02-6772. Sea Turtle Conservation; Restrictions to Fishing Activities

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Interim final rule; request for comments.

SUMMARY:

NMFS is enacting a seasonally-adjusted gear restriction by closing the Mid-Atlantic Exclusive Economic Zone (EEZ) waters to fishing with gillnets with a mesh size larger than 8 inch (20.3 cm) stretched mesh, starting on March 15, 2002. The purpose of this action is to reduce the impact of the large-mesh gillnet fisheries on endangered and threatened species of sea turtles primarily from the monkfish fishery which has previously demonstrated a high sea turtle bycatch and mortality rate. The areas restricted to fishing with gillnets larger than 8 inch stretched mesh and the times are as follows: Waters north of 33°51.0′ N (North Carolina/South Carolina border at the coast) and south of 35°46.0′ N (Oregon Inlet)—at all times; waters north of 35°46.0′ N (Oregon Inlet) and south of 36°22.5′ N (Currituck Beach Light, NC)—from March 16 through January 14; waters north of 36°22.5′ N (Currituck Beach Light, NC) and south of 37°34.6′ N (Wachapreague Inlet, VA)—from April 1 through January 14; waters north of 37° 34.6′ N (Wachapreague Inlet, VA) and south of 37°56.0′ N (Chincoteague, VA)—from April 16 through January 14. Waters north of 37°56.0′ N (Chincoteague, VA) will not be affected by this rule. NMFS also intends to publish a permanent rule establishing these seasonal restrictions and is seeking comments on this interim final rule.

DATES:

This interim final rule is effective on March 15, 2002 through 240 days after March 15, 2002. Comments on this interim final rule are requested and must be postmarked or transmitted by facsimile by 5 p.m., Eastern Standard Time, on June 19, 2002. Comments transmitted via e-mail or the Internet will not be accepted.

ADDRESSES:

Send written comments on this interim final rule 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, Attn: Chief, Endangered Species Division, Office of Protected Resources. Comments will not be accepted if submitted via e-mail or the Internet. Copies of the Environmental Assessment (EA) prepared for this interim final rule may also be requested at the same address.

FOR FURTHER INFORMATION CONTACT:

David M. Bernhart (ph. 727-570-5312, fax [phone], e-mail [e-mail]), or Barbara A. Schroeder (ph. 301-713-1401, fax [phone], e-mail [e-mail]).

SUPPLEMENTARY INFORMATION:

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 for threatened species identified in 50 CFR 223.206. The incidental take of endangered species may be authorized only by an incidental take statement provided or an incidental take permit issued pursuant to section 7 or 10 of the ESA.

Background

Beginning in 1995, sea turtle strandings off North Carolina dramatically increased during April and May, particularly near the area between Hatteras Inlet and Oregon Inlet. This new stranding pattern continued and intensified throughout the rest of the 1990's, and North Carolina sea turtle strandings grew to record levels. Increasing strandings coincided with increasing effort in the monkfish gillnet fishery, which first began off North Carolina in 1995. In April and May 2000, the largest-ever fisheries-related stranding event occurred: 280 sea turtles, 275 of them threatened loggerhead sea turtles, stranded in two short periods. Four of the carcasses were still entangled in gillnet gear with a larger than 8 inch stretched mesh size. Three fisheries were active in offshore waters the week prior to the strandings: Hook-and-line fishing for mackerel, bluefish gillnetting, and monkfish gillnetting. The mesh sizes of the gear recovered with the stranded turtles were only consistent with gillnets for monkfish. There was no evidence that the turtles had been hooked, and the nature of the strandings were not consistent with other possible causes. Satellite sea surface temperature information allowed NMFS to reconstruct the likely times and locations of the sea turtle mortality. Gillnetting for dogfish and monkfish was occurring in those times and places.

These fisheries deploy thousands of yards/meters of gillnets with larger than 8 inch stretched mesh and have very long soak times, ranging from overnight to several days. In order to prevent further sea turtle deaths, on May 12, 2000, NMFS restricted an area along eastern North Carolina and Virginia to fishing with large-mesh gillnets with a stretched mesh size of 6 inches (15.24 cm) or greater for a 30-day period through a temporary rule (65 FR 31500, May 18, 2000). After the large mesh closure was in effect, no additional mass stranding events occurred in North Carolina. However, the monkfish fishery in North Carolina was over by the time the closure went into effect.

