Sea Turtle Conservation; Shrimp Trawling Requirements

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 980331080-9269-02; I.D. 091799A]

RIN 0648-AK66

Sea Turtle Conservation; Shrimp Trawling Requirements

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing this

interim final rule to amend the regulations that require most shrimp

trawlers to use turtle excluder devices (TEDs) in the southeastern

Atlantic, including the Gulf of Mexico, to reduce the incidental

capture of endangered and threatened sea turtles during shrimp

trawling. Specifically, we are extending for one additional year the

approved use of the Parker soft TED.

DATES: This rule is effective October 13, 1999. Comments on this rule

are requested, and must be received by December 13, 1999.

ADDRESSES: Comments on this action should be addressed to the Chief,

Endangered Species Division, Office of Protected Resources, NMFS, 1315

East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, 727-570-5312.

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 kempii), leatherback

(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) are

listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia

mydas) turtles are listed as threatened, except for breeding

populations of green turtles in Florida and on the Pacific coast of

Mexico, which are listed as endangered.

[[Page 55435]]

The incidental take and mortality of these species, as a result of

shrimp trawling activities, have been documented in the Gulf of Mexico

and along the Atlantic seaboard. Under the ESA and its implementing

regulations, taking sea turtles is prohibited, with exceptions

identified in 50 CFR 223.206. Existing sea turtle conservation

regulations (50 CFR 223.206 and 223.207) require most shrimp trawlers

operating in the Gulf and Atlantic Areas, defined at 50 CFR 222.102, to

have a NMFS-approved TED installed in each net rigged for fishing, year

round. Current TEDs approved by NMFS for shrimp trawling include

single-grid hard TEDs, hooped hard TEDs conforming to a generic

description, two types of special hard TEDs, and one type of soft TED-

the Parker soft TED.

NMFS approved the Parker TED through an April 13, 1998, interim

final rule (63 FR 17948). Without an extension, that rule would lapse

on October 13, 1999. NMFS limited the duration of that rule to 18-

months so that if an evaluation of the effectiveness of the Parker TED

in commercial use showed that the Parker TED was not effective at

excluding sea turtles, NMFS could allow the Parker TED to lapse. If the

Parker TED was found to be effective at excluding sea turtles, the

interim rule would be adopted as final incorporating any necessary

technical changes that might result from the TED testing and commercial

use during the 18-month period. At this time, NMFS' data are

inconclusive, and NMFS is unable to make a final determination

regarding the effectiveness of Parker TEDs under commercial fishing

condition. To provide for further data collection, NMFS is extending

the effectiveness of the interim rule for 12 months.

Evaluation of the Parker TED

NMFS looked at many aspects of the Parker soft TED's performance

over the past 2 years in both the Gulf of Mexico and the South

Atlantic. Observers placed aboard commercial trawlers have documented

sea turtle capture rates and finfish bycatch reduction. Intensive law

enforcement efforts have been used to ensure and document fishermen's

compliance with the technical requirements for using the Parker TED.

NMFS' gear specialists have traveled extensively throughout the

Southeast to provide training to net shops and trawler fleets in the

proper installation and use of the Parker TED. The gear specialists

have also provided follow-up assistance to fishermen and net makers.

Observer Information

NMFS' observer information generally shows that the Parker TED does

not have a problem with sea turtle captures. In 1997-1998, observers

documented three turtle captures in nets equipped with Parker TEDs in

nearshore waters in the South Atlantic area. A total of 190 tows were

observed, for 515 hours of trawling. The resulting turtle catch rate

(Catch per unit effort, or CPUE) was 0.005 turtles per 100 ft. (30.5 m)

headrope-hour. In 1997, observers documented 62 tows in the South

Atlantic area aboard trawlers equipped with hard TEDs. One turtle was

observed captured in 161 hours of trawling, for a CPUE of 0.005 turtles

per 100 ft (30.5 m) headrope-hour. Observations in the Gulf of Mexico

revealed a similar situation, although turtle catch rates in the Gulf

are much lower overall. In 1998, 133 tows using Parker TEDs, totaling

1,352 trawl hours, were observed in the offshore waters of the Gulf of

Mexico: no turtle captures were observed. We also observed 2,081

offshore shrimp tows using hard TEDs, for a total of 9,632 hours. Two

turtles were captured, representing a CPUE of 0.0001. The observed

catch rates for shrimp trawlers using hard TEDs and Parker TEDs are

small and, therefore, it is difficult to make definitive comparisons.

Observers experienced difficulty in finding vessels using Parker TEDs

to make trips with, contributing somewhat to the small number of Parker

TED tows observed. Still, the available observer data indicates that

the Parker TED's turtle catch rate is probably comparable to the catch

rates of hard TEDs.

