Sea Turtle Conservation; Restrictions Applicable to Shrimp Trawling Activities; Flotation Device Requirements

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 950309069-5069-01; I.D. 060694A]

RIN 0648-AG71

Sea Turtle Conservation; Restrictions Applicable to Shrimp

Trawling Activities; Flotation Device Requirements

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; technical amendments.

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SUMMARY: NMFS issues this final rule to require shrimp trawlers using

Turtle Excluder Devices (TEDs) in the Gulf and Atlantic Areas to attach

specified flotation devices to hard TEDs or special hard TEDs with

bottom escape openings. This action is necessary to improve the ability

of bottom-opening, hard TEDs, and special hard TEDs to safely exclude

sea turtles. In addition, NMFS is making technical amendments to the

sea turtle conservation regulations to expand TED configuration options

or to clarify gear descriptions, thereby reducing the chances of

incidental capture and mortality of endangered and threatened sea

turtles.

EFFECTIVE DATE: This rule is effective March 31, 1995, except for

Sec. 227.72(e)(4)(i)(I)(2)(ii), which contains information collection

requirements that have not yet been approved by the Office of

Management and Budget (OMB). Once OMB approves these requirements, a

document will be published in the Federal Register announcing the

effective date.

ADDRESSES: Requests for a copy of the environmental assessment (EA)

prepared for this action, and comments on this action, should be

addressed to the Office of Protected Resources, NMFS, 1315 East-West

Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, Chief, Protected

Species Management Branch, NMFS, Southeast Region (813/570-5312), or

Barbara Schroeder, Acting National Sea Turtle Coordinator, NMFS Office

of Protected Resources (301/713-1401).

SUPPLEMENTARY INFORMATION:

Background

All sea turtles that occur in U.S. waters are listed as either

endangered or [[Page 15513]] 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 these species, 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

identified in 50 CFR 227.72. Existing sea turtle conservation

regulations (50 CFR part 227, subpart D) require most shrimp trawlers

operating in the Gulf and Atlantic areas to have a NMFS-approved TED

installed in each net rigged for fishing, year round. The required use

of TEDs has significantly reduced shrimp trawler related mortalities of

sea turtles.

NMFS regulations also set forth criteria for allowable

modifications to NMFS-approved TEDs including the use of flotation

devices. Under 50 CFR 227.72(e)(4)(iv)(A), floats may be attached to

TEDs only if they are attached to the outside of the net or inside the

net behind the rear surface, at the top of the TED. They may not be

attached to a flap. In previous TED certification tests, bottom-

opening, single-grid TEDs were tested with flotation. However, because

it was not previously evident to NMFS gear specialists that the lack of

flotation on bottom-opening TEDs may prevent turtle release if used in

certain ways, flotation was not required.

Interim Final Rule

NMFS issued an interim final rule, with a request for comments,

requiring the use of floats on bottom-opening single-grid TEDs (59 FR

33447, June 29, 1994). NMFS issued an interim final rule because

delaying issuance of a flotation requirement to provide prior notice

and an opportunity for public comment would likely result in lethal

takings of endangered and threatened sea turtles. As discussed in the

interim rule, there is information that the lack of flotation on

bottom-opening hard TEDs is likely preventing sea turtles from safely

exiting the trawls. For the same reasons, the interim rule was made

effective with only a 14-day delay in effective date rather than the

normal 30-day delay.

Comments and Responses on the Interim Final Rule

NMFS received numerous comments on the interim final rule, both

from participants in meetings with NMFS personnel and by letter. NMFS

reviewed all the comments and combined them under general categories

provided below.

Comment: Although the implementation of the flotation requirement

alone did not appear to substantially reduce turtle mortalities in the

Gulf of Mexico during the summer of 1994, the use of floats should

still be required because less experienced shrimp vessel operators may

drag their nets on the bottom, resulting in sea turtle capture as well

as unnecessary damage to trawl nets.

Response: NMFS agrees. The combination of the flotation requirement

with heightened enforcement efforts during the periods of high sea

turtle strandings in the Gulf of Mexico resulted in significant

reductions in sea turtle mortalities during the summer of 1994. Thus,

with some alterations to the flotation specifications, NMFS is making

the flotation requirement a permanent addition to the TED regulations.

Comment: The delayed implementation of the interim final rule was

shortened from the normal 30-day period to 14 days. This short period

did not provide shrimpers with sufficient time to comply with flotation

requirement.

Response: The Administrative Procedure Act (APA) provides that the

publication of a rule shall be made not less than 30 days before its

effective date, except as otherwise provided by the agency for good

cause found and published with the rule (see 5 U.S.C. 553(d)). In this

case, NMFS determined that good cause existed to reduce the delayed

effective date from 30 days to 14 days because delayed implementation

of the flotation requirement would have likely resulted in lethal

takings of endangered and threatened sea turtles. In addition, NMFS

gear experts noted that most shrimpers already possessed the

inexpensive floats required. Finally, notice of the flotation

requirement was informally given weeks before the effective date of the

rule when NMFS staff met with members of the shrimping industry and

media to request voluntary compliance with the flotation requirement.

Comment: Required use of floats will cause nets to twist. Twisted

nets could result in lost catch and possible entanglement of sea

turtles.

