[Federal Register Volume 60, Number 85 (Wednesday, May 3, 1995)]
[Rules and Regulations]
[Pages 21741-21745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10796]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 217 and 227
[Docket No. 950427119-5119-01; I.D. 042495C]
RIN 0648-AH98
Sea Turtle Conservation; Restrictions Applicable to Shrimp
Trawling Activities; Additional Turtle Excluder Device Requirements
Within Certain Statistical Zones
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary additional restrictions on fishing by shrimp trawlers
in nearshore waters along two sections of the Texas and Louisiana coast
to protect sea turtles; request for comments.
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SUMMARY: NMFS is temporarily imposing additional restrictions on
fishing by shrimp trawlers in Gulf of Mexico offshore waters out to 10
nautical miles (nm)(18.5 km) from the COLREGS line, along 2 sections of
the Texas and Louisiana coasts, between 27 deg. N. lat. and 28 deg. N.
lat. and between 95 deg.13' W. long. and 93 deg.20.5' W. long. for a
30-day period. This area includes nearshore waters in shrimp fishery
statistical zones 18 and 20, the western portion of zone 17 east to
Calcasieu Pass, Louisiana and the extreme northeastern portion of Zone
19. The restrictions include prohibition of the use of soft turtle
excluder devices (TEDs), the use of bottom opening TEDs, the use of
webbing flaps that completely cover the escape opening of TEDs, and the
use of try nets by shrimp trawlers, unless the try nets are equipped
with NMFS-approved TEDs other than soft or bottom-opening TEDs. This
action is necessary to prevent the continuation of high levels of
mortality and strandings of threatened and endangered sea turtles.
DATES: This action is effective 12:01 a.m. (local time) on April 30,
1995, through 11:59 p.m. (local time) on May 29, 1995. Comments on this
action must be submitted by May 30, 1995.
ADDRESSES: Comments on this action and requests for a copy of the
environmental assessment (EA) or supplemental biological opinion (BO)
prepared for this action should be addressed to the Chief, Endangered
Species Division, Office of Protected Resources, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 813-570-5312, or
Russell Bellmer, 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
All sea turtles that occur in United States (U.S.) waters are
listed as either endangered or threatened under the Endangered Species
Act of 1973 (ESA). The Kemp's ridley (Lepidochelys kempii), leatherback
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia
mydas) turtles are listed as threatened, except for breeding
populations of green turtles in Florida and on the Pacific coast of
Mexico, which are listed as endangered.
The incidental take and mortality of sea turtles, as a result of
shrimp trawling activities have been documented in the Gulf of Mexico
and along the Atlantic Seaboard. Under the ESA and its implementing
regulations, taking sea turtles is prohibited, with exceptions set
forth at 50 CFR 227.72. The incidental taking of turtles during shrimp
trawling in the Gulf and Atlantic Areas is excepted from the taking
prohibition, if the sea turtle 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.
The conservation regulations provide a mechanism to implement
further restrictions of fishing activities, if necessary to avoid
unauthorized takings of sea turtles that may be likely to jeopardize
the continued existence of listed species or that would violate the
terms and conditions of an incidental take statement or biological
opinion (50 CFR 227.72(e)(6)). Upon a determination that incidental
takings of sea turtles during fishing activities are not authorized,
additional restrictions will be imposed to conserve listed species.
These restrictions are effective for a period of up to 30 days and may
be renewed for additional periods of up to 30 days each.
