Sea Turtle Conservation; Restrictions Applicable to Fishery Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 227

[Docket No. 940418-4118; I.D. 031894B]

Sea Turtle Conservation; Restrictions Applicable to Fishery

Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary restriction; request for comments.

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SUMMARY: NMFS is issuing a temporary restriction that establishes all

inshore and offshore waters from Cape Canaveral, FL (28 deg.24.6' N.

lat.), to the North Carolina-Virginia border (36 deg.30.5' N. lat.) as

the leatherback conservation zone and notifies owners and operators of

shrimp trawlers operating in that zone that short-term area closures

may be required if high abundance levels of leatherback turtles are

documented. During the most recent surveys by the State of South

Carolina, concentrations of leatherback sea turtles were observed in

the conservation zone. Therefore, the potential exists, for the next 30

days, that closure of the conservation zone may be necessary.

NMFS will close these areas to any shrimp trawler required to have

a turtle excluder device (TED) installed in each net that is rigged for

fishing unless the TED installed is a NMFS-approved Taylor TED, a

Morrison TED with either of the two NMFS-approved modifications made in

May 1993, or the modified single-grid hard TED described in a final

rule, technical amendment, published May 18, 1994 in the Federal

Register (59 FR 25827). This temporary rule is necessary to reduce

mortality of endangered leatherback sea turtles incidentally captured

in shrimp trawls.

Specific area closures will be announced in the Federal Register,

on the NOAA weather channel and in newspapers and other media. Shrimp

trawlers in the leatherback conservation zone are responsible for

monitoring the NOAA weather channel for closure announcements. Shrimp

fishermen may also call (813) 893-3163 for updated closure information.

Owners and operators of shrimp trawlers operating in closed areas

with modified TEDs must register with the Director, Southeast Region,

NMFS, and may be required to carry an observer and provide information

on trawling hours, gear modifications and turtle captures if requested

by the Regional Director.

DATES: This restriction is effective from June 3, 1994 through July 5,

1994. Comments on this restriction and consideration of any extension

of this restriction must be submitted by June 23, 1994.

ADDRESSES: Requests for a copy of the environmental assessment for this

action and comments on this action should be addressed to Dr. William

W. Fox, Jr., Director, Office of Protected Resources, NMFS, 1335 East-

West Highway, Room 8268, Silver Spring, MD 20910. Comments on the

collection-of-information requirement subject to the Paperwork

Reduction Act should be directed to the Office of Protected Resources,

NMFS, 1335 East-West Highway, Silver Spring, MD 20910, Attention:

Margaret Lorenz, and to the Office of Information and Regulatory

Affairs, Office of Management and Budget,, Washington, D.C. 20503,

Attention: Desk Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Margaret C. Lorenz, Endangered Species

Division (301) 713-2322, or Charles A. Oravetz, Chief, Protected

Species Program, NMFS, Southeast Region, (813) 893-3366.

SUPPLEMENTARY INFORMATION:

Background

All sea turtles that occur in U.S. waters are listed as either

endangered or threatened under the Endangered Species Act (ESA) of

1973. The Kemp's ridley (Lepidochelys kempii), leatherback (Dermochelys

coriacea), and hawksbill (Eretmochelys imbricata) are listed as

endangered. Loggerhead (Caretta) and green (Chelonia mydas) turtles are

listed as threatened, except for breeding populations of green turtles

in Florida and on the Pacific coast of Mexico, which are listed as

endangered. The incidental take and mortality of these species, as a

result of fishing activities, have been documented in the Gulf of

Mexico and along the Atlantic seaboard.

Under the ESA and its implementing regulations, it is prohibited to

take sea turtles. The incidental taking of turtles during fishing in

the Atlantic Ocean off the coast of the southeastern United States and

in the Gulf of Mexico is excepted from the taking prohibition if

specified sea turtle conservation measures are used.

Existing sea turtle conservation regulations (50 CFR part 227)

require most shrimp trawlers to have a NMFS-approved TED installed in

each net rigged for fishing throughout the year. The use of TEDs

significantly reduces mortalities of loggerhead, green, Kemp's ridley,

and hawksbill sea turtles. Because leatherback turtles are larger than

the escape openings of most NMFS-approved TEDs, use of these TEDs is

not an effective means of protecting leatherback turtles.

The existing sea turtle conservation regulations allow the

Assistant Administrator for Fisheries, NOAA, (AA) to restrict fishing

activities in order to conserve a species listed under the ESA (50 CFR

227.72(e)(6)(ii)). This action may be taken if the AA determines that

restrictions are necessary to avoid unauthorized takings that may

likely jeopardize the continued existence of a listed species. The

provision is particularly applicable to leatherback turtles, where

despite the use of TEDs, taking by shrimp trawlers can occur. In

accordance with the endangered status of leatherback turtles, NMFS

considers preventable take of leatherbacks to be inappropriate. If the

leatherbacks are relatively abundant in areas where shrimp trawlers are

fishing, restrictions to minimize the take of leatherbacks must be

imposed.

