[Federal Register Volume 65, Number 97 (Thursday, May 18, 2000)]
[Rules and Regulations]
[Pages 31500-31503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12396]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 000511138-0138-01; I.D. 051100B]
RIN 0648-A019


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 an area along eastern North Carolina and 
Virginia to fishing with large-mesh gillnets with a stretched mesh size 
of 6 inches (15.24 cm) or greater for a 30-day period. The closed area 
includes all Atlantic Ocean waters between Cape Hatteras and 38 deg. N. 
latitude (near the Virginia-Maryland border), west of 75 deg. W. 
longitude, and a specified part of Chesapeake Bay. NMFS is taking this 
action because of its determination that gillnet fishing with large-
mesh gillnets 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) along the eastern coast of North Carolina. 
This action is necessary to protect threatened and endangered turtles 
from being taken by large-mesh gillnets along the North Carolina and 
Virginia coasts during their northern migration.

DATES: This action is effective from May 12, 2000 through June 12, 
2000. Comments on this action are requested, and must be received at 
the appropriate address or fax number (ADDRESSES) by no later than 5 
p.m., eastern daylight time, on June 12, 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 [email protected]), or Barbara A. 
Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail 
[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 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 spring. There 
have been two stranding events involving unprecedented numbers of 
turtles, along the Outer Banks in Dare and Hyde counties.
    During the first stranding event, a total of 71 turtles (69 
loggerheads and 2 Kemp's ridleys) washed ashore on the ocean-facing 
beaches between Rodanthe and Ocracoke from April 14-17, 2000. There 
were no externally obvious signs of death on the turtles. Necropsies 
revealed that the turtles had excellent fat stores and were probably in 
good health prior to their deaths. A few of the turtles had been 
feeding on nearshore, benthic species, but most had empty guts, 
suggesting that they were in a migratory, rather than foraging, mode. 
The uniform state of decomposition of the turtles indicated that they 
had likely all died suddenly within a short period of time, probably no 
more than a few days before stranding on the beach. Large amounts of 
sargassum weed blew ashore, coincident with the turtle strandings, and 
indicative of the

[[Page 31501]]

