Sea Turtle Conservation; Restrictions to Fishing Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No.991207322-9328-02;I.D.120899D]

RIN 0648-AN45

Sea Turtle Conservation; Restrictions to Fishing Activities

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS is closing the waters of Pamlico Sound, North Carolina to

fishing with gillnets with a mesh size larger than 5 inches (12.7 cm)

stretched mesh for a 30-day period. The closed area includes all

inshore waters of Pamlico Sound south of 35 deg.23' N. lat. and east of

76 deg.05' W. long. NMFS is taking this action because of its

determination that the large mesh gillnet fishery is the most likely

cause of significant increases in the stranding of sea turtles listed

as threatened or endangered under the Endangered Species Act (ESA) in

Pamilco Sound. This action is necessary to protect threatened and

endangered turtles from being taken by the large mesh, gillnet fishery

in Pamlico Sound.

DATES: This action is effective from December 10, 1999 through January

10, 2000. Comments on this action are requested, and must be received

at the appropriate address or fax number (See ADDRESSES) by no later

than 5:00pm, eastern standard time, on January 10, 2000.

ADDRESSES: Written 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. Comments may

also be sent via fax to 301-713-0376. Comments will not be accepted if

submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Charles A. Oravetz (ph. 727-570-5312,

fax 727-570-5517, e-mail Chuck.O[email protected]), or Barbara A.

Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail

Barbara.S[email protected]).

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 (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 incidentally--is prohibited, with exceptions identified

in 50 CFR 223.206. The incidental take of endangered species may only

legally be authorized by an incidental take statement or an incidental

take permit issued pursuant to section 7 or 10 of the ESA. Existing sea

turtle conservation regulations specify procedures that NMFS may use to

determine that unauthorized takings of sea turtles are occurring during

fishing activities, and

[[Page 70197]]

to impose additional restrictions to conserve listed sea turtles and to

prevent unauthorized takings (50 CFR 223.206(d)(4). 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.

Recent Events

The Sea Turtle Salvage and Stranding Network has documented a high

level of sea turtle strandings in North Carolina this fall. Beginning

November 1, 1999, large numbers of sea turtles have been stranding in

Pamlico Sound, North Carolina, particularly in the vicinity of Hatteras

and Ocracoke Inlets. The strandings through the week ending December 4

have totaled 74, including 39 endangered Kemp's ridley sea turtles. The

total number of strandings in North Carolina for 1999 is 2.3 times the

average annual strandings from 1980 to 1999. The total number of Kemp's

ridley strandings in 1999 is 7 times the average annual for the same

time period.

Several fisheries, including trawling for shrimp and crabs and

gillnetting for speckled trout and southern flounder, have been

operating in Pamlico Sound over the period of the turtle strandings.

After conducting aerial surveys of the fishing activity and reviewing

other available information on the fisheries, NMFS determined that sink

gillnetting for southern flounder was the most likely cause of the

elevated turtle mortality. Gillnet vessels and many untended gillnets

were observed in the Sound near the areas of highly concentrated turtle

strandings. Small turtles, such as the Kemp's ridley, are likely to be

entangled in the large mesh sizes used in these gillnets. Necropsies of

stranded animals have generally indicated that they were healthy and

had been foraging prior to their deaths. As the weather cools in the

fall and winter, the sea turtles' migrations through and out of the

North Carolina sounds make them extremely vulnerable to fishing effort

that is concentrated at the inlets.

NMFS discussed the situation with the North Carolina Division of

Marine Fisheries (NCDMF) on November 19, 1999. At that time, NCDMF did

not believe that any action was necessary to regulate the large mesh

flounder gillnet fishery on the basis that the fishery would be winding

down seasonally and that the available evidence was not strong enough

to confirm conclusively that this fishery was responsible for the

turtle mortality. To develop additional information, NCDMF deployed

observers aboard gillnet vessels from November 22-24. In 5 trips aboard

flounder gillnet vessels, two Kemp's ridley turtles were taken. No

turtles were taken in 6 trips aboard speckled trout gillnet vessels.

NMFS deployed a Protected Resources Enforcement Team (PRET) to

North Carolina for further investigations in late November. PRET has

worked cooperatively with the North Carolina Marine Patrol to

investigate the role of the different fisheries in the turtle deaths.

PRET investigations so far indicate that flounder gillnetting is the

probable cause of the great majority of the turtle mortality.

