[Federal Register Volume 68, Number 241 (Tuesday, December 16, 2003)]
[Rules and Regulations]
[Pages 69962-69967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30919]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket 020626160-3217-04; I.D. 070203F]
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: Final rule and technical correction.

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SUMMARY: NMFS is issuing a final 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 in waters 
east of the 120[deg]W., for the months of June, July, and August, when 
the Assistant Administrator for Fisheries (AA) publishes a notice that 
El Nino conditions are forecasted or present off southern California. 
NMFS

[[Page 69963]]

has determined that the incidental take of loggerhead sea turtles by 
this fishery correlates to the area and season being fished during 
these oceanographic conditions. If implemented, this time and area 
closure will result in a reduction in the take of loggerhead turtles by 
the fishery and would be necessary to avoid the likelihood of the CA/OR 
drift gillnet fishery jeopardizing the continued existence of the 
loggerhead turtle population.

DATES: This final rule is effective January 15, 2004.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review (EA/RIR) and biological opinion (BO) are available on the 
internet at http://swr.nmfs.noaa.gov or may be obtained from Cathy 
Campbell, Protected Resources Division, National Marine Fisheries 
Service, Southwest Region, 501 West Ocean Boulevard, Suite 4200, Long 
Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Cathy Campbell, NMFS, Southwest 
Region, Protected Resources Division, (562) 980-4060.

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 turtle (Caretta caretta) is listed as 
threatened. Under the ESA and its implementing regulations (50 CFR 
223.205), taking threatened sea turtles, even incidentally, is 
prohibited, with exceptions identified in 50 CFR 223.206. The 
incidental take of threatened species may only be legally authorized by 
an incidental take statement in a biological opinion issued pursuant to 
section 7 of the ESA, an incidental take permit issued pursuant to 
section 10 of the ESA, or regulations under section 4(d) 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)).
    NMFS completed a formal consultation to authorize this incidental 
take of marine mammals listed under the ESA, 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 loggerhead turtles. On October 
23, 2000, NMFS issued a BO in which it determined that the then current 
operations of the CA/OR drift gillnet fishery were likely to jeopardize 
the continued existence of loggerhead turtles.

Measure to Reduce Loggerhead Turtle Entanglements

    To avoid the likelihood of the CA/OR drift gillnet fishery 
jeopardizing the continued existence of loggerhead turtles, NMFS 
developed a Reasonable and Prudent Alternative (RPA) in the BO that 
consists of prohibiting CA/OR drift gillnet vessels from fishing in 
U.S. waters off southern California east of the 120[deg]W. (in the area 
bounded by the California coastline to the north and east, the U.S.- 
Mexico border to the south, and the 120[deg] W to the west), from 
August 15 through August 31, and January 1 through January 31, during a 
forecasted, or occurring, El Nino event. This measure would reduce the 
likelihood of the CA/OR drift gillnet fishery incidentally entangling 
loggerhead turtles by 71 percent. On September 20, 2002, NMFS published 
a proposed rule (67 FR 59243) to implement this RPA to protect 
loggerhead turtles. On December 24, 2002, NMFS published an interim 
final rule (67 FR 78388) that implemented the RPA to protect loggerhead 
turtles and solicited public comment on an alternative closure during 
the months of June, July, and August. In response to a request from the 
public to provide more time to review the loggerhead turtle 
entanglement data and the sea surface temperature data, NMFS extended 
the comment period from February 7, 2003, to March 24, 2003 (68 FR 
7080, February 12, 2003).

