[Federal Register Volume 69, Number 25 (Friday, February 6, 2004)]
[Proposed Rules]
[Pages 5810-5817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2633]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 040127028-4028-01; I.D 012104B]
RIN 0648-AR69


Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to prohibit the use of all pound net leaders 
from May 6 to July 15 each year in the Virginia waters of the mainstem 
Chesapeake Bay, south of 37 19.0' N. lat. and west of 
76 13.0' W. long., and all waters south of 
37 13.0' N. lat. to the Chesapeake Bay Bridge Tunnel at 
the mouth of the Chesapeake Bay, and the James and York Rivers 
downstream of the first bridge in each tributary. Additionally, NMFS 
proposes to prohibit the use of all leaders with stretched mesh greater 
than or equal to 8 inches (20.3 cm) and leaders with stringers from May 
6 to July 15 each year in the Virginia waters of the Chesapeake Bay 
outside the aforementioned area, extending to the Maryland-Virginia 
State line and the Rappahannock River downstream of the first bridge, 
and from the Chesapeake Bay Bridge Tunnel to the COLREGS line at the 
mouth of the Chesapeake Bay. This action, taken under the Endangered 
Species Act of 1973 (ESA), is necessary to conserve sea turtles listed 
as threatened or endangered.

DATES: Comments on this action are requested, and must be received at 
the appropriate address or fax number (see ADDRESSES) by no later than 
5 p.m., eastern daylight time, on March 8, 2004.

ADDRESSES: Written comments on this action or requests for copies of 
the literature cited, the draft Environmental Assessment (EA), or 
Regulatory Impact Review (RIR) and Initial Regulatory Flexibility 
Analysis should be addressed to the Assistant Regional Administrator 
for Protected Resources, NMFS, One Blackburn Drive, Gloucester, MA 
01930. Comments and requests for supporting documents 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: Carrie Upite (ph. 978-281-9328 x6525, 
fax 978-281-9394), or Barbara 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 ESA. Kemp's ridley (Lepidochelys 
kempii), leatherback (Dermochelys coriacea), and hawksbill 
(Eretmochelys imbricata) sea turtles are listed as endangered. 
Loggerhead (Caretta caretta) and green (Chelonia mydas) sea 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 
listed sea turtles--even incidentally--is prohibited, with exceptions 
identified in 50 CFR 223.206 for threatened sea turtles. 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.
    On June 17, 2002, based upon the best available information on sea 
turtle and pound net interactions at the time, NMFS 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

[[Page 5811]]

pound net gear to NMFS within 24 hours of returning from a trip, and a 
year-round requirement for pound net fishing operations to be observed 
by a NMFS-approved observer if requested by the Northeast Regional 
Administrator. The interim final rule also established a framework 
mechanism by which NMFS 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 
NMFS believes that sea turtles may still be vulnerable to entanglement 
in pound net leaders after June 30 of any given year, 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 one sea 
turtle is 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 
NMFS determines that the entanglement contributed to its death, then 
NMFS may determine that additional restrictions are necessary to 
conserve sea turtles and prevent entanglements. As a result of sea 
turtle entanglements observed during the spring of 2003, NMFS issued a 
temporary final rule restricting all pound net leaders throughout the 
Virginia Chesapeake Bay and portions of the tributaries from July 16 to 
July 30, 2003, pursuant to the framework mechanism of the 2002 interim 
final rule (68 FR 41942, July 16, 2003).

