[Federal Register Volume 68, Number 136 (Wednesday, July 16, 2003)]
[Rules and Regulations]
[Pages 41942-41945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17873]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 020319061-3166-03; I.D. 070803G]
RIN 0648-AP81


Sea Turtle Conservation Measures for the Pound Net Fishery in 
Virginia Waters

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

ACTION: Temporary final rule.

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SUMMARY: NOAA Fisheries is prohibiting the use of all pound net leaders 
in the Virginia waters of the mainstem Chesapeake Bay effective 
immediately through July 30, 2003. The

[[Page 41943]]

affected area includes all Chesapeake Bay waters between the Maryland 
and Virginia state line (approximately 38[deg] N. lat.) and the COLREGS 
line at the mouth of the Chesapeake Bay, and the waters of the James 
River, York River, and Rappahannock River downstream of the first 
bridge in each tributary. This action, taken under the Endangered 
Species Act of 1973 (ESA), is necessary to conserve sea turtles listed 
as threatened or endangered.

DATES: Effective July 16, 2003, through July 30, 2003.

ADDRESSES: Requests for copies of the literature cited, the 
Environmental Assessment (EA), or Regulatory Impact Review (RIR) should 
be addressed to the Assistant Regional Administrator for Protected 
Resources, NOAA Fisheries, One Blackburn Drive, Gloucester, MA 01930. 
Requests for supporting documents may also be sent via fax to 978-281-
9394.

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

SUPPLEMENTARY INFORMATION:

Background

    Pound net leaders with greater than or equal to 12 inches (30.5 cm) 
stretched mesh and leaders with stringers have been documented to 
incidentally take sea turtles (Bellmund et al., 1987). High strandings 
of threatened and endangered sea turtles are documented on Virginia 
beaches each spring, and the number of strandings has increased in 
recent years. No cause of mortality is immediately apparent for the 
majority of turtles that strand in Virginia, but the circumstances 
surrounding the recent stranding events are consistent with fishery 
interactions in that a majority of the carcasses are undamaged and when 
examined seemed healthy. A discussion on fisheries interactions and 
strandings are provided in the preambles to the proposed rule (67 FR 
15160, March 29, 2002) and the interim final rule (67 FR 41196, June 
17, 2002). In light of documented entanglement in pound net leaders and 
high strandings in the vicinity of pound net operations, on June 17, 
2002, NOAA Fisheries issued an interim final rule that prohibited the 
use of all pound net leaders measuring 12 inches (30.5 cm) and greater 
stretched mesh and all pound net leaders with stringers in the Virginia 
waters of the mainstem Chesapeake Bay and portions of the Virginia 
tributaries from May 8 to June 30 each year (67 FR 41196). Included in 
this interim final rule was a year-round requirement for fishermen to 
report all interactions with sea turtles in their pound net gear to 
NOAA Fisheries within 24 hours of returning from the trip and a year-
round requirement for pound net fishing operations to be observed by a 
NOAA Fisheries-approved observer if requested by the Northeast Regional 
Administrator. The interim final rule also established a framework 
mechanism by which NOAA Fisheries may make changes to the restrictions 
and/or their effective dates on an expedited basis in order to respond 
to new information and protect sea turtles. Under this framework 
mechanism, if NOAA Fisheries receives information that a significant 
level of strandings will likely continue beyond June 30, the Assistant 
Administrator, NOAA, (AA) may extend the effective dates of the 
restrictions established by the regulations. Additionally, if 
monitoring of pound net leaders during the time frame of the gear 
restriction, May 8 through June 30 of each year, reveals that if one or 
more sea turtles are entangled alive in a pound net leader less than 12 
inches (30.5 cm) stretched mesh or that one sea turtle is entangled 
dead and NOAA Fisheries determines that the entanglement contributed to 
its death, then NOAA Fisheries may determine that additional 
restrictions are necessary to conserve sea turtles and prevent 
entanglements. The restrictions that may be implemented are limited to 
the alternatives previously considered in the EA. These alternatives 
included: (1) The restriction of all pound net leaders measuring 8 
inches (20.3 cm) or greater stretched mesh; (2) the prohibition of all 
pound net leaders regardless of mesh size; and (3) the restriction of 
pound net leaders with greater than 16 inches stretched mesh and the 
modification of all other leaders with stringers by dropping the leader 
mesh 9 feet below mean low water and spacing stringer lines at least 3 
feet apart. The interim final rule stated that should an extension of 
the effective dates of the prohibition of pound net leaders measuring 
12 inches (30.5 cm) or greater stretched mesh and pound net leaders 
with stringers be necessary or should NOAA Fisheries determine that an 
additional restriction is warranted, NOAA Fisheries would issue a rule. 
This rule would explicitly state the duration of the extension of the 
prohibition or the new mandatory gear restriction and the time period, 
which could also be extended for up to 30 days but not beyond July 30.
    Details concerning the justification for the previous pound net 
leader restriction regulations and the previous high sea turtle 
stranding events in Virginia were provided in the preambles to the 
proposed rule (67 FR 15160, March 29, 2002) and the interim final rule 
(67 FR 41196, June 17, 2002) and are not repeated here.

