Marine mammals: Sea turtle conservation; North Carolina gillnet fishing restrictions,

[Federal Register: October 3, 2001 (Volume 66, Number 192)]

[Rules and Regulations]

[Page 50350-50354]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr03oc01-18]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010926236-1236-01; I.D. 091301B]

RIN 0648-AP63

Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Interim final rule; request for comments.

SUMMARY: NMFS is closing the waters of Pamlico Sound, North Carolina, to fishing with gillnets with a mesh size larger than 4\1/4\ inch (10.8 cm) stretched mesh (``large-mesh gillnet''), from September 28, 2001 through December 15, 2001, to protect migrating sea turtles. The closed area includes all inshore waters of Pamlico Sound south of 35 deg.46.3' N. lat., north of 35 deg.00' N. lat., and east of 76 deg.30' W. long. NMFS is also considering issuance of a final rule establishing this seasonal closure each year as a permanent sea turtle conservation measure and is seeking comments on this interim rule.

DATES: This interim final rule is effective on September 28, 2001 through September 14, 2002. However, the provisions of Sec. 223.206(d)(7) are applicable September 28, 2001 through December 15, 2001. Comments on this interim final rule are requested and must be postmarked or transmitted by facsimile by 5 p.m., Eastern Standard Time, on January 2, 2002. Comments transmitted via e-mail or the Internet will not be accepted.

ADDRESSES: Send written comments on this interim final rule to the Chief, Endangered Species Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via fax to 301-713-0376, Attn: Chief, Endangered Species Division, Office of Protected Resources. Comments will not be accepted if submitted via e-mail or the Internet. Copies of the Environmental Assessment (EA) prepared for this interim final rule and for the ESA Section 10(a)(1)(B) permit to NCDMF may also be requested at the same address.

FOR FURTHER INFORMATION CONTACT: David M. Bernhart (ph. 727-570-5312, fax 727-570-5517, e-mail David.Bernhart@noaa.gov), or Barbara A. Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail Barbara.Schroeder@noaa.gov).

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. Loggerhead (Caretta caretta) and green (Chelonia mydas) turtles 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 threatened species identified in 50 C.F.R. 223.206. The incidental take of endangered species may only legally be authorized by an incidental take statement provided or an incidental take permit issued pursuant to section 7 or 10 of the ESA.

1999 Events

In early November 1999, significant increases were noted in inshore sea turtle strandings in the southeastern portion of Pamlico Sound. During November and December, a total of 97 strandings occurred in the area. Kemp's ridley turtles accounted for 46 of the strandings; 31 of the strandings were loggerhead turtles; 19 of the strandings were green turtles; and the species of one of the turtles was not identified. Onboard sea turtle monitoring was conducted by the NCDMF in southeastern Pamlico Sound during November 22-24, 1999. Eleven observer trips were conducted, consisting of five trips aboard deep-water flounder gillnet (5 inch (12.7 cm) and larger stretched mesh) vessels and six trips aboard spotted seatrout gillnet (3 to 4 inch (7.6 to 10.2 cm) stretched mesh, or ``small-mesh gillnet'') vessels. Gear characteristics, set locations and soak times were recorded for each set. Two Kemp's ridley turtles were observed captured in deep-water flounder gillnets in five observer trips. No sea turtles were captured in the observed trips aboard the small mesh gillnet vessels. While limited data had been available previously concerning gillnet takes of sea turtles, the deep-water, large-mesh gillnet fishery for flounder in southeastern Pamlico Sound was suspected of being responsible for a significant portion of the sea turtle strandings. The NCDMF Marine Patrol and NOAA Fisheries Enforcement personnel conducted joint surveillance of the Pamlico Sound shrimp and gillnet fisheries during November 1999. No shrimp trawl TED violations were detected in the area. Enforcement personnel reported significant large-mesh gillnet activity in the vicinity of the strandings. An untended large-mesh gillnet was checked by enforcement

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personnel, and a dead Kemp's ridley turtle was found entangled in the net.

