[Federal Register Volume 67, Number 173 (Friday, September 6, 2002)]
[Rules and Regulations]
[Pages 56931-56934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22691]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010926236-2199-02; I.D. 081202B]
RIN 0648-AP63


Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Final rule.

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SUMMARY: NOAA Fisheries is closing the waters of Pamlico Sound, NC, to 
fishing with gillnets with a mesh size larger than 4 1/4 inch (10.8 cm) 
stretched mesh (``large-mesh gillnet''), on a seasonal basis, from 
September 1 through December 15 each year, to protect migrating sea 
turtles. The closed area includes all inshore waters of Pamlico Sound 
south of 35[deg]46.3' N. lat., north of 35[deg]00' N. lat., and east of 
76[deg]30' W. long.

DATES: This final rule is effective on September 3, 2002.

ADDRESSES: Copies of the Environmental Assessment (EA) prepared for 
this final rule may be obtained by writing to the Chief, Endangered 
Species Division, Office of Protected Resources, NOAA Fisheries, 1315 
East-West Highway, Silver Spring, MD 20910. Requests may also be sent 
via fax to 301-713-0376, Attn: Chief, Endangered Species Division, 
Office of Protected Resources.

FOR FURTHER INFORMATION CONTACT: David M. Bernhart (phone, 727-570-
5312; fax 727-570-5517; e-mail, [email protected]), or Barbara A. 
Schroeder (phone, 301-713-1401; fax 301-713-0376; e-mail, 
[email protected]).

SUPPLEMENTARY INFORMATION: 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

[[Page 56932]]

incidentally--is prohibited, with exceptions for threatened species 
identified in 50 CFR 223.206. The incidental take of endangered species 
may be authorized only by an incidental take statement or an incidental 
take permit issued pursuant to section 7 or 10 of the ESA.

Background

    On September 27, 2001, NOAA Fisheries implemented an interim final 
rule (66 FR 50350, October 3, 2001) closing the waters of Pamlico 
Sound, NC, to fishing with gillnets with a mesh size larger than 4 1/4 
inch (10.8 cm) stretched mesh. The closure was in effect from September 
28 to December 15, 2001. The interim final rule, which expires on 
September 14, 2002, was published with the intent of issuing a 
permanent rule to go into effect September 15, 2002. Two comments were 
received on the interim final rule and are addressed under section 
Response to Comments.
    Concurrent with implementing the interim final rule, NOAA Fisheries 
issued an Incidental Take Permit (ITP) pursuant to section 10 of the 
ESA to North Carolina Division of Marine Fisheries (NCDMF). The ITP 
authorized take of listed sea turtles as a result of the small- and 
large-mesh shallow water gillnet fisheries operating within designated 
areas of Pamlico Sound. The ITP required fishermen deploying gillnets 
in the shallow waters of southeastern Pamlico Sound to obtain permits 
from NCDMF. The ITP required a maximum limit of 2,000 yards (1,828 m) 
of net, a mandatory weekly report on sea turtle interactions, mandatory 
observer coverage, and fishery closures if the incidental take level 
specified in the ITP was exceeded. A limited amount of deep-water, 
large-mesh gillnet gear testing was also allowed under the ITP. 
Estimated levels of sea turtle interactions remained below thresholds 
specified in the ITP and, therefore, additional closures were not 
required during the 2001 season (Gearhart 2002).
    A detailed summary relating the events leading up to the 
promulgation of the interim final rule and NCDMF ITP can be found in 
the background section of the interim final rule (66 FR 50350, October 
3, 2001).

