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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [I.D. 061101H]

# AGENCY:

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

# ACTION:

Notice of availability.

# SUMMARY:

NMFS has received an application for an incidental take permit (ITP) from the North Carolina Division of Marine Fisheries (NCDMF) pursuant to the Endangered Species Act of 1973, as amended (ESA).  As required by the ESA, NCDMF’s application includes a conservation plan (Plan) designed to minimize and mitigate any such take of endangered or threatened species.  The Permit application is for the incidental take of ESA-listed adult and juvenile sea turtles associated with commercial shrimp trawling without the use of a turtle excluder device (TED) off the coast of North Carolina from Browns Inlet to Rich Inlet due to high concentrations of algae which clog shrimp trawls and TEDs.  The duration of the requested ITP is for 5 years.  NMFS also announces the availability of a draft environmental assessment (EA) for the permit application.  NMFS is furnishing this notice in order to allow other agencies and the public an opportunity to review and comment on these documents.  All comments received will become part of the public record and will be available for review pursuant to the ESA.

# DATES:

                        Written comments from interested parties on the Permit application, Plan, and draft EA must be received at the appropriate address or fax number (see                         **ADDRESSES**                        ) no later than 5 p.m. Eastern Daylight Time on July 18, 2001.                    

# ADDRESSES:

Written 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:

Robert Hoffman (ph. 727-570-5312, fax 727-570-5517, e-mail robert.hoffman@noaa.gov), or Barbara A. Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail Barbara.Schroeder@noaa.gov).  Comments received will also be available for public inspection, by appointment, during normal business hours by calling 301-713-1401.

# SUPPLEMENTARY INFORMATION:

Section 9 of the ESA and Federal regulations prohibit the “taking” of a species listed as endangered or threatened.  The term “take” is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.  NMFS may issue permits, under limited circumstances, to take listed species incidental to, and not the purpose of, otherwise lawful activities.  NMFS regulations governing permits for threatened and endangered species are promulgated at 50 CFR 222.307.

## Species Covered in this Notice

                    The following species are included in the Plan and ITP application: Loggerhead (                    *Caretta caretta*), green (                    *Chelonia mydas*), leatherback (                    *Dermochelys coriacea*), hawksbill (                    *Eretmochelys imbricata*), and Kemp’s ridley (                    *Lepidochelys kempii*) sea turtles.                

## Background

On January 31, 2001, NCDMF submitted an application to NMFS to renew ESA section 10 (a)(1)(B) permit 1008 issued to the state of North Carolina.  The previous permit had expired December 31, 2000 and had been issued for the years 1996-2000 to replace NMFS emergency rules which were issued from 1992 through 1995.  That permit and those emergency rules allowed limited tow times in lieu of the use of TEDs in a 1-mile by approximately 30-mile long area off the North Carolina coast from Browns Inlet to Rich Inlet because of high concentrations of algae which clog shrimp trawl nets and TEDs.  The bottom between Rich and Browns Inlets consists of scattered rocks, sea grasses, and concentrations of algae.

                    With the institution of Federal regulations requiring the use of TEDs in shrimp trawls, problems developed in this area with algae frequently clogging TEDs rendering them useless in releasing turtles and filling the trawls with algae from the TEDs forward.  In this particular area shrimpers must harvest the algae in order to catch the shrimp that inhabit it.  TED use in these circumstances is impractical because they clog or exclude a large portion of the algae.  The season for shrimp trawling activity in this area varies from year to year depending on shrimp abundance.  During the 1996-1999 fishing seasons, permit 1008 allowed                           ( print page 32792)                        the use of tow times rather than TEDs.  In order to obtain this permit, the NCDMF agreed to monitor fishing activities in the described area to ensure compliance with tow-time requirements.  The Fisheries Director of North Carolina is empowered to issue proclamations by which the Director is able to implement restrictions on fisheries activities.  In compliance with permit 1008, the Director issued a series of such proclamations dealing with the described area.  These proclamations required vessels to obtain a tow-time permit from the NCDMF if they wished to work without TEDs, and allowed a maximum tow time of 55 minutes from April 1 to October 31 and 75 minutes from November 1 through November 30.                

In the years 1992-1999, 43, 21, 28, 18, 38, 20, 20, and 14 vessels, respectively, were issued permits for the exemption from the use of TEDs.  The TED exemption was not implemented by NCDMF in 2000 because algae concentrations were low, allowing fishermen to work effectively with their TEDs installed.  Observations by NCDMF Marine Patrol personnel indicate a range from zero to over 30 vessels may be working in this area at any one time and that effort is concentrated in the early morning to early afternoon period.

A condition of the pervious permit 1008 was the required use of onboard observers on 5 percent of the trips made while tow times were allowed.  This was accomplished for all years except 1996 when slightly more than 3 percent of the trips were covered by observers.  There were 204 tow time restricted tows in the described area that were monitored by onboard observers during the 1996-1999 period.  Nine loggerheads were captured during these tows and all were reported released in good condition.  Analysis of log book entries for this area during this time period shows that 58 turtles were taken in 3591 tows.  All were identified by the fishermen as loggerheads and were released in good condition, although one turtle required resuscitation.

