95-24608. Endangered and Threatened Wildlife; Revised Sea Turtle/Shrimp Fishery Emergency Response Plan  

  • [Federal Register Volume 60, Number 193 (Thursday, October 5, 1995)]
    [Rules and Regulations]
    [Pages 52121-52128]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-24608]
    
    
    
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    DEPARTMENT OF COMMERCE
    
    National Oceanic and Atmospheric Administration
    
    50 CFR Part 227
    
    [I.D. 060995B]
    
    
    Endangered and Threatened Wildlife; Revised Sea Turtle/Shrimp 
    Fishery Emergency Response Plan
    
    AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
    Atmospheric Administration (NOAA), Commerce.
    
    ACTION: General statement of policy; request for comments.
    
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    SUMMARY: NMFS has revised, and is publishing herein, the Sea Turtle/
    Shrimp Fishery Emergency Response Plan (ERP) that describes NMFS' 
    policy to ensure compliance with the sea turtle conservation 
    regulations promulgated under the Endangered Species Act (ESA) and 
    provides guidance for the use of future rulemaking in response to 
    elevated sea turtle strandings associated with shrimping in the 
    southeastern United States. The ERP has been revised in response to 
    comments on the ERP and the receipt of new technical information. This 
    notice contains a revised ERP in its entirety and invites public review 
    and comment.
    
    DATES: The revised ERP describes NMFS' policy effective October 4, 
    1995. 
    
    [[Page 52122]]
    Comments will be accepted through December 4, 1995.
    
    ADDRESSES: Comments on this notice 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 
    Phil Williams, 301-713-1401.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        NMFS consults on shrimp fishing operations in the southeastern 
    United States that may affect sea turtles listed as threatened or 
    endangered, pursuant to section 7 of the ESA, 16 U.S.C. 1531 et seq. 
    These shrimp fishing operations are managed, in part, under the Gulf of 
    Mexico Shrimp Fishery Management Plan and the South Atlantic Shrimp 
    Fishery Management Plan, both implemented pursuant to the Magnuson 
    Fisheries Management and Conservation Act, 16 U.S.C. 1801 et seq., and 
    the Sea Turtle Conservation Regulations at 50 CFR part 227, subpart D, 
    implemented under the ESA.
        Unprecedented sea turtle stranding levels in Texas, Louisiana, and 
    Georgia associated with shrimp fishing during 1994 resulted in a 
    reinitiation of consultation pursuant to 50 CFR 402.16 on shrimp 
    fishing in the southeastern United States. The resulting Biological 
    Opinion (Opinion), issued on November 14, 1994, concluded that 
    continued long-term operation of the fishery under the existing 
    management regime was likely to jeopardize the continued existence of 
    the Kemp's ridley population and prevent the recovery of loggerheads, 
    but identified a reasonable and prudent alternative to allow the 
    fishery to continue while avoiding jeopardy. One of the components of 
    the alternative was to develop an ERP by March 14, 1995, to identify 
    actions NMFS would take to ensure compliance with sea turtle 
    conservation regulations. The ERP also provides internal guidance for 
    the use of future rulemaking in response to elevated sea turtle 
    strandings associated with shrimping in the southeastern United States.
        On March 17, 1995, NMFS distributed the ERP widely among all 
    concerned parties, including shrimp industry and environmental 
    organizations for their information and comment. In addition, formal 
    notice of availability for the ERP was published on April 21, 1995 (60 
    FR 19885).
    
    ERP Implementation and Recent Events
    
        The guidelines in the ERP have been used by NMFS throughout the 
    1995 shrimping season for its stranding reporting and public 
    notification procedures, for its enforcement efforts, and for the 
    scope, timing and structure of its temporary restrictions on shrimp 
    fishing. While the ERP has served to guide NMFS and apprise the public 
    of when and how restrictions may be imposed by NMFS, justification for 
    these restrictions and changes thereto have been provided concurrently 
    with the restrictions themselves. Any deviations from the ERP 
    guidelines, and the relationship to the ERP, have also been explained 
    with the restrictions.
        Temporary requirements 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), on the Georgia coast on June 21, 1995 
    (60 FR 32121, June 20, 1995), and on the Georgia and the southern 
    portion of the South Carolina coast on August 11, 1995 (60 FR 42809, 
    August 17, 1995) to conserve sea turtles, especially the endangered 
    Kemp's ridley. These requirements were necessitated by the continued 
    high rates of sea turtle strandings occurring in these areas along with 
    documented shrimping effort. A complete description of the sea turtle 
    stranding events, temporary requirements, and the areas in which they 
    have applied is provided in the temporary requirements (60 FR 21741, 
    May 3, 1995, 60 FR 32121, June 20, 1995, 60 FR 42809, August 17, 1995), 
    and is not repeated here.
        In all cases, strandings decreased in those areas where temporary 
    requirements were imposed, indicating that the measures identified in 
    the ERP have been successful at reducing high stranding levels. This is 
    further evidenced by the contrast in the number of Kemp's ridley 
    strandings that occurred on Texas offshore beaches in 1994 and 1995. In 
    the entire state, 48 Kemp's ridleys stranded in April 1995 prior to the 
    implementation of emergency rulemaking, corresponding closely with the 
    50 ridley strandings reported in Texas during April in 1994. The 
    emergency gear restrictions effective April 30, 1995 were implemented 
    in areas where 42 of these strandings occurred. Although ridley 
    strandings increased drastically to 71 sea turtles during May of 1994, 
    during May of 1995 there were only 17 ridley strandings, despite the 
    slightly later start to the Texas closure (May 15, 1995 versus May 13, 
    1994). This contrast between years illustrates the effectiveness of the 
    emergency restriction in arresting ridley mortalities. The decline in 
    mortalities, whether due to the gear modifications and improved turtle 
    exclusion, or to reduced shrimping effort in areas of ridley abundance 
    due to shrimpers leaving the affected areas, was consistent with the 
    intent of the ERP. Implementation of restrictions at other times and in 
    other zones have similarly reduced sea turtle strandings, demonstrating 
    the effectiveness of certain gear restrictions. Cumulative strandings 
    of Kemp's ridleys are considerably lower than 1994. While overall 
    cumulative strandings of all species of sea turtles have been 
    relatively high in 1995, not all of these strandings appear to be the 
    result of shrimp fishing, and further appear to occur over the course 
    of the season rather than episodically. These issues are being 
    considered in additional rulemaking as announced in the Advance Notice 
    of Proposed Rulemaking (ANPR) published on September 13 (60 FR 47544). 
    Through the ANPR, NMFS announced that it is 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 these areas. Comments 
    received on the ANPR and the revised ERP will be considered in future 
    rulemaking.
    