Response: NMFS gear experts met and traveled with members of the

shrimp fishery who reported twisted nets resulting from floats on the

TEDs. NMFS gear experts have noted that a net that is set with a twist

in it is unlikely to untwist itself during the course of fishing, if

floats are attached. Conversely, a properly set net with floats on the

TED will not become twisted. In thousands of hours of TED testing, NMFS

has never experienced a problem with twisting TEDs. NMFS believes that

if proper care is taken when setting nets with TEDs with floats, net

twisting can be prevented.

Comment: The requirement to use two polyvinyl chloride (PVC) floats

on larger TEDs should not be applied to trawlers in shallow waters, as

too much flotation will cause the net to fish too far off the bottom,

resulting in lost catch.

Response: The interim final rule specified required flotation for a

single-grid TED with a circumference of 120 inches (304.8 cm) or more

to consist of a minimum of either one 9.8 inch (25.0 cm) diameter hard

plastic or aluminum float or two 6.75 inches (17.2 cm) by 8.75 inches

(22.2 cm) expanded PVC floats. Two PVC floats were required because PVC

becomes compressed in deep water and loses buoyancy. While two PVC

floats may provide excess flotation in shallow water, the same floats

will provide adequate buoyancy in deeper water to ensure the TED does

not drag on the bottom.

NMFS does not believe that this rule should be revised to create

different requirements in different water depths because water depth

requirements would be largely unenforceable. NMFS recommends that

trawlers working in shallow waters switch to aluminum or hard plastic

floats. In addition, the final rule provides options for shrimpers to

use marked floats that would match the buoyancy of the TED, so that the

problem of excessive flotation could be avoided. 50 CFR

227.72(e)(4)(i)(I)(2) allows shrimp fishermen to use floats of size and

in any combination so that the combined buoyancy of the floats equals

or exceeds that of the TED, as long as both the floats and TEDs have

proper markings indicating their weight or buoyancy.

Comment: Tongue trawls (bib-type trawls) with hard TEDs should be

exempt from the flotation requirement because the bib line on these

nets normally would keep the TED from dragging on the bottom. The use

of floats with this type of net would cause the net to fish off the

bottom, reducing the catch.

Response: NMFS agrees that extra flotation might cause a tongue

trawl to [[Page 15514]] fish too high when the center bridle line is

tight. However, there is no way to determine how the line is being

handled in the water: A slack center bridle line would allow the TED to

drag on the bottom. Enforcement officers would be unable to effectively

enforce any such exemption and ensure protection for sea turtles.

Consequently, NMFS does not believe that tongue trawls should be exempt

for the requirement to use floats.

Comment: Aluminum TEDs should be exempt from the flotation

requirement. TEDs made from hollow, welded aluminum tubing can be

positively buoyant, and light-weight aluminum rod constructions would

not need additional flotation.

Response: In a June 14, 1994 news release, NMFS requested that

shrimpers voluntarily attach flotation to bottom-opening hard TEDs,

except those constructed of aluminum tubing. NMFS made this request

prior to publication of the interim final rule, and at that time

believed that floats may not be necessary on aluminum TEDs. Further

investigation by NMFS gear experts, however, revealed that aluminum

single-grid TEDs also require supplemental flotation for proper

buoyancy.

While hollow tube TEDs can retain air, all welds must be

watertight. In the course of normal wear-and-tear, it is impossible to

ensure that the welds will be able to exclude water under high

hydrostatic pressure at fishing depths. The experience of NMFS

enforcement personnel is that hollow TEDs can and do flood under actual

use.

NMFS' experience with solid rod aluminum TEDs is that they, too,

need flotation to achieve neutral buoyancy. NMFS divers have filmed

solid aluminum single-grid TEDs dragging hard on the bottom when

insufficient flotation is used. Therefore, NMFS included aluminum TEDs

in the flotation requirement in both the interim final rule and this

final rule.

NMFS does recognize that the interim rule may have required too

much flotation on TEDs that are constructed of very light materials.

Likewise, too little flotation may have been required on TEDs that are

constructed of very heavy materials. To address that problem, this

final rule includes a provision for matching the buoyancy of the floats

to the weight of each TED.

Comment: The specifications in the interim rule, based on the

physical dimensions of the floats, do not allow for the use of floats

of different shapes and sizes or multiple, smaller floats whose

buoyancy may be equivalent. Fishermen who attempted to use other types

and combinations of floats were complying with the intent of the

regulation, but were not complying with the letter of the regulation.

Response: NMFS agrees that there are many possible combinations of

floats that would produce sufficient buoyancy to prevent TEDs from

dragging on the bottom, and trapping sea turtles. When the buoyancy of

each float can be easily determined, allowing the use of different

numbers and sizes of floats would provide much greater flexibility to

shrimpers in configuring their gear, based on their personal experience

and preference. Therefore, provisions for the use of various

combinations of floats of marked buoyancy have been incorporated in

this final rule at 50 CFR 227.72(e)(4)(i)(I)(3).

Comment: Expanded ethylene vinyl acetate (EVA) should be considered

as an alternative float material. Expanded EVA has the same

characteristics as expanded PVC.

