31500 Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2).

Accordingly, under the authority of 5

U.S.C. 301; Sec. 205(c), 63 Stat. 390, as

amended, 40 U.S.C. 486(c), 48 CFR

Chapter 15 is amended as follows:

List of Subjects in 48 CFR Part 1516 and

1552

Government procurement.

1. The authority citation for part 1516

continues to read as follows:

Authority: Sec. 205(c), 63 Stat. 390, as

amended, 40 U.S.C. 486(c).

2. Section 1516.405 is amended by

revising paragraph (a) as follows:

1516.405 Contract clauses.

(a) The Contracting Officer shall insert

the clause at 1552.216–70, Award fee

(May 2000), in solicitations and

contracts where a cost-plus-award-fee

contract is contemplated.

* * * * *

3. The authority citation for part 1552

continues to read as follows:

Authority: Sec. 205(c), 63 Stat. 390, as

amended, 40 U.S.C. 486(c).

4. Section 1552.216–70 is amended by

revising the prescription date from

(SEPT 1995) to (May 2000), and revising

paragraph (b) to read as follows:

1552.216–70 Award fee.

* * * * *

(b) Award fee determinations made by

the Government under this contract are

unilaterally determined by the Fee

Determination Official (FDO). The

amount of the award fee to be paid is

determined by the Government’s

judgmental evaluation of the

contractor’s performance in terms of the

criteria stated in the contract. This

determination and the methodology for

determining the award fee are unilateral

decisions made solely at the discretion

of the Government.

* * * * *

Dated: April 28, 2000.

Betty L. Bailey,

Director, Office of Acquisition Management.

[FR Doc. 00–12022 Filed 5–17–00; 8:45 am]

BILLING CODE 6560–50–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 222 and 223

[Docket No. 000511138–0138–01; I.D.

051100B]

RIN 0648–A019

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 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. The

closed area includes all Atlantic Ocean

waters between Cape Hatteras and 38°

N. latitude (near the Virginia-Maryland

border), west of 75° W. longitude, and

a specified part of Chesapeake Bay.

NMFS is taking this action because of its

determination that gillnet fishing with

large-mesh gillnets 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) along the

eastern coast of North Carolina. This

action is necessary to protect threatened

and endangered turtles from being taken

by large-mesh gillnets along the North

Carolina and Virginia coasts during

their northern migration.

DATES: This action is effective from May

12, 2000 through June 12, 2000.

Comments on this action are requested,

and must be received at the appropriate

address or fax number (ADDRESSES) by

no later than 5 p.m., eastern daylight

time, on June 12, 2000.

ADDRESSES: Written comments on this

action should be addressed to the Chief,

Endangered Species Division, Office of

Protected Resources, NMFS, 1315 EastWest 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.Oravetz@noaa.gov), or Barbara A.

Schroeder (ph. 301–713–1401, fax 301–

713–0376, e-mail

Barbara.Schroeder@noaa.gov).

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

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 spring. There have been two

stranding events involving

unprecedented numbers of turtles, along

the Outer Banks in Dare and Hyde

counties.

During the first stranding event, a

total of 71 turtles (69 loggerheads and 2

Kemp’s ridleys) washed ashore on the

ocean-facing beaches between Rodanthe

and Ocracoke from April 14–17, 2000.

There were no externally obvious signs

of death on the turtles. Necropsies

revealed that the turtles had excellent

fat stores and were probably in good

health prior to their deaths. A few of the

turtles had been feeding on nearshore,

benthic species, but most had empty

guts, suggesting that they were in a

migratory, rather than foraging, mode.

The uniform state of decomposition of

the turtles indicated that they had likely

all died suddenly within a short period

of time, probably no more than a few

days before stranding on the beach.

Large amounts of sargassum weed blew

ashore, coincident with the turtle

strandings, and indicative of the

Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations 31501

movement of warm Gulf Stream waters

close to shore.

NMFS began investigating possible

causes of the sea turtle mortality event

immediately. The absence of other

species in the die-off was inconsistent

with a toxic algae bloom. Also, there

were no major traumatic injuries such as

might be caused by dredging or blasting.

None of the turtles had ingested any

fishing hooks. NMFS, therefore, turned

attention to activities that could drown

large numbers of turtles, such as net

fishing. There was no trawl fishing

activity in the area at the time, and

gillnetting was reportedly light,

although there was some activity for

dogfish nearshore. Monkfish gillnetting

was reported to be over in the area, but

NMFS subsequently learned that

gillnetters continued landing monkfish

in North Carolina through the end of

April. Gillnetting therefore was the most

likely cause of this stranding event. Sea

turtles are vulnerable to entanglement in

gillnets and can drown in under an hour

of forced submergence.