Responses to Comments

    The measures in this final rule are based in part on comments 
received on the proposed (see 67 FR 78388 December 24, 2002, for 
comments and responses) and interim final rules. NMFS received ten 
comments on the interim final rule. NMFS reviewed and considered all 
comments received in the development of this rule.
    Comment 1: Several commenters believe that the CA/OR thresher 
shark/swordfish drift gillnet fishery, which has a very low take of 
loggerhead turtles, is not the cause of the decline in the population 
of loggerhead sea turtles and that closures in this fishery are not 
necessary.
    Response: While NMFS recognizes that the CA/OR thresher shark/
swordfish drift gillnet fishery has a low level of take of loggerhead 
turtles, the status of the loggerhead turtle population is sufficiently 
depleted that the impact of this fishery in addition to existing 
impacts resulted in a finding that the current operations of the CA/OR 
drift gillnet fishery were likely to jeopardize the continued existence 
of loggerhead turtles.
    Comment 2: Several commenters supported a closure during June 
through August rather than in January and August 15 through 31 during 
El Nino conditions. They noted that the closure in June through August 
provided greater protection to loggerhead turtles than the RPA in the 
October 2000 BO, while causing less economic burden to the CA/OR 
thresher shark/swordfish drift gillnet fishery.
    Response: NMFS agrees and is implementing an alternate closure 
during the months of June, July, and August during El Nino conditions. 
As explained in the following section, NMFS conducted an analysis of 
observer data and recent fishing effort data and determined that a 
closure during June, July, and August during El Nino conditions 
provides greater protection for loggerhead turtles than the RPA in the 
October 2000 BO while causing less economic burden to the CA/OR 
thresher shark/swordfish drift gillnet fishery.
    Comment 3: One commenter suggested moving the northern boundary of 
the closed area south to 32[deg]45'N. and the western boundary east to 
119[deg]30'W because there have been no loggerhead turtles observed 
taken outside this area.
    Response: Although there have been no observed loggerhead turtles 
taken in ocean waters north of 32[deg]45'N. during El Nino events or 
west of 119[deg]30'W., this does not mean that loggerhead turtles are 
not present in this area. During El Nino events, NMFS has limited 
observer data for this area, with only 77 observed sets in the area 
east of 120[deg]W. and north of 32[deg]45'N. and 14 sets between 
120[deg]W. and 119[deg]30'W. south of 32[deg]45'N. Therefore, the lack 
of an observed take in this area may be the result of fewer 
observations in this area during the summer months of El Nino events. 
Sea surface temperatures show that the area east of the 120[deg]W 
during El Nino conditions are comparable to the sea surface 
temperatures where loggerhead turtle entanglements were observed. In

[[Page 69964]]

addition, NMFS has received reports of strandings of loggerhead turtles 
and sightings of unidentified hard shell turtles in the area north of 
32[deg]45'N. during El Nino events. Sea surface temperature and 
stranding data indicate that loggerhead turtles are likely to be 
present in the area west of the 119[deg]30'W. and north of 32[deg]45'N. 
and that a closure in this area is warranted.
    Comment 4: One commenter opposed any closure during the months of 
January or August.
    Response: Under this final rule, NMFS will not be implementing a 
closure during January; however, NMFS will be implementing a closure in 
August during El Nino conditions, as a closure during August is 
essential to providing adequate protection to loggerhead turtles. As 
discussed in the response to Comment 2, NMFS is implementing a closure 
during June, July, and August in order to provide greater protection 
for loggerhead turtles than the level specified in the RPA in the 
October 2000 BO while causing less economic burden to the CA/OR 
thresher shark/swordfish drift gillnet fishery.
    Comment 5: One commenter noted that oceanographic conditions at 
Point Conception were not comparable with the areas in which the most 
northerly loggerhead turtle entanglement was observed (32[deg]45'N) and 
that, therefore, the most northerly boundary of the closure should be 
33[deg]00'N, rather than the coast of California east of 120[deg]W 
(which has a northerly boundary of 34[deg]27'N). In addition, the 
commenter recommended the fishery should only be closed from August 16-
31 during El Nino conditions, and should remain open during the month 
of January.
    Response: Based on the sea surface temperature charts available on 
the NOAA Coastwatch West Coast Regional Node web page at http://coastwatch.pfel.noaa.gov/, sea surface temperatures in the area east of 
120[deg]W during El Nino conditions are comparable to the sea surface 
temperatures where loggerhead turtle entanglements were observed. NMFS 
agrees that the sea surface temperatures at Point Conception, which is 
outside the closure area, are generally lower than those seen in the 
area in which loggerhead turtle entanglements occurred. As explained in 
the response to Comment 3, NMFS believes that a northern boundary of 
34[deg]27'N will encompass an area where loggerheads are likely to 
occur during El Nino events.
    NMFS' analysis of observer and fishing effort data shows that a 
closure during August 16-31 during El Nino conditions would not provide 
adequate protection to loggerhead turtles as required by the October 
2000 BO. The closure (i.e., August 16-31 and January) required by the 
October 2000 BO is expected to result in the estimated reduction in 
take of 6 loggerhead turtles during El Nino years. A closure limited to 
the period of August 16-31 during El Nino years is expected to only 
result in a reduction in the estimated take of 3 to 4 loggerhead 
turtles. Thus, NMFS has determined that a closure during August 16-31 
during El Nino years will not provide the level of protection required 
under the October 2000 BO. As discussed in the response to Comment 2, 
NMFS is implementing a closure during June, July, and August during El 
Nino conditions in order to provide greater protection to loggerhead 
turtles than the RPA in the October 2000 BO while causing less economic 
burden to the CA/OR thresher shark/swordfish drift gillnet fishery.
    Comment 6: One commenter believed that NMFS' use of 3,000 sets as 
an estimate of annual fishing effort in the October 2000 BO was 
unrealistically high.
    Response: At the time the BO was prepared, 3,000 sets was a 
reasonable estimate to predict future fishing effort based on a 3-year 
average using 1997, 1998, and 1999 data. NMFS is aware that fishing 
effort has continued to decline. As discussed in the following section, 
NMFS used a 3-year average of fishing effort using data from 1999 
through 2001 to estimate future fishing effort in order to compare the 
alternative time/area closures to protect loggerhead turtles.
    Comment 7: One commenter supported NMFS criteria for determining 
whether El Nino conditions are present along southern California for 
the purpose of implementing the time and area closure.
    Response: NMFS has included these criteria in this final rule.
    Comment 8: One commenter requested that NMFS continue its observer 
program at 20 percent coverage and continue its support for ongoing 
research on the distribution of sea turtles in the Pacific Ocean to 
determine which habitats and migratory routes these species use.
    Response: NMFS intends to continue monitoring the CA/OR drift 
gillnet fishery targeting swordfish and thresher shark at 20 percent 
observer coverage and to continue its support for research on the 
distribution of sea turtles in the Pacific to determine which habitats 
and migratory routes they use.

