[Federal Register Volume 63, Number 198 (Wednesday, October 14, 1998)]
[Rules and Regulations]
[Pages 55053-55055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27408]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 217 and 227
[I.D.100598B]
RIN 0648-AH97
Sea Turtle Conservation; Shrimp Trawling Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notification of an exemption and request for comments.
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SUMMARY: NMFS issues this rule to allow the use of limited tow times by
shrimp trawlers in inshore waters in Alabama as an alternative to the
requirement to use Turtle Excluder Devices (TEDs). This area was
affected by Hurricane Georges on and about September 27 to 29, 1998.
NMFS has been notified by the Director of the Marine Resources Division
of the Alabama Department of Conservation and Natural Resources that
large amounts of debris in Alabama's bays in the aftermath of the
hurricane are causing extraordinary difficulty with the performance of
TEDs. NMFS will monitor the situation to ensure there is adequate
protection for sea turtles in this area and to determine whether
impacts from the hurricane continue to make TED use impracticable.
DATES: This rule is effective from October 7, 1998 through October 31,
1998, when tow times must be limited to no more than 55 minutes
measured from the time trawl doors enter the water until they are
retrieved from the water, and from November 1, 1998 until November 6,
1998, when tow times must be limited to no more than 75 minutes.
Comments on this rule are requested, and must be received by November
6, 1998.
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, 813-570-5312, or
Barbara A. Schroeder, 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 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 these species, as a result of shrimp
trawling activities, have been documented in the Gulf of Mexico and
along the Atlantic. Under the ESA and its implementing regulations,
taking sea turtles is prohibited, with exceptions identified in 50 CFR
227.72. Existing sea turtle conservation regulations (50 CFR part 227,
subpart D) 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 for the use of limited tow times as an
alternative to the use of TEDs for vessels with certain specified
characteristics or under certain special circumstances. The provisions
of 50 CFR 227.72 (e)(3)(ii) specify that the Assistant Administrator
for Fisheries, NOAA (Assistant Administrator), may authorize
``compliance with tow time restrictions as an alternative to the TED
requirement, if [he] determines that the presence of algae, seaweed,
debris or other special environmental conditions in a particular area
makes trawling with TED-equipped nets impracticable.'' The provisions
of 50 CFR 227.72(e)(3)(i) specify the maximum tow times that may be
used when authorized as an alternative to the use of TEDs. The tow
times may be no more than 55 minutes from April 1 through October 31
and no more than 75 minutes from November 1 through March 31. NMFS has
selected these tow time limits to minimize the level of mortality of
sea turtles that are captured by trawl nets that are not equipped with
TEDs.
Recent Events
On September 27, Hurricane Georges hit the Mississippi and Alabama
coasts. The hurricane remained nearly stationary over the coastal area
and South Alabama for about two days and deposited as much as 36 inches
of rain on some areas. The combination of heavy rains and hurricane
storm surge produced severe flooding in south Mississippi and South
Alabama rivers. The Director of the Marine Resources Division of the
Alabama Department of Conservation and Natural Resources (Alabama
Director) stated in a September 30 letter to the NMFS Southeast
Regional Administrator that the flooding ``has deposited a tremendous
amount of debris in Alabama's bays.'' He further stated that the
``inordinate amount of debris is causing extraordinary difficulty with
the performance of TEDs in these areas'' and that ``the debris clogs
the TEDs making them inoperable for the exclusion of turtles and
reduces the catch of shrimp.'' His letter requested that NMFS use its
authority to allow the use of 55-minute tow times as an alternative to
TEDs for a 30-day period in Alabama's inshore waters that are open to
shrimping.
Coastal areas in Louisiana and Mississippi were also affected by
Hurricane Georges. NMFS has been consulting with the Louisiana
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Department of Wildlife and Fisheries and the Mississippi Department of
Marine Resources to determine the extent of debris problems that may
have resulted from the storm's passage. At this time, no requests for
exemption have been submitted from these states and the temporary TED
exemption is only for inshore waters of Alabama.
Special Environmental Conditions
The Assistant Administrator finds that the impacts of Hurricane
Georges have created special environmental conditions that may make
trawling with TED-equipped nets impracticable. Therefore, the Assistant
Administrator issues this rule to authorize the use of restricted tow
times as an alternative to the use of TEDs in the inshore waters of
Alabama. The State of Alabama is continuing to monitor the situation
and is cooperating with NMFS in determining the ongoing extent of the
debris problem in Alabama inshore waters. Moreover, the Alabama
Director has stated that Alabama's enforcement officers would assist
with the enforcement of the restricted tow times. Ensuring compliance
with tow time restrictions is critical to effective sea turtle
protection, and the commitment from the Alabama Director to provide
additional enforcement of the tow time restrictions is an important
factor enabling NMFS to issue this authorization.
Continued Use of TEDs
NMFS encourages shrimp trawlers in Alabama inshore waters who are
authorized under this rule to use restricted tow times to continue to
use TEDs if possible. NMFS studies have shown that the problem of
clogging by seagrass, algae or by other debris is not unique to TED-
equipped nets. When fishermen trawl in problem areas, they may
experience clogging with or without TEDs. A particular concern of
fishermen, however, is that clogging in a TED-equipped net may hold
open the turtle escape opening and increase the risk of shrimp loss. On
the other hand, TEDs also help exclude certain types of debris and
allow shrimpers to conduct longer tows.