Several observer trips have also been made specifically to test the

Parker TED's potential as a bycatch reduction device (BRD). The tests

are made by comparing the catches from two nets pulled simultaneously

by a trawler--one net is equipped with a Parker TED and the other with

a hard TED. The Gulf and South Atlantic Fisheries Development

Foundation (GSAFDF) and the South Carolina Department of Natural

Resources (SCDNR) conducted independent tests of the Parker TED in the

Atlantic in the fall of 1997. The GSAFDF and SCDNR tests showed a

greater shrimp loss compared to standard tests in for hard TED-equipped

net. The bycatch reduction rates for weakfish and Spanish mackerel, the

two primary bycatch species of concern in the Atlantic, were 32.1 and

45.96 percent from the GSAFDF data and 25.02 and 79.78 percent from the

SCDNR data. These tests showed that the Parker TED is effective for

excluding Spanish mackerel but does not meet the 40 percent exclusion

rate for weakfish that is a criterion for certification as a BRD under

the South Atlantic Shrimp Fishery Management Plan. The GSAFDF also did

considerable testing of the Parker TED in 1998 and 1999 in the Gulf of

Mexico where red snapper is the bycatch species of concern. That

testing revealed a 7 percent shrimp loss, compared to a hard TED. A

preliminary analysis of the red snapper catch rate shows a 33 percent

reduction, which would not meet the criterion for certification as a

BRD in the Gulf. Currently a modified Parker TED, using a 4 x 6 inch

(10.2 X 15.2 cm) panel, is being tested as a BRD off South Carolina

through a permit issued by NMFS, to determine whether the smaller-mesh

panel can increase the bycatch reduction rate.

Observations by Law Enforcement

The Protected Resources Enforcement Team (PRET) is a specially-

equipped team of NMFS law enforcement officers that was formed to focus

enforcement attention on protected resources issues-primarily TEDs-in

the Southeast. The PRET has placed priority on ensuring compliance with

the requirements for the newly introduced Parker TED. The PRET has not

encountered many shrimp trawlers actually using the Parker TED, despite

intensive patrol efforts. In 1998, the PRET's first year in operation,

the team logged 488 hours of at-sea patrols, boarding 261 vessels as

part of the TED compliance project. PRET boardings in 1998 focused on

nearshore shrimping grounds along the coasts of Texas, Louisiana,

Georgia, and South Carolina. A large portion of the PRET's efforts in

1999 have been dedicated to patrols along the Texas coast, due to the

continuing concern over the number of dead sea turtles that strand on

Texas beaches. From March 16, 1999, through August 19, 1999, the PRET

boarded 241 vessels along the Texas and Louisiana coasts.

Only two boats using Parker TEDs have been encountered by the PRET

during 449 boardings in the Gulf of Mexico over 2 years. Both boats

were operated by the same company which had installed Parker TEDs on

its boats in 1998. When one of the boats was encountered in the summer

of 1998, the recently-installed Parker TEDs were in good condition and

in full compliance with the regulations. When the second boat was

boarded in the summer of 1999, the boat's Parker TEDs were in bad

disrepair and had apparently received no maintenance in a long time,

possibly not since being installed a year

[[Page 55436]]

earlier. The boat was cited for the violation.

Enforcement efforts in the South Atlantic also indicate that use of

the Parker TED in the shrimp fleet may be very low. The PRET only

documented one trawler equipped with Parker TEDs during 53 boardings in

1998. NMFS gear specialists accompanied SCDNR enforcement officers on

patrols of state waters during May 1999. Out of approximately 40

trawlers boarded at sea, two were using Parker TEDs. The U.S. Coast

Guard Group in Charleston, SC, reports boarding only 4 boats with

Parker TEDs over the past 2 years. No violations were reported from

these seven boardings.

Observations of Gear Specialists

The installation specifications for the Parker TED included an

unprecedented level of technical detail compared to previous soft TED

regulations. The specifications included new requirements such as

limiting installation to only certain styles of nets, exact mesh counts

for fixing the location of the soft TED panel in the net, and detailed

sewing instructions for attaching the panel to the net. As discussed in

the April 13, 1998 interim final rule (63 FR 17948), NMFS believes that

this level of technical specificity is required for the Parker TED to

achieve a proper shape and exclude turtles effectively.