Because of their primarily pelagic existence, leatherbacks normally

occur outside of areas where they would be subject to take by shrimp

trawlers. During most months of the year, leatherbacks are not

considered abundant in shrimping areas, and only isolated incidents of

take by trawlers are expected. However, the coastal waters of northern

Florida, Georgia, South Carolina and North Carolina experience

relatively high abundance levels of leatherbacks as a periodic spring

phenomenon. When leatherback abundance is high and shrimp trawlers are

fishing, leatherback stranding pulses have been documented on adjacent

beaches. A NMFS Biological Opinion prepared for a revision to the sea

turtle conservation regulations made on December 4, 1992, (52 FR 24244)

episodic stranding events from Florida through North Carolina and

required NMFS to develop and implement a contingency plan to solve this

problem.

A contingency plan for protection of leatherback turtles on the

Atlantic seaboard that can be implemented, if necessary, was prepared

in cooperation with State officials from Florida, Georgia, and North

Carolina. The necessity for implementation of protective measures for

leatherback turtles is expected to be short-term and apply to specific

areas. The plan considers several options to provide protection, and

any or all them may be implemented, if necessary, pursuant to 50 CFR

227.72(e)(6). These options include, closure of areas to all fishing,

use of restricted tow-times in lieu of TEDs, mandatory observers, and

use of modified TEDs designed to exclude leatherback turtles.

Presence of Leatherback Turtles

During December of 1993 and January and February 1994, NMFS

received regular reports of leatherback sightings in northern Florida.

During recent surveys by the State of South Carolina, concentrations of

leatherback sea turtles were observed in the conservation zone. The

turtles normally migrate northward during the months of March through

June from Florida waters to those off North Carolina.

Sea Turtle Conservation Measures

Based on the information presented and evidence indicating that

shrimp trawlers may incidentally take endangered leatherback sea

turtles, the AA has determined that immediate action may be necessary

to conserve sea turtles. The AA has determined that incidental takings

of leatherback sea turtles during shrimp trawl fishing in the

leatherback conservation zone are unauthorized unless these takings are

consistent with the applicable biological opinions and associated

incidental take statements.

A biological opinion addressing the potential adverse effects of

shrimp trawling to endangered and threatened species was conducted in

1992 for final sea turtle conservation regulations. The opinion

concluded that, ``episodic take of leatherback turtles by shrimp

trawlers during periods of high jellyfish abundance must be

eliminated.'' A biological opinion on this action analyzed the impact

of shrimp trawl fishing in the leatherback conservation zone on

endangered leatherback turtles. The opinion emphasizes the need for

additional protective measures such as requiring the use of TEDs with

escape openings large enough for leatherback sea turtles to escape in

areas where high abundance levels of leatherbacks are observed. The

incidental take statement issued with this opinion allows for the

documented take of 20 leatherback turtles and mortality of four

leatherback turtles. If observer reports or other information indicate

that this incidental is met or exceeded, consultation must be

reinitiated, and the AA may require additional or more stringent

conservation measures.

Requirements

The definitions in 50 CFR 217.12 are applicable to this action, as

are all relevant provisions in 50 CFR parts 217, 222 and 227.

The term ``leatherback conservation zone'' means all inshore and

offshore waters of the Atlantic area from Cape Canaveral, FL

(28 deg.24.6' N. lat.) , to the North Carolina-Virginia border

(36 deg.30.5' N. lat.).

NMFS hereby notifies owners and operators of shrimp trawlers in the

leatherback conservation zone that short-term closures in specific

areas may be required to protect endangered leatherback turtles. Weekly

aerial surveys will be conducted from northern Florida through the

North Carolina-Virginia border. If sightings of leatherback turtles

during such surveys exceed 10 animals per 50 nautical miles (nm) of

trackline, the survey will be replicated within 12 hours, or as soon as

practicable, to ensure that leatherback turtle presence is persistent

in the area. If surveys demonstrate the continued presence of large

concentrations of leatherbacks, NMFS will temporarily close these

specific areas to any shrimp trawler required to have a NMFS-approved

TED installed in each net rigged for fishing, unless the TED installed

is one of the NMFS-approved TEDs as described below. In addition,

owners and operators of vessels operating in closed areas with an

allowed TED, described below, must register with the Director,

Southeast Region, NMFS, in accordance with 50 CFR 227.72(e)(6)(v)(A)

through (F). If requested, they must carry a NMFS-approved observer on

board such vessel(s). A shrimp trawler in the leatherback conservation

zone must comply with the terms and conditions accompanied by any such

request as well as provide information on trawling hours, gear

modifications and turtle captures.

