[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Proposed Rules]
[Pages 18102-18116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10087]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 217 and 227
[Docket No. 950830222-6103-02; I.D. 011696D]
RIN 0648-AH89
Sea Turtle Conservation; Revisions to Sea Turtle Conservation
Requirements; Restrictions to Shrimp Trawling Activities; Hearings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; hearings; request for comments.
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SUMMARY: NMFS proposes 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. Proposed amendments to strengthen the sea
turtle conservation measures are: Removal of the approval of the use of
all soft turtle excluder devices (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 Shrimp Fishery
Sea Turtle Conservation Areas (SFSTCAs) in the northwestern Gulf of
Mexico consisting of the offshore waters out to 10 nautical miles
(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; and, within the SFSTCAs, removing the
approval of all soft TEDs, imposing the new try net restrictions, and
prohibiting the use of bottom-opening hard TEDs, effective 30 days
after publication of the final rule.
DATES: Comments on this proposed rule must be submitted on or before
June 10, 1996.
ADDRESSES: Comments on this proposed rule and requests for a copy of
the environmental assessment (EA) prepared for this proposed rule
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
Therese A. Conant, 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 kempi), 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.
1994-95 Events
Beginning in April 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.
The strandings continued through May and occurred in highest numbers
where shrimping activity was heaviest. Texas waters were closed to
shrimping from May 13 through July 7, 1994. During that time, Texas
strandings decreased, but again increased when Texas waters reopened.
In response, NMFS increased enforcement efforts and technical
assistance. Subsequently, strandings again decreased. Finally, when
NMFS resumed normal enforcement efforts, high numbers of dead turtles
again stranded on northern Texas beaches. As
[[Page 18103]]
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 apparent 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 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 in two areas: The Atlantic
Interim Special Management Area, which included shrimp fishery
statistical Zones 30 and 31 (northeast Florida and Georgia); and the
Northern Gulf Interim Special Management Area, which included
statistical Zones 13 through 20 (Louisiana and Texas from the
Mississippi River to North Padre Island). The ERP also identified
stranding levels comprising the incidental take level required with the
Opinion, and identified management measures to be implemented in the
event of elevated strandings or observed noncompliance with the
regulations. 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.
With the onset of nearshore shrimping in Texas in April 1995 and in
Georgia in June 1995, sea turtle strandings again climbed to high
levels. Temporary requirements to reduce sea turtle mortality 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),
and on the Georgia coast on June 21, 1995 (60 FR 32121, June 20, 1995).
The 30-day requirements included the prohibition 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
large try nets (over 12 ft (3.6 m) headrope length) without a NMFS-
approved TED installed. Compliance with the regulatory requirements was
observed to be high, and turtle strandings decreased after restrictions
were implemented in both the Gulf and Atlantic. A detailed discussion
of those restrictions, and reasons therefor, is provided in the
preamble to those rules and is not repeated here.
Every year, offshore waters along Texas boundaries are closed to
shrimp fishing out to 200 nm (370.6 km) for 6 to 8 weeks in the late
spring and early summer. The Texas closure is coordinated each year by
State and Federal fishery managers to allow shrimp to grow to more
valuable sizes and increase profits in the fishery. The exact dates of
the closing and reopening is set by the State of Texas, which monitors
shrimp sizes and distributions to determine the optimum time to open
the fishery. Generally, the closure begins around May 15 and ends
around July 7. In 1995, the waters off Texas were closed to shrimp
fishing from May 15 to July 15. The closure period is usually marked by
low levels of sea turtle strandings, and is followed by very large
increases in strandings when waters reopen to shrimping, with many
shrimpers from Texas and other states participating. For example,
during the period between 1990-94, stranding data suggest an 8-1/2 fold
increase in sea turtle strandings in Texas between the reopening of the
waters off Texas to shrimping and the period of the closure. A detailed
discussion of the strandings and events is provided in the preamble of
a proposed rule to temporarily implement additional restrictions on
shrimp trawlers (60 FR 31696, June 16, 1995) and is not repeated here.
Although a repeat of the 1994 stranding levels had been possible,
NMFS did not take restrictive actions before Texas waters reopened in
1995 to attempt to reduce strandings, because of several factors: (1)
NMFS gear experts observed that the deployment of high-quality,
properly installed TEDs in the Texas shrimp trawl fleet was greatly
improved over 1994; (2) enforcement reports and contacts with shrimp
industry participants indicated that a large proportion of shrimpers
would voluntarily use NMFS's preferred gear for turtle escapement (top-
opening hard TEDs); and (3) the 1995 reopening did not occur until July
15, the latest date in recent years. Pre-opening surveys conducted by
Texas indicated that shrimp off Texas were abundant but widely
distributed and shrimp trawl effort would, therefore, not likely be
concentrated in small areas. Thus, the proposed rule was withdrawn (60
FR 43106, August 18, 1995).
The 1995 Texas opening produced the expected heavy level of
shrimping effort but significantly fewer strandings than were
documented in the week following the opening in 1994: 18 strandings
were reported in 1995 compared with 49 in 1994. However, in those areas
where strandings were high, law enforcement information revealed
differing levels of cooperation with NMFS' request to use top-opening
hard TEDs. The United States Coast Guard (USCG) District Eight Office
of Law Enforcement summarized boarding information for NMFS and
reported that soft TED use was much more common in those NMFS shrimp
fishery statistical zones where strandings were highest. In Zones 19
and 20, soft TEDs were seen on 20 and 34.3 percent, respectively, of
the shrimp trawlers boarded, while in Zones 17, 18, and 21, soft TEDs
were in use on only 0.0, 1.6, and 9.7 percent, respectively, of the
trawlers boarded. Aerial surveys of shrimping effort following the
Texas opening conducted by LGL Ecological Research Associates showed
that shrimping effort in close proximity to the beach, i.e., within 1
mile (1.6 km), was highest in Zones 19 and 20, where strandings were
also highest. The low nearshore effort in Zones 18 and 21, along with
the insignificant use of soft TEDs (as mentioned previously), was
likely a contributor to the low turtle strandings in those zones upon
reopening.
Temporary requirements were imposed in coastal waters along Georgia
and the southern portion of South Carolina on August 11, 1995 (60 FR
42809, August 17, 1995). In the temporary requirements, NMFS allowed
the use of bottom-opening hard grid TEDs while prohibiting the use of
soft TEDs and larger try nets without hard TEDs due to comments
received objecting to the imposition of multiple gear restrictions in
previous actions. The commenters stated that the relative contribution
of soft TEDs and bottom-opening hard TEDs to sea turtle strandings
could not be distinguished and that use of bottom-opening hard TEDs
should be allowed to determine their effectiveness.
In an unrelated action, a Federal District Court imposed temporary
requirements upon shrimpers in a
[[Page 18104]]
portion of the Gulf as a result of a motion for temporary injunctive
relief filed by plaintiffs in Center for Marine Conservation v. Brown,
No. G-94-660 (S.D. Tx, Aug. 1, 1995). NMFS published a rule (60 FR
44780, August 24, 1995) that mirrored these restrictions, imposed along
the entire Texas coast and the western portion of Louisiana effective
on August 3, 1995. A description of the ruling, restrictions, and
reasons therefor, is provided in the preamble to the rule and is not
repeated here. However, the restrictions imposed in both the Gulf and
Atlantic areas were similar in that soft TEDs were prohibited while
bottom-opening hard grid TEDs were allowed.
Strandings in Texas and South Carolina were generally low while the
rules prohibiting soft TEDs were in effect. In Georgia, however,
strandings were elevated, with 27 sea turtles stranding on Georgia
offshore beaches over the 4-week period from August 13, 1995 to
September 9, 1995. This difference in effectiveness of the two rules in
the two areas may be attributable to the preference of Texas shrimpers
for top-opening TEDs, whereas Georgia shrimpers generally prefer
bottom-opening hard TEDs.
Advance Notice of Proposed Rulemaking and the Texas Shrimp
Association Petition for Rulemaking
On September 13, 1995 (60 FR 47544), NMFS published an Advance
Notice of Proposed Rulemaking (ANPR), which announced that it was
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
those areas. The ANPR was in response to the need for such measures
identified in NMFS' biological opinions on shrimp trawling, as well as
the 1995 stranding and regulatory events and additional information
regarding the need to more effectively protect sea turtles from
incidental capture and mortality in the shrimp trawl fishery. 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). NMFS solicited public comment on the LGL Report and
information on sea turtles and shrimp trawling and the need for
identification of certain areas in the southeastern United States that
require special management measures, and what those measures should be.
Comments on the ANPR and the TSA Petition for Rulemaking
NMFS received over 900 responses to the request for comments on the
ANPR and the petition for rulemaking based on the LGL Report (60 FR
47544, September 13, 1995). NMFS has reviewed all comments received.
Comments are grouped according to general subject matter, and
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.
Soft TEDs
Comment 1: Shrimp industry associations, environmental
organizations and a state agency support prohibiting the use of soft
TEDs. These commenters cite problems with soft TED efficiency in
excluding turtles and the inability to enforce proper installation and
use of soft TEDs. However, many industry representatives supported the
LGL Report, which does not specify prohibiting soft TEDs. Several other
industry groups stated that, since soft TEDs are certified to exclude
97 percent of the turtles encountered and TED compliance has approached
100 percent, soft TEDs should be allowed and that shrimpers should be
educated on correct installation to improve soft TED effectiveness.
Response: NMFS agrees that documented TED compliance has generally
been excellent. NMFS also recognizes that some soft TEDs have performed
well in certification trials and are currently approved for use.
However, even though soft TEDs must be constructed exactly to the
specifications in the regulations, soft TEDs are more difficult than
hard TEDs to construct and install properly to achieve proper turtle
exclusion. Soft TEDs are frequently installed incorrectly and are
installed in certain types of trawl nets that can cause the soft TEDs
to pocket or bag and, thus, entangle sea turtles. Consequently, soft
TEDs that may release turtles under controlled, pristine conditions,
such as the certification trials, might not release turtles in actual
open-water use. Hard TEDs by comparison are less subject to
variability, and therefore are more consistent in their effectiveness
at turtle exclusion. For further detail see the discussion below, under
the heading ``Eliminate Soft TEDs as Approved TEDs.''
