[Federal Register Volume 61, Number 245 (Thursday, December 19, 1996)]
[Rules and Regulations]
[Pages 66933-66947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32123]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 217 and 227
[Docket No.950830222-6274-03; I.D. 011696D]
RIN 0648-AH89
Sea Turtle Conservation; Revisions to Sea Turtle Conservation
Requirements; Restrictions to Shrimp Trawling Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is issuing a final rule to amend the regulations
protecting sea turtles. This final rule: Requires that turtle excluder
devices (TEDs) be installed in try nets with a headrope length greater
than 12 ft (3.6 m) and a footrope length greater than 15 ft (4.6 m),
applicable December 19, 1997; removes the approval of the Morrison,
Parrish, Andrews, and Taylor soft TEDs, applicable December 19, 1997
(if improvements or modifications can be and are made to any of these
soft TED designs so that they exclude turtles effectively, NMFS will
institute a rulemaking to continue or reinstate the approval of any
such soft TEDs as improved or modified); establishes Shrimp Fishery Sea
Turtle Conservation Areas (SFSTCAs); and, within the SFSTCAs, imposes
the new TED requirement for try nets, removes the approval of soft
TEDs, and modifies the requirements for bottom-opening hard TEDs,
effective March 1, 1997. This
[[Page 66934]]
final rule is necessary to enhance the effectiveness of the regulations
protecting sea turtles in reducing sea turtle mortality resulting from
shrimp trawling in the Atlantic and Gulf Areas in the southeastern
United States.
EFFECTIVE DATE: March 1, 1997.
ADDRESSES: Requests for a copy of the environmental assessment and
regulatory impact review (EA/RIR) and biological opinion prepared for
this final rule, or the report on TED testing 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 breeding
populations of green turtles in Florida and on the Pacific coast of
Mexico, which are listed as endangered.
The incidental take and mortality of sea turtles, as a result of
shrimp trawling activities, have been documented in the Gulf of Mexico
and along the Atlantic seaboard. Under the ESA and its implementing
regulations, taking sea turtles is prohibited, with exceptions set
forth at 50 CFR 227.72. The incidental taking of turtles during shrimp
trawling in the Gulf and Atlantic Areas is excepted from the taking
prohibition if the conservation measures specified in the sea turtle
conservation regulations (50 CFR part 227, subpart D) are employed. The
regulations require most shrimp trawlers operating in the Gulf of
Mexico and Southeast U.S. Atlantic to have a NMFS-approved TED
installed in each net rigged for fishing, year round.
In 1994, coinciding with heavy nearshore shrimp trawling activity,
unusually high numbers of dead sea turtles stranded along the coasts of
Texas, Louisiana, Georgia, and northeast Florida. As a result of these
strandings, NMFS reinitiated consultation on the shrimp fishery
pursuant to section 7 of the ESA, and concluded in its November 14,
1994, Biological Opinion (Opinion) that the long-term operation of the
shrimp fishery, resulting in mortality of Kemp's ridleys at levels
observed in 1994, was likely to jeopardize the continued existence of
the Kemp's ridley population and could prevent the recovery of the
loggerhead population. The major cause of the 1994 strandings was
determined to be the improper use of TEDs by shrimpers in the Gulf of
Mexico. Other causes identified were: (1) Certification of TEDs that
are ineffective or incompatible with net types; and (2) intensive
``pulse'' fishing in areas of high sea turtle abundance during the
spring and summer of 1994. The simultaneous occurrence of intensive
fishing effort and Kemp's ridley sea turtles may have led to the
repeated submergence of individual turtles in short time periods, which
may have contributed to the high level of mortality.
The Opinion contained a Reasonable and Prudent Alternative and
Incidental Take Statement (ITS) that required NMFS to develop and
implement a Shrimp Fishery Emergency Response Plan (ERP) to respond to
future stranding events and to ensure compliance with sea turtle
conservation measures. As a general statement of policy, the ERP
provided for elevated enforcement of TED regulations and identified
management measures to be implemented in the event of elevated
strandings or observed noncompliance with the regulations. The ERP
identified specific stranding levels at which management measures may
be implemented. A detailed discussion of the ERP was first published in
a notice of availability (60 FR 19885, April 21, 1995) and again when
it was revised (60 FR 52121, October 5, 1995) and is not repeated here.
Under existing regulatory authority and as described under the
guidance of the ERP, NMFS implemented 30-day additional gear
restrictions through temporary rulemakings four times in 1995: Twice in
the Gulf of Mexico and twice in the Atlantic. The 30-day requirements
included all, or some combination of, the following: Prohibition of the
use of soft TEDs and bottom-opening hard TEDs, prohibition of the use
of a webbing flap completely covering the escape opening on a TED, and
prohibition of the use of large try nets (over 12 ft (3.6 m) headrope
length) without a NMFS-approved hard TED installed. Details regarding
sea turtle strandings, shrimping effort, and other sources of mortality
during periods for which temporary restrictions were imposed or
considered are contained in Federal Register publications (60 FR 21741,
May 3, 1995; 60 FR 26691, May 18, 1995; 60 FR 31696, June 16, 1995; 60
FR 32121, June 20, 1995; 60 FR 42809, August 17, 1995; 60 FR 43106,
August 18, 1995; 60 FR 44780, August 29, 1995), and supporting
documents and are not repeated here.
In 1996, temporary restrictions have been implemented only once.
Due to an unprecedented number of strandings and in anticipation of
nearshore shrimping effort with the reopening of State waters to shrimp
fishing on June 24, 1996, NMFS implemented similar restrictions to
those imposed in 1995 for a 30-day period along the Georgia coast (61
FR 33377, June 27, 1996). Details regarding sea turtle strandings,
shrimping effort, and other sources of mortality are contained in the
temporary rule and are not repeated here.
On September 13, 1995 (60 FR 47544), an Advance Notice of Proposed
Rulemaking (ANPR) announced that NMFS was considering 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 those areas. At the same time, NMFS also
announced receipt of a petition for rulemaking from the Texas Shrimp
Association (TSA) to revise the current sea turtle conservation
requirements for the shrimp trawl fishery in the southeastern United
States. The petition was based on a report: ``Sea Turtle and Shrimp
Fishery Interactions--Is a New Management Strategy Needed?'' prepared
by LGL Ecological Research Associates, Inc., for TSA (LGL Report).
After extensive review of over 900 responses to the request for
comments on the ANPR and the petition for rulemaking, NMFS published a
proposed rule to amend the regulations protecting sea turtles to
enhance their effectiveness in reducing sea turtle mortality resulting
from shrimp trawling in the Atlantic and Gulf Areas in the southeastern
United States (61 FR 18102, April 24, 1996; hereinafter referred to as
the proposed rule). Proposed amendments were: Removing the approval of
all soft TEDs, effective December 31, 1996; requiring by December 31,
1996, the use of NMFS-approved hard TEDs in try nets with a headrope
length greater than 12 ft (3.6 m) or a footrope length greater than 15
ft (4.6 m); establishing SFSTCAs in the northwestern Gulf of Mexico
consisting of the offshore waters out to 10 nm (18.5 km) along the
coasts of Louisiana and Texas from the Mississippi River South Pass
(west of 89 deg.08.5' W. long.) to the U.S.-Mexican border, and in the
Atlantic consisting of the inshore waters and offshore waters out to 10
nm (18.5 km) along the coasts of Georgia and South Carolina from the
Georgia-Florida
[[Page 66935]]
border to the North Carolina-South Carolina border; and, within the
SFSTCAs, removing the approval of all soft TEDs, imposing the new TED
requirement for try nets, and prohibiting the use of bottom-opening
hard TEDs, effective 30 days after publication of the final rule.
NMFS reinitiated consultation on the November 14, 1994, Opinion
based on the proposed rule, stranding-based incidental take levels that
were exceeded, and new information, including preliminary analyses of
the sea turtle expert working group (TEWG). On June 11, 1996, NMFS
concluded that the continued, long-term operation of the shrimp fishery
in the southeastern United States under the sea turtle conservation
regulations as proposed to be amended by the proposed rule published on
April 24, 1996, establishment of a vessel registration system,
maintenance of the TED enforcement team and the TED technology transfer
program is not likely to jeopardize the continued existence of Kemp's
ridley and loggerhead sea turtles. Unlike the ITS in the November 14,
1994, Opinion that provided specific stranding levels for which NMFS
would be required to take step-wise actions, the June 11, 1996, Opinion
ITS did not make taking action contingent on specific stranding
triggers. Rather, the new ITS specified that NMFS must respond to
stranding events that reach unacceptable levels based on historical
events.
NMFS held 10 public hearings on the proposed rule throughout the
southeastern United States. In addition, NMFS reopened the comment
period to provide further opportunity to submit comments and review
additional analyses, including the preliminary report that was
submitted July 2, 1996, by the TEWG. The formation of this group of
scientists to analyze existing databases to determine sea turtle
population abundance, population trends, and sustainable take levels is
an important function in developing and implementing recovery plans as
specified under section 4(f) of the ESA and was a requirement of the
November 14, 1994, Opinion.