    Comments on the March 14, 1995 ERP and Temporary Requirements
    
        Since the publication of the ERP and the implementation of 
    temporary requirements referenced above, NMFS has received numerous 
    written comments and has also met with interested constituents to 
    receive oral comments. Some comments were addressed through the 
    temporary requirements cited in the previous section, but are again 
    discussed here in order to present a complete record for decisions 
    relating to the ERP.
        Comment. Individual shrimpers and the Texas Seafood Processors 
    Association stated that the prohibition on all try nets without turtle 
    excluder devices (TEDs) is unreasonable for those using small try nets.
        Response. NMFS determined that an alternative existed to the try 
    net prohibition that would allow fishermen to work efficiently, while 
    reducing the likelihood of turtle entrapment. Accordingly, NMFS 
    modified the temporary requirements to allow the use of try nets 
    without TEDs installed if the try nets were smaller than 12 feet (3.6 
    m) in headrope length and 15 feet (4.6 
    
    [[Page 52123]]
    m) in footrope length, effective May 12, 1995 (60 FR 26691, May 18, 
    1995). While this modification has been made in all temporary 
    restrictions, the ERP is now being revised as well to reflect this 
    change.
        Comment. The requirement to use a shortened flap over the escape 
    opening results in excessive shrimp loss.
        Response. NMFS gear experts conducted underwater investigations on 
    a top-opening hard TED with a shortened webbing flap and determined 
    that it would not result in any significant shrimp loss. Furthermore, 
    shrimp retention in TED-equipped nets can be maximized by use of an 
    accelerator funnel which helps propel shrimp through TED grids and away 
    from the turtle escape opening. However, NMFS has received numerous 
    complaints from the shrimp industry about perceived loss of shrimp. 
    Further, unlike 1994, NMFS has documented a high compliance rate with 
    gear requirements, and therefore, believes that the shortened flap 
    requirement should be re-evaluated on a case by case basis, but retains 
    the shortened webbing flap requirement as part of the potential 
    restrictive measures under the ERP.
        Comment. The Texas Shrimp Association (TSA) and the National 
    Fisheries Institute (NFI) objected to the manner in which NMFS prepared 
    and implemented the ERP. NFI and TSA asserted that the process of 
    preparation precluded meaningful industry participation, circumvented 
    requirements under the Administrative Procedure Act, and imposed TED 
    use restrictions without adequate time for shrimpers to adjust. TSA 
    proposed an alternative to the ERP to limit inshore and nearshore 
    fishing activity, with the stated objective of relieving pressure from 
    incidental capture in areas where turtles are concentrated.
        Response. The ERP was required by the November 14, 1994 Opinion in 
    order to ensure that sea turtle mortalities attributable to shrimp 
    fishing were not likely to jeopardize the species. The Opinion required 
    that the ERP be developed by March 14, 1995, in order that NMFS have 
    time to compile and analyze historic stranding data and still have a 
    plan prior to the start of the 1995 shrimping season. The ERP does not 
    modify the existing sea turtle conservation regulations nor does it 
    have any binding effect on the public. The existing regulations already 
    provide authority for emergency temporary action (such as TED use 
    restrictions) to prevent unauthorized takings of sea turtles. The 
    temporary restrictions implemented this season were based on the 
    authority of 50 CFR 227.72(e)(6), and justification for these actions 
    were contained in the record for each one. The ERP simply provides 
    guidance on when and how NMFS will exercise its discretion in 
    implementing such temporary measures under this existing regulatory 
    authority. The ERP was widely distributed upon its completion in March 
    and is published herein in its entirety for public review and comment. 
    The TSA alternative proposal to limit inshore and nearshore fishing 
    activity to protect turtles, if implemented, would involve major 
    changes to current conservation measures and would be subject to the 
    rulemaking process. TSA has submitted its proposal as a petition for 
    rulemaking under the APA, and NMFS is reviewing this petition in the 
    context of an ANPR (60 FR 47544, September 13, 1995).
        Comment. The Georgia Fisherman's Association (GFA) objected to the 
    temporary restrictions in Georgia, particularly the prohibition on the 
    use of bottom-shooting, hard TEDs and requested NMFS to rescind this 
    restriction. The Sea Turtle Restoration Project of Earth Island 
    Institute (EII) and NFI also urged NMFS to modify its temporary 
    restriction as requested by GFA. GFA asserted that shrimpers were 
    having problems with top-shooting hard TEDs because they lose shrimp, 
    gather debris, are less effective at excluding turtles, and they twist 
    and roll when installed with floats.
        NMFS has also received verbal reports from Georgia fishermen that 
    debris accumulates in the top-opening TEDs, thus hindering the release 
    of turtles. GFA agreed that the banning of soft TEDs was warranted as 
    they are not as effective as hard TEDs, but GFA stated that the 
    simultaneous ban on soft TEDs and bottom-opening hard TEDs would make 
    analysis of the relative contributions of the two gear types to sea 
    turtle mortality and strandings impossible.
        Response. Fishermen in the Atlantic have generally not used top-
    opening hard TEDs in recent years and may be having particular 
    difficulty adapting to a new gear type. NMFS has investigated 
    shrimpers' complaints and has had gear specialists working with Georgia 
    shrimpers during the imposition of the temporary restrictions.
        Gear specialists have been able to resolve problems associated with 
    switching hard TEDs from bottom-opening to top-opening and in the 
    installation of flotation devices to prevent nets from twisting. No 
    problems with clogged top-opening TEDs which would trap sea turtles 
    have been observed. NMFS specialists have also noted that as shrimpers 
    become familiar with the gear changes they can fish effectively. In 
    spite of the ability of NMFS gear specialists to resolve the alleged 
    problems with top-opening hard TEDs experienced by individual shrimp 
    fishermen in Georgia, NMFS has continued to receive complaints on the 
    temporary prohibition of the use of bottom-opening hard TEDs, the 
    strongly preferred gear choice for many Georgia fishermen.
        A preliminary analysis of recent 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. In two areas in Texas where strandings were 
    low, no difference in stranding rates could be distinguished based on 
    the differing proportions of the fleet using top- versus bottom-opening 
    hard TEDs. Although other factors, particularly the distribution of 
    shrimping effort, may have contributed to the observed stranding 
    patterns in Texas, the data suggested that prohibiting the use of soft 
    TEDs would provide more effective protection for sea turtles than 
    prohibiting the use of bottom-opening hard TEDs. Therefore, NMFS 
    implemented only the soft TED and try net restrictions described in the 
    ERP in Georgia and South Carolina in response to elevated sea turtle 
    strandings (60 FR 42809, August 17, 1995). This approach was intended 
    to protect sea turtles and to help determine the effectiveness of each 
    restriction. However, strandings in waters off Georgia and South 
    Carolina in the week following the implementation of these 
    restrictions, met or exceeded the indicated incidental take levels 
    (ITLs) established for those areas. Consequently, NMFS is re-evaluating 
    its recent restrictions and may prohibit the use of bottom-opening hard 
    TEDs and require the use of shortened webbing flaps over escape 
    openings should high levels of strandings continue in these areas.
        Comment. The National Biological Survey (NBS), U.S. Department of 
    the Interior, recommended that shrimp statistical Zone 21 be included 
    in the interim special management area. NBS stated that a review of the 
    stranding database shows that this area documents larger than average 
    Kemp's ridley strandings when compared to the upper Texas Coast or 
    Louisiana. NBS also asserted that Zone 21 was difficult to survey and 
    therefore, strandings may go undocumented. NBS felt that the additional 
    two weeks that would be required to implement restrictions in Zone 21 
    may jeopardize the survival of the Kemp's ridley.
    
