[Federal Register Volume 59, Number 44 (Monday, March 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5051]


[[Page Unknown]]

[Federal Register: March 7, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 930809-3209; I.D. 021594F]

 

Sea Turtle Conservation; Restrictions Applicable to Fishery 
Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration, (NOAA), Commerce.

ACTION: Interim rule with request for comments.

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SUMMARY: NMFS issues this interim rule to reduce for 60 days the size 
of the offshore area where the summer flounder fishery must use an 
approved turtle excluder device (TED) in any net that is rigged for 
fishing, by moving the northern boundary from 37 deg.05' N. latitude 
(Cape Charles, VA) to 35 deg.46.1'N. latitude (Oregon Inlet, NC). The 
southern boundary of the offshore area (the North Carolina-South 
Carolina border) remains the same. The purpose of this action is to 
relieve an unnecessary restriction on fishermen in the summer flounder 
fishery while continuing to provide protection to endangered and 
threatened sea turtles.

DATES: This rule is effective March 1, 1994. Comments on this rule must 
be submitted by March 31, 1994.

ADDRESSES: Direct comments on this rule and requests for copies of the 
Environmental Assessment prepared for this rule to: Dr. William Fox, 
Jr., Director, Office of Protected Resources, NMFS, 1335 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Phil Williams, Acting Chief, 
Endangered Species Division (301/713-2319), Charles A. Oravetz, Chief, 
Protected Species Program, NMFS Southeast Region (813/893-3366), or 
Doug Beach, Chief, Protected Species Program, NMFS Northeast Region 
(508/281-9291).

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, 16 
U.S.C. 1531 et seq. (ESA). According to the 1990 report on the decline 
of sea turtles, published by the National Academy of Sciences, 
incidental capture in shrimp trawls is by far the leading cause of 
human-induced mortality to sea turtles in the water, but collectively, 
activities in non-shrimp fisheries, which include the summer flounder 
bottom trawl fishery, constitute the second largest source.
    NMFS has taken action to require the use of TEDs in the bottom 
trawl fishery for summer flounder from 37 deg.05' N. latitude (Cape 
Charles, VA) southward to 33 deg.35' N. latitude (North Carolina-South 
Carolina border), referred to as the ``summer flounder fishery-sea 
turtle protection area'' and to require vessels to carry an observer, 
if requested to do so. These requirements were initially effective 
November 15, 1992, through December 15, 1992 (57 FR 53603, November 12, 
1992), were extended from December 16, 1992, through January 14, 1993 
(57 FR 60135, December 18, 1992), were modified and extended from 
January 7, 1993, through February 8, 1993 (58 FR 4088, January 13, 
1993), and were extended from February 10, 1993, through April 10, 1993 
(58 FR 5884, February 16, 1993). On September 20, 1993, an interim 
final rule was published requiring year-round TED-use by participants 
in the bottom trawl fishery for summer flounder in the summer flounder 
fishery-sea turtle protection area defined above (58 FR 48797, 
September 20, 1993). The specific requirements, their background and 
rationale, comments and responses to comments, and summaries of 
pertinent biological opinions were included in the cited Federal 
Register publications and are not repeated here.

Recent Events

    NMFS' continuing review of the available information regarding the 
temporary TED requirement under the ESA in the summer flounder bottom 
trawl fishery indicates that conditions continue to necessitate the use 
of TEDs in some of the waters off North Carolina. Sea turtles and 
bottom trawling continue to co-occur in these waters based on 
observations of turtles, both at sea and from strandings on ocean 
beaches.
    NMFS and the U.S. Coast Guard are continuing to conduct cooperative 
enforcement activities in the waters off of North southern Virginia and 
North Carolina. NMFS has determined that compliance with the TED-use 
requirement has been good.
    NMFS has determined, based on past interactions between sea turtles 
and the summer flounder fishery, that bottom trawl nets without TEDs 
can capture and kill sea turtles at a rate comparable with that of the 
shrimp trawl fishery along the southern U.S. Atlantic coast, where TED 
use is now required at all times. Based on this information, the use of 
TEDs should be a required conservation measure throughout most of the 
summer flounder fishing season.
    In December 1991 and January 1993, based on available information, 
including the relatively cooler waters observed north of Cape Hatteras, 
NMFS moved the northern boundary of the turtle conservation zone where 
restricted tow times were required. The northern boundary was moved 
from Cape Charles, VA, to Oregon, Inlet, NC, effective December 27, 
1991 (57 FR 213, January 3, 1992) and January 7, 1993 (58 FR 4088, 
January 13, 1993).
    Recent data acquired by satellite sensors indicate that sea surface 
temperatures off the coast of North Carolina north of Oregon Inlet are 
less than 10  deg.C. NMFS has found, based on reports from observers 
aboard trawlers and from the scientific literature, that the 
probability of sea turtle captures declines to near zero when surface 
water temperatures fall below 10  deg.C. This decline is apparently 
related to decreased turtle abundance and/or activity in cold waters.
    Therefore, based on recent data regarding ocean water temperature 
north of Oregon Inlet, turtle stranding information, and sea turtle 
conservation measures that are currently in effect, the potential 
threat to turtles within the northern boundary of the TED-use area from 
Cape Charles, VA, to Oregon Inlet, NC, has diminished since the onset 
of the summer flounder season. While there is a small risk to sea 
turtles associated with moving the northern boundary of the TED-use 
area southward, NMFS has determined that this risk is minimal and will 
not jeopardize the continued existence of endangered and threatened sea 
turtles.
    The September 20, 1993, interim rule requiring year-round TED-use 
in the summer flounder fishery-sea turtle protection area will continue 
to protect sea turtles from summer flounder fishery interactions until 
NMFS issues a permanent rule.
    The present action modifying the size of the summer flounder 
fishery-sea turtle protection area will be applicable for 60 days, 
unless NMFS determines that it should be modified or that other action 
is required, based on comments received on this rule or on events in 
the fishery.