NMFS has conducted additional tests and investigations on trawl
gear performance and sea turtle interactions that confirm information
presented in the proposed rule. In particular, NMFS has further
examined try nets, the use of TEDs with try nets, the function of
commercial Andrews soft TEDs, and the effects of various configurations
of hard TEDs on turtle exclusion efficiency. NMFS modified the proposed
rule based on the results of these investigations (see below under
Recent Gear Testing).
On October 1, 1996, President Clinton signed H.R. 3610, ``The
Omnibus Consolidated Appropriations Act, 1997.'' The Conference Report
accompanying the Act at page 819 contains language directing NMFS ``not
to decertify any turtle excluder devices until every effort has been
made, working with industry and others, to improve or modify existing
devices to increase turtle escapement.'' Therefore, the final rule has
been further modified to not remove the approval of existing soft TEDs
until 1 year after the date of publication of this final rule. This
will allow all presently approved soft TEDs to be used outside of the
SFSTCAs for 1 year and provide time for the development and testing of
improvements or modifications to existing soft TEDs (or new soft TEDs)
in cooperation with the shrimp fishing industry. In addition, NMFS will
work with industry to seek solutions for improving the turtle exclusion
rates of soft TEDs, and will make and publish its findings prior to the
1-year removal of approval. If NMFS finds that improved or modified
soft TEDs (or new soft TEDs) can effectively exclude turtles, NMFS will
amend the regulations to approve such soft TEDs and allow their use.
Recent Gear Testing
Try Nets
In the preamble to the proposed rule, NMFS presented results of try
net capture rates of turtles during experimental trawling at Cape
Canaveral, FL, in September 1994. Those results indicated that small
try nets were much less likely to capture sea turtles than large try
nets. In March 1996, additional tests were conducted at Cape Canaveral
to examine more carefully the relationship of particular try net sizes
to turtle capture rates. In this most recent study, 100 experimental
tows were made, simultaneously pulling 3 try nets of different sizes.
The try nets used were mongoose design nets with headrope lengths of
approximately 12 ft (3.67 m), 15 ft (4.57 m), and 20 ft (6.10 m). In
100 tows of 30-minute duration, the 20-ft (6.10-m) try net captured 17
turtles, the 15-ft (4.57-m) try net captured 10 turtles, and the 12-ft
(3.67-m) try net captured 8 turtles. The turtle catch-per-unit-effort,
when adjusted for the amount of headrope, was approximately the same
for the three net sizes, and a linear relationship between increasing
try net size and increasing turtle captures appears to exist. These
testing results reconfirm that large try nets, without TEDs, will
capture more turtles than small try nets.
NMFS gear experts also investigated the practical implications of
installing hard TEDs in try nets of various sizes. As set forth at 50
CFR 227.72, single-grid hard TEDs must be of a certain minimum size,
depending on the area where they are used: In the Gulf Area, the
minimum size is 28 inches (71 cm) wide by 28 inches (71 cm) high, and
in the Atlantic Area, the minimum size is 30 inches (76 cm) wide by 30
inches (76 cm) high. Gulf and Atlantic Area minimum size hard TEDs were
successfully installed in try nets with 20-ft (6.10-m), 15-ft (4.57-m),
and 12-ft (3.67-m) headrope lengths. Even in a 10-ft (3.05-m) headrope
length try net, a Gulf minimum-size TED could be successfully
installed. While all of these installations could be readily
accomplished, the gear experts noted that installation of a hard TED in
a try net will frequently require use of a tube of webbing to size-up
the amount of webbing available in the trawl to attach to the TED
extension webbing, and that the additional piece of tubing must be an
appropriate length to ensure proper water flow in the try net.
Properly installed TEDs produced no significant operational
difficulties. The TED-equipped try nets did exhibit a slight loss of
net spread, averaging 4 percent for all tested try nets. This narrower
spread could be easily compensated by the use of a slightly larger pair
of trawl doors. Deployment and retrieval of TED-equipped try-nets were
also assessed. Due to the low frame weight of the minimum-size, hard
TEDs (a 28-inch (71-cm) single grid hard TED weighed 4.5 lb (2.05 kg)),
little additional effort was needed to retrieve the tailbag of a TED-
equipped try net. Finally, try nets with TEDs installed were tested for
efficiency at excluding turtles. Twelve immature loggerhead turtles
were released into the 3 smallest size try nets examined; all 12
turtles escaped through the TEDs.
Andrews Soft TED
In the fall of 1994, NMFS conducted underwater inspections and sea
turtle exclusion testing on commercially available Morrison soft TEDs.
That study revealed a high level of variability in soft TED
installation among commercial net suppliers. That variability included
a number of poorly installed TEDs that, despite meeting regulatory
requirements, had slack areas and pockets that entangled sea turtles.
NMFS believes that proper installation of soft TEDs is extremely
difficult and that net makers are unable to evaluate
[[Page 66936]]
their own soft TED installations without the benefit of in-water
examinations. In part, this was a reason for NMFS' proposal to remove
the approval of all soft TEDs.
The Andrews soft TED is constructed of 5-inch (12.7-cm) stretched-
mesh webbing, the smallest mesh size of any approved soft TED. Over the
years, the Andrews soft TED has been tested with a variety of larger
webbing sizes, but only the 5-inch (12.7-cm) design has been approved
TED. The Andrews soft TED also employs a ``net-within-a-net'' design,
whereas the other soft TED designs employ a panel separating the top
and bottom of the trawl. The panel design of the other soft TEDs means
that the edges of the excluder panel are attached to different parts of
the trawl and that any changes in fishing configuration, even due to
normal operations, can result in changes in the shape and therefore the
effectiveness of the soft turtle excluder panel. The mouth and the exit
opening of the Andrews TED's inner net is attached to the main trawl,
with the top, sides, and bottom of the inner net unattached. This is
referred to as a four-panel design. Also, some Andrews soft TEDs are
installed using the bottom panel of the main trawl as the bottom panel
of the inner net--a three-panel design. The shape of the inner net of
the Andrews TED was believed to be less dependent on the shape of the
main net because of the net-within-a-net design, and the smaller mesh
size of the Andrews soft TED was believed to generate more drag and,
consequently, a more consistent shape than other soft TED designs.
In June 1996, NMFS conducted in-water evaluations of commercially
available Andrews soft TEDs to determine whether the Andrews soft TED
was less susceptible than other types of soft TEDs to installation
variability with consequent slack webbing and pocketing that might
entangle turtles. Five identical style nets were purchased from
commercial industry net suppliers. Two were equipped with three-panel
Andrews TEDs, and three were equipped with four-panel Andrews TEDs.
Diver observations found that four of the five Andrews soft TEDs had
some areas of slack webbing and pockets, with varying degrees of
severity. Only one installation exhibited smooth webbing throughout.
The five Andrews soft TED installations were tested for effectiveness
at sea turtle exclusion, using the small turtle TED testing protocol
(55 FR 41092, October 9, 1990). A total of 42 turtles were introduced
into the Andrews TED-equipped nets; 21 were captured and failed to
escape during the allotted 5-minute escape time. The rate of turtle
capture in the different Andrews soft TED installations did not appear
to be strongly influenced by the quality of the installations or the
degree of slack and pocketing in the inner net. Rather, a very high
proportion of the turtles became captured when they encountered the
wing panels (the side portions) of the inner nets. For turtles that
entered the trawl to the left or right of the center of the net, 21 out
of 30 became captured when they became impinged or entangled in the
wing panels. For turtles that entered the trawl at top dead center, 12
out of 12 escaped the trawl easily, as they only encountered the top
panel of the inner net. The small turtle TED testing protocol requires
the use of a control TED, against which the performance of the
candidate TED is measured. The control TED accounts for the possibility
of variability in the testing conditions and the fitness of the turtles
which may affect the observed escape rate for a candidate TED and
serves as the standard whose performance must be equaled or exceeded
(within statistical limits governed by the sample size) by a candidate
TED. During the June 1996 test period, the control TED released 25 out
of 25 turtles, with turtles being released into the trawl at center
positions and positions left and right of center. The 50 percent
capture rate (21 out of 42 turtles) documented for the five Andrews
soft TED installations was significantly higher than for the control
TED. The performance of each Andrews soft TED installation, when taken
separately, was also statistically significantly worse than the control
TED.
The results of the Andrews soft TED testing revealed a problem with
soft TEDs that had previously not been considered, but that confirms
basic design problems with soft TEDs generally. The extremely high
capture rates for turtles that encountered the wing panels were
apparently independent of the quality of the TED installation.
Likewise, the high escape rates of turtles that traveled along the top
panel of the inner net also appeared to be independent of the quality
of the TED installation. The quality of the installation appeared to
have less impact on turtle capture than the basic design of the TED.
