[Federal Register Volume 66, Number 121 (Friday, June 22, 2001)]
[Rules and Regulations]
[Pages 33489-33493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15676]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No.010618158-1158-01; I.D.061301B]
RIN 0648-AP34


Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Temporary rule; request for comments.

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SUMMARY: NMFS is requiring all Virginia permitted fishermen deploying 
pound nets with leaders measuring 8 inches (20.3 cm) or greater 
stretched mesh and leaders with stringers to tie up such leaders in the 
Virginia waters of the mainstem Chesapeake Bay and tributaries for a 
period of 30 days. This action is necessary to protect threatened and 
endangered sea turtles.

DATES: This action is effective from 11:59 p.m. local time June 19, 
2001 through 11:59 p.m. local time July 19, 2001. Comments on this 
action are requested, and must be received at the appropriate address 
or fax number (ADDRESSES) by no later than 5 p.m., eastern daylight 
time, on July 19, 2001..

ADDRESSES: Written comments on this action or request for copies of the 
literature cited or the Environmental Assessment (EA) should be 
addressed to the Assistant Regional Administrator for Protected 
Resources, NMFS, One Blackburn Drive, Gloucester, MA 01930. Comments 
may also be sent via fax to 978-281-9394. Comments will not be accepted 
if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Mary A. Colligan (ph. 978-281-9116, 
fax 978-281-9394), or Barbara A. Schroeder (ph. 301-713-1401, fax 301-
713-0376).

SUPPLEMENTARY INFORMATION:

Background

    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 identified in 50 CFR 
223.206. The incidental take of endangered species may only legally be 
authorized by an incidental take statement or an incidental take permit 
issued pursuant to section 7 or 10 of the ESA. No incidental take of 
sea turtles is currently authorized in the Virginia pound net 
fisheries. Existing NMFS regulations specify procedures that NMFS may 
use to determine that unauthorized takings of sea turtles are occurring 
during fishing activities, and to impose additional restrictions to 
conserve sea turtles and to prevent unauthorized takings (50 CFR 
223.206(d)(4)). Restrictions may be effective for a period of up to 30 
days

[[Page 33490]]

and may be renewed for additional periods of up to 30 days each.
    Existing information indicates that pound nets with large mesh and 
stringer leaders incidentally take sea turtles, and based on the 
available information, NMFS has determined that fishing with this gear 
is the most likely cause of significant increases in the stranding of 
sea turtles in the Chesapeake Bay. This action is necessary to protect 
threatened and endangered turtles from further unauthorized incidental 
take in state water fisheries.

Recent Stranding Events

    The Sea Turtle Stranding and Salvage Network (STSSN) documented a 
high level of sea turtle strandings in Virginia inshore waters this 
spring. From May 19 to June 11, 2001, preliminary data indicate 160 sea 
turtles washed ashore dead in Virginia. The number of stranded sea 
turtles began to increase dramatically after May 29. On 3 separate days 
in June, more than 20 turtle strandings were reported for each day. 
Loggerhead turtles comprised the majority of the strandings (137), but 
16 Kemp's ridley, 1 green, and 6 unidentified sea turtles also stranded 
during this time. Most of the stranded turtles were juveniles.
    Approximately 22 sea turtles were also reported as floating dead 
around the mouth of and in various parts of the Chesapeake Bay during 
early June. It is unknown whether these turtles eventually washed 
ashore and were recorded by the STSSN. Additionally, aerial surveys 
conducted this spring in offshore Virginia waters as well as in the 
inshore Chesapeake Bay waters have observed sea turtles. While these 
turtles were alive when observed, their presence indicates that turtles 
are continuing to migrate into the Chesapeake Bay and may be subject to 
fishery interactions. Aerial surveys conducted in May and June between 
the Maryland and Virginia State line, from the oceanside beaches out to 
the shelf break, have documented hundreds of live turtles throughout 
the survey area. An additional 13 sea turtles were observed on an 
aerial survey of the southern portion of the Chesapeake Bay on June 8.
    For the majority of turtles that stranded, there were no obvious 
external signs of the cause of death. Two of the turtles found on the 
eastern shore of Virginia had large fish hooks imbedded in them. Five 
turtles had cracks/propeller-like wounds on their carapaces, although 
it is impossible to determine whether these wounds occurred pre- or 
post-mortem. One turtle found on the ocean side of the eastern shore of 
Virginia had a large hole in its neck, and another turtle found on the 
bay side had three puncture holes on three of its flippers.
    The rate of decomposition varied, but the majority of the stranded 
turtles were moderately decomposed. Turtles examined by necropsy were 
found to have been in good health prior to their death. Many of the 
turtles had full stomachs, and contents included blue crab, horseshoe 
crab, and some fish.
    The majority of the strandings (approximately 65 percent) occurred 
along the Chesapeake Bay side of the eastern shore of Virginia and 
along the southern tip near Kiptopeke and Fisherman's Island. The wind 
during much of the stranding event was blowing toward the eastern shore 
and could have contributed to the concentration of strandings on the 
eastern shore during the first few days of June.