Comments on NMFS' 1993 Actions Reducing the Size of the Summer 
Flounder-Sea Turtle Protection Area by Lowering the Northern Boundary 
to Oregon Inlet

    One comment was received from the Center for Marine Conservation 
(CMC), which supported a permanent TED-use requirement in the fishery 
from Cape Charles, VA, to the southern border of North Carolina, and 
opposed the reduction of the area to Oregon Inlet, NC. Further, CMC 
supported an observer requirement on summer flounder vessels north to 
Cape Cod, Massachusetts, and observers in all fisheries in order to 
determine the full extent of sea turtle and fishery interactions.
    Response: NMFS' actions to move the northern boundary south to 
Oregon Inlet and to maintain it there were based on available data 
regarding turtle distribution and fishing activity. Past data 
essentially mirror present data which indicate that the potential 
threat to sea turtles north of Oregon Inlet diminishes substantially by 
the beginning of January, but trawling without TEDs south of Oregon 
Inlet continues to pose a threat. NMFS will not require the use of 
restricted tow times in the offshore waters north of Oregon Inlet 
because the likelihood of turtle capture is remote due to the decreased 
presence and activity of turtles in the cold waters.
    However, NMFS will continue to monitor conditions north of Oregon 
Inlet to assess the risk of capture from trawlers not using TEDs. 
Cooperative efforts between NMFS and the North Carolina Division of 
Marine Fisheries will increase stranding monitoring efforts through 
periodic aerial coverage of the beaches.
    If NMFS determines that incidental capture of turtles is occurring, 
or is likely to occur, conservation measures will again be imposed. 
Such measures will include the use of TEDs.
    Under this interim rule, NMFS may place observers on summer 
flounder vessels operating inside and outside of the summer flounder 
fishery-sea turtle protection area. It is NMFS' intention to require 
the use of TEDs in all areas where the distribution of turtles and 
trawling overlap, and where there is an incidental take of turtles, as 
a permanent conservation measure in this fishery. NMFS recognizes that 
the use of TEDs is the most effective and easily enforceable turtle 
conservation measure. However, the required use of TEDs during the last 
two summer flounder fishing seasons has brought to light certain 
problems. These problems relate to the strength of TEDs and their 
ability to withstand the sometimes excessive clogging with bycatch 
(most often schools of dogfish) or bottom debris encountered under 
certain conditions, especially north of Oregon Inlet during cold water 
periods. Flounder trawls are made of heavier mesh, and are pulled at 
much faster speeds than shrimp trawls, which greatly increases the 
stresses on the TED caused by large accumulations of bycatch. NMFS is 
continuing to seek improved TEDs for this fishery. On October 20, 1993, 
NMFS approved an improved Flounder TED for bottom trawl nets, developed 
in cooperation with the North Carolina Division of Marine Fisheries, 
Sea Grant, and summer flounder fishermen.

