[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71895-71900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30605]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket 020313057-2278-02; I.D. 031102E]
RIN 0648-AP91


Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Final rule.

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SUMMARY: NMFS is enacting a seasonally adjusted gear restriction by 
closing portions of the Mid-Atlantic Exclusive Economic Zone (EEZ) 
waters to fishing with gillnets with a mesh size larger than 8-inch 
(20.3 cm) stretched mesh. The purpose of this action is to reduce the 
impact of large-mesh gillnet fisheries on endangered and threatened 
species of sea turtles, primarily the monkfish fishery which uses 
large-mesh gillnet gear and operates in the area when sea turtles are 
present.

DATES: This final rule is effective on January 2, 2003.

FOR FURTHER INFORMATION CONTACT: Dennis L. Klemm (address: 9721 
Executive Center Drive N., St. Petersburg, FL 33702; ph. 727-570-5312, 
fax 727-570-5517, e-mail [email protected]), or Barbara A. 
Schroeder (address: 1315 East-West Highway, Silver Springs, MD 20910; 
ph. 301-713-1401, fax 301-713-0376, e-mail [email protected]).

SUPPLEMENTARY INFORMATION: All sea turtles that occur in U.S. waters 
are listed as either endangered or threatened under the Endangered 
Species Act of 1973 (ESA). The Kemp's ridley (Lepidochelys kempii), 
leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys 
imbricata) are listed as endangered. The loggerhead (Caretta caretta) 
and green turtle (Chelonia mydas) are listed as threatened, except for 
populations of green turtles in Florida and on the Pacific coast of 
Mexico, which are listed as endangered.
    Under the ESA and its implementing regulations, taking sea 
turtles-- even incidentally--is prohibited, with exceptions for takes 
of threatened species identified in 50 CFR 223.206. The incidental take 
of endangered species may be authorized only by an incidental take 
statement provided, or an incidental take permit issued, pursuant to 
section 7 or 10 of the ESA, respectively.

Background

    Beginning in 1995, sea turtle strandings along the coast of North 
Carolina suddenly and dramatically increased during April and May, and 
this pattern continued in subsequent years. The increase in strandings 
coincided with increasing effort in the monkfish gillnet fishery, which 
first began off North Carolina in 1995. In the spring of 2000, 280 sea 
turtles stranded in two short time periods, coincident with the 
monkfish and dogfish gillnet fisheries operating offshore. Four of the 
carcasses were carrying gillnet gear measuring 10-12 inches (25.4-30.5 
cm) stretched mesh, which is consistent with the gear used in the 
monkfish fishery. Large mesh gillnets are known to be highly effective 
at catching sea turtles and were the gear of choice in the historical 
sea turtle fishery. The majority of the turtles stranded in the 2000 
event were loggerheads, but Kemp's ridleys were also documented. The 
northern subpopulation of loggerheads is disproportionately represented 
in the mid-Atlantic waters off North Carolina, and a number of the 
stranded loggerheads likely came from this subpopulation. The northern 
subpopulation is not showing evidence of recovery and continuous 
mortality as a result of large mesh gillnet fisheries is likely to 
impede recovery efforts (TEWG 2000).
    A number of changes to the Fishery Management Plan (FMP) for the 
monkfish fishery over the past few years have resulted in changes in 
effort and timing of the fishery, and additional changes are expected 
as part of future FMP revisions. Various temporary protections to 
reduce sea turtle mortality in large mesh gillnets have been enacted by 
NMFS since the 2000 stranding event (65 FR 31500, May 18, 2000; 66 FR 
28842, May 25, 2001; and 67 FR 13098, March 21, 2002). Detailed 
background information on the events leading to these restrictions may 
be found in each notice and is not repeated here. The most recent of 
these temporary protections, an interim final rule effective from March 
15 to November 10, 2002, implemented a series of seasonally-adjusted 
closures in federal waters to move large-mesh gillnetting north in 
advance of sea turtle migrations. In the interim final rule, NMFS 
stated that it was considering adopting those restrictions as a final 
rule and took comments on that proposal through June 19, 2002 (67 FR 
13098).