November 14, 1994--Biological Opinion
On November 14, 1994, NMFS issued a biological opinion (Biological
Opinion), which concluded that the continued long term operation of the
shrimp fishery in the nearshore waters of the southeastern U.S. was
likely to jeopardize the continued existence of the highly endangered
Kemp's ridley sea turtle. This Biological Opinion resulted from an ESA
section 7 consultation that was reinitiated in response to the
unprecedented number of dead sea turtles that stranded along the coasts
of Texas, Louisiana, and Georgia in the spring and summer of 1994,
coinciding with heavy nearshore shrimp trawling activity. Pursuant to
section 7(b)(4) of the ESA, NMFS provided a reasonable and prudent
alternative to the existing management measures that would allow the
shrimp fishery to continue without jeopardizing the continued existence
of the Kemp's ridley sea turtle. In addition, the Biological Opinion is
accompanied by an incidental take statement, pursuant to section
7(b)(4)(i) of the ESA, that specifies the impact of such incidental
taking on the species. The incidental take statement provides two
levels to identify the expected incidental take of sea turtles by
shrimp fishing. The incidental take levels are based upon either
documented takes or indicated takes measured by stranding data.
Stranding data are considered an indicator of lethal take in the shrimp
fishery during periods in which intensive shrimping effort occurs and
there are no significant or intervening natural or human sources of
mortality other than shrimping conclusively identified as the cause of
strandings.
NMFS has established an indicated take level (ITL) by identifying
the weekly average number of sea turtle strandings documented in each
NMFS statistical zone for the last three years (taking into
consideration anomalous years). In Texas and Georgia, where strandings
were anomalously high in 1994, the years 1991 through 1993 were used to
determine historical levels. The weekly average was computed as a five-
week running average (two weeks before and after the week in question)
to reflect seasonally fluctuating events such as fishery openings and
closures and turtle migrations. The ITL for each zone was set at two
times the weekly three year stranding average. For weeks and zones
where the historical average is less than one, the ITL has been set at
two strandings. [[Page 21742]]
The Emergency Response Plan
The reasonable and prudent alternative of the November 14, 1994,
Biological Opinion and the accompanying incidental take statement
required NMFS to develop and implement an Emergency Response Plan (ERP)
to respond to future stranding events and to ensure compliance with sea
turtle conservation measures. The Assistant Administrator for
Fisheries, NOAA, (AA) approved the ERP on March 14, 1995, and published
a notice of availability on April 21, 1995 (60 FR 19885). The ERP
provides for elevated enforcement of TED regulations in two areas in
which strandings of Kemp's ridley sea turtles are historically high.
The first, the Atlantic Interim Special Management Area includes shrimp
fishery statistical Zones 30 and 31 (northeast Florida and Georgia).
The second, the Northern Gulf Interim Special Management Area, includes
statistical Zones 13 through 20 (Louisiana and Texas from the
Mississippi River to North Padre Island). The ERP also establishes
procedures for notifying NMFS of sea turtle stranding events, and
provides guidelines for implementation of temporary restrictions to
prevent take levels in the Biological Opinion from being exceeded.
As described in the ERP, restrictions in addition to those already
imposed by 50 CFR 227.72(e) will be placed on shrimping in the Interim
Special Management Areas if 75 percent or more of the ITL is reached
for 2 consecutive weeks. The ERP states that the restrictions are
expected to be:
1. Prohibition of the use of soft TEDs;
2. Prohibition of the use of bottom opening TEDs;
3. Prohibition of the use of try nets, unless equipped with NMFS-
approved TEDs other than soft or bottom-opening TEDs; and
4. Prohibition of the use of webbing flaps that completely cover
the escape opening of TEDs, as described in the Requirements section
herein.
In addition, when strandings remain elevated for one month in zones
outside the Interim Special Management Area, the Director, Southeast
Region, NMFS, may determine that management actions, similar to those
specified for the Interim Special Management Areas, will be
implemented.
Recent Stranding Events
Sea turtle strandings on offshore beaches in a number of fishery
Statistical Zones in Texas have been elevated beyond historical levels
in the spring of 1995.
Shrimp effort declined in south Texas waters in early March from
unusually high levels of effort in February, and strandings were
generally low throughout Texas during March. In Zone 20, 6 turtles
stranded between January 1 and March 18, 1995; all 6 carcasses
exhibited severed flippers or other straight-edge wounds. During the 2
consecutive weeks beginning on April 9, 1995, 3 turtles stranded per
week on the offshore beaches of Zone 20, where the ITL was 4 turtles.
