[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Rules and Regulations]
[Pages 1845-1848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-961]
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DEPARTMENT OF COMMERCE
50 CFR Parts 217 and 227
[Docket No. 960116009-6009-01; I.D. 110695D]
RIN 0648-AE12
Sea Turtle Conservation; Restrictions Applicable to Fishery
Activities; Summer Flounder Fishery-Sea Turtle Protection Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule requires summer flounder bottom trawlers to
have a NMFS-approved turtle excluder device (TED) installed in any net
that is rigged for fishing in the waters off Virginia and North
Carolina from 37 deg.05' N. lat. (Cape Charles, VA) southward to
33 deg.35' N. lat. (North Carolina-South Carolina border) year round,
except for trawlers north of 35 deg.46.1' N. lat. (Oregon Inlet, NC),
which are exempt from this requirement from January 15 through March 15
each year. However due to unavoidable delays, the exemption from this
requirement in 1996 begins on January 23, 1996. This final rule allows
the summer flounder bottom trawl fishery to continue fishing while
providing adequate protection to endangered and threatened sea turtles.
EFFECTIVE DATE: January 23, 1996.
ADDRESSES: Requests for copies of the environmental assessment (EA) or
Biological Opinion prepared for this rule 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, 813-570-5312, or
Phil Williams, 301-713-1401, or Doug Beach, 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. However,
collectively, activities in non-shrimp fisheries, which include the
summer flounder bottom trawl fishery, constitute the second largest
source.
In a 1991 biological opinion in conjunction with Amendment 2 to the
Fishery Management Plan for the Summer Flounder Fishery, NMFS concluded
that the unrestricted operation of this fishery is likely to jeopardize
the continued existence of the Kemp's ridley sea turtle, and provided,
as a reasonable and prudent alternative, the use of tow-time limits and
an observer program. Additional measures pursuant to the sea turtle
conservation regulations at 50 CFR part 227 required the use of TEDs by
the summer flounder fishery in certain areas in which bottom trawling
occurred when sea turtles were present.
NMFS has taken a series of actions to require the use of TEDs in
the bottom trawl fishery for summer flounder from 37 deg.05' N. lat.
(Cape Charles, VA) southward to 33 deg.35' N. lat. (North Carolina-
South Carolina border), defined as the ``summer flounder fishery-sea
turtle protection area'' (hereinafter referred to as the 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 (58 FR 48797) an interim
final rule again required TED use by summer flounder trawlers in the
bottom trawl fishery for summer flounder in the protection area defined
above. On March 7, 1994 (59 FR 10584) the northern boundary of the
protection area was moved south for a 60-day period to Oregon Inlet,
NC. 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. In addition, NMFS approved the Flounder TED
described at 50 CFR 227.72(e)(4)(ii)(A) on October 20, 1993 (58 FR
54066) that was developed specifically for use in the summer flounder
bottom trawl fishery.
Sea Turtle/Fisheries Interactions
NMFS has determined, based on past interactions between sea turtles
and the summer flounder fishery, that bottom trawl nets fished without
TEDs for summer flounder can capture sea turtles at a rate comparable
with that of shrimp trawl nets fished without TEDs along the southern
U.S. Atlantic coast. TED use is now required at all times in the shrimp
trawl fishery.
In addition to documented, observed takes of endangered and
threatened species of sea turtles in summer flounder trawls, sea turtle
strandings in North Carolina have long been correlated with the
activity of the summer flounder fleet. Street (1987) analyzed sea
turtle stranding data from 1980-86 from North Carolina ocean beaches
and concluded that the summer flounder fishery was responsible for 85
percent of the 456 sea turtle strandings that occurred during the
October through April period when the summer flounder fishery is
active. Even so, strandings are a minimal indication of actual sea
turtle interactions with fishing activities: During the 1991-92
flounder season, the number of dead turtles that washed up on the
beaches represented a maximum of 7 to 13 percent of the estimated
fishery-induced mortalities (Epperly et al. in press).
In the months of October and November, when shallow, nearshore
waters are still warm, sea turtles and summer flounder are present in
higher numbers. Sea turtle presence is indicated by the strandings in
North Carolina that occur coincidentally with the operation of the
summer flounder bottom trawl fishery. From October 1993 through March
1994, there were 50 sea turtle strandings in North Carolina, and in the
1994-95 flounder season, 75 strandings occurred in North Carolina.
Based on the recent observer data that document direct takes in the
summer flounder fishery and the presence of sea turtles indicated by
strandings, NMFS believes there continues to be a need to require the
use of NMFS-approved TEDs in the summer flounder fishery.
NMFS has determined that the area where TEDs must be used in the
summer flounder fishery can be seasonally decreased with minimal risk
to sea turtles, based on temperature-driven distribution of turtles.
