[Federal Register Volume 59, Number 44 (Monday, March 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5051]
[[Page Unknown]]
[Federal Register: March 7, 1994]
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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.
* * * * *
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).
* * * * *
[FR Doc. 94-5051 Filed 3-1-94; 4:33 pm]
BILLING CODE 3510-22-P