    [[Page 52124]]
    
        Response. NMFS is investigating, as a requirement of the November 
    14, 1994 Opinion, which areas should require special management 
    considerations, due to high turtle abundance or important nesting or 
    foraging habitats. Upon identification of such areas, NMFS will propose 
    management measures to mitigate the effects of intensive shrimping 
    pulses.
        Comment. The Center for Marine Conservation (CMC), EII, and the 
    Houston Audubon Society and Help Endangered Animals-Ridley Turtles 
    (HEART) supported in general the temporary conservation requirements to 
    reduce turtle strandings as a reasonable compromise that allows 
    shrimping to continue in a manner that is compatible with turtle 
    conservation. However, EII felt that the ERP, in general, was too weak 
    to provide for strong and clear trigger mechanisms that would prevent 
    1994's high level of strandings. EII asserted that the accuracy of the 
    indicated take levels (ITLs) established in the ERP were questionable. 
    While recognizing the difficulty of accurately determining stranding 
    levels in inshore waters, CMC noted that these waters are very 
    important to turtles and urged that the temporary restrictions be 
    imposed as necessary. HEART urged that the temporary restrictions be 
    made permanent, describing a number of gear problems associated with 
    soft TEDs, bottom-shooting TEDs and try nets. CMC and EII noted (as did 
    NBS in the previous comment) that a 3-4 week waiting period to 
    implement area closures is unacceptable for the Kemp's ridley; that it 
    cannot tolerate another mass mortality event such as occurred in 1994. 
    EII urged that NMFS issue a regulation that automatically implements 
    gear restrictions or closures. Finally, CMC and EII urged that 
    sufficient resources be devoted to monitor strandings, especially in 
    Louisiana, where monitoring has been inadequate, but where fishing 
    activity may have shifted with area gear restrictions in Texas.
        Response. NMFS recently published an ANPR (60 FR 47544, September 
    13, 1995) to consider rulemaking identifying which areas should require 
    special management considerations, due to high turtle abundance or 
    important nesting or foraging habitats. Upon identification of such 
    areas, NMFS will propose permanent management measures to mitigate the 
    effects of intensive shrimping pulses. This action could also include 
    bays and estuaries that are important to turtles and shrimping. Also, 
    NMFS is considering, as a separate rulemaking, whether to propose 
    severe restrictions on the use of soft TEDs, which have been repeatedly 
    implicated as being ineffective at excluding turtles, often because of 
    poor installation or maintenance.
        The ERP was designed to, among other things, identify NMFS plans to 
    respond to high sea turtle strandings during 1995 through emergency 
    rulemaking. A permanent management regime will be put forth as a 
    proposed rule and the public provided ample opportunity for comment. 
    Many elements of the ERP may be superseded once permanent rules are in 
    place, by the 1996 shrimping season. The ERP is based on the best 
    available scientific information gained through recent gear trials, the 
    scientific literature on sea turtle biology and extensive discussions 
    with gear and turtle scientists. In addition, the ERP (including the 
    identified restrictions, and the indicated take levels) was presented 
    at meetings with scientists and industry and comments were received.
        However, the NMFS Opinion issued on November 14, 1994 calls for an 
    Expert Working Group (EWG) to be convened to identify the level of 
    mortality that can be sustained by sea turtle populations, to determine 
    the level of mortality reflected by strandings, and to identify an 
    acceptable stranding level. NMFS convened the EWG in Miami June 26-28, 
    1995 to review the Opinion and available data bases including those 
    upon which the Opinion and the ERP are based. This expert working group 
    consisted of sea turtle population biologists and life history experts 
    including experts nominated by the shrimp industry and environmental 
    community. As a result of this initial meeting, NMFS is completing 
    additional data analyses which will be reviewed by the EWG in the next 
    scheduled meeting in November.
        In addition, because of concerns expressed by some in industry and 
    the environmental community, NMFS has undertaken an extensive technical 
    review of the stranding triggers in the ERP. This review is planned to 
    be completed in the next several weeks and NMFS plans to review its 
    results with representatives of the shrimp industry and environmental 
    community. If these analyses result in new trigger numbers, they will 
    be included in subsequent publications of the revised ERP for public 
    review.
        NMFS is also concerned that strandings be monitored accurately and 
    comprehensively both on inshore and offshore facing beaches. NMFS 
    increased its support for the monitoring of strandings, including in 
    Louisiana, where there had previously been little or no coverage.
    