Description of the Fishery

    The Pamlico Sound large-mesh gillnet fishery can be divided into 
two components shallow-water and deep-water, which are distinguished by 
their fishing areas, seasons, tactics, participants, and vessel 
characteristics.
    The deep-water fishery operates from September through December 
with fishermen setting nets along a slope adjacent to the main basin of 
Pamlico Sound. Fishing depths in this area range from 10 to 20 feet 
(3.0 to 6.1 m). Vessels are typical ocean sink gillnet boats ranging 
from 25 to 45 feet (7.6 to 13.7 m) in length. Each vessel is operated 
by a two-man crew. Each vessel sets between 2,000 yards (1,828 m) and 
10,000 yards (9,140 m) of large-mesh, most often 5.5 to 6.5 inch (14.0 
to 16.5 cm), gillnet, which are soaked for up to 3 days and retrieved 
with the aid of net reels. Net depths range from 8 to 12 feet (2.4 m to 
3.7 m) with tie-downs 2 to 4 feet (.61 to 1.2 m) long attached to the 
float and lead lines at 50 foot (15.2 m) intervals along the net. Tie-
downs are used in this fishery to produce a bag or pocket of webbing, 
which is believed to increase the catch efficiency for bottom-dwelling 
flounder. There were 25 active participants in this fishery during the 
2000 fishing season, with most trips originating from Engelhard or Swan 
Quarter, N.C., and a small portion leaving from Hatteras, N.C. The 
deep-water, large-mesh gillnet fishery was closed in 2001 as a result 
of the NOAA Fisheries interim final rule. This fishery has grown within 
the past 10 years from what was initially only a few fishermen setting 
a few thousand yards of gillnet. Effort has steadily increased with 
more participants fishing more gear each year. During the past several 
years, gillnets have surpassed pound nets as the dominant gear for 
flounder in North Carolina's estuarine waters. Pound nets had long been 
the traditional means for harvesting flounder in North Carolina waters.
    Monitoring of the deep-water fishery during the 2000 fishing season 
consisted of 13.1 percent observer coverage with 35 trips observed. 
Fourteen sea turtle interactions were observed involving four Kemp's 
ridleys, two greens, and eight loggerheads. Eight of these turtles were 
released alive; six were dead.
    The shallow-water fishery operates from April through December in 
areas next to the barrier islands in Pamlico Sound, extending both 
north and southwest along the Outer Banks. Most fishing in these areas 
occurs in depths of less than 3 feet (0.9 m). Vessels are usually open 
skiffs ranging from 15 to 25 feet (4.6 to 7.6 m) in length with one- or 
two-man crews. Each fisherman typically sets 500 to 2000 yards (457 to 
1,828 m) of large-mesh (5.5 to 7.0 inch (14.0 to 17.8 cm)) gillnet. The 
nets are soaked overnight and retrieved by hand. Tie-downs are not used 
in this fishery, but net depths range from 6 to 11 feet (1.8 to 3.4 m), 
with sets occurring in depths less than 3 feet (0.9 m). This 
combination of water depth and net depth provides the same bag effect 
as the tie-down in the deep-water fishery. There were 95 permitted, 
active participants during the 2001 fishing season. The shallow-water 
gillnet fishery is considered to be more traditional than the deep-
water gillnet fishery.
    Monitoring during the 2001 fishing season consisted of 9 percent 
observer coverage of the shallow-water, large-mesh fishery, with 131 
trips observed. During these trips, five sea turtle interactions were 
observed, of which four were green turtles and one was a hawksbill. 
Three green turtles and the hawksbill were released alive; one green 
turtle was dead. The small mesh fishery was observed on 8.4 percent of 
the trips prior to November 1 and 20 percent of the trips after that. 
Coverage was increased in November because fishermen no longer were 
required to tend their nets and the possibility of a lethal turtle take 
was greater. No turtle interactions were documented in the small mesh 
fishery.

NCDMF's Section 10 ITP

    NOAA Fisheries issued the first ITP to NCDMF for the 2000 fall 
fishing season only. The exceeding of the authorized incidental take 
identified in the ITP resulted in a closure of the fishery in October 
2000. Although section 10 ITPs are generally issued for multi-year 
periods, NOAA Fisheries and NCDMF believed that the newness of the 
fishery, the apparent high levels of turtle interaction, and the 
paucity of observer data for management decisions justified a single-
year permit in 2000 to allow NCDMF to gather important information 
about bycatch issues in the fishery. NOAA Fisheries, in issuing the 
ITP, considered the effects of the fishery on listed species, pursuant 
to sections 7(a)(2) and 7(b) of the ESA. The resulting biological 
opinion concluded that, as a 1-year event, the issuance of the ITP and 
the fishery were not likely to jeopardize the continued existence of 
any listed species of sea turtle. The opinion did acknowledge, however, 
that additional future permits might be sought by NCDMF for large-mesh 
gillnetting in Pamlico Sound, perhaps modified based on the outcome of 
the 2000 permit. On September 27, 2001, NOAA Fisheries issued a second 
ITP to the NCDMF with similar review requirements. The ITP was again 
valid for 1 year. On July 18, 2002, NCDMF submitted an application for 
a 3-year ITP to reopen the shallow water areas under similar 
requirements as well as add the management of the shallow water fishery 
operating in an area of the mainland Hyde and Pamlico Counties