Alternative Measure to Reduce Loggerhead Turtles Entanglements

    The Pacific Offshore Cetacean Take Reduction Team recommended that 
NMFS implement a closure in June, July, and August, rather than during 
January and August 15 through 31, to reduce entanglement of loggerhead 
turtles. NMFS outlined this proposal in the interim final rule (67 FR 
78388, December 24, 2002) and solicited comments on this alternative. 
As discussed in the previous section, NMFS received several additional 
comments on the interim final rule that favored the implementation of 
this alternative.
    In response to these comments, NMFS conducted a review of observer 
data to determine whether an alternate closure in June, July, and 
August would offer the same or better protection than the closure 
during January 1 through 31 and August 15 through 31. The data used for 
this analysis are summarized in Table 1. NMFS reviewed observer data 
from the two most recent El Nino events (1992/1993 and 1997/1998) for 
the number of observed sets and the number of observed entanglements of 
loggerhead turtles that occurred during the months of January, June, 
July, and August, and used these data to calculate the average 
interaction rate for each of the two time periods. Future effort in the 
fishery for the two time periods was estimated by averaging fishing 
effort from 1999 through 2001. Using these data, NMFS estimated the 
number of loggerhead turtle entanglements that are expected to occur 
during each of the two time periods.

        Table 1. Comparison of Expected Loggerhead Turtle Entanglements During Alternate Closure Periods
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                                                                                   Expected
                                                                                    Average
                Closure Period                  Observed    Observed     Catch  Fishing Effort   Expected Turtle
                                                  Sets    Entanglement   Rate     (number of      Entanglement
                                                                                     sets)
----------------------------------------------------------------------------------------------------------------
                Jun 1 - Aug 31                       131            12    0.09              76                 7
             January + Aug 15-31                     387             9    0.02             252                 6
----------------------------------------------------------------------------------------------------------------


[[Page 69965]]