movement of warm Gulf Stream waters close to shore.
    NMFS began investigating possible causes of the sea turtle 
mortality event immediately. The absence of other species in the die-
off was inconsistent with a toxic algae bloom. Also, there were no 
major traumatic injuries such as might be caused by dredging or 
blasting. None of the turtles had ingested any fishing hooks. NMFS, 
therefore, turned attention to activities that could drown large 
numbers of turtles, such as net fishing. There was no trawl fishing 
activity in the area at the time, and gillnetting was reportedly light, 
although there was some activity for dogfish nearshore. Monkfish 
gillnetting was reported to be over in the area, but NMFS subsequently 
learned that gillnetters continued landing monkfish in North Carolina 
through the end of April. Gillnetting therefore was the most likely 
cause of this stranding event. Sea turtles are vulnerable to 
entanglement in gillnets and can drown in under an hour of forced 
submergence.
    Oceanographic conditions probably played a role in concentrating 
the sea turtles off the Outer Banks. Loggerhead and Kemp's ridley 
turtles are known to use summer foraging grounds along the mid-Atlantic 
and northeast seaboard. For many turtles, their spring migrations to 
these feeding grounds from wintering areas along the southeastern U.S. 
or from warm offshore waters will bring them near Cape Hatteras. The 
warm Gulf Stream flows southwest to northeast past Cape Hatteras. The 
exact position of the Gulf Stream in this area can be highly variable 
week-to-week, and its position, along with local winds and 
counterclockwise warm-water currents from the Gulf Stream can strongly 
affect the coastal waters. This spring, the Gulf Stream has come quite 
close to Cape Hatteras: only 10 to 15 nautical miles. As usual, the 
coastal water inshore of the Gulf Stream has been strongly affected by 
eddies off the Gulf Stream. Around the time of this first stranding 
event, warm eddies brought water up to 20  deg.C (68  deg.F) ashore 
along Ocracoke and Hatteras Islands, while coastal waters farther to 
the north were still cold (less than 14  deg.C), deterring turtles from 
proceeding northward up the coast. The warm eddy allowed turtles to 
move inshore where they were vulnerable to coastal fisheries and where 
they were more likely to strand. Onshore winds that began on April 14 
likely pushed the carcasses ashore. Immediately after this stranding 
event, cold water pushed in from the north around Cape Hatteras, 
replacing the warm eddy waters. Sea turtles were forced back offshore 
to find warmer water. While cold water prevailed along the coast, the 
strandings were greatly diminished.
    A second stranding event began on May 3. From May 3-8, 
approximately 209 additional sea turtles (3 Kemp's ridleys, the rest 
loggerheads) were found dead on ocean beaches between Oregon Inlet and 
Hatteras Inlet. Virtually all were severely decomposed, suggesting that 
they had been dead at sea for at least several days before stranding. 
The sheer numbers and the advanced decomposition of these animals 
preclude meaningful necropsies. Those carcasses that have been scanned 
with a magnetometer have not contained any hooks. Four of the carcasses 
were entangled in fishing gear: Three loggerheads carried pieces of 
gillnet with a mesh size of 12 inches (30.48 cm) stretched, and one 
loggerhead was carrying gillnet with a mesh size of 10 inches (25.4 cm) 
stretched.
    Oceanographic conditions were again a factor in this wave of 
strandings. Cold water lay along the North Carolina coast all the way 
to Cape Lookout through the end of April. Sea turtles can tolerate 
water temperatures down to about 10  deg.C, but with warm water 
(greater than 20  deg.C) only 15 to 20 nm offshore, they likely would 
have remained in or near the 20  deg.C thermal front. Satellite imagery 
showed a small tongue of warm water curling back towards the coast from 
the Gulf Stream, about 15 nautical miles east of Avon, on April 30. 
This tongue of warm water slowly grew and extended westward until it 
hit the North Carolina coast between Avon and Rodanthe on May 3, the 
day the turtle carcasses washed ashore. Because the satellite imagery 
so clearly shows a distinct water mass moving in from offshore at the 
exact place and time that the strandings started, it is clear that the 
turtles also died offshore, perhaps as much as a week before they 
stranded, and were then brought ashore by that water mass. Three 
fisheries were active in offshore waters the week prior to the 
strandings: hook-and-line fishing for mackerel, bluefish gillnetting, 
and monkfish gillnetting. The mesh sizes of the gear recovered with the 
stranded turtles are only consistent with gillnets for monkfish. Again, 
there was no evidence that the turtles had been hooked.

Analysis of Other Factors

    Examination of the strandings on the Outer Banks indicates that the 
most likely source of sea turtle mortality is large-mesh gillnetting 
for monkfish and possibly dogfish. Other possible causes are not 
consistent with the nature of the strandings. Satellite sea surface 
temperature information has allowed NMFS to reconstruct the likely 
times and locations of the sea turtle mortality. Gillnetting for 
dogfish and monkfish have been the active fisheries in those times and 
places. These fisheries deploy thousands of yards/meters of gillnets 
and have very long soak times, ranging from overnight to several days. 
Large-mesh gillnets are known to be highly effective at catching 
turtles and in fact were the gear of choice during the historical sea 
turtle fishery. Bluefish gillnetting was also active in offshore waters 
at the time of the second mortality event. The bluefish fishery, 
however, uses smaller-mesh nets (5\1/2\ inches/13.97 cm), much less net 
per boat, and much shorter soak times (less than an hour to several 
hours) than the large-mesh gillnet fisheries. While bluefish gillnets 
can catch and drown turtles, these fishing characteristics make 
bluefish gillnetting a smaller threat to sea turtles.

