[Federal Register Volume 60, Number 92 (Friday, May 12, 1995)]
[Rules and Regulations]
[Pages 25620-25623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11581]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217, 222, and 227

[Docket No. 950427117-5117-01; I.D. 040395A]

RIN 0648-AH97


Sea Turtle Conservation; Restrictions Applicable to Shrimp Trawl 
Activities; Leatherback Conservation Zone

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

ACTION: Interim rule.

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SUMMARY: NMFS issues this interim rule to establish all inshore and 
offshore waters from Cape Canaveral, FL (28 deg.24.6' N. lat.) to the 
North Carolina-Virginia border (36 deg.30.5' N. lat.) as the 
leatherback conservation zone and to provide for short-term closures of 
areas in that zone when high abundance levels of leatherback turtles 
are documented. Upon such documentation, NMFS will prohibit, in the 
closed areas, fishing by 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 specified in the regulations as having an 
escape opening large enough to exclude leatherback turtles. This 
interim rule is necessary to reduce mortality of endangered leatherback 
sea turtles incidentally captured in shrimp trawls. In addition, NMFS 
is publishing a proposed rule elsewhere in this Federal Register to 
establish on a permanent basis the leatherback conservation zone and 
procedure for imposing short-term [[Page 25621]] restrictions designed 
to protect leatherbacks.

EFFECTIVE DATE: This rule is effective on May 9, 1995.

ADDRESSES: Requests for a copy of the environmental assessment (EA) or 
the contingency plan should be addressed to the Chief, Endangered 
Species Division, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910. Comments on the collection-of-
information requirement subject to the Paperwork Reduction Act (PRA) in 
this interim rule should be directed to the Chief, Endangered Species 
Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
DC 20503, Attention: Desk Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, (813) 570-5312, or 
Russell J. Bellmer, (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 (ESA) of 
1973. 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. 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 shrimp 
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 pursuant to sea turtle conservation regulations specified 
at 50 CFR 227.72, which include a requirement that shrimp trawlers 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.
    As a result of their primarily pelagic existence, leatherbacks 
normally occur outside of areas where they would be subject to taking 
by shrimp trawlers. During most months of the year, leatherbacks are 
not abundant in shrimping areas, and only isolated incidents of taking 
by trawlers occur. However, the coastal waters of northern Florida, 
Georgia, South Carolina, and North Carolina experience relatively high 
abundance levels of leatherbacks as a periodic winter and 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, published in the Federal Register on 
December 4, 1992 (57 FR 57348), specifically addressed 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 South 
Carolina. The necessity for implementation of protective measures for 
leatherback turtles is expected to be on an annual basis but only for 
short periods of time in relatively small, specific, areas at any one 
time. The plan considers several options to provide protection, and any 
or all of them may be implemented, if necessary. These options include: 
Closure of areas to all fishing, use of restricted tow times in lieu of 
TEDs, mandatory observers, and use of NMFS-approved TEDs with escape 
openings large enough to exclude leatherback turtles.
    Aerial surveys have been conducted for sea turtles off the Florida 
and Georgia coasts since 1988 and off the coast of South Carolina since 
1993. Beginning in December or January each year, concentrations of 
leatherback turtles occur in northeastern Florida waters. During the 
month of March, leatherbacks begin moving north and usually enter 
Georgia waters in late March or early April. Peak concentrations occur 
in Georgia waters during April and May and by mid-June the 
concentrations have left Georgia. Leatherback concentrations occur in 
waters off South Carolina from late April generally through the first 
part of June.
    Shrimping occurs year round in northeastern Florida waters, but the 
activity levels during any given month may vary from year to year. 
Shrimp fishing is closed in the State waters of Georgia until June 1 of 
each year, but shrimping begins in Federal waters off Georgia generally 
in April or early May. The State of South Carolina opens its waters to 
shrimping between May 15 and June 30, depending upon the presence of 
shrimp. Shrimping in Federal waters off South Carolina generally begins 
in early May. Based upon leatherback turtle concentration information 
and normal shrimp fishing activities, the most likely period for shrimp 
vessel interactions with leatherbacks in the leatherback conservation 
zone is January through June each year.
    Each spring for the last 2 years, NMFS has issued temporary 30-day 
restrictions establishing a leatherback conservation zone (58 FR 28790, 
May 17, 1993; 59 FR 23169, May 5, 1994; 59 FR 29545, June 8, 1994). The 
only comment received in response to those restrictions is addressed 
below:
    Comment: A mechanism for imposing immediate, short-term gear 
modifications, closures, and observer requirements in areas of 
potential high conflict between commercial fisheries and endangered 
species should be implemented on a systematic basis as part of NMFS 
fisheries management and protected species programs. A permanent 
solution should be adopted.
    Response: NMFS agrees. Accordingly, by separate notice, NMFS is 
proposing the permanent establishment of a leatherback conservation 
zone and a procedure for imposing short-term restrictions designed to 
protect leatherback sea turtles based on specified criteria. However, 
this interim rule is being promulgated to address the immediate need to 
protect leatherbacks this season, and will be superseded upon 
promulgation of a final rule as a result of comments received upon the 
proposed rule.