Data acquired by satellite sensors indicate that sea surface
temperatures off the coast of North Carolina north of Oregon Inlet are
generally less than 11 deg.C during the months of January through
March. Aerial surveys conducted from November 1991 through March 1992
indicate that turtle abundance is related to water temperatures, with
most turtles documented along the western edge of the Gulf Stream from
the vicinity of Cape Hatteras southward where water temperatures were
greater than 11 deg.C (Chester et al., 1994; Epperly et al., 1995).
NMFS has determined, based on reports from observers aboard trawlers
[[Page 1847]]
and from the scientific literature, that the probability of sea turtle
captures is minimal when surface water temperatures fall below
11 deg.C.
Except for the cold months of January through March, the co-
occurrence of sea turtles and bottom trawling activities is likely in
the waters off North Carolina and Virginia. Therefore, NMFS believes
that the interim final rule (58 FR 48797, September 20, 1993) should be
revised to move the northern boundary of the protection area south to
Oregon Inlet, NC from January 15 through March 15 each year, and be
adopted as final. NMFS will monitor conditions to determine if
additional sea turtle protection measures are necessary.
Multi-Species Management
NMFS has reinitiated consultation on the Fishery Management Plan
for the Summer Flounder Fishery to include the fisheries management of
black sea bass and scup under the same biological opinion. Although the
Mid-Atlantic Fishery Management Council has developed separate
management plans for the scup and black sea bass fisheries, both NMFS
and the Council have investigated the concept of managing the summer
flounder, scup, and black sea bass, fisheries as one multi-species unit
because the stocks of these three fisheries behave similarly in their
movements north to south and offshore to inshore, and in fisheries
targeting one species or another there is often a bycatch of the other
species. Shepherd and Terceiro's (1994) analysis of commercial
interactions between the fisheries showed that ``trips landing summer
flounder without scup or black sea bass were most frequent (37
percent). The second largest component were trips consisting of all
three species (30.7 percent). Trips landing only black sea bass, only
scup or scup and black sea bass were relatively rare (1.9, 4.5, and 4.1
percent respectively). Most trips (56.6 percent) landed a multi-species
catch with at least two of the three species.'' This study included
both the Mid-Atlantic Bight and New England waters. Based on
unpublished NMFS general canvass data, bottom otter trawls were used
for approximately 74 percent of the commercial scup and 56 percent of
the commercial black sea bass landings for the period between 1983 and
1992. A portion of those landings comes specifically from flynet gear
that is used throughout the September-April season to target schools of
weakfish, croaker, bluefish, scup and butterfish higher in the water
column.
NMFS is considering implementing observer coverage, through the
section 7 ESA process, on boats targeting these species with this gear
type to provide specific, empirical data to assess the degree of
interaction with listed species, and NMFS is encouraging development of
a functional TED for flynets to fully assess the impact of this gear.
Comments on the Interim Final Rule
NMFS received a comment from the Center for Marine Conservation
during the comment period for the interim final rule (58 FR 48797,
September 20, 1993). NMFS' response was published on March 7, 1994 (59
FR 10584) and is not repeated here. NMFS also received a comment from
the North Carolina Fisheries Association, Inc., in February, 1995,
requesting that the northern boundary of the protection area be moved
south automatically each year. NMFS agrees for the reasons set forth
herein.
Changes from the Interim Final Rule
This final rule adopts as final the provisions of the interim final
rule (58 FR 48797, September 20, 1993) with one change regarding the
seasonal adjustment of the northern boundary of the protection area.
Summer flounder bottom trawlers in offshore waters south of Cape
Charles, VA, to the North Carolina-South Carolina border, are required
to have an NMFS-approved TED installed in each net that is rigged for
fishing in the summer flounder fishery-sea turtle protection area year
round except for trawlers north of 35 deg.46.1' N. lat. (Oregon Inlet,
NC) which are exempt from the requirement from January 15 through March
15 each year. However due to unavoidable delays, the exemption from
this requirement in 1996 begins on January 23, 1996. While there is a
small risk to sea turtles associated with this exemption, NMFS has
determined that this risk is minimal and will not jeopardize the
continued existence of endangered and threatened sea turtles in a
biological opinion prepared in conjunction with this final rule. While
the seasonal exemption represents a change to the interim final rule
currently in force, it is consistent with past NMFS policy and previous
requirements. NMFS moved the northern boundary of the protection area
south to Oregon Inlet during the 1992-93 season (58 FR 4088, January
13, 1993) and during the 1993-94 season (59 FR 10584, March 7, 1994).
While the exemption was not provided during the 1994-95 season due to
the lack of documented trawling effort in the affected area, NMFS
believes that a permanent seasonal boundary change is justified. For
these reasons, NMFS is incorporating the seasonal exemption from Cape
Charles, VA, to Oregon Inlet, NC in the final rule. While previous
rules implementing the exemption in 1993 and 1994 were based primarily
on water temperatures, NMFS believes that the exemption in a permanent
rule should be based on fixed dates to provide more certainty and
consistency to fishermen. NMFS will, however, continue to monitor
climatic conditions such as water temperature to ensure that turtles
are not likely to be present in the areas where TED use is not
required.