Analysis of Other Factors

    The existing data indicate that the most likely anthropogenic 
source of sea turtle mortality in Virginia this year is interactions 
with the pound net fishery. There is a complex matrix of fisheries 
operating in Virginia during the spring, including large and small mesh 
gillnet fisheries, whelk and crab pot fisheries, and the pound net 
fishery. Due to previous concern over fisheries in the Chesapeake Bay 
and in the waters off Virginia, NMFS observed a number of the fisheries 
active in the area at the time of the strandings. The federally managed 
monkfish large mesh gillnet fishery (approximately 10-12 inch mesh) had 
near 100 percent observer coverage in waters off Virginia from May 1 
until it stopped operating on May 29. As of May 29, 82 monkfish trips 
were observed in Virginia and two live and one dead loggerhead turtle 
were incidentally captured in this fishery. An experimental blackfin 
monkfish fishery with 100 percent observer coverage was also occurring 
offshore Virginia during the time of the strandings and one dead 
loggerhead turtles was taken in 35 observed trips. Two 13-14 inch 
(33.0-35.6 cm) mesh gillnet fisheries, the black drum and sandbar shark 
gillnet fisheries, occurred in state waters, in the vicinity of the 
highest number of turtle strandings (along the tip of the eastern 
shore). However, during May and June, both of these fisheries had good 
alternative platform observer coverage (approximately 75 trips observed 
in both fisheries), and no turtle takes were observed. Additionally, 
almost all of the black drum fishing effort ceased at the beginning of 
June, and there has not been a large amount of sandbar shark gillnet 
effort. No large mesh gillnet fishing in the vicinity of the mouth of 
the Chesapeake Bay occurs from June 1 to June 30, because during this 
time, gillnets with a stretched mesh size greater than 6 inches (15.2 
cm) are prohibited in Virginia's portion of the Chesapeake Bay south of 
Smith Island.
    There has been only a limited amount of small mesh gillnet effort 
occurring in Virginia waters during May and June. NMFS has observed 14 
(seven in the Chesapeake Bay and seven in the ocean) small mesh gillnet 
trips for croaker and spot in May, and 4 trips from June 1 to June 10. 
No takes have been observed in these small mesh gillnets. Aerial survey 
flights conducted in the inshore waters of the Chesapeake Bay also have 
not documented a large amount of gillnet fishing. No trawling occurs in 
the Chesapeake Bay, as the Virginia Marine Resources Commission (VMRC) 
restricted the use of trawls in Virginia's portion of the Chesapeake 
Bay in 1989. Aerial surveys, landings data, and dock surveys indicate 
that limited trawling occurs in Federal waters offshore of Virginia 
during May and June.
    While whelk and crab pots may contribute to some sea turtle 
mortalities, the nature of the recent 160 strandings does not implicate 
pot gear. The majority of the whelk pot effort is found offshore, 
particularly outside Virginia's state waters, and few fishermen set 
their pots inside the Chesapeake Bay (Mansfield et al., 2001). The 
spring peak months for the whelk pot fishery are April and May. Crab 
pot fishing occurs in the Chesapeake Bay, in the vicinity of the 
eastern shore and tip of the Delmarva Peninsula, but it is unlikely 
that sea turtle interactions with crab pots resulted in the high level 
of strandings observed this year.
    Pound nets are the only remaining gear type in the Chesapeake Bay 
that may have contributed to the high stranding event. High mortalities 
in late May and early June in Virginia have previously been attributed 
to entanglement in large mesh pound net leaders in the Chesapeake Bay 
(Bellmund et al. 1987; Musick et al. 1985). Pound nets with large 
(greater than 10 inch (>25.4 cm)) mesh leaders set where the currents 
are strong may entangle turtles when they enter the Chesapeake Bay. A 
1986 study by the Virginia Institute of Marine Science (VIMS) found 
that entanglements in pound net leaders began in mid-May, increasing in 
early June, and reaching a plateau in late June. Mortalities drop off 
substantially by the end of June, and turtles tracked using radio 
transmitters were able to forage around the nets