    Revision of the Emergency Response Plan
    
        NMFS continues to review the ERP and has revised it as a result of 
    public comments received and new technical information obtained. The 
    ITLs, which were not available when the ERP was adopted in March, are 
    published as part of the revised ERP. This ERP is NMFS' policy to 
    ensure compliance with sea turtle conservation regulations and to 
    respond to sea turtle stranding events. The revised ERP, in its 
    entirety, follows.
    
    The Sea Turtle/Shrimp Fishery Emergency Response Plan
    
        In developing this ERP, NMFS reviewed stranding data, as well as 
    other information, that resulted in identification of certain areas 
    that NMFS believes provide important habitat for Kemp's ridleys, and 
    that, as part of the ERP, will be subject to continuous elevated 
    scrutiny. These areas are identified in the ERP, and will allow NMFS to 
    more efficiently conduct its enforcement operations under this plan. 
    Identification of these areas in the ERP does not foreclose nor 
    prejudge the identification of areas requiring special sea turtle 
    management considerations, required as one of the components of the 
    reasonable and prudent alternative within one year of the date of 
    issuance of the Opinion, which will be subject to rulemaking 
    procedures, including prior notice and opportunity to comment. Other 
    activities within the special management areas, including hopper 
    dredging, oil and gas activities, permitted power boat races, military 
    operations and federally managed fisheries, are reviewed via the 
    section 7 process of the ESA, but may also be reviewed during these 
    rulemaking procedures, as necessary.
    
    Indicated Take Levels
    
        The Opinion is accompanied by an incidental take statement, 
    pursuant to section 7(b)(4)(i) of the ESA, that specifies the impact of 
    incidental taking on the species. The incidental take statement 
    provides two levels to identify the expected incidental take of sea 
    turtles by shrimp fishing. The incidental take levels are based upon 
    either documented takes or indicated takes measured by stranding data. 
    Stranding data are considered an indicator of lethal take in the shrimp 
    fishery during periods in which intensive shrimping effort occurs and 
    there are no significant or intervening natural or human sources of 
    mortality other than shrimping conclusively 
    
    [[Page 52125]]
    identified as the cause of strandings. While actual strandings in any 
    zone in any week may meet or exceed the levels identified as the 
    indicated take levels, this does not necessarily mean that the 
    incidental take level for the shrimp fishery has been met or exceeded 
    for purposes of section 7 of the ESA and that consultation is required 
    to be reinstated pursuant to 50 CFR 402.16. Rather, NMFS must consider 
    whether there are other natural or human sources of mortality other 
    than shrimping that can be conclusively identified; strandings as a 
    result of such sources will not be used in calculating whether the 
    incidental take level for the shrimp fishery has been met or exceeded.
        NMFS has established ITLs by identifying the weekly average number 
    of sea turtle strandings documented in each NMFS statistical zone for 
    the last 3 years, 1992-94, while special consideration was given for 
    anomalous years. In Texas, Louisiana, and Georgia, where strandings 
    were anomalously high in 1994, the years 1991-93 were used to determine 
    historical levels. In addition, the 1993 strandings of over 100 small 
    Kemp's ridleys in a small section of Louisiana have been excluded from 
    the averages due to the anomalous nature of that event. The weekly 
    average was computed as a 5-week running average (2 weeks before and 
    after the week in question) to reflect seasonally fluctuating events 
    such as fishery openings and closures and turtle migrations. The ITL 
    for each zone was set at 2 times the weekly 3-year stranding average. 
    For weeks and zones where the historical average is less than one, the 
    ITL has been set at two strandings. Table 1 contains the ITLs for each 
    week and statistical zone, except for Zones 1-3, 6-17, 21, and 24, 
    because the ITL is 2 for all weeks in these zones (note: there is no 
    Zone 22 or 23).
    