Impacts on Sea Turtles

    The number of dead turtles in these two stranding events is 
unprecedented. The 10-year stranding average (1989-98) for the entire 
state of North Carolina for loggerheads is 219 per year; in contrast, 
approximately 290 have stranded in just these two events. Springtime 
strandings in Dare and Hyde counties, North Carolina, however, are not 
unusual. Historically, there has been a small spike in turtle 
strandings in statistical zone 35, which generally corresponds to those 
two counties, as the north-migrating turtles encountered coastal 
fisheries. In recent years, the number of stranded turtles, 
particularly loggerheads, has grown. In 1997 and 1998, a total of 34 
and 26 loggerheads stranded in Zone 35 in May and the first 2 weeks of 
June. The strandings increased dramatically in 1999, to a total of 86 
loggerheads for that same period. That stranding level was itself a 
record. NMFS believes that these increases in mortality are the result 
of increased fishing effort, a shift of fishing effort later into the 
season, fishing methods that are more lethal to sea turtles, and, this 
year, oceanographic conditions that likely concentrated sea turtles off 
Cape Hatteras.
    Strandings are a minimum indicator of at-sea mortality as winds and 
currents will carry many carcasses offshore. The turtles involved in 
the second stranding event likely were killed 10-20 nm offshore and 
only reached shore because a warm eddy broke off. Other turtles that 
may have died before the eddy formed likely were swept out to sea by 
the Gulf Stream.

[[Page 31502]]

    This extreme increase in loggerhead mortality may pose a serious 
threat to the species' recovery, especially as the mortality has 
occurred at a choke point in these turtles' migration to their summer 
foraging grounds. Most loggerheads in U.S. waters come from one of two 
genetically distinct nesting populations. The population that nests in 
south Florida is much larger and has shown increases in nesting. The 
northern population that nests from northeast Florida through North 
Carolina is much smaller and nesting numbers are stable or declining. 
Previous studies suggest that up to half of the turtles stranded in 
North Carolina would be from the smaller, northern population. The 
overwhelming number of stranded turtles has precluded a full analysis 
of the sizes of the affected animals, but preliminary data suggest that 
they had a representative distribution, ranging from immatures to 
adults.

Continued Threat to Sea Turtles

    Historical data show that increases in sea turtle strandings move 
south-to-north up the mid-Atlantic coast in May and June, as the 
migratory turtles arrive. Virginia has shown seasonal pulses in sea 
turtle strandings which could be magnified if the stranding trend in 
North Carolina continues northward. Strandings in Virginia are always 
the highest in the month of June, and the stranding reports for zone 36 
(36-37 deg. N. latitude) and zone 37 (37-38 deg. N. latitude 
[approximately the Virginia-Maryland border]) combined have shown a 
definite increase in strandings in the past several years. For example, 
strandings in June of 1994 were recorded to be 62 animals in zones 36 
and 37 combined, 81 were found in 1995, 64 in 1996, 145 in 1997, 161 in 
1998, and 157 in 1999. A total of 230 dead sea turtles stranded in 
Virginia in 1999, including 200 loggerheads, 18 Kemp's ridleys, 6 
leatherbacks and 6 unidentified turtles. Most of the strandings in 
Virginia have been documented from the ocean beaches south of Cape 
Henry and the inshore beaches in southern Chesapeake Bay. Relatively 
few strandings are reported from the remote and sparsely populated 
barrier islands of the Eastern Shore.
    Based on past data, NMFS anticipates an increase in strandings in 
Virginia during late May and June with the migration of turtles up the 
Atlantic coast. Given the unusually high level of strandings in North 
Carolina this year and the increasing trend in strandings in recent 
years in Virginia, it is critical that action be implemented to reduce 
the likelihood that interactions with fishing gear will result in 
additional mortalities of sea turtles. Several large-mesh gillnet 
fisheries-monkfish, smooth dogfish, and black drum-are currently 
operating in Atlantic waters off Virginia and in Chesapeake Bay.
    The coastal waters north of Cape Hatteras have warmed rapidly since 
May 3, and sea turtles are now moving northward toward Virginia. In 
fact, an aerial survey flown May 6 between the Virginia border and Cape 
Hatteras, approximately 5 nm offshore, sighted 30 turtles that are 
already north of Oregon Inlet. South of Oregon Inlet, where the 
strandings have been occurring, only 3 turtles were sighted. The waters 
to the north and farther offshore have not been surveyed, but it is 
clear that turtles are already entering waters off Virginia. No major 
stranding event has occurred in Virginia yet, but as the turtles 
continue their northward migration, they will continue to be vulnerable 
to coastal and offshore large-mesh gillnet fisheries. The turtles will 
likely still be concentrated on their migratory routes over the next 
weeks, until they disperse over their foraging grounds. Gillnet 
fisheries in the path of the migration can capture and kill large 
numbers of turtles and possibly disrupt other turtles from reaching 
important feeding areas. Further mortality, added to the already 
record-setting number of strandings, along with the undetected at-sea 
mortality, could be extremely damaging to loggerheads, particularly the 
non-recovering northern population.