Seasonally Adjusted Closure of Large-mesh Gillnet Fishing in the Mid-
Atlantic

    The provisions of the interim final rule (67 FR 13098, March 21, 
2002) established seasonally adjusted gear restrictions by closing 
portions of the Mid-Atlantic Exclusive Economic Zone (EEZ) waters to 
fishing with gillnets with a mesh size larger than 8-inch (20.3-cm) 
stretched mesh to protect migrating sea turtles. The areas and times 
closed to fishing with gillnets larger than 8-inch (20.3-cm) stretched 
mesh were as follows: waters north of 33[deg]51.0' N (North Carolina/
South Carolina border at the coast) and south of 35[deg] 46.0' N 
(Oregon Inlet) - at all times; waters north of 35[deg]46.0' N (Oregon 
Inlet) and south of 36[deg] 22.5' N (Currituck Beach Light, NC) - from 
March 16 through January 14; waters north of 36[deg]22.5' N (Currituck 
Beach Light, NC) and south of 37[deg]34.6' N (Wachapreague Inlet, VA) - 
from April 1 through January 14; waters north of 37[deg] 34.6' N 
(Wachapreague Inlet, VA) and south of 37[deg]56.0' N (Chincoteague, VA) 
- from April 16 through January 14. Waters north of 37[deg]56.0' N 
(Chincoteague, VA) were not affected by the interim final rule. NMFS 
promulgated the interim final rule to prevent further mortalities and 
other takes of listed species in large-mesh gillnet fisheries, of which 
the federal monkfish fishery is the most likely to be

[[Page 71896]]

affected. NMFS limited the interim final rule to Federal waters only, 
as the monkfish fishery was not thought to be prosecuted in state 
waters, and to avoid unintentionally affecting the black drum gillnet 
fishery which occurs in the nearshore waters of the Eastern Shore of 
Virginia, and which was cooperating with NMFS observers to document sea 
turtle interactions. Gillnets with 10- and 12-inch (25.4- and 30.5-cm) 
mesh were clearly associated with the 2000 mass stranding in that four 
of the carcasses were carrying gillnet gear measuring 10 to 12 inches 
(25.4 to 30.5 cm) stretched mesh, which is consistent with the gear 
used in the monkfish fishery. Although the monkfish gillnet fishery 
currently uses 12-inch (30.5-cm) stretched mesh as their primary gear 
type, the Fishery Management Plan for the monkfish fishery allows use 
of gillnets with stretched mesh as small as 10 inches (25.4 cm). The 
potential exists, however, for other fisheries to utilize large-mesh 
gillnets with smaller size mesh that could still pose a serious risk of 
entanglement to sea turtles. The 8-inch (20.3-cm) cutoff size as 
mentioned above is, therefore, being enacted in this rule. Although 
gillnets with mesh sizes smaller than 8 inches (20.3 cm) are known to 
capture and kill sea turtles, NMFS selected an 8-inch (20.3-cm) cut-off 
size for the interim final rule. NMFS considered prohibiting smaller 
mesh sizes, but the size range chosen is believed to have the highest 
impact on sea turtles. If new information indicates otherwise, NMFS 
will consider amending the rule to include smaller mesh sizes. The 
timing of the restrictions was based upon an analysis of sea surface 
temperatures for the above areas. Sea turtles are known to migrate into 
and through these waters when the sea surface temperature is 11 degrees 
Celsius or greater (Epperly and Braun-McNeill 2002). The January 15 
date for the reopening of the areas north of Oregon Inlet (35o 46.0' N) 
to the large-mesh gillnet fisheries was also based upon the 11 degree 
Celsius threshold and is consistent with the seasonal boundary 
established for the Summer flounder fishery-sea turtle protection area 
(50 CFR 223.206(d)(2)(iii)(A)).