Requirements

    This interim rule establishes a framework whereby short-term 
closures may be instituted on an expedited basis in order to protect 
leatherbacks. Specifically, the rule establishes all inshore and 
offshore waters of the Atlantic area from Cape Canaveral, FL 
(28 deg.24.6' N lat.), to the North Carolina-Virginia border 
(36 deg.30.5' N lat.) as the ``leatherback conservation zone.''
    During the months of January through June, NMFS will conduct weekly 
aerial surveys of the leatherback conservation zone. If sightings of 
leatherback turtles during such surveys exceed 10 animals per 50 
nautical miles (nm) (92.6 km) of trackline, the survey will be 
replicated [[Page 25622]] within 24 hours, or as soon as practicable 
thereafter, to ensure that leatherback turtle presence is persistent in 
the area. If surveys demonstrate the continued presence of large 
concentrations of leatherbacks, NMFS will prohibit shrimp fishing in 
these specific areas by 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 described below. These TEDs 
have been determined to have escape openings large enough to exclude 
leatherbacks. 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 (Regional Director) in accordance 
with 50 CFR 227.72(e)(6)(iv)(A) through (F). Upon written request by 
the Regional Director, they must carry a NMFS-approved observer aboard 
such vessel(s). A shrimp trawler in the leatherback conservation zone 
must comply with the terms and conditions specified in such written 
request, as well as provide information on trawling hours, gear 
modifications and turtle captures.
    Notice of specific area closures will be published in the Federal 
Register and will be effective upon filing for public inspection at the 
Office of the Federal Register. Closures will be announced immediately 
on the NOAA weather channel, in newspapers, and other media. Areas with 
high leatherback abundance as documented by the aerial surveys will be 
closed for a period of 2 weeks. A closed area will include all, or a 
portion of, inshore and offshore waters 10 nm (18.5 km) seaward of the 
COLREGS demarcation line, bounded by 1 deg. lat. coinciding with the 
trackline. Shrimp trawlers in the leatherback conservation zone are 
responsible for monitoring the NOAA weather channel for closure 
announcements. Shrimp trawlers may also call (813) 570-5312 for updated 
area closure information.

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

    NMFS has approved modifications to the Taylor and the Morrison 
TEDs, as well as a modification to the single-grid hard TED, that will 
allow leatherback turtles to escape the trawl. Descriptions of the 
Taylor and Morrison TED modifications are found at 50 CFR 
227.72(e)(4)(iii)(E), and the modified single-grid hard TED is 
described at 50 CFR 227.72(e)(4)(i)(G)(2)(ii).

Classification

    This interim rule has been determined to be not significant for 
purposes of E.O. 12866.
    This interim rule establishes a registration program that includes 
a collection-of-information requirement subject to the PRA, namely, 
registration by vessels fishing in the leatherback conservation zone 
from Cape Canaveral, Florida, 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 Administrative Procedure Act 
(APA), the Assistant Administrator for Fisheries, NOAA, (AA) finds that 
there is good cause to waive prior notice and opportunity to comment on 
this interim rule. Delaying the establishment of the leatherback 
conservation zone and the mechanism to impose restrictions or closures 
would be impracticable and contrary to the public interest, because 
relatively high levels of leatherback turtle abundance have been 
reported recently in South Carolina waters. Closures and/or 
restrictions may need to be imposed quickly when shrimp fishing effort 
increases in that area in early May. This interim rule 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. 
Comments were solicited and received on the most recent temporary 
restrictions (59 FR 29565, June 8, 1994). Also, 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 otherwise required 30-day delay in effective 
date for this action. Such delay is contrary to the public interest 
because, as stated above, high concentrations of leatherbacks have been 
reported in nearshore waters where shrimping may occur. In addition, 
such delay is unnecessary because advance preparation is not necessary 
to monitor the NOAA weather radio. While time may be needed to make the 
appropriate modifications to a Taylor, Morrison, or hard grid 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 this interim rule and 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 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements, 
Transportation.