Response: NMFS agrees that floats constructed of expanded EVA could

be used in place of expanded PVC. Provisions for the use of expanded

EVA floats have been incorporated in this final rule.

Final Rule and Changes From the Interim Final Rule

As a result of comments and recommendations received, the final

rule differs from the interim rule in several areas.

1. The interim final rule required flotation on only bottom-opening

single-grid hard TEDs because these TEDs are the ones most frequently

used and an need to rapidly address the emergency situation presented

by the strandings last spring. Bottom-opening hooped hard TEDs and

bottom-opening Jones TEDs which make up only a small portion of TEDs in

use, also have the same dragging problem. Therefore, the final rule

extends the flotation requirement to all bottom-opening hard and

special hard TEDs, including hooped hard TEDs and a single special hard

TED, the Jones TED.

2. The final rule allows for the use of floats constructed from

expanded EVA as an alternative to floats constructed from expanded PVC.

NMFS gear experts determined that the characteristics of expanded EVA

are substantially similar to expanded PVC. Allowance of this material

expands the options available to fishermen to comply with this rule.

3. The interim final rule specified required flotation solely on

the basis of the size of the floats and the circumference of the TED.

These measurements provide useful and enforceable approximations of the

buoyancy provided by the floats and the buoyancy required by the TED.

They do not, however, provide a means for exactly matching the weight

of the TED to the buoyancy, nor do they provide for the use of

equivalent amounts of flotation by floats that do not meet the size

specifications. The final rule provides three alternatives by which

shrimpers can comply with the requirement to use floats. These

alternatives address many of the comments expressed above and provide

for maximum flexibility for shrimp fishermen. The first alternative, 50

CFR 227.72(e)(4)(i)(I)(1), provides the same requirement as that of the

interim rule with respect to amount of flotation for TEDs with a

circumference of 120 inches or greater and for TEDs with a smaller

circumference.

The second alternative, 50 CFR 227.72(e)(4)(i)(I)(2), provides that

floats of any size and in any combination may be attached so that the

combined buoyancy of the floats equals or exceeds the weight of the TED

provided that the floats and TEDs are marked by the manufacturers with

their buoyancy and weight as specified in the regulation. NMFS has held

informal discussions with some TED and float manufacturers who

indicated that, while marked floats and TEDs are currently not

generally available, they could be produced without great difficulty.

NMFS believes that marked floats and TEDs will become more widely

available, as manufacturers respond to demand from fishermen for

labeled gear that will enable them to comply with this provision.

Furthermore, previously manufactured TEDs may be weight marked by

returning them to a registered manufacturer. By simply adding up the

flotation values of the floats used and comparing that value to the

imprinted weight of the TED, both fishermen and enforcement officials

can quickly and easily determine whether sufficient flotation is being

used to prevent bottom-opening TEDs from entrapping turtles. At the

same time, shrimpers can be assured that they are not using excess

flotation, which could result in handling difficulties or decreased

catches.

The third alternative, at 50 CFR 227.72(e)(4)(i)(I)(3), provides

for the use of floats of any size and in any combination, provided that

the floats are marked as required, to achieve a certain buoyancy based

on the circumference of the TED. This provision is established in order

to increase the flotation options available before weight-marked TEDs

become widely available in the industry. By allowing shrimpers to

select different sizes and combinations of floats based

[[Page 15515]] on their buoyancy, the final rule provides more

flexibility in customizing gear for optimum handling. As an example,

shrimpers may elect to use two smaller floats offset to the sides to

stabilize the TED rather than one large float.

Technical Amendments to TED Gear Descriptions

A number of technical amendments are made to the sea turtle

regulations to expand the options of shrimpers in configuring TEDs or

to clarify previous gear descriptions.

1. The maximum allowable grid angle for hard TEDs is increased from

50 deg. to 55 deg.. A TED's optimum grid angle, both for turtle

exclusion and shrimp retention, is 45 deg.. Following proper

installation of a single-grid hard TED or special hard TED in a new

net, regular break-in and stretching of the net will cause the grid to

sag, decreasing the grid angle by up to 10 deg.. Therefore, increasing

the maximum grid angle to 55 deg. allows TEDs to be installed in new

nets so that the optimum grid angle of 45 deg. will be achieved after

the net is broken in.

2. The requirements for escape openings on hard TEDs are clarified

to prevent the possibility of turtle entrapment. The original

requirements only specified an overall size for the escape opening.

With certain TEDs, however, an escape opening could be cut that matched

the regulatory specifications but that still left pockets of net

webbing at the bottom edge of the TED that could entangle and trap a

turtle. The technical amendment specifies the minimum amount of trawl

net webbing material that must be cut along the face of the TED grid,

though the existing requirements for minimum escape openings remain

unchanged. This will ensure that the escape opening is not restricted

at the face of the TED. The cut in the trawl webbing for the escape

opening cannot be narrower than the outside width of the grid minus 8

inches (20.4 cm). In other words, the width of the cut in the trawl

webbing along the face of the grid must extend on either side to within

4 inches (12.2 cm) of the maximum outside width of the grid. Figure 13

illustrates the dimensions for the cut.