Response to Comments

    Comments were received from five sources: The Mid-Atlantic Fishery 
Management Council (Council); an individual Council member; a North 
Carolina commercial fisherman; the North Carolina Department of Marine 
Fisheries (NCDMF); and a joint letter from environmental organizations 
(EOs). Below are the individual comments and NMFS' responses.
    Comment 1: The EOs and the individual Council member expressed 
support for the permanent enactment of the final rule. The Council and 
the fisherman, on the other hand, felt that there is no need for a 
final rule and that there was no scientific evidence to support the 
gillnet restrictions.
    Response: The three previous temporary restrictions (65 FR 31500, 
May 18, 2000; 66 FR 28842, May 25, 2001; and 67 FR 13098, March 21, 
2002) present in detail the scientific information (e.g., analysis of 
stranding patterns vs. sea surface temperature regimes and fishing 
effort) that was considered in determining that large mesh gillnetting, 
particularly for monkfish, was the likely cause of mass sea turtle 
strandings in the Mid-Atlantic and that large mesh gillnetting poses a 
significant risk of capture and death, particularly to migrating sea 
turtles. That information and analysis is not repeated here, and NMFS 
has received no new information that would lead it to change those 
determinations.
    The restrictions in 2001 and 2002 appeared to be effective, in that 
repetition of the mass strandings of 2000 was avoided. Strandings in 
reporting zone 35, for example, (the zone in eastern North Carolina 
that experienced most of the 2000 stranding event) were lower in the 
spring months in 2001 and 2002. In March, offshore sea turtle 
strandings declined from 16 in 2000 to three in 2001 and zero in 2002. 
In April, strandings also declined from 81 in 2000 to one in 2001 and 
19 in 2002. In May, they declined most significantly, from 223 in 2000 
to 11 in 2001 and 25 in 2002.
    NMFS agrees with the EOs and the Council member that the 
restrictions on large-mesh gillnetting are warranted and that permanent 
restrictions are necessary to replace the series of temporary 
restrictions and to provide long-term protection to sea turtles by 
reducing the potential for a serious impact to sea turtle populations. 
This final rule, therefore, will make permanent the restrictions of the 
interim final rule.
    Comment 2: The EOs expressed concern that the restrictions need to 
be extended to North Carolina state waters to prevent gillnetters from 
relocating effort and contributing substantially to the mortality of 
sea turtles in those waters.
    Response: NMFS limited the interim final rule to Federal waters 
only, as the monkfish fishery was not thought to be prosecuted in state 
waters, and to avoid unintentionally affecting the black drum gillnet 
fishery which occurs in the nearshore waters of the Eastern Shore of 
Virginia, and which was cooperating with NMFS observers to document sea 
turtle interactions. Following the implementation of the interim final 
rule, several fishermen shifted monkfish gillnet effort to North 
Carolina state waters. NMFS has reviewed North Carolina landings data 
comparing gillnet landings for monkfish caught in state waters and 
Federal waters. From 1995 to 2000, state waters only accounted for one 
to ten percent of the monkfish landings. In 2002, though, when the 
interim final rule was in place, state waters have accounted for 92 
percent of the monkfish landings. The amount of monkfish landed from 
state waters in 2002 to date is five times higher than the average 
state waters landings for 1995 to 2000. This large shift in fishery 
effort to North Carolina state waters was not foreseen by NMFS, and if 
the 2002 data represent a real change in fishing behavior, leaving 
state waters out of the restrictions would pose a substantial risk to 
sea turtles in state waters.
    Because state waters were not included in the interim final rule, 
NMFS would need to issue a new proposed rule for public comment in 
order to expand the restrictions to state waters. NMFS will investigate 
the significance, if any, of the 2002 state monkfish landings. If 
restrictions on large-mesh offshore gillnetting in state waters appear 
warranted to protect turtles, NMFS will consider alternative actions 
and seek public comment on a proposed rule.
    Comment 3: The EOs recommended that NMFS support research on the 
seasonal distribution, abundance, and habitat use of sea turtles in 
state and adjacent Federal waters.
    Response: NMFS already has a large body of knowledge on these 
topics and continues to collect new data. The North Carolina and 
Virginia cape regions are very important for overwintering, migrating, 
and foraging sea turtles, and they are also very complex and dynamic 
oceanographically. Aerial surveys, review of new scientific literature 
and state reports, and behavioral studies are all ongoing efforts aimed 
at expanding this knowledge.
    Comment 4: The fisherman and the Council questioned the assertion 
that strandings may be disproportionately composed of northern 
subpopulation loggerheads. In contrast, the individual Council member 
expressed concern with the potential impact to the northern 
subpopulation, which has not shown signs of recovery and may be 
declining.

