Sea Turtle Conservation; Restrictions Applicable to Fishery Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 930809-3209; I.D. 021594F]

Sea Turtle Conservation; Restrictions Applicable to Fishery

Activities

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

Atmospheric Administration, (NOAA), Commerce.

ACTION: Interim rule with request for comments.

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SUMMARY: NMFS issues this interim rule to reduce for 60 days the size

of the offshore area where the summer flounder fishery must use an

approved turtle excluder device (TED) in any net that is rigged for

fishing, by moving the northern boundary from 37 deg.05' N. latitude

(Cape Charles, VA) to 35 deg.46.1'N. latitude (Oregon Inlet, NC). The

southern boundary of the offshore area (the North Carolina-South

Carolina border) remains the same. The purpose of this action is to

relieve an unnecessary restriction on fishermen in the summer flounder

fishery while continuing to provide protection to endangered and

threatened sea turtles.

DATES: This rule is effective March 1, 1994. Comments on this rule must

be submitted by March 31, 1994.

ADDRESSES: Direct comments on this rule and requests for copies of the

Environmental Assessment prepared for this rule to: Dr. William Fox,

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

Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Phil Williams, Acting Chief,

Endangered Species Division (301/713-2319), Charles A. Oravetz, Chief,

Protected Species Program, NMFS Southeast Region (813/893-3366), or

Doug Beach, Chief, Protected Species Program, NMFS Northeast Region

(508/281-9291).

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, 16

U.S.C. 1531 et seq. (ESA). According to the 1990 report on the decline

of sea turtles, published by the National Academy of Sciences,

incidental capture in shrimp trawls is by far the leading cause of

human-induced mortality to sea turtles in the water, but collectively,

activities in non-shrimp fisheries, which include the summer flounder

bottom trawl fishery, constitute the second largest source.

NMFS has taken action to require the use of TEDs in the bottom

trawl fishery for summer flounder from 37 deg.05' N. latitude (Cape

Charles, VA) southward to 33 deg.35' N. latitude (North Carolina-South

Carolina border), referred to as the ``summer flounder fishery-sea

turtle protection area'' and to require vessels to carry an observer,

if requested to do so. These requirements were initially effective

November 15, 1992, through December 15, 1992 (57 FR 53603, November 12,

1992), were extended from December 16, 1992, through January 14, 1993

(57 FR 60135, December 18, 1992), were modified and extended from

January 7, 1993, through February 8, 1993 (58 FR 4088, January 13,

1993), and were extended from February 10, 1993, through April 10, 1993

(58 FR 5884, February 16, 1993). On September 20, 1993, an interim

final rule was published requiring year-round TED-use by participants

in the bottom trawl fishery for summer flounder in the summer flounder

fishery-sea turtle protection area defined above (58 FR 48797,

September 20, 1993). The specific requirements, their background and

rationale, comments and responses to comments, and summaries of

pertinent biological opinions were included in the cited Federal

Register publications and are not repeated here.

Recent Events

NMFS' continuing review of the available information regarding the

temporary TED requirement under the ESA in the summer flounder bottom

trawl fishery indicates that conditions continue to necessitate the use

of TEDs in some of the waters off North Carolina. Sea turtles and

bottom trawling continue to co-occur in these waters based on

observations of turtles, both at sea and from strandings on ocean

beaches.

NMFS and the U.S. Coast Guard are continuing to conduct cooperative

enforcement activities in the waters off of North southern Virginia and

North Carolina. NMFS has determined that compliance with the TED-use

requirement has been good.

NMFS has determined, based on past interactions between sea turtles

and the summer flounder fishery, that bottom trawl nets without TEDs

can capture and kill sea turtles at a rate comparable with that of the

shrimp trawl fishery along the southern U.S. Atlantic coast, where TED

use is now required at all times. Based on this information, the use of

TEDs should be a required conservation measure throughout most of the

summer flounder fishing season.

In December 1991 and January 1993, based on available information,

including the relatively cooler waters observed north of Cape Hatteras,

NMFS moved the northern boundary of the turtle conservation zone where

restricted tow times were required. The northern boundary was moved

from Cape Charles, VA, to Oregon, Inlet, NC, effective December 27,

1991 (57 FR 213, January 3, 1992) and January 7, 1993 (58 FR 4088,

January 13, 1993).

