[Federal Register Volume 59, Number 109 (Wednesday, June 8, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-13851] [[Page Unknown]] [Federal Register: June 8, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 217 and 227 [Docket No. 940418-4118; I.D. 031894B] Sea Turtle Conservation; Restrictions Applicable to Fishery Activities AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary restriction; request for comments. ----------------------------------------------------------------------- SUMMARY: NMFS is issuing a temporary restriction that establishes 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 notifies owners and operators of shrimp trawlers operating in that zone that short-term area closures may be required if high abundance levels of leatherback turtles are documented. During the most recent surveys by the State of South Carolina, concentrations of leatherback sea turtles were observed in the conservation zone. Therefore, the potential exists, for the next 30 days, that closure of the conservation zone may be necessary. NMFS will close these areas to 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 a NMFS-approved Taylor TED, a Morrison TED with either of the two NMFS-approved modifications made in May 1993, or the modified single-grid hard TED described in a final rule, technical amendment, published May 18, 1994 in the Federal Register (59 FR 25827). This temporary rule is necessary to reduce mortality of endangered leatherback sea turtles incidentally captured in shrimp trawls. Specific area closures will be announced in the Federal Register, on the NOAA weather channel and in newspapers and other media. Shrimp trawlers in the leatherback conservation zone are responsible for monitoring the NOAA weather channel for closure announcements. Shrimp fishermen may also call (813) 893-3163 for updated closure information. Owners and operators of shrimp trawlers operating in closed areas with modified TEDs must register with the Director, Southeast Region, NMFS, and may be required to carry an observer and provide information on trawling hours, gear modifications and turtle captures if requested by the Regional Director. DATES: This restriction is effective from June 3, 1994 through July 5, 1994. Comments on this restriction and consideration of any extension of this restriction must be submitted by June 23, 1994. ADDRESSES: Requests for a copy of the environmental assessment for this action and comments on this action should be addressed to Dr. William W. Fox, Jr., Director, Office of Protected Resources, NMFS, 1335 East- West Highway, Room 8268, Silver Spring, MD 20910. Comments on the collection-of-information requirement subject to the Paperwork Reduction Act should be directed to the Office of Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910, Attention: Margaret Lorenz, and to the Office of Information and Regulatory Affairs, Office of Management and Budget,, Washington, D.C. 20503, Attention: Desk Officer for NOAA. FOR FURTHER INFORMATION CONTACT: Margaret C. Lorenz, Endangered Species Division (301) 713-2322, or Charles A. Oravetz, Chief, Protected Species Program, NMFS, Southeast Region, (813) 893-3366. 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) 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 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 if specified sea turtle conservation measures are used. Existing sea turtle conservation regulations (50 CFR part 227) require most shrimp trawlers to 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. The existing sea turtle conservation regulations allow the Assistant Administrator for Fisheries, NOAA, (AA) to restrict fishing activities in order to conserve a species listed under the ESA (50 CFR 227.72(e)(6)(ii)). This action may be taken if the AA determines that restrictions are necessary to avoid unauthorized takings that may likely jeopardize the continued existence of a listed species. The provision is particularly applicable to leatherback turtles, where despite the use of TEDs, taking by shrimp trawlers can occur. In accordance with the endangered status of leatherback turtles, NMFS considers preventable take of leatherbacks to be inappropriate. If the leatherbacks are relatively abundant in areas where shrimp trawlers are fishing, restrictions to minimize the take of leatherbacks must be imposed. Because of their primarily pelagic existence, leatherbacks normally occur outside of areas where they would be subject to take by shrimp trawlers. During most months of the year, leatherbacks are not considered abundant in shrimping areas, and only isolated incidents of take by trawlers are expected. However, the coastal waters of northern Florida, Georgia, South Carolina and North Carolina experience relatively high abundance levels of leatherbacks as a periodic 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 made on December 4, 1992, (52 FR 24244) 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 North Carolina. The necessity for implementation of protective measures for leatherback turtles is expected to be short-term and apply to specific areas. The plan considers several options to provide protection, and any or all them may be implemented, if necessary, pursuant to 50 CFR 227.72(e)(6). These options include, closure of areas to all fishing, use of restricted tow-times in lieu of TEDs, mandatory observers, and use of modified TEDs designed to exclude leatherback turtles. Presence of Leatherback Turtles During December of 1993 and January and February 1994, NMFS received regular reports of leatherback sightings in northern Florida. During recent surveys by the State of South Carolina, concentrations of leatherback sea turtles were observed in the conservation zone. The turtles normally migrate northward during the months of March through June from Florida waters to those off North Carolina. Sea Turtle Conservation Measures Based on the information presented and evidence indicating that shrimp trawlers may incidentally take endangered leatherback sea turtles, the AA has determined that immediate action may be necessary to conserve sea turtles. The AA has determined that incidental takings of leatherback sea turtles during shrimp trawl fishing in the leatherback conservation zone are unauthorized unless these takings are consistent with the applicable biological opinions and associated incidental take statements. A biological opinion addressing the potential adverse effects of shrimp trawling to endangered and threatened species was conducted in 1992 for final sea turtle conservation regulations. The opinion concluded that, ``episodic take of leatherback turtles by shrimp trawlers during periods of high jellyfish abundance must be eliminated.'' A biological opinion on this action analyzed the impact of shrimp trawl fishing in the leatherback conservation zone