3. The use of chafing webbing gear with bottom-opening TEDs,

previously an allowable modification for hard TEDs used only in the

summer flounder trawl fishery, is made an allowable modification for

hard TEDS used in all trawl fisheries in which TEDs are required.

Additionally, the materials which may be used and the method of

attachment of the webbing chafing gear are specified.

4. The use of door frames on the exiting openings of hooped hard

TEDs is no longer allowed. Continuing evaluation of TED technology by

NMFS revealed that the use of a metal frame door frame on hooped hard

TEDs may interfere with the release of small turtles. This change is

believed to be beneficial to sea turtles and to have a negligible

impact on fishermen. Doors on existing hooped hard TEDs can be easily

removed at the hinges or sawed off, and a webbing flap may be used to

cover the escape opening.

5. The method of attachment of the escape opening webbing flap is

clarified to state that the sides of the webbing flap may be attached

to the trawl webbing no farther back than the row of meshes which lies

6 inches (15.2 cm) behind the posterior edge of the grid. This

description is much clearer than the previous description, and is

therefore easier to comply with and enforce.

6. The requirements for the escape opening of the Taylor soft TED

are changed. The minimum width of the forward edge of the escape

opening is reduced from 96 inches (244 cm) to 72 inches (183.6 cm). The

initial certification testing of the Taylor TED was conducted on a TED

with the 72-inch (183.6-cm) forward edge, and that TED met NMFS

certification requirements. Therefore, the description of the Taylor

TED is changed to reflect the originally certified gear. Provisions

remain in the Taylor TED description, however, for increasing the

forward edge of the escape opening of the Taylor TED to 96 inches (244

cm) in order to permit the exclusion of leatherback turtles.

7. The method of attachment of an accelerator funnel forward of a

hard TED is clarified. A funnel may be inserted immediately forward of

the TED if its rear edge does not extend past the bars of the TED. The

leading edge of the funnel may be sewn to the trawl around its entire

circumference; the trailing edge of the funnel may be attached to the

TED along 1/3 of the circumference of the funnel, on the side opposite

the escape opening.

8. The description of the Andrews soft TED is changed to allow more

flexibility in the construction of the TED. The Andrews TED is

described as a webbing funnel within the trawl, and for the purposes of

the regulation, the bottom panel of the trawl net may be incorporated

as the bottom panel of the funnel. This change requires the bottom edge

of the side panels of the funnel to be sewn to the bottom panel of the

trawl, if the bottom panel of the trawl is being used as the bottom

panel of the funnel. Andrews TEDs constructed in this way should not

have any deleterious effect on turtles compared to full-funnel Andrews

TEDs, as the bottom panel of the trawl is a much smaller mesh size than

the TED itself, and would not likely entangle turtles.

In addition, the requirement is deleted that the rear edge of the

Andrews TED funnel extend to within 20 inches (50.8 cm) of the net

extension. This requirement did not reflect the originally certified

TED and made Andrews TEDs difficult to construct.

9. The use of roller gear with hard TEDs and special hard TEDs is

allowed. Rollers, constructed of hard plastic, attached beneath the TED

in a way that does not interfere with the TED escape opening, may

reduce the TED's dragging on the bottom and can reduce chafing and

damage to the TED and trawls. While roller gear may reduce chafing,

attachment of proper flotation to a TED is the most effective means to

control chafing on the TED and to ensure sea turtle escape from bottom-

opening TEDs.

10. The description of construction materials approved for use in

hard TEDs is clarified. If steel or aluminum tubing is used, the tubing

must have a minimum outside diameter of 1/2 inch (1.27 cm) and a

minimum wall thickness of 1/8 inch (0.32 cm). The previous description

specified a minimum inside diameter of 1/4 inch (0.64 cm) which would

result in excessively heavy TEDs if a larger outside diameter pipe was

used, which was not the intention of the original rule.

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds that

good cause exists, under authority at 5 U.S.C. 553(b)(B), to waive the

requirement for prior notice and an opportunity for public comment on

those provisions of this rule described above as technical amendments

to TED gear descriptions. Such procedures are unnecessary because these

changes are minor, technical amendments to existing regulations.

With respect to the provisions of this final rule which implement

provisions of the interim final rule without change, no delay in

effective date is required. Regarding those provisions of the interim

final rule that have been changed by this final rule and those new

provisions of this final rule, described above as technical amendments

to TED gear descriptions, which have the effect [[Page 15516]] of

relieving restrictions on shrimpers, no delay in effective date is

required under 5 U.S.C. 553(d)(1). Concerning those provisions added by

this final rule requiring the use of flotation on hooped hard TEDs and

on the Jones TED, the AA finds for good cause, pursuant to 5 U.S.C.

553(d)(3), that it is unnecessary and contrary to the public interest

to delay for 30 days the effective date of these provisions because 30-

day delayed implementation of this requirement could result in

unnecessary lethal takings of endangered and threatened sea turtles and

most shrimpers already possess the necessary and inexpensive flotation

devices required and can install them quickly. The AA has determined

that 7-days delay in effective date will provide more than sufficient

time to come into compliance. Further, with respect to those provisions

of this rule described above as technical amendments to TED gear

descriptions which impose new requirements on shrimpers, such as no

longer allowing the use of door frames on hooped hard TEDs, the AA

finds good cause to waive the 30-day delay in effective date under 5

U.S.C. 553(d)(3) because the restrictions are very minor and can be

accomplished quickly and at little or no cost and that to delay their

implementation could cause unnecessary lethal takings of endangered or

threatened sea turtles. The AA has determined that a 7-day delay in

effective date will provide more than sufficient time to come into

compliance.