Sea Turtle and Pound Net Interactions

    Sea turtles have been documented entangled in pound net leaders. 
Data collected in 1983 and 1984 found turtle entanglement in pound nets 
with small mesh leaders (defined as 8 to 12 inch (20.3 to 30.5 cm) 
stretched mesh) to be insignificant, but in 173 of the pound nets 
examined with large mesh leaders (defined as 12 to 16 inch 
(30.5 to 40.6 cm) stretched mesh), 30 turtles were found 
entangled (0.2 turtles per net; Bellmund et al., 1987). This study also 
found that in 38 nets examined with stringer mesh, 27 turtles were 
documented entangled (0.7 turtles per net). The sampling area was 
concentrated in the western Chesapeake Bay, with some sampling 
occurring in other portions of the Virginia Chesapeake Bay. Surveys in 
1979 and 1980 also found that most of the pound net leaders that 
captured sea turtles consisted of large mesh (12 to 16 inches (30.5 to 
40.6 cm)) and were found in the lower Chesapeake Bay (Lutcavage 1981).
    In recent years, pound nets have been observed, and sea turtles 
have been documented in the leaders. During the spring of 2001, with 
limited monitoring effort, a NMFS observer reported finding five 
moderately to severely decomposed loggerhead turtles against four 
different large mesh pound net leaders (approximately 13 inch (33 cm) 
mesh) along the Eastern shore of Virginia in early June. Given the 
decomposition state and lack of multiple wrapped, entangling line 
around the turtles, these turtles were determined to be not entangled 
in the leaders, and the cause of death was uncertain. Virginia Marine 
Resources Commission (VMRC) law enforcement agents also documented one 
live and three dead sea turtles in pound net leaders along the Eastern 
shore during the spring of 2001. The live turtle was entangled in a 
leader with greater than 12 inches (30.5 cm) stretched mesh, but the 
leader mesh size of the other entanglements was not recorded. 
Additionally, during June of 2000, VMRC law enforcement agents reported 
disentangling two live sea turtles from two Eastern shore leaders with 
greater than 12 inches (30.5 cm) stretched mesh.
    To better understand the interactions between sea turtles and pound 
net gear, NMFS conducted pound net monitoring during the spring of 2002 
and 2003. In 2002, NMFS monitored the active pound nets (n=70) 
throughout the Virginia Chesapeake Bay from April 25 to June 1. As the 
2002 interim final rule was not yet in place, approximately 8 of the 
leaders surveyed had stretched mesh greater than or equal to 12 inches 
(30.5 cm) or leaders with stringers. Eleven sea turtles were found in 
pound net gear, but not all of the mortalities could be directly 
attributed to interactions with pound nets. Four sea turtles were found 
entangled in leaders, including two dead Kemp's ridley and two dead 
loggerhead sea turtles. One of the Kemp's ridleys was found in a leader 
with 8 inch (20.3 cm) stretched mesh, one loggerhead was found in a 
leader with stringers, and the other two animals were found in leaders 
with 14 inch (35.6 cm) stretched mesh. Based upon necropsy reports, 
constriction wounds, and the magnitude of entanglement, entrapment in 
pound net leaders was determined to be the cause of death of these 
animals. Two additional loggerhead sea turtles were found alive in 
pound net leaders, impinged on the leaders with their head and front 
flippers through the mesh. These two animals were observed as not being 
able to swim off of the leaders under their own ability. One moderately 
decomposed loggerhead was found in the top line of a leader, but given 
the lack of tight multiple wraps of line around the turtle, it was 
inconclusive as to whether it was entangled before death or whether it 
washed into the net after having died elsewhere. Four moderately to 
severely decomposed loggerheads were found in leaders, but due to their 
decomposition state and lack of entanglement in the mesh, it appeared 
that the animals floated into the nets. These four sea turtles were not 
considered as entangled in or impinged on the pound net leaders.
    From April 21 to June 11, 2003, NMFS monitored the active pound net 
leaders (n=56) with stretched mesh measuring less than 12 inches (30.5 
cm). This monitoring effort resulted in the documentation of 17 sea 
turtles found in pound net leaders. Of the 17 sea turtles, five sea 
turtles were entangled in pound net leaders, of which two were 
loggerheads (one dead) and three were Kemp's ridleys (two dead). There 
is sufficient information to conclude that the death of these turtles 
was 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). Additionally, 12 sea turtles were found 
held against, or impinged on, pound net leaders by the current. Of 
these 12 impingements, 10 were loggerhead sea turtles (one dead), one 
was an alive Kemp's ridley sea turtle, and one alive sea turtle's 
species identification was unable to be determined. Two of these live 
animals had their head and/or flipper through the leader mesh, but when 
observed, the line was not wrapped multiple times around the turtle. As 
the impinged turtles were not observed being able to move vertically on 
the net, if a turtle could not breathe from the position where it was 
impinged, it would have a low likelihood of survival if it remained on 
the net for longer than approximately an hour. Of the 11 live 
impingements, approximately 7 were found underwater, unable to reach 
the surface to breathe, with an average of 3 hours until slack tide. 
Eleven of the 17 incidents involved leaders measuring 11.5 inches (29.2 
cm) stretched mesh, while six of the sea turtles were entangled in or 
impinged on 8 inch (20.3 cm) stretched mesh leaders. In 2002 and 2003, 
most of the observed sea turtles were found in nets along the

[[Page 5812]]

Eastern shore of Virginia, but three turtles were found in leaders in 
the Western Chesapeake Bay.
    Sea turtle entanglements in pound net leaders are difficult to 
detect. The sea turtles previously observed in leaders were found at 
depths ranging from the surface to approximately 6 feet (1.8 m) under 
the surface. The ability to observe a turtle below the surface depends 
on a number of variables, including water clarity, sea state, and 
weather conditions. Generally, turtles entangled more than a few feet 
below the surface cannot be observed due to the poor water clarity in 
the Chesapeake Bay. In 2001 and 2002, side scan sonar was used to 
attempt to detect sub-surface sea turtle entanglements; no verified sea 
turtle acoustical signatures were observed during these surveys 
(Mansfield et al., 2002a; Mansfield et al., 2002b). However, the 
effectiveness of side scan sonar surveys are limited by weather and sea 
conditions (e.g., suspended sediments are reflected by the sonar and 
monitoring is only successful in calm seas), and the acoustical 
signature may vary with the sea turtle's orientation and location in 
the net, size, and decomposition state (Mansfield et al. 2002a; 
Mansfield et al. 2002b). Sonar surveys have potential in detecting sub-
surface turtle entanglements and impingements, but given the caveats, 
the results obtained to date must be treated cautiously. While most of 
the previously observed sea turtles were found near the surface, it 
remains unclear whether the visual surface monitoring biased the 
location of the take results. Sea turtles may be found throughout the 
water column given their preferences for water temperature (e.g., 
generally greater than 11 C) and foraging (e.g., 
loggerheads and Kemp's ridleys in Virginia are primarily benthic 
foragers). Mansfield and Musick (2003) found that 7 sea turtles (6 
loggerheads and 1 Kemp's ridley) tracked in the Virginia Chesapeake Bay 
from May 22 to July 17, 2002, dove to maximum depths ranging from 
approximately 13.1 ft (4 m) to 41 ft (12.5 m). While the percentage of 
time sea turtles spend at the surface compared to at depth is still 
being clarified, sea turtles may be found throughout the water column. 
As pound net leader characteristics are generally consistent from top 
to bottom, it is probable that more sea turtles are in pound net 
leaders than are observed or reported and the previous monitoring 
efforts represent a minimum record of sea turtle entanglement and 
impingement.
    The 2002 and 2003 monitoring results documenting the entanglement 
of sea turtles in leaders with less than 12 inches (30.5 cm) stretched 
mesh represents new information not previously considered in prior 
assessments of the Virginia pound net fishery, and entanglements in and 
impingements on these leaders appear to be more of a significant 
problem than originally believed. As such, additional restrictions are 
warranted to prevent sea turtle entanglement in and impingement on 
pound net gear.