The wing panels in the Andrews soft TED inner net have a high angle of
incidence with the water flow through the trawl. This angle is a result
of the sharp tapering of the wing panels from the sides of the mouth of
the main trawl (which may spread up to 50 ft (15.2 m) or more) to the
exit hole in the throat of the main net. The top panel, on the other
hand, has a very low angle of incidence to water flow, as it tapers
from a height of approximately 2-4 ft (0.61-1.22 m) (up to a maximum
net mouth height of 10-11 ft (3.05-3.35 m)) down to the exit hole in
the bottom of the main net. Turtles that only encountered the top panel
of the Andrews TED's inner net slid easily along its gradual slope.
Turtles which encountered the wing panels, however, were impinged
against the webbing due to the high angle of incidence to the water
flow, and were unable to exert any effective force against the flexible
webbing of the excluder panel to remove themselves. The angle of
incidence of the wing panels to the water flow was approximately
45 deg. in these Andrews TED installations, which is the recommended
angle of incidence for single-grid hard TEDs. With hard TEDs, however,
turtles are able to push effectively against the rigid deflector bars
and avoid impingement.
Single-Grid Hard TEDs
The relative efficiency of various installations of a curved bar
single-grid hard TED (Super Shooter style) and a straight bar single-
grid hard TED (Georgia Jumper style) were evaluated through diver
observations and small turtle release testing in June 1996. The purpose
of these evaluations was to determine whether TED design and
installation variables such as grid angle and flap length are
significant factors in the exclusion of sea turtles. Previous studies
that only examined curved bar style TEDs had shown that turtles
required longer to escape from bottom-opening hard TEDs than top-
opening hard TEDs and that reducing the flap length on top-opening hard
TEDs further reduced the average turtle escape time.
The June 1996 testing generally reconfirmed the earlier results of
faster escape times for top- vs. bottom-opening hard TEDs and for TEDs
with a shortened webbing flap over the escape opening. The June 1996
testing also revealed differences in turtle exclusion effectiveness
based on the style of grid used and the grid angle. The curved bar grid
TED was more effective at excluding turtles than the straight bar grid
TED when both were installed at a 53 deg. angle to the water flow (near
the maximum 55 deg. allowed under the current regulations) and equipped
with a webbing flap (as defined at 50 CFR 227.72) over the escape
opening of 24 inches (70.0 cm--the maximum length allowed under the
current regulations). In a top-opening configuration, the curved bar
TED successfully excluded
[[Page 66937]]
25 out of 25 turtles, while the straight-bar TED excluded 8 out of 10
turtles. In a bottom-opening configuration, the curved bar TED excluded
9 out of 10 turtles, while the straight-bar TED excluded only 1 out of
8 turtles. The turtle escape time required was not significantly
different between the curved and straight bar grids in each
configuration. To further examine the factors affecting the observed
poor performance of the bottom-opening, straight bar grid TED, the TED
was reinstalled with a 43 deg. angle to the water flow. This angle
change significantly improved the turtle escape success to six out of
nine turtles, without a significant change in escape time. Next, the
straight bar TED was tested at a 43 deg. angle with the webbing flap
shortened to extend no further than the bars of the TED. The shortened
flap length improved the turtle escape success to eight out of nine
turtles and significantly reduced the average escape time required from
114.2 seconds to 44.9 seconds. The effect of a shortened webbing flap
was also examined with the bottom-opening, curved bar TED, installed at
55 deg.. Relative to the full-length flap, this modification increased
the turtle escape success to 10 out of 10 turtles, but did not
significantly change the average escape time required. A curved bar TED
was also tested at a very low installation angle of 30 deg., in a
bottom-opening configuration with a full-length flap. The very low
angle of installation did significantly reduce the average escape time
required from 86.2 to 31.4 seconds, compared to a 55 deg. installation,
but it did not change the turtle escape success, which remained at 9
out of 10 turtles. Finally, both the curved bar TED and the straight
bar TED were tested in bottom-opening configurations with the webbing
flaps shortened, the required floats removed, and the TEDs riding on
the sea floor. When riding on the bottom, the curved bar TED excluded
zero out of five turtles, whereas the straight bar TED excluded four
out of five turtles.
A complete report of the June 1996 TED testing results has been
prepared by the NMFS Southeast Fisheries Science Center. Interested
parties may request a copy (see ADDRESSES).
Comments on the Proposed Rule
NMFS received approximately 5,600 responses to the request for
comments on the proposed rule, both at the public hearings and by
letter. NMFS reviewed all comments and has grouped them for response
according to general subject matter. References are made only to some
organizations or associations and not to all of the groups or private
individuals who may have made similar comments. Many comments were
received that essentially repeated comments that had been given
regarding the ANPR and to which NMFS responded in the preamble to the
proposed rule. NMFS has reviewed its responses to those comments (61 FR
18102, April 24, 1996) based on this most recent round of comments and
new information, and reconfirms those responses except as otherwise
noted below.
Justification for the Final Rule
Comment 1: More than 5,200 comments were received that expressed
strong support for additional sea turtle protections, including the
measures contained in the proposed rule. Supporters of additional sea
turtle protections pointed to the still critically low number of
nesting Kemp's ridley sea turtles, the apparent lack of recovery of
loggerhead sea turtles, and the continued association of high sea
turtle strandings with high shrimping effort. A large number of
commenters, however, mostly from within the shrimping industry,
questioned the need for any additional protection for turtles from the
impacts of shrimp fishing. Opponents of additional protective measures
discussed the increasing number of Kemp's ridley nests and the probable
role that prior TED use has played in that increase, the high levels of
observed compliance with TED requirements in the shrimp industry, and
alleged that unacceptable costs would accrue to the shrimp industry
from the measures in the proposed rule.
Response: The report from the TEWG confirmed that the number of
Kemp's ridley nests has been increasing since 1987, and there also
appears to be an increase in the survival rates of benthic immature and
adult Kemp's ridleys after 1989, corresponding with the beginning of
widespread TED-use. The TEWG estimated the total adult female
population of Kemp's ridleys in 1995 to be 1,500 individuals,
dramatically fewer than the 40,000 females that were observed nesting
on a single day less than 50 years ago and far less than the delisting
criterion to attain a population of at least 10,000 nesting females
specified in the recovery plan. For loggerheads, the TEWG found that
the sub population, which nests from northeast Florida through North
Carolina (the South Atlantic shrimping grounds), is not recovering. The
south Florida loggerhead sub-population was found to have increased
over the past 25 years, but no significant population trends were seen
over the last 7 years. In addition, the decreasing proportion of
immature loggerheads in this sub-population may have negative future
implications for the recovery of loggerheads.
NMFS is responsible under section 7(a)(1) of the ESA to use its
authorities to conserve listed species. NMFS is also responsible for
developing and implementing recovery plans and protective regulations
under section 4 of the ESA. Thus, a series of regulatory actions and
biological opinions have recognized and attempted to address the
continued problem of high sea turtle strandings associated with shrimp
fishing (see Background). Among the identified causes of the continued
strandings have been the improper use of TEDs and the use of
inefficient TEDs by shrimp fishermen. Even with high regulatory
compliance in the shrimp industry, the use of ineffective TEDs will
undermine sea turtle protective measures, perpetuate turtle strandings
related to shrimp trawling, and create the need for intermittent,
reactive measures to manage negative shrimp trawling/sea turtle
interactions.
NMFS considered a variety of management options for reducing sea
turtle mortality in the shrimp fishery. The EA/RIR for this final rule
(see ADDRESSES) fully evaluates all the considered alternatives, and
the measures selected for this final rule were determined to have the
least adverse impact on the shrimp trawling industry, while
accomplishing the objectives of reducing shrimp fishing-related turtle
mortality.
Comment 2: Many commenters questioned the proposed rule's focus on
enhancing the effectiveness of approved TEDs and recommended that
shrimp trawling effort be reduced in addition to, or instead of, the
measures of the proposed rule. More than 5,200 proponents of the
proposed rule also stated that the proposed measures did not go far
enough to address problems of excess effort in the shrimp fishery. An
industry organization, TSA, commented that introduction of changes to
the present TED requirements was inappropriate and that measures to
reduce nearshore shrimping effort should be adopted instead.
Specifically, TSA again urged adoption of its petition for rulemaking
(LGL Report).
An additional fishing effort-reduction proposal was given by the
Georgia Fishermen's Association and multiple Georgia fishermen who
urged NMFS to adopt a nighttime closure of Federal waters off Georgia
to shrimping that would be complementary to current state closures.
Response: NMFS had previously sought public comments on the LGL
[[Page 66938]]
Report and responded to those in the proposed rule for this action (61
FR 18102, April 24, 1996; see comments 6 through 9). NMFS has further
considered the petition in light of comments received on the proposed
rule and analyzed its components as alternatives in the EA/RIR prepared
for this final rule (see ADDRESSES).