2003 Pound Net Monitoring

    From April 21 to June 11, 2003, NOAA Fisheries monitored pound net 
leaders with stretched mesh measuring less than 12 inches (30.5 cm), as 
well as sea turtle stranding levels and other fisheries active in the 
Virginia Chesapeake Bay and ocean waters. This monitoring effort 
resulted in the documentation of 17 sea turtles found in association 
with pound net leaders. The first documented sea turtle was found 
impinged on a pound net leader on May 11, and sea turtles were 
documented in leaders through June 11 when the monitoring program 
ceased. In total, 12 sea turtles were found held against or impinged on 
pound net leaders by the current. Of these 12 impingements, 11 were 
loggerhead sea turtles (one of which was dead) and one was a Kemp's 
ridley sea turtle (alive). There were an additional five sea turtles 
found entangled in pound net leaders, of which two were loggerheads 
(one dead) and three were Kemp's ridleys (two dead). Eleven of the 17 
incidents involved leaders measuring 11.5 inches (29.2 cm) stretched 
mesh, while six of the sea turtles were entangled or impinged in 8 inch 
(20.3 cm) stretched mesh leaders. Most of the observed sea turtles were 
found in nets along the Eastern shore of Virginia, but two turtles were 
found in leaders near Mobjack Bay in the Western Chesapeake Bay.
    As stated in the 2002 interim final rule, if even one sea turtle is 
entangled alive or if one sea turtle is entangled dead, and NOAA 
Fisheries determines that the entanglement contributed to its death, 
additional restrictions may be implemented by the publication of a 
final rule in the Federal Register. The spring 2003 monitoring effort 
documented two live sea turtles entangled in pound net leaders with 
11.5 inches (29.2 cm) stretched mesh, and three dead sea turtles 
entangled in pound net leaders with either 11.5 inches (29.2 cm) or 8 
inches (20.3 cm) stretched mesh. NOAA Fisheries believes that there is 
sufficient information to conclude that the death of these turtles is 
attributable to entanglement in the pound net leaders, given the degree 
of entanglement and multiple wrapping of line around their flippers, 
their decomposition state (fresh dead to moderately decomposed), and 
their buoyancy (negatively buoyant, which typically suggests recent 
mortality). Given these monitoring

[[Page 41944]]

results documenting the entanglement of sea turtles in leaders with 
less than 12 inches (30.5 cm) stretched mesh, additional restrictions 
are warranted.

2003 Spring Stranding Event

    As mentioned, high strandings of threatened and endangered sea 
turtles are documented on Virginia beaches each spring. The magnitude 
of this stranding event has increased in recent years. During May and 
June, total reported Virginia sea turtle strandings were 84 in 1995, 85 
in 1996, 164 in 1997, 181 in 1998, 129 in 1999, 155 in 2000, 265 in 
2001, and 182 in 2002. In 2003, preliminary data indicate that 302 dead 
sea turtles stranded on Virginia beaches during May and June.
    The 2003 spring stranding season in Virginia began later than 
usual. Based upon historical Sea Turtle Stranding and Salvage Network 
(STSSN) data, strandings in Virginia typically begin in mid-May, with 
strandings remaining elevated until June 30. In the spring of 2003, 
water temperatures were relatively cool in Virginia. The first sea 
turtle stranding was documented on May 18, but stranding levels were 
relatively low until June. In May, 22 dead animals stranded, and in 
June, 280 dead sea turtles were documented. The majority of the 2003 
spring strandings occurred during the last two weeks in June and 
continue through July with a total of 27 documented through July 5.