In the interest of uniformity with respect to implementation of the

provisions of this rule, NMFS has determined to make the entire rule

effective March 30, 1995, except for Sec. 227.72(e)(4)(i)(I)(2)(ii),

which contains information collection requirements that have not yet

been approved by OMB.

This rule contains a collection of information subject to the

Paperwork Reduction Act (PRA). This collection has been submitted to

OMB for approval. Upon approval, a notice of effectiveness will be

published in the Federal Register.

The AA prepared an EA for the final rule (57 FR 57348, December 4,

1992) requiring TED-use in shrimp trawls. A supplemental EA was

prepared for the interim final rule and another was prepared

specifically for this final rule, which concludes that this action will

have no significant impact on the human environment. A copy of the EA

is available (see ADDRESSES) and comments on it are requested.

List of Subjects in 50 CFR Part 227

Endangered and threatened species, Exports, Imports, Incorporation

by reference, Marine mammals, Transportation.

Dated: March 17, 1995.

Gary Matlock,

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, paragraph (e)(4)(iii)(A)(2) is removed and

reserved; paragraph (e)(4)(iii)(E) is added; and paragraphs

(e)(4)(i)(A)(3), (e)(4)(i)(C), (e)(4)(i)(G)(1), (e)(4)(i)(G)(2)(i),

(e)(4)(i)(I), (e)(4)(ii)(A), (e)(4)(ii)(B), (e)(4)(iii)(C),

(e)(4)(iii)(D), and (e)(4)(iv) are revised to read as follows:

Sec. 227.72 Exceptions to prohibitions.

* * * * *

(e) * * *

(4) * * *

(i) * * *

(A) * * *

(3) Steel or aluminum tubing with a minimum outside diameter of 1/2

inch (1.27 cm) and a minimum wall thickness of 1/8 inch (0.32 cm) (also

known as schedule 40 tubing).

* * * * *

(C) Angle of deflector bars. The angle of the deflector bars must

be between 30 deg. and 55 deg. from the normal, horizontal flow through

the interior of the trawl.

* * * * *

(G) * * *

(1) On a hooped hard TED, the escape opening must not be smaller

than 25 inches by 25 inches (63.5 cm by 63.5 cm) in the Gulf Area, or

30 inches by 30 inches (76.2 cm by 76.2 cm) in the Atlantic Area. A

door frame may not be used over the escape opening; however, a webbing

flap may be used as provided in paragraph (e)(4)(iv)(C) of this

section.

(2)(i) On a single-grid hard TED, the cut in the trawl webbing for

the escape opening cannot be narrower than the outside width of the

grid minus 4 inches (10.2 cm) on both sides of the grid, when measured

as a straight line width. (Figure 13 of this part illustrates the

dimensions of this cut.) The resulting escape opening in the net

webbing must measure at least 32 inches (81.3 cm) in horizontal taut

length and, simultaneously, 10 inches (25.4 cm) in vertical taut height

in the Gulf Area; or 35 inches (88.9 cm) in horizontal taut length and,

simultaneously, 12 inches (30.5 cm) in vertical taut height in the

Atlantic Area. The vertical measurement must be taken at the midpoint

of the horizontal measurement.

* * * * *

(I) Flotation. Floats must be attached to the top one-half of all

hard TEDs with bottom escape openings. The floats may be attached

either outside or inside the net, but not to a flap. Floats attached

inside the net must be behind the rear surface. Floats must be attached

with heavy twine or rope. Floats must be constructed of aluminum, hard

plastic, expanded polyvinyl chloride, or expanded ethylene vinyl

acetate unless otherwise specified. The requirements of this paragraph

may be satisfied by compliance with either the dimension requirements

of paragraph (e)(4)(i)(I)(1) of this section, or the buoyancy

requirements of paragraph (e)(4)(i)(I)(2) of this section, or the

buoyancy-dimension requirements of paragraph (e)(4)(i)(I)(3) of this

section. If roller gear is used pursuant to paragraph (e)(4)(iv)(E),

the roller gear must be included in the circumference measurement of

the TED or the total weight of the TED.

(1) Float dimension requirements. (i) For hard TEDs with a

circumference of 120 inches (304.8 cm) or more, a minimum of either one

round, aluminum or hard plastic float, no smaller than 9.8 inches (25.0

cm) in diameter, or two expanded polyvinyl chloride or expanded

ethylene vinyl acetate floats, each no smaller than 6.75 inches (17.2

cm) in diameter by 8.75 inches (22.2 cm) in length, must be attached.

(ii) For hard TEDs with a circumference of less than 120 inches

(304.8 cm), a minimum of either one round, aluminum or hard plastic

float, no smaller than 9.8 inches (25.0 cm) in diameter, or one

expanded polyvinyl chloride or expanded ethylene vinyl acetate float,

no smaller than 6.75 inches (17.2 cm) in diameter by 8.75 inches (22.2

cm) in length, must be attached.