NMFS agrees that heavy nearshore shrimping effort contributes to
sea turtle mortality. Management measures that would reduce nearshore
shrimping effort likely would also reduce sea turtle strandings. If
nearshore shrimping effort results in sea turtle mortality, it is
because turtles are either being entrapped in ineffective TEDs, being
submerged for an excessive period of time in trawls with TEDs with slow
release times, or being captured in try nets that are not equipped with
TEDs. Repeated capture under any of these conditions would further
increase the likelihood of sea turtle mortality. The shrimp fishery
effort limitation plans that have been proposed to NMFS to date would
have significant catch allocation consequences and possible widespread
socio-economic ramifications. Some sectors of the fishing industry
would bear significant adverse economic impacts without a significant
improvement to the protection of sea turtles. Most of the effort-
reduction measures considered have already generated significant
controversy in the shrimp industry. NMFS will continue to evaluate the
feasibility and benefits of various means to reduce intense nearshore
shrimping effort, but does not believe that current information on
biological benefits and socio-economic impacts is sufficient to justify
implementing major effort reduction measures at this time. NMFS
believes that the modifications to the gear requirements made by this
final rule will lessen the adverse impacts from heavy nearshore
shrimping effort. Effort reduction measures should be considered after
available technological solutions are exhausted.
Soft TEDs
Some comments regarding soft TEDs were general, either supporting
or opposing their prohibition. Most commenters who made remarks on soft
TEDs, though, specifically addressed particular soft TED designs,
especially the Andrews soft TED.
Comment 3: Fishermen and shrimp industry representatives,
particularly from the southwest Florida area, objected strongly to
removing the approval of the Andrews soft TED. Some argued that the
evidence presented in the preamble to the proposed rule to support the
prohibition of soft TEDs was applicable to the Morrison and Taylor
TEDs, but not to the Andrews TED. They stated that the Andrews TED, due
to its design, could be consistently installed correctly. Other
commenters recommended that, if proper installation is critical for
Andrews soft TEDs, a limited number of net makers be allowed to
continue making Andrews TEDs if they pass a certification test that
proves their ability to consistently install the TEDs correctly.
Fishermen stated that the Andrews TED was the only type of TED that
would work in the southwest Florida fishery because of its ability to
exclude the large sponges that are encountered there. Some commenters
stated that, even if all soft TEDs are prohibited, an exemption should
be created to allow the continued use of the Andrews TED in the
southwest Florida area. Other advocates of the Andrews TED pointed to
its valuable bycatch reduction characteristics as justification for its
continued use. Some commenters discounted the Andrews TED's high shrimp
loss rates as a problem, asserting that shrimpers should be allowed to
select their own gear type regardless of its performance.
Response: NMFS conducted additional testing to evaluate the
performance of commercially available soft TEDs (see Recent Gear
Testing above). In those tests, the Andrews soft TED performed poorly
at excluding turtles. In four out of five commercially produced Andrews
soft TEDs, there were significant pockets and slack areas in the
webbing. The excessive level of turtle captures in the Andrews TEDs
appeared to be independent of the quality of the TED's installation,
however. While poor, inconsistent installation did appear to be a
problem with the Andrews soft TED, inherent problems with the use of
soft webbing were responsible for the turtle captures observed. The
turtles' inability to free themselves from flexible webbing, even when
the webbing is taut with a mesh size as small as 5-inch (12.7-cm)
stretched mesh, is illustrative of the inherent difficulties with using
webbing as an excluder panel. Certification of net makers to ensure
consistent installation of Andrews TEDs would not address that problem.
The Andrews TED has been the TED of choice in the southwest Florida
fishing grounds. The Andrews TED has a large exit opening out of the
bottom of the trawl and can exclude the large sponges encountered in
that fishing area. Bottom-opening hard TEDs are equally able to exclude
sponges and large debris. In southwest Florida, increasing numbers of
vessels are using very large bottom-opening hard TEDs with curved bars.
When the webbing flap over the escape opening is shortened or split,
these TEDs also get rid of the sponge debris that is unique to the
southwest Florida shrimping grounds. Hard TEDs also have much better
shrimp retention than the Andrews TED. Consequently, viable options do
exist to the use of the Andrews soft TED in southwest Florida.
NMFS is aware of the Andrews soft TED's excellent finfish reduction
characteristics, but the primary purpose of TEDs is the exclusion of
sea turtles incidentally captured in trawls. The most recent testing
data show that the Andrews soft TED, as presently designed, is
ineffective at excluding turtles. Bycatch reduction devices have been
designed that work in conjunction with approved hard TEDs and that
result in much lower shrimp loss than the Andrews soft TED. While NMFS
has dual charges to conserve endangered species as well as commercially
valuable marine resources, the ESA requires that Federal actions,
including fisheries management, be conducted in a manner that minimizes
impacts to endangered and threatened species and promotes their
recovery.
Comment 4: Some commenters stated that problems with soft TEDs
resulting from improper installation, unrepaired holes in nets, and
illegal webbing sizes should be addressed through enhanced enforcement
and not through elimination of this TED type.
Response: NMFS is concerned about the difficulty of inspecting soft
TEDs aboard trawlers and enforcing regulatory compliance for soft TEDs.
Holes are frequently cut in soft TEDs through normal wear and tear, and
fishermen have reported that turtles are sometimes captured when they
pass through them. The suggestion that improved enforcement efforts
could solve all of these problems has proven impracticable. The most
recent testing data, however, have shown that basic design problems may
result in more turtle captures in the Andrews soft TED than improper
installation or holes in the webbing.
Comment 5: Several commenters objected to the elimination of the
provision of the regulations which allow new soft TED designs to become
approved. Future approval of new soft TED designs should be permitted
to allow for innovations that may prove effective in excluding turtles.
Response: NMFS believes that the problems inherent in using soft
webbing material as a turtle excluder are serious and widespread. These
problems have
[[Page 66939]]
been demonstrated in the currently approved soft TEDs. NMFS recognizes,
however, that there are positive attributes of soft TEDs. These
positive attributes include their low purchase cost (although that low
cost is offset by more frequent repairs and replacements), their
collapsibility and ease of stowage, and, in the case of the Andrews
TED, excellent rates of bycatch reduction. NMFS is also mindful of a
strong desire, expressed by shrimp fishermen and the Congress, to
continue using soft TEDs.
Since the currently approved soft TEDs have been shown to be
ineffective at excluding sea turtles, improvements or modifications to
existing soft TEDs to increase sea turtle escapement must be made to
allow shrimp fishermen to continue using these existing soft TED
designs for a long term. NMFS intends to undertake intensive efforts to
identify technical solutions or modifications for soft TEDs that will
make them effective at excluding sea turtles. NMFS will seek the advice
of a panel of gear experts and industry and environmental stakeholders
to propose solutions for soft TEDs (see comment 15 below). This process
should produce multiple initiatives for further evaluation, possibly
including entirely new soft TED designs. If any of these initiatives
produce a soft TED that is demonstrated to effectively exclude turtles,
it will be approved for use without delay. If no solutions can be found
to improve the performance of soft TEDs, this final rule automatically
will remove the approval of those TEDs in 1 year. Delaying removing the
approval of soft TEDs for 1 year, allows shrimpers to continue to use
for that period the presently approved soft TEDs in all areas outside
of the SFSTCAs. This 1-year period may allow the shrimp industry to
develop innovations that will significantly improve the effectiveness
of soft TEDs in excluding turtles. It would also avoid adverse impacts
to fishermen who could continue to use their preferred gear for 1 year
and, if effective modifications to their soft TEDs are developed,
thereafter. Thirty days prior to the end of the 1-year period, NMFS
will publish a notification of the results of the soft TED improvement
initiatives and associated testing. This notification will include a
determination regarding existing soft TEDs for which no improvements or
solutions are found and for which the approval will be removed by this
rule. Improvements or modifications to existing soft TED designs which
effectively exclude sea turtles will also be identified and addressed
in that notification. NMFS intends that successful improvements and
modifications to existing soft TEDs that result in such TEDs
effectively excluding sea turtles will be incorporated in the TED
regulations through rulemaking.
Under the current process of TED approval, two scientific testing
protocols have been approved by NMFS determining whether a TED excludes
turtles at a 97 percent or greater rate. These two protocols were
published previously (52 FR 24262, June 29, 1987; and 55 FR 41092,
October 9, 1990) and are referenced in the existing regulations at 50
CFR 227.72(e)(5). As discussed above, soft TEDs have deficiencies which
are not addressed by the existing protocols. Consequently, NMFS will no
longer use strictly these protocols in testing soft TEDs. While no
generic protocol has yet been developed for testing soft TEDs, NMFS
will expeditiously test soft TEDs on a case-by-case protocol basis that
addresses the problems identified in the preamble of this rule, and
thus assures that any soft TED subsequently approved will adequately
exclude turtles (i.e. will exclude turtles at a 97 percent rate or
statistical equivalent).
NMFS is interested in possible innovations that can provide sea
turtle protection from the adverse impacts of shrimp trawling. These
innovations may include alternatives beyond simply introducing improved
soft TED designs. In fact, NMFS has solicited proposals from academic
institutions and the shrimp industry for the development of
alternatives to the use of TEDs for sea turtle protection. The
solicitation was published in the Commerce Business Daily on July 30,
1996. NMFS will be continuing this initiative to develop alternatives
to TEDs, while also working intensively to identify improvements or
modifications for soft TEDs.
