[Federal Register Volume 66, Number 165 (Friday, August 24, 2001)]
[Rules and Regulations]
[Pages 44549-44552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21512]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 010820209-1209-01; I.D. 080901A]
RIN 0648-AP40


Endangered and Threatened Wildlife; Sea Turtle Conservation 
Requirements; Taking of Threatened or Endangered Species Incidental to 
Commercial Fishing Operations

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS is issuing an interim final rule to prohibit fishing with 
drift gillnets in the California/Oregon (CA/OR) drift gillnet fishery 
from August 15 through November 15 in state and federal waters in 
Monterey Bay, CA and vicinity, north to the 45 deg. N lat. intersect of 
the Oregon coast. NMFS has determined that the incidental take level of 
leatherback sea turtles by this fishery is dependent on the area and 
season being fished. The time and area closure will result in a take 
level reduction by the fishery and is necessary to avoid the likelihood 
of the CA/OR drift gillnet fishery jeopardizing the continued existence 
of the leatherback sea turtle population.

DATES: This interim final rule is effective August 24, 2001. Comments 
on this interim final rule must be postmarked or transmitted by 
facsimile by 5 p.m., Pacific Standard Time, on November 23, 2001. 
Comments transmitted via e-mail or the Internet will not be accepted.

ADDRESSES: Send comments on this interim final rule to Tim Price, 
National Marine Fisheries Service, Protected Resources Division, 501 
West Ocean Boulevard, Suite 4200, Long Beach, California 90802-4213. 
Copies of the Environmental Assessment (EA) or biological opinion (BO) 
may be obtained from Tim Price, Protected Resources Division, National 
Marine Fisheries Service, Southwest Region, 501 West Ocean Blvd., Suite 
4200, Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Tim Price (562) 980-4029.

SUPPLEMENTARY INFORMATION: On October 24, 2000 (65 FR 64670, October 
30, 2000), NMFS issued a permit, for a period of 3 years, to authorize 
the incidental, but not intentional, taking of four stocks of 
threatened or endangered marine mammals (Fin whale, California/Oregon/
Washington stock; Humpback whale, California/Oregon/Washington-Mexico 
stock; Steller sea lion, eastern stock; and Sperm whale, California/
Oregon/Washington stock) by the CA/OR drift gillnet fishery under 
section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1371(a)(5)(E)).
    To authorize the incidental take by this fishery of marine mammals 
listed under the Endangered Species Act (ESA), NMFS completed a formal 
consultation under section 7 of the ESA. On October 23, 2000, NMFS 
issued a BO in which it determined that the current operations of the 
CA/OR drift gillnet fishery are jeopardizing the continued existence of 
the leatherback and loggerhead sea turtle populations by appreciably 
reducing the likelihood of both the survival and recovery of these two 
species.
    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the ESA. The leatherback (Dermochelys 
coriacea) is listed as endangered and the loggerhead (Caretta caretta) 
is listed as threatened. 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 be legally authorized by an incidental take 
statement or an incidental take permit issued pursuant to section 7 or 
section 10 of the ESA. In order for an incidental take statement to be 
issued, the incidental take must not be likely to jeopardize the 
continued existence of listed species or destroy or adversely modify 
designated critical habitat.
    To avoid the likelihood of the CA/OR drift gillnet fishery 
jeopardizing the continued existence of the leatherback and loggerhead 
sea turtles, NMFS developed a reasonable and prudent alternative in the 
BO which consists of three measures: a) a drift gillnet time and area 
closure to protect leatherback sea turtles; b) funding and supporting a 
Western Pacific conservation, education, and protection program aimed 
at protecting nesting females,