    As illustrated in Table 1, the loggerhead turtle interaction rate 
is higher during June, July, and August (0.09 entanglements per set) 
than during January and August 15 through 31 (0.02 entanglements per 
set). However, the expected fishing effort, based on the average 
fishing effort from 1999-2001, is much lower in June, July, and August 
(76 sets) than during January and August 15 through 31 (252 sets). NMFS 
estimates that an average of 7 turtles would be taken during June, 
July, and August during El Nino conditions. By comparison, NMFS 
estimates that an average of 6 turtles would be taken during January 
and August 15 through 31. Thus, because of the higher entanglement rate 
during the June/July/August period, NMFS expects that a closure during 
this period will provide more protection to loggerhead turtles than a 
closure during January and August 15-31.
    NMFS conducted an analysis to ensure that the June, July, and 
August closure period would avoid jeopardy for loggerhead turtles. The 
Incidental Take Statement in the 2000 BO stated that an observed take 
of 1 loggerhead turtle per El Nino year, extrapolated to an estimated 
mortality of 2 loggerhead turtles per El Nino year, would avoid 
jeopardy. NMFS' analysis of the June, July, and August closure period 
indicated that 6 loggerhead sea turtles would be captured per El Nino 
year outside of the closure period (e.g., September through May). 
Assuming that 32 percent of the captured loggerhead turtles would be 
killed (based on the survival rate of hard-shelled turtles caught by 
the CA/OR drift gillnet fleet from 1990-2000), NMFS estimated that 2 
loggerhead turtles would be killed per El Nino year from September 
through May. Therefore the incidental mortality of loggerhead turtles 
that would be expected to occur with implementation of the June, July, 
and August closure period is consistent with the Incidental Take 
Statement and avoids jeopardy for loggerhead turtles.
    As a result of this analysis, NMFS has concluded that 
implementation of the alternate closure in June, July, and August 
complies with the ESA because it provides at least the same level (and 
is expected to be greater) protection as the RPA identified in the BO.

Criteria for Determining El Nino Conditions

    In order to determine whether El Nino conditions are present for 
the purposes of implementing this rule, NMFS is using the criteria 
outlined in the interim final rule (67 FR 78388, December 24, 2002). 
These criteria are outlined below.
    For years in which an El Nino event has been declared by the NOAA 
Climate Prediction Center, NMFS uses the sea surface temperature 
anomaly charts available on the NOAA Coastwatch West Coast Regional 
Node web page at http://coastwatch.pfel.noaa.gov/ and observer data on 
loggerhead turtle entanglements to determine whether El Nino conditions 
are present along southern California for the purpose of implementing 
the time and area closure identified in the October 2000 BO. NMFS uses 
the monthly sea surface temperature anomaly charts to determine whether 
there are warmer than normal sea surface temperatures present off of 
southern California during the months prior to the closure month for 
years in which an El Nino event has been declared by the NOAA Climate 
Prediction Center. ``Normal sea surface temperatures'' is the average 
of the monthly mean sea surface temperatures for 1950-97.
    All loggerhead turtles observed entangled in the CA/OR drift 
gillnet fishery during El Nino events were entangled during months in 
which the sea surface temperatures ranged from approximately 60[deg]F 
to 72[deg]F (15.6[deg]C to 22.2[deg]C) and sea surface temperatures 
differed from the average by approximately 0[deg]F to +4[deg]F (0[deg]C 
to +2.2[deg]C). The sea surface temperature during the month preceding 
each observed loggerhead entanglement was either greater than normal or 
equal to the normal sea surface temperature. The sea surface 
temperature during the third month and second month prior to each 
entanglement during an El Nino event was always greater than the normal 
sea surface temperature for that month. NMFS believes this is because 
warmer sea surface temperatures are necessary for loggerhead turtles to 
move into the area. There have been no observed entanglements in this 
fishery in which any one of the preceding 3 months were colder than 
normal.
    Based on this information, the need to allow sufficient lead time 
to publish a notice in the Federal Register announcing El Nino 
conditions prior to the start date of the closure, and the fact that 
the sea surface temperature charts for a recently completed given month 
are not available until the following month, NMFS is using sea surface 
temperature data from the third and second months prior to the month of 
the closure for determining whether El Nino conditions are present off 
of southern California. Thus, for years in which an El Nino event has 
been declared by the NOAA Climate Prediction Center, NMFS will evaluate 
sea surface temperatures for March and April to determine whether El 
Nino conditions in June will trigger a closure to conserve loggerhead 
turtles. Specifically, if an El Nino has been declared for equatorial 
waters and the sea surface temperatures off southern California during 
this 2-month time period are greater than normal, NMFS will publish a 
Federal Register notice with the determination that El Nino conditions 
are forecast off of southern California for the purpose of implementing 
the time and area closure to protect loggerhead turtles. If the sea 
surface temperatures are normal or below normal and the Assistant 
Administrator has previously published a Federal Register notice 
indicating that El Nino conditions are present off southern California, 
the Assistant Administrator will publish an additional Federal Register 
notice announcing that El Nino conditions are no longer present for 
purposes of implementing the closure.
    Although the process for determining whether El Nino conditions are 
present for the purposes of implementing this rule was not set forth in 
the regulatory text of the interim final rule, it was outlined in the 
preamble to the interim final and comments were solicited on these 
criteria. NMFS has decided to make these criteria permanent by 
including them in the regulatory text of this final rule.

