope-length the 6b1p
[[Page 55437]]
mongoose net, no turtles were captured. Additional industry and
possibly NMFS' testing will be required, however, before this design
can be approved.
Comment 2: The commenter was concerned that the turtles used for
TED testing in 1997 may not have been properly conditioned and that
standardized physiological tests to confirm the turtles' fitness were
not conducted.
Response: NMFS agrees that proper conditioning of the turtles used
for TED testing is important. More vigorous escape behaviors by the
test turtles are probably more representative of natural turtle
behavior. The current practice is to try to condition the turtles in
large, free-swimming pens for at least 4 weeks prior to using the
turtles for TED testing. Physiological data have been collected to help
determine how different conditioning regimes affect the turtles' stress
response to the TED tests, such as blood pH and blood lactate levels.
The analysis of those data, however, has not been completed, and we do
not know whether different conditioning regimes result in different
physiological stress levels. The goals in conducting the TED test are
to provide a meaningful examination of candidate TEDs while minimizing
stress and risk to the turtles. Current practices, which include 5-
minute limits on the exposure to TEDs, limits on the safe water
temperatures, and full-time care from animal husbandry experts, have
resulted in a perfect safety record for the turtles used in TED
testing. Even with these practices, there will always be natural
variability in the environmental conditions and the fitness of the
turtles. For that reason, every TED testing session is based on the
performance of the turtles in a control TED, not on comparisons with
previous TED testing sessions. While NMFS continues to investigate the
role of various physiological measures on the turtles' fitness and
behavior, the controls ensure that the 1997 TED tests, as well as
future tests, are a rigorous examination of candidate TEDs.
Comment 3: The commenter recommended that NMFS adopt a regulatory
certification process for net installers, stating this would be a more
efficient way of ensuring proper installation of the Parker TED than
NMFS proposed use of technical assistance to fishermen and net makers
and enforcement surveillance for correct TED use.
Response: NMFS explicitly considered adopting a net maker
certification program in the Environmental Assessment/Regulatory Impact
Review (EA/RIR) for the interim final rule. In summary, NMFS determined
that a certification program would create a large administrative and
bureaucratic burden on the government and a clumsy regulatory
requirement affecting the net makers and the fishermen. The TED
regulations already include prohibitions on selling or using non-
approved TEDs (50 CFR 223.250(b)). Also, the technical specifications
for what constitutes an approved Parker TED are extremely detailed.
Therefore, there would be little advantage for enforcement from an
additional regulatory certification requirement. NMFS believes that the
limited enforcement resources for ensuring compliance with the TED
regulations are best spent by conducting at-sea patrols and boardings
of actively fishing trawlers and by providing dockside assistance to
fishermen.
Comment 4: The commenter was concerned about the durability of soft
TEDs and their installation over time.
Response: The commenter is referring to two separate problems with
soft TEDs that inherently result from the use of soft, flexible webbing
for the TED. The first is the soft TED's fragile material relative to
hard TEDs. The webbing in a soft TED may easily be cut or damaged
during normal trawling activities; for example, from encountering small
sharks, shell fragments, rocks, corals, and wood debris. The second is
that tensions on the soft TED and the net during trawling may
eventually stretch the net or the excluder panel so that pockets or
slack webbing appear and cause turtle entanglements.
NMFS is also aware of, and concerned by, these problems which, in
part, is why the Parker TED was approved for a limited, 18-month
period. Part of the goal of the enforcement and training programs has
been to document the extent to which these problems do occur with the
Parker TED in commercial use. NMFS believes that the design of the
Parker TED and its stringent installation requirements make it much
less susceptible to losing its shape than previous styles of soft TEDs.
NMFS enforcement and training programs, in fact, have not discovered
that stretching has been a problem with Parker TEDs. NMFS has only
observed a few Parker TEDs in commercial use, however, and further
evaluation of the durability and installation of this design over time
is needed.