NMFS provided intensive technical training to assist the shrimp

industry to adopt these stringent technical requirements. During 1998

and 1999, NMFS gear specialists held training sessions throughout the

southeastern United States to improve TED technical operation and

compliance. Technology transfer methodology included the development of

improved training and educational materials which were distributed

through the Coast Guard, Sea Grant, by direct mailouts, and through TED

skill building workshops. Workshops included multimedia presentations

and hands-on instruction which have proven highly effective in

transferring technical information. TED operational manuals were

distributed to assist fishermen in complying with TED regulations and

to assist in solving TED operational problems. In spring 1998, the

training specifically focused on net shops around the entire Atlantic

and Gulf coasts. Those training sessions reviewed the new Parker TED

regulatory requirements and included hands-on training installing

Parker TEDs. Generally, the net makers were able to learn how to

install the Parker TED according to the regulations quickly. Gear

specialists provided follow-up visits to work with some net makers who

had difficulties. Subsequent workshops in 1998 and 1999 have been

primarily addressed to the fishermen and to ensuring proper commercial

use of TEDs.

The gear specialists also held workshops for NMFS, Coast Guard, and

state law enforcement personnel. The purpose of these workshops was to

review the complete enforcement process for TEDs, including

descriptions of TEDs, establishing at-sea protocols for boarding

vessels, checking Parker TEDs and hard TEDs for correct installation,

and conducting training of new enforcement officers. NMFS gear experts

also accompanied NMFS, Coast Guard, and state law enforcement personnel

during at-sea and dockside boardings to provide hands-on technical

training and assistance and to collect information on TED technical

performance and compliance. This assistance was provided in North

Carolina, South Carolina, Georgia, Florida, Alabama and Louisiana, and

Texas.

During the period May-July 1999, three NMFS gear specialists

provided 22 days of assistance to fishermen in North Carolina, South

Carolina and Georgia in modifying their TEDs to comply with actions

implemented under the leatherback turtle contingency plan (64 FR 25460,

May 12, 1999; 64 FR 27206, May 19, 1999; 64 FR 28761, May 27, 1999; 64

FR 29805, June 3, 1999). Although almost all fishermen used hard TEDs

with a large escape opening to comply with the leatherback contingency

plan, the gear specialists found 10 vessels in McClellanville, SC, that

were equipped with Parker TEDs modified to use the leatherback escape

opening. The fishermen reported little difficulty in successfully

making the leatherback modification to their Parker TEDs.

During the months of March, April and May, 1999, NMFS gear

specialists visited net shops along the Texas coast to provide follow-

up Parker TED training if necessary, but found no net shops still

making Parker TEDs in Texas. On the East Coast, the gear specialists

have confirmed with one net shop in each state (Florida, Georgia, South

Carolina, and North Carolina) that they were still installing Parker

TEDs in 1999. Those shops reported no ongoing technical problems. One

of those net shops has also made a practice of selling uninstalled TED

excluder panels directly to fishermen. NMFS has not encountered any

trawlers, however, that had one of these do-it-yourself Parker TEDs.

Comments on the April 13, 1998 Interim Final Rule

NMFS received one letter on the April 13, 1998, interim final rule

that allowed the use of the Parker soft TED. The commenter supported

the approval of the Parker TED, but expressed several qualifying

concerns.

Comment 1: The commenter questioned whether the TED testing

conducted on the Parker TED was risk-averse enough, considering the

known problems with testing soft TEDs. Specifically, NMFS had not

tested every net-TED combination with a full sample of 25 test turtles.

Response: The April 13, 1998, interim final rule provided a

detailed discussion of the two TED testing sessions that were used to

approve the Parker soft TED. Those TED testing sessions included

several changes to the testing protocol from previous tests that

significantly increased the test's risk-aversion for approving new

TEDs. The most significant change was to limit the approval of

successful candidate soft TEDs to demonstrably compatible net sizes and

styles. The 1998 TED tests included 107 turtle exposures to Parker TEDs

in various net configurations. All 107 turtles escaped the nets. NMFS

also considered the installation compatibility of the Parker TED in

various nets. On that basis, NMFS excluded 2-seam, balloon trawls with

bibs and trawls in which the body taper is greater than 4 bars - 1

point from use with the Parker TED. Parker TEDs installed in those

trawl styles were observed to curl upwards into the 8-inch (20.3-cm)

mesh section of the excluder panel, creating an area where turtles

might become entangled. NMFS also excluded triple-wing trawls, which

were not tested. The current testing protocol, which combines diver

observations with exposure of small turtles to candidate TEDs, provides

a risk-averse method for approving new soft TED candidates, such as the

Parker TED, in a variety of appropriate net combinations.

