[Federal Register Volume 66, Number 51 (Thursday, March 15, 2001)]
[Rules and Regulations]
[Pages 15045-15047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6369]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222, 223, and 229

[I.D. 030701A; Docket No. 010308058-1058-01]
RIN 0648-AP14


Sea Turtle Conservation; Limitations on Incidental Takings During 
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 prohibiting, for a 30-day period, any vessel that has 
a commercial shark fishing permit from fishing with any gillnet with a 
stretch mesh size of 5 inch (12.7 cm) and greater, with the exception 
of strikenets, in the waters from 32 deg.00' N. lat. (near Savannah, 
GA) along the coast south to 26 deg.46.5' N. lat. (near West Palm 
Beach, FL) and extending from the shore eastward out to 80 deg.00' W. 
long. This action is necessary to reduce injury and mortality of 
endangered leatherback sea turtles incidentally captured in gillnets 
being fished for sharks.

DATES: This action is effective from March 9, 2001 through April 9, 
2001. Comments on this action are requested, and must be received by 
April 9, 2001.

ADDRESSES: 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.

FOR FURTHER INFORMATION CONTACT: David Bernhart, 727-570-5312, or 
Barbara A. Schroeder, 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 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 turtle (Chelonia mydas) are listed as threatened, 
except for populations of green turtles in Florida and on the Pacific 
coast of Mexico, which are listed as endangered.
    The incidental take of these species as a result of fishing 
activities has been documented in the Gulf of Mexico, Caribbean, and in 
the Atlantic Ocean. Under the Endangered Species Act (ESA) and its 
implementing regulations, taking sea turtles is prohibited, with 
exceptions identified in 50 CFR 223.206. Existing sea turtle 
conservation regulations (50 CFR 223.206) provide a mechanism to 
implement further restrictions of fishing activities, if necessary to 
avoid unauthorized takings that may be likely to jeopardize the 
continued existence of listed turtles or that would violate the 
restrictions, terms or conditions of an incidental take statement or 
incidental take permit. Upon a determination that incidental takings of 
sea turtles during fishing activities are not authorized, additional 
restrictions may be imposed to conserve listed species and to avoid 
unauthorized takings. 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 (50 CFR 223.206(d)(4)).

Background

    Leatherback sea turtles are the largest species of sea turtle. They 
weigh between 600 and 1300 pounds (272 and 590 Kg) and have carapaces 5 
to 6 ft (1.5 to 1.8 m) in length. Leatherbacks are widely distributed 
and can range from the tropics to sub-Arctic waters. Important nesting 
beaches in the U.S. are found in Puerto Rico, the U.S. Virgin Islands, 
and along the east coast of Florida. In coastal waters of the southeast 
U.S., leatherbacks occur year-round but are thought to be more abundant 
during their northern springtime migration, especially when high 
abundances of jellyfish occur nearshore. The number of leatherbacks 
documented to strand along the Atlantic coast generally increases in 
the spring as they are moving north. The strandings are the result of 
many causes, including capture or entanglement by shrimp nets, lobster 
pots, longlines, and gillnets.
    The commercial fisheries for Atlantic sharks include bottom 
longline, shark drift gillnet, and rod and reel gear, and are located 
primarily in the southeastern United States and Gulf of Mexico. The 
shark fishery traditionally operates year round and is managed as five 
species groups: large coastal sharks (12 species), small coastal sharks 
(4 species), pelagic sharks (5 species), prohibited sharks (19 species) 
and deepwater/other sharks (33 species). The shark drift gillnet 
fishery component operates primarily off the southern tip of Georgia 
and down the Florida Atlantic coast to approximately the West Palm 
Beach area. This fishery is characterized by single day trips and 
smaller boats than other vessels targeting sharks.
    Two types of gillnet operations are used to target sharks, strike 
netting and drift netting. The strikenet is deployed by encircling a 
concentration of sharks (similar to a purse seine). Strikenets are set 
approximately 70 ft (21.3 m) deep, are generally .5 mile (0.80 km) in 
length, and are set for short durations during daylight hours in 
conjunction with spotter planes used to locate the sharks. Driftnets 
are set approximately 30 ft (9.1 m) deep, are generally 1 mile (1.61 
km) in length, and are set to fish passively with the currents for long 
soak times during the night hours.