[[Page 33491]]

without injury (Musick et al., 1985; Byles, 1988).
    Data collected in 1983 and 1984 found turtle entanglement in pound 
nets with small mesh leaders to be insignificant, but in 173 pound nets 
examined with large mesh leaders, 0.2 turtles per net were found 
entangled (30 turtles; Musick et al., 1986). The 1986 VIMS study also 
found that in 38 nets examined with stringer mesh, 0.7 turtles per net 
were documented entangled (27 turtles). Pound net observations in North 
Carolina during the early 1980s also documented entanglements in pound 
net leaders with 8-inch (20.3-cm) mesh and greater.
    Pound nets are set throughout the Chesapeake Bay, with gear found 
in the mainstem of the bay (e.g., Mobjack Bay) and along the eastern 
shore of Virginia, around the mouth of and in the York River, and 
around the mouth of and in the Rappahannock River. Pound nets are the 
main fishing gear observed immediately offshore of the Kiptopeke area 
and along the southern portion of the Virginia eastern shore, where 
most of the 2001 strandings have occurred. There are approximately 16 
to 20 pound nets along the southern portion of the eastern shore, and 
approximately one-third of these nets use large mesh leaders. Large 
mesh leaders are utilized in this high flow area to prevent flotsam 
from getting entangled in the leaders and causing the net to be swept 
away, which happens in locations with strong tidal currents. In the 
southern area of the eastern shore, large mesh leaders (approximately 
12 inch (30.5 cm) mesh) are set in deep water (approximately 20 to 30 
ft (6.1 to 9.1 m)), while small mesh leaders (approximately 6 to 8 inch 
(15.2 to 20.3 cm) mesh) are set closer to shore in up to 10 ft (3.0 m) 
of water. While stringer leaders are not used along the eastern shore, 
they are found in the western bay, around the tip of Mobjack Bay and 
just south of the mouth of the Potomac River, near Reedville. While 
fishing effort varies from spring to fall, a survey conducted in the 
fall of 2000 found nine stringer leaders in the western Chesapeake Bay 
(Mansfield et al., 2001). Several sea turtle strandings have occurred 
on the western shore of the Chesapeake Bay during the spring of 2001, 
but strandings have not been documented at the same magnitude as along 
the eastern shore. As mentioned previously, this may be a reflection of 
prevailing winds rather than the location of turtle mortalities. In any 
event, stringer mesh leaders have been found to pose a large 
entanglement threat to sea turtles (Musick et al., 1986).
    Several sea turtles have been documented in pound net leaders this 
spring. A NMFS observer found three loggerhead turtles against two 
different large mesh pound net leaders (approximately 13 inch (33.0 
cm)) off Sunset Beach on the eastern shore in early June. The two pound 
nets were set in deep water (approximately 25 feet (7.6 m)) and were 
the farthest out in the water relative to the other nets in the area. 
On June 14 off Sunset Beach, the NMFS observer documented six 
loggerheads and one Kemp's ridley stranded dead on the beach in the 
vicinity of 19 pound nets. VMRC law enforcement agents also documented 
two dead and one live sea turtle in pound net leaders along the eastern 
shore.
    Sea turtle entanglements in pound net leaders are often difficult 
to detect. These five observed sea turtles were found in the leaders at 
the water's surface. Due to the lack of water clarity in the Chesapeake 
Bay, turtles entangled below the surface may go unobserved. Thus, it is 
likely that significantly more sea turtles have been entangled this 
spring in the pound nets than were observed.
    NMFS has continuously investigated other possible causes for the 
sea turtle mortality events, but non-fishing related causes for the 
increase in dead sea turtles are not consistent with the nature of the 
strandings this spring. For instance, the absence of other species in 
the most recent stranding events was inconsistent with a toxic algae 
bloom, disease, or other water quality impact. Further, there were no 
major traumatic injuries such as might be caused by dredging or 
blasting.
    Due to the location of the turtle strandings, the type of fishing 
gear in the vicinity of the greatest number of strandings, and the 
known interactions between sea turtles and large mesh and stringer 
pound net leaders, pound nets have been considered to be the likely 
cause of the high sea turtle strandings in Virginia in May and June 
2001. Specifically, large mesh (greater than 8 inches (>20.3 cm)) and 
stringer leaders pose the greatest current entanglement threat to sea 
turtles in the Chesapeake Bay.