Recent stranding data also indicate that soft TEDs are entangling
sea turtles. Analysis of 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. Although other factors, particularly the distribution of
shrimping effort, may have contributed to the observed stranding
patterns in Texas, the data suggest that prohibiting the use of soft
TEDs would provide more effective protection for sea turtles.
NMFS also agrees that enforcement of requirements for soft TEDs is
highly problematic. Thorough inspection of a soft TED on board a shrimp
trawler at sea is virtually impossible. The inspection of large areas
of soft TED webbing inside a wet, heavy, slack trawl filled with debris
and bycatch in the confined area of a trawler's aft deck is difficult,
and it requires a great deal of time to examine the panel completely to
determine whether it is properly attached, meets regulatory
specifications, and is free of holes. Even then, it is impossible for
an enforcement officer to determine whether the soft TED will achieve a
proper shape during actual use. Also, the long time spent inspecting a
soft TED can represent significant lost fishing time for the shrimper.
Furthermore, because of the inherent complications and difficulties
in installing soft TEDs, they can be improperly installed even before
they are used. This may be due to misunderstandings regarding what
constitutes a legal soft TED. Recently, the USCG training center in New
Orleans ordered trawl nets with three types of soft TEDs from a major
soft TED manufacturer to use in USCG training sessions. Upon receipt,
the USCG and NMFS determined that none of the soft TEDS met the
specifications set forth in the regulations.
In summary, NMFS has observed that soft TEDs are difficult to
manufacture and install properly and that, even if installed properly,
they stretch, bag and pocket with use, and thus entangle turtles.
Accordingly, NMFS proposes to remove its approval of the use of soft
TEDs in order to help alleviate shrimping-related mortality of sea
turtles.
Comment 2: The South Carolina Department of Natural Resources
(SCDNR) provided comments advocating the elimination of soft TEDs on
the basis of the same problems cited in the response to Comment 1, but
also stated that some South Carolina shrimpers prefer to use soft TEDs
in the fall because of their ability to reduce
[[Page 18105]]
menhaden bycatch. The commenter recommended allowing the use of soft
TEDs in the fall, but prohibiting their use during the rest of the
year.
Response: NMFS recognizes that TEDs offer shrimpers various
benefits, including the reduction of fish bycatch. The primary purpose
of TEDs, however, is the exclusion of sea turtles incidentally captured
in trawls. For the reasons already discussed, NMFS does not believe
that soft TEDs in commercial use are sufficiently effective at turtle
exclusion. Encouraging shrimpers to remove and re-install soft TEDs in
their nets in different seasons would likely increase the potential for
improper soft TED installations. There are other bycatch reduction
devices, specifically created to eliminate finfish bycatch, that are
compatible with hard TED designs.
Try Nets
Comment 3: Several commenters from the shrimp industry stated that
TEDs do not exist for try nets and that most industry participants use
15-18 ft (4.6 - 5.5 m) headrope try nets. One state agency recommended
limiting the size of legal try nets to 16 ft (4.9 m) in footrope length
to be consistent with proposals from the South Atlantic Fishery
Management Council on the use of bycatch reduction devices in try nets.
Commenters from the environmental community recommended TEDs in try
nets greater than 12 ft (3.6 m) headrope and one group recommended that
all try nets be required to have TEDs.
Response: Although try nets 20 feet or less in headrope length have
been exempted from the TED requirements because they are only intended
for use in brief sampling tows not likely to result in turtle
mortality, NMFS has documented that turtles are caught in try nets, and
either through repeated captures or long tows, try nets contribute to
the mortality of sea turtles. Takes of sea turtles in try nets,
including two deaths, have been documented by NMFS, and anecdotal
accounts suggest multiple sea turtle captures in try nets are occurring
in Georgia waters. Law enforcement personnel stated that a fisherman
reported that another individual caught 25 sea turtles in a try net
with a headrope length of 20 ft (6.1 m) in 2 days of fishing. For
further detail see the discussion below, under the heading ``Reduce the
Size of Try Nets that are Exempt from TED Use.''
NMFS is proposing to require the installation of NMFS-approved TEDs
in try nets with a headrope length greater than 12 ft (3.6 m). NMFS
proposes a 15 ft (4.5 m) footrope length cut-off as the appropriate
corresponding dimension for a 12 ft (3.6 m) headrope length net. Phone
interviews with net shops in the northern Gulf of Mexico suggested that
try nets of this size were readily available. Try nets of this size
have only a small tail bag to accumulate shrimp catch, and there would
be little incentive to use it longer than necessary to monitor shrimp
catch rates. NMFS believes that a try net of this size is less likely
to capture a sea turtle and would unlikely to be fished long enough to
kill a turtle if it were captured. This size net, however, would still
be large enough for shrimpers to monitor shrimp catch rates. NMFS also
believes that a NMFS-approved TED can and should be installed in the
larger try nets should shrimpers elect to monitor their catch rate with
larger net sizes.
Shortened Webbing Flaps over TED Escape Openings
Comment 4: Shrimpers objected to the requirement to shorten webbing
flaps over TED escape openings implemented by emergency restrictions in
1995, citing excessive shrimp loss. Other commenters stated that
shortened webbing flaps should be required at all places and times, or
in response to high levels of sea turtle strandings. SCDNR commented
that requiring shortened webbing flaps would cause concern among
shrimpers because of the perceived loss of large amounts of shrimp, but
suggested that shortened flaps be required only on bottom-opening TEDs,
if necessary.
Response: NMFS recognizes that many shrimpers are extremely
concerned over shrimp loss through TEDs with shortened flaps, and some
shrimpers may have experienced real shrimp losses due to shortened
flaps under the temporary restrictions. Properly installed webbing
flaps do not hinder turtle release, although TEDs with shortened flaps
appear to allow turtles to escape more quickly. NMFS required shortened
webbing flaps in response to stranding events where heavy shrimp
trawling effort was present and non-compliance (i.e., sewing down full-
length webbing flaps) may contributed to strandings. While shortened
flaps would make it more difficult to sew closed the escape opening of
a TED, instances of egregious non-compliance were not frequent.
Consequently, NMFS does not believe that the TED regulations should be
changed to require shortened webbing flaps on top- or bottom-opening
hard TEDs. With bottom-opening TEDs, webbing flaps may be held shut if
the TED rides on the bottom due to insufficient flotation or heavy
loading of the cod end, but turtle escape would still be impossible
with a shortened flap if the escape opening were blocked by the sea
bottom.
Accelerator Funnels
Comment 5: SCDNR suggested that turtles could become entangled in
accelerator funnels, which are allowable modifications to hard TEDs.
Response: NMFS has conducted exhaustive research of TEDs equipped
with accelerator funnels and has not documented any turtle
entanglements associated with their use in any certification testing or
trials. The required dimensions for accelerator funnels are even larger
than the required dimensions for hard TED escape openings. Furthermore,
NMFS believes that accelerator funnels enhance shrimp retention and are
a valuable option for shrimpers. NMFS does not intend to propose
prohibiting the use of accelerator funnels with hard TEDs, unless other
information becomes available that indicates that accelerator funnels
are problematic.
The LGL Report
Almost all commenters provided comments regarding the management
plan in the LGL Report. Most indicated general support, but many others
rejected the management proposal in the LGL Report and its analytical
basis, either in part or completely.
Comment 6: Numerous commenters asserted that the LGL Report
represented the best available information on shrimp trawling-sea
turtle interactions in the Gulf of Mexico and should therefore be
implemented.
Response: NMFS has considered and incorporated all new information
from the LGL Report and other sources in its analysis and biological
opinions on the shrimp trawling-sea turtle interaction problem. The LGL
report, however, does not contain any novel research data; rather, it
reanalyzes previously collected data. NMFS agrees with some of the
conclusions of the LGL Report, particularly that nearshore shrimp
trawling is associated with sea turtle mortality and strandings. NMFS
reached this same conclusion in its November 14, 1994, Biological
Opinion.
Comment 7: A large number of commenters from within the shrimp
industry indicated that they did not support the large area closures
mandated in the LGL Report when sea turtle strandings rise. These
commenters stated that shrimp fishery management needs greater
stability, and areas where capture of turtles is most likely should be
subject to permanent, special regulations, but not closures. Other
members of the shrimp trawling
[[Page 18106]]
industry commented that closures should not be considered until other
alternatives have been examined. Still other comments from within the
shrimp industry supported closures that also shut down operation of
other activities, such as oil and gas exploration, oil rig removal,
boating, and other commercial and recreational fisheries.
Response: NMFS does not consider closures of the shrimp fishery to
be an acceptable management measure to protect sea turtles, accept as a
measure of last resort, only to be considered in the most extreme
situation, when other alternatives are ineffective. No shrimp fishery
closures have been implemented by NMFS to protect sea turtles, as NMFS
has sought to implement sea turtle conservation measures that would
allow shrimp fishing to continue while providing adequate protection
for sea turtles.
NMFS believes that closures that include other, unrelated
activities, are inappropriate when the other activities are not
implicated as significant causes of turtle strandings. However, NMFS
does review other Federal activities and applies necessary, activity-
specific restrictions to protect sea turtles through the section 7
process of the ESA. As a result of section 7 consultations, seasonal
restrictions are imposed on hopper dredging activities in the Atlantic,
and observers are required for dredging and explosive rig removals in
the Gulf of Mexico. When listed species takes are anticipated,
incremental modifications to activities are required. Through the
section 7 process and through research conducted or funded by NMFS,
NMFS is continually striving to identify and reduce other non-shrimp-
trawling sources of sea turtle mortality.
