[Federal Register Volume 59, Number 86 (Thursday, May 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10754]


[[Page Unknown]]

[Federal Register: May 5, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No. 940418-4118; I.D. 031894B]

 

Sea Turtle Conservation; Restrictions Applicable to Fishery 
Activities

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

ACTION: Temporary rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS establishes all inshore and offshore waters from Cape 
Canaveral, Florida (28 deg.24.6' N latitude), to the North Carolina-
Virginia border (36 deg.30.5' N latitude) as the leatherback 
conservation zone and notifies owners and operators of shrimp trawlers 
operating in that zone that short-term area closures may be required if 
high abundance levels of leatherback turtles are documented. NMFS will 
close those areas to any shrimp trawler required to have a turtle 
excluder device (TED) installed in each net that is rigged for fishing 
unless the TED installed is a NMFS-approved Taylor TED or a Morrison 
TED with either of the two NMFS-approved modifications made in May 
1993. This temporary rule is necessary to reduce mortality of 
endangered leatherback sea turtles incidentally captured in shrimp 
trawls.
    Specific area closures will be announced in the Federal Register, 
on the NOAA weather channel and in newspapers and other media. Shrimp 
trawlers in the leatherback conservation zone are responsible for 
monitoring the NOAA weather channel for closure announcements. Shrimp 
fishermen may also call (813) 893-3163 for updated closure information.
    Owners and operators of shrimp trawlers operating in closed areas 
with modified TEDs must register with the Director, Southeast Region, 
NMFS, and may be required to carry an observer and provide information 
on trawling hours, gear modifications and turtle captures if requested 
by the Regional Director.

DATES: This rule is effective from April 29, 1994 through May 31, 1994. 
Comments on this rule and consideration of any extension of this rule 
must be submitted by May 31, 1994.

ADDRESSES: Requests for a copy of the environmental assessment for this 
action and comments on this action should be addressed to Dr. William 
W. Fox, Jr., Director, Office of Protected Resources, NMFS, 1335 East-
West Highway, room 8268, Silver Spring, MD 20910. Comments on the 
collection-of-information requirement subject to the Paperwork 
Reduction Act should be directed to the Office of Protected Resources, 
NMFS, 1335 East-West Highway, Silver Spring, MD 20910, Attention: Phil 
Williams, and to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Washington, DC 20503, Attention: Desk 
Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Phil Williams, Acting Chief, 
Endangered Species Division (301) 713-2322, or Charles A. Oravetz, 
Chief, Protected Species Program, NMFS, Southeast Region, (813) 893-
3366.

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act (ESA) of 
1973. The Kemp's ridley (Lepidochelys kempii), leatherback (Dermochelys 
coriacea), and hawksbill (Eretmochelys imbricata) are listed as 
endangered. Loggerhead (Caretta) and green (Chelonia mydas) turtles are 
listed as threatened, except for breeding populations of green turtles 
in Florida and on the Pacific coast of Mexico, which are listed as 
endangered. The incidental take and mortality of these species, as a 
result of fishing activities, have been documented in the Gulf of 
Mexico and along the Atlantic seaboard.
    Under the ESA and its implementing regulations, it is prohibited to 
take sea turtles. The incidental taking of turtles during fishing in 
the Atlantic Ocean off the coast of the southeastern United States and 
in the Gulf of Mexico is excepted from the taking prohibition if 
specified sea turtle conservation measures are used.
    Existing sea turtle conservation regulations (50 CFR part 227) 
require most shrimp trawlers to have a NMFS-approved TED installed in 
each net rigged for fishing throughout the year. The use of TEDs 
significantly reduces mortalities of loggerhead, green, Kemp's ridley, 
and hawksbill sea turtles. Because leatherback turtles are larger than 
the escape openings of most NMFS-approved TEDs, use of these TEDs is 
not an effective means of protecting leatherback turtles.
    The existing sea turtle conservation regulations allow the 
Assistant Administrator for Fisheries (AA), NOAA, to restrict fishing 
activities in order to conserve a species listed under the ESA (50 CFR 
227.72(e)(6)(ii)). This action may be taken if the AA determines that 
restrictions are necessary to avoid unauthorized takings that may 
likely jeopardize the continued existence of a listed species. The 
provision is particularly applicable to leatherback turtles, where 
despite the use of TEDs, taking by shrimp trawlers can occur. In 
accordance with the endangered status of leatherback turtles, NMFS 
considers preventable take of leatherbacks to be inappropriate. If the 
leatherbacks are relatively abundant in areas where shrimp trawlers are 
fishing, restrictions to minimize the take of leatherbacks must be 
imposed.
    Because of their primarily pelagic existence, leatherbacks normally 
occur outside of areas where they would be subject to take by shrimp 
trawlers. During most months of the year, leatherbacks are not 
considered abundant in shrimping areas, and only isolated incidents of 
take by trawlers are expected. However, the coastal waters of northern 
Florida, Georgia, South Carolina and North Carolina experience 
relatively high abundance levels of leatherbacks as a periodic spring 
phenomenon. When leatherback abundance is high and shrimp trawlers are 
fishing, leatherback stranding pulses have been documented on adjacent 
beaches. A NMFS Biological Opinion prepared for a revision to the sea 
turtle conservation regulations made on December 4, 1992, (52 FR 24244) 
episodic stranding events from Florida through North Carolina and 
required NMFS to develop and implement a contingency plan to solve this 
problem.
    A contingency plan for protection of leatherback turtles on the 
Atlantic seaboard that can be implemented, if necessary, was prepared 
in cooperation with State officials from Florida, Georgia, and North 
Carolina. The necessity for implementation of protective measures for 
leatherback turtles is expected to be short-term and apply to specific 
areas. The plan considers several options to provide protection, and 
any or all of them may be implemented, if necessary, pursuant to 50 CFR 
227.72(e)(6). These options include, closure of areas to all fishing, 
use of restricted tow-times in lieu of TEDs, mandatory observers, and 
use of modified TEDs designed to exclude leatherback turtles.

