[Federal Register Volume 64, Number 241 (Thursday, December 16, 1999)]
[Rules and Regulations]
[Pages 70196-70198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32531]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No.991207322-9328-02;I.D.120899D]
RIN 0648-AN45


Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Temporary rule; request for comments.

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SUMMARY: NMFS is closing the waters of Pamlico Sound, North Carolina to 
fishing with gillnets with a mesh size larger than 5 inches (12.7 cm) 
stretched mesh for a 30-day period. The closed area includes all 
inshore waters of Pamlico Sound south of 35 deg.23' N. lat. and east of 
76 deg.05' W. long. NMFS is taking this action because of its 
determination that the large mesh gillnet fishery is the most likely 
cause of significant increases in the stranding of sea turtles listed 
as threatened or endangered under the Endangered Species Act (ESA) in 
Pamilco Sound. This action is necessary to protect threatened and 
endangered turtles from being taken by the large mesh, gillnet fishery 
in Pamlico Sound.

DATES: This action is effective from December 10, 1999 through January 
10, 2000. Comments on this action are requested, and must be received 
at the appropriate address or fax number (See ADDRESSES) by no later 
than 5:00pm, eastern standard time, on January 10, 2000.
ADDRESSES: Written comments on this action should be addressed to the 
Chief, Endangered Species Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may 
also be sent via fax to 301-713-0376. Comments will not be accepted if 
submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz (ph. 727-570-5312, 
fax 727-570-5517, e-mail Chuck.O[email protected]), or Barbara A. 
Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail 
Barbara.S[email protected]).

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) are 
listed as endangered. Loggerhead (Caretta caretta) and green (Chelonia 
mydas) turtles are listed as threatened, except for populations of 
green turtles in Florida and on the Pacific coast of Mexico, which are 
listed as endangered.
    Under the ESA and its implementing regulations, taking sea 
turtles--even incidentally--is prohibited, with exceptions identified 
in 50 CFR 223.206. The incidental take of endangered species may only 
legally be authorized by an incidental take statement or an incidental 
take permit issued pursuant to section 7 or 10 of the ESA. Existing sea 
turtle conservation regulations specify procedures that NMFS may use to 
determine that unauthorized takings of sea turtles are occurring during 
fishing activities, and

[[Page 70197]]

to impose additional restrictions to conserve listed sea turtles and to 
prevent unauthorized takings (50 CFR 223.206(d)(4). Restrictions may be 
effective for a period of up to 30 days and may be renewed for 
additional periods of up to 30 days each.

Recent Events

    The Sea Turtle Salvage and Stranding Network has documented a high 
level of sea turtle strandings in North Carolina this fall. Beginning 
November 1, 1999, large numbers of sea turtles have been stranding in 
Pamlico Sound, North Carolina, particularly in the vicinity of Hatteras 
and Ocracoke Inlets. The strandings through the week ending December 4 
have totaled 74, including 39 endangered Kemp's ridley sea turtles. The 
total number of strandings in North Carolina for 1999 is 2.3 times the 
average annual strandings from 1980 to 1999. The total number of Kemp's 
ridley strandings in 1999 is 7 times the average annual for the same 
time period.
    Several fisheries, including trawling for shrimp and crabs and 
gillnetting for speckled trout and southern flounder, have been 
operating in Pamlico Sound over the period of the turtle strandings. 
After conducting aerial surveys of the fishing activity and reviewing 
other available information on the fisheries, NMFS determined that sink 
gillnetting for southern flounder was the most likely cause of the 
elevated turtle mortality. Gillnet vessels and many untended gillnets 
were observed in the Sound near the areas of highly concentrated turtle 
strandings. Small turtles, such as the Kemp's ridley, are likely to be 
entangled in the large mesh sizes used in these gillnets. Necropsies of 
stranded animals have generally indicated that they were healthy and 
had been foraging prior to their deaths. As the weather cools in the 
fall and winter, the sea turtles' migrations through and out of the 
North Carolina sounds make them extremely vulnerable to fishing effort 
that is concentrated at the inlets.
    NMFS discussed the situation with the North Carolina Division of 
Marine Fisheries (NCDMF) on November 19, 1999. At that time, NCDMF did 
not believe that any action was necessary to regulate the large mesh 
flounder gillnet fishery on the basis that the fishery would be winding 
down seasonally and that the available evidence was not strong enough 
to confirm conclusively that this fishery was responsible for the 
turtle mortality. To develop additional information, NCDMF deployed 
observers aboard gillnet vessels from November 22-24. In 5 trips aboard 
flounder gillnet vessels, two Kemp's ridley turtles were taken. No 
turtles were taken in 6 trips aboard speckled trout gillnet vessels.
    NMFS deployed a Protected Resources Enforcement Team (PRET) to 
North Carolina for further investigations in late November. PRET has 
worked cooperatively with the North Carolina Marine Patrol to 
investigate the role of the different fisheries in the turtle deaths. 
PRET investigations so far indicate that flounder gillnetting is the 
probable cause of the great majority of the turtle mortality.
    There are approximately 30 to 40 boats participating in the 
southern flounder gillnet fishery, each setting from 2,000 to 10,000 
yards (1 to 5 nautical miles (1.8 to 9 km)) of large mesh gillnet, 
mostly concentrated in an area about 25 miles long by a few miles wide. 
The fishery has grown rapidly in the last few years. There are no state 
regulations on the amount of net fished, manner or place of setting the 
net, tending requirements, soak time, or the length of the season. Nets 
are generally set and left untended for 1 or 2 days, although even 
longer sets occur. This year, bad weather after Thanksgiving caused 
many fishermen to leave their nets in the water for 5 to 6 days. 
Although the fishery is said to be winding down, there is no assurance 
that fishermen will pull their nets out of the water soon, since there 
is no regulatory end to the season. As fish catch rates decline, the 
nets may be left untended for even longer periods of time and pose an 
even greater threat to turtles. PRET observed that Pamilco Sound had 
high concentrations of gillnets in early December.