(2) Float buoyancy requirements. Floats of any size and in any

combination must be attached such that the combined buoyancy of the

floats, as marked on the floats, equals or exceeds the weight of the

hard TED, as marked on the TED. The buoyancy of the floats and the

weight of the TED must be clearly marked on the floats and the TED as

follows:

(i) Float buoyancy markings. Marking must be made in clearly

legible raised [[Page 15517]] or recessed lettering by the original

manufacturer. The marking must identify the buoyancy of the float in

water, expressed in grams or kilograms, and must include the metric

unit of measure. The marking may additionally include the buoyancy in

English units. The marking must identify the nominal buoyancy for the

manufactured float.

(ii) TED weight markings. The marking must be made by a registered

TED manufacturer and must be permanent and clearly legible and must be

accompanied by the identifying symbol of the registered manufacturer.

The marking must identify the in-air, dry weight of the TED, expressed

in grams or kilograms, and must include the metric unit of measure. The

marking may additionally include the weight in English units. The

marked weight must represent the actual weight of the individual TED as

manufactured. Previously manufactured TEDs may be marked upon return to

a registered TED manufacturer. Where a TED is comprised of multiple

detachable components, the weight of each component must be separately

marked. A TED manufacturer may become registered to mark TEDs by

requesting registration in writing from the NMFS Southeast Regional

Director. To request registration, the manufacturer should write to the

Director, Southeast Region, NMFS, 9721 Executive Center Dr. North, St.

Petersburg, FL 33702, and include the manufacturer's name, address, and

telephone number; the sizes, styles, and anticipated number of TEDs to

be produced annually; the method of marking; and a description of the

manufacturer's distinctive, identifying symbol. Upon receipt of a

complete request, the Director, Southeast Region, NMFS, will notify the

manufacturer in writing of their registration.

(3) Buoyancy-dimension requirements. Floats of any size and in any

combination, provided that they are marked pursuant to paragraph

(e)(4)(i)(I)(2)(i) of this section, must be attached such that the

combined buoyancy of the floats equals or exceeds the following values:

(i) For floats constructed of aluminum or hard plastic, regardless

of the size of the TED grid, the combined buoyancy must equal or exceed

14 lb (6.4 kg);

(ii) For floats constructed of expanded polyvinyl chloride or

expanded ethylene vinyl acetate, where the circumference of the TED is

120 inches (304.8 cm) or more, the combined buoyancy must equal or

exceed 20 lb (9.1 kg); or

(iii) For floats constructed of expanded polyvinyl chloride or

expanded ethylene vinyl acetate, where the circumference of the TED is

less than 120 inches (304.8 cm), the combined buoyancy must equal or

exceed 10 lb (4.5 kg).

(ii) * * *

(A) Flounder TED (Figure 10 of this part). The Flounder TED must be

constructed of at least 1 1/4 inch (3.2 cm) outside diameter aluminum

or steel pipe with a wall thickness of at least 1/8 inch (0.3 cm). It

must have a rectangular frame with outside dimensions which can be no

less than 51 inches (129.5 cm) in length and 32 inches (81.3 cm) in

width. It must have at least five vertical deflector bars, with bar

spacings of no more than 4 inches (10.2 cm). The vertical bars must be

connected to the top of the frame and to a single horizontal bar near

the bottom. The horizontal bar must be connected at both ends to the

sides of the frame and parallel to the bottom bar of the frame. There

must be a space no larger than 10 inches (25.4 cm) between the

horizontal bar and the bottom bar of the frame. An additional vertical

bar runs from the middle of the bottom bar to the middle of the

horizontal bar dividing the opening at the bottom into two rectangles

with an opening height of no more than 10 inches (25.4 cm) and an

opening width of no more than 14 1/2 inches (36.8 cm). If, because of

the width of the TED, the opening width of the bottom rectangles

exceeds the maximum allowed, additional vertical bars must be added.

This TED must comply with paragraphs (e)(4)(i)(B), (e)(4)(i)(C),

(e)(4)(i)(F), and (e)(4)(i)(G) of this section with respect to the

method of attachment, the angle of the deflector bars, the position of

the escape opening, and the size of the escape opening, except that the

deflector bars must be positioned in the net to deflect turtles to the

escape opening in the top of the trawl. This TED may not be configured

with a bottom escape opening. Installation of an accelerator funnel is

not permitted with this TED. Use of this TED is restricted to the

Atlantic summer flounder bottom trawl fishery.

(B) Jones TED (Figure 11 of this part). The Jones TED must be

constructed of at least 1 1/4 inch (3.2 cm) outside diameter aluminum

or steel pipe, and the pipe must have a wall thickness of at least 1/8

inch (0.3 cm). It must be generally oval in shape with a flattened

bottom. The deflector bars must be attached to the frame at a 45 deg.

angle from the horizontal positioning downward and each bar must be

attached at only one end to the frame. The deflector bars must be

attached and lie in the same plane as the frame. The space between the

ends of the bottom deflector bars and the bottom frame bar must be no

more than 3 inches (7.6 cm). The spacing between the bottom three

deflector bars on each side must be no greater than 2 1/2 inches (6.4

cm). The spacing between all other deflector bars must not exceed 3 1/2

inches (8.9 cm) and spacing between ends of opposing deflector bars

also must not exceed 3 1/2 inches (8.9 cm). This TED must comply with

paragraphs (e)(4)(i)(B), (e)(4)(i)(C), (e)(4)(i)(F), (e)(4)(i)(G),

(e)(4)(i)(H)(2), and (e)(4)(i)(I) of this section with respect to the

method of attachment, the angle of the deflector bars, the position of

the escape opening, the size of the escape opening, the size of the

grid, and flotation.