Comment 8: Several environmental organizations, numerous private
individuals, and the Department of the Interior's Office of the
Secretary objected to the LGL Report's proposal that TED requirements
be eliminated beyond 10 km offshore in the Gulf of Mexico. Some stated
reasons included: (1) The LGL Report fails to consider impacts on sea
turtle species other than the Kemp's ridley; (2) Even though turtle
catch rates in deep water may be lower than nearshore, shrimpers do
catch turtles offshore; (3) Turtles caught in offshore waters are more
likely to be large adults, which are more valuable to populations by
virtue of their reproductive status; and (4) Trawl times in deep water
are much longer than in nearshore waters, and mortality rates are
likely much higher for captured turtles. Commenters from the shrimp
industry stated that fishing should be allowed when and where turtles
are not abundant without expensive and unnecessary restrictions.
Response: NMFS agrees that the LGL Report did not fully consider
and discuss the impact of offshore shrimp trawling on sea turtles or
biologically justify removing the TED requirements for shrimp trawlers
beyond 10 km from shore. The LGL Report focused largely on the lack of
correlation between deep-water trawling and sea turtle strandings as
indication that no interaction was occurring. Numerous sources of data
indicate that sea turtles are present in offshore waters and are
captured and killed by shrimp trawling, but the carcasses of those sea
turtles would be highly unlikely to float far enough to become stranded
and thereby be counted by the stranding network. Instead, such
mortality would likely go undetected. The LGL Report estimated that
4,653 sea turtles per year would be captured in shrimp trawls in
offshore waters with no means of escape. NMFS has not verified this
estimate, but believes that such a high level of take and subsequent
mortality is not acceptable when reasonable measures to reduce the
level of lethal take exist and are already in place.
Comment 9: Commenters from the fishing industry and the
conservation community called for peer review of the Shrimp Fishery
Emergency Response Plan (ERP) (60 FR 19885, April 21, 1995; 60 FR
52121, October 5, 1995), the Opinion, and the LGL Report.
Response: The Opinion itself required NMFS to assemble a team of
population biologists, sea turtle scientists, and life history
specialists (the Expert Working Group) to compile and examine
information on the status of sea turtle species. The Expert Working
Group, including scientists from government and academia as well as
scientists selected by the shrimp industry and conservation community,
has been convened to analyze Kemp's ridley and loggerhead sea turtle
population status and dynamics. Their findings will be used to
reexamine the basis for and the conclusions of the ERP, the Opinion,
and the LGL Report.
Special Sea Turtle Management Areas
Comment 10: Numerous suggestions for different sea turtle special
management areas were received. One industry association supported the
area identified in the LGL Report (i.e. inshore and offshore waters of
the Gulf of Mexico out to 10 km from shore, except for areas off of
Sabine Pass and the Tortugas where the zone would extend to 18 km), but
recommended that further analysis be conducted to determine whether
other areas should be added or removed from the proposed sea turtle
conservation zone. A sea turtle conservation organization recommended a
``turtle safe migratory swimway'' in the Gulf of Mexico from shore out
to 15 fathoms depth. Two environmental organizations proposed an area
which would include Statistical Zone 18 and half of Zones 17 and 19,
from shore out to 15 fathoms depth. Another conservation group
recommended the interim special management areas identified in the ERP
be retained and expanded to include inshore and offshore waters out to
10 nm (18.4 km) in Statistical Zones 12-21, Zones 30-31, Zone 5 on the
west coast of Florida, and Zones 27-28 on the east coast of Florida--
with consideration given to including South Carolina because of high
strandings in 1995. Smaller areas of special protection were proposed
by an individual and by SCDNR for the areas immediately offshore of Sea
Rim State Park, TX and Cape Island, SC to protect juvenile Kemp's
ridleys and nesting female loggerheads.
Response: At this time, NMFS does not believe that Gulf of Mexico
waters east of the Mississippi River South Pass need to be included in
a sea turtle conservation area that addresses turtle mortality
resulting from shrimp trawling.
Most of the recommended special conservation areas focused on
protecting Kemp's ridley sea turtles in the nearshore waters of the
Gulf of Mexico. NMFS agrees with the critical importance of this area
in terms of its habitat value for juvenile Kemp's ridley turtles and
the interaction of such turtles with shrimp trawl activities. At this
time, NMFS does not believe, however, that all nearshore waters of the
Gulf of Mexico need to be included in special conservation areas for
shrimp fishery management. The nearshore waters of the eastern Gulf do
provide important Kemp's ridley habitat, but there is little evidence
of a shrimp trawl interaction problem there. The eastern Gulf shrimp
fishery behaves quite differently and is subject to different state
restrictions than the western Gulf fishery.
At this time, NMFS does believe that special conservation areas are
necessary in the Atlantic, too, although relatively fewer comments were
received to that effect. Shrimp trawl-related sea turtle strandings
have remained a perennial problem in Georgia, South Carolina, and
northeast Florida. In the Atlantic, sea turtle habitat and shrimping
grounds overlap in a much more restricted area than in the Gulf, and
the relatively
[[Page 18107]]
fewer shrimp trawlers in the Atlantic have the potential to impact sea
turtles heavily there. NMFS agrees with the comment that the waters
near the important loggerhead nesting beaches at Cape Romain, SC,
should be included in the conservation area. NMFS believes that a
shrimp fishery-sea turtle conservation area in South Carolina should
include waters along the entire coast, instead of just Zone 32, in
order to include waters off Cape Island. Further, inshore waters of
Georgia and South Carolina should be included in a special management
area. State management of shrimping in South Carolina and Georgia
already prohibits shrimping in almost all the bays and sounds. The
state definitions of bay and sound waters differ, however, from inshore
waters defined by the COLREGS lines. During the temporary gear
restrictions in Georgia and South Carolina, some parts of the bays and
sounds that were open to shrimping were subject to different gear
requirements, creating a confusing situation and undermining sea turtle
protection efforts. At this time, NMFS believes that these small
inshore areas should be included in an Atlantic conservation area to
ensure uniformity of regulatory requirements over what is essentially
one fishery.
NMFS, at this time, does not believe that inshore waters should be
included in special conservation areas in the Gulf of Mexico, on the
other hand. Although inshore waters do represent important turtle
habitat in the Gulf, they do not appear to require additional
management measures to address shrimp fishery interaction problems. In
the Gulf of Mexico, while sea turtle interactions do occur in inshore
waters, the problem does not appear to be as severe as in nearshore
waters, as evidenced by the relatively few sea turtle strandings
encountered in inshore waters. NMFS does not agree with the assertion
of the LGL Report that a significant portion of sea turtle strandings
on offshore beaches in Texas is the result of inshore shrimp fishing.
Inshore waters of the western Gulf, particularly Texas bays, are
separated from the open Gulf by barrier islands and connected to the
Gulf in only a few narrow passes. The limited fishing areas and
resulting shortened tow times in inshore waters probably mitigate
problems of sea turtle interactions. In addition, intensive pulses of
fishing effort, which have been a problem in nearshore areas, do not
generally occur in inshore waters. Shrimp fishermen in inshore waters
tend to use only restricted, local areas and normally do not migrate en
masse to aggregate in limited areas. Lastly, shrimpers in Texas inshore
waters are subject to restrictions on hours fished and daily catch
limits and to an effort limitation program that restricts entry into
the fishery and prohibits new entrants with boats greater than 60 ft
(18.3 m) in length.
Comment 11: Recommendations on the measures to be taken within
special management areas also varied among commenters. Proposed actions
for special management areas included: Permanent closures of special
areas to shrimp trawlers; closures of areas to shrimp trawlers until
November 30, 1996, to allow Kemp's ridleys to recover from the 1994
mortality levels; increased enforcement efforts; prohibition of
nighttime shrimp trawling; gear restrictions or area closures
implemented in response to sea turtle strandings.
Response: At this time, NMFS believes that permanent closures of
large areas to shrimp trawling are not necessary to achieve adequate
sea turtle protection and believes that the adverse economic impacts of
such actions would be unjustifiably extreme. Small area closures may be
more appropriate when there is biological evidence requiring additional
sea turtle protection efforts and only when effects from shrimp
trawling cannot be mitigated in any other way. NMFS considers fishery
closures to be a last resort response (see Comment 7).
NMFS agrees that effective and concentrated enforcement of TED
requirements in special management areas is necessary. In 1995, NMFS
created and deployed a TED law enforcement team that focused NMFS
enforcement efforts in the interim special management areas and areas
where sea turtle strandings or reported non-compliance were high. NMFS
and the USCG intend to continue vigorous enforcement of TED
requirements in the future and the TED law enforcement team will
continue to augment existing enforcement efforts.
Prohibiting nighttime shrimping is a means to reduce shrimp
trawling effort and enhance sea turtle protection, but NMFS does not
believe that it should be employed at this time. In the Gulf of Mexico,
the major fisheries for pink and brown shrimp are conducted mainly at
night in deeper waters, when the target species are active, and
nighttime closures would be incompatible with these fisheries. Trawling
for white shrimp, on the other hand, is mainly done during the day in
nearshore waters. Therefore, where white shrimp are the primary target
species, nighttime closures may be compatible with operation of the
fishery. Texas, Georgia, and South Carolina already have nighttime
closures for management of shrimp stocks in some nearshore waters. A
specific proposal was received, which recommended that NMFS coordinate
with the States of Georgia and South Carolina to implement nighttime
closures in Federal waters, concurrent with nighttime closures in State
waters. Enforcement of closed areas would be greatly enhanced by
cooperating Federal action. Coordinated state-Federal closures may also
be a boon to local, primarily daytime shrimpers, by reducing the
pressure to fish round the clock. This proposal may provide additional
protection for sea turtles, and NMFS will investigate further whether
closures in Federal waters offshore of Georgia and South Carolina would
be consistent with State management goals and the interests of local
shrimpers.