Analysis of Other Factors

    Examination of the strandings in Pamlico Sound indicates that the 
most significant source of sea turtle mortality is large mesh 
gillnetting. The carcasses have primarily been coming ashore in the 
vicinity of areas where gillnetting effort has been concentrated, and 
fishery observers and enforcement officers have observed sea captures 
in the large-mesh gillnets. The construction of the gear, the extremely 
large amounts of netting deployed, and the long soak times create an 
extreme threat for entangling and drowning sea turtles during their 
fall migration. NMFS' PRET and NCDMF will continue to investigate 
factors other than southern flounder gillnetting that may contribute to 
sea turtle mortality in Pamlico Sound, including other fisheries and 
environmental factors.

Closure of Gillnet Fishing in Pamlico Sound

    The incidental taking of an endangered species of wildlife is 
prohibited by section 9(a)(1)(B) of the ESA. There are no exemptions to 
this prohibition applicable to the southern flounder gillnet fishery in 
Pamlico Sound. This fishery is known to be catching and killing large 
numbers of endangered Kemp's ridley sea turtles. Green turtles and 
threatened loggerhead turtles have also been taken. Section 11(f) (16 
U.S.C. 1540(f)) of the ESA authorizes the Secretary of Commerce to 
promulgate regulations to enforce the requirements of the Act. 
Regulations at 50 CFR 223.206(d)(4) specify procedures that the 
Assistant Administrator for Fisheries, NOAA, (AA) may use to impose 
additional restrictions to conserve listed sea turtles and prevent 
unauthorized takings.
    Therefore, the AA issues this determination that takings of 
endangered sea turtles by southern flounder gillnetters in Pamlico 
Sound are unauthorized by statute and issues this additional 
restriction to gillnet fishing activities to conserve endangered Kemp's 
ridley sea turtles. Specifically, the AA closed the waters of Pamlico 
Sound, North Carolina to fishing with gillnets with a mesh size larger 
than 5 inches (12.7 cm) stretched mesh. The closed area includes all 
inshore waters of Pamlico Sound south of 35 deg.23' N. lat. 
(approximately the end of Avon Channel) and east of 76 deg.05' W. long. 
(approximately Bluff Shoal). This closure is effective from December 
10, 1999 through 11:59 p.m. (local time) January 10, 2000. For the 
duration of this closure, no gillnet with a mesh size larger than 5 
inches stretched mesh may be set in the closed area. All such nets that 
are currently set must be retrieved no later than 11:59 p.m. local time 
on December 13, 1999. Any such nets remaining in the water after such 
time will be a violation of this closure.
    This restriction has been announced on the NOAA weather channel, in 
newspapers, and other media.

Additional Conservation Measures

    The AA may withdraw or modify any additional restriction on fishing 
activities if the AA determines that such action is warranted. 
Notification of any additional sea turtle conservation measures, 
including any extension of this 30-day action, will be published in the 
Federal Register pursuant to 50 CFR 223.206(d)(4).
    NMFS will continue to monitor sea turtle strandings to gauge the

[[Page 70198]]

effectiveness of these conservation measures.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The AA has determined that this action is necessary to respond to 
an emergency situation to provide adequate protection for endangered 
and threatened sea turtles, primarily the Kemp's ridley turtle, 
pursuant to the ESA and other applicable law.
    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 action. 
It would be contrary to the public interest to provide prior notice and 
opportunity for comment because providing notice and comment would 
prevent the agency from implementing this action in a timely manner to 
protect the listed sea turtles. Notification of and opportunity to 
comment on, this action was provided through the proposed rule which 
established these actions (57 FR 18446, April 30, 1992). For the same 
reasons, the AA finds good cause also under 5 U.S.C. 553(d)(3) not to 
delay the effective date of this rule for 30 days. NMFS is making the 
rule effective December 10, 1999 through January 10, 2000. As stated 
earlier, this restriction has been announced on the NOAA weather radio, 
in newspapers, and other media.
    As prior notice and an opportunity for public comment are not 
required to be provided for this notification by 5 U.S.C. 553, or by 
any other law, the analytical requirements of 5 U.S.C. 601 et seq., are 
inapplicable.
    The AA prepared an Environmental Assessment (EA) for the final rule 
(57 FR 57348, December 4, 1992) requiring turtle excluder device use in 
shrimp trawls and creating the regulatory framework for the issuance of 
notices such as this. Copies of the EA are available (see ADDRESSES).


    Dated: December 10, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Services.
[FR Doc. 99-32531 Filed 12-10-99; 4:37 pm]
BILLING CODE 3510-22-F