(iii) * * *

(C) Andrews TED (Figures 8a and 8b of this part). The Andrews TED

is a funnel constructed of 5-inch (12.7-cm) stretched mesh polyethylene

or polypropylene webbing that is sewn inside a shrimp trawl. The bottom

panel of the trawl may be used as the bottom panel of the funnel, so

long as the bottom edges of the sides of the funnel are sewn at every

mesh to the bottom panel of the trawl. The leading edge of the funnel

must be sewn with heavy twine at all points to the outer trawl

beginning on the row of meshes located 20 meshes behind the center of

the footrope and continuing around the circumference of the trawl,

following the same row of meshes. The webbing may not be laced with

rope. The funnel must taper to an escape opening in the bottom of the

trawl. The trailing edge on the funnel must be sewn at all points

around the circumference of the escape opening. The escape opening must

be at least 96 inches (243.8 cm) in circumference. A webbing flap may

be used to cover the escape opening if no device holds the webbing flap

closed or otherwise restricts the opening, and if such flap is

constructed of webbing that has a stretched mesh size no larger than 2

inches (5.1 cm), lies on the outside of the trawl, is attached along

its entire forward edge forward of the escape opening, is 50 meshes

wide and 15 meshes deep, does not overlap the exit opening more than 5

meshes on each side (it may be attached along the 15-mesh edge), and

maintains an opening of at least 48 inches (121.9 cm) in a taut

position.

(D) Taylor TED (Figures 9a and 9b of this part). The Taylor TED is

constructed of 6-inch (15.2-cm) polyethylene or polypropylene webbing

that is heat-set knotted or braided. The Taylor TED deflector panel

must be not less than 228 inches (580 cm) on the leading edge and not

less than 120 inches (305 cm) long. The leading edge, sides, and apex

of the deflector panel [[Page 15518]] must be sewn to the trawl body so

as to form a complete barrier to large objects inside the trawl net

forward of the codend or extension. The apex may be removed not more

than 24 inches (61 cm) forward of the rear point. If the apex is

removed, a rectangular section 24 inches (61 cm) long must be sewn

evenly to the rear of the deflector panel to maintain the 120-inch

(305-cm) length. The leading edge of the Taylor TED deflector panel

must be sewn to the bottom body of the trawl net. The rear point of the

deflector panel, or rear edge, if the apex is removed, must be sewn

evenly, centered across the top body. An escape opening must be located

on the top of the trawl body centered over the deflector panel. The

opening must measure not less than 72 inches (183.6 cm), must be in a

single row of meshes, and must be located no farther forward than the

point where its entire length is above the deflector panel--the forward

edge of the opening must extend from the attachment of the deflector

panel on one side of the body, across the top of the body, to the

attachment of the deflector panel on the other side. All trawl webbing

above the deflector panel between the 72-inch (183.6-cm) cut and the

posterior edge of the deflector panel must be removed. A rectangular

flap of nylon webbing not larger than 2-inch (5.1-cm) stretched mesh

may be sewn to the forward edge of the escape opening. The width of the

flap may not exceed the length of the forward edge of the triangular

opening. The flap may extend not more than 12 inches (30.5 cm) beyond

the rear point of the escape opening. The sides of the flap may be

attached to the body, but may not be attached farther aft than the rear

point of the escape opening. One row of chain not larger than 3/16 inch

(4.76 mm) may be sewn evenly to the back edge of the flap. The

stretched length of the chain may not exceed 84 inches (214.2 cm).

(E) Allowable modifications to soft TEDs. The following

modifications may be made to the Morrison and Taylor TEDs to increase

the size of the escape opening to permit the exclusion of leatherback

turtles. An enlarged escape opening must be created on the top of the

trawl body centered over the deflector panel. The opening must measure

not less than 96 inches (244 cm), must be in a single row of meshes,

and must be located no farther forward than the point where its entire

length is above the deflector panel--the forward edge of the opening

must extend from the attachment of the deflector panel on one side of

the body, across the top of the body, to the attachment of the

deflector panel on the other side. All trawl webbing above the

deflector panel between the 96-inch (244-cm) cut and the posterior edge

of the deflector panel must be removed. A rectangular flap of nylon

webbing not larger than 2-inch (5.1-cm) stretched mesh may be sewn to

the forward edge of the escape opening. The width of the flap may not

exceed the length of the forward edge of the triangular opening. The

flap may extend not more than 12 inches (30.4 cm) beyond the rear point

of the escape opening. The sides of the flap may be attached to the

body, but may not be attached farther aft than the rear point of the

escape opening. One row of chain not larger than 3/16 inch (4.76 mm)

may be sewn evenly to the back edge of the flap. The stretched length

of the chain may not exceed 96 inches (244 cm). For the Morrison TED,

the apex of the excluder panel may be removed no more than 48 inches

(122 cm) forward of the rear edge. A rectangular section 48 inches (122

cm) long must then be sewn evenly to the rear of the excluder panel to

maintain the length prescribed in the description of the Morrison TED.