NMFS implemented special gear restrictions in response to high
stranding levels several times in 1995. Emergency restrictions on gear
types proved to be disruptive to the shrimp industry, with some
shrimpers losing time fishing while re-gearing to comply with the new
requirements. NMFS agrees with the comments (see Comment 7) that
greater stability is needed in shrimp fishery management. NMFS,
therefore, believes that gear types that are known to be problematic
for sea turtles should be restricted through permanent measures imposed
through the notice and comment rulemaking process, instead of through
temporary emergency actions.
NMFS has reservations about using sea turtle strandings to trigger
area closures on a long-term basis. Monitoring strandings provides the
best available information on levels and sources of sea turtle
mortality in a cost-effective manner. There are, however, problems
inherent in using stranding information to implement specified measures
in response to certain events. Under the guidance of the ERP in 1995,
NMFS had to quickly review all available information to determine
whether other natural or anthropogenic sources of mortality were
significantly contributing to the strandings before imposing
restrictions on the local shrimp fishery. Strandings represent
nearshore mortality, identify the problem after it has begun, provide
minimum indication of total mortality, and are contingent upon local
environmental conditions and beach accessibility. Permanent rulemaking,
improved industry communication, and industry cooperation are needed to
provide effective, long-term protection to sea turtles without relying
on
[[Page 18108]]
continual emergency rulemaking. Additionally, new indicated take levels
(mathematical interpretations of historical stranding levels) are being
developed that attempt to identify when strandings are occurring at
unusual levels. The new indicated take levels are likely to include
cumulative levels in addition to weekly levels. NMFS is committed to
continuing to monitor closely sea turtle strandings and identify when
nearshore mortality is occurring at an unusual and potentially
unsupportable level. NMFS has already established a procedure for
restricting shrimp trawling and other types of fishing activities if
necessary to protect sea turtles. This procedure is set forth at 50 CFR
227.72(e)(6). While the ERP provided concrete triggers based on
stranding levels to determine when rulemaking under this procedure
should be invoked, this rule does not propose such a framework. Rather,
NMFS will monitor strandings, and if necessary, invoke the procedure
specified at 50 CFR 227.72(e)(6) to promulgate emergency, temporary
rules to address the threat to sea turtles. Use of this authority has
been upheld recently in the Center for Marine Conservation v. Brown,
No. G-94-660 (S.D. Tx., Feb. 23, 1996).
Reduce Intensive Nearshore Fishing Effort
Comment 12: One environmental organization commented that
overcapitalization in the Gulf of Mexico shrimp fishery causes
excessive shrimp fishing effort, which exacerbates sea turtle
interaction problems as well as other environmental problems. That
organization and two others recommended implementing restricted entry
programs in the shrimp fishery.
Response: Overcapitalization and associated overfishing have been
problems in many fisheries. NMFS concurs that the Gulf of Mexico shrimp
fishery is overcapitalized, with possibly as many as three times more
shrimp vessels operating than necessary to harvest the same amount of
shrimp annually (Ward, 1989). This situation does create heavy
pressures on the natural and economic resources of Gulf shrimpers. In
the state of Texas, shrimpers and resource managers have developed a
limited entry program for the inshore fishery to address these
problems. NMFS believes that economic considerations and economic
consequences should be the driving concerns in the development of any
plan that would systematically limit entry throughout the Gulf of
Mexico. Any such limited entry program should, therefore, be
implemented either through actions of the states or through the Gulf of
Mexico Fishery Management Council. The socio-economic consequences,
both beneficial and adverse, of a Gulf-wide limited entry program would
be extensive. NMFS believes that use of the ESA to reduce
overcapitalization of the shrimp industry is inappropriate without
compelling biological considerations that outweigh the socio-economic
considerations. Even then, effort reduction measures should be targeted
at problem areas where additional sea turtle protection is required,
and not necessarily applied generally.
Comment 13: A shrimp industry association and an environmental
conservation organization commented that the relocation of shrimping
effort from other states into Texas waters caused by the Texas Closure
is detrimental to sea turtles. The shrimp industry association proposed
discontinuing the Texas Closure to avoid this problem. Both groups
proposed the alternative of expanding the Texas Closure Gulf-wide. A
Gulf-wide closure would relieve the shrimp fishing effort in Texas upon
reopening, because most shrimpers would likely stay in their home state
waters to take advantage of high shrimp catches there. SCDNR stated
that a coordination of opening dates for shrimping in state waters
between Georgia and South Carolina would reduce intensive pulses of
fishing that occur in nearshore waters off those states when each
state's waters open.
Response: NMFS agrees that intense shrimping effort before and
after the Texas Closure poses a threat to sea turtles, and both of the
proposed measures likely would reduce effort in Texas before and after
the Closure. The Texas Closure period does, however, provide a complete
removal of shrimping effort for a limited period and greatly decreases
turtle strandings. A Gulf-wide closure would provide complete
protection for sea turtles from shrimp trawling during the closure and
would also reduce the pulse of intense shrimping that occurs in Texas
after the current Texas Closure ends. Of course, shrimping effort would
spike simultaneously throughout the Gulf, not just in Texas, following
the end of a Gulf-wide closure. However, the spike may not be as
severe, since effort would be dispersed throughout the Gulf rather than
concentrated exclusively in Texas.
The rationale for the current Texas Closure is the management of
shrimp stocks to increase harvest of larger, more valuable shrimp off
Texas, not sea turtle protection considerations. NMFS has been
encouraging the other Gulf states to examine the benefits and
feasibility of implementing Gulf waters closures that could be
coordinated with the timing of the Texas Closure. In addition, the
Government of Mexico implemented a Gulf-wide closure of its waters to
shrimp trawling in 1995, in concert with the Texas Closure. At this
time, however, NMFS prefers not to pursue changes to the established
shrimp management regime in the Gulf of Mexico, such as the Texas
Closure, and instead has evaluated alternative measures to reduce
nearshore shrimping effort (see Comment 14 below). Furthermore, for
reasons described in the response to comment 12, such action should
occur through the Magnuson Act or state laws.
NMFS agrees with the comment received from SCDNR. Currently, South
Carolina opens most of its State waters to shrimping in mid-May, while
Georgia State waters do not open until June. Consequently, many
trawlers from each state take advantage of both openings and effort
becomes highly concentrated. In both Georgia and South Carolina during
1995, the level of trawling activity as determined by aerial surveys
was 2-3 times higher during the first week after each state's opening
than during any other week of the season. A coordinated opening date
would allow local shrimpers to stay in their home state waters to take
advantage of the local opening. Concentration of effort in nearshore
waters would be greatly reduced, and impacts to sea turtles would also
likely be substantially reduced. NMFS is encouraging the appropriate
resource management agencies in each state and the local shrimp
industry to move forward with coordinated opening dates, as this action
is within state authority to achieve. The benefits of the resulting
reduced fishing effort upon openings may be significant for sea turtles
and could mitigate concerns over the adverse effects on sea turtles of
repeat captures.
Comment 14: The LGL Report and TSA petition presented a specific
proposal incorporating varying gear requirements and maximum net sizes
designed to reduce nearshore shrimping effort. LGL has proposed a
revision to its plan, subsequent to the TSA petition, which further
specifies that vessels with a length greater than 60 ft (18.3 m) would
also be excluded from fishing in the nearshore waters of the entire
Gulf. Most commenters indicated general support for efforts to reduce
nearshore shrimping effort either throughout the Gulf of Mexico or in
waters off Texas, but SCDNR expressed skepticism that efforts to reduce
the number of shrimp
[[Page 18109]]
vessels could be reasonably implemented. As addressed previously (see
Comments 7 and 8), commenters disagreed on other aspects of the LGL
plan, such as the use of closures and the removal of TED requirements
in most offshore waters.
Response: The Opinion found that intensive pulses of nearshore
shrimp trawling effort contributed to the high level of sea turtle
strandings and mortality in 1994, and strandings in 1995 again
demonstrated this relationship when strandings in Georgia, South
Carolina, and Texas jumped sharply upwards immediately following the
opening of nearshore state waters to shrimp trawling. Consequently,
reduction of nearshore shrimping effort could provide additional
protection for sea turtles. In general, however, management attempts to
reduce effort in fisheries by restrictive gear requirements have not
been successful when unaccompanied by other means to limit entry or
allocate catch. NMFS has examined various plans intended to reduce
intensive levels of nearshore shrimping effort that occur in the Gulf
of Mexico to determine their possible effectiveness, including plans
that make only gear requirement changes and plans that also have
vessel-size requirements.
The effects of the various proposals on shrimping effort were
evaluated using the General Bioeconomic Fishery Simulation Model
(GBFSM) developed by Dr. Wade Griffin at Texas A&M University. This
computer model describes the behavior of the Gulf shrimp fleet in
response to economic and biological factors in the fishery. The plans
evaluated included absence of any TED requirements, the status quo sea
turtle conservation regulations, the TSA petition/LGL plan, the LGL
plan as subsequently modified by LGL to exclude boats greater than 60
ft (18.3 m) in length from nearshore waters, and the modified LGL plan
reduced in scope to be effective only in nearshore Texas waters for a
time period approximately 3 weeks prior to and 3 weeks after the Texas
Gulf shrimp fishery closure and with offshore TED requirements
maintained. The GBFSM predicted the following: The LGL plan would
increase nearshore shrimping effort slightly; the modified LGL plan
would reduce nearshore shrimping effort by approximately 65 percent
throughout Texas and Louisiana; and the reduced scope, modified LGL
plan would reduce nearshore shrimping effort off of Texas by
approximately 60 percent only in the period shortly before and after
the Texas Closure. A more thorough discussion of these evaluations can
be found in the EA for this proposed rule. While NMFS has evaluated the
potential for effort changes in the various proposals, the extent of
effects on turtles have not been determined. These effort reduction
proposals have generated significant controversy within the shrimping
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 these effort
reduction measures at this time.
Other Measures
Comment 15: A shrimp industry association stated that NMFS needs to
continue research on the size of Kemp's ridley sea turtle populations.
Results of this research should be made available to the shrimping
industry and the general public.