Spring Sea Turtle Stranding Event

    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, 183 in 1998, 129 in 1999, 161 in 2000, 256 in 2001, 
and 180 in 2002. In 2003, preliminary data indicate that 312 dead sea 
turtles stranded on Virginia beaches during May and June, with most of 
these occurring during the latter half of June. Strandings have also 
been elevated in July, generally the first half of the month. For 
instance, in 2003, the stranding peak occurred during the last two 
weeks of June, but strandings remained consistent through the second 
week of July, with a preliminary total of 48 turtles stranding from 
July 1 to 15. Furthermore, from 1996 to 2003, strandings were generally 
elevated during the first half of July, with an average of 23 
strandings documented from July 1 to 15. In the latter half of July, 
strandings typically decrease; from 1996 to 2003, an average of 11 
strandings were documented from July 16 to 31.
    Most of the stranded sea turtles in Virginia have been threatened 
loggerheads, but endangered Kemp's ridley, green and leatherback sea 
turtles have also stranded. Out of 1,559 total strandings in May and 
June from 1995 to 2003, 1,372 loggerheads, 108 Kemp's ridleys, 28 
leatherbacks, 1 green, and 50 unidentified turtles were found in 
Virginia. The majority of stranded turtles have been of the juvenile/
immature life stage. Most of the stranded turtles reported in Virginia 
during the spring have been moderately to severely decomposed. For 
instance, in the spring of 2003, approximately 85 percent of the 
strandings were either moderately to severely decomposed, compared to 
approximately 6 percent that were fresh dead. The ability to conduct 
necropsies is compromised by the condition of the stranded animals, and 
severely decomposed turtles are not usually necropsied. The majority of 
the stranded turtles that were examined by necropsy in the spring of 
previous years had relatively good fat stores and full stomachs/
digestive tracts, suggesting that the animals were in good health prior 
to their death.
    From mid-May to mid-July 2003, approximately 47 percent of the 
stranded animals were found along the Chesapeake Bay side of the 
Eastern shore of Virginia, 23 percent were found in the Virginia Beach 
ocean area, 15 percent in the Western Bay, 8 percent along the 
oceanside of the Eastern shore, and 7 percent in the southern 
Chesapeake Bay areas. While the distribution of sea turtle strandings 
in Virginia varies slightly from year to year, there has been a high 
concentration of stranded sea turtles found along the Eastern shore in 
recent years. It is possible that some Virginia Chesapeake Bay turtle 
strandings are swept into the Chesapeake Bay from elsewhere, as the 
water patterns and currents entering the Chesapeake Bay could 
concentrate sea turtle strandings around the mouth with certain wind 
conditions (Valle-Levinson et al., 2001). Similarly, southwesterly 
winds result in surface water outflows throughout the entrance to the 
Chesapeake Bay, which could result in sea turtles being carried out of 
the Chesapeake Bay. However, it is likely that in the Virginia 
Chesapeake Bay, most mortalities have occurred relatively close to the 
stranding location (Lutcavage 1981). A NMFS observer tagged 6 floating 
dead sea turtles during the spring of 2003, and 2 sea turtles were 
recovered the next day - one stranded approximately 500 yards (457 m) 
away on the Eastern shore and another was found 6-7 nautical miles 
(11.1-13 km) south of the Western Bay tagging location.
    NMFS has evaluated the potential sea turtle mortality sources in 
Virginia waters, and will continue to do so in the future. While some 
turtles with traumatic carapace injuries, propeller-like wounds or 
imbedded fish hooks have been documented each year, no cause of 
mortality is obvious for the majority of turtles that strand. 
Determining the cause of death in stranded sea turtles is difficult, 
given the level of decomposition of most stranded turtles and the lack 
of evidence, due in part to sea turtles' anatomy (e.g., hard carapace, 
scaly skin). However, the circumstances surrounding the spring 
strandings are consistent with fishery interactions as a likely cause 
of some perhaps a significant number of sea turtles deaths and, 
therefore, strandings. These circumstances include relatively healthy 
turtles prior to the time of their death,

[[Page 5813]]

a large number of strandings in a short time period, no external wounds 
on the majority of the turtles, no common characteristic among stranded 
turtles that would suggest disease as the main cause of death, and 
turtles with finfish in their stomachs (which has been believed to 
indicate interactions with fishing gear (Bellmund et al., 1987) or 
bycatch discarded from vessels (Shoop and Ruckdeschel, 1982)).
    While a concentration of strandings has been consistently found in 
the vicinity of pound nets, and a number of dead floating sea turtles 
were documented around pound nets in recent years, a cause and effect 
relationship between pound net interactions and high spring strandings 
cannot be statistically derived based on the available data. However, 
NMFS has documented that fishing with pound net leaders results in 
lethal and non-lethal take of sea turtles. NMFS concludes that this 
constitutes sufficient evidence to form the basis for these proposed 
restrictions on pound net leaders.