On December 10, 1999, NMFS issued an emergency rule closing southeastern Pamlico Sound to the use of gillnets larger than 5 inch (12.7 cm) mesh to protect endangered and threatened sea turtles (64 FR 70196). Strandings decreased after implementation of the closure; however, many fishermen had stopped fishing for flounder prior to the closure. The decrease in fishing effort may have resulted in the decrease in strandings. The closure remained in effect through January 9, 2000.

2000 Events

NMFS officials met with some of the affected fishermen and the NCDMF Director on January 6, 2000, in Engelhard, N.C., to discuss the emergency closure. Many fishermen insisted that there was insufficient evidence to show that their fishery was primarily responsible for the sea turtle mortality. Some indicated that other factors, primarily the after-effects of Hurricanes Dennis and Floyd that had hit eastern North Carolina in August and September 1999, may have contributed to the turtle deaths. The fishermen acknowledged that they had fished large amounts of gear that season, up to 10,000 yards (9,140 m) and more typically 5,000 yards (4,570 m) each, but that the large amounts of gear were necessary to compete in the mostly unregulated fishery. The fishermen agreed that more observer information from the large-mesh gillnet fishery was necessary to describe the fishery's turtle bycatch. The NMFS officials explained the ESA prohibitions against takes of endangered species like the Kemp's ridley turtle. Without the incidental take authorization provided by a section 10(a)(1)(B) permit, additional illegal takes would likely result in the closure of the fishery again. The NCDMF Director told the fishermen that NCDMF would likely pursue a section 10 permit and would institute gear restrictions and an observer program for the 2000 season.

NCDMF submitted an application to NMFS on June 21, 2000, for a section 10(a)(1)(B) permit to authorize the incidental take of sea turtles in the fall, large-mesh gillnet fishery in southeastern Pamlico Sound. NCDMF called this area the Pamlico Sound Gillnet Restricted Area (PSGNRA). NMFS announced the receipt of the permit application in the Federal Register on August 3, 2000 (65 FR 47715), and requested public comments through September 5, 2000. In response to comments from the public and NMFS, NCDMF provided additional details on their application and made some changes to their proposed management of the fishery under the permit. On October 5, 2000, NMFS issued permit 1259 to NCDMF, valid through December 15, 2000.

The goal of the conservation plan, required to be submitted by applicants for ESA section 10(a)(1)(B) permits, for permit 1259 was for NCDMF to monitor sea turtle interactions in the fall large-mesh gillnet fishery in the PSGNRA and to implement management measures to reduce sea turtle mortality by 50 percent from September 15 through December 15, compared to the levels seen in the strandings of 1999. Permit 1259 set corresponding limits on the allowed levels of observed takes of sea turtles--both live and lethal takes--and documented strandings.

NCDMF implemented registration and reporting requirements and yardage limitations (no more than 3,000 yards (2,743 m) of gillnet per fishing operation) for the large-mesh gillnet fishery in southeastern Pamlico Sound. NCDMF also placed observers aboard a portion of the large-mesh gillnet boats to be able to estimate the actual turtle take levels against the limits in the permit. During the fifth week of the season (October 14 to 20, 2000), the number of lethal captures of green sea turtles, based on the observer coverage, had exceeded the level allowed by Permit 1259. Stranding levels had not yet reached the maximum level allowed by Permit 1259. The NCDMF Director issued a fisheries proclamation closing the PSGNRA to gillnetting with mesh size of 5 inch (12.7 cm) or greater, effective October 27, 2000.