The experimental TED testing conducted in 1998 provides a further

example of that risk-averse approach. NMFS conducted additional testing

on the Parker TED in net styles that had previously been excluded from

approval with the Parker TED. A triple-wing net and two sizes of

mongoose nets, all with 6 bars - 1 point (6b1p) body tapers, were

tested. All three net-TED combinations had a strong rolling-up of the

outer edges of the 4 inch (10.2 cm) and the 8 inch (20.3 cm) mesh of

the Parker TED excluder panel. In a test with a 68 ft (20.7 m)

headrope-length the 6b1p

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mongoose net, no turtles were captured. Additional industry and

possibly NMFS' testing will be required, however, before this design

can be approved.

Comment 2: The commenter was concerned that the turtles used for

TED testing in 1997 may not have been properly conditioned and that

standardized physiological tests to confirm the turtles' fitness were

not conducted.

Response: NMFS agrees that proper conditioning of the turtles used

for TED testing is important. More vigorous escape behaviors by the

test turtles are probably more representative of natural turtle

behavior. The current practice is to try to condition the turtles in

large, free-swimming pens for at least 4 weeks prior to using the

turtles for TED testing. Physiological data have been collected to help

determine how different conditioning regimes affect the turtles' stress

response to the TED tests, such as blood pH and blood lactate levels.

The analysis of those data, however, has not been completed, and we do

not know whether different conditioning regimes result in different

physiological stress levels. The goals in conducting the TED test are

to provide a meaningful examination of candidate TEDs while minimizing

stress and risk to the turtles. Current practices, which include 5-

minute limits on the exposure to TEDs, limits on the safe water

temperatures, and full-time care from animal husbandry experts, have

resulted in a perfect safety record for the turtles used in TED

testing. Even with these practices, there will always be natural

variability in the environmental conditions and the fitness of the

turtles. For that reason, every TED testing session is based on the

performance of the turtles in a control TED, not on comparisons with

previous TED testing sessions. While NMFS continues to investigate the

role of various physiological measures on the turtles' fitness and

behavior, the controls ensure that the 1997 TED tests, as well as

future tests, are a rigorous examination of candidate TEDs.

Comment 3: The commenter recommended that NMFS adopt a regulatory

certification process for net installers, stating this would be a more

efficient way of ensuring proper installation of the Parker TED than

NMFS proposed use of technical assistance to fishermen and net makers

and enforcement surveillance for correct TED use.

Response: NMFS explicitly considered adopting a net maker

certification program in the Environmental Assessment/Regulatory Impact

Review (EA/RIR) for the interim final rule. In summary, NMFS determined

that a certification program would create a large administrative and

bureaucratic burden on the government and a clumsy regulatory

requirement affecting the net makers and the fishermen. The TED

regulations already include prohibitions on selling or using non-

approved TEDs (50 CFR 223.250(b)). Also, the technical specifications

for what constitutes an approved Parker TED are extremely detailed.

Therefore, there would be little advantage for enforcement from an

additional regulatory certification requirement. NMFS believes that the

limited enforcement resources for ensuring compliance with the TED

regulations are best spent by conducting at-sea patrols and boardings

of actively fishing trawlers and by providing dockside assistance to

fishermen.

Comment 4: The commenter was concerned about the durability of soft

TEDs and their installation over time.

Response: The commenter is referring to two separate problems with

soft TEDs that inherently result from the use of soft, flexible webbing

for the TED. The first is the soft TED's fragile material relative to

hard TEDs. The webbing in a soft TED may easily be cut or damaged

during normal trawling activities; for example, from encountering small

sharks, shell fragments, rocks, corals, and wood debris. The second is

that tensions on the soft TED and the net during trawling may

eventually stretch the net or the excluder panel so that pockets or

slack webbing appear and cause turtle entanglements.

NMFS is also aware of, and concerned by, these problems which, in

part, is why the Parker TED was approved for a limited, 18-month

period. Part of the goal of the enforcement and training programs has

been to document the extent to which these problems do occur with the

Parker TED in commercial use. NMFS believes that the design of the

Parker TED and its stringent installation requirements make it much

less susceptible to losing its shape than previous styles of soft TEDs.

NMFS enforcement and training programs, in fact, have not discovered

that stretching has been a problem with Parker TEDs. NMFS has only

observed a few Parker TEDs in commercial use, however, and further

evaluation of the durability and installation of this design over time

is needed.