    Stranding Notification Procedures
    
        Sea Turtle stranding information is reported to the NMFS National 
    Stranding Coordinator by the Sea Turtle Stranding and Salvage Network 
    (STSSN). During 1995, STSSN State Coordinators submit weekly reports 
    and contact the STSSN National Coordinator immediately if strandings 
    approach or exceed historical averages. The STSSN National Coordinator 
    will contact NMFS Southeast Regional Office, Protected Species Branch, 
    and the NMFS National Sea Turtle Coordinator (NSTC) upon receipt and 
    evaluation of information suggesting that strandings are elevated to 
    near historical levels. The STSSN National Coordinator will be 
    responsible for forwarding information regarding the strandings to the 
    NMFS Southeast Regional Office.
        This early notification by STSSN State Coordinators will not 
    necessarily initiate management actions, but will serve as notification 
    that stranding levels are approaching levels that may require 
    implementation of management measures in the ERP. Implementation of the 
    ERP is defined below under A for interim special management areas and B 
    for areas outside of the interim special management areas.
    
    Public Notification Procedures
    
        Summaries of stranding reports, enforcement activities and other 
    activities implementing the requirements of the November 14, 1994 BO 
    will continue to be forwarded regularly via fax to NMFS laboratories, 
    port samplers and enforcement agents, Coast Guard Districts, state 
    fishery agencies, STSSN State Coordinators, Sea Grant agents, and 
    industry and environmental organizations. Additionally, any emergency 
    rulemaking will be announced through press releases and will be 
    broadcast on the NOAA Weather Radio, immediately upon filing of the 
    regulation for public inspection at the Office of the Federal Register.
    
    Emergency Response Plan (ERP) Procedures
    
    A. Interim Special Management Areas
    
        Data collected by the STSSN provide information regarding the 
    species composition, nearshore distribution, and mortality of sea 
    turtles. Stranding data illustrated by statistical zones identify two 
    areas of historically high Kemp's ridley strandings including much of 
    Texas and Louisiana, and the coast of Georgia and northeast Florida. 
    Although few strandings have been reported in statistical zones of low 
    STSSN effort in Louisiana, in-water research, including telemetry and 
    mark/recapture efforts, and historical data, have illustrated the 
    importance of Louisiana waters (as well as those of Texas) as Kemp's 
    ridley habitat.
        Historical stranding levels indicate that NMFS can anticipate 
    elevated Kemp's ridley strandings within these two areas. These areas 
    therefore require elevated scrutiny and protection under this Plan to 
    reduce the impacts of the shrimp fishery on Kemp's ridleys. The 
    Northern Gulf Interim Special Management Area includes waters off 
    Louisiana and Texas seaward of the COLREGS line within NMFS statistical 
    zones from (and including) Zone 13 through Zone 20 out to 10 nautical 
    miles (nm) (18.5 km). The Atlantic Interim Special Management Area 
    includes waters off Georgia and northeast Florida seaward of the 
    COLREGS line within NMFS statistical Zones 30 and 31 out to 10 nm (18.5 
    km).
        Through the section 7 consultation process, other activities within 
    the special management areas are also being reviewed, including hopper 
    dredging, oil and gas activities, permitted power boat races, military 
    operations and federally managed fisheries. During 1995, observers will 
    be deployed during these activities as needed.
    Elevated Enforcement Within the Interim Special Management Areas
        In 1995, from April 1 through November 30, members of a trained TED 
    law enforcement team will coordinate with the Coast Guard, local NMFS 
    and state enforcement agents to investigate compliance with TED 
    regulations in the Interim Special Management Areas. Throughout this 
    period, members of the TED law enforcement team (in addition to local 
    NMFS enforcement personnel) will be deployed in the Interim Special 
    Management Areas, including at least one in the Atlantic Interim 
    Special Management area.
    Implementation of Emergency Rules Within the Special Management Areas
        Reports of elevated stranding levels, as described below, in any 
    statistical zone within the Interim Special Management Areas may result 
    in implementation of emergency rulemaking for the NMFS statistical zone 
    of elevated strandings, and contiguous statistical zones or portions of 
    contiguous statistical zones, as necessary. The precise geographic 
    scope of the area requiring such measures will be defined in the rule. 
    Within the Interim Special Management Areas, regulations restricting 
    shrimping will be implemented when 75 percent or more of the weekly ITL 
    is reached for 2 consecutive weeks, or when the Assistant Administrator 
    for Fisheries, NOAA (AA), in consultation with the Director, Southeast 
    Region, NMFS (Regional Director), the Southeast Enforcement Division 
    Special Agent in Charge (SAC), the Southeast General Counsel Senior 
    Enforcement Attorney (SEA) and the Protected Resources Office Director 
    (OD), determines that other factors including noncompliance or high 
    nearshore shrimping effort require additional management measures. Any 
    restrictions necessary within the Interim Special Management Areas will 
    result in emergency rulemaking pursuant to the regulations under 50 CFR 
    227.72(e)(6). Justification for the rulemaking will be included in 
    