Impacts on Sea Turtles

    Strandings in Virginia are almost always highest during the month 
of June and stranding reports have increased in recent years. For 
example, for the month of June sea turtle strandings were 57 in 1995, 
62 in 1996, 133 in 1997, 153 in 1998, 125 in 1999, and 85 in 2000. From 
June 1 through June 11, 2001, preliminary reports indicate 105 sea 
turtles stranded on Virginia beaches.
    In recent years, sea turtles strandings have been documented 
earlier in the spring, with 55 turtle strandings (45 loggerheads, 5 
Kemp's ridleys, 5 unidentified) reported in Virginia from May 1 to May 
31, 2001. While 70 sea turtles stranded during the same time period in 
2000, that was an exceptionably high year; only 5 stranded in 1999, 30 
in May 1998, 35 in 1997, 29 in 1996 and 34 in 1995. The strandings in 
May 2001 are approximately twice the average number of turtles stranded 
in May from 1995 to 2000. While these earlier stranding patterns may be 
explained by water temperature fluctuations and associated effects on 
turtle migrations, strandings in June 2001 have also been elevated. The 
high level of strandings in May and June this year and the number of 
dead loggerheads and Kemp's ridleys may pose a risk to these 
populations.
    Most loggerheads in U.S. waters come from one of two genetically 
distinct nesting populations. The population that nests in south 
Florida is much larger and has shown increases in nesting. The northern 
population that nests from northeast Florida through North Carolina is 
much smaller and nesting numbers are stable or declining. Previous 
genetic analysis suggests that approximately one-half of the juvenile 
loggerheads inhabiting the Chesapeake Bay during the spring and summer 
are from the smaller, northern population (TEWG, 2000; Norrgard, 1995).
    The Virginia strandings in May and June 2001 are of concern for the 
following reasons: (1) The level of strandings in Virginia have been 
high over the last 5 years and continue to increase this year; (2) the 
strandings occurred during a time when observer coverage in the large 
and small mesh gillnet fisheries found little evidence of sea turtle 
take; (3) most of the strandings were concentrated along the southern 
tip of the eastern shore, suggesting a potential localized interaction; 
(4) the take of ESA-listed sea turtles is unauthorized without a 
incidental take statement or permit; and (5) the non-recovering 
northern subpopulation of threatened loggerheads comprises 
approximately one-half of the mixed stock off Virginia.
    The increase in loggerhead mortality documented during the last 
several years may affect the recovery of the loggerhead populations, 
especially as the mortality is occurring at an important point when 
turtles are migrating inshore to their summer foraging grounds in the 
Chesapeake Bay.

