Extension of the Authorized Restricted Tow Times in Lieu of Turtle Excluder Devices for an Additional 30 Days by Shrimp Trawlers in Specific Louisiana Waters

CourtNational Oceanic And Atmospheric Administration
Citation86 FR 69178
Publication Date07 December 2021
Record Number2021-26513
Federal Register, Volume 86 Issue 232 (Tuesday, December 7, 2021)
[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
                [Rules and Regulations]
                [Pages 69178-69180]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-26513]
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                DEPARTMENT OF COMMERCE
                National Oceanic and Atmospheric Administration
                50 CFR Part 223
                [Docket No. 211201-0248]
                RIN 0648-BK98
                Extension of the Authorized Restricted Tow Times in Lieu of
                Turtle Excluder Devices for an Additional 30 Days by Shrimp Trawlers in
                Specific Louisiana Waters
                AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
                Atmospheric Administration (NOAA), Commerce.
                ACTION: Temporary rule.
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                SUMMARY: NMFS issues this temporary rule for a period of 30 days, to
                allow shrimp fishers to use limited tow times as an alternative to
                Turtle Excluder Devices (TEDs) in specific Louisiana State waters (from
                91[deg]23' West longitude eastward to the Louisiana/Mississippi border,
                and seaward out 3 nautical miles (5.6 kilometers)). This action is
                necessary because environmental conditions resulting from Hurricane Ida
                are preventing fishers from using TEDs effectively.
                DATES: Effective from December 7, 2021, through January 5, 2022.
                FOR FURTHER INFORMATION CONTACT: Bob Hoffman, 727-824-5312.
                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) turtles
                are listed as endangered. The 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.
                 Sea turtles are incidentally taken, and some are killed, as a
                result of numerous activities, including fishery-related trawling
                activities in the Gulf of Mexico and along the Atlantic seaboard. Under
                the ESA and its implementing regulations, the taking of sea turtles is
                prohibited, with exceptions identified in 50 CFR 223.206(d), or
                according to the terms and conditions of a biological opinion issued
                under section 7 of the ESA, or according to an incidental take permit
                issued under section 10 of the ESA. The incidental taking of turtles
                during shrimp or summer flounder trawling is exempted from the taking
                prohibition of section 9 of the ESA, if the conservation measures
                specified in the sea turtle conservation regulations (50 CFR part 223)
                are followed. The regulations require most shrimp trawlers and summer
                flounder trawlers operating in the southeastern United States (Atlantic
                area, Gulf area, and summer flounder sea turtle protection area, see 50
                CFR 223.206) to have a NMFS-approved TED installed in each net that is
                rigged for fishing to allow sea turtles to escape. TEDs currently
                approved by NMFS include single-grid hard TEDs and hooped hard TEDs
                conforming to a generic description, the flounder TED, and one type of
                soft TED--the Parker soft TED (see 50 CFR 223.207).
                 TEDs incorporate an escape opening, usually covered by a webbing
                flap, which allows sea turtles to escape from trawl nets. To be
                approved by NMFS, a TED design must be shown to be 97 percent effective
                in excluding sea turtles during testing based upon specific testing
                protocols (50 CFR 223.207(e)(1)). Approved hard TEDs are described in
                the regulations (50 CFR 223.207(a)) according to generic criteria based
                upon certain parameters of TED design, configuration, and installation,
                including height and width dimensions of the TED opening through which
                the turtles escape.
                 The regulations governing sea turtle take prohibitions and
                exemptions provide for the use of limited tow times as an alternative
                to the use of TEDs for vessels with certain specified characteristics
                or under certain special circumstances. The provisions of 50 CFR
                223.206(d)(3)(ii) specify that the NOAA Assistant Administrator for
                Fisheries (AA) may authorize compliance with tow time restrictions as
                an alternative to the TED requirement if the AA determines that the
                presence of algae, seaweed, debris, or other special environmental
                conditions in a particular area makes trawling with TED-equipped nets
                impracticable. Namely, TEDs can become clogged with debris, which can
                prevent target species from passing into the codend of the net and sea
                turtles from escaping through the TED opening. The provisions of 50 CFR
                223.206(d)(3)(i) specify the maximum tow times that may be used when
                tow time limits are authorized as an alternative to the use of TEDs.
                Each tow may be no more than 55 minutes from April 1 through October 31
                and no more than 75 minutes from November 1 through March 31, as
                measured from the time that the trawl doors enter the water until they
                are removed from the water. For a trawl that is not attached to a door,
                the tow time begins at the time the codend enters the water and ends at
                the
                [[Page 69179]]
                time the codend is emptied of catch on deck. These tow time limits are
                designed to minimize the level of mortality of sea turtles that are
                captured by trawl nets not equipped with TEDs.
                Recent Events
                 On September 21, 2021, we received a request from the Louisiana
                Department of Wildlife and Fisheries (LDWF) to allow the use of tow
                times as an alternative to turtle excluder devices (TEDs) because of
                excessive storm-related debris on the fishing grounds due to Hurricane
                Ida. We subsequently issue a temporary rule allowing tow times as an
                alternative to TEDs in Louisiana waters bounded by 91[deg]23' West
                longitude (i.e., where the COLREGS demarcation line intersects the ship
                channel coming out of the Atchafalaya River), eastward to the
                Louisiana/Mississippi border, and seaward out 3 nautical miles (5.6
                kilometers) (86 FR 61712, November 8, 2021). This authorization runs
                from November 5, 2021, through December 6, 2021. On November 17, 2021,
                we received a request from LDWF requesting a 30 day extension of the
                authorization (December 7, 2021-January 5, 2022) for the same areas
                because of the continued presence of storm related debris in the area.