From October 28 to December 15, 2000, 59 sea turtles (excluding live, cold-stunned animals) stranded within the PSGNRA. Although the PSGNRA was closed to gillnet fishing with nets with 5 inch (12.7 cm) or larger mesh, some fishermen re-equipped their nets with a 4\7/8\ inch (12.4 cm) mesh size to circumvent the closure and continued fishing and targeting flounder. Fishermen using 3 to 4 inch (7.6 to 10.2 cm) mesh gear to target seatrout or mackerel were also unaffected by the closure and continued to fish within the PSGNRA. Other fishermen simply moved their large-mesh gear slightly to the north or west of the boundaries of the PSGNRA and continued fishing immediately outside the closed area. The PSGNRA included the preferred fishing grounds for flounder, and the flounder catch rates for those fishermen who moved out of the PSGNRA were reportedly low. Since none of this fishing activity was authorized by the permit, NCDMF did not place observers aboard gillnet vessels in Pamlico Sound after the closure of the PSGNRA. Because of the demonstrated capture and mortality of sea turtles in large-mesh gillnets before the closure, NMFS believes that the continued, unmonitored gillnet fishing in and around the PSGNRA after the closure contributed to many of the subsequent sea turtle strandings.

Description of the Fishery

The Pamlico Sound large-mesh gillnet fishery can be divided into two components--shallow-water and deep-water, which are distinguished by their fishing areas, seasons, tactics, participants, and vessel characteristics.

The deep-water fishery operates from September through December with fishermen setting nets along a slope adjacent to the main basin of Pamlico Sound. Fishing depths in this area range from 10 to 20 feet (3.0 to 6.1 m). Vessels are typical ocean sink gillnet boats ranging from 25 to 45 feet (7.6 to 13.7 m) in length. Each vessel is operated by a two-man crew. Each vessel sets between 2,000 yards (1,828 m) and 10,000 yards (9,140 m) of large-mesh (most often 5.5 to 6.5 inch (14.0 to 16.5 cm)) gillnet, which are soaked for up to 3 days and retrieved with the aid of net reels. Net depths range from 8 to 12 feet (2.4 m to 3.7 m) with tie-downs 2 to 4 feet (.61 to 1.2 m) long attached to the float and lead lines at 50 foot (15.2 m) intervals along the net. Tie- downs are used in this fishery to produce a bag or pocket of webbing, which is believed to increase the catch efficiency for bottom-dwelling flounder. There were 25 active participants in this fishery during the 2000 fishing season with most trips originating from Engelhard or Swan Quarter, N.C., and a small portion leaving from Hatteras, N.C. This fishery has developed within the past 10 years from what was initially only a few fishermen setting a few thousand yards of gillnet. Effort has steadily increased with more participants fishing more gear each year. During the past several years, gillnets have surpassed pound nets as the dominant gear for flounder in North Carolina's estuarine waters. Pound nets had long been the traditional means for harvesting flounder in North Carolina waters.

Monitoring of the deep-water fishery during the 2000 fishing season consisted of 13.1 percent observer coverage within the PSGNRA with 35 trips observed. Fourteen sea turtle interactions were observed involving four Kemp's ridleys, two greens, and eight loggerheads. Eight of these turtles were released alive; six were dead.

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The shallow-water fishery operates from April through December in areas next to the barrier islands in Pamlico Sound, extending both north and southwest of the PSGNRA along the Outer Banks. Most fishing in these areas occurs in depths of less than 3 feet (0.9 m). Vessels are usually open skiffs ranging from 15 to 25 feet (4.6 to 7.6 m) in length with one or two-man crews. Each fisherman typically sets 500 to 2000 yards (457 to 1,828 m) of large-mesh (5.5 to 7.0 inch (14.0 to 17.8 cm)) gillnet. The nets are soaked overnight and retrieved by hand. Tie-downs are not used in this fishery, but net depths range from 6 to 11 feet (1.8 to 3.4 m) with sets occurring in depths less than 3 feet (0.9 m). This combination of water depth and net depth provides the same bag effect as the tie-down in the deep-water fishery. There were 68 active participants that fished within the PSGNRA during the 2000 fishing season. The shallow-water gillnet fishery is considered to be more traditional than the deep-water gillnet fishery.

Monitoring during the 2000 fishing season consisted of 4.3 percent observer coverage of the shallow-water, large-mesh fishery within the PSGNRA with 37 trips observed. Four sea turtle interactions were observed. All were green turtles. Three were released alive; one was dead.