Oceanographic conditions probably

played a role in concentrating the sea

turtles off the Outer Banks. Loggerhead

and Kemp’s ridley turtles are known to

use summer foraging grounds along the

mid-Atlantic and northeast seaboard.

For many turtles, their spring migrations

to these feeding grounds from wintering

areas along the southeastern U.S. or

from warm offshore waters will bring

them near Cape Hatteras. The warm

Gulf Stream flows southwest to

northeast past Cape Hatteras. The exact

position of the Gulf Stream in this area

can be highly variable week-to-week,

and its position, along with local winds

and counterclockwise warm-water

currents from the Gulf Stream can

strongly affect the coastal waters. This

spring, the Gulf Stream has come quite

close to Cape Hatteras: only 10 to 15

nautical miles. As usual, the coastal

water inshore of the Gulf Stream has

been strongly affected by eddies off the

Gulf Stream. Around the time of this

first stranding event, warm eddies

brought water up to 20 °C (68 °F) ashore

along Ocracoke and Hatteras Islands,

while coastal waters farther to the north

were still cold (less than 14 °C),

deterring turtles from proceeding

northward up the coast. The warm eddy

allowed turtles to move inshore where

they were vulnerable to coastal fisheries

and where they were more likely to

strand. Onshore winds that began on

April 14 likely pushed the carcasses

ashore. Immediately after this stranding

event, cold water pushed in from the

north around Cape Hatteras, replacing

the warm eddy waters. Sea turtles were

forced back offshore to find warmer

water. While cold water prevailed along

the coast, the strandings were greatly

diminished.

A second stranding event began on

May 3. From May 3–8, approximately

209 additional sea turtles (3 Kemp’s

ridleys, the rest loggerheads) were found

dead on ocean beaches between Oregon

Inlet and Hatteras Inlet. Virtually all

were severely decomposed, suggesting

that they had been dead at sea for at

least several days before stranding. The

sheer numbers and the advanced

decomposition of these animals

preclude meaningful necropsies. Those

carcasses that have been scanned with

a magnetometer have not contained any

hooks. Four of the carcasses were

entangled in fishing gear: Three

loggerheads carried pieces of gillnet

with a mesh size of 12 inches (30.48 cm)

stretched, and one loggerhead was

carrying gillnet with a mesh size of 10

inches (25.4 cm) stretched.

Oceanographic conditions were again

a factor in this wave of strandings. Cold

water lay along the North Carolina coast

all the way to Cape Lookout through the

end of April. Sea turtles can tolerate

water temperatures down to about 10

°C, but with warm water (greater than 20

°C) only 15 to 20 nm offshore, they

likely would have remained in or near

the 20 °C thermal front. Satellite

imagery showed a small tongue of warm

water curling back towards the coast

from the Gulf Stream, about 15 nautical

miles east of Avon, on April 30. This

tongue of warm water slowly grew and

extended westward until it hit the North

Carolina coast between Avon and

Rodanthe on May 3, the day the turtle

carcasses washed ashore. Because the

satellite imagery so clearly shows a

distinct water mass moving in from

offshore at the exact place and time that

the strandings started, it is clear that the

turtles also died offshore, perhaps as

much as a week before they stranded,

and were then brought ashore by that

water mass. 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 are only consistent with gillnets

for monkfish. Again, there was no

evidence that the turtles had been

hooked.

Analysis of Other Factors

Examination of the strandings on the

Outer Banks indicates that the most

likely source of sea turtle mortality is

large-mesh gillnetting for monkfish and

possibly dogfish. Other possible causes

are not consistent with the nature of the

strandings. Satellite sea surface

temperature information has allowed

NMFS to reconstruct the likely times

and locations of the sea turtle mortality.

Gillnetting for dogfish and monkfish

have been the active fisheries in those

times and places. These fisheries deploy

thousands of yards/meters of gillnets

and have very long soak times, ranging

from overnight to several days. Largemesh gillnets are known to be highly

effective at catching turtles and in fact

were the gear of choice during the

historical sea turtle fishery. Bluefish

gillnetting was also active in offshore

waters at the time of the second

mortality event. The bluefish fishery,

however, uses smaller-mesh nets (51⁄2

inches/13.97 cm), much less net per

boat, and much shorter soak times (less

than an hour to several hours) than the

large-mesh gillnet fisheries. While

bluefish gillnets can catch and drown

turtles, these fishing characteristics

make bluefish gillnetting a smaller

threat to sea turtles.

