Notice of Availability of Draft Environmental Assessment on the Effects of Issuing an Incidental Take Permit No. 16230 to the North Carolina Division of Marine Fisheries for the Continued Operation of the North Carolina Inshore Gillnet Fishery, 42508-42510 [2013-17037]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 136 (Tuesday, July 16, 2013)]
[Notices]
[Pages 42508-42510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17037]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC289


Notice of Availability of Draft Environmental Assessment on the 
Effects of Issuing an Incidental Take Permit No. 16230 to the North 
Carolina Division of Marine Fisheries for the Continued Operation of 
the North Carolina Inshore Gillnet Fishery

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

ACTION: Notice of availability of a Draft Environmental Assessment; 
request for comments.

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SUMMARY: NMFS announces the availability of the ``Draft Environmental 
Assessment (EA) on the Effects of Issuing an Incidental Take Permit No. 
16230 to the North Carolina Division of Marine Fisheries for the 
Continued Operation of the North Carolina Inshore Gillnet Fishery''. 
Publication of this notice begins the official public comment period 
for this draft EA. Per the National Environmental Policy Act (NEPA), 
the purpose of the draft EA is to evaluate the potential direct, 
indirect, and cumulative impacts caused by the issuance of Permit No. 
16230 to North Carolina Division of Marine Fisheries (NCDMF) for the 
incidental take of threatened and endangered sea turtles during 
management of North Carolina inshore gillnet fisheries. All comments 
received will become part of the public record and will be available 
for review. An electronic copy of the revised application and proposed 
conservation plan may be obtained by contacting NMFS Office of 
Protected Resources (see FOR FURTHER INFORMATION CONTACT) or visiting 
the internet at www.nmfs.noaa.gov/pr/permits/esa_review.htm.

DATES: Submit comments on or before July 31, 2013.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2011-0231, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2011-0231, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Sara McNulty, Office of 
Protected Resources, 1315 East West Highway, 13th Floor, Silver Spring, 
MD 20910.
     Fax: 301-713-0376; Attn: Sara McNulty.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Sara McNulty (ph. 301-427-8402, email

[[Page 42509]]

Sara.McNulty@noaa.gov) or Kristy Long (ph. 301-427-8402, email 
Kristy.Long@noaa.gov).

SUPPLEMENTARY INFORMATION: Section 9 of the Endangered Species Act 
(ESA, 16 U.S.C. 1531 et seq.) 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. Section 10(a)(1)(B) of the ESA 
provides for authorizing incidental take of listed species. NMFS 
regulations governing permits for threatened and endangered species are 
published at 50 CFR 222.307.
    Since 2000, NMFS has issued four separate incidental take permits 
(ITP's) to NCDMF for the incidental take of sea turtles in inshore 
gillnet fisheries occurring in Pamlico Sound. Since 2006, incidental 
take of sea turtles has been documented in areas outside Pamlico Sound, 
which are not covered under an existing ITP. In 2010, the Duke 
Environmental Law and Policy Clinic filed suit against NCDMF and the 
North Carolina Marine Fisheries Commission on behalf of the Karen 
Beasley Sea Turtle Rescue and Rehabilitation Center for the illegal 
taking of sea turtles in state regulated inshore gillnet fisheries. As 
a result of the lawsuit and resulting settlement agreement, NCDMF has 
amended their commercial fishing regulations through Proclamations for 
their inshore gillnet fishery to minimize the incidental capture of sea 
turtles and subsequent discussions with NMFS.
    On June 14, 2010, the NCDMF submitted an application for an ITP to 
address sea turtle interactions with set gillnets in NC internal 
coastal waters. Based on comments from NMFS, a revised ITP application 
was submitted on August 17, 2011. On October 5, 2011 NMFS published a 
Notice of Receipt of the State's draft application in the Federal 
Register and made the application and conservation plan available for 
public review and comment for 30 days (76 FR 61670, October 5, 2011). 
Upon reviewing the public comments, NMFS requested for NCDMF to make 
several modifications to the application.
    On September 6, 2012, NCDMF submitted an amended application to 
NMFS. On October 31, 2012, NMFS published a second Notice of Receipt in 
the Federal Register and made the application and conservation plan 
available for public review and comment for 30 days (77 FR 65864, 
October 31, 2012). Public comments received during both comment periods 
have been summarized in the draft EA as part of the public scoping 
process.
    The EA analyzes the effects to the human and natural environment 
caused by the issuance of ITP No. 16230 to NCDMF for the incidental 
take of threatened and endangered sea turtles during management of 
North Carolina inshore gillnet fisheries. As required by regulations 
implementing section 10(a)(1)(B) of the ESA, the conservation plan 
must, based on the best scientific and commercial data available, 
specify:
     The impact which will likely result from the taking;
     How the applicant will minimize and mitigate those 
impacts, and the funding available to implement;
     What alternative actions the applicant considered, and why 
those actions are not being pursued;
     Other measures the Secretary of Commerce may require; and
     All sources of data relied on in preparing the plan.
    The conservation plan prepared by NCDMF describes measures designed 
to monitor, minimize, and mitigate the incidental take of ESA-listed 
sea turtles. The conservation plan includes managing inshore gill net 
fisheries by dividing estuarine waters into 6 management units (i.e., 
A, B, C, D1, D2, E). Each of the management units would be monitored 
seasonally and by fishery (i.e., large mesh and small mesh gillnet).