For the Morrison TED, the addition of a webbing flap and the

modification of the excluder panel may only be done conjointly with the

enlargement of the escape opening as described in this paragraph

(e)(4)(iii)(E).

(iv) Allowable modifications to TEDs. No modifications may be made

to an approved soft TED, except for the modifications described in

paragraph (e)(4)(iii)(E). Unless otherwise prohibited in paragraph

(e)(4)(ii) of this section, only the following modifications may be

made to an approved hard TED and an approved special hard TED:

(A) Floats. In addition to floats required pursuant to paragraph

(e)(4)(i)(I) of this section, floats may be attached to the top one-

half of the TED, either outside or inside the net, but not to a flap.

Floats attached inside the net must be behind the rear surface at the

top of the TED.

(B) Accelerator funnel. An accelerator funnel may be installed in

the trawl, if it is made of net webbing material with a stretched mesh

size not greater than 1 5/8 inches (4.1 cm), if it has an inside

horizontal opening of at least 39 inches (99.1 cm) when measured in a

taut position, if it is inserted in the net immediately forward of the

TED, and if its rear edge does not extend past the bars of the TED. The

trailing edge of the accelerator funnel may be attached to the TED on

the side opposite the escape opening if not more than 1/3 of the

circumference of the funnel is attached, and if the inside horizontal

opening of at least 39 inches (99.1 cm) is maintained. In a downward

shooting TED, only the top 1/3 of the circumference of the funnel may

be attached to the TED. In an upward shooting TED, only the bottom 1/3

of the circumference of the funnel may be attached to the TED.

(C) Webbing flap. A webbing flap may be used to cover the escape

opening if no device holds it closed or otherwise restricts the

opening, and if it is constructed of webbing with a stretched mesh size

no larger than 1 5/8 inches (4.1 cm), lies on the outside of the trawl,

is attached along its entire forward edge forward of the escape

opening, is not attached on the sides beyond the row of meshes that

lies 6 inches (15.2 cm) behind the posterior edge of the grid, and does

not extend more than 24 inches (61.0 cm) beyond the posterior edge of

the grid.

(D) Chafing webbing. A single piece of nylon webbing, with a twine

size no smaller than size 36 (2.46 mm in diameter), may be attached

outside of the escape opening webbing flap to prevent chafing on bottom

opening TEDs. This webbing may be attached along its leading edge only.

This webbing may not extend beyond the trailing edge or sides of the

existing escape opening webbing flap, and it must not interfere or

otherwise restrict the turtle escape opening.

(E) Roller gear. Roller gear may be attached to the bottom of a TED

to prevent chafing on the bottom of the TED and the trawl net. When a

webbing flap is used in conjunction with roller gear, the webbing flap

must be of a length such that no part of the webbing flap can touch or

come in contact with any part of the roller gear assembly or the means

of attachment of the roller gear assembly to the TED, when the trawl

net is in its normal, horizontal position. Roller gear must be

constructed according to one of the following design criteria:

(1) A single roller consisting of hard plastic shall be mounted on

an axle rod, so that the roller can roll freely about the axle. The

maximum diameter of the roller shall be 6 inches (15.24 cm), and the

maximum width of the axle rod shall be 12 inches (30.4 cm). The axle

rod must be attached to the TED by two support rods. The maximum

clearance between the roller and the TED shall not exceed 1 inch (2.5

cm) at the center of the roller. The support rods and axle rod must be

made from solid steel or solid aluminum rod no larger than 1/2 inch

(1.28 cm) in diameter. The attachment of the support rods to the TED

shall be such that there are no protrusions (lips, sharp edges, burrs,

etc.) on the front face [[Page 15519]] of the grid. The axle rod and

support rods must lie entirely behind the plane of the face of the TED

grid.

(2) A single roller consisting of hard plastic tubing shall be

tightly tied to the back face of the TED grid with rope or heavy twine

passed through the center of the roller tubing. The roller shall lie

flush against the TED. The maximum outside diameter of the roller shall

be 3 1/2 inches (8.0 cm), the minimum outside diameter of the roller

shall be 2 inches (5.1 cm), and the maximum length of the roller shall

be 12 inches (30.4 cm). The roller must lie entirely behind the plane

of the face of the grid.

* * * * *

3. Figure 1 to part 227 is revised to read as follows:

BILLING CODE 3510-22-F

[GRAPHIC][TIFF OMITTED]TR24MR95.000

BILLING CODE 3510-22-C

4. Figure 13 to part 227 is revised to read as follows:

BILLING CODE 3510-22-F

[[Page 15520]]

[GRAPHIC][TIFF OMITTED]TR24MR95.001

BILLING CODE 3510-22-C

[FR Doc. 95-7235 Filed 3-21-95; 11:30 am]

BILLING CODE 3510-22-F