Comment 6: One commenter stated that problems observed with the
Morrison soft TED are, in part, attributable to its regulatory
specifications and problems with turtle capture only occur in certain
types of straight wing flat nets and in a type of tongue trawl under
certain adjustments.
Response: This comment underscores several problems with soft TEDs
in general, not just the Morrison TED. NMFS has found that soft TEDs
that meet regulatory specifications can vary greatly due to differences
in installation techniques and the size and style of trawl nets in
which they are installed. Trawl nets are often custom-made for each
fisherman. The potential number of combinations of trawl styles and
sizes is tremendous. Specifying soft TED dimensions and installation
procedures for each combination would be impossible, as would be
testing each of these combinations for its effectiveness at excluding
turtles. The shape of each net and soft TED excluder panel can then be
further modified during shrimping operations through the addition of
floats to the headrope, changing trawl door sizes or trawl speed, or
adjusting center bridle tension. NMFS agrees that the types of trawls
mentioned by the commenter are incompatible with the Morrison TED. Many
other sizes and styles of nets are also likely to be incompatible with
the Morrison TED, but determining which ones would be a very difficult
task. Efforts to develop effective soft TEDs will likely have to
address the problems with soft TEDs highlighted by this comment.
Try Nets
Comment 7: Most comments regarding the proposed removal of the
exemption of large try nets from required TED use were specific to the
try net size criteria. Recommendations were made that TEDs should be
required in try nets ranging from 15-18 ft (4.6-5.5 m) headrope length.
These sizes were suggested because they were more in keeping with the
size of try nets traditionally used by fishermen in various areas. Many
fishermen stated that TEDs could not be installed in, or would not work
in, try nets as small as 12 ft (3.6 m) headrope length and 15 ft (4.6
m) footrope length. In addition, some fishermen stated that 12-ft (3.6-
m) try nets cannot be used to sample shrimp catches. Some fishermen
stated that, particularly when fishing for white shrimp, a large try
net is used, often with extra flotation or a tongue or bib, to sample a
large amount of the water column, and a small try net would not be an
effective replacement. Some commenters argued that TEDs should not be
required in try nets of any size because fishermen limit their tow-
times with try nets.
Response: NMFS conducted gear testing (see Gear Testing Results),
which demonstrated that hard TEDs can be installed in try nets as small
as 12 ft (3.6 m) headrope length. Use of TEDs in small try nets was
found to pose no significant operational problems.
Many commenters showed a slight misconception of the proposed
changes in the TED exemption for try nets; some objected to
prohibitions of large try nets or requiring TEDs in very small try
nets. Try nets with a headrope length of 12 ft (3.6 m) or less and a
footrope length of 15 ft (4.6 m) or less would not require a TED under
the measures of the proposed rule. NMFS expects that
[[Page 66940]]
fishermen using this size of try net will elect not to install a TED in
that size try net, even though it is technically and operationally
possible. Fishermen who can effectively use a small try net, or those
who do not wish to use a TED in a try net, will likely use try nets
with a 12-ft (3.6-m) or smaller headrope length. Contrary to the
assertions of some commenters, small try nets are effective at sampling
catch rates. In fact, the States of Mississippi and Alabama require
that try nets used in their inshore waters be no larger than 12 ft (3.6
m) and 10 ft (3.0 m) headrope length, respectively. Fishermen who
believe that a larger try net is necessary may use a try net of any
size they wish, but a TED must installed. NMFS specifically tested
large try nets equipped with tongues, which was the preferred gear
specified by some commenters for sampling white shrimp. These large try
nets worked well with TEDs.
NMFS disagrees with the rationale that the size of TED-exempt try
nets should be selected based on the size of try nets preferred by most
fishermen. The use of larger try nets without TEDs in commercial
shrimping results in captures of turtles with no possibility of escape.
These captures contribute significantly to the number of documented
turtle takes and likely contribute to continued shrimping-associated
strandings of sea turtles. While NMFS strives to minimize the number of
fishermen impacted by regulatory changes, selection of a TED-exempt try
net size that would produce no effective change in the gear used in the
commercial fleet nor its impacts on turtles would be of little value.
NMFS has determined that TED exemptions can be continued for try nets
of 12 ft (3.6 m) or less headrope length and 15 ft (4.6 m) or less
footrope length. This size will provide reasonable options for
fishermen to use gear without TEDs, while minimizing the possibility of
turtle capture. To minimize effects on the shrimping industry, NMFS is
implementing the changes to the TED-exemption for try nets through a
phase-in approach.
Bottom-opening Hard TEDs
Most commenters who provided comments specific to the proposed
measure of prohibiting the use of bottom-opening hard TEDs in the
SFSTCAs were opposed, at least in part, to this measure. Multiple
reasons were given and are responded to separately.
Comment 8: Bottom-opening hard TEDs are a necessary option for
fishing in certain conditions. Commenters at the public hearings in
Charleston, SC, and Brunswick, GA, in particular, objected to the
proposal to prohibit the use of bottom-opening hard TEDs in the
SFSTCAs. Fishermen from other areas, some environmental organizations,
and some state natural resource agencies also spoke in favor of bottom-
opening hard TEDs. Many commenters stated that bottom-opening TEDs are
required to allow the exclusion of heavy debris that occurs in certain
fishing areas. If debris cannot be excluded in top-opening hard TEDs,
they argued, the turtle escape opening may become clogged, hindering
sea turtle release and causing shrimp loss.
Response: NMFS recognizes that the ability of bottom-opening hard
TEDs to exclude debris is a desirable quality for many fishermen. Many
items like sponges, horseshoe crabs, shells, and pieces of wood can be
excluded, reducing the fisherman's catch-culling time and the potential
for damage to gear from wear and tear. This advantage of bottom-opening
TEDs may only provide enhanced turtle exclusion under limited
circumstances, as a large amount of these small debris items would have
to accumulate to obstruct a top-opening TED. Fishermen cited certain
types of large debris, such as abandoned crab traps, tree stumps, and
empty drums as posing a threat to turtles in top-opening hard TEDs. In
fact, these types of debris are more likely to obstruct the escape
opening of a bottom-opener since they will lie in the bottom of the
trawl, and it is not certain that large pieces of debris will passively
find their way through the escape opening in a bottom-opening hard TED
using an optional webbing flap of the maximum allowable length. Turtles
may still be able to go over a large piece of debris to escape through
a top-opening TED. Very large debris items that completely obstruct the
throat of the trawl net are unlikely to be excluded from a top- or a
bottom-opening hard TED and may result in turtle captures.
Comment 9: Some commenters also argued that slower escape times
from bottom-opening hard TEDs compared with top-openers are not
important contributors to turtle mortality and that NMFS testing data
showed that properly floated bottom-opening hard TEDs were effective at
releasing turtles. Some commenters criticized NMFS' methods of testing
TEDs as unrepresentative of actual commercial trawling conditions, and
thus, as unrepresentative of the actual escape times for sea turtles.
Response: NMFS agrees that its TED testing methods are not
completely representative of commercial trawling conditions. The
possibility for turtle capture in a TED under commercial trawling
conditions may be greater under some circumstances, such as the
presence of debris in the trawl and the weight of catch or mud forcing
the TED to ride on the sea floor. Under commercial trawling conditions,
turtles are captured after already being submerged for an unknown
length of time and after some are exhausted from fleeing the trawl that
overtakes them. Turtles captured under commercial trawling conditions
may have little or no visual means to find a TED's escape opening, due
to turbid water or night. These difficulties are not present during
NMFS' testing of TEDs. On the other hand, TED testing uses small
turtles, slightly larger than the minimum size turtles that strand in
the southeast United States. Adult or large juvenile turtles may be
better able to escape under some conditions due to their greater
strength. The small turtle TED testing protocol requires the use of a
control TED, against which the performance of candidate TED is
measured. The control TED accounts for the possibility of variability
in the testing conditions and the fitness of the turtles, which may
affect the observed escape rate for a candidate TED, and serves as the
standard whose performance must be equaled or exceeded (within
statistical limits governed by the sample size) by a candidate TED.
In TED testing conducted during May 1995, NMFS observed that small
turtles require almost twice as long to escape from a bottom-opening
TED vs. a top-opening TED (an average of 125.6 seconds vs. an average
of 68.8 seconds). These tests were conducted using a curved-bar style
grid TED, under ideal conditions, and the TED had a perfect turtle
exclusion record in both the top-opening and bottom-opening
configuration. The June 1996 TED trials included comparisons to examine
more closely the effects of various single-grid hard TED configurations
on TED efficiency (see Gear Testing Results). The June 1996 tests
revealed previously unknown problems with turtle capture in straight-
bar, bottom-opening TEDs installed at high angles and fitted with long
webbing flaps. Shortening the webbing flaps and lowering the angles of
straight-bar, bottom-opening TEDs reduced the turtle capture rate and
the mean TED escape time. Shortening the webbing flap on the curved-bar
bottom-opening hard TEDs also reduced the turtle capture rate. These
changes allowed the performance of the bottom-opening hard TEDs to
approach that of the control, top-opening curved-bar
[[Page 66941]]
style TED, which had a perfect turtle exclusion rate and a fast mean
TED escape time.