Impacts on Sea Turtles

The number of dead turtles in these

two stranding events is unprecedented.

The 10-year stranding average (1989–98)

for the entire state of North Carolina for

loggerheads is 219 per year; in contrast,

approximately 290 have stranded in just

these two events. Springtime strandings

in Dare and Hyde counties, North

Carolina, however, are not unusual.

Historically, there has been a small

spike in turtle strandings in statistical

zone 35, which generally corresponds to

those two counties, as the northmigrating turtles encountered coastal

fisheries. In recent years, the number of

stranded turtles, particularly

loggerheads, has grown. In 1997 and

1998, a total of 34 and 26 loggerheads

stranded in Zone 35 in May and the first

2 weeks of June. The strandings

increased dramatically in 1999, to a

total of 86 loggerheads for that same

period. That stranding level was itself a

record. NMFS believes that these

increases in mortality are the result of

increased fishing effort, a shift of fishing

effort later into the season, fishing

methods that are more lethal to sea

turtles, and, this year, oceanographic

conditions that likely concentrated sea

turtles off Cape Hatteras.

Strandings are a minimum indicator

of at-sea mortality as winds and currents

will carry many carcasses offshore. The

turtles involved in the second stranding

event likely were killed 10–20 nm

offshore and only reached shore because

a warm eddy broke off. Other turtles

that may have died before the eddy

formed likely were swept out to sea by

the Gulf Stream.

31502 Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations

This extreme increase in loggerhead

mortality may pose a serious threat to

the species’ recovery, especially as the

mortality has occurred at a choke point

in these turtles’ migration to their

summer foraging grounds. Most

loggerheads in U.S. waters come from

one of two genetically distinct nesting

populations. The population that nests

in south Florida is much larger and has

shown increases in nesting. The

northern population that nests from

northeast Florida through North

Carolina is much smaller and nesting

numbers are stable or declining.

Previous studies suggest that up to half

of the turtles stranded in North Carolina

would be from the smaller, northern

population. The overwhelming number

of stranded turtles has precluded a full

analysis of the sizes of the affected

animals, but preliminary data suggest

that they had a representative

distribution, ranging from immatures to

adults.

Continued Threat to Sea Turtles

Historical data show that increases in

sea turtle strandings move south-tonorth up the mid-Atlantic coast in May

and June, as the migratory turtles arrive.

Virginia has shown seasonal pulses in

sea turtle strandings which could be

magnified if the stranding trend in

North Carolina continues northward.

Strandings in Virginia are always the

highest in the month of June, and the

stranding reports for zone 36 (36-37° N.

latitude) and zone 37 (37–38° N. latitude

[approximately the Virginia-Maryland

border]) combined have shown a

definite increase in strandings in the

past several years. For example,

strandings in June of 1994 were

recorded to be 62 animals in zones 36

and 37 combined, 81 were found in

1995, 64 in 1996, 145 in 1997, 161 in

1998, and 157 in 1999. A total of 230

dead sea turtles stranded in Virginia in

1999, including 200 loggerheads, 18

Kemp’s ridleys, 6 leatherbacks and 6

unidentified turtles. Most of the

strandings in Virginia have been

documented from the ocean beaches

south of Cape Henry and the inshore

beaches in southern Chesapeake Bay.

Relatively few strandings are reported

from the remote and sparsely populated

barrier islands of the Eastern Shore.

Based on past data, NMFS anticipates

an increase in strandings in Virginia

during late May and June with the

migration of turtles up the Atlantic

coast. Given the unusually high level of

strandings in North Carolina this year

and the increasing trend in strandings in

recent years in Virginia, it is critical that

action be implemented to reduce the

likelihood that interactions with fishing

gear will result in additional mortalities

of sea turtles. Several large-mesh gillnet

fisheries–monkfish, smooth dogfish, and

black drum–are currently operating in

Atlantic waters off Virginia and in

Chesapeake Bay.