[[Page 44550]]

their eggs, and nesting beach habitat and addressing incidental capture 
in local fisheries; and c) a drift gillnet time and area closure to 
protect loggerhead sea turtles.
    This interim final rule implements only the measure to protect 
leatherback sea turtles. For the reasons indicated later in this 
preamble, this measure must be implemented immediately.
    The conservation, education, and protection program does not fall 
within U.S. regulatory authority and will be implemented through 
cooperative efforts with appropriate parties.
    The measure to address the incidental take of loggerhead sea 
turtles by the CA/OR drift gillnet fishery will be implemented by a 
subsequent rulemaking. Observer data from July 1990 through January 
2000 indicate that all the observed loggerhead sea turtle entanglements 
occurred during El Nino events. According to the most recent El Nino 
Watch Advisory, 2001-07, the existing west coast oceanographic 
conditions are consistent with a decay of the La Nina conditions and a 
prelude to a mild or moderate El Nino in the ensuing months. NOAA/
National Environmental Satellite, Data and Information Services, Coast 
watch Program (http://cwatchwc.ucsd.edu) data indicate that an El Nino 
event is not imminent. Because the BO concluded that the CA/OR drift 
gillnet fishery would only jeopardize the continued existence of 
loggerhead sea turtles during El Nino events, there is adequate time to 
provide prior notice and an opportunity for public comment on the time 
and area closure to protect loggerhead sea turtles. Therefore, this 
measure was not included in this rulemaking but will be implemented in 
a separate rulemaking.

Measure to Reduce Leatherback Entanglements

    The measure identified in the BO to address the incidental take of 
leatherback sea turtles by the CA/OR drift gillnet fishery consists of 
a time and area closure that would prohibit drift gillnet fishing 
activity in state and Federal ocean waters off of California and Oregon 
inside the area bounded by straight lines connecting Point Conception 
(34 deg.27 N) to 34 deg.27 N 129 deg. W, to 45 deg. N 129 deg. W, to 
the point where 45 deg. N intersects the Oregon coast, from August 15 
to October 31, for a period of 3 years (2001-2003).
    This measure would reduce the likelihood of the CA/OR drift gillnet 
fishery incidentally entangling leatherback turtles by 78 percent. 
Although the observer data do not indicate a specific, localized area 
where more leatherbacks are entangled, but rather a more widespread 
distribution, observed leatherback entanglement rates change as a 
function of latitude, with the most substantial increase in 
entanglement rates occurring north of 36 deg.30 N. NMFS has observed 23 
leatherback entanglements since the inception of the observer program 
in July 1990, 91 percent of which were recorded north of Point 
Conception. Takings of leatherbacks have been observed during the 
months of September, October, November, December and January, with 
approximately 60 percent of the entanglements occurring in October. 
Based on this information, NMFS expects this measure to prohibit 
fishing with drift gillnets in ocean waters north of Point Conception 
would avoid the likelihood of the CA/OR drift gillnet fishery 
jeopardizing the continued existence of the leatherback sea turtle 
species.

