[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Rules and Regulations]
[Pages 55858-55860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26976]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No. 950427117-9271-10; I.D.100499D]
RIN 0648-AH97
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 issues this temporary action to allow the use of limited
tow times as an alternative to the requirement to use Turtle Excluder
Devices (TEDs) by shrimp trawlers operating south and west of Cape
Lookout, North Carolina, in the offshore waters out to 3 nautical miles
(nm) (5.5 km). NMFS has been notified by the Director of the Division
of Marine Fisheries of the North Carolina Department of Environmental
and Natural Resources (NCDMF) that large amounts of debris in Atlantic
Ocean waters along the southern portion of the State in the aftermath
of the Hurricanes' Dennis and Floyd are causing 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 hurricanes continue to make TED use
impracticable.
DATES: This action is effective from October 12, 1999, through November
12, 1999. Comments on this action are requested, and must be received
by November 12, 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, 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
[[Page 55859]]
(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, has 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
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 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 223.206 (d)(3)(ii) specify that the Assistant Administrator
for Fisheries, NOAA (AA), may authorize compliance with tow time
restrictions as an alternative to the TED requirement, if [she]
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
223.206(d)(3)(i) specify the maximum tow times that may be used when
tow-time limits are 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. These tow time limits are designed to minimize the level of
mortality of sea turtles that are captured by trawl nets not equipped
with TEDs.
Recent Events
At the end of August 1999, Hurricane Dennis moved slowly along the
Outer Banks of North Carolina, hitting the coast with heavy winds and
surf. Dennis lingered along the North Carolina coast and came ashore
east of Beaufort, NC, on September 4. Less than 2 weeks later,
Hurricane Floyd also struck North Carolina, making landfall at Cape
Fear. Hurricane Floyd's most severe damage has resulted from the heavy
rainfalls and record flooding in inland areas of North Carolina. The
two hurricanes caused heavy discharge from flooding rivers which has
deposited debris in the State's nearshore coastal waters. In an October
1 letter to the NMFS Southeast Regional Administrator, the Director of
the NCDMF stated:
Since the passage of the storm, the [NCDMF] has received
complaints from shrimp fishermen about debris, including old tires,
being caught in shrimp trawls and clogging their TEDs. The [NCDMF]
has also observed this debris in sample trawls made after the storm
aboard our research vessel, the R/V CAROLINA COAST. This debris
includes old tires which have broken loose from our artificial
reefs, trees, pilings, shingles, and wood washed into the ocean by
flood waters. The material becomes lodged in the TEDs rendering them
ineffective in expelling sea turtles as well as negatively impacting
fishermen's catches.
The NCDMF requested that NMFS use its authority to allow the use of
limited tow times as an alternative to TEDs in offshore waters out to 3
nm (5.5 km) from Cape Lookout to the North Carolina/ South Carolina
border.
The effects of the flooding from Hurricane Floyd have been
particularly severe in the eastern inland portions of North Carolina.
The inshore shrimp fishing areas in Core, Pamlico, and Albemarle sounds
that provide the majority of the State's shrimp catch have also likely
been inundated with debris. At this time, however, those inshore areas
are still experiencing considerable flooding and freshwater intrusion,
and most of the shrimp are likely to have been washed out of the
sounds. NMFS and the NCDMF will continue to monitor the situation in
those inshore areas to determine the need for any additional action.
Special Environmental Conditions
The AA finds that the impacts of Hurricanes Floyd and Dennis have
created special environmental conditions that may make trawling with
TED-equipped nets impracticable. Therefore, the AA issues this notice
to authorize the use of restricted tow times as an alternative to the
use of TEDs in the offshore waters of the territorial sea of the State
of North Carolina from the North Carolina/South Carolina border to
076 deg.32' W., the line of longitude through Cape Lookout. The NCDMF
is continuing to monitor the situation and is cooperating with NMFS in
determining the ongoing extent of the debris problem in North Carolina
offshore waters. Moreover, the NCDMF Director has stated that the
State's enforcement officers would enforce the restricted tow times.
Ensuring compliance with tow time restrictions is critical to effective
sea turtle protection, and the commitment from the NCDMF 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 North Carolina offshore waters
to continue to use TEDs if possible, even though they are authorized,
under this notice, to use restricted tow times. 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
fishermen's concern, 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. To exclude debris, NMFS recommends hard TEDs made
of either solid rod or of hollow pipe that incorporate a bent angle at
the escape opening, in a bottom-opening configuration. 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 shortened by cutting it horizontally 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 above-listed recommendations represent legal
configurations of TEDs for shrimpers in the offshore areas of North
Carolina (not subject to special requirements effective in the Atlantic
Shrimp Fishery-Sea Turtle Conservation Area). This notice authorizes
the use of restricted tow times as an alternative to the required use
of TEDs. This action 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.
[[Page 55860]]
Alternative to Required Use of TEDs
The authorization provided by this temporary action applies to all
shrimp trawlers that are operating in offshore waters of the
territorial sea (within 3 nm (5.5 km)) of the State of North Carolina,
from the North Carolina/South Carolina border to 076 deg.32' W., the
line of longitude through Cape Lookout, in areas which the State has
opened to shrimping and who would otherwise be required to use TEDs in
accordance with the requirements of 50 CFR 223.206(d)(2). ``Offshore
waters,'' as defined at 50 CFR 222.102, means the marine and tidal
waters seaward 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, 1999 until November 12, 1999, 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 State Requirements
The affected area for this exemption lies entirely within the state
waters of North Carolina. Nothing in this notice should be considered
to affect any State fishing requirement. The NCDMF Director may issue a
proclamation specifying additional requirements for shrimp trawlers
working under this exemption. Fishermen must comply with all applicable
State requirements, including any proclamations by the NCDMF Director
issued to help implement this authorization.
Additional Conditions
NMFS expects that shrimp trawlers operating in North Carolina
offshore 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 NCDMF Director,
rather than simply dispose the debris at sea. Proper disposal of debris
should help the restoration of the shrimping grounds in the wake of the
hurricanes. 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 AA, 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 AA 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 AA 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 by
insufficient compliance with the authorized alternative. The AA may
also terminate this authorization for these same reasons or for the
reasons that compliance cannot be monitored effectively, or that
conditions do not make trawling with TEDs impracticable. The AA 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 North Carolina offshore waters. This authorization
will expire automatically on November 12, 1999, 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 efficient fishing for shrimp,
while providing adequate protection for endangered and threatened 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 rule. It
is impracticable and contrary to the public interest to provide prior
notice and opportunity for comment. The AA finds that an unusually
large amount of debris exists in the aftermath of Hurricanes Dennis and
Floyd, creating special environmental conditions that may make trawling
with TED-equipped nets impracticable. The AA 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 time frame. The public was provided with notice
and an opportunity to comment on 50 CFR 223.206(d)(3)(ii).
Pursuant to 5 U.S.C. 553(d)(1), because this rule relieves a
restriction, it is not subject to a 30-day delay in notice. NMFS is
making the rule effective October 12, 1999, to ensure that North
Carolina has adequate time to issue any necessary proclamations.
Since prior notice and an opportunity for public comment are not
required to be provided for this action 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 FR 57348, December 4, 1992) requiring TED use in shrimp trawls and
creating the regulatory framework for the issuance of notices such as
this. Copies of the EA are available (see ADDRESSES).
Dated: October 8, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 99-26976 Filed 10-12-99; 4:31 pm]
BILLING CODE 3510-22-F