NCDMF's Section 10(a)(1)(B) Permit Application

Permit 1259 was issued for the 2000 fall fishing season only and its authorization for incidental take expired when the authorized level was exceeded in October 2000. Although section 10(a)(1)(B) permits are generally issued for multi-year periods of time, NMFS and NCDMF believed that the newness of the fishery, the apparent high levels of turtle interaction, and the paucity of observer data for management decisions justified a single-year permit in 2000 to allow NCDMF to gather important information about bycatch issues in the fishery. NMFS, in issuing permit 1259, had to consider the effects of the permit on listed species, pursuant to sections 7(a)(2) and 7(b) of the ESA. The resulting biological opinion concluded that, as a one-year only event, the issuance of Permit 1259 and the fishery were not likely to jeopardize the continued existence of any listed species of sea turtle. The opinion did acknowledge, however, that additional, future permits might be sought by NCDMF for large-mesh gillnetting in Pamlico Sound, perhaps modified based on the outcome of the 2000 permit. NMFS would then have to consider the effects of the resulting take on a much longer-term basis prior to issuing any such permits.

NMFS received an application for another ESA section 10(a)(1)(B) permit from NCDMF on August 9, 2001 that would allow NCDMF to manage both large-mesh and small-mesh gillnet fisheries and incidental sea turtle takings in Pamlico Sound in the 2001 season as an exemption to the ESA's prohibition on takes and as an exemption the closure instituted by this interim final rule. NMFS published a notice of receipt of NCDMF's application in the Federal Register on August 15, 2001. NMFS requested public comments on the application for the required 30-day period, through September 14, 2001. NCDMF's proposed management period for the permitted activity is September 15 through December 15, 2001. Although NMFS will expedite the decision on issuance of the permit, the permit could not be issued prior to the proposed September 15 start date because of public notice and comments requirements of the ESA.

The conservation plan in NCDMF's permit application includes the creation of three specified Shallow Water Gillnet Restricted Areas (SGNRAs) around the inside of the Outer Banks in Pamlico Sound and two inlet corridors at Hatteras and Ocracoke Inlets. Large- and small-mesh gillnet fishing operations in the SGNRAs will require a special permit from NCDMF, will be required to accept observers, and will be required to file weekly reports of fishing catch and effort to NCDMF. Large- and small-mesh gillnet fishing operations will be limited to a maximum of 2,000 yards (1,835 m) of net. From September 15 through October 31, small-mesh gillnet fishing operations will be required to attend their nets. Large-mesh gillnetting will be prohibited by NCDMF in the inlet corridors from September 15 through December 15, 2001. On August 22, 2001, the NCDMF Director issued a state fisheries Proclamation that implemented these management measures, effective September 15, 2001.

NMFS has determined that NCDMF's permit application meets the issuance criteria. NMFS intends to issue the permit, simultaneously with the effective date of this interim final rule.

Closure of Large-Mesh Gillnet Fishing in Pamlico Sound

Through this interim final rule, NMFS is closing the waters of Pamlico Sound, North Carolina, to fishing with gillnets with a mesh size larger than 4\1/4\ inches (10.8 cm) stretched mesh, from September 15 through December 15. The closed area includes all inshore waters of Pamlico Sound south of 35 deg.46.3' N. lat. (the south side of Oregon Inlet), north of 35 deg.00' N. lat. (the south end of Portsmouth Island), and east of 76 deg.30' W. long. (a line of longitude which crosses the mouths of the Neuse River, Bay River, and Pamlico River). The Outer Banks and the COLREGS line form the seaward boundary of the closed area. The closed area includes all contiguous tidal waters to Pamlico Sound, within the stated boundaries. The large-mesh gillnet fishery in Pamlico Sound has been shown to take, including to capture and kill, numerous endangered and threatened sea turtles during their fall migration. NMFS is taking this action to prevent further takes of listed species in this fishery.