The closure also reduced the monkfish gillnetting effort off the coast of Virginia, and there was a large reduction in strandings in 2000 (Mansfield et al., 2001). Due to the large-mesh gillnet closure, as well as the new trip limits imposed by the FMP on May 1, 2000, there was also a reduction in fisheries landings reported within this region.

Monkfish gillnets—12-inch mesh, tied-down, anchored gillnets; up to 4 nautical miles of net per boat; and soak times from 24 to 120 hours—pose a lethal threat to sea turtles, if they are fished in times and places where turtles occur. In the early spring, sea turtles, particularly loggerheads, mass along warm-water fronts off the North Carolina coast and migrate northward as warming water temperatures allow. Based on the information regarding fishing activity prior to the strandings, large mesh gillnets set along these warm-water fronts were the most likely cause of the catastrophic levels of sea turtle mortality seen in North Carolina in 2000. Even with the high level of strandings, the great majority of turtle carcasses probably never stranded due to the strong offshore currents of the Gulf Stream, and the actual turtle mortality was much higher than the strandings suggest.

2001 Events

NMFS considered implementing closures of the monkfish gillnet fishery in the Mid-Atlantic in 2001 to prevent the same level of turtle mortality from recurring. Implementation of the Year 2 Monkfish Fishery Management Plan (FMP) measures as of May 1, 2000, limited monkfish gillnet vessels in the Southern Fishery Management Area to a trip limit of 300 lb (tail weight) per Day-at-Sea (DAS). In addition, NMFS placed observers on nearly 100 percent of the monkfish gillnet trips out of North Carolina and Virginia ports in spring 2001. Further, NMFS published a rule (66 FR 28842, May 25, 2001) that provided authority to close the monkfish gillnet fishery if the observers documented turtle takes greater than the authorized level in the incidental take statement (ITS) issued with the December 21, 1998, biological opinion on the monkfish fishery.

NMFS, in the meantime, had also reinitiated consultation (pursuant to section 7 of the ESA) on the FMP, primarily as the result of concerns over right whale takes in fixed gear. Consultation was also reinitiated because the ITS for sea turtles was exceeded in 1999. NMFS also analyzed the information on sea turtle strandings and the effect of the FMP's daily landings limits and limitations on total days at sea (DAS). Beginning May 1, 2000, for the area off North Carolina and Virginia, monkfish gillnet vessels were limited to 300 pounds of tails landed per day and 40 DAS per year. Beginning May 1, 2002, the DAS would be reduced to zero (i.e., no directed gillnet fishing for monkfish), but up to ten unused DAS could be carried over. NMFS issued a new biological opinion on the fishery on June 14, 2001, concluding that the fishery, as managed under the FMP, was not likely to jeopardize the continued existence of any species of sea turtle. Incidental take was authorized, with a reduced take level after April, 2002 and zero take anticipated after April, 2003. The opinion expressly considered the reduction in daily landings limits and DAS and considered that the FMP's restrictions would greatly reduce the effort off North Carolina and Virginia, because vessels from northern ports would have little incentive to travel to the south for the limited fishing opportunity.

The June 14, 2001 biological opinion's analysis of the fishery's behavior in spring 2001 proved to be correct: Only seven sink gillnet vessels targeting monkfish fished off North Carolina in 2001, compared to 33 sink gillnet vessels that landed monkfish in North Carolina in 2000. The sea turtle mortality was also greatly reduced: there were only 11 turtle strandings in eastern North Carolina (zone 35) for April and May, total, compared to the close to 300 turtles that stranded in April and May 2000. Four sea turtle takes were observed in the monkfish gillnet fishery off North Carolina and Virginia in spring 2001. Not only were there fewer vessels fishing gillnets in 2001, those vessels apparently fished farther to the north and in colder water, compared to 2000, and thus avoided sea turtle takes.