NMFS recognized from the outset that no soft TED, constructed of
polyethylene or polypropylene webbing, would be immune to routine
damage. Shrimpers who use soft TEDs must continually inspect their TEDs
and repair holes and damage as soon as they appear. Inspecting the
panel of a soft TED is a difficult and time-consuming task, especially
compared to inspecting a hard TED. Most shrimpers can check the
condition of their hard TEDs visually before every tow, but a soft TED
cannot be inspected through the outside of a wet trawl. The one boat
using a Parker TED in the Gulf of Mexico that NMFS encountered
apparently did not perform proper maintenance on the soft TEDs, and
these TEDs had deteriorated badly over the course of a year. Even with
proper maintenance, NMFS estimates that soft TED panels need to be
replaced once a year, on average. Anecdotal reports from fishermen and
net makers in Texas indicate that virtually no one uses Parker TEDs in
that area because the fishermen do not want the time burden or the
responsibility of checking and repairing the panels. In the Atlantic,
the few Parker TEDs observed did not have problems with holes or damage
and likely were receiving proper maintenance.
Provisions of this Interim Final Rule
This interim final rule extends the approved use of the Parker TED
through October 13, 2000. This interim final rule makes no changes to
the technical requirements for the Parker TED nor to the restrictions
on the styles of net in which it may be installed.
NMFS initially limited the approval of the Parker TED to an 18-
month period for two reasons. First, NMFS limited the duration so that
if an evaluation of the effectiveness of the Parker TED in commercial
use showed that the Parker TED was not effective at excluding sea
turtles, NMFS could allow the approval to lapse. If the Parker TED was
found to be effective at excluding sea turtles, the interim rule would
be adopted as final incorporating any necessary technical changes that
might result from the TED testing and commercial use during the 18-
month period. Second, NMFS expected that there would be additional
commercial testing by industry of the Parker TED in other net sizes and
styles, under NMFS authorization. If additional net sizes and styles
were found to be compatible with the Parker TED, NMFS would expand the
authorized use of the Parker TED in finalizing the rule. NMFS
observations of commercial use of the Parker TED do generally indicate
that it effectively excludes turtles. This conclusion is tempered,
however, by the small number of vessels with Parker TEDs that have
actually been observed and by the troubling lack of maintenance seen in
one of those cases. The anticipated commercial testing of
[[Page 55438]]
additional net sizes and styles has also not taken place. One vessel is
currently collecting information on a Parker TED with a modified panel,
to determine whether the modified panel excludes more finfish bycatch.
NMFS believes that extending the approved use of the Parker TED for an
additional year will allow additional information to be collected for a
better final decision. This extension will allow fishermen currently
using Parker TEDs to continue to do so and will give more time for
testing additional modifications. The small number of fishermen using
Parker TEDs and the apparently high effectiveness of the Parker TED
mean that this extension will not unnecessarily impact sea turtles.
Request for Comments
NMFS is requesting input and will accept written comments (see
ADDRESSES) on this interim final rule until December 13, 1999. Any
comments, suggestions, or additional data and information on this
action will be taken into consideration before a final determination is
made on a final rule.
Classification
This action has been determined to be not significant for purposes
of Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds that
good cause exists, under 5 U.S.C. 553(b)(B), to waive prior notice and
an opportunity for public comment on this rule. It is impracticable and
contrary to the public interest to provide prior notice and opportunity
for comment because the shrimp fishery is currently underway in the
offshore and eastern Gulf of Mexico with virtually all of those shrimp
trawlers required to use TEDs. The provisions of this rule allow those
fishermen the continued option of a soft TED design, to comply with the
TED requirement. In addition, a small number of fishermen are presently
using the Parker TED. This rule will allow those fishermen to continue
to use their existing gear beyond October 12, 1999. Otherwise, they
would be forced to remove their soft TEDs by that date and replace them
with hard TEDs. Because this final rule does not create any new
regulatory burden, but instead relieves regulatory restrictions by
continuing an additional option for complying with existing sea turtle
conservation requirements, under 5 U.S.C. 553(d)(1) it is not subject
to a 30-day delay in effective date.
Because prior notice and opportunity for public comment are not
required for this rule by 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., are inapplicable.
The AA prepared an EA/RIR for the April 13, 1998, interim final
rule (63 FR 17948) that approved the use of the Parker TED. The EA
concluded that the rule will have no significant impact on the human
environment. A copy of the EA/RIR is available (see ADDRESSES).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: October 7, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 223 is amended
as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531 - 1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.
Sec. 223.207 [Amended]
2. In Sec. 223.207, paragraph (c) introductory text, remove the
text ``October 13, 1999'' and add in its place, ``October 13, 2000''.
[FR Doc. 99-26693 Filed 10-12-99; 8:45 am]
BILLING CODE 3510-22-F