Based on this monitoring, NMFS may determine to reinstate the TED
requirement north to Cape Charles, VA prior to March 15 or invoke
additional conservation measures to protect sea turtles pursuant to 50
CFR 227.72(e)(6). Under that provision, the Assistant Administrator for
Fisheries, NOAA (AA) may at any time, modify the requirements of this
rule through notification in the Federal Register, if necessary, 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 he or she determines that summer flounder
trawl vessels are having a significant adverse affect on sea turtles
and additional takings are unauthorized pursuant to 50 CFR
227.72(e)(6)(ii). Likewise, conservation measures may be modified if
the incidental take for the fishery is projected to reach the
incidental take level established by the biological opinion for this
rule issued as a result of consultation under section 7 of the ESA.
The AA will impose additional conservation measures on this fishery
if the incidental take level is approached or exceeded, or if
significant or unanticipated levels of lethal or nonlethal takings or
strandings of sea turtles associated with summer flounder fishing
activities occur. Such additional measures may include reinstating the
TED requirement from Oregon Inlet to Cape Charles between January 15
and March 15 each year, or expanding the restricted area or the time
during which TEDs are required or impose requirements to carry NMFS-
approved observers at the expense of vessel owners or operators. The AA
may withdraw or modify the requirement for specific conservation
measures or any restriction on fishing activities if the AA determines
that such action is warranted. Notification of any additional sea
turtle conservation measures, will be published in the Federal
Register.
[[Page 1848]]
References
Previous references cited that are not included below are available
in the biological opinion prepared for this action (see ADDRESSES).
Shepherd, G.R. and M. Terceiro. 1994. The Summer Flounder, Scup,
and Black Sea Bass Fishery of the Middle Atlantic Bight and Southern
New England Waters. NOAA Technical Report, NMFS 122. 13 pp.
Classification
This rule has been determined to be not significant for purposes of
E.O. 12866.
The interim final rule with one change--the seasonal adjustment of
the northern boundary of the protection area--is adopted as final
without further notice and opportunity for further public comment. The
public has had ample opportunity to comment on the boundary adjustment
in previous years, and these comments were responded to in previous
years (58 FR 8554, February 16, 1993; 58 FR 48797, September 10, 1993;
59 FR 10584, March 7, 1994). No useful purpose would be served by
providing additional opportunity for public comment.
Since the exemption for trawlers north of Oregon Inlet, NC, from
January 15 to March 15 each year relieves a restriction on the fishery,
under 5 U.S.C. 553(d)(1), it is not subject to a 30-day delay in
effective date.
The AA prepared an EA for the final rule for Amendment 2 to the
Fishery Management Plan for the Summer Flounder Fishery (57 FR 57348,
December 4, 1992). A copy of the EA prepared for this final rule is
available (see ADDRESSES).
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: January 18, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, the interim final rule
amending 50 CFR parts 217 and 227, which was published at 58 FR 48797
on September 20, 1993, is adopted as a final rule with the following
changes:
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, in the definition for ``Summer flounder fishery-
sea turtle protection area'', paragraph (2) is removed.
PART 227--THREATENED FISH AND WILDLIFE
3. The authority citation for part 227 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.
4. In Sec. 227.72, paragraph (e)(2)(iii)(A) is revised, paragraphs
(B) and (C) are redesignated as paragraphs (C) and (D), respectively,
and paragraph (B) is added, to read as follows:
Sec. 227.72 Exceptions to prohibitions.
* * * * *
(e) * * *
(2) * * *
(iii) Gear requirement--summer flounder trawlers--(A) TED
requirement. Except as provided in paragraph (e)(2)(iii)(B) of this
section, any summer flounder trawler in the summer flounder fishery-sea
turtle protection area must have an approved TED (as defined in
Sec. 217.12 of this chapter) installed in each net that is rigged for
fishing. A net is rigged for fishing if it is in the water, or if it is
shackled, tied, or otherwise connected to any trawl door or board, or
to any tow rope, cable, pole or extension, either on board or attached
in any manner to the summer flounder trawler.
(B) Exemptions from the TED requirement. Any summer flounder
trawler north of 35 deg.46.1' N. lat. (Oregon Inlet, NC) from January
15 through March 15 annually is exempt from the TED requirement of
paragraph (e)(2)(iii)(A) of this section, unless the Assistant
Administrator determines that TED use is necessary to protect sea
turtles or ensure compliance, pursuant to the procedures of paragraph
(e)(6) of this section.
* * * * *
[FR Doc. 96-961 Filed 1-23-96; 8:45 am]
BILLING CODE 3510-22-F