Sea Turtle Conservation; Restrictions Applicable to Shrimp Trawl Activities; Leatherback Conservation Zone

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217, 222, and 227

[Docket No. 950427117-5117-01; I.D. 040395A]

RIN 0648-AH97

Sea Turtle Conservation; Restrictions Applicable to Shrimp Trawl

Activities; Leatherback Conservation Zone

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Interim rule.

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SUMMARY: NMFS issues this interim rule to establish 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 to provide for short-term closures of

areas in that zone when high abundance levels of leatherback turtles

are documented. Upon such documentation, NMFS will prohibit, in the

closed areas, fishing by 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 specified in the regulations as having an

escape opening large enough to exclude leatherback turtles. This

interim rule is necessary to reduce mortality of endangered leatherback

sea turtles incidentally captured in shrimp trawls. In addition, NMFS

is publishing a proposed rule elsewhere in this Federal Register to

establish on a permanent basis the leatherback conservation zone and

procedure for imposing short-term [[Page 25621]] restrictions designed

to protect leatherbacks.

EFFECTIVE DATE: This rule is effective on May 9, 1995.

ADDRESSES: Requests for a copy of the environmental assessment (EA) or

the contingency plan should be addressed to the Chief, Endangered

Species Division, Office of Protected Resources, NMFS, 1315 East-West

Highway, Silver Spring, MD 20910. Comments on the collection-of-

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

this interim rule should be directed to the Chief, Endangered Species

Division, Office of Protected Resources, NMFS, 1315 East-West Highway,

Silver Spring, MD 20910, and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Washington,

DC 20503, Attention: Desk Officer for NOAA.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz, (813) 570-5312, or

Russell J. Bellmer, (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 (ESA) of

1973. 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 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 shrimp

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 pursuant to sea turtle conservation regulations specified

at 50 CFR 227.72, which include a requirement that shrimp trawlers 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.

As a result of their primarily pelagic existence, leatherbacks

normally occur outside of areas where they would be subject to taking

by shrimp trawlers. During most months of the year, leatherbacks are

not abundant in shrimping areas, and only isolated incidents of taking

by trawlers occur. However, the coastal waters of northern Florida,

Georgia, South Carolina, and North Carolina experience relatively high

abundance levels of leatherbacks as a periodic winter and 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, published in the Federal Register on

December 4, 1992 (57 FR 57348), specifically addressed 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 South

Carolina. The necessity for implementation of protective measures for

leatherback turtles is expected to be on an annual basis but only for

short periods of time in relatively small, specific, areas at any one

time. The plan considers several options to provide protection, and any

or all of them may be implemented, if necessary. These options include:

Closure of areas to all fishing, use of restricted tow times in lieu of

TEDs, mandatory observers, and use of NMFS-approved TEDs with escape

openings large enough to exclude leatherback turtles.

Aerial surveys have been conducted for sea turtles off the Florida

and Georgia coasts since 1988 and off the coast of South Carolina since

1993. Beginning in December or January each year, concentrations of

leatherback turtles occur in northeastern Florida waters. During the

month of March, leatherbacks begin moving north and usually enter

Georgia waters in late March or early April. Peak concentrations occur

in Georgia waters during April and May and by mid-June the

concentrations have left Georgia. Leatherback concentrations occur in

waters off South Carolina from late April generally through the first

part of June.

Shrimping occurs year round in northeastern Florida waters, but the

activity levels during any given month may vary from year to year.

Shrimp fishing is closed in the State waters of Georgia until June 1 of

each year, but shrimping begins in Federal waters off Georgia generally

in April or early May. The State of South Carolina opens its waters to

shrimping between May 15 and June 30, depending upon the presence of

shrimp. Shrimping in Federal waters off South Carolina generally begins

in early May. Based upon leatherback turtle concentration information

and normal shrimp fishing activities, the most likely period for shrimp

vessel interactions with leatherbacks in the leatherback conservation

zone is January through June each year.

Each spring for the last 2 years, NMFS has issued temporary 30-day

restrictions establishing a leatherback conservation zone (58 FR 28790,

May 17, 1993; 59 FR 23169, May 5, 1994; 59 FR 29545, June 8, 1994). The

only comment received in response to those restrictions is addressed

below:

Comment: A mechanism for imposing immediate, short-term gear

modifications, closures, and observer requirements in areas of

potential high conflict between commercial fisheries and endangered

species should be implemented on a systematic basis as part of NMFS

fisheries management and protected species programs. A permanent

solution should be adopted.