The June 1996 TED testing revealed that some configurations of
bottom-opening hard TEDs may have a problem with high turtle capture
rates. Obviously, turtle capture in a TED poses a greater threat to a
turtle than a longer escape time. By reducing the straight-bar, bottom-
opening TED's angle and shortening its flap, however, both the turtle
escape success and the average escape time were improved, and with the
curved-bar TEDs, shortening the webbing flap resulted in 100 percent
turtle-escape success. NMFS is still concerned that repeat captures and
forced submergences in shrimp trawls, compounded by longer release
times from TEDs, could be producing stress and blood acidosis levels
that are contributing to the mortality of sea turtles, particularly
small juveniles and sub-adults. The June 1996 TED testing showed,
however, the need to take measures that will minimize the possibility
of turtle captures in TEDs, not just reducing escape times. These
measures are justified based on turtle capture rates alone, regardless
of the physiological effects of forced submergence.
Comment 10: Comments from some fishermen and environmental
organizations distinguished between the need for bottom-opening hard
TEDs in the Atlantic and the Gulf of Mexico. These commenters stated
that the bottom types (either soft mud or sand) and the presence of
sand waves, high tides, and large amounts of debris in the Atlantic
necessitated the use of bottom-opening hard TEDs. In addition, they
pointed to the use of bottom-opening hard TEDs with bar spacings of
only 2 inches (5.1 cm) by some shrimpers in the Atlantic, and stated
that these types of TEDs were less likely to catch sea turtles. An
environmental organization stated that the average size of turtles in
the Atlantic shrimping area is larger than in the Gulf, and
restrictions on bottom-opening TEDs are therefore not necessary in the
Atlantic.
Response: NMFS disagrees. Fishermen in the Gulf of Mexico also must
contend with a variety of bottom-types, large amounts of debris in
certain areas, and high flow areas, especially near the Mississippi
River. The straight-bar grid TED that was tested by NMFS in June 1996
had a 2-inch (5.1-cm) bar spacing, and it exhibited some problems with
turtle captures before modifications were made (see Gear Testing
Results). There may be a higher proportion of small turtles,
particularly juvenile Kemp's ridleys, in the Gulf than in the Atlantic,
but juvenile ridley, loggerhead, and green turtles occur in the
Atlantic shrimping grounds. Strandings suggest that shrimping in the
Atlantic continues to impact these juvenile turtles, too.
Comment 11: Some commenters from industry and environmental groups
and state natural resource agencies suggested that, if restrictions to
bottom-opening hard TEDs are necessary, the webbing flap over the
escape opening be shortened to reduce sea turtle escape time and the
possibility of entrapping a turtle when the TED rides on the sea floor.
Some Georgia shrimpers stated that they already use bottom-opening hard
TEDs with shortened flaps to allow large debris to drop out.
Response: NMFS agrees. The June 1996 TED testing results showed
that shortening the webbing flap is necessary for bottom-opening hard
TEDs to achieve acceptable turtle capture rates and average turtle
escape times. Additionally, the testing showed that turtle escape is
still possible from a straight-bar TED with a shortened webbing flap,
even when the TED is riding on the sea floor. Although there may be
some concern among shrimpers about shrimp loss with a shortened webbing
flap, NMFS believes that allowing the continued use of bottom-opening
hard TEDs with a shortened webbing flap is responsive to the comments
and preferences of many fishermen. This measure is necessary to ensure
adequate turtle exclusion performance of bottom-opening hard TEDs. The
current use of shortened webbing flaps in the industry indicates that
shrimp-loss problems are not a major concern, at least in comparison
with the desirability of excluding debris.
Comment 12: Some commenters stated that the required use of top-
opening hard TEDs in the Atlantic SFSTCA would result in extensive
damage to gear because top-opening, hard TEDs will become buried and
cause the tailbag of the net to be torn off.
Response: Reports of gear damage related to top-opening, hard TEDs
have come mostly from shrimpers in the Atlantic. In some Atlantic
shrimping areas, fishermen operate in very small areas and must turn
their vessels tightly and frequently to work a given area. NMFS
investigated the possibility that this fishing method may contribute to
the reported problems. When a trawler conducts a very sharp turn, the
trawls may come to a complete stop. Divers observed that top-opening
TEDs, when not equipped with flotation, settled to touch the bottom
when the trawl stopped. In a soft mud bottom, the TED may sink into the
mud. When the trawl again takes the strain of the tow cable, there may
be considerable drag and possible gear damage if the TED has become
buried in sediments. The divers also observed that top-opening hard
TEDs, when equipped with optional flotation, stayed well clear of the
sea floor when the trawl stopped. NMFS recommends that fishermen using
top-opening hard TEDs use flotation to minimize the possibility of
damage to the TEDs and nets from contact with the sea floor.
Establishment of SFSTCAs
Comment 13: Numerous comments were received regarding the
geographical constructs and the need for the proposed SFSTCAS, or the
alternative areas recommended in the LGL Report. These concerns, such
as the need for including inshore waters of the Gulf of Mexico, or
excluding Louisiana due to the lack of strandings, were addressed in
the proposed rule and are not repeated here (61 FR 18102, April 24,
1996, see comments 10 and 11). However, one commenter suggested that
the Gulf SFSTCA should include waters out to 7 fathoms (9 m) to be
consistent with Texas state regulations which prohibit nighttime
shrimping out to 7 fathoms (9 m).
Response: NMFS established the 10-nm (18.5 km) distance from shore
to encompass important nearshore habitat for benthic immature and
subadult sea turtles, particularly Kemp's ridleys. A standard distance
from shore in the SFSTCAs also allows for consistency of application
across state jurisdiction. Further, NMFS believes that a distance-from-
shore criterion is more easily enforced, since depth topography varies
by location.
Comment 14: Several commenters were concerned that some areas of
high importance of sea turtles may have been inappropriately excluded
from the SFSTCAs. They urged NMFS to increase enforcement efforts,
shrimp trawler observers, and stranding coverage in areas adjacent to
the SFSTCAs to determine whether enhanced sea turtle protections are
also necessary outside of the SFSTCAs.
Response: The proposed SFSTCAs were based on the importance of the
areas for sea turtles in conjunction with the likelihood of negative
interactions with heavy shrimp trawling activity. NMFS agrees that
information from enforcement, observers, and strandings is useful for
determining the potential level of turtle-shrimping interactions. NMFS
considered all of these factors in determining the proposed SFSTCAs and
does not anticipate that collection of
[[Page 66942]]
further information would change these decisions. Nonetheless, NMFS
intends to maintain high enforcement efforts to improve the stranding
monitoring network and to place observers aboard shrimp vessels, so
that the incidental take of turtles in the shrimp fishery can be
monitored. These actions have been requirements of the June 11, 1996,
Opinion, and all subsequent Biological Opinions considering the shrimp
fishery. These efforts will be directed both at the SFSTCAs and areas
outside of the SFSTCAs.
Shrimp Industry Panel
Comment 15: Although not a proposed regulatory measure, NMFS
solicited comments on the establishment of a shrimp industry panel and
specifically on methods to identify and select shrimp industry
representatives to serve on the panel that would fairly reflect the
interests of the diverse sections of the shrimp trawling fleets.
Comments generally supported the establishment of a shrimp industry
panel. However, some commenters were concerned that such a panel would
be too narrowly focused, and that all stakeholders interested in
conserving sea turtle populations should be included.
Response: NMFS originally foresaw several roles for a shrimp
industry panel, including review of information and recommendations
regarding TED technical matters. The challenge of addressing ways to
improve soft TEDs to increase turtle escapement has created a
heightened need to address that issue specifically. NMFS intends to
move quickly to establish a panel that would focus its efforts on
improving or modifying soft TEDs. The panel's primary purposes would be
to review existing information on soft TED performance, to provide
recommendations and supply new information on possible solutions to
identified problems, to examine testing results associated with new
soft TED initiatives, and to communicate all relevant developments to
the wider community of stakeholders with which individual panel members
are associated.
NMFS agrees with the commenters who felt that a broader
constituency than just shrimp industry representatives should be
included. To ensure the transparency, and the ultimate acceptance and
success, of the intensive efforts to develop effective soft TEDs,
representatives from the sea turtle conservation community should also
be involved. Active participation from the shrimp industry, though,
will likely be critical to produce the technical ideas and solutions
that are necessary to improve soft TEDs. Gear experts, shrimp industry
leaders, and environmental community members will be contacted and
asked to participate in the panel. Panel members should have extensive
contacts to their respective communities to facilitate the passage of
information to all the stakeholders and to attract the greatest number
of new ideas and potential solutions for consideration.