Of those 6 turtles, 3 were Kemp's ridleys. One of the loggerhead
turtles recovered in Zone 20 exhibited straight-edge wounds. Most
recently, during the first 2 days of the week beginning on April 23, 5
turtles, including 3 ridleys, have stranded in Zone 20.
Elevated strandings for two consecutive weeks have been reported
for two additional zones in Texas. Within Zone 19, strandings were
above historical levels and met or exceeded the established ITL between
March 26, 1995 and April 8, 1995. However, only one turtle stranded in
each of the two following weeks. In Zone 21, which lies outside the
Interim Special Management Areas, stranding levels were at or above the
ITL from March 26 to April 15, but fell to only 1 stranding between
April 16 and April 22. Because the most recent stranding reports from
Zones 19 and 21 have been low, no management action for those zones is
being promulgated at this time, but may be required if strandings again
rise in those zones.
The most severe stranding rates occurred in Zone 18. Strandings
were low in zone 18 until the week beginning April 9, when 12 turtles
stranded on offshore beaches, including 9 Kemp's ridleys. A headstarted
Kemp's ridley also stranded. For comparison, from 1991-1993, only 1
turtle stranded in Zone 18 during the same time period. During the week
beginning April 16, 16 turtles, including 14 Kemp's ridleys, stranded.
Shrimping Effort and Enforcement
Comprehensive shrimp effort data are not yet available. However,
preliminary information regarding activity within observed ports has
been collected from NMFS Port Agents and Texas state officials. The
data submitted in mid-April, based on landings and port activity,
indicated that the fishery active in Texas and Louisiana did not appear
to be significantly different from previous years. However, United
States Coast Guard (USCG) personnel conducting overflights off Texas
during the week of April 23, reported extremely heavy shrimping effort
nearshore in Zones 18 and 20. The location and level of effort has
varied, and has been affected, in part, by fluctuating weather
conditions. Beach workers have reported concentrations of shrimping
vessels in the vicinity of strandings during the week beginning April 9
and April 16. Recent turbulent weather may have shifted effort into
nearshore waters where white shrimp are being targeted.
Enforcement efforts have been increased in the Northern Gulf
Interim Special Management Area, especially in Zones 17 through 20. The
USCG has doubled their normal operating level in response to the
increased strandings reported in early April. NMFS TED Law Enforcement
Team members have been deployed to the northern Gulf since April 1.
Additional NMFS agents were added to enforcement efforts in Texas
during the week of April 16-22 due to the continued strandings.
Enforcement efforts have not identified any recurring gear problems
in the northern Gulf in 1995. NMFS gear specialists have been
conducting informational and training workshops to assist shrimpers use
TEDs. They report encountering soft TEDs with escape openings that were
too small and hard TEDs with illegal ramps. Two net shops in Alabama
were identified that were unaware that hard TEDs with ramps were not
legal, and they have stopped manufacturing TEDs with ramps.
Analysis of Other Factors
NMFS has investigated factors other than shrimping that may
contribute to sea turtle mortality in the northern Gulf, including
environmental conditions, oil and gas activities, and other fisheries.
There is no information to suggest that red tide or other environmental
conditions have contributed to sea turtle strandings thus far in 1995.
There were no oil platform removals by explosives during March 1995.
One platform was removed on April 17 and 18, 30 miles (48.27 km) south
of Cameron, LA. No sea turtles were sighted by the NMFS observers
monitoring the rig removal. Seismic survey vessels have been operating
throughout the northern Gulf, primarily beyond 10 nm (18.5 km) from
shore. One vessel was operating from the beach in the center of the
Matagorda Peninsula (Zone 19) out to 9 nm (16.7 km) between April 16
and April 18, during a week of low strandings for that zone. Seismic
activities will be ongoing from Freeport through the southern end of
the Matagorda Peninsula for the rest of the summer. NMFS has no
information to suggest that seismic activities result in sea turtle
mortalities. While observers on menhaden vessels have never observed
the incidental take of a sea turtle, interactions with the
[[Page 21743]] menhaden fishery are possible, but not likely to be
fatal. The menhaden fishery opens the third Monday in April in northern
Gulf waters (April 17 in 1995), and therefore would not have
contributed to any of the strandings documented before that time.