Response: NMFS agrees. Accordingly, by separate notice, NMFS is

proposing the permanent establishment of a leatherback conservation

zone and a procedure for imposing short-term restrictions designed to

protect leatherback sea turtles based on specified criteria. However,

this interim rule is being promulgated to address the immediate need to

protect leatherbacks this season, and will be superseded upon

promulgation of a final rule as a result of comments received upon the

proposed rule.

Requirements

This interim rule establishes a framework whereby short-term

closures may be instituted on an expedited basis in order to protect

leatherbacks. Specifically, the rule establishes 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.) as the ``leatherback conservation zone.''

During the months of January through June, NMFS will conduct weekly

aerial surveys of the leatherback conservation zone. If sightings of

leatherback turtles during such surveys exceed 10 animals per 50

nautical miles (nm) (92.6 km) of trackline, the survey will be

replicated [[Page 25622]] within 24 hours, or as soon as practicable

thereafter, to ensure that leatherback turtle presence is persistent in

the area. If surveys demonstrate the continued presence of large

concentrations of leatherbacks, NMFS will prohibit shrimp fishing in

these specific areas by 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 described below. These TEDs

have been determined to have escape openings large enough to exclude

leatherbacks. 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 (Regional Director) in accordance

with 50 CFR 227.72(e)(6)(iv)(A) through (F). Upon written request by

the Regional Director, they must carry a NMFS-approved observer aboard

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

must comply with the terms and conditions specified in such written

request, as well as provide information on trawling hours, gear

modifications and turtle captures.

Notice of specific area closures will be published in the Federal

Register and will be effective upon filing for public inspection at the

Office of the Federal Register. Closures will be announced immediately

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

high leatherback abundance as documented by the aerial surveys will be

closed for a period of 2 weeks. A closed area will include all, or a

portion of, inshore and offshore waters 10 nm (18.5 km) seaward of the

COLREGS demarcation line, bounded by 1 deg. lat. coinciding with the

trackline. Shrimp trawlers in the leatherback conservation zone are

responsible for monitoring the NOAA weather channel for closure

announcements. Shrimp trawlers may also call (813) 570-5312 for updated

area closure information.

NMFS-Approved TEDs With Escape Openings Large Enough for Leatherback

Sea Turtles

NMFS has approved modifications to the Taylor and the Morrison

TEDs, as well as a modification to the single-grid hard TED, that will

allow leatherback turtles to escape the trawl. Descriptions of the

Taylor and Morrison TED modifications are found at 50 CFR

227.72(e)(4)(iii)(E), and the modified single-grid hard TED is

described at 50 CFR 227.72(e)(4)(i)(G)(2)(ii).

Classification

This interim rule has been determined to be not significant for

purposes of E.O. 12866.

This interim rule establishes a registration program that includes

a collection-of-information requirement subject to the PRA, namely,

registration by vessels fishing in the leatherback conservation zone

from Cape Canaveral, Florida, 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 Administrative Procedure Act

(APA), the Assistant Administrator for Fisheries, NOAA, (AA) finds that

there is good cause to waive prior notice and opportunity to comment on

this interim rule. Delaying the establishment of the leatherback

conservation zone and the mechanism to impose restrictions or closures

would be impracticable and contrary to the public interest, because

relatively high levels of leatherback turtle abundance have been

reported recently in South Carolina waters. Closures and/or

restrictions may need to be imposed quickly when shrimp fishing effort

increases in that area in early May. This interim rule 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 received on the most recent temporary

restrictions (59 FR 29565, June 8, 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 otherwise required 30-day delay in effective

date for this action. Such delay is contrary to the public interest

because, as stated above, high concentrations of leatherbacks have been

reported in nearshore waters where shrimping may occur. In addition,

such delay is unnecessary because advance preparation is not necessary

to monitor the NOAA weather radio. While time may be needed to make the

appropriate modifications to a Taylor, Morrison, or hard grid TED,

restricted areas will be relatively small in size and shrimp trawlers

should be able to operate in other areas with existing gear.