[[Page 71897]]

    Response: Studies support the assertion made by NMFS. Genetic data 
from live sea turtles off North Carolina (Bass et al., in press), and 
from stranded turtles in North Carolina through New Jersey (Norrgard 
1995, Bass et al., 1998, Rankin-Baransky et al., 2001), indicate that 
the northern-nesting subpopulation is disproportionally represented in 
Mid-Atlantic and North Atlantic coastal waters compared to the small 
size of that subpopulation. Between 25 to 59 percent of the loggerheads 
found foraging from the Northeast U.S. to Georgia come from this 
nesting subpopulation, yet the northern-nesting subpopulation only 
represents around 8 percent of the total nesting in the U.S.
    Comment 5: The fisherman and the Council commented that there was 
no support for the assumption that the number of turtles killed during 
the 2000 mass stranding was actually greater than the 280 stranded 
individuals.
    Response: Multiple studies have found that the majority of sea 
turtle carcasses at-sea will not strand on shore and that stranding 
numbers are only a portion of the total deaths. The Turtle Expert 
Working Group (TEWG 1998) reviewed various studies on shrimp trawl 
mortalities and stranding records prior to the NMFS implementation of 
turtle excluder device (TED) requirements and estimated that 5 to 6 
percent of the total mortality due to shrimp trawls was reflected in 
strandings from 1986 through 1989. Murphy and Hopkins-Murphy (1989) 
released marked sea turtle carcasses offshore of South Carolina, of 
which only 28 percent were later recorded as strandings. In one 
particular study focusing on the same area as the 2000 mass stranding, 
Epperly et al. (1996) reported that turtles dying offshore of the 
northern North Carolina coast during the winter and spring likely would 
be transported offshore by bottom currents. It was reported that, at 
best, strandings represented 7 to 13 percent of the individuals killed 
by the winter trawl fishery for flounder during November 1991-1992. 
Moorside (2000) reported that strandings may represent at best, 
approximately 40 percent, 30 percent, and less than 1 percent of the 
total number of at-sea carcasses during the summer, fall/spring, and 
winter, respectively, in the waters off North Carolina.
    Comment 6: The EOs commented that gillnet restrictions should be in 
place throughout the year. They especially felt this was applicable to 
inland/nearshore North Carolina waters which are known to be important 
developmental grounds for immature sea turtles on a year-round basis. 
The EOs also recommended working closely with other states in the Mid-
Atlantic to reduce sea turtle take in other gillnet fisheries and to 
establish incidental take limits and thresholds for closing the 
fisheries.
    Response: NMFS has enacted seasonal closures for the inshore large-
mesh (greater than 4.25 inches (10.8 cm) stretched mesh) gillnet 
fisheries in Pamlico Sound, NC. In 2001, NMFS published a notice of 
intent to prepare an Environmental Impact Statement for a comprehensive 
approach and ordered strategy for addressing incidental take of sea 
turtles by fishing gear type, which would include working closely with 
states (66 FR 39474, July 31, 2001). Broader fishery-turtle interaction 
problems will be addressed through that process. The intent of this 
final rule is to address a particular gear type with a known, and high, 
threat to sea turtles.
    Comment 7: The EOs urged NMFS to move forward quickly with the 
reinitiation of the ESA section 7 consultation for the monkfish 
fishery.
    Response: The consultation, which resulted in a no jeopardy 
opinion, was concluded on May 14, 2002.
    Comment 8: The Council and the fisherman commented that they felt 
there was improper notification of the issuance of the interim final 
rule. The fishing industry was not notified of any changes until 