Recent data acquired by satellite sensors indicate that sea surface

temperatures off the coast of North Carolina north of Oregon Inlet are

less than 10 deg.C. NMFS has found, based on reports from observers

aboard trawlers and from the scientific literature, that the

probability of sea turtle captures declines to near zero when surface

water temperatures fall below 10 deg.C. This decline is apparently

related to decreased turtle abundance and/or activity in cold waters.

Therefore, based on recent data regarding ocean water temperature

north of Oregon Inlet, turtle stranding information, and sea turtle

conservation measures that are currently in effect, the potential

threat to turtles within the northern boundary of the TED-use area from

Cape Charles, VA, to Oregon Inlet, NC, has diminished since the onset

of the summer flounder season. While there is a small risk to sea

turtles associated with moving the northern boundary of the TED-use

area southward, NMFS has determined that this risk is minimal and will

not jeopardize the continued existence of endangered and threatened sea

turtles.

The September 20, 1993, interim rule requiring year-round TED-use

in the summer flounder fishery-sea turtle protection area will continue

to protect sea turtles from summer flounder fishery interactions until

NMFS issues a permanent rule.

The present action modifying the size of the summer flounder

fishery-sea turtle protection area will be applicable for 60 days,

unless NMFS determines that it should be modified or that other action

is required, based on comments received on this rule or on events in

the fishery.

Comments on NMFS' 1993 Actions Reducing the Size of the Summer

Flounder-Sea Turtle Protection Area by Lowering the Northern Boundary

to Oregon Inlet

One comment was received from the Center for Marine Conservation

(CMC), which supported a permanent TED-use requirement in the fishery

from Cape Charles, VA, to the southern border of North Carolina, and

opposed the reduction of the area to Oregon Inlet, NC. Further, CMC

supported an observer requirement on summer flounder vessels north to

Cape Cod, Massachusetts, and observers in all fisheries in order to

determine the full extent of sea turtle and fishery interactions.

Response: NMFS' actions to move the northern boundary south to

Oregon Inlet and to maintain it there were based on available data

regarding turtle distribution and fishing activity. Past data

essentially mirror present data which indicate that the potential

threat to sea turtles north of Oregon Inlet diminishes substantially by

the beginning of January, but trawling without TEDs south of Oregon

Inlet continues to pose a threat. NMFS will not require the use of

restricted tow times in the offshore waters north of Oregon Inlet

because the likelihood of turtle capture is remote due to the decreased

presence and activity of turtles in the cold waters.

However, NMFS will continue to monitor conditions north of Oregon

Inlet to assess the risk of capture from trawlers not using TEDs.

Cooperative efforts between NMFS and the North Carolina Division of

Marine Fisheries will increase stranding monitoring efforts through

periodic aerial coverage of the beaches.

If NMFS determines that incidental capture of turtles is occurring,

or is likely to occur, conservation measures will again be imposed.

Such measures will include the use of TEDs.

Under this interim rule, NMFS may place observers on summer

flounder vessels operating inside and outside of the summer flounder

fishery-sea turtle protection area. It is NMFS' intention to require

the use of TEDs in all areas where the distribution of turtles and

trawling overlap, and where there is an incidental take of turtles, as

a permanent conservation measure in this fishery. NMFS recognizes that

the use of TEDs is the most effective and easily enforceable turtle

conservation measure. However, the required use of TEDs during the last

two summer flounder fishing seasons has brought to light certain

problems. These problems relate to the strength of TEDs and their

ability to withstand the sometimes excessive clogging with bycatch

(most often schools of dogfish) or bottom debris encountered under

certain conditions, especially north of Oregon Inlet during cold water

periods. Flounder trawls are made of heavier mesh, and are pulled at

much faster speeds than shrimp trawls, which greatly increases the

stresses on the TED caused by large accumulations of bycatch. NMFS is

continuing to seek improved TEDs for this fishery. On October 20, 1993,

NMFS approved an improved Flounder TED for bottom trawl nets, developed

in cooperation with the North Carolina Division of Marine Fisheries,

Sea Grant, and summer flounder fishermen.

Sea Turtle Conservation Measures

This interim rule does not supersede the September 20, 1993,

interim rule requirement (58 FR 48797) that owners and operators of

summer flounder bottom trawlers in the summer flounder-sea turtle

protection area use an approved TED in each net that is rigged for

fishing. The present action does, however, similar to a prior action

last season (58 FR 8554, February 16, 1993), modify for a 60-day period

the northern boundary of the summer flounder-sea turtle protection area

by relocating it southward to Oregon Inlet, NC. The modified summer

flounder-sea turtle protection area includes all offshore waters

seaward of the COLREGS (International Regulations for Preventing

Collisions at Sea, 1972) demarcation line, bounded on the north by a

line along 35 deg.46.1' N. latitude (Oregon Inlet) and bounded on the

south by a line along 33 deg.35' N. latitude (North Carolina-South

Carolina border).