El Nino Determination for Summer 2003

    NMFS has determined that El Nino conditions were neither forecasted 
nor present off southern California for purposes of implementing the 
time and area closure for June, July, and August 2003. This 
determination was based on the March, April, May, and June monthly sea 
surface temperature anomaly charts as well as actual sea surface 
temperatures. Based on the criteria outlined above, sea surface 
temperatures in both the third and second months prior to the closure 
would need to be warmer than normal in order to trigger the 
implementation of the closure. Sea surface temperature anomaly charts 
for March, May, and June 2003 show ocean waters off southern California 
to be normal to 0.9[deg]F (0.5[deg]C) cooler than normal. Thus, the 
U.S. waters off southern California, east to 120[deg]W remained open to 
drift gillnet fishing in June, July, and August 2003.

El Nino Determination for Winter 2004

    NMFS has determined that El Nino conditions are neither forecasted 
nor present off southern California for purposes of implementing a 
January 2004, time and area closure pursuant to

[[Page 69966]]

 the December 24, 2002, Interim Final Rule (67 FR 78388). The October 
2003 sea surface temperature anomaly chart indicates that sea surface 
temperatures off of southern California appear to be mostly normal with 
a narrow band of warmer than normal water (0.9[deg]F (0.5[deg]C) to 
2.7[deg]F (1.5[deg]C)) near shore off of San Diego and extending down 
into Mexico along Baja California. Based on these sea surface 
temperatures, and sea surface temperature profiles during previous 
years in which there were observed loggerhead sea turtle captures 
during the month of January by the CA/OR drift gillnet fishery, the 
current oceanographic conditions along southern California do not 
appear to indicate that El Nino conditions are present, and therefore 
U.S. waters off southern California, east to 120[deg]W remain open to 
drift gillnet fishing in January 2004. NMFS will continue to monitor El 
Nino conditions and accordingly determine whether to implement any 
future closures.

Technical Correction

    In this final rule, NMFS is adding regulatory text to Sec.  
223.206(d)(6)(i) that establishes a Leatherback Conservation Area. That 
regulatory text was originally implemented through an August 24, 2001 
(66 FR 44549) interim final rule but was inadvertently deleted from the 
Code of Federal Regulations because of faulty regulatory instructions 
in the December 2002 interim final rule.

Classification

    NMFS prepared an EA (August 13, 2001), a supplement to the EA for 
the interim final rule (December 2002), and a revised supplement to the 
EA/RIR for this final rule and concluded that these regulations would 
have no significant impact on the human environment. For a description 
of the initial Regulatory Flexibility Analysis and a detailed economic 
analysis of the CA/OR drift gillnet fishery, readers should refer to 
the August 13, 2001, EA prepared for the proposed rule.
    The economic analysis conducted for this final rule anticipates an 
impact of approximately 16 CA/OR drift gillnet vessel owners and 
operators, representing approximately 76 fishing sets annually. The 
total gross revenue loss to the CA/OR drift gillnet fleet resulting 
from the time and area closures in this final rule is expected to be 
$79,500 for an El Nino year. This estimate is based on California 
Department of Fish and Game landing receipts for the period from June 1 
through August 31, using data from 1997 to 2000. 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. Based on 2001 fishing effort data, the reduction in total 
gross revenues is not expected to exceed $4,970 per vessel per El Nino 
year. On average, during these time periods, approximately $3,000 of 
louvar, $11,100 of mako shark, $3,000 of opah, $23,900 of swordfish, 
and $38,500 of thresher shark are landed. NMFS did not receive comments 
on the detailed economic analysis and alternatives on the August 2001 
EA prepared for this final rule. The El Nino closure that would have 
been imposed under the December 24, 2002, interim final rule was 
expected to result in a total gross revenue loss of $440,000 and was 
expected to impact 500 sets per El Nino year. This final rule minimizes 
the negative economic impact to the fishery, while maintaining 
necessary protection for listed sea turtles, by reducing the total 
gross revenue loss by approximately 82 percent.
    In addition to the time and area closures identified in this final 
rule, NMFS examined several alternatives for reducing or eliminating 
sea turtle entanglements when developing measures to avoid the 
incidental take of sea turtles. NMFS searched for a strategy that would 
provide the most certainty in reducing or eliminating entanglements 
upon implementation. These strategies included: (1) reducing fishing 
effort through gear modifications; (2) reducing fishing effort by 
decreasing the number of vessels; (3) increasing survival of entangled 
sea turtles; (4) implementing gear modifications to reduce 
interactions; and (5) changing fishing practices such as shorter soak 
times. These alternatives were analyzed in detail in the August 13, 
2001, EA prepared for the proposed rule. They were not considered 
further because data are insufficient to determine whether these 
alternatives would avoid the likelihood of jeopardizing the continued 
existence of the loggerhead sea turtle as required by section 7(b) of 
the ESA. NMFS analyzed the patterns of loggerhead sea turtle captures 
and mortalities in the CA/OR drift gillnet fishery. Based on this 
assessment, NMFS found that the most effective method of avoiding 
loggerhead interactions and mortality is a time/area closure during El 
Nino years (anticipated reduction in interactions is approximately 92 
percent). NMFS found no apparent correlation between variations in 
fishing strategy and loggerhead sea turtle interactions and determined 
that modifications in gear or gear deployment are not likely to achieve 
significant or measurable reductions in the capture and mortality rate 
of these turtles.
    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.
    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 loggerhead turtles. 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 
(Dermochelys coriacea) and loggerhead sea turtles. This final rule 
implements an alternative to the RPA in the BO to protect loggerhead 
sea turtles. NMFS has determined that the alternative implemented by 
this final rule is more protective of loggerhead sea turtles than the 
RPA in the BO. NMFS, which issued the BO, has concurred that this 
alternative would provide more protection than the RPA identified in 
the BO and would avoid the likelihood of jeopardizing the continued 
existence of the loggerhead sea turtle. This alternative does not 
change the conclusions of the BO related to marine mammals listed under 
the ESA. Moreover, this final rule will have no adverse impacts on 
marine mammals that are not listed under the ESA.
    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 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.


