Sea Turtle Conservation; Revisions to Sea Turtle Conservation Requirements; Restrictions to Shrimp Trawling Activities; Hearings

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

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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