on endangered leatherback turtles. The opinion emphasizes the need for additional protective measures such as requiring the use of TEDs with escape openings large enough for leatherback sea turtles to escape in areas where high abundance levels of leatherbacks are observed. The incidental take statement issued with this opinion allows for the documented take of 20 leatherback turtles and mortality of four leatherback turtles. If observer reports or other information indicate that this incidental is met or exceeded, consultation must be reinitiated, and the AA may require additional or more stringent conservation measures. Requirements The definitions in 50 CFR 217.12 are applicable to this action, as are all relevant provisions in 50 CFR parts 217, 222 and 227. The term ``leatherback conservation zone'' means 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.). NMFS hereby notifies owners and operators of shrimp trawlers in the leatherback conservation zone that short-term closures in specific areas may be required to protect endangered leatherback turtles. Weekly aerial surveys will be conducted from northern Florida through the North Carolina-Virginia border. If sightings of leatherback turtles during such surveys exceed 10 animals per 50 nautical miles (nm) of trackline, the survey will be replicated within 12 hours, or as soon as practicable, to ensure that leatherback turtle presence is persistent in the area. If surveys demonstrate the continued presence of large concentrations of leatherbacks, NMFS will temporarily close these specific areas to 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 as described below. 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, in accordance with 50 CFR 227.72(e)(6)(v)(A) through (F). If requested, they must carry a NMFS-approved observer on board such vessel(s). A shrimp trawler in the leatherback conservation zone must comply with the terms and conditions accompanied by any such request as well as provide information on trawling hours, gear modifications and turtle captures. Specific area closures will be announced in the Federal Register, on the NOAA weather channel, and in newspapers and other media. Shrimp trawlers in the leatherback conservation zone are responsible for monitoring the NOAA weather channel for closure announcements. Shrimp trawlers may also call (813) 893-3163 for updated area closure information. Closure will take effect upon public filing with the Federal Register. NMFS-Approved TEDs With Escape Openings Large Enough for Leatherback Sea Turtles NMFS previously approved the Taylor TED, two modifications to the Morrison TED, and a modification to the single-grid hard TED that will allow leatherback turtles to escape the trawl. Descriptions of the Taylor TED and the Morrison modifications were published on May 17, 1993 (58 FR 28795), and a description of the modified single-grid hard TED was published on May 18, 1994 (59 FR 25827). Additional Sea Turtle Conservation Measures NMFS anticipates that shrimp trawlers may continue to interact with leatherback turtles throughout the summer. As necessary, the AA may extend, for additional 30-day periods, the restrictions described in this temporary rule through notification in the Federal Register. In addition, the AA may modify, at any time, the requirements of this action through notification in the Federal Register, to ensure adequate protection of endangered and threatened sea turtles. Under this procedure, the AA will impose any necessary additional or more stringent measures if NMFS determines that shrimp trawlers are having a significant adverse effect on sea turtles. For example, if monitoring to assess turtle mortality indicates that the incidental take level is approaching the level established by the biological opinion for this action issued under section 7 of the ESA, the AA may modify or add conservation measures to protect leatherback sea turtles. That level is 20 documented takes, including four by mortality of leatherback turtles. If the incidental take level is met or exceeded, if significant or unanticipated levels of lethal or nonlethal takings or strandings occur that are associated with fishing activities in the leatherback conservation zone, or if there is significant non- compliance with this action, additional measures may be imposed. Additional restrictions may include closing the entire leatherback conservation zone to all shrimping. Classification The AA has determined that this action is necessary to respond to an emergency situation to conserve and provide adequate protection for leatherback turtles. This action is consistent with the ESA and other applicable law. Because neither section 553 of the Administrative Procedures Act (APA) or any other law requires that a general notice of proposed rulemaking be published for this action, under section 503(b) of the Regulatory Flexibility Act, an initial regulatory flexibility analysis is not required. It has been determined that this rule is not significant for purposes of E.O. 12866. This action allows the AA to establish a registration program as authorized by the final rule (57 FR 57348, December 4, 1992), codified at 50 CFR 227.72(e)(6)(iv). Such a program contains a collection-of- information requirement subject to the Paperwork Reduction Act (PRA), namely, registration by vessels fishing in the leatherback conservation zone from Cape Canaveral, FL., 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 APA, the AA finds that there is good cause to take this action without notice and opportunity for comment. It is impracticable and contrary to the public interest because relatively high levels of leatherback turtle abundance have been reported recently in Florida, and closures and/or restrictions may need to be imposed quickly. The action announced by this notice 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 none received on a temporary rule that was effective from April 29, 1994 through May 31, 1994 (59 FR 23169, May 5, 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 required 30-day delay in effective date for this action. Advance preparation is not necessary to monitor the NOAA weather radio. While time may be needed to procure a Taylor TED or make the appropriate modifications to the Morrison TED, restricted ares will be relatively small in size and shrimp trawlers should be able to operate in other areas with existing gear. The AA prepared an Environmental Assessment (EA) for the final rule (57 FR 57348, December 4, 1992). A supplemental EA prepared specifically for this action concludes that, with specified mitigation measures, this action will have no significant impact on the human environment. Dated: June 1, 1994. Charles Karnella, Acting Program Management Officer, National Marine Fisheries Service. [FR Doc. 94-13851 Filed 6-3-94; 1:06 pm] BILLING CODE 3510-22-F