[[Page 56933]]

(67 FR 49009, July 29, 2002). The 3-year ITP would allow for the 
gathering of substantial additional information on the fishery and its 
interactions with sea turtles. The ITP would allow portions of the 
fishery to operate while requiring observer coverage to document sea 
turtle interactions and the conditions in which they occur. At the end 
of the ITP 3-year term, NCDMF may have substantial information to 
propose a means of reopening the fishery with management measures that 
would provide sufficient protection to sea turtles. In such an event, 
NOAA Fisheries would consider rescinding this closure rule and issuing 
an ITP with the proposed measures in its place.

Closure of Large-Mesh Gillnet Fishing in Pamlico Sound

    Through this final rule, NOAA Fisheries is closing the waters of 
Pamlico Sound NC, on an annual basis, to fishing with gillnets with a 
mesh size larger than 4 1/4 inches (10.8 cm) stretched mesh, from 
September 1 through December 15. This closure date is earlier than that 
of the previous interim final rule, based upon discussions with and 
recommendations by NCDMF regarding the observed times of high gillnet 
effort and high turtle occurrence in Pamlico Sound. In 2000 and 2001, 
88 percent of the sea turtle interactions in shallow water occurred 
during the first three weeks of the season. The closed area includes 
all inshore waters of Pamlico Sound south of 35[deg]46.3' N. lat. (the 
south side of Oregon Inlet), north of 35[deg]00' N. lat. (the south end 
of Portsmouth Island), and east of 76[deg]30' W. long. (a line of 
longitude which crosses the mouths of the Neuse River, Bay River, and 
Pamlico River). The Outer Banks and the COLREGS line form the seaward 
boundary of the closed area. The closed area includes all contiguous 
tidal waters to Pamlico Sound, within the stated boundaries. The large-
mesh gillnet fishery in Pamlico Sound has been shown to take, including 
to capture and kill, numerous endangered and threatened sea turtles 
during their fall migration. NOAA Fisheries is taking this action to 
prevent further takes of listed species in this fishery.

Response to Comments

    NOAA Fisheries requested comments on the interim final rule in 
anticipation of issuing this final rule. Two comments were received 
during the comment period.
    Comment 1: The Ocean Conservancy commented that it supports a 
permanent, seasonal, September through December closure of all Pamlico 
Sound waters to large-mesh gillnets. It also commented that geographic 
and seasonal closures do not go far enough to protect listed sea 
turtles.
    Response: We believe that stranding and observer data indicate that 
the rule covers a place and time in which the large-mesh gillnet 
fishery has a potentially detrimental impact upon listed sea turtles. 
If additional information or later events demonstrate a potential need 
for further restrictions, NOAA Fisheries will analyze the circumstances 
and act to provide the measures necessary to protect the sea turtles as 
required by the ESA.
    Comment 2: A North Carolina resident commented that there are too 
many turtles, particularly loggerheads, in Pamlico Sound and that the 
measures to protect sea turtles are unwarranted and are burdensome to 
the fishing community.
    Response: All species of sea turtles in U.S. waters are listed 
under the ESA because their populations have declined and protective 
measures are necessary in order for these species to recover. We 
cautiously anticipate that there are more loggerhead turtles in Pamlico 
Sound as a result of the use of such protective measures as the use of 
turtle excluder devices in shrimp trawl nets and others. However, the 
species is not recovered and additional measures are necessary to 
reduce interactions with fishing gear.

