Sea Turtle Conservation; Shrimp Trawling Requirements

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 930479-4171; I.D. 052794A]

RIN 0648-AG69

Sea Turtle Conservation; Shrimp Trawling Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS amends the regulations protecting sea turtles to allow

compliance with tow-time limits as an alternative to the use of turtle

excluder devices (TEDs) by shrimp trawlers in a 30-square mile (48.3-

square km) area off the coast of North Carolina (North Carolina

Restricted Area) through November 30, 1994. This area seasonally

exhibits high concentrations of red and brown algae that make trawling

with TEDs impracticable. This final rule authorizes a 30-minute tow

limit through August 15, 1994; a 55-minute tow limit from August 16

through October 31, 1994; and a 75-minute tow limit from November 1

through November 30, 1994, to allow shrimp trawlers to harvest shrimp

efficiently during their traditional shrimping season (March through

November) and maintain adequate protection for sea turtles in this

area.

EFFECTIVE DATE: June 27, 1994.

ADDRESSES: Send comments to Dr. William Fox, Jr., Director, Office of

Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD

20910. Comments on the collection-of-information requirement subject to

the Paperwork Reduction Act should be directed to the Office of

Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD

20910; Attention: Phil Williams; and to the Office of Information and

Regulatory Affairs of OMB, Washington, DC 20503, Attention: Desk

Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Phil Williams, Acting Chief,

Endangered Species Division, NMFS (301/713-2319), or Charles A.

Oravetz, Chief, Protected Species Program, NMFS Southeast Region (813/

893-3366).

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), U.S.C. 1531 et seq. Incidental capture by shrimp trawlers has

been documented for five species of sea turtles that occur in offshore

waters of North Carolina. Sea turtle conservation regulations at 50 CFR

parts 217 and 227 require all shrimp trawlers, regardless of length, in

offshore waters of the Atlantic Area, including off North Carolina, to

have an approved TED installed year-round in each net rigged for

fishing, unless specifically exempted.

NMFS has allowed shrimpers in the North Carolina restricted area to

limit tow-times, rather than use TEDs, due to the presence of algae

that makes trawling with TED-equipped nets impracticable. A

comprehensive list of cites relating to this exemption is as follows:

57 FR 33452 (July 29, 1992); 57 FR 40859 (September 8, 1992); 57 FR

45986 (October 6, 1992); 57 FR 52735 (November 5, 1992); 57 FR 57968

(December 8, 1992); 58 FR 19631 (April 12, 1993); 58 FR 28793 (May 12,

1993); 58 FR 33219 (June 11, 1993); 58 FR 38537 (July 13, 1993); and 58

FR 43820 (August 18, 1993).

NMFS proposed a permanent exemption on May 25, 1993 (58 FR 30007),

and a discussion of special environmental conditions, an assessment of

the algae problem, a history of the local fishery, and a discussion of

tow times can be found there. Comments received on the proposed rule

were addressed in an interim final rule extending the tow-time

allowance through November 30, 1993 (September 21, 1993, 58 FR 48975).

No comments were received on the most recent interim final rule.

This final rule implements the exemption through November 30, 1994,

instead of permanently, as provided in the proposed rule. NMFS decided

to implement this final rule only for the current fishing season for

several reasons. First, NMFS believes that close review of algae

conditions and tow time compliance is necessary to ensure that the

exemption is effective in preventing incidental takes. Second, NMFS is

considering implementation of an incidental take permit system under

section 10 of the ESA that could authorize this exemption through an

incidental take permit. An incidental take permit would require

periodic NMFS review and a conservation plan, thereby ensuring

consistent enforcement and mitigation of any incidental takes.

NMFS' review of the North Carolina restricted area exemption

program for the 1992-1993 season indicates that sea turtle mortalities

do not appear to be associated with the allowance of tow times in lieu

of TEDs. NMFS has reached this conclusion based on the lack of

observer-documented takes, the observed compliance with tow-time

restrictions, the cooperation of the fishermen, the small number of

participants in the fishery, and the local knowledge required to trawl

in the restricted area without losing gear on bottom obstructions

(which effectively limits entry into the fishery). These factors are

discussed in previous temporary rules and in the proposed rule (see

above citations). NMFS is particularly concerned about possible

interactions between shrimping operations and turtles during the turtle

nesting season. NMFS will continue to monitor this situation during the

remainder of the 1994 shrimping season.

Based on information received during the 1992-1993 season, NMFS has

determined that algal concentrations may be characteristic of the

restricted area or may recur in an intermittent or unpredictable

pattern and, thus, render TED-use impracticable. NMFS will continue to

monitor algal concentrations to determine whether these concentrations

are consistently problematic or whether there are times or seasons when

TEDs could be used. Shrimp trawling observed out of Sneads Ferry, NC,

on April 28, 1994, confirmed the presence of algal concentrations

sufficient to clog three of four Anthony Weedless TEDs used in the

observed tows.

This rule makes effective for the remainder of the traditional

shrimping season, through November 30, 1994, the policies and

procedures that were temporarily in effect in the North Carolina

restricted area under previous exemptions. Specifically, under this

final rule, tow times in the North Carolina restricted area are limited

to 30 minutes through August 15; 55 minutes from August 16 through

October 31; and 75 minutes from November 1 through November 30, 1994.

These measures should not, in the long run, significantly impact

fishermen's normal trawl times, since heavy algae concentrations

characteristic of the warmer months cause fishermen to voluntarily

shorten tow times to approximately 15-30 minutes. When algal

concentrations are light, shrimpers usually opt to use TEDs.