50 CFR Part 227

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: May 5, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 217, 222, and 
227 are amended to read 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 742a et seq., unless 
otherwise noted.

    2. In Sec. 217.12, a definition of ``leatherback conservation 
zone'' is added to read as follows:


Sec. 217.12  Definitions.

* * * * *
    Leatherback conservation zone means all inshore and offshore waters 
bounded on the south by a line along 28 deg.24.6' N. lat. (Cape 
Canaveral, FL), and bounded on the north by a line along 36 deg.30.5' 
N. lat. (North Carolina-Virginia border).
* * * * * [[Page 25623]] 

PART 222--ENDANGERED FISH OR WILDLIFE

    3. The authority citation for part 222 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543.

    4. In subpart E, Incidental capture of endangered species, 
Sec. 222.42 is added to read as follows:


Sec. 222.42  Special prohibitions relating to leatherback sea turtles.

    Special prohibitions relating to leatherback sea turtles are 
provided at Sec. 227.72(e)(2)(iv) of this chapter.

PART 227--THREATENED FISH AND WILDLIFE

    5. The authority citation for part 227 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.

    6. In Sec. 227.72, paragraph (e)(2)(iv) is added to read as 
follows:


Sec. 227.72  Exceptions to prohibitions.

* * * * *
    (e) * * *
    (2) * * *
    (iv) Gear requirement--leatherback conservation zone--(A) 
Leatherback surveys. From January 1 through June 30 of each year, 
weekly aerial surveys will be conducted (contingent upon weather 
conditions) by NMFS or state agents in the leatherback conservation 
zone (defined in Sec. 217.12 of this chapter). If sighting rates of 
greater than 10 leatherback turtles per 50 nautical miles (92.6 km) of 
trackline are observed, the aerial surveys of that area will be 
replicated within 24 hours, or as soon as practicable thereafter.
    (B) TED requirements and registration. If surveys pursuant to 
(e)(2)(iv)(A) of this section indicate a sighting rate within the 
leatherback conservation zone of greater than 10 leatherback sea 
turtles per 50 nautical miles (92.6 km) of trackline, NMFS will close, 
for a 2-week period, an area of the leatherback conservation zone 
encompassing all, or a portion of, inshore waters and offshore waters 
10 nautical miles (18.5 km) seaward of the COLREGS demarcation line, 
bounded by 1 deg. lat. coinciding with the trackline, within the 
leatherback conservation zone. Within such closed area, fishing by any 
shrimp trawler required to have a NMFS-approved TED installed in each 
net rigged for fishing is prohibited, unless the TED installed is one 
described at paragraph (e)(4)(i)(G)(2)(ii) or paragraph (e)(4)(iii)(E) 
of this section, and the owner or operator of the shrimp trawler has 
notified the Director, Southeast Region, NMFS (Regional Director) of 
his or her intention to fish in that area, in accordance with the 
procedure provided in paragraphs (e)(6)(iv) (A) through (F) of this 
section. If requested in writing from the Regional Director, owners and 
operators of shrimp trawlers in the leatherback conservation zone must 
carry NMFS-approved observers aboard such vessel(s). A shrimp trawler 
in the leatherback conservation zone must comply with the terms and 
conditions specified in such written request, as well as provide 
information on trawling hours, gear modifications, and turtle captures.
    (C) Notification. NMFS will immediately announce specific area 
closures on the NOAA weather radio channel, in newspapers, and other 
media. Specific area closures will be effective upon filing for public 
inspection at the Office of the Federal Register. Owners and operators 
of shrimp trawl vessels in the leatherback conservation zone are 
responsible for monitoring the NOAA weather radio channel for closure 
announcements. Shrimp trawlers may also call the Southeast Regional 
Office at (813) 570-5312 to receive updated area closure information.
* * * * *
[FR Doc. 95-11581 Filed 5-9-95; 11:46 am]
BILLING CODE 3510-22-P