A panel focussed entirely on soft TEDs is a narrower application
than originally discussed in the proposed rule. No final decisions
regarding the formation or implementation of a broader advisory panel
are being made at this time, although the soft TED panel will likely
provide valuable experience in the functioning of such a panel. Thus,
NMFS will reserve response and consider all comments prior to any
further actions on a broader shrimp industry advisory panel.
Changes to TED Requirements
Comment 16: Numerous commenters from the shrimp industry objected
to any changes to the present TED requirements whatsoever, irrespective
of the specific measures of the proposed rule. They criticized NMFS for
making frequent changes to the existing requirements. They stated that
the changes antagonized fishermen and made them suspicious of the
agency's intentions and the quality of data used in management
decisions.
Response: NMFS strives to avoid adverse effects on fishermen
resulting from changes in regulations. NMFS also agrees that frequent
changes to regulations are confusing and should be avoided. The last
change to the general gear requirements was over 2 years ago, when
fishermen using bottom-opening hard TEDs were required to attach
flotation to the TEDs (59 FR 33447, June 29, 1994). Subsequently,
temporary restrictions have been necessary in response to continued sea
turtle mortality in areas of high shrimping effort (see Background).
The commenters' objections to rule changes may, in part, result from
frustration with the short notice provided and short duration of those
temporary restrictions. NMFS believes that such temporary restrictions
are better replaced by permanent measures that provide greater
protection for sea turtles and greater certainty for fishermen. In the
case of the present rulemaking, NMFS has attempted to inform and
involve affected fishermen through extensive opportunities for public
comment, informational meetings, and multiple public hearings and to
improve the measures needed to protect sea turtles while minimizing the
adverse impacts on shrimp fishermen. NMFS believes that the measures of
this final rule will have a minimal impact on fishermen. Furthermore,
delayed effective dates are being applied to the provisions in some
areas to allow fishermen additional time to adapt to new requirements
and to purchase any new gear as part of their regular maintenance and
repair cycle and to allow additional time to develop effective soft
TEDs.
NMFS will continue its efforts to minimize the effects on fishermen
as it fulfills its requirements to protect and recover endangered and
threatened sea turtles. To the extent possible, NMFS will avoid
frequent or repeated changes to the TED requirements. TED technology,
however, is constantly evolving. Fishermen frequently report problems
with TEDs or offer suggestions to improve the function of TEDs, and new
information has arisen on the interaction between sea turtles and
shrimp trawling. NMFS is constantly evaluating these problems, ideas,
and new information. If changes to the TED requirements become
necessary to improve the function of TEDs either for fishermen or to
ensure adequate turtle exclusion rates, NMFS will implement those
changes.
At the present time, NMFS does foresee the possibility of
additional changes to TED requirements. Information from observers and
fishermen has identified an installation problem in which weedless-
style hard TEDs are sometimes backwards to the mouth of the trawl.
Testing with small turtles has shown that TEDs with this installation
problem do indeed entrap turtles. In addition, the turtle exclusion
problems with some configurations of bottom-opening hard TEDs that were
identified in the June 1996 testing may also need to be addressed in
areas outside the SFSTCAs. NMFS anticipates that additional information
will be developed and a proposed rule may be published addressing these
two issues. Additionally, the development of improvements or
modifications to soft TEDs that effectively exclude turtles will
require amendments to the regulations to implement the changes.
Changes from the Proposed Rule to the Final Rule
Reduce the Size of Try Nets that are Exempt from TED Use
The reduction in the size of try nets that are exempt from required
TED use remains unchanged from the proposed rule. Specifically, only
try nets with a headrope length not greater than 12 ft (3.6 m) and a
footrope length not greater
[[Page 66943]]
than 15 ft (4.6 m) are exempt from the TED requirement. However, the
effective date outside of the SFSTCAs has been extended from December
31, 1996, to December 19, 1997. NMFS believes that the longer phase-in
period will provide opportunity for NMFS to provide technology outreach
to shrimpers to ensure that adoption of TEDs in larger try nets is
accepted more readily in those areas where shrimpers have not
previously operated under this requirement.
Eliminate Existing Soft TEDs as Approved TEDs and Eliminate the
Provision of the Regulations Allowing Soft TEDs to be Approved
The proposed rule called for a phase-out of the use of soft TEDs by
December 31, 1996, and more immediately, a prohibition of their use in
the proposed SFSTCAs. The final rule removes the approval of the
Morrison TED, Parrish TED, Andrews TED, and Taylor TED, applicable
December 19, 1997, except in the SFSTCAs where the use of all soft TEDs
is prohibited, effective March 1, 1997. The removing of approval period
for soft TEDs outside the SFSTCAs has been extended well beyond the
proposed date of December 31, 1996, and will provide time for NMFS, in
cooperation with gear experts, the shrimp industry, and the
environmental community, to undertake initiatives to develop effective
soft TEDs. Fishermen will also have greater opportunity to replace
their existing gear and adapt to the use of hard grid TEDs. The final
rule also addresses the need to provide immediate measures to reduce
mortality in areas where they are most needed. The delayed effective
date for the prohibitions on soft TEDs outside the SFSTCAs until 1 year
after the publication of the final rule is also consistent with
Congressional directives in the FY97 Appropriations Bill and will allow
further testing and development of modified and improved soft TEDs in
cooperation with the shrimp fishing industry prior to any prohibition
of soft TED use.
The proposed rule would also have eliminated the authority to test
and approve new soft TED designs starting in 1997. In response to
comments received, this final rule maintains the authority to test and
approve new soft TED designs.
Enhancing TED Effectiveness in the SFSTCAs
The prohibition on the use of soft TEDs and the reduction in the
size of try nets that are exempt from TED requirements remain unchanged
within the SFSTCAs. However, the proposed prohibition on bottom-opening
hard grid TEDs is not implemented. Instead, two modifications to
bottom-opening hard grid TED requirements are made: If the optional
webbing flaps are installed, the flap must not extend beyond the
posterior edge of the TED; and the angle of the deflector bars at the
bottom of the TED must not exceed 45 deg., effective March 1, 1997.
Further testing of single-grid hard TEDs has shown that these
modifications provided adequate sea turtle exclusion and significantly
reduced the average escape time of sea turtles (see Recent Gear Testing
section).
In summary, these modifications to the bottom-opening hard TED
requirements allow such TEDs to approach the level of protection to sea
turtles as that attributed to top-opening hard grid TEDs, which have
excellent turtle exclusion rates and fast mean TED escape times.
Provisions of the Final Rule
Based on the review of comments received during the public hearings
and the comment period, new information provided in the TEWG Report,
and further testing of gear types in the proposed measures (see Recent
Gear Testing section), the final rule:
1. Exempts from the TED use requirements try nets with a headrope
length 12 ft (3.6 m) or less and a footrope length 15 ft (4.6 m) or
less, applicable December 19, 1997.
2. Removes the approval of the Morrison, Parrish, Andrews, and
Taylor soft TEDs, applicable December 19, 1997.
3. Removes the applicability of the two existing TED testing
protocols to soft TED testing, but continues the authority to test and
approve new TEDs.
4. Establishes SFSTCAs in the northwestern Gulf of Mexico
consisting of the offshore waters out to 10 nm (18.5 km) along the
coasts of Louisiana and Texas from the Mississippi River South Pass
(west of 89 deg.08.5' W. long.) to the U.S.-Mexican border, and in the
Atlantic consisting of the inshore waters and offshore waters out to 10
nm (18.5 km) along the coasts of Georgia and South Carolina from the
Georgia-Florida border to the North Carolina-South Carolina border.
5. Prohibits, within the SFSTCAs, the use of bottom-opening hard
TEDs with a webbing flap that extends beyond the posterior edge of the
TED or with an angle of the deflector bars greater than 45 deg.,
measured along the bottom-most 4 inches (10.2 cm) of each bar or, for
TEDs in which the deflector bars are not attached to the bottom frame,
along the imaginary lines through the bottom frame and the bottom end
of each deflector bar, effective March 1, 1997.
6. Prohibits, within SFSTCAs, the use of soft TEDs, effective March
1, 1997.
7. For vessels fishing within the SFSTCAs, exempts from TED use
requirements try nets with a headrope length not greater than 12 ft
(3.6 m) and a footrope length not greater than 15 ft (4.6 m), effective
March 1, 1997.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant Administrator for Fisheries, NOAA, prepared an EA/RIR
for this proposed rule and copies are available (see ADDRESSES).
When this rule was prepared, the Assistant General Counsel for
Legislation and Regulation of the Department of Commerce certified to
the Chief Counsel for Advocacy of the Small Business Administration as
follows:
I certify that the attached proposed rule will not have a
significant economic impact on a substantial number of small
entities because the provisions of the proposed rule would impose
only a minor economic burden on shrimp fishermen. The removal of
soft TEDs from the list of approved TEDs is delayed until December
31, 1996. Since soft TEDs have a life-span of only about 1 year,
shrimp fishermen using soft TEDs will not bear any additional costs,
beyond normal gear replacement costs. The reduction in allowable
sized of try nets that are exempt from TED requirements is also
delayed until December 31, 1996. Fishermen using larger try nets
will have ample time to come into compliance with this change. For
many, normal gear replacement cycles will mean that no additional
financial burden is assumed.