NMFS' gear experts provide several operational recommendations to
fishermen to maximize the debris exclusion ability of TEDs that may
allow some fishermen to continue using TEDs without resorting to
restricted tow times. NMFS has had good experience with hard TEDs made
of either solid rod or hollow pipe that incorporate a bent angle at the
escape opening and recommends use of this type of TED, in a bottom-
opening configuration, to help exclude debris. In addition, the
installation angle of a hard TED in the trawl extension is an important
performance element in excluding debris from the trawl. High
installation angles can result in debris clogging the bars of the TED;
NMFS recommends an installation angle of 45 deg., relative to the
normal horizontal flow of water through the trawl, to optimize the
TED's ability to exclude turtles and debris. Furthermore, the use of
accelerator funnels, which are allowable modifications to hard TEDs, is
not recommended in areas with heavy amounts of debris or vegetation.
Lastly, the webbing flap that is usually installed to cover the turtle
escape opening may be modified to help exclude debris quickly: the
webbing flap can either be cut horizontally to shorten it so that it
does not overlap the frame of the TED or be slit in a fore-and-aft
direction to facilitate the exclusion of debris.
All of the preceeding recommendations represent legal
configurations of TEDs for shrimpers in the inshore areas of Alabama
(not subject to special requirements effective in the Gulf Shrimp
Fishery-Sea Turtle Conservation area). This rule authorizes the use of
restricted tow times as an alternative to the required use of TEDs.
This rule does not authorize any other departure from the TED
requirements, including any illegal modifications to TEDs. In
particular, if TEDs are installed in trawl nets, they may not be sewn
shut.
Alternative to Required Use of TEDs
The authorization provided by this rule applies to all shrimp
trawlers that would otherwise be required to use TEDs in accordance
with the requirements of 50 CFR 227.72(e)(2) who are operating in
inshore waters of the State of Alabama, in areas which the State has
opened to shrimping. ``Inshore waters'', as defined at 50 CFR 217.12,
means the marine and tidal waters landward of the 72 COLREGS
demarcation line (International Regulations for Preventing Collisions
at Sea, 1972), as depicted or noted on nautical charts published by
NOAA (Coast Charts, 1:80,000 scale) and as described in 33 CFR part 80.
Instead of the required use of TEDs, shrimp trawlers may opt to comply
with the sea turtle conservation regulations by using restricted tow
times. Through October 31, 1998, a shrimp trawler utilizing this
authorization must limit tow times to no more than 55 minutes, measured
from the time trawl doors enter the water until they are retrieved from
the water. From November 1, 1998 until November 6, 1998, tow times must
be limited to no more than 75 minutes measured from the time trawl
doors enter the water until they are retrieved from the water.
Additional Conditions
NMFS expects that shrimp trawlers operating in Alabama inshore
waters without TEDs in accordance with this authorization will retrieve
debris that is caught in their nets and return it to shore for disposal
or to other locations defined by the Alabama Director, rather than
simply disposing the debris at sea. Proper disposal of debris should
help the restoration of the shrimping grounds in the wake of the
hurricane. Shrimp trawlers are reminded that regulations under 33
U.S.C. 1901 et seq. (Act to Prevent Pollution From Ships) may apply to
disposal at sea.
Alternative to Required Use of TEDs; Termination
The Assistant Administrator, at any time, may modify the
alternative conservation measures through publication in the Federal
Register, if necessary to ensure adequate protection of endangered and
threatened sea turtles. Under this procedure, the Assistant
Administrator may modify the affected area or impose any necessary
additional or more stringent measures, including more restrictive tow
times or synchronized tow times, if the Assistant Administrator
determines that the alternative authorized by this rule is not
sufficiently protecting turtles, as evidenced by observed lethal takes
of turtles aboard shrimp trawlers, elevated sea turtle strandings, or
insufficient compliance with the authorized alternative. The Assistant
Administrator may also terminate this authorization for these same
reasons, or if compliance cannot be monitored effectively, or if
conditions do not make trawling with TEDs impracticable. The Assistant
Administrator may modify or terminate this authorization, as
appropriate, at any time. A document will be published in the Federal
Register announcing any additional sea turtle conservation measures or
the termination of the tow time option in Alabama inshore waters. This
authorization will expire automatically on November 6, 1998, unless it
is explicitly extended through another notice published in the Federal
Register.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The AA has determined that this action is necessary to respond to
an emergency situation to allow more
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efficient fishing for shrimp, while providing adequate protection for
endangered and threatened sea turtles pursuant to the ESA and other
applicable law.
Pursuant to section 553(b)(B) of the Administrative Procedures Act
(APA), the Assistant Administrator finds that there is good cause to
waive prior notice and opportunity to comment on this rule. It is
impracticable, unnecessary, and contrary to the public interest to
provide prior notice and opportunity for comment. The Assistant
Administrator finds that an unusually large amount of debris exists in
the aftermath of Hurricane George, creating special environmental
conditions that may make trawling with TED-equipped nets impracticable.
The Assistant Administrator has determined that the use of limited tow
times for the described area and time would not result in a significant
impact to sea turtles. Notice and comment are contrary to the public
interest in this instance because providing notice and comment would
prevent the agency from providing relief within the necessary
timeframe. Furthermore, the public had notice and an opportunity to
comment on 50 CFR 227.72(e)(3)(ii) when that regulation was finalized.
Pursuant to section 553(d)(1) of the APA, for the reasons cited
above, and because this action relieves a restriction, this rule is
effective immediately. As prior notice and an opportunity for public
comment are not required to be provided for this rule by 5 U.S.C. 553,
or any other law, the analytical requirements of 5 U.S.C. 601 et. seq.
are inapplicable.
The Assistant Administrator prepared an Environmental Assessment
(EA) for the final rule (57 FR 57348, December 4, 1992) requiring TED
use in shrimp trawls and creating the regulatory framework for the
issuance of actions such as this. Copies of the EA are available (see
ADDRESSES).
Dated: October 7, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 98-27408 Filed 10-7-98; 4:37 pm]
BILLING CODE 3510-22-F