Impact of High Mortality on Sea Turtle Populations

    Sea turtles have been documented entangled in and impinged on pound 
net leaders, and the purpose of this proposed action is to prevent sea 
turtle entanglements in and impingements on Virginia pound net gear. 
The documented interactions between sea turtles and pound net leaders, 
as well as the annual Virginia spring strandings, are of concern for 
the following reasons: (1) All of the entangled, impinged and stranded 
animals are listed as either endangered or threatened under the ESA 
which means these species are in danger of extinction or likely to 
become endangered; (2) the level of strandings in Virginia has been 
elevated the last seven years, and there is no reason to believe that 
high spring strandings will abate in future years without regulatory 
action; (3) sea turtles have been observed entangled in leader mesh 
sizes smaller than what is currently restricted; (4) sea turtles have 
been observed impinged on leaders by the current, a phenomenon not 
previously believed to occur with such frequency, and impingements are 
likely to continue to occur on small mesh leaders in areas where 
impingements have been documented; (5) the greatest percentage of 
Virginia spring strandings in recent years has been along the southern 
tip of the Eastern shore, where a large number of pound nets are 
located; (6) approximately 50 percent of the Chesapeake Bay loggerhead 
foraging population is composed of the northern subpopulation, a 
subpopulation that may be declining; and (7) most of the stranded 
turtles have been juveniles, a life stage found to be critical to the 
long term survival of the species.
    Most loggerheads in U.S. waters come from one of five genetically 
distinct nesting subpopulations. The largest loggerhead subpopulation 
occurs from 29 N. lat. on the east coast of Florida to 
Sarasota on the west coast and shows recent increases in numbers of 
nesting females based upon an analysis of annual surveys of all nesting 
beaches. However, a more recent analysis limited to nesting data from 
the Index Nesting Beach Survey program from 1989 to 2002, a period 
encompassing index surveys that are more consistent and more accurate 
than surveys in previous years, has shown no detectable trend (B. 
Witherington, Florida Fish and Wildlife Conservation Commission, pers. 
comm., 2002). Thus, it is unclear whether the increase in documented 
sea turtle mortalities in Virginia could partly be a function of the 
status of the South Florida subpopulation of loggerheads, which make up 
approximately 50 percent of the loggerheads found in the Chesapeake 
Bay. The northern subpopulation that nests from northeast Florida 
through North Carolina is much smaller, and nesting numbers are stable 
or declining. Genetic studies indicate that approximately one-half of 
the juvenile loggerheads inhabiting Chesapeake Bay during the spring 
and summer are from the smaller, northern subpopulation (TEWG, 2000; 
Bass et al., 1998; Norrgard, 1995). Approximately 3,800 nesting females 
are estimated for the northern subpopulation of loggerhead sea turtles 
(TEWG, 2000). The impact of the high level of mortality experienced by 
loggerhead turtles each spring off Virginia on the population's ability 
to recover is of significant concern. The northern subpopulation 
produces 65 percent males, while the South Florida subpopulation is 
estimated to produce 20 percent males (NMFS SEFSC, 2001). As males do 
not appear to show the same degree of site fidelity as females, the 
high proportion of males produced in the northern subpopulation may be 
an important source of males for all loggerheads inhabiting the 
Atlantic. The loss of the male contribution from the northern 
subpopulation may restrict gene flow and result in a loss of genetic 
diversity to the loggerhead population as a whole. The loss of females 
from the northern subpopulation may preclude future reproduction, 
reducing the likelihood of both future survival and recovery of the 
northern subpopulation of loggerheads. Given the vulnerability of these 
subpopulations to chronic impacts from human-related activities, the 
high level of spring sea turtle mortality in Virginia must be reduced 
to help ensure that these subpopulations of loggerheads will recover.
    Most of the turtles stranding in Virginia waters during the spring 
are of the juvenile/immature life stages. The specific age at maturity 
for most sea turtles is unknown; the age of maturity for loggerheads 
occurs from approximately 21-35 years (TEWG, 2000). Studies have 
concluded that sea turtles must have high annual survival as juveniles 
and adults to ensure that sufficient numbers of animals survive to 
reproductive maturity to maintain stable populations (Crouse et al., 
1987; Crowder et al., 1994; Crouse, 1999). Given their long maturation 
period, relatively small decreases in annual survival rates of both 
juvenile and adult loggerhead sea turtles may destabilize the 
population, thereby potentially reducing the likelihood of survival and 
recovery of the population. As such, the historical high level of 
mortality in Virginia plus the increase in loggerhead mortality 
documented during the last several years may negatively affect the 
recovery of the loggerhead population.