    [[Page 52126]]
    the Federal Register notice, and will include the best readily 
    available information on:
        a. Affected area;
        b. Current and historical strandings, shrimp landings and shrimping 
    effort (if available). Any unusual aspect of the strandings will be 
    identified (e.g., species composition, size classes, and carcass 
    anomalies);
        c. Enforcement efforts with emphasis on boardings and compliance;
        d. Other mortality factors if any, and unusual environmental 
    conditions, with an evaluation of their significance; and
        e. Any fishing practices or gear types that may be contributing to 
    the strandings (e.g., percent soft TEDs as determined from enforcement 
    boardings).
        Restrictions on the fishery will include any or all of the 
    following:
        1. The use of soft TEDs described in 50 CFR is prohibited.
        2. The use of hard TEDs with bottom escape openings and special 
    hard TEDs with bottom escape openings is prohibited. Approved hard TEDs 
    and special hard TEDs must be configured with the slope of the 
    deflector bars upward from forward to aft and with the escape opening 
    at the top of the trawl.
        3. The use of try nets with a headrope length greater than 12 ft 
    (3.6 m) or a footrope length greater than 15 ft (4.6 m) is prohibited 
    unless a NMFS-approved top-opening, hard TED or special hard TED is 
    installed when the try nets are rigged for fishing. Try nets with a 
    headrope length 12 ft (3.6 m) or less and a footrope length 15 ft (4.6 
    m) or less would be exempt from the TED-use requirement in accordance 
    with 50 CFR 227.72 (e)(2)(ii)(B)(1).
        4. The use of a webbing flap that completely covers the escape 
    opening in the trawl is prohibited. Any webbing that is attached to the 
    trawl, forward of the escape opening, be cut to such a length that the 
    trailing edge of such webbing does not approach to within 2 inches (5.1 
    cm) of the posterior edge of the TED grid. The requirements for the 
    size of the escape opening would be unchanged.
        These restrictions will be implemented through emergency rulemaking 
    pursuant to the regulations under 50 CFR 227.72(e)(6), and will remain 
    in effect for 30 days. Changes to the restrictions, or to the size and 
    extent of the area covered by the restrictions, and any extension of 
    the restrictions may be required through additional 30-day rules. All 
    restrictions will be predicated on ensuring protection to sea turtles.
    Area Closures Within the Special Management Areas
        Two consecutive weeks of elevated strandings, at 75 percent or more 
    of the ITL after implementation of an emergency rule restricting shrimp 
    fishing, will result in area closures from the COLREGS line, out to 10 
    nm (18.5 km) within the statistical zone of elevated strandings, and 
    contiguous statistical zones or portions of contiguous zones, as 
    necessary. Area closures will be implemented through emergency 
    rulemaking notices pursuant to 50 CFR 227.72(e)(6), and will remain in 
    effect for 30 days. Changes to the size and extent of the area closure, 
    and any extension of the closure, may be required through additional 
    30-day rules.
    Decision Not to Implement Restriction or Closures Within Special 
    Management Areas
        The Regional Director, in consultation with the SAC, SEA, and the 
    OD, may make a determination that emergency rulemaking is not necessary 
    despite stranding levels reaching or exceeding 75 percent of the ITL 
    for 2 consecutive weeks within the Interim Special Management Areas. 
    This determination will be summarized in a Memorandum for the Record, 
    and must receive the concurrence of the AA. The Memorandum for the 
    Record will include the information listed in a. through e., above, 
    must demonstrate that sea turtle mortalities appear to be due to 
    sources other than shrimping, and must identify actions that can be 
    taken immediately to reduce nearshore mortalities.
    
    B. Areas Outside of the Interim Special Management Areas
    
    (Zones 1 through 11, 21 through 29, and 32 through 36)
        The STSSN National Coordinator, with assistance from PSB staff and 
    the NSTC as requested, will be responsible for communicating with the 
    STSSN State Coordinators to evaluate local conditions and mortality 
    factors present in the statistical zones of elevated strandings. The 
    best available information will be solicited and reviewed through 
    communication with appropriate NMFS laboratories as well as state and 
    local marine scientists and managers. The local NMFS enforcement agent, 
    Coast Guard and state enforcement agency may also be asked to increase 
    enforcement efforts within statistical zones of elevated strandings.
        A consensus Decision Memorandum to the RD will be prepared by PSB 
    staff, the STSSN National Coordinator, and the NSTC regarding whether 
    further action is warranted in any statistical zone within which 
    strandings remain elevated above historical levels for 1 month. The 
    Decision Memorandum must be timely and contain the following best 
    readily available information:
        a. Affected area;
        b. Current and historical strandings, shrimp landings and shrimping 
    effort (if available). Any unusual aspect of the strandings will be 
    identified (e.g., species composition, size classes, and carcass 
    anomalies);
        c. Enforcement efforts with emphasis on boardings and compliance;
        d. Other mortality factors if any, and unusual environmental 
    conditions, with an evaluation of their significance;
        e. Identification of any fishing practices or gear types that may 
    be contributing to the strandings (for e.g., percent soft TEDs as 
    determined from enforcement boardings); and
        f. Recommended further actions, if any, which may include continued 
    investigation, elevated enforcement, or implementation of emergency 
    regulations restricting shrimping or closing areas. Restrictions if 
    necessary, will be consistent with those described within the 
    discussion of the interim special management areas under A., above.
        The Regional Director, in consultation with the SAC, SEA, and the 
    OD, will make a determination regarding further action within 48 hours 
    of receipt of the Decision Memorandum. Actions contrary to those 
    recommended in the Decision Memorandum must be summarized in a 
    Memorandum for the Record, and receive the concurrence of the AA. 
    Continued elevated strandings reaching or exceeding 75 percent of the 
    ITL for more than 2 consecutive weeks after restrictions are taken, as 
    noted in item f. under B. and listed in A., may result in area closures 
    from the COLREGS line, out to 10 nm (18.5 km) within the statistical 
    zone of elevated strandings, and contiguous zones or portions of 
    contiguous zones, as necessary.
    