publication in the Federal Register.
    Response: NMFS makes every effort to provide early notification to 
the public and the affected constituents of its rulemakings whenever 
practicable. The interim final rule was enacted on an emergency basis 
because of changes in the fishery, some resulting from a court order, 
which necessitated quick action to prevent mass sea turtle takes. NMFS 
made every effort to immediately notify the public, and particularly 
the fishing industry, when the interim final rule became effective. 
Notification was accomplished via NOAA Weather Radio announcements, a 
Fishery Bulletin release, and e-mail announcements to the appropriate 
state agency personnel and fishery management councils.
    Comment 9: The Council and the fisherman commented that the mass 
strandings cited in the rule summary could have been the result of 
cold-water stunning and that there is no proof that the 280 turtles 
found were a result of fisheries activity given that only 4 were found 
stranded with portions of net still attached. Conversely, the 
individual Council member commented that the strandings occurred too 
late in the year to be attributed to cold-water stunning and that lack 
of gear on the turtles would be expected since no fisherman would leave 
evidence of gear on a dead turtle.
    Response: Based upon the timing of the mass stranding incidents in 
2000 as well as other evidence, NMFS remains confident in its 
conclusion that a large-mesh gillnet fishery was the primary source of 
mortality to listed sea turtles during the referenced event. The 2000 
strandings occurred in April and May, which is likely too late in the 
year for a large cold-water stunning event. NMFS also reviewed 
satellite sea-surface temperature images and found no data to support 
cold-stunning at that time. During the mass stranding event 4 
individuals were found entangled in large-mesh gillnet gear and no 
other fisheries were operating at that time which could have 
contributed to such large impacts. It is unusual to find stranded sea 
turtles entangled in gillnet gear. The occurrence of these four turtles 
carrying gillnet gear in the same stranding event is suggestive of how 
high the level of turtle interaction may have been. In addition, 
strandings began increasing dramatically during April and May since 
1995, concurrent with the start of the monkfish gillnet fishery off 
North Carolina.
    Comment 10: The Council and the fisherman commented on the fishing 
effort and stranding differences between 2000 and 2001. The Council 
felt that there was no support for the statement that monkfish gillnet 
fishing occurred farther north in 2001, when there were few turtle 
strandings, compared to 2000 when the mass stranding occurred. They 
also stated that few sea turtle takes aboard monkfish gillnet boats 
were observed in 2001 despite nearly 100-percent observer coverage. The 
commenters used a straight-line extrapolation based on 2000 stranding 
levels and fishing effort and concluded that the 2001 fishing effort 
should have resulted in 59 observed strandings instead of 11, thus 
demonstrating that the 2000 levels cannot be attributed to the fishery.
    Response: Observer data and vessel trip reporting (VTR) data 
support NMFS' assertion that the fishery moved north earlier in the 
season in 2001 compared to 2000. In 2001, with observers on board a 
large percentage of the monkfish gillnet trips, the latest trips in 
North Carolina occurred on April 23 and 24. All monkfish vessels had 
pulled their gear and headed to Chincoteague, VA by April 24, 2001 at 
the latest, with most heading north at least a week or more prior to 
that date. In 2000, based upon VTR data, monkfish boats continued 
gillnetting in North Carolina waters south of the 36th parallel as late 
as May 13th. In addition,