A preliminary analysis of satellite sea surface data for the Gulf
of Mexico, indicates that oceanographic conditions along the Texas-
Louisiana coast are normal for this time of the year. The normal
current flow from northeast to southwest along the Texas and Louisiana
coastline is in place.
Restrictions on Fishing by Shrimp Trawlers
The Biological Opinion provides that conservation measures are to
be implemented as mortality levels approach incidental take levels
established in the Incidental Take Statement in order to ensure that
shrimping is not likely to jeopardize the continued existence of Kemp's
ridley. The Biological Opinion specifically provides that such measures
will be implemented immediately when sea turtle takings, indicated or
documented, reach 75 percent of the established levels. These measures
are intended to allow shrimp fishing to continue, while reducing the
likelihood of further sea turtle strandings. The ERP provides further
guidance on the nature and geographic scope of such measures. As noted
in the foregoing discussion, strandings have met or exceeded the 75
percent threshold of the ITL in zones 18 and 20, therefore conservation
measures are being promulgated.
Pursuant to 50 CFR 227.72(e)(6), the exemption for incidental
taking of sea turtles in 50 CFR 227.72(e)(1) does not authorize the
incidental takings during fishing activities if the takings would
violate the restrictions, terms or conditions of an incidental take
statement or biological opinion, and may be likely to jeopardize the
continued existence of a species listed under the Act. The AA has
determined that continued takings of sea turtles by shrimp fishing are
unauthorized, and therefore promulgates this action.
The measures that NMFS is promulgating include:
1. Prohibition of the use of soft TEDs;
2. Prohibition of the use of bottom opening TEDs;
3. Prohibition of the use of try nets, unless equipped with NMFS-
approved TEDs other than soft or bottom-opening TEDs; and,
4. Prohibition of the use of webbing flaps that completely cover
the escape opening of TEDs, as described in the Requirements section
herein.
These restrictions are being applied in the Gulf of Mexico offshore
waters seaward to 10 nm (18.5 km) along 2 sections of the Texas and
Louisiana coasts, between 27 deg. N. lat. and 28 deg. N. lat. and
between 95 deg.13' W. long. and 93 deg.20.5' W. long. Under 50 CFR
217.12, offshore is defined as marine and tidal waters seaward of the
72 COLREGS demarcation line (International Regulations for Preventing
Collisions at Sea, 1972), as depicted or noted on nautical charts
published by the NOAA (Coast Charts, 1:80,000 scale) and as described
in 33 CFR part 80.
This area includes the nearshore waters of Zones 20 and 18, where
elevated sea turtle strandings are occurring, and the western portion
of Zone 17 east to Calcasieu Pass, LA, and the extreme northeastern
portion of zone 19. This portion of Zone 17 is included in the affected
area for several reasons. The first is the likelihood that some of the
carcasses documented in Zone 18 were taken in Zone 17 and carried into
Zone 18 by the westward flowing current. Secondly, the areas
immediately around Sabine Pass and Calcasieu Pass have been identified
as high-use habitat for Kemp's ridley turtles. They are also the sites
of heavy shrimping effort. Thirdly, limiting the restricted area to the
eastern boundary of Zone 17 may shift some shrimping effort to the
east, increasing the already heavy fishing pressure around Sabine Pass
and Calcasieu Pass and increasing the threat to sea turtles from
intensive shrimp trawling. Finally, in the week beginning April 16,
1995, 2 Kemph's ridley turtles stranded in the Texas portion of Zone
17, which includes only about 8.5 nm (14.8 km) of the 58 miles (93.3
km) of coastline in Zone 17. No strandings have been reported in the
Louisiana portion of Zone 17, but most of the shoreline in Louisiana is
inaccessible or poorly monitored for sea turtle strandings. As
described in the ERP, NMFS may extend conservation measures in any
statistical zone to portions of contiguous zones as determined
necessary.