Sea Turtle Conservation Measures

    This interim rule does not supersede the September 20, 1993, 
interim rule requirement (58 FR 48797) that owners and operators of 
summer flounder bottom trawlers in the summer flounder-sea turtle 
protection area use an approved TED in each net that is rigged for 
fishing. The present action does, however, similar to a prior action 
last season (58 FR 8554, February 16, 1993), modify for a 60-day period 
the northern boundary of the summer flounder-sea turtle protection area 
by relocating it southward to Oregon Inlet, NC. The modified summer 
flounder-sea turtle protection area includes all offshore waters 
seaward of the COLREGS (International Regulations for Preventing 
Collisions at Sea, 1972) demarcation line, bounded on the north by a 
line along 35 deg.46.1' N. latitude (Oregon Inlet) and bounded on the 
south by a line along 33 deg.35' N. latitude (North Carolina-South 
Carolina border).
    The Assistant Administrator for Fisheries, NOAA (AA), has 
determined that this temporary action will continue to conserve sea 
turtles and at the same time reduce unnecessary regulatory burdens on 
summer flounder fishermen. The AA has further determined that 
incidental takings of sea turtles during summer flounder bottom 
trawling are unauthorized unless those takings are consistent with the 
applicable biological opinions and associated incidental take 
statements. A biological opinion on the impacts of the summer flounder 
bottom trawl fishery managed under the Fishery Management Plan for 
Summer Flounder Fishery (FMP) and Amendment 2 to the FMP was issued on 
August 10, 1992. That incidental take statement allows for the 
documented lethal take of 18 sea turtles: Three in any combination of 
Kemp's ridley, hawksbill, green, or leatherback sea turtles, and 15 
loggerhead turtles. A supplemental biological opinion was prepared for 
the September 20, 1993, action (which established the TED-use 
requirement in the summer flounder fishery from Cape Charles, VA to the 
North Carolina-South Carolina border). NMFS has also prepared a 
supplemental biological opinion for this temporary action and has 
authorized a take, by death or injury, of two endangered Kemp's ridley, 
hawksbill, green, or leatherback turtle, or six loggerhead turtles 
during the applicable 60-day period of this action.
    This rule will require summer flounder trawlers, whether operating 
inside or outside of the summer flounder fishery-sea turtle protection 
area, to carry an observer if selected by the Director, NMFS Southeast 
Region, or the Director, NMFS Northeast Region. NMFS will cooperate 
with the North Carolina Division of Marine Fisheries in the placement 
of observers. If observer reports or other information indicate that 
the authorized incidental take level is met or exceeded, NMFS will take 
other necessary measures to protect turtles.

Classification

    The AA has determined that this interim rule is consistent with the 
ESA and other applicable law.
    This rule is not subject to review under E.O. 12866.
    The AA prepared an environmental assessment (EA) for the final rule 
to protect sea turtles (57 FR 57348, December 4, 1992). A supplemental 
EA prepared for previous identical actions concludes that there will be 
no significant impact on the human environment. A copy of the EA 
prepared for this interim rule is available (see ADDRESSES).
    The AA finds there is good cause to waive opportunity for prior 
notice and opportunity for comment under section 553(b)(B). The AA 
finds that prior notice and opportunity for comment is unnecessary, 
impracticable, and contrary to the public interest because fishermen 
will be unnecessarily disadvantaged by the delay without any benefit in 
the protection of sea turtles. Because this interim rule relieves a 
restriction, a 30-day delayed effective date is not necessary.
    Because prior notice and opportunity for comment is not required 
for this action, under section 603(b) of the Regulatory Flexibility 
Act, an initial regulatory flexibility analysis is not required.

List of Subjects in 50 CFR Part 217

    Endangered and threatened species, Exports, Fish, Imports, Marine 
Mammals, Transportation.

    Dated: March 1, 1994.
Samuel W. McKeen,
Program Management Officer, National Marine Fisheries Service.

    For the reasons set forth in the preamble, 50 CFR part 217 is 
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 definition for ``Summer flounder fishery-sea 
turtle protection area'' is revised to read as follows:


Sec. 217.12   Definitions.

* * * * *
    Summer flounder fishery-sea turtle protection area means:
    (1) All offshore waters, bounded on the north by a line along 
37 deg.05' N. latitude (Cape Charles, VA) and bounded on the south by a 
line along 33 deg.35' N. latitude (North Carolina-South Carolina 
border), except as provided in paragraph (2) of this definition.
    (2) Applicable from March 1, 1994 through May 2, 1994, all offshore 
waters, bounded on the north by a line along 35 deg.46.1' N. latitude 
(Oregon Inlet, NC) and bounded on the south by a line along 33 deg.35' 
N. latitude (North Carolina-South Carolina border).
* * * * *
[FR Doc. 94-5051 Filed 3-1-94; 4:33 pm]
BILLING CODE 3510-22-P