Issuance of the section 10(a)(1)(B) permit to NCDMF would create an exemption to this closure for large-mesh gear fished in shallow water, pursuant to 50 CFR 223.206(a)(2), as long as permit conditions and the conservation plan are followed. The deep-water fishery, which has fewer participants yet catches and kills more sea turtles (based on NCDMF's 2000 observer data), was not included in NCDMF's permit application, nor in their Proclamation, issued on August 22, 2001. Therefore, this closure is necessary to ensure the effective implementation of NCDMF's conservation plan by preventing large-mesh gillnet fishing in Pamlico Sound outside of the management of fishery by NCDMF under the conservation plan of the permit. In particular, this closure will prevent large-mesh gillnetting in deep-water areas, and it will prevent vessels from moving outside of the SGNRAs to avoid monitoring by NCDMF, as happened last year. This closure will also prevent illegal takings after the permit expires or the permit's incidental take limit is met or exceeded. NCDMF distributed a press release on August 22, 2001, that covered their Proclamation and gillnet restrictions and stated: ``It is anticipated NMFS will close the majority of deep-water areas of the Pamlico Sound to large-mesh gill nets later this fall.''

Request for Comments

NMFS is considering issuance of a final rule establishing this seasonal closure each year as a permanent sea turtle conservation measure. Written public comments on this interim final rule must be postmarked or transmitted by facsimile by 5 p.m., Eastern Standard Time, on January 2, 2002 (see ADDRESSES). Comments are particularly sought on the area and season covered in this interim final rule and whether they should be changed or expanded. The NCDMF application specified a

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September 15 to December 15 season for the fall gillnet fishery in Pamlico Sound, and this interim final rule applies only to that season and area for consistency with the state's action. NMFS is aware, however, that large-mesh gillnet fishing for flounder occurs in Pamlico Sound in the summer as well, when sea turtles would be expected to occur in the Sound in relatively high numbers. Adjacent Core Sound also has large-mesh gillnetting for flounder and contains important sea turtle habitat but is not included in the closed area in this interim final rule. Information and data on sea turtle-gillnet interactions in North Carolina inshore waters, including Core Sound, are specifically requested, as are suggested alternative approaches to minimizing the extent and effects of those interactions.

Comments will be considered by NMFS in determining whether to adopt permanently, modify, or withdraw this interim final rule. NMFS intends to take final action on this issue early in 2002, to provide greater certainty and advance notice to the public before the 2002 fishing season. If significant changes to the interim final rule are needed, NMFS will first publish a proposed rule and seek additional public comment. If NMFS determines to adopt this interim final rule permanently, a final rule will be published in the Federal Register.

Classification

NMFS prepared an Environmental Assessment (EA) for this interim final rule and the issuance of the ESA Section 10(a)(1)(B) permit to NCDMF and concluded that these regulations and issuance of the permit would pose no significant adverse environmental impact.

The actions implemented by this interim final rule are expected to impact approximately 25 large-mesh, deep-water gillnet vessel owners and operators. Four alternatives were evaluated in the EA prepared for this interim final rule, including a status quo or ``no action'' alternative. For a description and analysis of the alternatives, readers should refer to the EA prepared for this interim final rule. The total cost to the fisheries for the primary target species-- southern flounder--is expected to be zero. The primary effect of this interim final rule will be a redistribution of catch from deep-water gillnet fishermen to shallow-water and small-mesh gillnet fishermen and pound net fishermen, and the overall fishing effort targeting southern flounder in Pamlico Sound is very high and capable of fully exploiting the resource. In 2000, gillnet landings exceeded the previous year's levels in spite of NCDMF's closure of the primary fishing grounds to gillnetting with gear greater than 5 inch (12.7 cm) mesh halfway through the season. Using worst-case assumptions, though, the 25 primarily affected vessels may be faced with a loss of potential revenue of around $10,000 to $20,000 per year each, depending on fish prices. The affected vessels, however, are the largest in the fishery and have the greatest number of alternative fisheries, as they are essentially ocean-gillnet vessels. They are also the most recent entrants into the fishery. The vessels who would continue to fish under the provisions of the permit, on the other hand, are considered more traditional to the fishery, are generally smaller, and many of them cannot safely work outside the sheltered waters of the Sound.