These restrictions will allow fishing by shrimp trawlers to
continue in these statistical areas despite elevated rates of turtle
strandings. Gear types that have the greatest potential for turtle
capture are prohibited. Although soft TEDs and bottom opening TEDs are
generally approved for use, NMFS believes that they may not be as
effective, under some conditions, as top opening hard TEDs at releasing
turtles. NMFS has previously promulgated regulations to address and
discuss problems with bottom-opening hard TEDs (59 FR 33447, June 29,
1994; 60 FR 15512, March 24, 1995). Notwithstanding the required use of
floats, turtles may be more susceptible to capture in bottom-opening
TEDs. Pursuant to 50 CFR 227.72(e)(2)(ii)(B)(1), try nets 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.
Turtles are, however, caught in try nets, and either through repeated
captures or long tows, try nets can contribute to the mortality of sea
turtles. Takes of sea turtles in try nets, including one mortality,
have been documented by NMFS. Finally, webbing flaps have been
permitted to help reduce shrimp loss with TEDs, but may be hindering
turtle release. In a top-opening TED, high pressure is generated above
the trawl net which forces the webbing flap closed; while in a bottom-
opening TED, the weight of the TED grid can pin the webbing flap shut
over the escape opening. Additionally, the webbing flap can be sewn
shut to disable the TED deliberately. Under these temporary
restrictions, only NMFS-approved hard or special hard TEDs with top
escape openings may be used in shrimp trawls in the specified areas. If
flaps are used, they may not cover the escape opening. Figure 1
illustrates a top-opening hard TED with a shortened webbing flap
meeting the dimension requirements of this emergency action.
Requirements
This action is authorized by 50 CFR 227.72(e)(6). The definitions
in 50 CFR 217.12 are applicable to this action, as well as all relevant
provisions in 50 CFR parts 217 and 227. For example, Sec. 227.71(b)(3)
provides that it is unlawful to fish for or possess fish or wildlife
contrary to a restriction specified or issued under Sec. 227.72 (e)(3)
or (e)(6).
NMFS hereby notifies owners and operators of shrimp trawlers (as
defined in 50 CFR 217.12) that for a 30-day period, starting 12:01 a.m.
(local time) on April 30, 1995, and ending 11:59 p.m. (local time) on
May 30, 1995, fishing by shrimp trawlers in offshore waters, seaward to
10 nm (18.5 km) from the COLREGS line, along 2 sections of the Texas
and Louisiana coast, the first bounded between 27 deg. N. lat. and
28 deg. N. lat. and the second bounded between 95 deg.13' W. long. and
93 deg.20.5' W. long., is prohibited unless shrimp trawlers comply with
the following restrictions to the exceptions for incidental taking in
50 CFR 227.72(e):
1. Use of soft TEDs described in 50 CFR 227.72(e)(4)(iii) is
prohibited. [[Page 21744]]
2. Use of hard TEDs with bottom escape openings and special hard
TEDs with bottom escape openings is prohibited. Approved hard TEDs and
special hard TEDs must be configured with the slope of the deflector
bars upward from forward to aft and with the escape opening at the top
of the trawl.
3. Use of try nets with a headrope length of 20 ft (6.1 m) or less
is prohibited unless an NMFS-approved top-opening, hard TED or special
hard TED is installed when the try nets are rigged for fishing.
4. Use of a webbing flap that completely covers the escape opening
in the trawl is prohibited. Any webbing which is attached to the trawl,
forward of the escape opening, must be cut to a length so that the
trailing edge of such webbing does not approach to within 2 inches (5.1
cm) of the posterior edge of the TED grid (see Figure 1). The
requirements for the size of the escape opening are unchanged.