The coastal waters north of Cape

Hatteras have warmed rapidly since

May 3, and sea turtles are now moving

northward toward Virginia. In fact, an

aerial survey flown May 6 between the

Virginia border and Cape Hatteras,

approximately 5 nm offshore, sighted 30

turtles that are already north of Oregon

Inlet. South of Oregon Inlet, where the

strandings have been occurring, only 3

turtles were sighted. The waters to the

north and farther offshore have not been

surveyed, but it is clear that turtles are

already entering waters off Virginia. No

major stranding event has occurred in

Virginia yet, but as the turtles continue

their northward migration, they will

continue to be vulnerable to coastal and

offshore large-mesh gillnet fisheries.

The turtles will likely still be

concentrated on their migratory routes

over the next weeks, until they disperse

over their foraging grounds. Gillnet

fisheries in the path of the migration can

capture and kill large numbers of turtles

and possibly disrupt other turtles from

reaching important feeding areas.

Further mortality, added to the already

record-setting number of strandings,

along with the undetected at-sea

mortality, could be extremely damaging

to loggerheads, particularly the nonrecovering northern population.

Closure of Large-Mesh Gillnet Fishing

Pursuant to 50 CFR 223.206(d)(4), the

exemption for incidental taking of sea

turtles in 50 CFR 223.206(d)(1) does not

authorize incidental takings during

fishing activities if the takings may be

likely to jeopardize the continued

existence of a species listed under the

ESA. Regulations at 50 CFR

223.206(d)(4) provide that the Assistant

Administrator for Fisheries, NOAA,

(AA) may issue a determination that

incidental takings in the course of

fishing activities are unauthorized, and

specify procedures that the AA may use

to impose additional restrictions to

conserve listed sea turtles and prevent

such takings. The level of mortality

suffered by loggerhead turtles this

spring off eastern North Carolina is

already unprecedented and is severely

impacting the northern nesting

population of loggerheads. Continued

mortality caused by incidental capture

in large-mesh gillnets during loggerhead

migrations along the mid-Atlantic coast

could significantly affect this

population and its ability to recover and

may be likely to jeopardize the species.

Therefore, the AA issues this

determination that takings of threatened

or endangered sea turtles by large-mesh

gillnetters in mid-Atlantic waters along

eastern North Carolina and Virginia are

unauthorized and issues this additional

restriction on fishing activities to

conserve threatened and endangered sea

turtles, particularly loggerhead turtles.

Specifically, the AA closes the Atlantic

Ocean waters of North Carolina and

Virginia and in the mouth of the

Chesapeake Bay to all fishing with

gillnets with a stretched mesh size of 6

inches (15.24 cm) or greater. The closed

area includes all offshore waters

bounded by 35°13′ N. latitude on the

south (approximately Cape Hatteras),

38° N. latitude on the north (just south

of the Maryland-Virginia border), 75° W.

longitude on the east, and the North

Carolina and Virginia coasts on the

west. At inlets, the western boundary of

the closed area is the COLREGS

demarcation line, except in Chesapeake

Bay, where the closed area includes the

waters contained in the regulated

navigation area for Chesapeake Bay

entrance and Hampton Roads, Va. and

adjacent waters (as defined at 33 CFR

165.501(a)) that are east of the

southeastern span of the Hampton

Roads Bridge-Tunnel and the line

connecting Old Point Comfort Light and

Fort Wool Light. This closure is

effective from May 12, 2000 through

11:59 p.m. (local time) June 12, 2000.

For the duration of this closure, no

gillnet with a stretched mesh size

measuring 6 inches (15.24 cm) or greater

may be set in the closed area. All such

gillnets that are currently set must be

retrieved by 11:59 p.m on May 15, 2000. 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

effectiveness of these conservation

measures.

Classification

This action has been determined to be

not significant for purposes of Executive

Order 12866.

The AA has determined that this

action is necessary to respond to an

emergency situation to provide adequate

protection for endangered and

Federal Register / Vol. 65, No. 97 / Thursday, May 18, 2000 / Rules and Regulations 31503

threatened sea turtles, primarily the

loggerhead sea 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 the procedures allowing

the implementation of temporary

measures to protect sea turtles 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 May

12, 2000 through June 12, 2000.

Immediately, no gillnets with a

stretched mesh size measuring 6′′

(15.24cm) or greater may be set in the

closed area. The rule provides sufficient

time—over one day—to retrieve all nets

set previously. 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).

Authority: 16 U.S.C. 1531.

Dated: May 12, 2000.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 00–12396 Filed 5–12–00; 4:44 pm]

BILLING CODE 3510–22–F