    Request for Comments
    
        Any emergency rulemaking that may be necessary to implement the ERP 
    will be implemented pursuant to 50 CFR 227.72(e)(6) and the 
    Administrative Procedure Act, 5 U.S.C. 551 et seq. Since NMFS received 
    comments on the rule establishing 50 CFR 227.72(e)(6) in 1992, and 
    since full opportunity for public comment may not exist if temporary 
    restrictions must be implemented on an emergency basis, NMFS is 
    requesting comments on this 
    
    [[Page 52127]]
    revised ERP. NMFS will evaluate all comments received and will consider 
    making additional revisions to the ERP to incorporate public comments.
        Furthermore, the Opinion requires a number of other management 
    initiatives. In fulfilling one of these requirements, a rule is being 
    prepared to establish special sea turtle management areas and/or 
    contingency restrictions to the shrimp fishery (60 FR 47544, September 
    13, 1995). Such rulemaking will be done through normal rulemaking 
    procedures, including publication of a proposed rule with a public 
    comment period and, as appropriate, public hearings, prior to 
    publication of a final rule with a delayed effective date. Public 
    comments which provide alternative management measures for ensuring 
    successful operation of the shrimp trawl fishery while promoting 
    recovery of sea turtle populations may be used in the development of a 
    proposed rule. Such comments are therefore specifically solicited. All 
    comments received on this ERP will also be considered during that 
    rulemaking.
    
        Dated: September 26, 1995.
    Nancy Foster,
    Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
    Service.
    
    APPENDIX TO STATEMENT OF POLICY--TABLES
    
                                      Table 1.--Sea Turtle Indicated Take Level (ITL) for Shrimp Fishery Statistical Zones                                  
            [Zones 1-3, 6-17, 21, and 24 are not included in the table because the ITL is 2 for all weeks in these Zones. There is no Zone 22 or 23.]       
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                        Gulf of Mexico                       Zone 4     Zone 5    Zone 18    Zone 19    Zone 20    Zone 25    Zone 26    Zone 27    Zone 28 
    --------------------------------------------------------------------------------------------------------------------------------------------------------
       Week                    Week period                    ITL        ITL        ITL        ITL        ITL        ITL        ITL        ITL        ITL   
    --------------------------------------------------------------------------------------------------------------------------------------------------------
     1........  1/1-1/7..................................          2          2          2          2          2          2          2          3          2
     2........  1/8-1/14.................................          2          2          2          2          2          2          2          4          2
     3........  1/15-1/21................................          2          2          2          2          2          2          2          4          2
     4........  1/22-1/28................................          2          2          2          2          2          2          2          5          2
     5........  1/29-2/4.................................          2          2          2          2          2          2          2          5          2
     6........  2/5-2/11.................................          2          2          2          2          2          2          2          6          3
     7........  2/12-2/18................................          2          2          2          2          2          2          2          5          3
     8........  2/19-2/25................................          2          2          2          2          2          2          2          4          3
     9........  2/26-3/4.................................          2          2          2          2          2          2          3          5          2
    10........  3/5-3/11.................................          2          2          2          2          2          2          3          5          3
    11........  3/12-3/18................................          2          2          2          2          2          2          3          4          3
    12........  3/19-3/25................................          2          3          2          2          3          2          3          5          3
    13........  3/26-4/1.................................          2          2          2          2          3          2          3          6          5
    14........  4/2-4/8..................................          2          2          2          2          3          2          3          5          6
    15........  4/9-4/15.................................          2          2          2          2          4          2          2          5          6
    16........  4/16-4/22................................          2          2          3          2          4          2          3          6          6
    17........  4/23-4/29................................          2          3          3          2          4          2          4          7          6
    18........  4/30-5/6.................................          3          3          4          2          3          2          4          7          5
    19........  5/7-5/13.................................          3          3          3          2          3          2          4          7          6
    20........  5/14-5/20................................          3          4          2          2          2          2          5          7          6
    21........  5/21-5/27................................          3          3          2          2          2          2          6          7          5
    22........  5/28-6/3.................................          3          2          2          2          2          3          5          6          7
    23........  6/4-6/10.................................          2          2          2          2          2          2          5          5          7
    24........  6/11-6/17................................          3          2          2          2          2          2          5          5          6
    25........  6/18-6/24................................          3          2          2          2          2          2          5          5          5
    26........  6/25-7/1.................................          2          2          3          2          2          2          5          4          5
    27........  7/2-7/8..................................          2          2          3          3          2          2          5          4          4
    28........  7/9-7/15.................................          2          2          3          3          2          2          5          4          3
    29........  7/16-7/22................................          2          2          3          3          2          2          5          5          4
    30........  7/23-7/29................................          2          2          4          4          2          2          4          4          5
    31........  7/30-8/5.................................          2          2          3          2          2          2          3          4          5
    32........  8/6-8/12.................................          2          2          2          2          2          2          4          4          4
    33........  8/13-8/19................................          2          2          2          2          2          2          3          4          4
    34........  8/20-8/26................................          2          2          3          2          2          2          3          3          4
    35........  8/27-9/2.................................          2          2          3          2          2          2          3          4          4
    36........  9/3-9/9..................................          2          2          3          2          2          2          3          4          4
    37........  9/10-9/16................................          2          2          4          2          2          2          2          4          4
    38........  9/17-9/23................................          2          2          4          2          2          2          2          4          4
    39........  9/24-9/30................................          2          2          4          2          2          2          2          4          4
    40........  10/1-10/7................................          2          2          4          2          2          2          2          3          3
    41........  10/8-10/14...............................          2          2          3          2          2          2          2          2          3
    42........  10/15-10/21..............................          2          2          2          2          2          2          2          2          3
    43........  10/22-10/28..............................          2          2          2          2          2          2          2          2          3
    44........  10/29-11/4...............................          2          2          2          2          2          2          2          2          2
    45........  11/5-11/11...............................          2          2          2          2          2          2          2          2          2
    46........  11/12-11/18..............................          2          2          2          2          2          2          2          2          2
    47........  11/19-11/25..............................          2          2          2          2          2          2          2          2          2
    48........  11/26-12/2...............................          2          2          2          2          2          2          2          2          2
    49........  12/3-12/9................................          2          2          2          2          2          2          2          2          2
    50........  12/10-12/16..............................          2          2          2          2          2          2          2          2          2
    51........  12/17-12/23..............................          2          2          2          2          2          2          2          2          2
    52........  12/24-12/31..............................          2          2          2          2          2          2          2          3          2
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
    