Alternatives Considered

    In preparing the draft EA, NMFS considered the following 3 
alternatives for the action.
    Alternative 1--No Action. Under the No Action alternative no ITP 
would be issued for the incidental take of sea turtles. NCDMF would not 
receive an exemption for the commercial inshore gillnet fishery from 
the ESA prohibitions against take.
    Alternative 2--Issue ITP as Requested in Application. Under 
Alternative 2, an ITP would be issued to exempt NCDMF from the ESA 
prohibition on taking sea turtles during the otherwise lawful 
commercial inshore gillnet fishery.
    Alternative 3 (Preferred)--Issue ITP as Requested in Application, 
with Modifications and Additional Requirements. Under Alternative 3, 
the ITP would be issued as described in Alternative 2, with 
modifications to the anticipated incidental take authorization and with 
additional monitoring and reporting requirements.

Environmental Consequences of Alternatives

    The draft EA presents the scientific and analytic basis for 
comparison of the direct, indirect, and cumulative effects of the 
alternatives. Regulations for implementing the provisions of NEPA (42 
U.S.C. 4331 et seq.) require considerations of both the context and 
intensity of a proposed action (40 CFR 1508.27). Each of the 
alternatives is expected to result in both live captures (non-lethal 
take) and mortalities (lethal take) of sea turtles. Although 
Alternative 1 is no action, or denial of the ITP request, in this 
analysis NMFS assumes that the status quo would largely be maintained 
for the fishery. No take authorization would be provided; however, it 
is likely that if the state continues to operate the fishery without an 
ITP, both live captures and mortalities would occur. For Alternatives 2 
and 3, incidental take of sea turtles would be authorized for both live 
captures and mortalities.
    Since 2005, the majority (78.2%) of all observed sea turtle 
incidental captures in North Carolina inshore gillnets have been 
released alive. However, it is expected that some proportion of the sea 
turtles that are released alive after capture in a gillnet will succumb 
to post-release mortality due the physiological effects of the capture, 
or they will experience a decreased ability to forage or migrate, which 
may make them more susceptible to re-capture within a short period of 
time.
    The expected mortalities that result from the operation of the 
North Carolina inshore gillnet fishery can be reasonably expected to 
impact recovery of the listed species in the wild by removing 
individuals and the potential for those individuals to reproduce in the 
future.
    NMFS is currently preparing a biological opinion, pursuant to 
section 7(b) of the ESA, evaluating the effects of the issuance of the 
ITP on listed species under NMFS purview. The biological opinion will 
conclude the potential impacts of the action and if the issuance of the 
ITP is likely to jeopardize the continued existence of any species of 
sea turtle.