Response: NMFS agrees. The Expert Working Group is tasked with
evaluating existing information to provide the best possible estimates
of the Kemp's ridley population and rates of population decline or
recovery. The Expert Working Group is making some recommendations for
better sea turtle population assessments. NMFS considers continued and
improved stock assessment a priority in its sea turtle research
program.
The results of NMFS research are public information. This comment,
however, underscores the need for improved communications between NMFS
and those affected by the sea turtle conservation regulations. NMFS has
an extensive industry outreach program that focusses on the critical
issues of proper TED use and maximization of gear efficiency. NMFS must
consider whether this forum is appropriate for dissemination of sea
turtle population status information or whether other communication
avenues should be explored.
Comment 16: A conservation group commented that gill netting should
be banned in sea turtle special management areas in order to remove an
unnecessary threat to sea turtle recovery.
Response: Gill nets can and do entangle and kill sea turtles.
Several Gulf of Mexico states have taken action to address gill net
bycatch problems--which include not only sea turtles, but many species
of finfish. Florida and Texas currently ban the use of gill nets in
their State waters, which extend out to 9 nm (16.7 km) in the Gulf of
Mexico. Louisiana has recently developed a partial ban on gill nets,
and there are anti-gill net initiatives underway in Mississippi.
Because of these existing gill net restrictions, NMFS does not believe
that a gill net ban imposed by NMFS for the protection of sea turtles
is presently warranted in waters generally subject to the jurisdiction
of the states, although NMFS will continue to evaluate impacts to sea
turtles from state-regulated fisheries. For federally-managed marine
fisheries, NMFS is required to conduct consultations in accordance with
section 7 of the ESA. Through the consultation process, NMFS can
evaluate and restrict, as necessary, federally-managed fisheries and
their fishing gear that impact sea turtles. Additional permanent NMFS
regulations restricting gill netting do not appear necessary at this
time.
Comment 17: A conservation group commented that user fees of $100
to $200 should be required annually from shrimp trawlers that operate
in the exclusive economic zone (EEZ). Additionally, recreational
fishermen in the EEZ should be required to pay a $30 annual user fee.
Funds raised from these user fees would be applied for education and
conservation efforts.
Response: NMFS does not believe that this proposal is feasible or
advisable at this time. Although the concept of user fees supporting
the management and conservation of public resources has been the
subject of recent Congressional interest and debate, NMFS does not
believe the ESA authorizes the assessment of user fees as proposed by
this commenter.
Comment 18: Two environmental organizations commented that NMFS
should implement a vessel registration system for shrimp trawlers in
the Gulf of Mexico and the southeastern U.S. Atlantic. A vessel
registration system would help determine the number of vessels
participating in the fishery and would help facilitate emergency
restrictions and enforcement against repeat offenders.
Response: Development of a vessel registration system for shrimp
trawlers is a requirement of the November 14, 1994 Opinion, and NMFS is
developing a proposed rule to implement shrimp trawler registration in
1996. A vessel registration system would provide NMFS with invaluable
information on the number and characteristics of shrimp vessels
operating in the southeastern United States. This information would
substantially increase NMFS' ability to manage the sea turtle-shrimp
trawl interaction problem with the greatest effectiveness and the least
impact to shrimpers. Vessel registration would also allow NMFS to
contact all shrimpers to inform
[[Page 18110]]
them of any changes in regulations. Shrimpers have stated repeatedly in
the past that they did not feel they had received sufficient notice of
regulation changes and that compliance with sea turtle conservation
requirements was therefore difficult. Additionally, vessel registration
would provide NMFS a means to penalize offenders for multiple or
flagrant ESA violations. Lastly, registration of participants in the
shrimp fishery would facilitate selection of individuals who could
serve as representatives for their peers to advise NMFS on technical
and policy issues relating to the shrimp industry and the sea turtle
conservation regulations (see the discussion under the heading ``Shrimp
Industry Advisory Panel''). The use of a registration system to improve
communications between NMFS and the shrimp industry may be the single-
most important benefit of such a system.
Comment 19: A shrimp industry association called on NMFS to
continue to develop better communication ``among all user groups and
all concerned parties,'' and another industry group recommended that
conservation measures be developed in consultation with all
stakeholders.
Response: NMFS agrees that good communication is critical to
resolving many of the problems affecting sea turtle recovery. NMFS
works with numerous agencies and concerned parties in the evaluation
and management of a variety of threats to sea turtles, and NMFS
recognizes that the need for better communication is most extreme in
the shrimp fishery. A large number of individuals are involved in the
shrimp fishery, and their diverse, multilingual backgrounds, their
demanding work schedules, and their mobility throughout the
southeastern U.S. shrimping grounds complicate communications. NMFS
believes that industry feedback and contribution can improve the
regulatory process relating to TEDs and sea turtle conservation. (See
the discussion under the heading ``Shrimp Industry Advisory Panel'')
Comment 20: An industry group called for a revision to the November
14, 1994, Opinion pursuant to the requirement for reinitiation of
consultation found at 50 CFR 402.16.
Response: NMFS has reinitiated consultation several times during
the 1995 shrimp fishing season to address takings exceeding the
incidental take statement and new information revealing a change in
impacts to the listed species from actions not previously considered.
Much of the November 14, 1994 Opinion has been revised by the Opinion
accompanying this action (see ADDRESSES) and has incorporated all new
available scientific and commercial data.
In addition to the comments addressed above, NMFS received some
comments that were not germane to the request for comments on the ANPR
and the petition for rulemaking based on the LGL Report. Those comments
have been noted by NMFS but are not responded to here.
Provisions of the Proposed Rule
NMFS intended the ERP to guide its actions and to ensure compliance
with sea turtle conservation regulations when strandings approached or
exceeded the identified incidental take levels. In addition, the
November 14, 1994, Opinion requires that NMFS identify areas requiring
special sea turtle management consideration, due to high sea turtle
abundance or important nesting or foraging habitats and that NMFS
propose permanent management measures to mitigate the impacts of
intensive nearshore shrimping and of repeated incidental capture of
individual turtles. Thus, NMFS proposes the following measures to
replace the guidance provided by the ERP.
Eliminate Soft TEDs as Approved TEDs and Eliminate the Provision of the
Regulations Allowing Soft TEDs to be Approved
NMFS proposes that all soft TEDs be removed from the list of
approved TEDs, effective December 31, 1996. This delayed effective date
should ensure no adverse impact to shrimpers using soft TEDs. Since
soft TEDs generally must be replaced annually, shrimpers will have
ample notice to replace their soft TEDs with hard TEDs prior to
December 31, 1996, without significantly shortening the usage they may
get out of their existing soft TEDs.
Even though soft TEDs have been certified and approved for use,
pursuant to the testing protocols, they have been identified as
ineffective at releasing sea turtles under normal fishing conditions,
even when new and professionally installed. The use of soft TEDs by the
shrimping fleet has been associated with elevated sea turtle strandings
following the Texas Closure to shrimp fishing. Because of the inherent
properties of synthetic webbing, soft TEDs are difficult to install
properly. Installation procedures for soft TEDs must be changed for
every type and size of trawl net, and some soft TEDs cannot be
installed properly in some nets without major modifications requiring
underwater observations. Once installed, their actual in-water
configuration, shape, and performance cannot be determined even by
professional net makers. Furthermore, changes made by a trawler captain
to the fishing configuration of a net to match fishing conditions--such
as changing door sizes or angles, adding flotation to the headrope, or
adjusting center bridle tension on tongue or bib trawls--and the
accumulation of catch and debris in the trawl will all affect the shape
of the soft TED and thus its effectiveness at releasing turtles. In
actual use, soft TEDs are easily damaged by bottom debris and bycatch,
particularly sharks and dogfish. Broken meshes in the soft TED excluder
panel can entangle a turtle or even allow a turtle to pass directly
through the TED and be captured in the cod end of the net.
NMFS has developed two certification protocols for the approval of
TED designs. These protocols were published on June 29, 1987 (52 FR
24244) and on October 9, 1990 (55 FR 41092), along with detailed
descriptions of the testing and evaluation criteria. Both protocols
target a 97 percent turtle exclusion rate. The process through which
most soft TEDs were certified removed most of the confounding
conditions mentioned above, as testing was conducted under ideal
conditions necessary for net observation, but not reflective of
commercial trawling conditions. The certification process also fails to
simulate actual field performance because design sponsors have the
opportunity to fine-tune and adjust their installations with the
assistance of NMFS gear experts and underwater videotapes of soft TED
deployment. From the 1994 evaluation of various commercially available
soft TEDs, it is clear that some installations of the same soft TED
design will entangle turtles, indicating that the fine-tuning made
during certification, but not necessarily included in the regulatory
specifications, may have been critical to their passing testing.
Because of these problems, NMFS is evaluating possible changes to the
certification protocols which would better determine and account for
actual commercial trawling conditions, and would eliminate the fine-
tuning that takes place in the certification process but may not
necessarily be reflected in the TED specifications. Such fine-tuning
may improve the apparent performance of poor candidate TEDs under
testing conditions. Although NMFS is reviewing the certification and
approval process for new TED designs, currently there is ample evidence
that indicates that soft TEDs do not exclude turtles
[[Page 18111]]
under actual trawling conditions despite their certification and
previous approval. On the basis of this evidence, NMFS is proposing
with this rule, to prohibit the use of soft TEDs currently approved and
rescind their approvals, while undertaking a review of its general
certification protocols.
In addition, soft TEDs have high shrimp loss rates. NMFS has
determined, both through in-house and outside testing, that all soft
TED designs lose significant amounts of shrimp. The high shrimp loss
rates of soft TEDs may be posing a problem for sea turtles. While the
shrimp loss rates of well-tuned hard TEDs are only about 1 percent
(Renaud et al., 1991), shrimp loss rates for approved soft TEDs are
much higher. The approval of TEDs that lose shrimp, however, may have
worked to the detriment of shrimpers and turtles. Shrimpers may not
have the resources to make their own comparisons of TED effectiveness
and may lack the information needed to make a change to more efficient
TED types. Some shrimpers may respond to the high loss of shrimp
experienced with soft TEDs by disabling or modifying their soft TED. By
limiting NMFS approval to only hard TEDs--those types that have the
highest rates of shrimp retention--the incentive for shrimpers not to
fully comply with the TED requirements should be reduced.