The AA prepared an EA for the this interim rule and concludes that,

with specified mitigation measures, this action will have no

significant impact on the human environment.

List of Subjects

50 CFR Part 217

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

mammals, Transportation.

50 CFR Part 222

Administrative practice and procedure, Endangered and threatened

species, Exports, Imports, Reporting and record keeping requirements,

Transportation.

50 CFR Part 227

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: May 5, 1995.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR parts 217, 222, and

227 are amended to read 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 742a et seq., unless

otherwise noted.

2. In Sec. 217.12, a definition of ``leatherback conservation

zone'' is added to read as follows:

Sec. 217.12 Definitions.

* * * * *

Leatherback conservation zone means all inshore and offshore waters

bounded on the south by a line along 28 deg.24.6' N. lat. (Cape

Canaveral, FL), and bounded on the north by a line along 36 deg.30.5'

N. lat. (North Carolina-Virginia border).

* * * * * [[Page 25623]]

PART 222--ENDANGERED FISH OR WILDLIFE

3. The authority citation for part 222 continues to read as

follows:

Authority: 16 U.S.C. 1531-1543.

4. In subpart E, Incidental capture of endangered species,

Sec. 222.42 is added to read as follows:

Sec. 222.42 Special prohibitions relating to leatherback sea turtles.

Special prohibitions relating to leatherback sea turtles are

provided at Sec. 227.72(e)(2)(iv) of this chapter.

PART 227--THREATENED FISH AND WILDLIFE

5. The authority citation for part 227 continues to read as

follows:

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

6. In Sec. 227.72, paragraph (e)(2)(iv) is added to read as

follows:

Sec. 227.72 Exceptions to prohibitions.

* * * * *

(e) * * *

(2) * * *

(iv) Gear requirement--leatherback conservation zone--(A)

Leatherback surveys. From January 1 through June 30 of each year,

weekly aerial surveys will be conducted (contingent upon weather

conditions) by NMFS or state agents in the leatherback conservation

zone (defined in Sec. 217.12 of this chapter). If sighting rates of

greater than 10 leatherback turtles per 50 nautical miles (92.6 km) of

trackline are observed, the aerial surveys of that area will be

replicated within 24 hours, or as soon as practicable thereafter.

(B) TED requirements and registration. If surveys pursuant to

(e)(2)(iv)(A) of this section indicate a sighting rate within the

leatherback conservation zone of greater than 10 leatherback sea

turtles per 50 nautical miles (92.6 km) of trackline, NMFS will close,

for a 2-week period, an area of the leatherback conservation zone

encompassing all, or a portion of, inshore waters and offshore waters

10 nautical miles (18.5 km) seaward of the COLREGS demarcation line,

bounded by 1 deg. lat. coinciding with the trackline, within the

leatherback conservation zone. Within such closed area, fishing by any

shrimp trawler required to have a NMFS-approved TED installed in each

net rigged for fishing is prohibited, unless the TED installed is one

described at paragraph (e)(4)(i)(G)(2)(ii) or paragraph (e)(4)(iii)(E)

of this section, and the owner or operator of the shrimp trawler has

notified the Director, Southeast Region, NMFS (Regional Director) of

his or her intention to fish in that area, in accordance with the

procedure provided in paragraphs (e)(6)(iv) (A) through (F) of this

section. If requested in writing from the Regional Director, owners and

operators of shrimp trawlers in the leatherback conservation zone must

carry NMFS-approved observers aboard such vessel(s). A shrimp trawler

in the leatherback conservation zone must comply with the terms and

conditions specified in such written request, as well as provide

information on trawling hours, gear modifications, and turtle captures.

(C) Notification. NMFS will immediately announce specific area

closures on the NOAA weather radio channel, in newspapers, and other

media. Specific area closures will be effective upon filing for public

inspection at the Office of the Federal Register. Owners and operators

of shrimp trawl vessels in the leatherback conservation zone are

responsible for monitoring the NOAA weather radio channel for closure

announcements. Shrimp trawlers may also call the Southeast Regional

Office at (813) 570-5312 to receive updated area closure information.

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[FR Doc. 95-11581 Filed 5-9-95; 11:46 am]

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