                 Continuing investigation by the Southeast Fisheries Science Center,
                Pascagoula Lab, Gear Monitoring Team has documented that debris is
                still affecting fishermen's ability to use TEDs effectively within the
                area bounded by 91[deg]23' West longitude (i.e., where the COLREGS
                demarcation line intersects the ship channel coming out of the
                Atchafalaya River), eastward to the Louisiana/Mississippi border, and
                seaward out 3 nautical miles.
                Special Environmental Conditions
                 The AA finds that debris washed into hurricane-affected Louisiana
                state waters has created special environmental conditions that make
                trawling with TED-equipped nets impracticable. Therefore, the AA issues
                this notification to authorize the use of restricted tow times as an
                alternative to the use of TEDs in specific Louisiana state waters (from
                91[deg]23' West longitude eastward to the Louisiana/Mississippi border,
                and seaward out 3 nautical miles (5.6 kilometers)). Tow times must be
                limited to no more than 55 minutes until October 31, and no more than
                75 minutes thereafter, as measured from the time that the trawl doors
                enter the water until they are removed from the water. For a trawl that
                is not attached to a door, the tow time begins at the time the codend
                enters the water and ends at the time the codend is emptied of catch on
                deck.
                Continued Use of TEDs
                 NMFS encourages shrimp trawlers in the affected areas to continue
                to use TEDs if they can do so effectively, even though they are
                authorized under this action to use restricted tow times.
                 NMFS gear experts have provided several general operational
                recommendations to fishers to maximize the debris exclusion ability of
                TEDs that may allow some fishers to continue using TEDs without
                resorting to restricted tow times. To exclude debris, NMFS recommends
                the use of hard TEDs made of either solid rod or of hollow pipe that
                incorporate a bent angle at the escape opening, in a bottom-opening
                configuration. In addition, the installation angle of a hard TED in the
                trawl extension is an important performance element in excluding debris
                from the trawl. High installation angles can trap debris either on or
                in front of the bars of the TED; NMFS recommends an installation angle
                of 45[deg], relative to the normal horizontal flow of water through the
                trawl, to optimize the TED's ability to exclude turtles and debris.
                Furthermore, the use of accelerator funnels, which are allowable
                modifications to hard TEDs, is not recommended in areas with heavy
                amounts of debris or vegetation. Lastly, the webbing flap that is
                usually installed to cover the turtle escape opening may be modified to
                help exclude debris quickly: The webbing flap can either be cut
                horizontally to shorten it so that it does not overlap the frame of the
                TED or be slit in a fore-and-aft direction to facilitate the exclusion
                of debris. The use of the double cover flap TED will also aid in debris
                exclusion.
                 All of these recommendations represent legal configurations of TEDs
                for shrimpers fishing in the affected areas. This action does not
                authorize any other departure from the TED requirements, including any
                illegal modifications to TEDs. In particular, if TEDs are installed in
                trawl nets, they may not be sewn shut.
                Alternative to Required Use of TEDs
                 The authorization provided by this rule applies to all shrimp
                trawlers that would otherwise be required to use TEDs in accordance
                with the requirements of 50 CFR 223.206(d)(2) who are operating in
                hurricane-affected Louisiana state waters (i.e., from 91[deg]23' West
                longitude eastward to the Louisiana/Mississippi border, and seaward out
                3 nautical miles (5.6 kilometers)) for a period of 30 days. Through
                this temporary rule, shrimp trawlers may choose either restricted tow
                times or TEDs to comply with the sea turtle conservation regulations,
                as prescribed above.
                Alternative to Required Use of TEDs; Termination
                 The AA, at any time, may withdraw or modify this temporary
                authorization to use tow time restrictions in lieu of TEDs through
                publication of a notification in the Federal Register, if necessary to
                ensure adequate protection of endangered and threatened sea turtles.
                Under this procedure, the AA may modify the affected area or impose any
                necessary additional or more stringent measures, including more
                restrictive tow times, synchronized tow times, or withdrawal of the
                authorization if the AA determines that the alternative authorized by
                this rule is not sufficiently protecting turtles or no longer needed.
                The AA may also terminate this authorization if information from
                enforcement, state authorities, or NMFS indicates compliance cannot be
                monitored effectively. This authorization will expire automatically on
                January 5, 2022, unless it is explicitly extended through another
                notification published in the Federal Register.
                Classification
                 This action has been determined to be not significant for purposes
                of Executive Order 12866.
                 The AA has determined that this action is necessary to respond to
                an environmental situation to allow more efficient fishing for shrimp,
                while providing effective protection for endangered and threatened sea
                turtles pursuant to the ESA and applicable regulations.
                 Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good
                cause to waive prior notice and opportunity to comment on this rule.
                The AA finds that unusually high amounts of debris are creating special
                environmental conditions that make trawling with TED-equipped nets
                impracticable. Prior notice and opportunity to comment are
                impracticable and contrary to the public interest in this instance
                because providing notice and comment would prevent the agency from
                providing the affected industry relief from the effects of Hurricane
                Ida in a timely manner, while continuing to provide effective
                protection for sea turtles.
                [[Page 69180]]
                 For the same reasons, the AA finds that there is good cause to
                waive the 30-day delay in effective date pursuant to 5 U.S.C.
                553(d)(3).
                 Since prior notice and an opportunity for public comment are not
                required to be provided for this action by 5 U.S.C. 553, or by any
                other law, the analytical requirements of 5 U.S.C. 601 et seq. are
                inapplicable.
                 Authority: 16 U.S.C. 1531-1543.
                 Dated: December 2, 2021.
                Samuel D. Rauch, III,
                Deputy Assistant Administrator for Regulatory Programs, National Marine
                Fisheries Service.
                [FR Doc. 2021-26513 Filed 12-2-21; 4:15 pm]
                BILLING CODE 3510-22-P
                

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