Recent Events

    All shark drift gillnet fishery vessels are required to carry NMFS 
observers aboard. Currently, there are 5 vessels operating mostly off 
Fort Pierce and south to West Palm Beach and 1 operating in the Key 
West area. Two of the vessels switch back and forth between strikenets 
and driftnets and the other four currently use driftnets. The large 
coastal shark component of the fishery will close under a quota on 
March 24 and will reopen on July 1, 2001 (65 FR 75867). NMFS began 
observer coverage for shark drift gillnet vessels on January 18, 2001. 
Between February 1 and March 1, 2001, 16 sea turtles and 4 bottlenose 
(Tursiops truncatus) and 3 spotted (Stenella frontalis) dolphins (2 
released alive and 5 dead) were documented to be incidentally captured 
in 62 driftnet sets. Of these 16 turtles, 14 were leatherbacks (10 
released alive, 2 released but condition unknown, and 2 dead), 1 was a 
hawksbill (dead), and 1 loggerhead (released alive). NMFS observers 
reported high densities of jellyfish, a prey source for leatherbacks, 
in the area. All of the observed takes occurred in driftnets, with a 
single vessel accounting for the majority of the takes. No interactions 
have been documented during 3 observed strikenet sets.
    NMFS has been notified by the Florida Fish and Wildlife 
Conservation Commission of three leatherback strandings in the area of 
the shark drift gillnet fishery. One stranding was an adult male with 
abrasions around the shoulders. A necropsy concluded that the abrasions 
occurred prior to death. These injuries are consistent with 
entanglement in gillnet gear.
    These strandings and the documented takes in the shark drift 
gillnet fishery are a serious concern. Leatherbacks begin nesting as 
early as February along the Florida east coast. In 2001, the first nest 
was documented on March 3 at Melbourne Beach. Considering the rarity of 
leatherbacks--an average of only 45-50 females nest in Florida each 
year--the

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documented take in the shark drift gillnet fishery, especially during a 
time when reproductive females are present, represents a serious impact 
to the recovery and survival of the local population.
    On November 19, 1999, NMFS reinitiated ESA section 7 consultation 
(opinion) on the Atlantic Highly Migratory Species (HMS) Fisheries for 
Swordfish, Tuna, Shark and Billfish in the U.S. Exclusive Economic Zone 
as a result of exceeding the incidental take of loggerhead sea turtles 
identified in the April 1, 1999, Incidental Take Statement. 
Subsequently, NMFS included a proposed regulatory amendment to the HMS 
to be considered in the consultation process. NMFS issued an opinion on 
June 30, 2000, which concluded that the operation of the pelagic 
longline fishery was likely to jeopardize the continued existence of 
loggerhead and leatherback sea turtles. In the Incidental Take 
Statement accompanying the opinion, NMFS identified anticipated take 
for all of the fisheries managed under the HMS, including an 
anticipated take of 2 leatherbacks each year as a result of the 
directed shark drift gillnet fishery. The recent documented take of 14 
leatherbacks exceeds this anticipated take level for the shark drift 
gillnet fishery under the HMS.

Analysis of Other Factors

    Other gillnet fisheries such as small mesh strike nets for mackerel 
are operating in the area. The shrimp fishery is active out of Port 
Canaveral to the north of the shark drift gillnet fishery. NMFS and 
state personnel will continue to investigate factors other than the 
shark drift gillnet fishery that may contribute to leatherback sea 
turtle mortality in Florida, including other fisheries and 
environmental factors.

