[Federal Register: December 24, 2002 (Volume 67, Number 247)]
[Rules and Regulations]
[Page 78388-78392]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24de02-22]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket 020626160-2309-03; 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: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS is issuing an interim 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,
south of Point Conception (34[deg]27' N.) and west to the 120[deg]W.,
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 correlates to the area
and season being fished during these oceanographic conditions. Time and
area closures will result in a reduction in the take of loggerhead
turtles 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: This interim final rule is effective January 23, 2003. Comments
on this interim final rule must be postmarked or transmitted by
facsimile by 5 p.m., Pacific Standard Time, on
[[Page 78389]]
February 7, 2003. Comments transmitted via e-mail or the Internet will
not be accepted.
ADDRESSES: Send comments on this interim final rule to Tim Price,
Protected Resources Division, National Marine Fisheries Service,
Southwest Region, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA
90802-4213. Copies of the Environmental Assessment (EA) and biological
opinion (BO) are available on the internet at http://swr.ucsd.edu/ or
may be obtained from Tim Price, Protected Resources Division, National
Marine Fisheries Service, Southwest Region, 501 West Ocean Boulevard,
Suite 4200, Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: Tim Price, NMFS, Southwest Region,
Protected Resources Division, (562) 980-4029.
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 (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)).
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 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.
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, south of Point Conception
(34[deg]27' N.) and west to the 120[deg]W., from August 15 through
August 31, and January 1 through January 31, during a forecasted, or
occurring, El Nino event. On September 20, 2002, NMFS published a
proposed rule (67 FR 59243) to implement this RPA to protect loggerhead
turtles.
Criteria for Determining El Nino Conditions
Using the sea surface temperature anomaly charts available on the
NOAA Coastwatch West Coast Regional Node web page at http://cwatchwc.ucsd.edu/
and observer data on loggerhead turtle
entanglements, NMFS has developed criteria for determining 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. Under the criteria, 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 August or January 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. For example, NMFS evaluates sea surface
temperatures for October and November to determine whether El Nino
conditions in January 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 indicating that El Nino conditions are no longer present for
purposes of implementing the closure.
January 2003 El Nino Determination
On December 12, 2002, NOAA Climate Prediction Center issued an
updated El Nino report which indicated that sea surface temperature
anomalies increased in equatorial waters. However, sea surface
temperatures off of southern California are not expected to attain
positive sea surface temperature anomalies until early Spring 2003.
Using the criteria set forth above, NMFS has determined that El Nino
conditions are not present for purposes of implementing the time and
area closure for January 2003. This determination is based on the
October and November monthly sea surface temperature anomaly charts
which show ocean waters off southern California were -2[deg] and -
1[deg]F (-1.1[deg]C and -0.6[deg]C) below normal respectively. Based on
these
[[Page 78390]]
data, the conditions do not meet the criteria that the preceding second
and third month sea surface temperatures prior to the month of January
are greater than normal. Therefore, the U.S. waters off southern
California, south of Point Conception (34[deg]27' N.) and west to the
120[deg]W., will remain open to drift gillnet fishing between January 1
through January 31, 2003.
Alternate Time and Area Closure
In response to a recommendation by the Pacific Offshore Cetacean
Take Reduction Team (TRT), NMFS conducted a preliminary 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. NMFS reviewed
observer data from the two most recent El Nino events (1992/1993 and
1997/1998). Using this information, NMFS reviewed the number of
observed entanglements of loggerhead turtles that occurred during the
months of January, June, July, and August, and calculated the average
interaction rate for each of these months. By averaging the most recent
3 years of fishing effort (1999-2001), NMFS estimated future monthly
effort in the fishery and calculated preliminary estimates of
loggerhead turtle entanglements by month. Based on limited observer
data, preliminary analysis indicates that a closure in June, July, and
August may provide the same or better protection for loggerhead
turtles. The loggerhead turtle interaction rate is higher during the
summer months than in January, but fishing effort is low during the
summer months. Also, observer data during the summer months is limited.
NMFS is continuing to evaluate this alternate closure and is soliciting
comment on this management regime.
Comments on the Proposed Rule
NMFS received five letters on the proposed rule. Three were in
support of the time and area closure and two were opposed to the time
and area closure. In addition, NMFS received comments from the TRT at
its May 2002 meeting.
Comment 1: One commenter requested that NMFS require fleet-wide
satellite vessel monitoring systems as part of the final rule to
enforce area closures.