NMFS recognized from the outset that no soft TED, constructed of

polyethylene or polypropylene webbing, would be immune to routine

damage. Shrimpers who use soft TEDs must continually inspect their TEDs

and repair holes and damage as soon as they appear. Inspecting the

panel of a soft TED is a difficult and time-consuming task, especially

compared to inspecting a hard TED. Most shrimpers can check the

condition of their hard TEDs visually before every tow, but a soft TED

cannot be inspected through the outside of a wet trawl. The one boat

using a Parker TED in the Gulf of Mexico that NMFS encountered

apparently did not perform proper maintenance on the soft TEDs, and

these TEDs had deteriorated badly over the course of a year. Even with

proper maintenance, NMFS estimates that soft TED panels need to be

replaced once a year, on average. Anecdotal reports from fishermen and

net makers in Texas indicate that virtually no one uses Parker TEDs in

that area because the fishermen do not want the time burden or the

responsibility of checking and repairing the panels. In the Atlantic,

the few Parker TEDs observed did not have problems with holes or damage

and likely were receiving proper maintenance.

Provisions of this Interim Final Rule

This interim final rule extends the approved use of the Parker TED

through October 13, 2000. This interim final rule makes no changes to

the technical requirements for the Parker TED nor to the restrictions

on the styles of net in which it may be installed.

NMFS initially limited the approval of the Parker TED to an 18-

month period for two reasons. First, NMFS limited the duration so that

if an evaluation of the effectiveness of the Parker TED in commercial

use showed that the Parker TED was not effective at excluding sea

turtles, NMFS could allow the approval to lapse. If the Parker TED was

found to be effective at excluding sea turtles, the interim rule would

be adopted as final incorporating any necessary technical changes that

might result from the TED testing and commercial use during the 18-

month period. Second, NMFS expected that there would be additional

commercial testing by industry of the Parker TED in other net sizes and

styles, under NMFS authorization. If additional net sizes and styles

were found to be compatible with the Parker TED, NMFS would expand the

authorized use of the Parker TED in finalizing the rule. NMFS

observations of commercial use of the Parker TED do generally indicate

that it effectively excludes turtles. This conclusion is tempered,

however, by the small number of vessels with Parker TEDs that have

actually been observed and by the troubling lack of maintenance seen in

one of those cases. The anticipated commercial testing of

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additional net sizes and styles has also not taken place. One vessel is

currently collecting information on a Parker TED with a modified panel,

to determine whether the modified panel excludes more finfish bycatch.

NMFS believes that extending the approved use of the Parker TED for an

additional year will allow additional information to be collected for a

better final decision. This extension will allow fishermen currently

using Parker TEDs to continue to do so and will give more time for

testing additional modifications. The small number of fishermen using

Parker TEDs and the apparently high effectiveness of the Parker TED

mean that this extension will not unnecessarily impact sea turtles.

Request for Comments

NMFS is requesting input and will accept written comments (see

ADDRESSES) on this interim final rule until December 13, 1999. Any

comments, suggestions, or additional data and information on this

action will be taken into consideration before a final determination is

made on a final rule.

Classification

This action has been determined to be not significant for purposes

of Executive Order 12866.

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

good cause exists, under 5 U.S.C. 553(b)(B), to waive prior notice and

an opportunity for public comment on this rule. It is impracticable and

contrary to the public interest to provide prior notice and opportunity

for comment because the shrimp fishery is currently underway in the

offshore and eastern Gulf of Mexico with virtually all of those shrimp

trawlers required to use TEDs. The provisions of this rule allow those

fishermen the continued option of a soft TED design, to comply with the

TED requirement. In addition, a small number of fishermen are presently

using the Parker TED. This rule will allow those fishermen to continue

to use their existing gear beyond October 12, 1999. Otherwise, they

would be forced to remove their soft TEDs by that date and replace them

with hard TEDs. Because this final rule does not create any new

regulatory burden, but instead relieves regulatory restrictions by

continuing an additional option for complying with existing sea turtle

conservation requirements, under 5 U.S.C. 553(d)(1) it is not subject

to a 30-day delay in effective date.

Because prior notice and opportunity for public comment are not

required for this rule by 5 U.S.C. 553, or any other law, the

analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601

et seq., are inapplicable.

The AA prepared an EA/RIR for the April 13, 1998, interim final

rule (63 FR 17948) that approved the use of the Parker TED. The EA

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

environment. A copy of the EA/RIR is available (see ADDRESSES).

List of Subjects in 50 CFR Part 223

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: October 7, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 223 is amended

as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 223 continues to read as

follows:

Authority: 16 U.S.C. 1531 - 1543; subpart B, Sec. 223.12 also

issued under 16 U.S.C. 1361 et seq.

Sec. 223.207 [Amended]

2. In Sec. 223.207, paragraph (c) introductory text, remove the

text ``October 13, 1999'' and add in its place, ``October 13, 2000''.

[FR Doc. 99-26693 Filed 10-12-99; 8:45 am]

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