[[Page 71898]]

despite the intent to do so, observer coverage did not reach 100 
percent in 2001. From March 27 to June 20, observer coverage in North 
Carolina and Virginia was 70 percent for boats that possessed limited 
access permits and 90 percent for boats that were operating under an 
Exempted Fishery Permit (the blackfin monkfish EFP). There were a total 
of 4 loggerhead takes observed over 171 trips, but additional takes may 
have occurred on trips that did not have observer coverage and 
therefore were not documented. A straight-line extrapolation based on 
strandings is not an appropriate means of determining the take from one 
year to the next. As stated in the response to comment 5, strandings 
likely represent less than 13 percent of the actual at-sea mortality 
(Epperly et al. (1996). Many carcasses never reach the beach and are 
transported offshore by bottom currents. Fluctuations in weather 
patterns that affect offshore winds or currents may determine the level 
of carcasses that wash ashore each year. Sea turtle presence, 
abundance, and distribution are also affected by oceanographic features 
such as sea surface temperatures and convergence zones which may vary 
year to year. Changes in these environmental parameters affect both the 
proportion of at-sea mortality represented in beach strandings and the 
probability that a fishing operation will interact with a sea turtle.
    Comment 11: The Council, the fisherman, and NCDMF all commented 
that they felt the original rolling closure proposal by the North 
Carolina fishermen was sound and should be enacted instead of the 
restrictions in the interim final rule. They felt that NMFS' 
utilization of a stricter version of a closure based upon the 
fishermen's proposal was a violation of a good faith, proactive effort 
by the fishermen. NCDMF also requested that in addition to using the 
fishermen's version of the restrictions, the rule should expire every 
December 31 to review the effectiveness and impact of the rule.
    Response: NMFS recognizes and appreciates the fact that the North 
Carolina fishermen were taking a proactive approach to an important 
problem. However, the restrictions proposed by the fishermen were not 
sufficient to provide the necessary protections for sea turtles. 
Analysis of data on water temperature and turtle distributions resulted 
in the timing and areas chosen for the rolling closures. The 
fishermen's plan that closures be based upon three consecutive days of 
60 degrees Fahrenheit (15.6 degrees Celsius) sea surface temperature 
does not reflect the temperature cutoff that sea turtles avoid. Data 
have shown that sea turtles can regularly be found in water as low as 
11 degrees Celsius (approximately 52 degrees Fahrenheit). In addition, 
the fishermen's plan was based on measuring sea surface temperatures 
for 3 consecutive days prior to enacting a closure. This plan would 
result in a delay in implementing restrictions when they are needed to 
protect turtles. A yearly expiration for the final rule would be 
impracticable. Implementing a new rule every year would be a very time 
intensive process, would potentially result in delays in implementing 
the necessary restrictions, and would be unnecessary based upon the 
information available. However, rules are always open to review and 
amendment based upon new information.
    Comment 12: The EOs commented that NMFS should implement and fund 
an observer program of 20-percent coverage for all small-mesh gillnet 
fisheries during the times of year when previous mass strandings have 
occurred.
    Response: NMFS is continually exploring ways to obtain more data on 
fishery interactions with protected species. While not necessarily 20 
percent coverage, small-mesh gillnet trips are observed annually in 
Virginia and North Carolina. Some observer coverage of gillnet 
fisheries using gear with stretched mesh smaller than 8 inches (20.3 
cm) is occurring in Pamlico Sound under an ESA section 10 permit with 
the state of North Carolina. Observer coverage under that permit is 10 
percent. Funding and manpower availability constraints do not currently 
allow for a full-scale observer program to cover all small-mesh 
fisheries.
    Comment 13: NCDMF commented that the mesh size for the rule should 
be changed to 7 (17.8 cm) inches instead of 8 inches (20.3 cm) because 
some fisheries that have the same impact may have been left out of the 
restrictions.
    Response: NMFS agrees that gillnets with 7 inch (17.8 cm) mesh size 
can pose a threat of capturing and killing sea turtles. However, when 
NMFS was developing the interim final rule, the primary concern was the 
fishing effort in the monkfish fishery, based on recent turtle 
strandings and the management changes in the fishery. NMFS attempted to 
limit the effect of the interim final rule to gear that is, or might be 
used to target monkfish and that had been shown to have the highest 
impact on sea turtles. NMFS intends to investigate the need for an 
amendment to this rule that would consider, as one alternative, 
extending the restrictions for gillnets with stretched mesh greater 
than 8 inches (20.3 cm) into North Carolina and Virginia state waters. 
NMFS will also investigate and consider additional mesh-size 
restrictions for both Federal and state waters (See Comment and 
Response 2). NMFS recognizes the complexity of addressing the 
impacts of fishing activities, particularly gillnet fisheries, on sea 
turtles. NMFS has previously announced its intent to implement a 
comprehensive, gear-based management approach (see 66 FR 39474, July 
31, 2001) but believes that the degree of threat to sea turtles from 
large-mesh gillnets is so significant that measures must be taken now, 
in advance of the more comprehensive strategy.
    Comment 14: The Council commented that because Framework 1 of the 
FMP, which limited monkfish trips per vessel, was adopted by the 
Councils, no action is needed and this rule is not necessary.
    Response: Although the emergency measures (67 FR 35928; effective 
May 17, 2002) which replaced Framework 1 reduced the Southern Fishery 
Management Area (SFMA) monkfish trip limits as originally approved by 
the Councils, these measures are in effect through November 18, 2002, 
only. In addition, the emergency measures did not further limit the 
number of monkfish vessels that could fish in the SFMA. Therefore, even 
if these trip limits were extended by final rule, an influx of monkfish 
vessels to the SFMA in the spring, as has been seen in the past, could 
result in an increase in gillnet fishing effort despite the reduction 
in trip limits. For example, in light of recent changes to the 
multispecies fishery, the Councils are considering a measure that would 
enable vessels to use their allocated monkfish days-at-sea (DAS) 
separate from multispecies DAS (currently vessels possessing both have 
to use a multispecies DAS when fishing under a monkfish DAS). Finally, 
although the interim final rule makes main reference to the monkfish 
fishery, the restrictions are not specific to one fishery. Large-mesh 
gillnet gear poses an entanglement risk to sea turtles wherever this 
gear type and sea turtles occur. Given the occurrence of sea turtles in 
Federal waters off of North Carolina and Virginia, these measures are 
necessary to reduce the risk of sea turtle interactions with large-mesh 
gillnet gear.