Restrictions on Pound Net Leaders

    To conserve sea turtles, the AA proposes to prohibit the use of all 
pound net leaders from May 6 to July 15 each year in the Virginia 
waters of the mainstem Chesapeake Bay, south of 37 19.0' 
N. lat. and west of 76 13.0' W. long., and all waters 
south of 37 13.0' N. lat. to the Chesapeake Bay Bridge 
Tunnel (extending from approximately 37 05' N. lat., 
75 59' W. long. to 36 55' N. lat., 
76 08' W. long.) at the mouth of the Chesapeake Bay, and 
the portion of the James River downstream of the Hampton Roads Bridge 
Tunnel (I-64; approximately 36 59.55' N. lat., 
76 18.64' W. long.) and the York River downstream of the 
Coleman Memorial Bridge (Route 17; approximately 37 
14.55' N. lat, 76 30.40' W. long.). Additionally, the AA 
proposes to prohibit the use of all leaders with stretched mesh greater 
than or equal to 8 inches (20.3 cm) and leaders with stringers from May 
6 to July 15 each year in the Virginia waters of the Chesapeake Bay 
outside the aforementioned closed area, extending to the Maryland-
Virginia State line (approximately 37 55' N. lat., 
75 55' W. long.) and the Rappahannock River downstream 
of the Robert Opie Norris Jr. Bridge (Route 3; approximately 
37 37.44' N. lat, 76 25.40' W. long.), 
and from the Chesapeake Bay Bridge Tunnel

[[Page 5814]]

to the COLREGS line at the mouth of the Chesapeake Bay.
    This prohibition of pound net leaders would be effective from 12:01 
a.m. local time on May 6 through 11:59 p.m. local time on July 15 each 
year. For the duration of this proposed gear restriction, fishermen 
would be required to stop fishing with pound net leaders altogether or 
pound net leaders measuring 8 inches (20.3 cm) or greater stretched 
mesh and pound net leaders with stringers, depending upon the location 
of their pound net site as indicated above.
    NMFS has sufficient evidence to conclude that there is a localized 
interaction between sea turtles and pound nets along the Eastern shore 
of Virginia and in the Western Chesapeake Bay. Sea turtles have been 
observed in pound net gear along the Eastern shore in recent years. Sea 
turtles have also been found impinged on and entangled in leaders in 
the Western Bay, during recent monitoring studies as well as surveys in 
the 1980s. Entanglements in and impingements on pound net leaders have 
been documented in leaders with as small as 8 inch (20.3 cm) stretched 
mesh and in leaders with stringers. Impingements occur when the sea 
turtles are held against the net by the current, which could happen 
with any mesh size (i.e., on leaders smaller than 8 inches (20.3 cm) 
stretched mesh) in areas where impingements were previously documented 
(e.g., the southern portion of the Eastern shore, where currents appear 
to be strong). At this time, NMFS cannot determine the current strength 
that results in impingements, but available data show that impingements 
have only occurred in certain areas, locations where observer reports 
and anecdotal information suggest currents are ``strong''. During 2003 
monitoring efforts, there were few active pound nets found in the 
southern Chesapeake Bay outside the Eastern shore and Mobjack Bay (in 
the Western Chesapeake Bay) areas. The area where leaders would be 
prohibited was defined to exclude those pound nets in locations where 
sea turtles have never been found entangled or impinged, despite 
monitoring efforts. To prevent entanglements and impingements (leading 
to the potential subsequent drowning of sea turtles), NMFS proposes to 
prohibit all pound net leaders in a portion of the southern Chesapeake 
Bay.
    While there have not been any documented entanglements or 
impingements outside the southern Chesapeake Bay area where all pound 
net leaders would be prohibited, NMFS is proposing to restrict leader 
mesh size in the remainder of the Virginia Chesapeake Bay to less than 
8 inches (20.3 cm) stretched mesh and prohibit the use of stringers, 
because the best available information shows that sea turtles have been 
entangled in pound net leaders with stretched mesh 8 inches (20.3 cm) 
and greater and in leaders with stringers. Given that gillnets with 
less than 8 inches (20.3 cm) stretched mesh have been found to entangle 
sea turtles (Gearhart, 2002), there is the possibility that 
entanglements in leader mesh smaller than 8 inches (20.3 cm) stretched 
mesh could occur. However, given the differences between gillnet gear 
and pound net leaders (e.g., monofilament versus multifilament 
material; drift, set, and runaround versus fixed stationary gear; 
gilling vs. herding fishing method), the lack of reported entanglements 
in pound net leaders with stretched mesh less than 8 inches (20.3 cm), 
and the lack of reported impingements in the area in which leader mesh 
size would be restricted, NMFS believes that allowing the use of 
leaders but restricting the stretched mesh size to less than 8 inches 
(20.3 cm) is protective of sea turtles. NMFS does not expect sea turtle 
impingements on pound net leaders to occur outside the leader 
prohibited area given the lack of observed impingements on pound net 
leaders, which appears to be related to geographical location and 
current strength. No sea turtles have been found entangled in or 
impinged on the pound or heart of pound net gear to date, and as such, 
the use of those components of the pound net gear is not restricted.
    From 1994 to 2003, the average date of the first reported stranding 
in Virginia was May 13. However, sea turtle mortality would have 
occurred before the animals stranded on Virginia beaches. In order for 
the proposed pound net restrictions to reduce sea turtle interactions 
with pound net leaders, the proposed measures should go into effect at 
least one week prior to the stranding commencement date, or on May 6 
each year. Implementing restrictions on this date would ensure 
protective measures would be in place at the time when sea turtles are 
expected to be in the Chesapeake Bay and are becoming vulnerable to 
mortality sources. Note that this is two days earlier than the date of 
the restrictions enacted in the 2002 interim final rule, as the date 
was modified based upon updated stranding information. Additionally, 
water temperature data support implementation of the proposed measures 
on May 6. Mansfield et al. (2001) and Mansfield and Musick (2003) state 
that analyses by the Virginia Institute of Marine Science have 
estimated that sea turtles migrate into the Chesapeake Bay when water 
temperatures warm to approximately 16 to 18 C. However, 
sea turtles do frequent waters as cool as 11 C (Epperly 
et al., 1995). From 1999 to 2003, the average water temperature on May 
6 at the NOAA National Ocean Service Kiptopeke, Virginia station was 
15.7 C, with average water temperatures increasing to 
16.3 C on May 7 and 17.1 C on May 8. An 
additional analysis conducted by the NMFS Southeast Fisheries Science 
Center found that in week 18 (April 30 to May 6) and week 19 (May 7 to 
May 13), approximately 85 percent and 90 percent, respectively, of the 
area encompassing the mouth of the Chesapeake Bay (from the COLREGS 
line to the 20 m (65.6 ft) depth contour) contained sea surface 
temperatures of 11 C and warmer (NMFS, unpub. data, 
2003). This indicates that water temperatures around the mouth of the 
Chesapeake Bay are within sea turtles' preferred temperature range in 
early May and, therefore, supports the effective date of the proposed 
regulations.
    A previous study in 1983 and 1984 found that sea turtle 
entanglements in pound net gear increased slowly until early June, then 
increased sharply and reached a plateau by late June, with few 
entanglements occurring after June (Bellmund et al., 1987). Since the 
early 1980s, there has not been a directed pound net monitoring effort 
from mid-June to July, but monitoring for sea turtle strandings has 
continued during this time frame. As mentioned, typically the peak of 
Virginia strandings has been from mid-May to mid-June. However, 
strandings data show that the peak can occur earlier and later. For 
instance, in 2003, the stranding peak occurred during the last two 
weeks of June and strandings remained consistent through the second 
week of July (e.g., 48 sea turtles stranded from July 1-15, 2003). The 
2003 stranding peak was 10-15 days later than in 2001 and 2002 (Swingle 
and Barco, 2003). Given that sea turtle presence in the Chesapeake Bay 
is dependent upon water temperature, which makes the stranding peak 
somewhat variable, it is important to ensure sea turtles are protected 
during the period of apparent vulnerability (as indicated by elevated 
strandings). While there is some concern that entanglements could 
continue until the end of July or throughout the sea turtle residency