The North Carolina restricted area is contained within Onslow and Pender Counties.  It is believed that any sea turtles potentially killed incidental to shrimp trawling operations in the described area would have a relatively high chance of stranding along the shoreline of the described area, longshore currents notwithstanding, because of the close proximity of trawling activity to shore (usually within 0.5 nm).  NMFS’ review of the sea turtle standings in the described area in 1992 indicated no observed or confirmed sea turtle mortalities associated with shrimp trawling.  Ten turtles were stranded in the described area in 1994; half were stranded in April and May.  Twenty-six turtles were stranded in the area in 1995.  Again, 50 percent were found in April and May.  In both years, the majority of standings took place prior to the seasonal authorization to fish without TEDs.  Stranding data from the described area for 1996-1999 shows that for the entire four-year period, 78 turtles stranded with 21 (27 percent) of those occurring during tow time use and 59 (73 percent) occurring when tow times were not in effect.  Of the 21 strandings occurring during the use of tow times, 16 were loggerheads, 3 were Kemp’s ridleys, and 1 each was a green and a leatherback sea turtle.

## Conservation Plan

The conservation plan prepared by NCDMF describes measures designed to monitor, minimize, and mitigate the incidental takes of ESA-listed sea turtles, as a result of shrimp trawling in the above-described area without the use of a TED.

                    As part of the new permit application, the NCDMF proposes that the Director would issue proclamations allowing the use of tow times in lieu of TEDs for the described area between April 1 and November 30.  Approximately 45 fishermen with extensive local knowledge of this area may participate in this fishery, and could be authorized under this new permit.  The NCDMF proposes that tow times be 55 minutes from the date of the proclamation to October 31 and 75 minutes from November 1 to November 30.  Tow times are measured from the time the trawl doors enter the water until the time they are removed from the water and correspond to the tow times of 40 minutes bottom time in the summer months and 60 minutes during colder months as recommended by the National Academy of Science (1990) in “                    *Decline of the Sea Turtles: Causes and Prevention*.”  The state will issue individual permits to fishermen allowing them to use tow time restrictions instead of TEDs.  The state-issued tow-time permits would be required to identify each vessel working without TEDs and to monitor activity in the area.  Individuals would have to obtain this state permit from NCDMF prior to beginning operations without TEDs.  This permit and the associated proclamations would contain conditions to protect sea turtles while using tow times in lieu of TEDs.  Enforcement surveillance would be primarily conducted from the beach as the activity is visible from the shore and it is difficult for the vessels to determine when they are being observed.  Other enforcement observations would be made from NCDMF’s aircraft and vessels.                

For the new permit the NCDMF proposes to monitor mortalities of sea turtles in the area through stranding records collected by the NC Wildlife Resources Commission stranding network, rather than through onboard observers, as required in permit 1008.  The NCDMF does not have funding for onboard observers for this activity.  NMFS provided funding for observers for the previous permit.  Stranding records during the period 1992-1995 for the tow time area ranged between 10 and 26 loggerheads per year and one green turtle for the entire period; however, the majority of standings took place prior to the issuance of tow-time permits.  The NCDMF proposes to terminate or modify the tow-time permits if standings in the described area during times when tow times are in use exceed ten turtles in aggregate of Kemp’s ridley, hawksbill, green or leatherback sea turtles or 40 loggerhead turtles.

A permit with a duration of 5 years is being requested.  The activities that fall under the permit will take place each year from April 1 through November 30 with tow times being permitted by the issuance of a proclamation from the Director.  The Director issues the proclamation after consultation with staff and industry representatives who observe algae concentrations.  The industry utilizes tow times as a last resort because they would rather use TEDs to avoid frequent haul-back of their gear.  Proclamations would be issued and tow times initiated only when algae concentrations prevent the use of TEDs.  There were years under the previous permit, such as 2000, when tow times were not instituted because algae concentrations were low.

                    The NCDMF knows of no measures to prevent takes of sea turtles in this area during the use of tow times.  Past experience has indicated that attempting to use TEDs during periods of high algae concentration renders TEDs inoperable leading to incidental takes of turtles.  An alternative action considered by NCDMF was not to apply for a permit; however, the experience of fishermen in this area has shown that when algal concentrations are heavy, both the TEDs and the nets clog to the extent that they no longer function.  This would not protect sea turtles nor would it allow the shrimp fishery to continue in this area.  NCDMF is proposing to limit the use of tow-time limitations instead of TEDs from Browns Inlet to Rich Inlet, North Carolina, such that the                           ( print page 32793)                        incidental impacts on ESA-listed sea turtles will be minimized.  NCDMF would use a variety of adaptive fishery management measures and restrictions through their state proclamation authority to reduce sea turtle mortality.                

The EA package includes a draft EA and a draft Finding of No Significant Impact (FONSI) which concludes that issuing the incidental take permit is not a major Federal action significantly affecting the quality of the human environment, within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, as amended.  Three Federal action alternatives have been analyzed in the EA, including:  (1) the no action alternative (deny the ITP); (2) issue the ITP; and (3) close this area to shrimp fishing.

                    This notice is provided pursuant to section 10(c) of the ESA and the NEPA regulations (40 CFR 1506.6).  NMFS will evaluate the application, associated documents, and comments submitted thereof to determine whether the application meets the requirements of the NEPA regulations and section 10 (a) of the ESA.  If it is determined that the requirements are met, a permit will be issued for incidental takes of ESA-listed sea turtles under the jurisdiction of NMFS.  The final NEPA and permit determinations will not be completed until after the end of the 30-day comment period and will fully consider all public comments received during the comment period.  NMFS will publish a record of its final action in the                     **Federal Register**                    .                

Dated: June 11, 2001.

Phil Williams,

Acting Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 01-15195 Filed 6-15-01; 8:45 am]

BILLING CODE  3510-22-S