Specific area closures will be announced in the Federal Register,

on the NOAA weather channel, and in newspapers and other media. Shrimp

trawlers in the leatherback conservation zone are responsible for

monitoring the NOAA weather channel for closure announcements. Shrimp

trawlers may also call (813) 893-3163 for updated area closure

information. Closure will take effect upon public filing with the

Federal Register.

NMFS-Approved TEDs With Escape Openings Large Enough for

Leatherback Sea Turtles

NMFS previously approved the Taylor TED, two modifications to the

Morrison TED, and a modification to the single-grid hard TED that will

allow leatherback turtles to escape the trawl. Descriptions of the

Taylor TED and the Morrison modifications were published on May 17,

1993 (58 FR 28795), and a description of the modified single-grid hard

TED was published on May 18, 1994 (59 FR 25827).

Additional Sea Turtle Conservation Measures

NMFS anticipates that shrimp trawlers may continue to interact with

leatherback turtles throughout the summer. As necessary, the AA may

extend, for additional 30-day periods, the restrictions described in

this temporary rule through notification in the Federal Register.

In addition, the AA may modify, at any time, the requirements of

this action through notification in the Federal Register, 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 NMFS determines that shrimp trawlers are having a

significant adverse effect on sea turtles. For example, if monitoring

to assess turtle mortality indicates that the incidental take level is

approaching the level established by the biological opinion for this

action issued under section 7 of the ESA, the AA may modify or add

conservation measures to protect leatherback sea turtles. That level is

20 documented takes, including four by mortality of leatherback

turtles. If the incidental take level is met or exceeded, if

significant or unanticipated levels of lethal or nonlethal takings or

strandings occur that are associated with fishing activities in the

leatherback conservation zone, or if there is significant non-

compliance with this action, additional measures may be imposed.

Additional restrictions may include closing the entire leatherback

conservation zone to all shrimping.

Classification

The AA has determined that this action is necessary to respond to

an emergency situation to conserve and provide adequate protection for

leatherback turtles. This action is consistent with the ESA and other

applicable law.

Because neither section 553 of the Administrative Procedures Act

(APA) or any other law requires that a general notice of proposed

rulemaking be published for this action, under section 503(b) of the

Regulatory Flexibility Act, an initial regulatory flexibility analysis

is not required.

It has been determined that this rule is not significant for

purposes of E.O. 12866.

This action allows the AA to establish a registration program as

authorized by the final rule (57 FR 57348, December 4, 1992), codified

at 50 CFR 227.72(e)(6)(iv). Such a program contains a collection-of-

information requirement subject to the Paperwork Reduction Act (PRA),

namely, registration by vessels fishing in the leatherback conservation

zone from Cape Canaveral, FL., to the Virginia-North Carolina border.

This collection has been approved by OMB under control number 0648-

0267. The public reporting burden for this collection of information is

estimated to average 7 minutes per response, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Comments regarding this burden estimate or

any other aspect of this collection of information, including

suggestions for reducing this burden, should be sent to NMFS and OMB

(see ADDRESSES).

Pursuant to section 553(b)(B) of the APA, the AA finds that there

is good cause to take this action without notice and opportunity for

comment. It is impracticable and contrary to the public interest

because relatively high levels of leatherback turtle abundance have

been reported recently in Florida, and closures and/or restrictions may

need to be imposed quickly. The action announced by this notice is

needed at this time so that shrimp trawlers will monitor NOAA weather

radio and prepare for closures and/or restrictions in specific areas

where relatively high leatherback sea turtle concentrations are

identified. Comments were solicited and none received on a temporary

rule that was effective from April 29, 1994 through May 31, 1994 (59 FR

23169, May 5, 1994). Also, comments were solicited on the temporary

rule establishing a leatherback conservation zone last year (58 FR

28790, May 17, 1993). In addition, comments were solicited on potential

leatherback conservation measures (57 FR 57348, December 4, 1992), and

a summary of the comments received and a response was published (57 FR

40859, September 8, 1992). NMFS also solicited comments in meetings

with fishing groups and state officials concerning this problem.

Pursuant to section 553(d) of the APA, the AA finds there is good

cause to waive the required 30-day delay in effective date for this

action. Advance preparation is not necessary to monitor the NOAA

weather radio. While time may be needed to procure a Taylor TED or make

the appropriate modifications to the Morrison TED, restricted ares will

be relatively small in size and shrimp trawlers should be able to

operate in other areas with existing gear.

The AA prepared an Environmental Assessment (EA) for the final rule

(57 FR 57348, December 4, 1992). A supplemental EA prepared

specifically for this action concludes that, with specified mitigation

measures, this action will have no significant impact on the human

environment.

Dated: June 1, 1994.

Charles Karnella,

Acting Program Management Officer, National Marine Fisheries Service.

[FR Doc. 94-13851 Filed 6-3-94; 1:06 pm]

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