A perceived advantage of soft TEDs over hard TEDs is their lower
cost. An installed soft TED at a net shop typically costs $50-$100. A
hard TED fully installed in webbing typically costs $250-$300;
uninstalled hard TEDs may be as inexpensive as $75. NMFS estimates,
however, that soft TEDs require replacement on an annual basis, whereas
hard TEDs last 2-3 years or more. In addition, the high shrimp
retention rates of hard TEDs compared to soft TEDs likely will make up
any cost difference through better shrimp catches.
Morrison Soft TED
The Morrison TED is the soft TED of choice in the Atlantic shrimp
fishery.
Gear specialists observed that some Morrison TEDs have shortened
escape openings that could prevent the release of a turtle. Other TEDs
had escape openings that were of the proper size, but twine or rope was
laced through the webbing along the sides of the exit hole cut. Since
the escape opening of a Morrison TED consists of a single slit that
requires the flow of water to push the loose webbing on the sides of
the cut apart to form an escape opening, reinforcing the edges of the
cut would prevent the webbing from opening wide enough to allow a
turtle to escape. On several Morrison TEDs, the webbing of the excluder
panel was cut or broken so that a turtle might pass directly through
the TED into the tailbag of the net. Other Morrison TEDs had large
openings at the sides of the panel where the panel was improperly sewn
to the trawl net or the attachment between the TED and the trawl was
worn away and not repaired. These holes might also allow a turtle to
pass directly through the TED, or cause it to become entangled in loose
webbing. Lastly, on some TEDs that appeared to be in good condition,
gear experts noticed that the excluder panel had slack areas. When
water flows through the excluder panel, excess webbing can form pockets
instead of a smooth, taut ramp of webbing, that could entangle turtles.
Statements made to gear specialists by shrimpers confirmed that turtles
were in fact becoming entangled in pockets in soft TED excluder panels.
A particular concern regarding soft TEDs was the variability of
their construction and installation and that, even with proper
construction according to regulations, commercially available soft TEDs
were not effectively releasing turtles because of incompatibilities of
the TED design with various net sizes and designs. In order to examine
this concern, NMFS purchased seven trawl nets equipped with Morrison
soft TEDs installed by five primary suppliers from the southeastern
United States Three different trawl types were studied: The mongoose
trawl, the straight wing flat trawl, and the tapered wing flat trawl.
These nets were observed and video-taped underwater by NOAA divers as
the nets were fished in various configurations. This diver evaluation
revealed that pockets could form in legally installed Morrison soft
TEDs. This tendency was especially noticeable in mongoose and straight-
wing flat trawls.
These distortions in TED shape would lead to turtle capture, as was
discovered in further testing. Experimental trawling in the Cape
Canaveral ship channel was conducted to evaluate turtle exclusion for
the soft TEDs. A straight-wing flat net captured five sea turtles--
three through entanglement in the TED panel-- in 21 experimental tows
of 1 hour or less. A straight wing flat net and two mongoose nets were
tested and did not capture turtles. A turtle was observed remaining in
one of the mongoose net tows, but it escaped as the trawl was
retrieved. In later tests at Panama City, FL, in October 1994, a total
of 24 small turtles were introduced by divers into three of the test
nets: eight were captured, for an average escape rate of only 66
percent from trawls with commercially available and legally installed
soft TEDs.
Prior to certification of the Morrison TED, the University of
Georgia Sea Grant Program evaluated the Morrison TED for shrimp
retention. In testing under commercial fishing conditions against a
trawl not equipped with a TED, the Morrison TED was shown to have a
shrimp loss rate of 17 percent. NMFS observers aboard commercial
trawlers in South Carolina documented a 7 percent loss rate from
Morrison TEDs.
Parrish Soft TED
The Parrish soft TED was approved for use in 1987 following
successful certification trials at the Cape Canaveral ship channel. The
Parrish TED passed the certification trials based on turtle exclusion
rates, but the Parrish TED-equipped net had a reduction in shrimp catch
compared to the control net ranging from 26 percent to 79.5 percent.
The Parrish TED never became widely accepted in the shrimp industry.
The developer and only manufacturer of the Parrish TED has ceased sales
and production of the design. NMFS does not believe that any Parrish
TEDs are currently in use.
Andrews Soft TED
The Andrews TED is the primary bottom-opening soft TED in use today
and is the most popular soft TED in the southwest Florida shrimp
fishery. Some shrimp industry members have stated that the bottom-
opening, Andrews soft TED is the optimum TED for the Sanibel-Tortugas
fishing grounds of southwest Florida because of its ability to exclude
the large loggerhead sponges that occur there.
The Andrews TED's 5-inch (12.7-cm) mesh size is the smallest mesh
excluder panel of the soft TEDs. In response to shrimpers who stated
that they needed a bottom-opening soft TED with a larger mesh size for
better shrimp retention, NMFS conducted certification testing on 8-inch
(20.3-cm), 7-inch (17.8-cm), 6-inch (15.2-cm), and mixed mesh sizes.
None of these designs passed the TED certification standards.
Nonetheless, enforcement efforts have found many instances of Andrews
style TEDs illegally constructed of large-mesh webbing. Some shrimpers
using these illegal TEDs stated that the TEDs were legal Parrish TEDs,
which have an 8-inch (20.3-cm) mesh, but the TEDs met none of the
criteria of a Parrish TED. It appears that there is some confusion
among shrimpers and misrepresentation by manufacturers as to the legal
[[Page 18112]]
dimensions of the Parrish and Andrews TEDs. The use of a TED with
illegal dimensions would adversely affect turtles by increasing the
possibility of entanglement. Also, if the Andrews TED funnel is
excessively long, slack webbing and pockets would appear that would
have the potential for trapping turtles.
The Andrews TED 5-inch (12.7-cm), when compared to a bottom-opening
hard TED, had a shrimp loss of 23 percent. The larger mesh sizes,
despite not passing TED certification standards, were tested for shrimp
loss. Rates in those comparisons ranged from 5 to 12.25 percent shrimp
loss in Andrews soft TEDs versus nets without TEDs.
Taylor Soft TED
NMFS believes that the Taylor TED has only very limited use in the
shrimp fishery.
The Taylor TED is a top-opening soft TED with a 6-inch (15.2-cm)
mesh excluder panel. The minimum length of the Taylor TED is 10 ft (3
m) to allow its installation in small trawls. The Taylor TED design was
certified in a 30-foot (9.1-m) headrope semi-balloon trawl net and
became an officially approved TED in May 1993. Because the Taylor TED
is a relatively recent design, NMFS gear specialists have not
encountered many examples of the Taylor TED in use or documented
installation problems specific to the Taylor TED. It is, however, a
similar design to the Morrison TED in that it is a sloping, top-
opening, single-panel TED and would be likely to have the same problems
of pocketing and loose webbing if installed improperly.
Taylor TEDs in actual use in the commercial shrimp fleet have in
fact been found to be ineffective at sea turtle exclusion. In 1,174
hours of observed trawling with Taylor TED-equipped nets, 3 sea turtle
captures have been documented. This rate of sea turtle capture with the
Taylor TED exceeds the sea turtle capture rate calculated by Henwood
and Stuntz (1987) for shrimp trawlers in the Gulf of Mexico operating
without any TEDs.
NMFS has little data on shrimp retention rates of the Taylor TED;
in limited testing of the Taylor TED and another TED with a similar
apex design, the University of Georgia Sea Grant program reported an
overall shrimp loss of about 16 percent.
Reduce the Size of Try Nets that are Exempt from TED Use
NMFS proposes to reduce the size of try nets that are exempt from
the TED-use requirement, effective December 31, 1996. Instead of the
present exemption for try nets 20 ft (6.1 m) (50 CFR
227.72(e)(2)(ii)(1)) or less in headrope length, only try nets 12 ft
(3.6 m) or less in headrope length and 15 ft (4.6 m) or less in
footrope length would be exempt.
Try nets are small nets that are deployed by shrimp trawlers before
and during tows with the main nets to determine the presence and catch
rates of shrimp, bycatch, and debris. Shrimpers use try nets to help
decide the location and duration of tows with the main nets. Try net
tows of 15-30 minutes appear sufficient to determine fishing conditions
and catch rates.
NMFS has been collecting information that challenges the assumption
that try nets up to 20 ft (6.1 m) do not pose a threat to sea turtles
because of their small size and short tow duration. Specifically, the
larger try nets do capture turtles. Recent analysis of observed
commercial trawling in the Gulf of Mexico indicates that catch rates
(per foot of headrope) of turtles in large try nets (approx. 20 ft (6.1
m) headrope length) are approximately the same as those calculated in
the 1987 report (Henwood & Stuntz), a figure that the National Academy
of Sciences used in their 1990 report recommending the required use of
TEDs in shrimp trawls. Further, in the regional bycatch observer
program from 1992 through 1995, try nets accounted for 43 percent of
the observed turtle captures. The assumption that try nets are only
towed for short periods of time also may be invalid. In addition to
numerous anecdotal reports from shrimpers to this effect, NMFS gear
specialists have observed shrimpers regularly towing try nets for
periods well over an hour. Since long try net tows defeat their purpose
of assessing catch rates, the apparent intention of these long tows is
to use the try nets as auxiliary nets to increase the overall shrimp
capture, using a TED-less net. Such use of try nets may be seriously
contributing to turtle capture, mortality, and strandings.