Restrictions on Shark Drift Gillnet Fishing

    Pursuant to 50 CFR 223.206(d)(4), the exemption for incidental 
taking of sea turtles in 50 CFR 223.206(d) does not authorize 
incidental takings during fishing activities if the takings would 
violate the restrictions, terms or conditions of an Incidental Take 
Statement or incidental take permit, or may be likely to jeopardize the 
continued existence of a species listed under the ESA. The observed 
take by the shark drift gillnet fishery operating in coastal waters 
where nesting females are present poses a serious risk to the 
population and would violate the Incidental Take Statement and result 
in unauthorized takings. Therefore, the Assistant Administrator for 
Fisheries, NOAA (AA) issues this determination that further takings of 
leatherback turtles in Atlantic Ocean waters off Florida by the shark 
drift gillnet fishery are unauthorized and imposes this additional 
restriction to conserve endangered leatherback sea turtles. 
Specifically, the AA prohibits any vessel that has a commercial shark 
fishing permit from fishing with any gillnet with a 5 inch (12.7 cm) 
and greater stretched mesh in the waters from 32 deg.00' N. lat. (near 
Savannah, GA) along the coast south to 26 deg.46.5' N. lat. (near West 
Palm Beach, FL) and extending from the shore eastward out to 80 deg.00' 
W. long. Fishing for sharks with strikenets will be allowed as 
specified at 50 CFR 229.32(f)(3)(iii). This restriction is effective 
from March 9, 2001 through 11:59 p.m. (local time) April 9, 2001.
    This action could possibly effect the five vessels fishing off the 
east coast of Florida, slightly earlier than the closure of the large 
coastal shark quota. There are approximately 287 directed shark 
permits, however only 6 to 12 vessels have participated in the shark 
drift gillnet fishery each year since 1998. Thus, vessels that use 
shark gillnet gear comprise only a small portion of the entire directed 
shark fleet. Based on landings reported in logbooks and on average ex-
vessel price information, the gross revenues for shark drift gillnet 
fishermen during the first large coastal shark season of 1999 ranged 
from $3,000 to $38,000 and averaged $19,615. The average gross revenues 
per trip ranged from $380 to $9,000 and averaged $3,700. The gross 
revenues from large and small coastal sharks ranged from 0 to 92 
percent and averaged 37 percent of the gross revenues for these vessels 
and this time period. The first 1999 large coastal shark season closed 
on March 31 while the first large coastal shark season for 2001 is 
scheduled to close on March 24. Thus, these vessels could have already 
made the majority of the their gross revenues for this large coastal 
shark season.
    As a result of this restriction, the five vessels have three 
options: Deploy strikenets only, fish outside of the restricted area, 
or stop fishing. Two of the five vessels already have the capability of 
fishing with strikenets as well as with drift gillnets. They would be 
required to only fish with strikenets. Alternatively, they may choose 
to fish outside of the restricted area in order to deploy both types of 
gear. The other three vessels would need to re-rig or fish outside of 
the closed area. It is unlikely that these vessels would invest in re-
rigging their gear or relocate to distant fishing grounds, since their 
fishing season ends on March 24, 2000.
    The cost involved to those vessels that are only capable of fishing 
with driftnets to re-rig would include the purchase of a second, 
smaller vessel and paying a percentage of the proceeds from the trip to 
a spotter plane operator. Vessels with similar design specifications 
could cost between $2,000 and $14,000. This is more than the average 
gross revenue during the large coastal shark season of some of the 
current shark drift gillnet vessels. Additionally, because the second 
vessel has specific design specifications in order to hold the gillnet 
and quickly maneuver around a school of sharks, any vessel bought 
second-hand would most likely need to be modified at an additional one-
time cost. Also, a second vessel will require additional costs per trip 
in terms of fuel and maintenance. Spotter planes in both the Atlantic 
mackerel and tunas fisheries are paid by the fishermen based on a 
percentage of the proceeds from the trip. Assuming spotter planes in 
the shark drift gillnet fishery charge fishermen on a similar scale, 
vessels that use spotter planes could lose between 10 and 25 percent of 
the gross revenues from the trip. Thus, if a vessel is not already 
capable of strikenetting, the additional cost of converting a vessel 
may be prohibitive during the effectiveness of this rule.
    Vessels that choose to move to an area where strikenetting is not 
required, may have to pay for additional fuel, lodging, marina fees, 
and other miscellaneous fees depending on the range of the vessel, the 
length of the trip, and the location of the current home port in 
relation to the area restricted to strikenets only. While NMFS is 
unable to estimate these additional costs, these vessels could lose a 
large percentage of their gross revenues during the large coastal shark 
season as a result of this rule. Vessels can also choose to change 
their gillnet gear and fish for other species including Spanish 
mackerel. According to dealer reports in the general canvass program, 
these vessels may already land approximately $127,000 worth of fish 
other than sharks annually.
    This restriction has been announced on the NOAA weather channel, 
HMS facsimile network, in newspapers, and other media. Shark 
gillnetters may also call NMFS Southeast Protected Resource Office, 
(727)570-5312, or NMFS HMS 24 hour toll-free line, 1(800)894-5528, for 
updated area closure information.

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Additional Conservation Measures

    The AA may withdraw or modify a determination concerning 
unauthorized takings or any 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 the shark drift gillnet fishery and 
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 
the recent takes of leatherbacks to provide adequate protection 
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 endangered leatherback sea turtles. Notice and opportunity to 
comment was provided on the proposed rule (57 FR 18446, April 30, 1992) 
for the final rule establishing the procedures to take this action. 
Furthermore, the AA finds good cause also under 5 U.S.C. 553(d)(3) not 
to delay the effective date of this temporary rule for 30 days. Such 
delay would also prevent the agency from implementing this action in a 
timely manner to protect endangered leatherback sea turtles. 
Accordingly, the AA is making the rule effective March 9, 2001 through 
11:59 p.m. April 9, 2001. This restriction has been announced on the 
NOAA weather channel, HMS facsimile network, in newspapers, and other 
media.
    As prior notice and an opportunity for public comment are not 
required to be provided for this action 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 
notifications such as this. Copies of the EA are available (see 
ADDRESSES).

    Dated: March 9, 2001.
Bruce C. Morehead.
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 01-6369 Filed 3-9-01; 4:15 pm]
BILLING CODE 3510-22-S