                                                                                                                                                            
    
    [[Page 52128]]
                                      Table 1.--Sea Turtle Indicated Take Level (ITL) for Shrimp Fishery Statistical Zones                                  
            [Zones 1-3, 6-17, 21, and 24 are not included in the table because the ITL is 2 for all weeks in these Zones. There is no Zone 22 or 23.]       
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                           Southeast Atlantic                          Zone 29    Zone 30    Zone 31    Zone 32    Zone 33    Zone 34    Zone 35    Zone 36 
    --------------------------------------------------------------------------------------------------------------------------------------------------------
       Week                          Week Period                         ITL        ITL        ITL        ITL        ITL        ITL        ITL        ITL   
    --------------------------------------------------------------------------------------------------------------------------------------------------------
     1........  1/1-1/7.............................................          2          2          2          2          2          2          2          2
     2........  1/8-1/14............................................          2          2          2          2          2          2          2          2
     3........  1/15-1/21...........................................          2          2          2          2          2          2          2          2
     4........  1/22-1/28...........................................          2          2          2          2          2          2          2          2
     5........  1/29-2/4............................................          2          2          2          2          2          2          2          2
     6........  2/5-2/11............................................          2          2          2          2          2          2          2          2
     7........  2/12-2/18...........................................          2          2          2          2          2          2          2          2
     8........  2/19-2/25...........................................          2          2          2          2          2          2          2          2
     9........  2/26-3/4............................................          2          2          2          2          2          2          2          2
    10........  3/5-3/11............................................          2          2          2          2          2          2          2          2
    11........  3/12-3/18...........................................          2          2          2          2          2          2          2          2
    12........  3/19-3/25...........................................          2          2          2          2          2          2          2          2
    13........  3/26-4/1............................................          4          2          2          2          2          2          2          2
    14........  4/2-4/8.............................................          5          3          2          2          2          2          2          2
    15........  4/9-4/15............................................          5          5          2          2          2          2          2          2
    16........  4/16-4/22...........................................          5          5          2          2          2          2          2          2
    17........  4/23-4/29...........................................          5          6          3          3          2          3          2          2
    18........  4/30-5/6............................................          5          9          5          3          3          3          2          2
    19........  5/7-5/13............................................          4         11          7          5          4          3          2          2
    20........  5/14-5/20...........................................          4         11          7          6          4          5          3          2
    21........  5/21-5/27...........................................          4         11          8          8          4          5          4          2
    22........  5/28-6/3............................................          4         11          8          8          4          5          4          2
    23........  6/4-6/10............................................          4          9          7          9          4          7          5          2
    24........  6/11-6/17...........................................          3          8          6          8          4          7          5          2
    25........  6/18-6/24...........................................          2          7          6          7          5          6          3          2
    26........  6/25-7/1............................................          2          6          6          6          6          6          2          2
    27........  7/2-7/8.............................................          2          7          5          5          7          6          2          2
    28........  7/9-7/15............................................          2          8          6          4          9          4          2          2
    29........  7/16-7/22...........................................          2          7          5          4          9          4          2          2
    30........  7/23-7/29...........................................          3          8          5          4          8          3          2          2
    31........  7/30-8/5............................................          3          9          4          3          7          2          2          2
    32........  8/6-8/12............................................          4          7          4          3          5          2          2          2
    33........  8/13-8/19...........................................          4          6          5          3          4          2          2          2
    34........  8/20-8/26...........................................          3          7          6          3          3          2          2          2
    35........  8/27-9/2............................................          3          7          5          4          3          2          2          2
    36........  9/3-9/9.............................................          2          6          5          4          3          2          2          2
    37........  9/10-9/16...........................................          2          5          5          3          4          2          2          2
    38........  9/17-9/23...........................................          2          4          3          2          3          2          2          2
    39........  9/24-9/30...........................................          2          2          2          2          3          2          2          2
    40........  10/1-10/7...........................................          2          2          2          2          2          2          2          2
    41........  10/8-10/14..........................................          2          2          2          2          2          2          2          2
    42........  10/15-10/21.........................................          2          2          2          2          2          3          4          4
    43........  10/22-10/28.........................................          2          2          2          2          2          4          5          4
    44........  10/29-11/4..........................................          3          2          2          2          2          4          7          4
    45........  11/5-11/11..........................................          3          2          2          2          2          4         11          4
    46........  11/12-11/18.........................................          3          2          2          2          2          4         11          4
    47........  11/19-11/25.........................................          2          2          2          2          2          3         10          2
    48........  11/26-12/2..........................................          2          2          2          2          2          2          9          2
    49........  12/3-12/9...........................................          2          2          2          2          2          2          6          2
    50........  12/10-12/16.........................................          2          2          2          2          2          2          2          2
    51........  12/17-12/23.........................................          2          2          2          2          2          2          2          2
    52........  12/24-12/31.........................................          2          2          2          2          2          2          2          2
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
                                                                                                                                                   ---------
    [FR Doc. 95-24608 Filed 10-4-95; 8:45 am]
    BILLING CODE 3510-22-W
    
    

Document Information

Effective Date:
10/4/1995
Published:
10/05/1995
Department:
National Oceanic and Atmospheric Administration
Entry Type:
Rule
Action:
General statement of policy; request for comments.
Document Number:
95-24608
Dates:
The revised ERP describes NMFS' policy effective October 4, 1995. Comments will be accepted through December 4, 1995.
Pages:
52121-52128 (8 pages)
Docket Numbers:
I.D. 060995B
PDF File:
95-24608.pdf
CFR: (1)
50 CFR 227