Presence of Leatherback Turtles

    During December of 1993 and January and February 1994, NMFS 
received regular reports of leatherback sightings in northern Florida. 
These sightings occurred during aerial surveys for right whales, 
conducted by the state of Florida from St. Marys, Georgia, to Sebastian 
Inlet, Florida. During December, sighting rates ranged from 12 to 49 
leatherbacks per survey. During the first week of January, 15 sightings 
were reported. The level of leatherback turtle sightings at this time 
of the year is consistent with data from previous years. The turtles 
normally migrate northward during the months of March through June from 
Florida waters to those off North Carolina.

Sea Turtle Conservation Measures

    Based on the information presented and evidence indicating that 
shrimp trawlers may incidentally take endangered leatherback sea 
turtles, the AA has determined that immediate action may be necessary 
to conserve sea turtles. The AA has determined that incidental takings 
of leatherback sea turtles during shrimp trawl fishing in the 
leatherback conservation zone are unauthorized unless these takings are 
consistent with the applicable biological opinions and associated 
incidental take statements.
    A biological opinion addressing the potential adverse effects of 
shrimp trawling to endangered and threatened species was conducted in 
1992 for final sea turtle conservation regulations. The opinion 
concluded that, ``episodic take of leatherback turtles by shrimp 
trawlers during periods of high jellyfish abundance must be 
eliminated.'' A biological opinion on this action analyzed the impact 
of shrimp trawl fishing in the leatherback conservation zone on 
endangered leatherback turtles. The opinion emphasizes the need for 
additional protective measures such as requiring the use of TEDs with 
escape openings large enough for leatherback sea turtles to escape in 
areas where high abundance levels of leatherbacks are observed. The 
incidental take statement issued with this opinion allows for the 
documented take of 20 leatherback turtles and mortality of four 
leatherback turtles. If observer reports or other information indicate 
that this incidental take is met or exceeded, consultation must be 
reinitiated, and the AA may require additional or more stringent 
conservation measures.

Requirements

    The definitions in 50 CFR 217.12 are applicable to this action, as 
are all relevant provisions in 50 CFR parts 217, 222 and 227.
    The term ``leatherback conservation zone'' means all inshore and 
offshore waters of the Atlantic area from Cape Canaveral, Florida 
(28 deg. 24.6' N latitude), to the North Carolina-Virginia border 
(36 deg. 30.5' N latitude).
    NMFS hereby notifies owners and operators of shrimp trawlers in the 
leatherback conservation zone that short-term closures in specific 
areas may be required to protect endangered leatherback turtles. Weekly 
aerial surveys will be conducted from northern Florida through the 
North Carolina-Virginia border. If sightings of leatherback turtles 
during such surveys exceed 10 animals per 50 nautical miles (nm) of 
trackline, the survey will be replicated within 12 hours, or as soon as 
practicable, to ensure that leatherback turtle presence is persistent 
in the area. If surveys demonstrate the continued presence of large 
concentrations of leatherbacks NMFS will temporarily close these 
specific areas to any shrimp trawler required to have a NMFS-approved 
TED installed in each net rigged for fishing, unless the TED installed 
is one of the NMFS-approved TEDs as described below. In addition, 
owners and operators of vessels operating in closed areas with an 
allowed TED, described below, must register with the Director, 
Southeast Region, NMFS, in accordance with 50 CFR 227.72(e)(6)(v) (A) 
through (F). If requested, they must carry a NMFS-approved observer on 
board such vessel(s). A shrimp trawler in the leatherback conservation 
zone must comply with the terms and conditions accompanied by any such 
request as well as provide information on trawling hours, gear 
modifications and turtle captures.
    Specific area closures will be announced in the Federal Register, 
on the NOAA weather channel, and in newspapers and other media. Shrimp 
trawlers in the leatherback conservation zone are responsible for 
monitoring the NOAA weather channel for closure announcements. Shrimp 
trawlers may also call (813) 893-3163 for updated area closure 
information. Closure will take effect upon public filing with the 
Federal Register.