[[Page 69967]]


    Dated: December 8, 2003.
Rebecca Lent,
Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 223 is amended to 
read as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 is revised to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.102 also 
issued under 16 U.S.C. 1361 et seq.

0
2. In Sec.  223.206(d), paragraph (d)(6) is revised to read as follows:


Sec.  223.206  Exceptions to prohibitions relating to 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:
    (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) Pacific loggerhead conservation area. No person may fish with, 
set, or haul back drift gillnet gear in U.S. waters of the Pacific 
Ocean east of the 120[deg] W. from June 1 through August 31 during a 
forecasted, or occurring, El Nino event off the coast of southern 
California (as determined under paragraph (d)(6)(iii) of this section).
    (iii) Determination and notification concerning an El Nino event. 
The Assistant Administrator will publish in the Federal Register a 
notification that an El Nino event is occurring off of, or is forecast 
for, the coast of southern California and the imposition of a closure 
under paragraph (d)(6)(ii) of this section. Furthermore, the Assistant 
Administrator will announce the imposition of such a closure by other 
methods as are necessary and appropriate to provide actual notice to 
the participants in 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, in 
order to determine whether an El Nino is forecasted or occurring for 
the coast of southern California. The Assistant Administrator will use 
the monthly sea surface temperature anomaly charts to determine whether 
there are warmer than normal sea surface temperatures present off of 
southern California during the months prior to the closure month for 
years in which an El Nino event has been declared by the NOAA Climate 
Prediction Center. Specifically, the Assistant Administrator, will use 
sea surface temperature data from the third and second months prior to 
the month of the closure for determining whether El Nino conditions are 
present off of southern California. If an El Nino has been declared for 
equatorial waters and the sea surface temperatures off southern 
California during this 2-month time period are greater than normal, the 
Assistant Administrator will publish in the Federal Register 
notification that an El Nino event is occurring off of, or is forecast 
for, the coast of southern California and the imposition of a closure 
under paragraph (d)(6)(ii) of this section. If the sea surface 
temperatures are normal or below normal and the Assistant Administrator 
has previously published a Federal Register notice indicating that El 
Nino conditions are present off southern California, the Assistant 
Administrator will publish an additional Federal Register notice 
announcing that El Nino conditions are no longer present for purposes 
of implementing the closure. The area closure imposed under this 
paragraph (d)(6) will remain in effect until the Assistant 
Administrator files with the Office of the Federal Register a notice 
that the El Nino event is no longer occurring.
* * * * *
[FR Doc. 03-30919 Filed 12-15-03; 8:45 am]
BILLING CODE 3510-22-S