The cost of purchasing a 12-foot try net is approximately $100,
or the cost of purchasing a hard TED is approximately $200. Existing
large try nets may also be modified to reduce their size by the
fisherman. The implementation of gear requirement changes in the
SFSTCAs is proposed to occur on a more rapid schedule than the
requirements outside the SFSTCA because of the more critical need to
protect sea turtles and manage shrimp trawl-sea turtle interactions
in those areas. The impact of this faster schedule on small
businesses is expected to be small, though. The proposed SFSTCAs in
the Gulf area was either included in the March 14, 1995, Shrimp
Fishery Emergency Response Plan's (ERP) interim special management
areas in 1995 as potentially subject to gear restrictions or were
actually included in gear restrictions implemented during 1995 in
response to sea turtle mortality emergencies. Other than inshore
waters, the Atlantic area proposed SFSTCA also was subject to gear
restrictions in 1995. Shrimp trawlers subject to any gear
restrictions in 1995 will already have been required to purchase
hard TEDs and reduce
[[Page 66944]]
the size of their try nets or install hard TEDs in their try nets.
No additional burden will be imposed on those fishermen to acquire
new gear. In the Gulf SFSTCA, Zones 13-16 were not subject to gear
restrictions, but fishermen in that area were notified of potential
additional gear requirements as specified in the ERP. Nearshore
fishermen in those zones, however, reportedly were already using
primarily hard TEDs, and therefore the prohibition of soft TED use
should affect only a small number of fishermen. Bottom-opening hard
TEDs can be converted to top-opening in approximately one hour with
an estimated cost of approximately $20 of labor per net.
Accordingly, under section 603(b) of the Regulatory Flexibility
Act, an initial Regulatory Flexibility Analysis was not prepared.
List of Subjects
50 CFR Part 217
Endangered and threatened species, Exports, Fish, Imports, Marine
mammals, Reporting and recordkeeping requirements, Transportation.
50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: December 13, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR parts 217 and 227
are amended as follows:
PART 217--GENERAL PROVISIONS
1. The authority citation for part 217 continues to read as
follows:
Authority: 16 U.S.C. 1531-1544; and 16 U.S.C. 742a et seq.,
unless otherwise noted.
2. In Sec. 217.12, the definitions for ``Atlantic Shrimp Fishery-
Sea Turtle Conservation Area'' and ``Gulf Shrimp Fishery-Sea Turtle
Conservation Area'' are added, in alphabetical order, to read as
follows:
Sec. 217.12 Definitions.
* * * * *
Atlantic Shrimp Fishery-Sea Turtle Conservation Area (Atlantic
SFSTCA) means the inshore and offshore waters extending to 10 nautical
miles (18.5 km) offshore along the coast of the States of Georgia and
South Carolina from the Georgia-Florida border (defined as the line
along 30 deg.42'45.6'' N. lat.) to the North Carolina-South Carolina
border (defined as the line extending in a direction of 135 deg.34'55''
from true north from the North Carolina-South Carolina land boundary,
as marked by the border station on Bird Island at 33 deg. 51'07.9'' N.
lat., 078 deg.32'32.6'' W. long.).
* * * * *
Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA)
means the offshore waters extending to 10 nautical miles (18.5 km)
offshore along the coast of the States of Texas and Louisiana from the
South Pass of the Mississippi River (west of 89 deg.32'32.6''08.5' W.
long.) to the U.S.-Mexican border.
* * * * *
PART 227--THREATENED FISH AND WILDLIFE
3. The authority citation for part 227 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.
4. In Sec. 227.72, paragraphs (e)(2)(ii)(B)(1), (e)(4)(i)(C),
(e)(4)(iii) introductory text, (e)(4)(iv)(C), and (e)(5)(i) are revised
to read as follows:
Sec. 227.72 Exceptions to prohibitions.
* * * * *
(e) * * *
(2) * * *
(ii) * * *
(B) * * *
(1) (i) For any shrimp trawler fishing in the Gulf SFSTCA or the
Atlantic SFSTCA, a single test net (try net) with a headrope length of
12 ft (3.6 m) or less and with a footrope length of 15 ft (4.6 m) or
less, if it is either pulled immediately in front of another net or is
not connected to another net in any way, if no more than one test net
is used at a time, and if it is not towed as a primary net.
(ii) Prior to December 19, 1997, in areas other than the Gulf
SFSTCA or the Atlantic SFSTCA, a single test net (try net) with a
headrope length of 20 ft (6.1 m) or less, if it is either pulled
immediately in front of another net or is not connected to another net
in any way, if no more than one test net is used at a time, and if it
is not towed as a primary net.
(iii) Applicable after December 19, 1997, a single test net (try
net) with a headrope length of 12 ft (3.6 m) or less and with a
footrope length of 15 ft (4.6 m) or less, if it is either pulled
immediately in front of another net or is not connected to another net
in any way, if no more than one test net is used at a time, and if it
is not towed as a primary net.
* * * * *
(4) * * *
(i) * * *
(C) Angle of deflector bars. (1) Except as provided in paragraph
(e)(4)(i)(C)(2) of this section, the angle of the deflector bars must
be between 30 deg. and 55 deg. from the normal, horizontal flow through
the interior of the trawl.
(2) For any shrimp trawler fishing in the Gulf SFSTCA or the
Atlantic SFSTCA, a hard TED with the position of the escape opening at
the bottom of the net when the net is in its deployed position, the
angle of the deflector bars from the normal, horizontal flow through
the interior of the trawl, at any point, must not exceed 55 deg., and:
(i) If the deflector bars that run from top to bottom are attached
to the bottom frame of the TED, the angle of the bottom-most 4 inches
(10.2 cm) of each deflector bar, measured along the bars, must not
exceed 45 deg. (Figures 14a and 14b);
(ii) If the deflector bars that run from top to bottom are not
attached to the bottom frame of the TED, the angle of the imaginary
lines connecting the bottom frame of the TED to the bottom end of each
deflector bar which runs from top to bottom must not exceed 45 deg.
(Figure 15).
* * * * *
(iii) Soft TEDs. Soft TEDs are TEDs with deflector panels made from
polypropylene or polyethylene netting. For any shrimp trawler fishing
in the Gulf SFSTCA and the Atlantic SFSTCA, soft TEDs are not approved
TEDs. Prior to December 19, 1997, in areas other than the Gulf SFSTCA
and Atlantic SFSTCA, the following soft TEDs are approved TEDs:
* * * * *
(iv) * * *
(C) Webbing flap. A webbing flap may be used to cover the escape
opening if: No device holds it closed or otherwise restricts the
opening; it is constructed of webbing with a stretched mesh size no
larger than 1 5/8 inches (4.1 cm); it lies on the outside of the trawl;
it is attached along its entire forward edge forward of the escape
opening; it is not attached on the sides beyond the row of meshes that
lies 6 inches (15.2 cm) behind the posterior edge of the grid; and it
does not extend more than 24 inches (61.0 cm) beyond the posterior edge
of the grid, except for trawlers fishing in the Gulf SFSTCA or Atlantic
SFSTCA with a hard TED with the position of the escape opening at the
bottom of the net when the net is in its deployed position, in which
case the webbing flap must not extend beyond the posterior edge of the
grid.
* * * * *
(5)(i) Revision of generic design criteria, and approval of TEDs,
of allowable modifications of hard TEDs, and of special hard TEDs. The
Assistant
[[Page 66945]]
Administrator may revise the generic design criteria for hard TEDs set
forth in paragraph (e)(4)(i) of this section, may approve special hard
TEDs in addition to those listed in paragraph (e)(4)(ii) of this
section, may approve allowable modifications to hard TEDs in addition
to those authorized in paragraph (e)(4)(iv) of this section, or may
approve other TEDs, by regulatory amendment, if, according to a NMFS-
approved scientific protocol, the TED demonstrates a sea turtle
exclusion rate of 97 percent or greater (or an equivalent exclusion
rate). Two such protocols have been published by NMFS (52 FR 24262,
June 29, 1987; and 55 FR 41092, October 9, 1990) and will be used only
for testing relating to hard TED designs. Testing under any protocol
must be conducted under the supervision of the Assistant Administrator,
and shall be subject to all such conditions and restrictions as the
Assistant Administrator deems appropriate. Any person wishing to
participate in such testing should contact the Director, Southeast
Fisheries Science Center, NMFS.
* * * * *
5. Figures 14a, 14b, and 15 to part 227 are added to read as
follows:
[[Page 66946]]
[GRAPHIC] [TIFF OMITTED] TR19DE96.002
[[Page 66947]]
[GRAPHIC] [TIFF OMITTED] TR19DE96.003
[FR Doc. 96-32123 Filed 12-13-96; 5:07 pm]
BILLING CODE 3510-22-F