Adoption of the Seasonally Adjusted Closure of Large-mesh Gillnet 
Fishing in the Mid-Atlantic as a Final Rule

    After considering public comment received on NMFS' proposal to

[[Page 71899]]

permanently adopt the seasonal restrictions on large-mesh gillnetting 
in the Mid-Atlantic EEZ, NMFS has determined that the restrictions are 
necessary to adequately protect endangered and threatened species of 
sea turtles and that the restrictions should be enacted permanently, 
without change, through this final rule. Some comments suggested more 
restrictive actions to regulate gillnet fishing for sea turtle 
protection (see Comments 2 and 13). NMFS is not enacting more 
restrictive measures than those originally proposed but will 
investigate the necessity for additional measures to protect sea 
turtles, and, if warranted, will consider alternative actions and seek 
public comment on a proposed rule.

References Cited

    Bass, A.L., S.P. Epperly, J. Braun, D.W. Owens, and R.M. Patterson. 
1998. Natal origin and sex ratios of foraging sea turtles in the 
Pamlico-Albermarle Estuarine Complex. U.S. Dept. Commer. NOAA Tech. 
Mem. NMFS-SEFSC-415:137-138.
    Epperly, S.P., J. Braun, A.J. Chester, F.A. Cross, J.V. Merriner, 
P.A. Tester, and J.H. Churchill. 1996. Beach strandings as an indicator 
of at-sea mortality of sea turtles. Bull. Mar. Sci. 59:289-297.
    Epperly, S.P.and J. Braun-McNeill. 2002. The Use of AVHRR Imagery 
and the Management of Sea Turtle Interactions in the Mid Atlantic 
Bight. NMFS Southeast Fisheries Science Center. Unpublished.
    Murphy, T.M. and S.R. Hopkins-Murphy. 1989. Sea turtle and shrimp 
fishing interactions: a summary and critique of relevant information. 
Center for Marine Conservation, Washington, D.C., 52 pp.
    Norrgard, J. 1995. Determination of stock composition and natal 
origin of a juvenile loggerhead turtle population (Caretta caretta) in 
Chesapeake Bay using mitochondrial DNA analysis. M.S. Thesis, College 
of William and Mary, Gloucester Point, Virginia, 47 pp.
    Rankin-Baransky, K., C.J. Williams, A.L. Bass, B.W. Bowen, and J.R. 
Spotila. 2001. Origin of loggerhead turtle (Caretta caretta) strandings 
in the northwest Atlantic as determined by mtDNA analysis. J. 
Herpetology.
    TEWG (Turtle Expert Working Group). 1998. An assessment of the 
Kemp's ridley (Lepidochelys kempii) and loggerhead (Caretta caretta) 
sea turtle populations in the Western North Atlantic. U.S. Dep. Commer. 
NOAA Tech. Mem. NMFS-SEFSC- 409, 96 pp.
    TEWG (Turtle Expert Working Group). 2000. Assessment update for the 
Kemp's ridley and loggerhead sea turtle populations in the western 
North Atlantic. U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-444, 115 
pp.

