[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Proposed Rules]
[Pages 59243-59245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23841]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket 020626160-2160-01; I.D. 061902C]
RIN 0648-AQ13


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: Proposed rule; request for comments.

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SUMMARY: NMFS is issuing a proposed rule to prohibit fishing with drift 
gillnets in the California/Oregon (CA/OR) thresher shark/swordfish 
drift gillnet fishery in U.S. waters off southern California, south of 
Point Conception (34[deg]27'N.)and west to the 120[deg]W. long., from 
August 15 through August 31, and January 1 through January 31, when the 
Assistant Administrator for Fisheries publishes a notice that El Nino 
conditions are present. NMFS has determined that the incidental take of 
loggerhead sea turtles by this fishery is dependent on the area and 
season being fished during these oceanographic conditions. Time and 
area closures will result in a reduction in the amount of take of 
loggerheads by the fishery and are necessary to avoid the likelihood of 
the CA/OR drift gillnet fishery jeopardizing the continued existence of 
the loggerhead population.

DATES:  Comments on this proposed rule must be postmarked or 
transmitted by facsimile by 5 p.m., Pacific Daylight Time, on October 
21, 2002. Comments transmitted via e-mail or the Internet will not be 
accepted.

ADDRESSES:  Send comments on this proposed rule to Tim Price, National 
Marine Fisheries Service, Protected Resources Division, 501 West Ocean 
Boulevard, Suite 4200, Long Beach, CA 90802-4213, or by fax (562) 980-
4027. 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, or are available on the 
internet at http://swr.ucsd.edu/.

FOR FURTHER INFORMATION CONTACT: Tim Price, NMFS, Southwest Region, 
Protected Resources Division, (562) 980-4029.

[[Page 59244]]


SUPPLEMENTARY INFORMATION: All sea turtles that occur in U.S. waters 
are listed as either endangered or threatened under the Endangered 
Species Act (ESA). 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 in a biological 
opinion issued pursuant to section 7 of the ESA or an incidental take 
permit issued pursuant to section 10 of the ESA. In order for an 
incidental take statement to be issued, the incidental take must be not 
likely to jeopardize the continued existence of listed species or 
destroy or adversely modify designated critical habitat.
    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 this incidental take of marine mammals listed under 
the ESA, NMFS completed a formal consultation as required by section 7 
of the ESA. This consultation also included an analysis of the effects 
of the CA/OR drift gillnet fishery on loggerheads. On October 23, 2000, 
NMFS issued a Biological Opinion (BO) in which it determined that the 
current operations of the CA/OR drift gillnet fishery are jeopardizing 
the continued existence of loggerheads.
    To avoid the likelihood of the CA/OR drift gillnet fishery 
jeopardizing the continued existence of loggerheads, NMFS developed a 
Reasonable and Prudent Alternative (RPA) in the BO that consists of 
time and area closures of the CA/OR drift gillnet fishery during a 
forecasted, or occurring, El Ni[tilde]o event. This proposed rule 
addresses this RPA to protect loggerheads.

Reduction of Loggerhead Entanglements

    The RPA identified in the BO to address the incidental take of 
loggerheads by the CA/OR drift gillnet fishery consists of a time and 
area closure during El Nino conditions that would prohibit drift 
gillnet fishing in U.S. ocean waters off of southern California south 
of Point Conception (34[deg]27'N.) and west to 120[deg]W longitude, 
occurring from August 15 to August 31 and from January 1 to January 31. 
This measure would reduce the likelihood of the CA/OR drift gillnet 
fishery incidentally entangling loggerheads by at least 65 percent. The 
Assistant Administrator for Fisheries (AA) will publish a notice 
announcing that El Nino conditions are present off the coast of 
southern California and that the time and area closure will be in 
effect. In determining whether to announce that an El Nino event 
affecting southern California waters is forecast or occurring, the AA 
will rely on information made public by NOAA offices that monitor the 
El Nino event, including information from the Climate Prediction 
Center, at http://cwatchc.ucsd.edu, and from NOAA's West Coast Office 
of Coast Watch, at http://cwatchwc.ucsd.edu, and also from the State of 
California.