NMFS-Approved TEDs With Escape Openings Large Enough for 
Leatherback Sea Turtles

    NMFS previously approved the Taylor TED and two modifications to 
the Morrison TED that will allow leatherback turtles to escape the 
trawl. Descriptions of the Taylor TED and the Morrison modifications 
were published on May 17, 1993 (58 FR 28795).

Additional Sea Turtle Conservation Measures

    NMFS anticipates that shrimp trawlers may continue to interact with 
leatherback turtles throughout the summer. As necessary, the AA may 
extend, for additional 30-day periods, the restrictions described in 
this temporary rule through notification in the Federal Register.
    In addition, the AA may modify, at any time, the requirements of 
this action through notification in the Federal Register, to ensure 
adequate protection of endangered and threatened sea turtles. Under 
this procedure, the AA will impose any necessary additional or more 
stringent measures if NMFS determines that shrimp trawlers are having a 
significant adverse effect on sea turtles. For example, if monitoring 
to assess turtle mortality indicates that the incidental take level is 
approaching the level established by the biological opinion for this 
action issued under section 7 of the ESA, the AA may modify or add 
conservation measures to protect leatherback sea turtles. That level is 
20 documented takes, including four by mortality of leatherback 
turtles. If the incidental take level is met or exceeded, if 
significant or unanticipated levels of lethal or nonlethal takings or 
strandings occur that are associated with fishing activities in the 
leatherback conservation zone, or if there is significant non-
compliance with this action, additional measures may be imposed. 
Additional restrictions may include closing the entire leatherback 
conservation zone to all shrimping.

Classification

    The AA has determined that this action is necessary to respond to 
an emergency situation to conserve and provide adequate protection for 
leatherback turtles. This action is consistent with the ESA and other 
applicable law.
    Because neither section 553 of the Administrative Procedures Act 
(APA) or any other law requires that a general notice of proposed 
rulemaking be published for this action, under section 503(b) of the 
Regulatory Flexibility Act, an initial regulatory flexibility analysis 
is not required.
    It has been determined that this rule is not significant for 
purposes of E.O. 12866.
    This action allows the AA to establish a registration program as 
authorized by the final rule (57 FR 57348, December 4, 1992), codified 
at 50 CFR 227.72(e)(6)(iv). Such a program contains a collection-of-
information requirement subject to the Paperwork Reduction Act (PRA), 
namely, registration by vessels fishing in the leatherback conservation 
zone from Cape Canaveral, FL, to the Virginia-North Carolina border. 
This collection has been approved by OMB under control number 0648-
0267. The public reporting burden for this collection of information is 
estimated to average 7 minutes per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Comments regarding this burden estimate or 
any other aspect of this collection of information, including 
suggestions for reducing this burden, should be sent to NMFS and OMB 
(see ADDRESSES).
    Pursuant to section 553(b)(B) of the APA, the AA finds that there 
is good cause to take this action without notice and opportunity for 
comment. It is impracticable and contrary to the public interest 
because relatively high levels of leatherback turtle abundance have 
been reported recently in Florida, and closures and/or restrictions may 
need to be imposed quickly. The action announced by this notice is 
needed at this time so that shrimp trawlers will monitor NOAA weather 
radio and prepare for closures and/or restrictions in specific areas 
where relatively high leatherback sea turtle concentrations are 
identified. Furthermore, comments were solicited on the temporary rule 
establishing a leatherback conservation zone last year (58 FR 28790, 
May 17, 1993). In addition, comments were solicited on potential 
leatherback conservation measures (57 FR 57348, December 4, 1992), and 
a summary of the comments received and a response was published (57 FR 
40859, September 8, 1992). NMFS also solicited comments in meetings 
with fishing groups and state officials concerning this problem.
    Pursuant to section 553(d) of the APA, the AA finds there is good 
cause to waive the required 30-day delay in effective date for this 
action. Advance preparation is not necessary to monitor the NOAA 
weather radio. While time may be needed to procure a Taylor TED or make 
the appropriate modifications to the Morrison TED, restricted areas 
will be relatively small in size and shrimp trawlers should be able to 
operate in other areas with existing gear.
    The AA prepared an EA for the final rule (57 FR 57348, December 4, 
1992). A supplemental EA prepared specifically for this action 
concludes that, with specified mitigation measures, this action will 
have no significant impact on the human environment.

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 29, 1994.
John T. Everett,
Acting Assistant Administrator, National Marine Fisheries Service.
[FR Doc. 94-10754 Filed 4-29-94; 4:35 pm]
BILLING CODE 3510-22-P