Changes to the FMP

On August 14, 2001, the U.S. District Court for the District of Rhode Island found the provisions in the FMP that established the trip limits for gillnetters to be unlawful. NMFS filed a motion with the court, asking for reconsideration and asking that the FMP's trip limits remain in place until a new FMP could be developed. The U.S. District Court denied this motion on February 15, 2002. The effect of this ruling is that the gillnet daily limits have now increased from 300 pounds to 1500 or 1000 pounds (based on permit type). In addition, the New England and Mid-Atlantic Fishery Management Councils voted on February 8, 2002, to reverse the FMP's elimination of gillnet DAS after April, 2002, allowing continued gillnetting with a 550 or 450 pounds of tails per DAS (based on permit type). NMFS is reviewing this council action for possible approval. Note that all trip limits discussed in this interim rule, and any past changes to those trip limits are specific only to the Southern Fishery Management Area of the monkfish fishery. The Northern Fishery Management Area has no trip limits and these have not been changed by the court order or new Council action. The reinitiation of ESA Section 7 consultation on the monkfish fishery is underway.

Threat to Sea Turtles

The fishery off North Carolina will be closed from February 15 through March 15, under provisions of the Mid-Atlantic Harbor Porpoise Take Reduction Plan. However, because of the recent court ruling, if no turtle protective measures are in place in the fishery and effort returns to 2000 levels, there is every reason to believe that sea turtle mortality off the southern Mid-Atlantic will return to the very high levels of the late 1990's and possibly the disastrous levels of 2000. The court's ruling and the Council's action undo the effort limitation measures that were important factors in the June 14, 2001 no-jeopardy biological opinion. Under a 1500- or 1000-pound daily limit, NMFS believes that effort off North Carolina will return to the levels seen in 2000. In 2000, there were no trip limits, but the average landings per trip were only 764 pounds, so the 1500- or 1000-pound limit will have little to no effect in reducing effort, and, based on past effort, vessels from other states are expected to travel to North Carolina to target monkfish. The other protective measures of 2001 are no longer in place. The temporary framework rule that depended on 100 percent observer coverage, with closure after the observers documented take greater than that authorized in the ITS, has expired. NMFS does not have funds or observers to achieve 100 percent coverage again, certainly not at the much higher levels of fishing effort that are anticipated. The level of incidental take authorized in the June 14, 2001 opinion is very low (6 loggerheads, 1 green, 1 Kemp's ridley, 1 leatherback sea turtle) and would probably be exceeded quickly if monkfish gillnets are set near warm water boundaries when turtles are making their northward migration. NMFS believes that emergency action is warranted to prevent the violation of the incidental take statement of the opinion and to reduce the potential for a serious impact to turtle populations. The 275 loggerheads that stranded in North Carolina in spring 2000 were probably disproportionately made up of individuals from the northern subpopulation of loggerheads, a subpopulation that has been of particular concern, for example, in the 2001 Biological Opinion on the Atlantic pelagic longline fishery management plan, that concluded that fishery was likely to jeopardize loggerhead and leatherback sea turtles.

Seasonally-Adjusted Closure of Large-Mesh Gillnet Fishing in the Mid-Atlantic

By this interim final rule, NMFS is enacting, effective immediately, seasonally-adjusted gear restrictions by closing the Mid-Atlantic EEZ waters to fishing with gillnets with a mesh size larger than 8 inch (20.3 cm) stretched mesh to protect migrating sea turtles. Although the monkfish gillnet fishery currently uses 12 inch (30.5 cm) stretched mesh as their primary gear type, the potential exists for the utilization of smaller mesh gillnets for monkfish. The 8 inch cutoff size as mentioned above is, therefore, being enacted in this rule. NMFS considered banning smaller mesh sizes but fishing for monkfish with gillnets with less than 8 inch mesh is impractical and banning smaller mesh sizes would interfere with the prosecution of other fisheries that have been shown to have minimal impact on sea turtles.