Incidental Take of Other Species

    In consultation with the United States Fish and Wildlife Service, 
it was determined that the proposed action is not likely to adversely 
affect the West Indian manatee. Manatees are rare in North Carolina 
waters, and therefore it is not likely that any alternative would have 
a significant impact on manatees. Seabirds are susceptible to capture 
and drowning in the sink gillnets used in

[[Page 42510]]

North Carolina inshore waters; and, therefore, there may be some impact 
to sea birds from all of the alternatives.

Social and Economic Impacts

    Under the no action alternative, all large mesh gillnet fishing in 
Pamlico Sound in the fall of each year would be closed per NMFS 
regulations (CFR 223.206(d)(7)). Interactions and subsequent mortality 
of sea turtles in large mesh gillnet gear would be prevented in that 
area. Due to the seasonal nature of the flounder fishery, no fisherman 
is exclusively dependent on the flounder fishery, rather the 
participants are diversified into other fisheries, such as blue crab 
trap and gillnets in the ocean and other inshore areas for various 
target species. As such, the fall Pamlico Sound large mesh gillnet 
closure would not result in a total loss of revenue from the flounder 
fishery or for the participating fisherman.
    Under the no action alternative, NCDMF would not receive an 
exemption from the ESA prohibitions against take; therefore, any 
incidental takes of sea turtles resulting from the North Carolina 
commercial inshore gillnet fishery would not be exempted. If NCDMF 
continues to operate an inshore gillnet fishery without an ITP, and sea 
turtle takes continue to occur, both NCDMF and the individual fisherman 
could be liable under third party lawsuits and enforcement action by 
NMFS for violating the ESA and illegally taking endangered or 
threatened species.
    Alternatives 2 and 3 may result in a minimal additional burden to 
licensed North Carolina inshore gillnet fisherman, through a 
requirement to carry or work closely with observers within the fishery 
and for reporting sea turtle takes to NCDMF. The North Carolina 
observer program is not expected to cause significant additional burden 
to the fisherman because this fishery is already subject to both NCDMF 
and NMFS observer coverage independent of the state program; and, 
further, the gillnet fisherman in North Carolina have been working 
within the monitoring framework of the proposed application since 2010, 
through measures put in place by NCDMF's 2010 Proclamation. Fishermen 
will be required to report incidental takes to NCDMF and undertake 
specific measures to resuscitate turtles as necessary and follow 
disposition guidelines; however, as mentioned above, fishermen have 
been subject to these requirements since 2010. This ITP issuance is not 
expected to cause further socio-economic burden.

Implementing Agreement

    NMFS and NCDMF are developing an implementing agreement to define 
roles and responsibilities of each party and provide a common 
understanding of actions to be undertaken to minimize and mitigate the 
effects of anchored gillnet fishing in inshore waters on threatened and 
endangered sea turtles. The agreement describes obligations of both 
parties, including how changed and unforeseen circumstances will be 
addressed, as well as the responsibilities of each party in 
implementing the conservation plan. Additionally, the agreement 
describes the process for initiating and implementing adaptive 
management as needed to achieve the Plan's biological objectives or 
respond to new information (e.g., observer data).

Next Steps

    This notice is provided pursuant to section 10(c) of the ESA. The 
application, supporting documents, public comments, and views already 
received by the agency, as well as those submitted in response to this 
notice, will be fully considered and evaluated as we prepare the final 
EA and determine whether to issue a Finding of No Significant Impact. 
The final NEPA document and ITP determinations will not be completed 
until after the end of the 15-day comment period. NMFS will publish a 
record of its final action in the Federal Register. We will also make 
any final NEPA documents available to the public.

    Dated: July 10, 2013.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2013-17037 Filed 7-15-13; 8:45 am]
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