The Assistant Administrator for Fisheries, NOAA (AA), has

determined that this temporary action will continue to conserve sea

turtles and at the same time reduce unnecessary regulatory burdens on

summer flounder fishermen. The AA has further determined that

incidental takings of sea turtles during summer flounder bottom

trawling are unauthorized unless those takings are consistent with the

applicable biological opinions and associated incidental take

statements. A biological opinion on the impacts of the summer flounder

bottom trawl fishery managed under the Fishery Management Plan for

Summer Flounder Fishery (FMP) and Amendment 2 to the FMP was issued on

August 10, 1992. That incidental take statement allows for the

documented lethal take of 18 sea turtles: Three in any combination of

Kemp's ridley, hawksbill, green, or leatherback sea turtles, and 15

loggerhead turtles. A supplemental biological opinion was prepared for

the September 20, 1993, action (which established the TED-use

requirement in the summer flounder fishery from Cape Charles, VA to the

North Carolina-South Carolina border). NMFS has also prepared a

supplemental biological opinion for this temporary action and has

authorized a take, by death or injury, of two endangered Kemp's ridley,

hawksbill, green, or leatherback turtle, or six loggerhead turtles

during the applicable 60-day period of this action.

This rule will require summer flounder trawlers, whether operating

inside or outside of the summer flounder fishery-sea turtle protection

area, to carry an observer if selected by the Director, NMFS Southeast

Region, or the Director, NMFS Northeast Region. NMFS will cooperate

with the North Carolina Division of Marine Fisheries in the placement

of observers. If observer reports or other information indicate that

the authorized incidental take level is met or exceeded, NMFS will take

other necessary measures to protect turtles.

Classification

The AA has determined that this interim rule is consistent with the

ESA and other applicable law.

This rule is not subject to review under E.O. 12866.

The AA prepared an environmental assessment (EA) for the final rule

to protect sea turtles (57 FR 57348, December 4, 1992). A supplemental

EA prepared for previous identical actions concludes that there will be

no significant impact on the human environment. A copy of the EA

prepared for this interim rule is available (see ADDRESSES).

The AA finds there is good cause to waive opportunity for prior

notice and opportunity for comment under section 553(b)(B). The AA

finds that prior notice and opportunity for comment is unnecessary,

impracticable, and contrary to the public interest because fishermen

will be unnecessarily disadvantaged by the delay without any benefit in

the protection of sea turtles. Because this interim rule relieves a

restriction, a 30-day delayed effective date is not necessary.

Because prior notice and opportunity for comment is not required

for this action, under section 603(b) of the Regulatory Flexibility

Act, an initial regulatory flexibility analysis is not required.

List of Subjects in 50 CFR Part 217

Endangered and threatened species, Exports, Fish, Imports, Marine

Mammals, Transportation.

Dated: March 1, 1994.

Samuel W. McKeen,

Program Management Officer, National Marine Fisheries Service.

For the reasons set forth in the preamble, 50 CFR part 217 is

amended as follows:

PART 217--GENERAL PROVISIONS

1. The authority citation for part 217 continues to read as

follows:

Authority: 16 U.S.C. 1531-1544; and 16 U.S.C. 742a et seq.,

unless otherwise noted.

2. In Sec. 217.12, the definition for ``Summer flounder fishery-sea

turtle protection area'' is revised to read as follows:

Sec. 217.12 Definitions.

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Summer flounder fishery-sea turtle protection area means:

(1) All offshore waters, bounded on the north by a line along

37 deg.05' N. latitude (Cape Charles, VA) and bounded on the south by a

line along 33 deg.35' N. latitude (North Carolina-South Carolina

border), except as provided in paragraph (2) of this definition.

(2) Applicable from March 1, 1994 through May 2, 1994, all offshore

waters, bounded on the north by a line along 35 deg.46.1' N. latitude

(Oregon Inlet, NC) and bounded on the south by a line along 33 deg.35'

N. latitude (North Carolina-South Carolina border).

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[FR Doc. 94-5051 Filed 3-1-94; 4:33 pm]

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