The areas restricted to fishing with gillnets larger than 8 inch stretched mesh and the times are as follows: waters north of 33°51.0′ N (North Carolina/South Carolina border at the coast) and south of 35°46.0′ N (Oregon Inlet)—at all times; waters north of 35°46.0′ N (Oregon Inlet) and south of 36°22.5′ N (Currituck Beach Light, NC)—from March 16 through January 14; waters north of 36°22.5′ N (Currituck Beach Light, NC) and south of 37°34.6′ N (Wachapreague Inlet, VA)—from April 1 through January 14; waters north of 37°34.6′ N (Wachapreague Inlet, VA) and south of 37°56.0′ N (Chincoteague, VA)—from April 16 through January 14. Waters north of 37°56.0′ N (Chincoteague, VA) will not be affected by this rule. NMFS also intends to publish a permanent rule establishing these seasonal restrictions and is seeking comments on this interim final rule. The restricted areas include all EEZ waters within the stated boundaries. Because of the evidence from past stranding events, particularly the large stranding event in April and May 2000, NMFS concludes that the large mesh gillnet fishery in the Mid-Atlantic takes, including to capture and kill, numerous endangered and threatened sea turtles during their spring migration. NMFS is taking this action to prevent further mortalities and other takes of listed species in this fishery. The timing of the restrictions is based upon an analysis of sea surface temperatures for the above areas. Sea turtles are known to migrate into and through these waters when the sea surface temperature is 11 degrees Celsius or greater. The January 15 date for the reopening of the areas north of Oregon Inlet (35°46.0′ N) to the large-mesh gillnet fishery is also based upon the 11 degree Celsius threshold and is consistent with the seasonal boundary established for the summer flounder fishery-sea turtle protection area (50 CFR 223.206(d)(2) (iii)(A)).

The actions implemented by this interim final rule are expected to impact approximately 20-25 monkfish gillnet vessel owners and operators. Five alternatives were evaluated in the EA prepared for this interim final rule, including a status quo or “no action” alternative. For a description and analysis of the alternatives, readers should refer to the EA available at the address listed above.

The total cost to the monkfish fishery is expected to be minimal. The primary effect of this interim final rule will be to establish restrictions in an area which is not heavily utilized by the fishery and to set required dates for the northward movement of the fishery up through 37°56.0′ N (Chincoteague, VA) in order to avoid sea turtle interactions. However, based on vessel trip reporting (VTR) data from May 1998 through April 2001, the Virginia and North Carolina trips make up a small part of the total effort in the monkfish sink gillnet fishery. Together they represent 5.1 percent of the monkfish tail weight, 0.9 percent of the liver weight, and 4.1 percent of the total gillnet trips. The fishery normally migrates northward anyway as it follows the monkfish movements. This rule does not prevent or limit fishermen from moving north of 37°56.0′ N (Chincoteague, VA) to prosecute the fishery, although the small number of vessels in this fishery that are based in North Carolina and Virginia would have extra fuel costs that would impact profitability. This rule does not impact the available DAS or catch limits established under previous regulations.

Request for Comments

NMFS is considering issuing these seasonally-adjusted gear restrictions as a final rule. Written public comments on this interim final rule must be postmarked or transmitted by facsimile by 5 p.m., Eastern Standard Time, on June 19, 2002.

Classification

This action has been determined to be not significant for purposes of Executive Order 12866.

The Assistant Administrator has determined that this interim final rule is necessary to respond to the emergency created by the changes to the federal monkfish fishery, changes which may lead to unauthorized takes in violation of the terms and conditions of the June 14, 2001 Biological Opinion. This interim final rule is consistent with the ESA and other applicable laws. Section 4(b)(7) of the ESA provides that the requirements of 5 U.S.C. 553 of the Administrative Procedure Act do not apply to regulations when there is an emergency posing a significant risk to wildlife (16 U.S.C. 1533(b)(7)).

This interim final rule will be effective for 240 days. If NMFS determines to adopt this interim final rule permanently, NMFS will publish the rule in the Federal Register by winter 2002. If significant changes to this interim final rule are needed, NMFS will first publish a proposed rule and seek additional public comment. If NMFS determines that the rule is no longer necessary, NMFS will withdraw this interim final rule. NMFS is providing notice of these regulations to the states of North Carolina and Virginia, as required by section 4(b)(7)(B) of the ESA. NMFS regulations, which were developed and adopted after full notice and comment, give the Assistant Administrator the authority to take emergency actions when the need arises. 50 CFR 223.206(d)(4).

The AA also finds good cause to waive the requirements for prior notice and an opportunity for public comment, for this interim final rule, pursuant to 5 U.S.C. 553(b)(B), as such procedures would be impracticable and contrary to the public interest. The recent court ruling, described above, increased gillnet DAS limits from 300 pounds to either 1500 or 1000 pounds, based upon permit type. It is expected that, in light of these higher trip limits, the level of fishing effort occurring after March 16, 2002, when the fishery off North Carolina will open, until May 1, 2002, when gillnet DAS will be reduced to zero under the FMP, will cause a significant increase in risk of mortality to sea turtles. As such, any delay in implementation of this interim final rule would prevent NMFS from meeting its obligations under the ESA to prevent such harm.