Classification

    NMFS prepared an Environmental Assessment (EA) for the final rule 
and concluded that these regulations would neither pose a significant 
adverse environmental impact nor have a significant effect on the 
quality of the human environment. The actions implemented by this final 
rule are expected to impact approximately 20 to 25 monkfish gillnet 
vessel owners and operators. Seven alternatives were evaluated in the 
EA prepared for this rule, including a ``no action'' alternative. For a 
description and analysis of the alternatives, copies of the EA may be 
requested at the addresses listed above.
    Because a general notice of proposed rulemaking was not required by 
5 U.S.C. 553, or any other law, the analytical requirements of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et. seq. are inapplicable. 
However, the total cost to the monkfish fishery is expected to be 
minimal. The primary effect of this final rule will be to establish 
restrictions in an area which is not heavily used by the fishery and to 
set required dates for the northward movement of the fishery up through 
37[deg]56.0' N (Chincoteague, VA) in order to avoid sea turtle 
interactions. Based on VTR data from May 1998 through April 2001, the 
Virginia and North Carolina trips make up a small part of the total 
effort in the monkfish sink gillnet fishery. Together they represent 
5.1 percent of the monkfish tail weight, 0.9 percent of the liver 
weight, and 4.1 percent of the total gillnet trips. The fishery 
normally migrates northward anyway as it follows the monkfish 
movements. This rule does not prevent or limit fishermen from moving 
north of 37[deg]56.0'N (Chincoteague, VA) to prosecute the fishery, 
although the small number of vessels in this fishery that are based in 
North Carolina and Virginia would have extra fuel costs that would 
impact profitability. In 2002, a number of trips were landed in 
Virginia waters during the time frame of the large mesh gillnet 
restrictions, indicating that these vessels were likely fishing north 
of the closed area. This rule does not impact any available DAS or 
catch limits established under previous regulations.
    This final rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule is consistent with the ESA and other applicable 
laws.
    In keeping with the intent of Executive Order 13132 to provide 
continuing and meaningful dialogue on issues of mutual state and 
Federal interest, NMFS has conferred with the States of North Carolina 
and Virginia regarding the need for NMFS to implement this rule to 
protect listed sea turtles.

List of Subjects

50 CFR Part 222
    Administrative practice and procedure, Endangered and threatened 
Species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.
50 CFR Part 223
    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements.

    Dated: November 26, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 222 and 223 
are amended to read as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

    1. The authority citation for part 222 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; and 
31 U.S.C. 9701 et seq.

    2. In Sec.  222.102, add the definition for ``Gillnet'' in 
alphabetical order to read as follows:


Sec.  222.102  Definitions.

* * * * *
    Gillnet means a panel of netting, suspended vertically in the water 
by floats along the top and weights along the bottom, to entangle fish 
that attempt to pass through it.
* * * * *

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 et seq.

    2. In Sec.  223.206, paragraph (d) introductory text is revised and 
paragraph (d)(8) is added to read as follows:


Sec.  222.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) Exception for incidental taking. The prohibitions against 
taking in

[[Page 71900]]

Sec.  223.205(a) do not apply to the incidental take of any member of a 
threatened species of sea turtle (i.e., a take not directed toward such 
member) during fishing or scientific research activities, to the extent 
that those involved are in compliance with all applicable requirements 
of paragraphs (d)(1) through (d)(8) of this section, or in compliance 
with the terms and conditions of an incidental take permit issued 
pursuant to paragraph (a)(2) of this section.
* * * * *
    (8) Restrictions applicable to large-mesh gillnet fisheries in the 
mid-Atlantic region. No person may fish (including, but not limited to, 
setting, hauling back, or leaving in the ocean) with, or possess any 
gillnet with a stretched mesh size larger than 8 inches (20.3 cm), 
unless all gillnets are covered with canvas or other similar material 
and lashed or otherwise securely fastened to the deck or the rail, and 
all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and 
anchors are disconnected. This restriction applies in the Atlantic 
Exclusive Economic Zone (as defined in 50 CFR 600.10) during the 
following time periods and in the following areas:
    (i) Waters north of 33[deg]51.0' N (North Carolina/South Carolina 
border at the coast) and south of 35[deg]46.0' N (Oregon Inlet) at any 
time;
    (ii) Waters north of 35[deg]46.0' N (Oregon Inlet) and south of 
36[deg]22.5' N (Currituck Beach Light, NC) from March 16 through 
January 14;
    (iii) Waters north of 36[deg]22.5' N (Currituck Beach Light, NC) 
and south of 37[deg]34.6' N (Wachapreague Inlet, VA) from April 1 
through January 14; and
    (iv) Waters north of 37[deg]34.6' N (Wachapreague Inlet, VA) and 
south of 37[deg]56.0' N (Chincoteague, VA) from April 16 through 
January 14.
[FR Doc. 02-30605 Filed 12-2-02; 8:45 am]
BILLING CODE 3510-22-S