Alternative Measures to Reduce Leatherback Entanglements

    Since the issuance of the BO on October 23, 2000, NMFS received 
comments from CA/OR drift gillnet commercial fishermen, recreational 
fishing organizations, and from the Pacific Offshore Cetacean Take 
Reduction Team (TROTTED) regarding the measure in the reasonable and 
prudent alternative to close the CA/OR drift gillnet fishery north of 
Point Conception from August 15 to October 31. The CA/OR drift gillnet 
fishermen have expressed a need to fish north of Point Conception to 
remain economically viable as a fishery. Recreational fishing 
organizations have expressed a concern that an increased number of 
drift gillnet vessels fishing south of Point Conception would cause a 
reduction in the number of striped marlin that recreational fishermen 
could catch. In response to the concern expressed by the fishermen on 
the effects of the closure on the fishery, the TROTTED evaluated 
whether there might be a measure other than the reasonable and prudent 
alternative measure identified in the BO, that would allow the 
fishermen to fish north of Point Conception and still provide the same 
level of protection to leatherback sea turtles and presented a 
consensus recommendation for consideration.
    NMFS recognizes the merit and importance of the TROTTED 
recommendation. While NMFS was not able to conclude that the TROTTED 
recommendation provided a comparable level of protection for 
leatherback turtles, NMFS concluded that a modified version of the 
TROTTED recommendation would provide fishing opportunity north of Point 
Conception while providing the same level of protection for leatherback 
sea turtles as the BO.
    In September 2000, NMFS tagged two leatherback turtles in Monterey 
Bay, CA with satellite transmitter tags. Shortly afterwards, the 
turtles departed the area, traveling in a southwesterly direction, 
presumably toward western Pacific nesting beaches. Based on this recent 
leatherback satellite telemetry data and historical observer data, NMFS 
is implementing a modified version of the TROTTED recommendation which 
will protect the potential migratory route of leatherback turtles 
departing Monterey, CA, in August, September, October and the first 
half of November. This alternative measure closes the area bounded by 
the straight lines from Point Sur (34 deg.18.5 N) to 34 deg.27 N 
123 deg.35 W, to 34 deg.27 N 129 deg. W, to 45 deg. N 129 deg. W, to 
the point 45 deg. N intersects land, from August 15 to November 15. 
NMFS has determined that this alternative provides the same, if not 
greater, protection for leatherback turtles as the reasonable and 
prudent alternative measure identified in the BO. The NMFS Office of 
Protected Resources, which issued the BO, has concurred that this 
alternative would provide the same level of protection as the 
reasonable and prudent alternative measure identified in the BO and 
would avoid the likelihood of jeopardizing the continued existence of 
the leatherback sea turtle.
    This determination is based on observer data that indicate that 
NMFS' alternative time and area closure described above provides the 
same level of protection for leatherback turtles (a 78-percent 
reduction in the likelihood of the CA/OR drift gillnet fishery 
incidentally entangling leatherback turtles) as the time and area 
closure identified in the reasonable and prudent alternative of the BO. 
In addition, based on leatherback satellite telemetry data, NMFS' 
alternative is expected to provide protection to migrating leatherback 
turtles departing Monterey, CA, in August, September, October and the 
first half of November.
    Under this measure, drift gillnet vessels must continue to comply 
with existing state codes that regulate gear, equipment and fishing 
seasons and with Federal regulations that implement the Pacific 
Offshore Cetacean Take Reduction Plan (50 CFR 229.31).

Classification

    NMFS prepared an EA for this interim final rule and concluded these

[[Page 44551]]