The New England and Mid-Atlantic Fishery Management Councils have voted to reverse the FMP's elimination of gillnet DAS after April, 2002, and to allow continued gillnetting with a 550 or 450 pounds of tails per DAS (based on permit type). Should NMFS decide to follow the recommendation of the Council, emergency protection for sea turtles would remain necessary after May 1, 2002. However, should NMFS not follow the recommendation of the Council, NMFS will consider this in determining whether to adopt the interim final rule as a final rule.

This interim final rule will be effective for 240 days. If NMFS determines to adopt this interim final rule permanently, NMFS will publish the rule in the Federal Register by winter 2002. If significant changes to this interim final rule are needed, NMFS will first publish a proposed rule and seek additional public comment. If NMFS determines that the rule is no longer necessary, NMFS will withdraw this interim final rule.

For the reasons stated above, the AA finds good cause under both section 4(b)(7) of the ESA and 5 U.S.C. 553(d)(3) not to delay the effective date of this rule for 30 days. This restriction has been announced on the NOAA weather channel, 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 the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

The AA has prepared an Environmental Assessment for this interim final rule. Copies of the EA are available (see ADDRESSES).

List of Subjects in 50 CFR Part 223

• Administrative practice and procedure
• Endangered and threatened species
• Exports
• Imports
• Reporting and record-keeping requirements

Dated: March 15, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries.

For the reasons set out in the preamble, 50 CFR parts 222 and 223 are amended to read as follows:

PART 222—GENERAL ENDANGERED AND THREATENED MARINE SPECIES

1. The authority citation for part 222 continues to read as follows:

Authority: 16 U.S.C. § 1531 et seq.; 16 U.S.C. § 742a et seq.; 31 U.S.C. § 9701 et seq.

2. In § 222.102, Definitions, add after the definition for “Four-seam, tapered-wing trawl” and before the definition for “Gulf Area”, the following regulatory definition to read as follows:

§ 222.102

Definitions.

* * * * *

Gillnet means a panel of netting, suspended vertically in the water by floats along the top and weights along the bottom, to entangle fish that attempt to pass through it.

* * * * *

PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 223 continues to read as follows:

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

2. In § 223.206, paragraph (d) introductory text is suspended and paragraph (d)(8) and (e) are added to read as follows:

§ 223.206

Exceptions to prohibitions relating to sea turtles.

* * * * *

(d) * * *

(8) Restrictions applicable to large-mesh gillnet fisheries in the mid-Atlantic region. No person may fish (including, but not limited to, setting, hauling back, or leaving in the ocean) with, or possess any gillnet with a stretched mesh size larger than 8 inches (20.3 cm), unless all gillnets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck or the rail, and all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and anchors are disconnected. This restriction is effective starting on March 15, 2002, in the Atlantic Exclusive Economic Zone (as defined in 50 CFR 600.10) during the following time periods and in the following areas:

(i) Waters north of 33°51.0′ N (North Carolina/South Carolina border at the coast) and south of 35°46.0′ N (Oregon Inlet) at any time;

(ii) Waters north of 35°46.0′ N (Oregon Inlet) and south of 36°22.5′ N (Currituck Beach Light, NC) from March 16 through January 14;

(iii) Waters north of 36°22.5′ N (Currituck Beach Light, NC) and south of 37°34.6′ N (Wachapreague Inlet, VA) from April 1 through January 14; and

(iv) Waters north of 37°34.6′ N (Wachapreague Inlet, VA) and south of 37°56.0′ N (Chincoteague, VA) from April 16 through January 14.

* * * * *

(e) Exception for incidental taking. The prohibitions against taking in § 223.205(a) do not apply to the incidental take of any member of a threatened species of sea turtle (i.e., a take not directed toward such member) during fishing or scientific research activities, to the extent that those involved are in compliance with all applicable requirements of paragraphs (d)(1) through (d)(8) of this section, or in compliance with the terms and conditions of an incidental take permit issued pursuant to paragraph (a)(2) of this section.