This interim final rule does not contain collection-of-information requirements subject to the Paperwork Reduction Act.

This interim final rule has been determined to be not significant for purposes of Executive Order 12866.

A biological opinion (BO) on the issuance of the ESA Section 10(a)(1)(B) permit to NCDMF was finalized in September 2001. That BO concludes that issuance of the permit for the 2001 fishing season, with the conditions and limitations on total authorized levels of sea turtle capture and mortality, was not likely to jeopardize the continued existence of any species of sea turtle. This interim final rule implements measures that ensure that the proposed action takes place as considered in the BO. That is, the conclusion of the BO is based on the assumption that impacts to sea turtles in the fall 2001 Pamlico Sound gillnet fisheries will be limited to legally authorized takes, in accordance with the permit's conservation plan. This interim final rule is necessary to ensure that unauthorized takes do not occur in gillnet fisheries outside of NCDMF's conservation plan. The effects of the interim final rule itself on listed species are strictly beneficial, by preventing further takings.

Given the status of the species to be protected and the fact that unauthorized takings of listed species of sea turtles are continuing to occur, the Assistant Administrator (AA), for good cause, under 5 U.S.C. 553(b)(3)(B) finds that delaying this action to allow for prior notice and an opportunity for public comment would be impracticable and contrary to the public interest because providing public notice and opportunity for comment would prevent the agency from implementing this action in a timely manner to protect the listed sea turtles. This decision is based on the fact that large-mesh gillnet fishing is presently allowed without restriction throughout Pamlico Sound. On September 15, NCDMF issued a gillnet Proclamation which applies to the SGNRAs and inlet corridors along the southern and eastern edges of Pamlico Sound, but not to the remaining majority of Sound waters, especially the deep-water areas where sea turtle take and mortality have been demonstrated to be high. Large-mesh gillnet fishing effort is currently increasing as changing water temperatures cause flounder to move through the Sound. Sea turtles apparently respond similarly to the fall weather in Pamlico Sound, increasing their vulnerability to being captured and killed as the fishing effort also peaks. In 2000, strandings in North Carolina's coastal waters reached a new record level of 838 turtles. The continuation of sea turtle mortality along the North Carolina coast at such high levels would seriously threaten sea turtle populations, and this interim final rule is intended to address a major source of fishing-related sea turtle mortality. For the same reasons, the AA finds good cause also under 5 U.S.C. 553(d)(3) not to delay the effective date of this rule for 30 days. As prior notice and opportunity for public comment are not required to be provided for this interim final rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

In keeping with the intent of Executive Order 13132 to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, NMFS has conferred with the State of North Carolina regarding the development of NCDMF's endangered and threatened species incidental take permit application and the need for NMFS to implement a complementary closure to ensure the effectiveness of the State's conservation plan. NMFS has coordinated the timing of the publication of this interim final rule with the issuance of the ESA Section 10(a)(1)(B) permit to NCDMF, which creates an exemption to the closure in this action. NMFS intends to continue to consult with the State of North Carolina during the implementation of this rule and NCDMF's management of sea turtle interaction in state water fisheries.

List of Subjects in 50 CFR Part 223

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

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Dated: September 27, 2001. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service.

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 et seq.

2. In Sec. 223.206(d), add paragraph (d)(7) to read as follows: * * * * *

   (d) * * *

   (7) Restrictions applicable to gillnet fisheries in North Carolina. No person may fish with gillnet fishing gear which has a stretched mesh size larger than 4\1/4\ inches (10.8 cm), from September 28, 2001 through December 15, 2001, in the inshore waters of Pamlico Sound, North Carolina, and all contiguous tidal waters, bounded on the north by 35 deg.46.3' N. lat., on the south by 35 deg.00' N. lat., and on the west by 76 deg.30' W. long.

   [FR Doc. 01-24722Filed9-28-01; 5:06 pm]

   BILLING CODE 3510-22-P