regulations would pose no significant adverse environmental impact.
    The action implemented by this interim final rule is expected to 
impact approximately 81 California/Oregon drift gillnet vessel owners 
and operators, representing approximately 2,000 fishing sets annually. 
Four alternatives were evaluated in the EA prepared for this interim 
final rule, including a status quo alternative. For a description and a 
detailed economic analysis of the alternatives analyzed for the CA/OR 
drift gillnet fishery, readers should refer to the EA prepared for this 
interim final rule. The total cost to the CA/OR drift gillnet fleet 
resulting from the time and area closures in this interim final rule is 
estimated at $640K. This maximum cost estimate to the fishery is a 
worst case scenario based on the assumption that none of the fishing 
effort will shift to ocean areas that remain open to fishing. However, 
because the observed entanglement rate for swordfish in the leatherback 
closed area is similar to the swordfish entanglement rate in the open 
area along central California, NMFS expects most of the fishing effort 
will shift to the open ocean waters. Therefore, NMFS does not expect 
the leatherback time and area closure to have as much of an effect on 
ex-vessel gross revenue values as the worst case scenario estimate of 
$640K.
    This interim final rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.
    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.
    A BO on the issuance of a marine mammal permit under section 101 
(a)(5)(E) of the MMPA was finalized on October 23, 2000. That BO 
concluded that issuance of a permit and continued operation of the CA/
OR drift gillnet fishery was likely to jeopardize the continued 
existence of leatherback and loggerhead sea turtles. This interim final 
rule implements an alternative to the reasonable and prudent 
alternative measure in the BO to protect leatherback sea turtles. NMFS 
has determined that the alternative measure implemented by this interim 
final rule is as protective of leatherback sea turtles as the 
reasonable and prudent alternative measure in the BO. NMFS Office of 
Protected Resources, which issued the BO, has concurred that this 
alternative would provide the same level of protection as the 
reasonable and prudent alternative measure identified in the BO and 
would avoid the likelihood of jeopardizing the continued existence of 
the leatherback sea turtle. This alternative measure does not change 
the conclusions of the BO related to marine mammals listed under the 
ESA. Moreover, this interim final rule will have no adverse impacts on 
marine mammals that are not listed under the ESA.
    Given the endangered status of the leatherback sea turtle, the fact 
that the fishery opened on August 15, and that the existing regulations 
are not sufficient to prevent entanglements, the Assistant 
Administrator for NOAA Fisheries (AA), for good cause, under 5 U.S.C. 
553 (b)(3)(B), finds that delaying this closure action to allow for 
prior notice and an opportunity for public comment would be contrary to 
the public interest because such delay would not provide protection for 
leatherback sea turtles that would otherwise be taken by this fishery. 
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 interim final rule for 
30 days.
    In developing the alternative closure for protection of leatherback 
sea turtles under this interim final rule, NMFS has considered, to the 
maximum extent practicable and consistent with the ESA, the concerns of 
the CA/OR drift gillnet fishery and Pacific Offshore Cetacean Take 
Reduction Team as previously described in this action. To ensure timely 
notice of this action, NMFS has scheduled mandatory skipper workshops 
for vessel operators and owners during the last week in August and 
first week in September to clarify issues related to the time and area 
closure to protect leatherback sea turtles and the Pacific Offshore 
Cetacean Take Reduction Plan. A fleet notice will be sent by certified 
mail to the vessel owners and operators notifying them of the 
leatherback time and area closure. NMFS will also coordinate with the 
U.S. Coast Guard to issue a Notice to Mariners on Channel 16, VHF radio 
as well as send notice through NOAA Weather radio.
    As prior notice and opportunity for public comment are not required 
to be provided for this interim final rule by 5 U.S.C. 553, or by any 
other law, the analytical requirements of the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq., are inapplicable.
    In keeping with the intent of the Executive Order 13132 to provide 
continuing and meaningful dialogue on issues of mutual state and 
Federal interest, NMFS has conferred with the States of California and 
Oregon regarding the implementation of the reasonable and prudent 
alternative. Both California and Oregon have expressed support for the 
measures identified in the BO for the protection of leatherback and 
loggerhead sea turtle species. NMFS met with California Department of 
Fish and Game officials to decide which agency would implement the 
regulations to meet the requirement of the BO reasonable and prudent 
alternative. The State of California decided that NMFS should implement 
the regulations under the authority of the ESA. In addition, as a 
member of the TROTTED, the State of California was actively involved in 
the development of the alternative measure to protect leatherback sea 
turtles and participated in meetings about its implementation. NMFS 
intends to continue engaging in informal and formal contacts with the 
States of California and Oregon during the implementation of the 
measures in the BO and development of the highly migratory species 
fishery management plan that includes the CA/OR drift gillnet fishery.

    Dated: August 21, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are amended to read as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also 
issued under 16 U.S.C. 1361 et seq.

    2. In Sec. 223.206, add paragraph (d)(6) to read as follows:


Sec. 223.206  Exceptions to prohibitions relating sea turtles.

* * * * *
    (d) * * *
    (6) Restrictions applicable to the California/Oregon drift gillnet 
fishery--(i) Pacific leatherback conservation area. No person may fish 
with, set, or haul back drift gillnet gear in U.S. waters of the 
Pacific Ocean from August 15 through November 15 in the area bounded by 
straight lines connecting the following coordinates in the order 
listed:

[[Page 44552]]

    (A) Point Sur (36 deg.18.5' N) to 34 deg.27' N 123 deg.35' W';
    (B) 34 deg.27' N 123 deg.35' W to 34 deg.27' N 129 deg. W;
    (C) 34 deg.27' N 129 deg. W to 45 deg. N 129 deg. W;
    (D) 45 deg. N 129 deg. W to the point 45 deg. N intersects the 
Oregon coast.
    (ii) [Reserved]

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    3. The authority citation for part 224 continues to reads as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    4. In Sec. 224.104, the section heading is revised to read as 
follows:


Sec. 224.104  Special requirements for fishing activities to protect 
endangered sea turtles.

    5. In Sec. 224.104, paragraph (c) is revised to read as follows:
* * * * *
    (c) Special prohibitions relating to leatherback sea turtles are 
provided at Sec. 223.206 (d)(2)(iv) and Sec. 223.206 (d)(6) of this 
chapter.
[FR Doc. 01-21512 Filed 8-23-01; 8:45 am]
BILLING CODE 3510-22-S