While the large try nets (up to 20 ft (6.1 m)) currently exempted
from TED requirements pose a threat to sea turtles, NMFS believes that
small try nets likely do not. In experimental trawling at the Cape
Canaveral ship channel, conducted in September 1994, the capture of sea
turtles in try nets of two different sizes was assessed. One loggerhead
was captured in a 15 ft (4.0 m) (originally reported as 13 ft) headrope
length try net in 59 tows, while nine loggerheads were captured in a 20
ft (6.1 m) headrope length try net in 57 tows. The try nets used in
these trials were tongue trawls, meaning that the net is towed via a
third towing bridle (in addition to those attached to the doors)
attached to a triangle of webbing in the center of the headrope. The
headrope length measurement includes the length along this additional
triangle of webbing; thus, a 15 ft tongue trawl try net is
approximately the same as a 13 ft standard trawl in door-to-door
distance. In order to clarify the applicability of the 1994 study
regarding try net headrope length, NMFS intends to repeat a similar
study during the comment period for this proposed rule. Information
gathered in that study may result in a modification to the try net
headrope length exemption adopted in the final rule. Nonetheless, these
results suggest that small try nets have a much lower sea turtle catch
rate, even when adjusted for headrope length, than large try nets and
primary shrimp trawls. In the May 18, 1995 (60 FR 26691) modification
to the emergency restrictions to shrimp trawling in some areas of the
Gulf of Mexico, NMFS determined that the use of try nets with headrope
lengths of 12 ft (3.6 m) or less and footrope lengths of 15 ft (4.6 m)
or less did not pose a serious risk to sea turtles, even in areas where
shrimp trawler-related mortality of Kemp's ridley sea turtles was high.
Installation of TEDs in try nets with headrope lengths of 12 ft
(3.6 m) or less and footrope lengths of 15 ft (4.6 m) or less appears
to be impracticable. The proposed delayed effective date should provide
the necessary time for shrimpers to acquire hard TEDs and install them
in the larger try nets or to adjust to estimating catch rates with
smaller try nets.
Establish Shrimp Fishery Sea Turtle Conservation Areas (SFSTCAs)
NMFS proposes to establish two permanent Shrimp Fishery-Sea Turtle
Conservation Areas (SFSTCAs) with special conservation requirements to
reduce the mortality and subsequent strandings of sea turtles
associated with intensive shrimp trawling in nearshore waters.
As mentioned previously, the November 14, 1994, Opinion contained a
reasonable and prudent alternative that required action to mitigate the
impacts of intensive nearshore shrimping effort on sea turtles,
including the identification of areas requiring special sea turtle
management considerations. The ERP identified interim special
management areas, based on nearshore habitat for endangered Kemp's
ridleys, in which NMFS specified a policy of heightened TED law
enforcement efforts and management response to elevated sea turtle
mortality.
[[Page 18113]]
The SFSTCA in the northwestern Gulf of Mexico would consist 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. The Atlantic SFSTCA would consist
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. The Gulf SFSTCA
would be similar to the Gulf interim special management area of the
ERP, but it would add waters off statistical Zone 21 in south Texas.
Strandings of Kemp's ridleys in Zone 21 tend to include adult and large
sub-adult individuals compared to the primarily juvenile and sub-adult
animals in northern Texas, and the extreme importance of adults,
particularly reproductive females, to the recovery of Kemp's ridleys
appear to warrant the inclusion of Zone 21 in the SFSTCA.
The Atlantic SFSTCA was identified based on the distributions of
sea turtle strandings and the shrimp trawl fleets. The proposed
Atlantic SFSTCA would differ from the Atlantic interim special
management area by excluding northern Florida and including nearshore
waters of South Carolina and by adding waters inshore of the COLREGS
lines. In 1995, NMFS did not determine that shrimp trawler related
mortality and strandings in northeast Florida were excessive and
required emergency action. The State of Florida prohibited the fishing
by large shrimp trawlers within 1 nm (1.9 km) of the beach on the east
coast of Florida, effective July 1, 1995. Sea turtle strandings in Zone
30 in Florida declined progressively from June through August, possibly
as a result of the State restrictions on trawling. NMFS believes that
the State restrictions on net fishing in northeast Florida represent
existing measures mitigating the impacts of nearshore shrimping, and
that inclusion of northeast Florida in the SFSTCA is not warranted at
this time. Sea turtle strandings in 1995 did, however, necessitate
emergency gear restrictions twice along the Georgia coast and once in
Zone 32 in South Carolina. South Carolina waters opened to shrimping on
May 16, 1995, and Georgia waters opened on June 1, 1995. In the week
following the opening, significant spikes in sea turtle strandings
occurred in both States. In Georgia, statewide strandings increased
from 6 the week prior to the opening to 21 in the week following the
opening. In Zone 32 in South Carolina, strandings increased from 0 in
the week prior to the opening to 6 in the first week of the opening.
The continued association of nearshore shrimp effort with sea turtle
strandings in these states demonstrates the need for additional
measures to mitigate adverse impacts to turtles. The proposed SFSTCA
would also add the northern portion of South Carolina, even though
strandings there did not result in emergency actions. The northern
border of Zone 32 in South Carolina occurs at Cape Romain--the largest
loggerhead sea turtle nesting beach north of Cape Canaveral. Therefore,
restriction of the SFSTCA to only Zone 32 could concentrate shrimp
effort near Cape Romain and increase the potential for adverse impacts
to nesting female sea turtles. By including the entire coast of South
Carolina, the borders of the SFSTCA would be simpler and clearer, the
Cape Romain area would be included, and relatively few additional
shrimpers would be affected, since South Carolina's primary shrimping
grounds are in the south and central portion of the state. The proposed
Atlantic SFSTCA would also include inshore waters as well as nearshore
waters along the Georgia and South Carolina coast. The specification in
the ERP that management measures be restricted to offshore waters was
not appropriate for that region. The Georgia-South Carolina Low Country
is characterized by numerous broad sounds and extremely high tidal
ranges. Tidal flow can have a powerful influence on the movement of
turtles, their prey, and turtle carcasses. In the 2 months following
the opening of Georgia state waters to shrimping on June 1, 1995, 21
sea turtles stranded in inshore areas. In addition, state regulations
permit shrimp trawling under the same license inside the COLREGS lines
in Georgia and South Carolina, and the fishery is therefore not
functionally divided between offshore and inshore components. Extension
of conservation measures into inshore waters in Georgia and South
Carolina appears necessary to provide protection to turtles wherever
they may be vulnerable to capture in shrimp trawls and to ensure even
enforceability of the measures near the mouths of the sounds.
Enhance TED Effectiveness in the SFSTCAs
NMFS proposes to implement the elimination of the approval of the
use of soft TEDs, the reduction in TED-exempt try net size, and the
prohibition on the use of bottom-opening hard TEDs in the proposed
SFSTCAs on an accelerated schedule to provide additional protection to
sea turtles during the 1996 shrimp season.
The proposed SFSTCAs represent areas that require special
management to mitigate the effects of intensive nearshore shrimping
effort on sea turtles. These areas have exhibited very high nearshore
shrimping activity and high levels of sea turtle strandings. The
continuing sea turtle mortality has been determined by NMFS to result
from the improper use of TEDs and the use of ineffective TEDs by shrimp
trawlers. Therefore, NMFS believes that there is a heightened need to
implement measures to improve TED effectiveness in the SFSTCAs.
In addition to the elimination of the approval of soft TED use and
the reduction of TED-exempt try net size, NMFS believes that bottom-
opening hard TEDs should be prohibited in the SFSTCAs to protect sea
turtles from forced submergence.
NMFS gear specialists joined enforcement agents to determine
whether problems with TEDs were a factor in the increased levels of
strandings that occurred in 1994. Two problems encountered with hard
TEDs were TEDs installed at illegally steep angles and bottom-opening
hard TEDs without flotation. The lack of flotation on bottom-opening
hard TEDs, although then allowed under the existing regulations, caused
the TED to drag on the sea floor, holding the turtle escape opening
closed. A review of past gear trials with bottom-opening TEDs supported
this finding. As a result, NMFS concluded that the lack of flotation on
bottom-opening hard TEDs could be a major contributor to sea turtle
mortality and amended the regulations to require flotation on bottom-
opening single-grid hard TEDs (59 FR 33447, June 29, 1994; 60 FR 15512,
March 24, 1995).
In spite of the flotation requirement for bottom-opening hard TEDs,
NMFS remains concerned that bottom-opening hard TEDs in commercial use
still capture and drown turtles, particularly small turtles, such as
juvenile Kemp's ridleys. The amounts of flotation required do not
always correctly offset the weight of the TED itself, and the effective
buoyancy of closed-cell foam floats, which are the most popular floats
in use by the shrimp industry, is reduced with increasing water depths.
Furthermore, the accumulation of shrimp catch, bycatch, mud, and debris
in the trawl can weigh down the attached flotation and cause the exit
of a bottom-opening hard TED to be obstructed by the bottom.
Observations by gear specialists of wear and chafing on webbing on the
bottom of bottom-
[[Page 18114]]
opening TEDs in the shrimp fleet are indicators that the TEDs do
periodically ride hard on the bottom. NMFS has received and responded
to requests from the shrimp industry to allow modifications to bottom-
opening TEDs, such as webbing chafing gear and rollers, to reduce wear
and damage to gear caused by contact with the bottom, even with the
current flotation requirements.
