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###### Department of Commerce

###### National Oceanic and Atmospheric Administration 

          - 50 CFR Parts 222 and 223 
          - [Docket No. 000519147-0147-01; I.D. 051800C] 
          - RIN 0648-AO22 

# AGENCY:

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

# ACTION:

Temporary rule; request for comments. 

# SUMMARY:

NMFS is closing, for a 2 week period, all inshore waters and offshore waters out to 10 nautical miles (nm) (18.5 km) seaward of the COLREGS demarcation line, bounded by 32° N. lat. (approximately Tybee Island, Georgia) and 34° N. lat. (approximately Wilmington Beach, North Carolina) within the Leatherback Conservation Zone, to fishing by shrimp trawlers required to have a turtle excluder device (TED) installed in each net that is rigged for fishing, unless the TED has an escape opening large enough to exclude leatherback turtles, as specified in the regulations. This action is necessary to reduce mortality of endangered leatherback sea turtles incidentally captured in shrimp trawls. 

# DATES:

This action is effective from May 19, 2000 through 11:59 p.m. (local time) on June 2, 2000. 

# ADDRESSES:

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, (727) 570-5312, (ph.                               ( print page 33780)                            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).                     

For assistance in modifying TED escape openings to exclude leatherback sea turtles, fishermen may contact gear specialists at the NMFS, Pascagoula, MS laboratory by phone (228) 762-4591 or fax (228) 769-8699. 

# SUPPLEMENTARY INFORMATION:

Prohibitions to taking sea turtles are governed by regulations implementing the Endangered Species Act at 50 CFR parts 222 and 223. The incidental take of turtles during shrimp 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 pursuant to sea turtle conservation regulations at 50 CFR 223.206, which include a requirement that shrimp trawlers have a NMFS-approved TED installed in each net rigged for fishing. The use of TEDs significantly reduces mortality 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. 

Through a final rule (60 FR 47713 September 14, 1995), NMFS established regulations to provide protection for leatherback turtles when they occur in locally high densities during their annual, spring northward migration along the Atlantic seaboard. Within the Leatherback Conservation Zone, NMFS may close an area for 2 weeks when leatherback sightings exceed 10 animals per 50 nm (92.6 km) during repeated aerial surveys pursuant to § 223.206(d)(2)(iv)(A) through (C). 

An aerial survey conducted on May 12, 2000, along the South Carolina coast documented 14 leatherback turtles over a total survey trackline of approximately 39.7 nm (73.6 km). The survey trackline was flown in a northeasterly direction commencing approximately 1 nm (1.9 km) offshore of Bull's Island (32°55′ N. lat., 080°39′ W. long.) and terminating approximately 1 nm (1.9 km) off of Winyah Bay (33°13′ N. lat., 080°11′ W. long.). A replicate survey conducted on May 16, 2000 sighted 12 leatherbacks in 46 nm (85.2 km) of trackline. This survey was flown in a northeasterly direction commencing approximately 1 nm (1.9 km) offshore of Isle of Palms (32°46′ N. lat., 080°46′ W. long.) and terminating approximately 1 nm (1.9 km) offshore of North Island (33°15′ N. lat., 080°11′ W. long.). Fishing effort appeared heavy at the time of the survey. One hundred and sixteen vessels (77 underway shrimp trawlers) were observed during the survey of the South Carolina coast. 

The Assistant Administrator for Fisheries, NOAA (AA), has determined that all inshore waters and offshore waters within 10 nm (18.5 km) seaward of the COLREGS demarcation line, bounded by 32° N. lat. and 34° N. lat., within the Leatherback Conservation Zone are closed to fishing by shrimp trawlers required to have a TED installed in each net that is rigged for fishing, unless the TED installed has an escape opening large enough to exclude leatherback turtles, meeting the specifications at 50 CFR 223.207(a)(7)(ii)(B) or 223.207(c)(1)(iv)(B). These regulations specify modifications that can be made to either single-grid hard TEDs or Parker soft TEDs to allow leatherbacks to escape. 

The regulations at 50 CFR 223.206(d)(2)(iv) also state that fishermen operating in the closed area with TEDs modified to exclude leatherback turtles must notify the NMFS Southeast Regional Administrator of their intentions to fish in the closed area. This aspect of the regulations does not have a current Office of Management and Budget (OMB) control number, issued pursuant to the Paperwork Reduction Act. Consequently, fishermen are not required to notify the Regional Administrator prior to fishing in the closed area, but they must still meet the gear requirements. 

## Classification 

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

The AA is taking this action in accordance with the requirements of 50 CFR 223.206(d)(2)(iv) to provide protection for endangered leatherback sea turtles from incidental capture and drowning in shrimp trawls. Leatherback sea turtles are occurring in high concentrations in coastal waters in shrimp fishery statistical zones 32 and 33. This action allows shrimp fishing to continue in the affected area and informs fishermen of the gear changes that they can make to protect leatherback sea turtles. 

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 the necessary action in a timely manner to protect the endangered leatherback. Notice and opportunity to comment on the leatherback closure procedures was provided through the rulemaking establishing the closure procedures (60 FR 25663, May 12, 1995). 

                    Pursuant to 5 U.S.C. 553(d)(3), the AA finds that there is good cause not to delay the effective date of this rule for 30 days. It would be contrary to the public interest to delay this action because such delay would prevent the agency from implementing the necessary action in a timely manner to protect the endangered leatherback. Accordingly, the AA is making the rule effective May 19, 2000 through June 2, 2000. This closure has been announced on the NOAA weather channel, in newspapers, and other media. Shrimp trawlers may also call (727) 570-5312 for updated area closure information. 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 requiring TED use in shrimp trawls and the regulatory framework for the Leatherback Conservation Zone (60 FR 47713, September 14, 1995). Copies of the EA are available (see                     **ADDRESSES**                    ).                 

Dated: May 19, 2000. 

Penelope D. Dalton, 

Assistant Administrator for Fisheries, National Marine Fisheries Service. 

[FR Doc. 00-13092 Filed 5-19-00; 4:55 pm] 

BILLING CODE 3510-22-F