All provisions in 50 CFR 227.72(e), including, but not limited to
50 CFR 227.72(e)(2)(ii)(B)(1) (use of try nets), 50 CFR
227.72(e)(4)(iii) (approval of soft TEDs), 50 CFR 227.72(e)(4)(i)(F)
(position of escape opening), and 50 CFR 227.72(e)(4)(iv)(C) (webbing
flap), that do not conform to these requirements are hereby suspended
for the duration of this action.
NMFS hereby notifies owners and operators of shrimp trawlers in the
area subject to restrictions that they may be required to carry an
NMFS-approved observer aboard such vessel(s) if selected to do so by
the Director, Southeast Region, NMFS, upon written notification sent to
either the address specified for the vessel registration or
documentation purposes, or otherwise served on the owner or operator of
the vessel. Shrimp trawlers must comply with the terms and conditions
specified in such written notification.
Additional Conservation Measures
The AA may withdraw or modify the requirement for specific
conservation measures or any restriction on shrimping activities if the
AA determines that such action is warranted. Notification of any
additional sea turtle conservation measures, including any extension of
this 30-day emergency action, will be published in the Federal Register
pursuant to 50 CFR 227.72(e)(6).
NMFS will continue to monitor sea turtle strandings to gauge the
effectiveness of these conservation measures. If, after these
restrictions are instituted, strandings in statistical areas 17, 18,
and/or 20 persist at or above 75 percent of the ITL for 2 weeks, NMFS
will follow the guidance in the ERP to determine whether to prohibit
fishing by some or all shrimp trawlers, as required, in the offshore
waters of statistical areas 17, 18, and/or 20 seaward to 10 nm (18.5
km) from the COLREGS line, for a period of 30 days. Contiguous
statistical areas or portions of those areas may be included in the
closure as necessary. These restrictions may apply to gear types/
vessels currently exempted from the TED requirement at 50 CFR
227.72(e)(2)(ii) (A) and/or (B). Area closures will be promulgated
through emergency rulemaking notices pursuant to the procedures
identified at 50 CFR 227.72(e)(6).
Classification
The AA has determined that this action is necessary to respond to
an emergency situation to conserve and provide adequate protection for
endangered and threatened sea turtles pursuant to the ESA and other
applicable law.
Because neither section 553 of the Administrative Procedure Act
(APA), nor any other law requires that general notice of proposed
rulemaking be published for this action, and under section 603(b) of
the Regulatory Flexibility Act, an initial Regulatory Flexibility
Analysis is not required.
This action has been determined to be not significant for purposes
of E.O. 12866.
Pursuant to section 553(b)(B) of the APA, the AA finds there is
good cause to waive prior notice and opportunity to comment on this
rule. It is impracticable and contrary to the public interest to
provide prior notice and opportunity for comment because unusually high
levels of turtle strandings have been reported in shrimp fishery
statistical areas 18 and 20 and continue to occur as shrimping
continues. Any delay in this action will likely result in additional
fatal takings of listed sea turtles.
Pursuant to section 553(d) of the APA, the AA finds there is good
cause to waive the 30-day delayed effective date. In addition to the
need to protect listed sea turtles, these restrictions are expected to
impose only a minor burden on shrimp fishermen. The predominant TED
design in use in the affected area is a bottom-opening hard grid TED.
Bottom-opening hard grid TEDs can be modified to comply with these
restrictions in one to two hours. Any webbing flap over the escape
opening can be shortened in less than ten minutes. Trawlers equipped
with soft TEDs may be required to move out of the affected area, either
offshore or alongshore, or to equip their nets with hard TEDs. Hard
grid TEDs are available for as little as $75.00 and take several hours
to install. Finally, some fishermen may not elect to equip their try
nets with hard grid TEDs. These fishermen would then be unable to
monitor their catch rate during long tows.
The AA prepared an EA for the final rule (57 FR 57348, December 4,
1992) requiring TED use in shrimp trawls and establishing the 30-day
notice procedures. A supplemental EA has been prepared for this action.
Copies of the EA and the supplemental EA are available (see ADDRESSES).
Dated: April 27, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
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[FR Doc. 95-10796 Filed 4-27-95; 4:48 pm]
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