NMFS gear experts have also found that top-opening TEDs are more
efficient at releasing turtles than bottom-opening TEDs, even under
ideal conditions. In-water testing of hard-grid TEDs in May 1995
revealed that small turtles require almost twice as long to escape from
a bottom-opening TED versus a top-opening TED (an average of 125.6
seconds versus an average of 68.8 seconds). This difference would
likely be exaggerated under commercial trawling conditions. Gear
experts attribute much of this difference in escape times to the air-
breathing turtles' natural tendency to explore the top of the trawl for
an escape-opening as they attempt to resurface for air. Small turtles
that have been observed entrapped in trawls do spend the majority of
their time at the top of the trawl. Physiological studies on small sea
turtles of the effects of capture in trawls on stress levels show that
high stress levels are developed during short-duration forced
submergences and that the turtles may require 7 to 9 hours to recover
from the stress effects of submergences no longer than 7.3 minutes
(Stabenau et al., 1991). Repeat captures and forced submergences in
shrimp trawls, compounded by longer release times from bottom-opening
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 implementation of these 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 better protect
sea turtles and manage shrimp trawl-sea turtle interactions in these
areas. The impact of this faster schedule on the shrimp trawl fleet is
expected to be small, though. The proposed SFSTCAs in the Gulf and
Atlantic include areas that were either included in the ERP's interim
special management areas as potentially subject to gear restrictions or
were actually included in gear restrictions implemented during 1995 in
response to sea turtle mortality emergencies. Shrimp trawlers subject
to any gear restrictions in 1995 will already have been required to
purchase hard TEDs and either reduce the size of their try nets or
install hard TEDs in their try nets. No additional burden would be
imposed on those shrimpers to acquire new gear. In the Gulf SFSTCA,
Zones 13-16 were not subject to gear restrictions, but shrimpers in
that area were notified of potential additional gear requirements as
specified in the ERP. Nearshore shrimpers in Louisiana, however, are
reportedly already using primarily hard TEDs and the elimination of the
approval of soft TED use should affect only a small proportion of
shrimpers. Finally, there is no significant financial burden associated
with requiring the use of top-opening TEDs instead of bottom-opening
TEDs. Most shrimpers can convert existing bottom-opening hard TEDs to
top-opening easily.
Shrimp Industry Advisory Panel
NMFS wishes to establish a shrimp industry panel to provide
individualized advice to the agency on all management aspects of the
TED regulations, although NMFS does not have sufficient information to
make a specific proposal at this time. Such a panel would convene
periodically to bring concerns of the industry and particular problems
with regulations to the attention of the agency. It would provide a
forum for NMFS to discuss matters such as revisions to gear types, new
TED designs, and improvements to the TED regulations. NMFS does attempt
to seek input from fishermen regarding its management actions through
comment periods, public hearings, TED technology transfer workshops,
and informal contacts; however, these means are not optimal for
overcoming serious communication barriers between NMFS and shrimpers.
Several problems contribute to this communications barrier including
distrust on the part of shrimpers that their input is honestly heard,
the conflict of shrimpers' work demands with their full participation
in a dialogue with fishery managers, and the absence of a forum where
open discussions about problems and plans to overcome them can be held.
Another difficulty is the large number of participants in the shrimp
fishery, and the fact that relatively few of them belong to industry
associations that can represent their collective views.
NMFS intends to pursue the creation of a shrimp industry advisory
panel, but must first clarify the exact means of doing so. In addition
to comments on this proposed rule, NMFS is also seeking comments on
implementation 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 various diverse
sections of the shrimp trawling fleets. If a feasible way to select
membership for the panel can be developed, NMFS will attempt to
identify and obtain necessary funding to implement the panel.
Request for Comments
NMFS will accept written comments (see ADDRESSES) on this proposed
rule and on the proposed shrimp industry advisory panel until June 10,
1996. In addition, NMFS will conduct ten public hearings on this
action.
The hearings are scheduled as follows:
1. May 10, 1996, at 7 p.m., St. Petersburg, FL
2. May 14, 1996, at 7 p.m., Cameron, LA
3. May 15, 1996, at 6 p.m., Thibodaux, LA
4. May 16, 1996, at 6 p.m., Mobile, AL
5. May 21, 1996, at 6 p.m., Port Isabel, TX
6. May 22, 1996, at 6 p.m., Corpus Christi, TX
7. May 22, 1996, at 7 p.m., Bolivia, NC
8. May 23, 1996, at 6 p.m., Galveston, TX
9. May 23, 1996, at 6:30 p.m., Charleston, SC
10. May 24, 1996, at 6:30 p.m., Brunswick, GA
The hearings will be held at the following locations:
1. University of South Florida, Davis Hall, Room 130, 140 7th
Avenue South, St. Petersburg, FL 33701
2. Cameron Elementary School, Auditorium, 510 Marshall Street,
Cameron, LA 70631
3. Thibodaux Civic Center, Plantation Room, 310 North Canal
Boulevard, Thibodaux, LA 70301
4. Mobile Civic Center, Meeting Room 16, 401 Civic Center Drive,
Mobile, AL 36601
5. Port Isabel Community Center, Conference Room, 213 Yturria
Street, Port Isabel, TX 78578
6. Texas A&M University Agricultural Research & Extention Center,
Route 2, Box 589 (Highway 44, 5 miles west of airport), Corpus Christi,
TX 78406
7. North Carolina Cooperative Extension Service, Brunswick County
Government Center, Agriculture Building, (Foods Lab), 10 Referendum
Drive, Bolivia, NC 28422
8. Texas-Galveston County Court House, (Jury assembly room, 1st
floor), 722 Moody, Galveston, TX 77550
9. South Carolina Marine Resources Research Institute,
(Auditorium), 217
[[Page 18115]]
Fort Johnson Road, Charleston, SC 29412
10. University of Georgia Marine Extension Service Office,
(Conference room), 715 Bay Street, Brunswick, GA 31520
References Cited
Henwood, T.A. and W.E. Stuntz. 1987. Analysis of Sea Turtle
Captures and Mortalities during Commercial Shrimp Trawling. Fishery
Bulletin: Vol. 85, No.4, pp. 813-817.
Renaud, M., G. Gitschlag, E. Klima, A. Shah, D. Koi, and J. Nance.
1991. Evaluation of the Impacts of Turtle Excluder Devices (TEDs) on
Shrimp Catch Rates in Coastal Waters of the United States Along the
Gulf of Mexico and Atlantic, September 1989 through August 1990. NOAA
Technical Memorandum, NMFS-SEFC-288.
Ward, J.M. 1989. Modeling Fleet Size in the Gulf of Mexico Shrimp
Fishery 1966-1979. NOAA Technical Memorandum NMFS-SEFC-229, 8p.
Stabenau, E.K., T.A. Heming, and J.F. Mitchell. 1991. Respiratory,
acid-base, and ionic status of Kemp's ridley sea turtles (Lepidochelys
kempi) subjected to trawling. Comparative Biochemistry and Physiology A
99:107-111.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
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 that this proposed rule would not
have 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 shrimpers. The Assistant Administrator for
Fisheries, NOAA, (AA) prepared an EA for this proposed rule and copies
are available (see ADDRESSES).
List of Subjects
50 CFR Part 217
Endangered and threatened species, Exports, Fish, Imports, Marine
mammals, Transportation.
50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: April 19, 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 proposed to be 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, and the
definition of ``Approved TED'' is revised, to read as follows:
Sec. 217.12 Definitions.
* * * * *
Approved TED means:
(1) A hard TED that complies with the generic design criteria set
forth in 50 CFR 227.72(e)(4)(i). (A hard TED may be modified as
specifically authorized by 50 CFR 227.72(e)(4)(iv)); or
(2) A special hard TED that complies with the provisions of 50 CFR
227.72(e)(4)(ii); or
(3) Prior to December 31, 1996, a soft TED that complies with the
provisions set forth in 50 CFR 227.72(e)(4)(iii).
* * * * *
Atlantic Shrimp Fishery-Sea Turtle Conservation Area (Atlantic
SFSTCA) means the inshore and offshore waters along the coast of the
States of Georgia and South Carolina from the Georgia-Florida border to
the North Carolina-South Carolina border extending to 10 nautical miles
(18.5 km) offshore.
* * * * *
Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA)
means the offshore waters along the coast of the States of Texas and
Louisiana from the South Pass of the Mississippi River to the U.S.-
Mexican border extending to 10 nautical miles (18.5 km) offshore.
* * * * *
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)(F),
(e)(4)(iii) introductory text, (e)(5) heading and (e)(5)(i) are revised
to read as follows:
Sec. 227.72 Exceptions to prohibitions.
* * * * *
(e) * * *
(2) * * *
(ii) * * *
(B) * * *
(1) (i) Effective December 31, 1996, 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 31, 1996, 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;
(iii) Prior to December 31, 1996, 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;
* * * * *
(4) * * *
(i) * * *
(F) Position of escape opening. (1) In areas other than the Gulf
SFSTCA or the Atlantic SFSTCA, the entire width of the escape opening
from the trawl must be centered on and immediately forward of the frame
at either the top or bottom of the net when the net is in its deployed
position. The escape opening must be at the top of the net when the
slope of the deflector bars from forward to aft is upward, and must be
at the bottom when such slope is downward. For a single-grid TED, the
escape opening must be cut horizontally along the same plane as the
TED, and may not be cut in a fore-and-aft direction.
(2) In the Gulf SFSTCA and the Atlantic SFSTCA, the entire width of
the escape opening from the trawl must be centered on and immediately
forward of the frame at the top of the net when the net is in its
deployed position. The slope of the deflector bars from forward to aft
must be upward. For a single-grid TED, the escape opening must be cut
horizontally along the same plane as the TED, and may not be cut in a
fore-and-aft direction.
* * * * *
(iii) Soft TEDs (applicable until December 31, 1996). Soft TEDs are
TEDs
[[Page 18116]]
with deflector panels made from polypropylene or polyethylene netting.
In the Gulf SFSTCA and the Atlantic SFSTCA, soft TEDs are not approved
TEDs. Prior to December 31, 1996, in areas other than the Gulf SFSTCA
and Atlantic SFSTCA, the following soft TEDs are approved TEDs:
* * * * *
(5) Revision of generic design criteria, allowable modification of
hard TEDs, additional special hard TEDs.
(i) The Assistant 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, or may approve allowable
modifications to hard TEDs in addition to those authorized in paragraph
(e)(4)(iv) of this section, by a regulatory amendment, if, according to
a NMFS-approved scientific protocol, the TEDs demonstrate a sea turtle
exclusion rate of 97 percent or greater (or an equivalent exclusion
rate). Testing under the 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.
* * * * *
[FR Doc. 96-10087 Filed 4-19-96; 4:16 pm]
BILLING CODE 3510-22-F