Also, under this final rule, registration with the Director,

Southeast Region, NMFS (Regional Director), is required before a vessel

may trawl in the restricted area, and vessels using the tow-time

alternative are required to carry a NMFS-approved observer if requested

to do so by the Regional Director. The observer will monitor compliance

with required conservation measures, including restricted tow times,

and resuscitation of any captured turtles in accordance with 50 CFR

227.72(e)(1)(i). Data collected by observers may be used for

enforcement purposes. Violations of tow-time restrictions documented by

North Carolina enforcement officers may be prosecuted under the ESA by

the Office of the General Counsel, NMFS, Southeast Region. In addition,

violators may face prosecution under State law. NMFS and North Carolina

Division of Marine Fisheries (NCDMF) will jointly monitor compliance

with the tow-time alternative.

In addition, this rule makes a technical correction to the general

tow-time provision of 50 CFR 227.72(e)(3)(i). The interim rule

published September 21, 1993 (58 FR 48977) inadvertently amended this

section to apply only to 1993. This final rule revises the general tow

time provision to apply every year, as intended.

Additional Sea Turtle Conservation Measures

Pursuant to the provisions of 50 CFR 227.72(e) (3) and (6), the

Assistant Administrator for Fisheries, NOAA, (AA) may modify the

required conservation measures by publishing notification in the

Federal Register, if necessary, to ensure adequate protection of

endangered and threatened sea turtles. Under this procedure, the AA

would impose any necessary additional or more stringent measures,

including more restrictive tow times, synchronized tow times, or

termination of the tow-time alternative, if the AA determines that: (1)

The concentration of algae no longer makes trawling with TEDs

impracticable; (2) there is insufficient compliance with the required

conservation measures; (3) compliance cannot be monitored effectively;

(4) significant or unanticipated levels of lethal or non-lethal takings

or strandings of sea turtles have occurred in or near the North

Carolina restricted area; or (5) the incidental take level, authorized

by biological opinion, of one mortality of Kemp's ridley, green,

hawksbill, or leatherback turtles, or two mortalities of loggerhead

turtles attributable to shrimp fishing in the North Carolina restricted

area is met or exceeded during the exemption period.

Classification

The AA has determined that this rule is consistent with the ESA and

other applicable law and is ``not significant'' for purposes of E.O.

12866.

The General Counsel of the Department of Commerce certified to the

Small Business Administration that the proposed rule if adopted would

not have a significant economic impact on a substantial number of small

entities. As a result, a final regulatory flexibility analysis was not

prepared.

The AA prepared an Environmental Assessment (EA) for this rule that

concludes that the rule will have no significant impact on the human

environment. A copy of the EA is available (see ADDRESSES) and comments

on it are requested.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act, namely, registration to trawl in the

North Carolina restricted area. This collection of information has been

approved by the Office of Management and Budget (OMB) under OMB control

number 0648-0267. The public reporting burden for this collection of

information is estimated to average 7 minutes per response, including

the time for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collection of information. Comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing the burden, may be sent to NMFS or OMB (see

ADDRESSES).

List of Subjects in 50 CFR Part 227

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: June 24, 1994.

Charles Karnella,

Acting Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 227 is amended

as follows:

PART 227--THREATENED FISH AND WILDLIFE

1. The authority citation for part 227 continues to read as

follows:

Authority: 16 U.S.C. 1531 et seq.

2. In Sec. 227.72, paragraphs (e)(3)(i) and (e)(3)(ii)(B) are

revised to read as follows:

Sec. 227.72 Exceptions to prohibitions.

* * * * *

(e) * * *

(3) * * * (i) Duration of tows. If tow-time restrictions are

utilized pursuant to paragraphs (e)(2)(ii), (e)(3)(ii), or (e)(3)(iii)

of this section, a shrimp trawler must limit tow times to no more than

55 minutes from April 1 through October 31; and to no more than 75

minutes from November 1 through March 31. A shrimp trawler in the North

Carolina restricted area must limit tow times to no more than 30

minutes from May 16 through August 15. The tow time is measured from

the time that the trawl door enters the water until it is removed from

the water. For a trawl that is not attached to a door, the tow time is

measured from the time the codend enters the water until it is removed

from the water.

(ii) * * *

(B) North Carolina restricted area. From June 27, 1994 through

November 30, 1994, a shrimp trawler in the North Carolina restricted

area, as an alternative to complying with the TED requirement of

paragraph (e)(2)(i) of this section, may comply with the tow-time

restrictions set forth in paragraph (e)(3)(i) of this section. The

owner or operator of a shrimp trawler who wishes to operate his or her

shrimp trawler in the North Carolina restricted area must register

pursuant to paragraph (e)(3)(v) of this section, with registration

received by the Director, Southeast Region, NMFS, at least 24 hours

before the first use of such tow times. Registration may be made by

telephoning (813) 893-3141 or writing to 9721 Executive Center Drive,

St. Petersburg, FL 33702. The owner or operator of a shrimp trawler in

the North Carolina restricted area must carry onboard a NMFS-approved

observer upon written notification by the Director, Southeast Region,

NMFS. Notification shall be made to the address specified for the

vessel in either the NMFS or state fishing permit application, the

registration or documentation papers, or otherwise served upon the

owner or operator of the vessel. The owner or operator must comply with

the terms and conditions specified in such written notification. All

observers will report any violations of this section, or other

applicable regulations and laws; such information may be used for

enforcement purposes.

* * * * *

[FR Doc. 94-15876 Filed 6-27-94; 12:12 pm]

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