[[Page 33492]]

Modification of Pound Net Gear

    The exemption for incidental taking of sea turtles in 50 CFR 
223.206(d)(1) does not apply to endangered sea turtles (i.e., Kemp's 
ridleys) nor does it authorize incidental takings during fishing 
activities if the takings may be likely to jeopardize the continued 
existence of a species listed under the ESA, pursuant to NMFS 
regulations at 50 CFR 223.206(d)(4) provide that the Assistant 
Administrator for Fisheries, NOAA, (AA) may issue a determination that 
incidental takings in the course of fishing activities are 
unauthorized, and specify procedures that the AA may use to impose 
additional restrictions to conserve listed sea turtles and prevent such 
takings. Sixteen endangered Kemp's ridleys and one green turtle 
stranded on the shores of Virginia this year, which indicates that 
there may be unauthorized takes occurring in these waters. While most 
of the stranded turtles were loggerheads, there is no incidental take 
statement nor incidental take permit for any of these threatened or 
endangered turtles. The unregulated incidental take of sea turtles in 
state fisheries needs to be minimized to the extent practicable to 
ensure recovery of these species. The level of mortality suffered by 
loggerhead turtles this spring off Virginia is high and may be 
adversely impacting the northern nesting population of loggerheads. 
Strandings in Virginia have been high over the last 5 years, and if the 
strandings continue at the current rate, the number of sea turtle 
mortalities will exceed previous levels. Continued mortality caused by 
unauthorized incidental capture in all pound net leaders greater or 
equal to 8 inches (20.3 cm) stretched mesh and pound net leaders with 
stringers during loggerheads' migration into and residency in the 
Chesapeake Bay may affect the ability of the northern population to 
recover. Therefore, the AA issues this determination that takings of 
threatened or endangered sea turtles by all Virginia permitted 
fishermen deploying pound nets with leaders of 8 inches or greater 
( 20.3 cm) stretched mesh and leaders with stringers in 
Virginia waters of the mainstem Chesapeake Bay and tributaries are 
unauthorized, and issues this additional restriction on fishing 
activities to conserve and protect threatened and endangered sea 
turtles in the Chesapeake Bay. Specifically, the AA requires that in 
the Virginia waters of the mainstem Chesapeake Bay and the tidal waters 
of the James, York, and Rappahannock Rivers, all Virginia permitted 
fishermen deploying pound nets with leaders measuring 8 inches (20.3 
cm) or greater stretched mesh and all pound nets with stringer leaders 
must tie up their leaders. The leaders must be tied up in such a manner 
so that the mesh and stringers are rolled up and tied off, and are not 
fishing in the water. The heart(s) and pound may remain in the water, 
and only the leaders must be tied up. The area where this gear 
modification applies includes the Virginia waters of the mainstem 
Chesapeake Bay from the Maryland-Virginia State line (approximately 
38 deg. N. lat.) to the COLREGS line at the mouth of the Chesapeake 
Bay; the tidal James River; the tidal York River; and the tidal 
Rappahannock River. This modification of the pound net leaders is 
effective from 11:59 p.m. local time June 19, 2001 through 11:59 p.m. 
local time July 19, 2001. For the duration of this mandatory gear 
modification, all pound net leaders measuring 8 inches or greater 
stretched ( 20.3 cm) mesh and pound net leaders with 
stringers must be tied up, and all fishing with these leaders must be 
curtailed in the designated area. All such pound net leaders that are 
currently set must be modified by 11:59 p.m local time on June 19, 
2001.
    The fishery affected by this temporary rule is the Virginia pound 
net fishery in the Chesapeake Bay. Virginia permitted fishermen 
deploying pound nets with leaders measuring 8 inches or greater 
( 20.3 cm) stretched mesh and leaders with stringers will be 
affected. While target species catch rates will likely decrease due to 
the inability to use the leaders on the pound nets, the heart(s) and 
pound may still be set, which may result in some level of catch. From 
June 20 to July 20, 2000, the total landings for all pound nets in 
Virginia waters were 1,284,147 lbs (582,489 kg), with a total value of 
$437,868. This represents the worst case scenario of landings forgone 
as a result of this temporary rule. However, not all of the pound nets 
in Virginia waters are equipped with large mesh leaders or leaders with 
stringers. While landings data have not been separated into landings 
from large mesh, small mesh, or stringer leaders, based on information 
obtained from the Mansfield et al., (2001) fall pound net 
characterization, approximately 20 out of 82 active pound nets will be 
affected by this rule (approximately 1/4 of the total pound nets set in 
Virginia waters). Assuming the same number of pound nets will be 
fished, the same amount of fish will be landed, and the value of these 
landings will be similar from June 20 to July 20, 2000 to 2001, the 
landings that may be forgone by the issuance of this temporary rule 
would be 313,207 lbs (142,071 kg) of fish, with a total value of 
$106,797. Pound nets catch a variety of fish species, so this total 
value amount incorporates a range of fish prices. Most of the fishermen 
that fish pound nets with large mesh leaders in this area also fish 
nets with small mesh leaders closer to shore, reducing the economic 
impact of this temporary gear modification.
    As mentioned previously, stringer leaders are only set in the 
western Chesapeake Bay, around the tip of Mobjack Bay and just south of 
the mouth of the Potomac River, near Reedville. A survey conducted in 
the fall of 2000 found only nine stringer leaders in the western 
Chesapeake Bay (Mansfield et al., 2001), so the impact of this 
temporary gear modification will only impact this limited group of 
fishermen who deploy pound nets using stringer leaders in the western 
part of the bay.
    This restriction has been announced on the NOAA weather channel, in 
newspapers, and other media.