Approved Measures

    To conserve sea turtles, the AA prohibits the use of all pound net 
leaders in the Virginia waters of the mainstem Chesapeake Bay and 
portions of the Virginia tributaries effective through July 30, 2003. 
The area where this gear restriction applies includes the Virginia 
waters of the mainstem Chesapeake Bay from the Maryland-Virginia state 
line (approximately 37[deg]55' N. lat., 75[deg]55' W. long.) to the 
COLREGS line at the mouth of the Chesapeake Bay; the James River 
downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 
36[deg]59.55' N. lat., 76[deg]18.64' W. long.); the York River 
downstream of the Coleman Memorial Bridge (Route 17; approximately 
37[deg]14.55' N. lat, 76[deg]30.40' W. long.); and the Rappahannock 
River downstream of the Robert Opie Norris Jr. Bridge (Route 3; 
approximately 37[deg]37.44' N. lat, 76[deg]25.40' W. long.).
    NOAA Fisheries recognizes that there may be a localized interaction 
between sea turtles and pound nets along the Eastern shore, as that is 
the area where most of the sea turtles have been observed in pound net 
gear this spring. Given that one or more turtles have been found 
entangled live and dead in pound net leaders with less than 12 inch 
(30.5 cm) stretched mesh, NOAA Fisheries has the authority to implement 
additional restrictions this year. Under the framework provision 
included in the 2002 interim final rule, only an option previously 
analyzed in the EA may be considered. Given the amount of time it takes 
to order, purchase, and hang a leader and the timing of this rule 
related to the sunset date (July 30, 2003), restricting leaders with 8 
inches (20.3 cm) or greater stretched mesh would be effectively the 
same as restricting all leaders regardless of mesh size. Further, given 
the data collected this spring, sea turtle impingement on leaders of 
various sizes is a more significant problem than originally believed 
and this impingement may continue to occur on leaders with less than 8 
inches (20.3 cm) stretched mesh in the areas where impingements were 
previously documented. Prohibiting all leaders throughout the Virginia 
Chesapeake Bay is the only available option that will reduce sea turtle 
entanglements and impingements in pound net leaders.
    As mentioned previously, the Virginia stranding season has been 
relatively late this year. As strandings were highest in the latter 
half of June and remained elevated through June 30, NOAA Fisheries 
believes that elevated strandings could continue into the end of July 
and that an extension of the prohibition of all pound net leaders is 
warranted until July 30, 2003.
    This prohibition of pound net leaders is effective July 16, 2003, 
through July 30, 2003. In subsequent years, the original restrictions 
included in the 2002 interim final rule will be in effect (i.e., 
restriction of pound net leaders measuring 12 inches (30.5 cm) or 
greater stretched mesh and pound net leaders with stringers from May 8 
to June 30 each year), unless modified or replaced by a new rule. For 
the duration of this gear prohibition, fishermen are required to stop 
fishing with all pound net leaders in the designated area.
    The year-round reporting and monitoring requirements for this 
fishery established by the 2002 interim final rule remain in effect.

Classification

    This rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    The AA finds that providing prior notice and an opportunity to 
comment on this rule would be impracticable and contrary to the public 
interest. 50 CFR 223.206(d)(2)(v)(E) allows NOAA Fisheries to modify 
restrictions on pound net leaders and extend the effective date of 
those restrictions until July 30 each year if, in leaders complying 
with those regulations, one or more sea turtles are found entangled 
live or one or more sea turtles are found entangled dead and the 
entanglement contributed to its death. Turtles have recently been found 
entangled in leaders that comply with the regulations, and are at 
immediate risk of additional harm if no additional protections are 
implemented. If NOAA Fisheries were to provide notice and an 
opportunity to comment, it would pass the July 30 date on which the 
effectiveness of any restictions lapses and miss the opportunity to 
provide additional protections for the sea turtles that will still be 
in the areas. Therefore, the AA finds good cause exists under 5 U.S.C. 
553(b)(B) to waive the requirement for prior notice and opportunity for 
public comment.
    The AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-
day effective date of this final rule. Such a delay would be contrary 
to the public interest because sea turtles are currently present in 
Virginia waters and are being subject to entanglement and impingement 
in pound net leaders and potential subsequent mortality. Any delay in 
the effective date of this final rule would prevent NOAA Fisheries from 
meeting its obligations under the ESA to prevent harm to sea turtles.
    NOAA Fisheries previously prepared a final regulatory flexibility 
analysis (FRFA) which describes the impact the 2002 interim final rule 
would have on small entities. The FRFA considered the potential 
implementation of the framework provision and the alternative currently 
proposed for implementation (i.e. prohibition of all pound net 
leaders). Nevertheless, because prior notice and opportunity for 
comment are not required for this rule by 5 U.S.C. 553 or any other 
law, the analytical requirements of the Regulatory Flexibility Act are 
inapplicable.

List of Subjects 50 CFR Part 223

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

    Dated: July 10, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

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PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for Part 223 continues to read as follows:


    Authority: 16 U.S.C. 1531 et. seq.; 16 U.S.C. 742a et. seq.; 31 
U.S.C. 9701.
0
2. In Sec.  223.206, paragraph (d)(2)(v)(F) is added to read as 
follows:


Sec.  223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (2) * * *
    (v) * * *
    (F) Additional restrictions for pound net leaders through July 30, 
2003. Based upon 2003 spring monitoring results and the framework 
provision noted in paragraph (d)(2)(v)(E) of this section, from July 
16, 2003 to July 30, 2003, all pound net leaders are prohibited and 
must be removed from the waters described in paragraph (d)(2)(v)(B) of 
this section.
* * * * *
[FR Doc. 03-17873 Filed 7-15-03; 8:45 am]
BILLING CODE 3510-22-P