[[Page 5815]]

period in the Chesapeake Bay, based upon the available data on sea 
turtle entanglements, impingements, and stranding patterns, the 
greatest potential for sea turtles to interact with pound net leaders 
would occur during May and June, and extend into the first half of 
July.
    The time frame of the 2002 interim final rule extended until June 
30. This end date was based on the previous Bellmund et al. (1987) 
study and the historical stranding patterns, showing that documented 
sea turtle entanglements and strandings, respectively, taper off at the 
end of June. The 2002 interim final rule also contained a framework 
mechanism that enabled NMFS to extend the regulations for up to 30 
days, but that measure was not included in this proposed action due to 
difficulties experienced with enacting regulations on a real time 
basis. Given the variability in the stranding peak, the elimination of 
the framework mechanism, and the need to be protective of these listed 
species, the proposed measures would extend to July 15. Implementation 
of the proposed measures during this time period is expected to prevent 
sea turtle entanglement in and impingement on pound net leaders in the 
spring. Note that NMFS is seeking public comments not only on the 
measures included in this proposed rule (e.g., the closure to the use 
of all pound net leaders, its geographical extent, the restrictions on 
leader mesh size and stringers, and their geographical extent), but 
also on the suitability of the time frame of the proposed measures. 
NMFS will consider comments on those topics as well as new developments 
in the scientific information base during the preparation of the final 
rule for this action.
    NMFS plans to continue analyzing the potential natural and 
anthropogenic mortality sources in Virginia inshore, nearshore, and 
offshore waters. As part of this larger initiative, NMFS intends to 
continue to closely monitor sea turtle stranding levels and other 
fisheries active in the Chesapeake Bay and nearshore and offshore 
Virginia waters. Further, NMFS is beginning to implement a coordinated 
research program with pound net industry participants and other 
interested parties to develop and test pound net leader modifications 
with the goal of eliminating or reducing sea turtle interactions while 
retaining an acceptable level of fish catch. Additionally, in the near 
future, NMFS plans to holistically evaluate the impacts of pound nets 
(as well as other fishing gear types) on sea turtles throughout the 
Atlantic and Gulf of Mexico, as part of the Strategy for Sea Turtle 
Conservation and Recovery in Relation to Atlantic Ocean and Gulf of 
Mexico Fisheries (NMFS 2001).
    The year-round reporting and monitoring requirements for this 
fishery established by the 2002 interim final rule remain in effect. 
For instance, all Virginia pound net fishermen are still required to 
report all sea turtle interactions (e.g., dead or alive; entangled, 
impinged, or floated into their net) in any part of their pound net 
gear (e.g., pound, heart, or leader) to NMFS within 24 hours of 
returning from the trip in which the take was documented. To date, NMFS 
has not received any reports from fishermen of sea turtles in their 
pound net leaders, but NMFS observers have documented these 
interactions. In 2003, several live sea turtle captures in pounds were 
reported to NMFS. Note that this action would change the telephone 
number to which to report sea turtle interactions from the telephone 
number previously included in the 2002 interim final rule.
    NMFS is also proposing to modify the titles of adjacent sections of 
regulatory text for sea turtles and fishery interactions, in order to 
make the appropriate sections of regulatory text more easily 
identifiable to readers.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has prepared an initial regulatory flexibility analysis that 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained at the 
beginning of the preamble and in the SUMMARY section. A summary of the 
analysis follows:
    The fishery affected by this proposed rule is the Virginia pound 
net fishery in the Chesapeake Bay. The proposed action prohibits all 
pound net leaders in a portion of the southern Chesapeake Bay, and 
prohibits leaders with stretched mesh greater than or equal to 8 inches 
(20.3 cm) and leaders with stringers in the remainder of the Virginia 
Chesapeake Bay, from May 6 to July 15 each year. Non-preferred 
alternative 1 is the same as the proposed action, but the time period 
of the restrictions is from May 6 to June 30. Non-preferred alternative 
2 prohibits pound net leaders with 8 inches (20.3 cm) and greater 
stretched mesh, as well as leaders with stringers, in the Virginia 
Chesapeake Bay from May 6 to July 15. Non-preferred alternative 3 is 
the same as the proposed action, but the pound and heart, in addition 
to the leader, must also be removed in a portion of the southern 
Chesapeake Bay. Non-preferred alternative 4 prohibits all pound net 
leaders from May 6 to July 15 in the Virginia Chesapeake Bay. Finally, 
in addition to the mesh size restrictions in a portion of the Virginia 
Chesapeake Bay, non-preferred alternative 5 modifies the pound net 
leader configuration in a portion of the southern Chesapeake Bay (i.e., 
the area where all leaders are proposed to be prohibited in the 
proposed action) so that the mesh height is restricted to one-third the 
depth of the water, the mesh must be less than 8 inches (20.3 cm) and 
held with ropes 3/8 inches (0.95 cm) or greater in diameter strung 
vertically a minimum of every 2 feet (61 cm) and attached to a top 
line.
    According to the 2002 VMRC data, there are 31 harvesters actively 
fishing pound nets from May 6 to July 15, with 10 harvesters located in 
the lower portion of the Virginia Chesapeake Bay and 21 harvesters 
located in the upper portion of the Virginia Chesapeake Bay. These 31 
harvesters fish approximately 40 pound nets in the upper portion of the 
Virginia Chesapeake Bay (=21 harvesters x 1.9 pound nets/harvester) and 
30 pound nets in the lower portion of the Virginia Chesapeake Bay (=10 
harvesters x 3.0 pound nets/harvester). Based on 2000 to 2002 data, 
annual landings per harvester were 280,996 pounds (127,457 kg) in the 
upper portion of the Virginia Chesapeake Bay and 257,491 pounds 
(116,795 kg) in the lower portion of the Virginia Chesapeake Bay. 
Annual revenues per harvester were $64,483 and $105,298 in the upper 
and lower region, respectively. From May 6 to July 15, landings per 
harvester were 96,946 pounds (43,973 kg) in the upper region and 95,380 
pounds (43,263 kg) in the lower region. Estimated revenues per 
harvester were $18,102 and $40,474 in the upper and lower region, 
respectively.
    Of the 31 harvesters, 45 percent of the harvesters (=[4 located in 
the upper region +10 located in the lower region]/31 total harvesters) 
fishing from May 6 to July 15 would be affected by this proposed 
action. Approximately 34 pound nets in total would be affected by this 
proposed action, with 4 in the upper portion of the Virginia Chesapeake 
Bay and 30 in the lower portion of the Virginia Chesapeake Bay.
    In the upper portion of the Virginia Chesapeake Bay, two potential 
responses to the leader mesh size restrictions would be either choosing 
to not fish or switching to a smaller leader