Additional Conservation Measures

    The AA may withdraw or modify any additional restriction on fishing 
activities if the AA determines that such action is warranted. 
Notification of any additional sea turtle conservation measures, 
including any extension of this 30-day action, will be published in the 
Federal Register pursuant to 50 CFR 223.206(d)(4).
    NMFS will continue to monitor sea turtle strandings to gauge the 
effectiveness of these conservation measures as well as compliance. 
Classification
    This action has been determined to be not significant for purposes 
of Executive Order 12866.
    The AA has determined that this action is necessary to respond to 
an emergency situation to provide adequate protection for endangered 
and threatened sea turtles, pursuant to the ESA and other applicable 
law.
    Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good 
cause to waive prior notice and opportunity to comment on this action. 
It would be contrary to the public interest to provide prior notice and 
opportunity for comment because providing notice and comment would 
prevent the agency from implementing this action in a timely manner to 
protect the ESA-listed sea turtles. Notification of and opportunity to 
comment on the procedures allowing the implementation of temporary 
measures to protect sea turtles was provided through the proposed rule 
which

[[Page 33493]]

established these actions (57 FR 18446, April 30, 1992). 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. NMFS is making the 
rule effective 11:59 p.m. local time June 19, 2001 through 11:59 p.m. 
local time July 19, 2001. Immediately, pound net leaders measuring 8 
inches or greater ( 20.3 cm) and pound net leaders with 
stringers must be tied up in the designated area, and all fishing with 
these leaders must be curtailed. As stated earlier, this restriction 
has been announced on the NOAA weather radio, in newspapers, and other 
media.
    As prior notice and an opportunity for public comment are not 
required to be provided for this notification by 5 U.S.C. 553, or by 
any other law, the analytical requirements of 5 U.S.C. 601 et seq., are 
inapplicable.
    The AA prepared an EA for the final rule (57 FR 57348, December 4, 
1992) requiring turtle excluder device use in shrimp trawls and 
creating the regulatory framework for the issuance of notices such as 
this. Copies of the EA and literature cited are available (see 
ADDRESSES).

    Authority: 16 U.S.C. 1531, et seq.

    Dated: June 18, 2001.
Rolland A. Schmitten,
Director, Habitat Conservation, National Marine Fisheries Service
[FR Doc. 01-15676 Filed 6-18-01; 4:40 pm]
BILLING CODE 3510-22-S