There are approximately 30 to 40 boats participating in the

southern flounder gillnet fishery, each setting from 2,000 to 10,000

yards (1 to 5 nautical miles (1.8 to 9 km)) of large mesh gillnet,

mostly concentrated in an area about 25 miles long by a few miles wide.

The fishery has grown rapidly in the last few years. There are no state

regulations on the amount of net fished, manner or place of setting the

net, tending requirements, soak time, or the length of the season. Nets

are generally set and left untended for 1 or 2 days, although even

longer sets occur. This year, bad weather after Thanksgiving caused

many fishermen to leave their nets in the water for 5 to 6 days.

Although the fishery is said to be winding down, there is no assurance

that fishermen will pull their nets out of the water soon, since there

is no regulatory end to the season. As fish catch rates decline, the

nets may be left untended for even longer periods of time and pose an

even greater threat to turtles. PRET observed that Pamilco Sound had

high concentrations of gillnets in early December.

Analysis of Other Factors

Examination of the strandings in Pamlico Sound indicates that the

most significant source of sea turtle mortality is large mesh

gillnetting. The carcasses have primarily been coming ashore in the

vicinity of areas where gillnetting effort has been concentrated, and

fishery observers and enforcement officers have observed sea captures

in the large-mesh gillnets. The construction of the gear, the extremely

large amounts of netting deployed, and the long soak times create an

extreme threat for entangling and drowning sea turtles during their

fall migration. NMFS' PRET and NCDMF will continue to investigate

factors other than southern flounder gillnetting that may contribute to

sea turtle mortality in Pamlico Sound, including other fisheries and

environmental factors.

Closure of Gillnet Fishing in Pamlico Sound

The incidental taking of an endangered species of wildlife is

prohibited by section 9(a)(1)(B) of the ESA. There are no exemptions to

this prohibition applicable to the southern flounder gillnet fishery in

Pamlico Sound. This fishery is known to be catching and killing large

numbers of endangered Kemp's ridley sea turtles. Green turtles and

threatened loggerhead turtles have also been taken. Section 11(f) (16

U.S.C. 1540(f)) of the ESA authorizes the Secretary of Commerce to

promulgate regulations to enforce the requirements of the Act.

Regulations at 50 CFR 223.206(d)(4) specify procedures that the

Assistant Administrator for Fisheries, NOAA, (AA) may use to impose

additional restrictions to conserve listed sea turtles and prevent

unauthorized takings.

Therefore, the AA issues this determination that takings of

endangered sea turtles by southern flounder gillnetters in Pamlico

Sound are unauthorized by statute and issues this additional

restriction to gillnet fishing activities to conserve endangered Kemp's

ridley sea turtles. Specifically, the AA closed the waters of Pamlico

Sound, North Carolina to fishing with gillnets with a mesh size larger

than 5 inches (12.7 cm) stretched mesh. The closed area includes all

inshore waters of Pamlico Sound south of 35 deg.23' N. lat.

(approximately the end of Avon Channel) and east of 76 deg.05' W. long.

(approximately Bluff Shoal). This closure is effective from December

10, 1999 through 11:59 p.m. (local time) January 10, 2000. For the

duration of this closure, no gillnet with a mesh size larger than 5

inches stretched mesh may be set in the closed area. All such nets that

are currently set must be retrieved no later than 11:59 p.m. local time

on December 13, 1999. Any such nets remaining in the water after such

time will be a violation of this closure.

This restriction has been announced on the NOAA weather channel, in

newspapers, and other media.

Additional Conservation Measures

The AA may withdraw or modify any additional 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 sea turtle strandings to gauge the

[[Page 70198]]

effectiveness of these conservation measures.

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

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

an emergency situation to provide adequate protection for endangered

and threatened sea turtles, primarily the Kemp's ridley turtle,

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 the listed sea turtles. Notification of and opportunity to

comment on, this action was provided through the proposed rule which

established these actions (57 FR 18446, April 30, 1992). For the same

reasons, the AA finds good cause also under 5 U.S.C. 553(d)(3) not to

delay the effective date of this rule for 30 days. NMFS is making the

rule effective December 10, 1999 through January 10, 2000. As stated

earlier, this restriction has been announced on the NOAA weather radio,

in newspapers, and other media.

As prior notice and an opportunity for public comment are not

required to be provided for this notification 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

notices such as this. Copies of the EA are available (see ADDRESSES).

Dated: December 10, 1999.

Penelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries

Services.

[FR Doc. 99-32531 Filed 12-10-99; 4:37 pm]

BILLING CODE 3510-22-F