Closure of Large-Mesh Gillnet Fishing

    Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental 
taking of sea turtles in 50 CFR 223.206(d)(1) does not authorize 
incidental takings during fishing activities if the takings may be 
likely to jeopardize the continued existence of a species listed under 
the ESA. Regulations at 50 CFR 223.206(d)(4) provide that the Assistant 
Administrator for Fisheries, NOAA, (AA) may issue a determination that 
incidental takings in the course of fishing activities are 
unauthorized, and specify procedures that the AA may use to impose 
additional restrictions to conserve listed sea turtles and prevent such 
takings. The level of mortality suffered by loggerhead turtles this 
spring off eastern North Carolina is already unprecedented and is 
severely impacting the northern nesting population of loggerheads. 
Continued mortality caused by incidental capture in large-mesh gillnets 
during loggerhead migrations along the mid-Atlantic coast could 
significantly affect this population and its ability to recover and may 
be likely to jeopardize the species. Therefore, the AA issues this 
determination that takings of threatened or endangered sea turtles by 
large-mesh gillnetters in mid-Atlantic waters along eastern North 
Carolina and Virginia are unauthorized and issues this additional 
restriction on fishing activities to conserve threatened and endangered 
sea turtles, particularly loggerhead turtles. Specifically, the AA 
closes the Atlantic Ocean waters of North Carolina and Virginia and in 
the mouth of the Chesapeake Bay to all fishing with gillnets with a 
stretched mesh size of 6 inches (15.24 cm) or greater. The closed area 
includes all offshore waters bounded by 35 deg.13' N. latitude on the 
south (approximately Cape Hatteras), 38 deg. N. latitude on the north 
(just south of the Maryland-Virginia border), 75 deg. W. longitude on 
the east, and the North Carolina and Virginia coasts on the west. At 
inlets, the western boundary of the closed area is the COLREGS 
demarcation line, except in Chesapeake Bay, where the closed area 
includes the waters contained in the regulated navigation area for 
Chesapeake Bay entrance and Hampton Roads, Va. and adjacent waters (as 
defined at 33 CFR 165.501(a)) that are east of the southeastern span of 
the Hampton Roads Bridge-Tunnel and the line connecting Old Point 
Comfort Light and Fort Wool Light. This closure is effective from May 
12, 2000 through 11:59 p.m. (local time) June 12, 2000. For the 
duration of this closure, no gillnet with a stretched mesh size 
measuring 6 inches (15.24 cm) or greater may be set in the closed area. 
All such gillnets that are currently set must be retrieved by 11:59 p.m 
on May 15, 2000.
    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 
effectiveness of these conservation measures.

Classification

    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The AA has determined that this action is necessary to respond to 
an emergency situation to provide adequate protection for endangered 
and

[[Page 31503]]

threatened sea turtles, primarily the loggerhead sea 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 the procedures allowing the implementation of temporary 
measures to protect sea turtles 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 May 12, 2000 through June 12, 2000. Immediately, no 
gillnets with a stretched mesh size measuring 6" (15.24cm) or greater 
may be set in the closed area. The rule provides sufficient time--over 
one day--to retrieve all nets set previously. 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).

    Authority: 16 U.S.C. 1531.

    Dated: May 12, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-12396 Filed 5-12-00; 4:44 pm]
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