[[Page 5816]]

mesh size during the restricted period. If a harvester chooses not to 
fish, their revenues decrease by 17.1 percent, since they incur revenue 
losses and the cost of removing their gear. If a harvester switches to 
a smaller mesh leader, his or her revenues would be reduced by 8.4 
percent. For purposes of this analysis, we assumed the harvester will 
modify their gear since they want to minimize their economic loss. 
Therefore, in the upper bay region, annual revenues may be reduced by 
8.4 percent per harvester under the proposed action. In the upper bay 
region, five of the six alternatives, not counting the ``no action'' 
alternative, are the same. The proposed action and non-preferred 
alternatives 1, 2, 3, and 5 require the leader mesh to be less than 8 
inches (20.3 cm). As such, the impacts of those non-preferred 
alternatives would be the same as those for the proposed action in the 
upper bay area; annual revenues would be reduced by a low of 8.4 
percent per harvester and 4 harvesters would be affected. Under non-
preferred alternative 4, all leaders must be removed from the Virginia 
Chesapeake Bay. This alternative impacts all 21 harvesters in the upper 
region, and annual revenues per harvester would be reduced by 33.5 
percent.
    In the lower portion of the Virginia Chesapeake Bay where all 
leaders are prohibited under the proposed action, management actions 
vary between alternatives. Under all of the alternatives, all 10 
harvesters would be impacted. With the proposed action, annual revenues 
per harvester would be reduced by a high of 43.2 percent. The proposed 
action and non-preferred alternative 4 are the same, and annual 
revenues per harvester would be reduced by 43.2 percent. The economic 
impact under non-preferred alternative 1 would be less compared to the 
proposed action (34.5 percent reduction in annual revenues versus 43.2 
percent), because the restricted time period is shorter. The impact 
under the non-preferred alternative 3 would be greater than the 
proposed action (50.3 percent reduction in annual revenues versus 43.2 
percent), because additional labor costs are incurred to remove the 
heart and pound in addition to the leader. Reductions in annual 
revenues per harvester would be less under non-preferred alternatives 2 
and 5 in comparison to the proposed action, since these non-preferred 
alternatives allow a harvester to modify their gear and continue to 
fish. In the lower bay area, the non-preferred alternative 2 would 
reduce annual revenues per harvester by 8.6 percent to 12.1 percent, 
depending on how many nets they set. Under non-preferred alternative 5, 
annual revenues per harvester would be reduced by 12.1 percent. Taking 
no action would not have economic consequences, at least in the short 
term.
    Annual industry revenues are $2.6 million for the pound net 
fishery. Under the proposed action, industry revenues would be reduced 
by 18.3 percent (=$0.476M/$2.6M). Under non-preferred alternatives 1, 
2, 3, and 5, industry revenues would be reduced by 14.8 percent, 4.9 
percent, 21.2 percent, and 5.8 percent, respectively. With the 
preceding five alternatives, 14 of 31 harvesters would be affected by 
the management actions. Under non-preferred alternative 4, all 
harvesters would be affected and forgone industry revenues would be 
reduced by 34.9 percent. Again, these numbers assume fishermen will 
switch to a smaller mesh leader and continue to fish in those areas 
with leader mesh size restrictions, instead of removing their leaders 
entirely.
    This action does not proposed new reporting or record keeping 
requirements.
    This proposed rule does not duplicate, overlap or conflict with 
other Federal rules.