Classification

    NOAA Fisheries prepared an Environmental Assessment (EA) for this 
final rule and concluded that these regulations and issuance of the 
permit would neither pose a significant adverse environmental impact 
nor have a significant effect on the quality of the human environment.
    The actions implemented by this final rule are expected to impact 
approximately 95 large-mesh, gillnet vessel owners and operators. 
Assuming that a shallow-water fishery will be managed by NCDMF and many 
of these vessels will participate in the shallow-water fishery, NOAA 
Fisheries anticipates, under a worst-case scenario, that 25 large-mesh, 
deep-water boats will not participate in the fishery in Pamlico Sound. 
The anticipated loss of revenue could be $10,000 to $20,000 per vessel 
per year, depending on fish prices, for a total loss to the deep-water 
fishery operations of $250,000 to $500,000. These vessels, however, are 
the largest in the fishery and have the greatest number of alternative 
fisheries, as they are essentially ocean-gillnet vessels. They are also 
the most recent entrants into the fishery and did not operate in 
Pamlico Sound in the fall of 2001. Many of these operations may have 
switched gear to the more traditional pound net operations or moved 
offshore. Thus, the revenue loss anticipated for these large mesh deep 
water operations, under a worst-case scenario, is likely an 
overestimate. The shallow-water vessels, on the other hand, are 
considered more traditional to the fishery, they are generally smaller, 
and many of them cannot safely work outside the sheltered waters of the 
Sound. The primary effect of this final rule will be a redistribution 
of catch from deep-water gillnet fishermen to shallow-water and small-
mesh gillnet fishermen and to pound net fishermen. The overall fishing 
effort targeting southern flounder in Pamlico Sound is very high and 
capable of fully exploiting the resource. In 2000, gillnet landings 
exceeded the previous year's levels, halfway through the season, 
despite NCDMF's closure of the primary fishing grounds to gillnetting 
with gear greater than 5-inch (12.7-cm) mesh. In 2001, the landings of 
flounder by gillnet dropped significantly from those in previous years, 
but the landings by pound net, which had been in decline for a number 
of years, rebounded dramatically to high levels.
    This final rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for NOAA Fisheries has determined that 
there is good cause under 5 U.S.C. 553(d)(3) not to delay the effective 
date of this rule for 30 days. Delaying this action would be contrary 
to the public interest because large-mesh gillnet fishing is presently 
allowed without restriction throughout Pamlico Sound. Allowing 
continued large-mesh gillnet fishing in the deep water areas of Pamlico 
Sound would likely result in a high level of sea turtle take and 
mortality. The NCDMF observer program has documented that sea turtle 
interactions occur at a high rate in September and around the inlets of 
Pamlico Sound. Without action, large-mesh gillnet fishing effort is 
expected to increase greatly in September, as changing water 
temperatures cause flounder to move through Pamlico Sound. Sea turtles 
apparently respond similarly to the fall weather in Pamlico Sound, 
increasing their vulnerability to being captured and killed as the 
fishing effort also peaks. In 2000, strandings in North Carolina's 
coastal waters reached a new record level of 838 turtles. In 2001, 
concurrent with a prohibition on the use of large mesh gillnets in the

[[Page 56934]]

deep water areas and around the inlets of Pamlico Sound, strandings 
decreased 67 percent from the 2000 level. The effectiveness of 
prohibiting large-mesh gillnet fishing in the deep water in reducing 
sea turtle mortality has been demonstrated. The sea turtle mortality 
resulting from the failure to implement a prohibition on fishing with 
large-mesh gillnets in deep water would seriously threaten sea turtle 
populations. This final rule is intended to address a major source of 
fishing-related sea turtle mortality.
    In keeping with the intent of Executive Order 13132 to provide 
continuing and meaningful dialogue on issues of mutual state and 
Federal interest, NOAA Fisheries has conferred with the State of North 
Carolina regarding the need for NOAA Fisheries to implement a closure 
to protect listed sea turtles. NOAA Fisheries is working with NCDMF on 
the issuance of an ESA section 10(a)(1)(B) permit, which would create a 
partial exemption to the closure in this action. NOAA Fisheries intends 
to continue to consult with the State of North Carolina during the 
implementation of this final rule and regarding NCDMF's management of 
state water fisheries bycatch of sea turtles.

List of Subjects in 50 CFR Part 223

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.

    Dated: August 30, 2002.
William T. Hogarth, Ph.D.
Assistant Administrator, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
to read as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

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

    2. In Sec.  223.206, revise paragraph (d)(7) to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (7) Restrictions applicable to gillnet fisheries in North Carolina. 
No person may fish with gillnet fishing gear which has a stretched mesh 
size larger than 4 1/4 inches (10.8 cm), annually from September 1 
through December 15, in the inshore waters of Pamlico Sound, North 
Carolina, and all contiguous tidal waters, bounded on the north by 
35[deg]46.3' N. lat., on the south by 35[deg]00' N. lat., and on the 
west by 76[deg]30' W. long.
[FR Doc. 02-22691 Filed 9-3-02; 11:14 am]
BILLING CODE 3510-22-S