Response: Requiring vessels to install vessel monitoring systems
was not part of the proposed action or a term and condition of the
incidental take statement or RPA. At this time, based on 20 percent
observer coverage, California Department of Fish and Game logbook data,
review of fish landing tickets, and the cooperation of the U.S. Coast
Guard, NMFS does not believe vessel monitoring systems will be
necessary to successfully enforce these closures.
Comment 2: One commenter requested that NMFS continue its observer
program at 20 percent and to 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 continue its support for research on the
distribution of sea turtles in the Pacific to determine which habitats
and migratory routes they use.
Comment 3: One commenter felt 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. Based on fishing effort estimates
prepared by California Department of Fish and Game, the annual number
of sets for 2000 and 2001 was 1,936 and 1,482 respectively. For the
next consultation on the fishery, NMFS will use updated estimates to
predict future fishing effort.
Comment 4: One commenter suggested moving the northern boundary of
the closed area to 32[deg]45' N. and the western boundary to
119[deg]30W.
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. Specifically, 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]30W. 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.
Based on the limited data, NMFS believes the proposed boundaries are
not unnecessarily broad.
Comment 5: One commenter indicated that the time and area closure
does not address the incidental take of loggerhead turtles outside of
El Nino events.
Response: Although one loggerhead turtle was observed taken outside
of an El Nino event, NMFS believes this event was an exception and a
random event which is not representative of future anticipated takes.
Specifically, the animal was taken during a month in which the sea
surface temperature was -2[deg]F (-1.1[deg]C) cooler than normal.
Comment 6: One commenter expressed concern that the regulations to
implement the time and area closure to protect loggerhead turtles were
not implemented by August 2001, as recommended in the BO.
Response: As explained in previous Federal Register notices (66 FR
44549, August 24, 2001; 67 FR 59245, September 20, 2002), the
regulations to implement the loggerhead time and area closure need to
be in place if El Nino conditions are predicted or are occurring during
the month of January or between August 15 and August 31 off the coast
of California where loggerhead interactions with the CA/OR drift
gillnet fishery have been documented. However, sea surface temperatures
off of southern California are not expected to attain positive sea
surface temperature anomalies until early Spring 2003.
Comment 7: One commenter recommended that the CA/OR drift gillnet
fishery be managed using an ecosystem approach rather than a piecemeal
approach, like NMFS' actions to date.
Response: Although the CA/OR drift gillnet fishery is managed
primarily by the State of California, NMFS has implemented regulations
under section 118 of the MMPA to reduce the incidental mortality and
serious injury of strategic marine mammal stocks based upon the
recommendations from the TRT. In addition, NMFS has implemented
regulations under the ESA to address the incidental take of listed
marine mammal and sea turtle species. In the future, the fishery might
be regulated by NMFS under the Highly Migratory Species Fishery
Management Plan that has been adopted by the Pacific Regional Fishery
Management Council (but has not yet been submitted to, or approved by,
NMFS).
Comment 8: One commenter requested that NMFS analyze the potential
take of listed species such as the blue whale, Guadalupe fur seal,
right whale, and sei whale, which are likely to occur inside the area
where the fishery operates, although there have been no observed takes
of these species in the CA/OR drift gillnet fishery.
Response: In completing the analysis in the BO, NMFS used the best
available information. NMFS agrees the absence of documented take does
not eliminate the possibility of a future take. However, if future
takes are detected, these will be addressed in subsequent biological
[[Page 78391]]
opinions based on available data at the time.
Comment 9: One commenter requested that NMFS complete a formal
rulemaking for the implementation of regulations to address the
incidental take of green (Chelonia mydas) and olive ridley
(Lepidochelys olivacea) turtles as well as the long-term ecosystem
impacts of shark mortality associated with the CA/OR drift gillnet
fishery.
Response: Since the inception of the observer program, NMFS has
observed one green turtle and one olive ridley turtle interaction with
the CA/OR drift gillnet fishery. Based on these two observations, NMFS
is unable to complete meaningful analysis that would lead to useful
regulations. The Highly Migratory Species Fishery Management Plan under
development by the Pacific Regional Fishery Management Council would,
if approved, allow NMFS to manage the fishery for the incidental take
of shark species.
Comment 10: One commenter requested that NMFS provide a more
meaningful definition of El Nino conditions by focusing on the
conditions that need to be present in order for an El Nino to be
declared for purposes of implementing the time and area closure.
Response: NMFS developed criteria outlined in the supplementary
information section of this interim final rule.
Comment 11: One commenter indicated that the standard used to
determine whether El Nino conditions are present in the waters off
southern California should include the presence of prey which may
affect the migratory patterns of loggerhead turtles in addition to sea
surface temperatures.