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

    February 2, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

List of Subjects in 50 CFR Part 223

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.
    For the reasons set forth in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. In Sec. 223.205, paragraph (b)(15) is revised to read as 
follows:


Sec. 223.205  Sea turtles.

* * * * *
    (b) * * *
    (15) Fail to comply with the restrictions set forth in Sec. 
223.206(d)(9) regarding pound net leaders; or
* * * * *
    2. In Sec. 223.206, paragraph (d) (2)(iv) is removed; (d) 
introductory text and (d)(2) paragraph heading are revised; and 
paragraph (d)(9) is added to read as follows:


Sec. 223.206  Exemptions to prohibitions relating to sea turtles.

* * * * *
    (d) Exception for incidental taking. The prohibitions against 
taking in Sec. 223.205(a) do not apply to the incidental take of any 
member of a threatened species of sea turtle (i.e., a take not directed 
towards such member) during fishing or scientific research activities, 
to the extent that those involved are in compliance with all applicable 
requirements of paragraphs (d)(1) through (d)(9) of this section, or in 
compliance with the terms and conditions of an incidental take permit 
issued pursuant to paragraph (a)(2) of this section.
* * * * *
    (2) Gear requirements for trawlers-* * *
* * * * *
    (d) * * *
    (9) Restrictions applicable to pound nets in Virginia-(i) Area 
closed to use of pound net leaders. During the time period of May 6 
through July 15 each year, any pound net leader in the Virginia waters 
of the mainstem Chesapeake Bay, south of 37 19.0' N. 
lat. and west of 76 13.0' W. long., and all waters south 
of 37 13.0' N. lat. to the Chesapeake Bay Bridge Tunnel 
(extending from approximately 37 05' N. lat., 
75 59' W. long. to 36 55' N. lat., 
76 08' W. long.) at the mouth of the Chesapeake Bay, and 
the portion of the James River downstream of the Hampton Roads Bridge 
Tunnel (I-64; approximately 36 59.55' N. lat., 
76 18.64' W. long.) and the York River downstream of the 
Coleman Memorial Bridge (Route 17; approximately 37 
14.55' N. lat, 76 30.40' W. long.) must be removed from 
the water so that no part of the leader contacts the water. All pound 
net leaders must be removed from the waters described in this 
subparagraph prior to May 6 and may not be reset until July 16.
    (ii) Area with pound net leader mesh size restrictions. During the 
time period of May 6 to July 15 each year, any pound net leader in the 
Virginia waters of the Chesapeake Bay outside the area described in 
(i), extending to the Maryland-Virginia State line (approximately 
37 55' N. lat., 75 55' W. long.) and the 
Rappahannock River downstream of the Robert Opie Norris Jr. Bridge 
(Route 3; approximately 37 37.44' N. lat, 
76 25.40' W. long.), and from the Chesapeake Bay Bridge 
Tunnel (extending from approximately 37 05' N. lat., 
75 59' W. long. to 36 55' N. lat., 
76 08' W. long.) to the COLREGS line at the mouth of the 
Chesapeake Bay, must have only mesh size less than 8

[[Page 5817]]

inches (20.3 cm) stretched mesh and may not employ stringers. Any pound 
net leader with stretched mesh measuring 8 inches (20.3 cm) or greater 
or any pound net leader with stringers must be removed from the waters 
described in this subparagraph prior to May 6 and may not be reset 
until July 16.
    (iii) Reporting requirement. At any time during the year, if a 
turtle is taken live and uninjured in a pound net operation, in the 
pound or in the leader, the operator of vessel must report the incident 
to the NMFS Northeast Regional Office, (978) 281-9328 or fax (978) 281-
9394, within 24 hours of returning from the trip in which the 
incidental take was discovered.
    (iv) Monitoring. Owners or operators of pound net fishing 
operations must allow access to the pound net gear so it may be 
observed by a NMFS-approved observer if requested by the Northeast 
Regional Administrator. All NMFS-approved observers will report any 
violations of this section, or other applicable regulations and laws. 
Information collected by observers may be used for law enforcement 
purposes.
[FR Doc. 04-2633 Filed 2-5-04; 8:45 am]
BILLING CODE 3510-22-S