Loggerhead Entanglement Data

    Based on NMFS observer data from July 1990 through January 2001, 
there have been a total of 18 loggerheads (3 were unidentified turtles 
that are assumed to be loggerheads based on carapace length and the 
area in which they were caught) taken by the CA/OR drift gillnet 
fishery. All of these entanglements occurred during El Nino years and 
all occurred in the proposed closure area. Sixty-five percent of these 
entanglements occurred from August 15 to August 31 and from January 1 
through January 31. There have also been 4 loggerheads observed taken 
during the month of July and 1 entanglement observed during the month 
of June. These entanglements occurred at a time when the fishery was 
significantly more active (e.g. beginning in 1992 the State of 
California prohibited drift gillnet vessels from fishing inside 75 
nautical miles (136.9 kilometers) from May 1 through August 14). 
However, now there is minimal fishing effort during the months of June, 
July, and the first 2 weeks of August, because most of the larger 
vessels have switched to targeting albacore tuna during this time 
period. In addition, there was one loggerhead observed taken during the 
month of October.
    In August 2001, NMFS observed one loggerhead taken in ocean waters 
off of San Diego, CA. This entanglement occurred outside of an El 
Ni[tilde]o event. Although there have been reports of loggerheads 
occasionally stranding and of sightings of loggerheads off of southern 
California during years when there is not an El Nino event, this was 
the first loggerhead entanglement that NMFS has observed outside of an 
El Nino event. Loggerheads and their prey are more abundant off of 
southern California during El Nino events when water temperatures are 
generally warmer. Thus, there is a significant increase in the 
likelihood of a loggerhead entanglement during El Nino events. Because 
loggerheads are less likely to be off the coast of southern California 
outside El Nino years and because NMFS has only observed one loggerhead 
entanglement outside of an El Nino year, NMFS believes that an 
entanglement of a loggerhead outside of an El Nino event is a rare 
occurrence.

Classification

    NMFS prepared an EA (August 13, 2001) and a draft supplement (June 
27, 2002) to the EA for this proposed rule and concluded these 
regulations would pose no significant adverse environmental impact.
    The actions implemented by this proposed rule are expected to 
impact approximately 81 CA/OR drift gillnet vessel owners and 
operators, representing approximately 500 fishing sets annually. For a 
description and a detailed economic analysis of the CA/OR drift gillnet 
fishery, readers should refer to the August 13, 2001, EA prepared for 
this proposed rule which incorporates the initial regulatory 
flexibility analysis. The total gross revenue loss to the CA/OR drift 
gillnet fleet resulting from the time and area closures in this 
proposed rule is expected to be $440,000 for an El Nino year. This 
revenue loss 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. Loggerhead time and area closures during 
the month of January are expected to have the greatest impact on the 
fishery because the oceanographic conditions that favor swordfish 
during January are generally located along the coast. In this scenario, 
the reduction in total gross revenues is not expected to exceed $5,400 
per vessel per El Nino year. This estimate is based on California 
Department of Fish and Game landing receipts for the period between 
August 15 through August 31, and January 1 through January 31, using 
data from 1997 to 2000. On average, during these time periods, 
approximately $6,300 of louvar, $17,700 of mako shark, $20,300 of opah, 
$345,300 of swordfish, and $49,100 of thresher shark are landed.
    This proposed rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.

[[Page 59245]]

    This proposed rule has been determined to be 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 issued 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 loggerheads. This proposed rule implements the RPA to 
protect loggerheads. NMFS has determined that the time and area closure 
identified in the BO is expected to avoid the likelihood of 
jeopardizing the continued existence of the loggerhead species.
    In keeping with the intent of the Executive Order 12612 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 RPA. 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 
intends to continue engaging in informal and formal contacts with the 
States of California and Oregon during the implementation of this RPA 
and development of the Fishery Management Plan for U.S. West Coast 
Fisheries for Highly Migratory Species.

List of Subjects in 50 CFR Part 223

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

    Dated: September 13, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended 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, paragraphs (d)(6)(ii) and (iii) are added to 
read as follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (6) * * *
    (ii) Pacific loggerhead conservation area. No person may fish with, 
set, or haul back drift gillnet gear in U.S. waters of the Pacific 
Ocean south of 34[deg]27'N. (Point Conception, California) and west to 
120[deg] W. from January 1 through January 31 and from August 15 
through August 31 during a forecasted, or occurring, El Nino event.
    (iii) Determination and notification concerning an El Nino event. 
The Assistant Administrator will publish a notification that an El Nino 
event is occurring off of or is forecast for the coast of southern 
California and the requirement for time area closures in the Pacific 
loggerhead conservation zone in the Federal Register and will announce 
the notification in summary form by other methods as the Assistant 
Administrator determines are necessary and appropriate to provide 
notice to the California/Oregon drift gillnet fishery. The Assistant 
Administrator will rely on information developed by NOAA offices which 
monitor El Nino events, such as NOAA's Climate Prediction Center and 
the West Coast Office of NOAA's Coast Watch program, and by the State 
of California, in order to determine whether to publish such a notice. 
The requirement for the area closures from January 1 through January 31 
and from August 15 through August 31 will remain effective until the 
Assistant Administrator issues a notice that the El Nino event is no 
longer occurring.
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[FR Doc. 02-23841 Filed 9-19-02; 8:45 am]
BILLING CODE 3510-22-S