Response: NMFS does not have sufficient real-time data on prey
species abundance off southern California to include this parameter as
a criteria for determining whether El Nino conditions are present.
Comment 12: One commenter indicated that the rule should include a
periodic review of oceanic conditions to determine whether the closure
to protect loggerhead turtles should be lifted if El Nino conditions
are no longer present.
Response: As written, the regulatory text of this rule clearly
states that the Assistant Administrator will issue a notice when El
Nino conditions are no longer present. The criteria that will be used
are explained in this preamble, above. To accomplish this, NMFS will
conduct a periodic review of oceanic conditions.
Comment 13: One commenter proposed that the January closure be
replaced with a closure of June, July and August 1 through 14 and that
the northern boundary of the closed area be moved to 32[deg]45' N and
the western boundary be moved to 119[deg]30' W.
Response: NMFS is considering adjusting the management regime
according to this proposal although the analysis has not been
completed. However, preliminary analysis on this recommendation is
discussed elsewhere in the Supplementary Information section of this
interim final rule. Moving the northern and western boundaries of the
area closure is discussed under comment 5.
Comment 14: One commenter indicated that NMFS incorrectly
calculated the effectiveness of the time and area closure in the BO
because NMFS mistakenly included two loggerhead turtles inside the time
and area closure when they were actually taken outside of the time and
area closure. As a result, the percent reduction in loggerhead
interactions with the time and area closure is reduced from 65 percent
to 53 percent.
Response: NMFS agrees that there were two loggerhead turtles
mistakenly reported inside the time and area closure and the correct
percent reduction of the time and area closure is 53 percent.
Pacific Offshore Cetacean Take Reduction Team Recommendations
Comment 15: The TRT recommended that NMFS implement a time and area
closure during the months of June, July, and August instead of August
15 through August 31, and January 1 through January 31. This
recommendation was based on the number of loggerhead turtle
interactions that have occurred during these months, the limited
fishing effort during this time period, and the apparent higher
entanglement rate.
Response: NMFS is considering this alternative. The preliminary
analysis is discussed elswhere in the Supplementary Information section
of this interim final rule.
Comment 16: The TRT recommended that NMFS more clearly define what
constitutes El Nino conditions that trigger loggerhead restrictions.
Specifically, the TRT recommended that NMFS determine if there are
specific local conditions or a particular strength of an El Nino that
correlate with an increased take of loggerhead turtles in the fishery.
Response: The criteria NMFS is using to determine El Nino
conditions are explained in this interim final rule (see above).
Comment 17: The TRT recommended that research be conducted on the
movement patterns of loggerhead sea turtles off southern California
during El Nino years and their habitat preferences (including water
temperature and prey). This information should also be factored into
future agency decisions regarding measures for reducing mortality and
entanglement of loggerhead turtles.
Response: NMFS equipped five loggerhead turtles off Baja California
with satellite transmitter tags that provide location and dive data. In
addition, NMFS intends to continue tagging loggerhead turtles off Baja
California in subsequent years. These data will be used in future
agency decisions.
Comment 18: If NMFS does not accept the TRT's recommendation to
replace the January closure with a closure from June, July, and August
1 to August 14, the TRT recommends that the northern limit of the
loggerhead closure area be shifted from Point Conception to 33[deg]N.
If a loggerhead entanglement occurs north of 33[deg]N in the CA/OR
drift gillnet fishery in an El Nino year, the closure area would revert
to Point Conception for that January and August and for that period of
subsequent El Nino years.
Response: See response to comment 4.
The regulatory text of this interim final rule is identical to the
regulatory text of the proposed rule (67 FR 59243, September 20, 2002).
Classification
NMFS prepared an EA (August 13, 2001) and a supplement to the EA
for this interim final rule and concluded that these regulations would
have no significant impact on the human environment. In addition to the
status quo and the time and area closures indentified in this interim
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 which
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 not considered further
because NMFS could not be certain that singularly or together they
would result in a significant reduction in the level of take and
mortality of sea turtles.
[[Page 78392]]
The actions implemented by this interim final 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 rule which incorporates the 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. NMFS did not receive comments on
the detailed economic analysis and alternatives on the EA prepared for
this interim final rule.
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 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. This interim final rule implements the
RPA to protect loggerhead turtles. 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.
Dated: December 16, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
Mammals, Transportation.
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
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, 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 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.
(ii) 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.
* * * * *
[FR Doc. 02-32302 Filed 12-23-02; 8:45 am]
BILLING CODE 3510-22-S