[Federal Register Volume 69, Number 87 (Wednesday, May 5, 2004)]
[Rules and Regulations]
[Pages 24997-25012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10207]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 040127028-4130-02; I.D 012104B]
RIN 0648-AR69


Sea Turtle Conservation: Additional Exception to Sea Turtle Take 
Prohibitions

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

ACTION: Final rule.

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SUMMARY: NMFS is prohibiting the use of all pound net leaders, set with 
the inland end of the leader greater than 10 horizontal feet (3 m) from 
the mean low water line, from May 6 to July 15 each year in the 
Virginia waters of the mainstem Chesapeake Bay, south of 37[deg] 19.0' 
N. lat. and west of 76[deg] 13.0' W. long., and all waters south of 
37[deg] 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. Outside this area, the prohibition of 
leaders with greater than or equal to 12 inches (30.5 cm) stretched 
mesh and leaders with stringers, as established by the June 17, 2002 
interim final rule, will apply from May 6 to July 15 each year. This 
final action also includes a framework mechanism by which NMFS may take 
additional action as necessary. This action, taken under the Endangered 
Species Act of 1973 (ESA), is necessary to conserve sea turtles listed 
as threatened or endangered. NMFS also provides an exception to the 
prohibition on incidental take of threatened sea turtles

[[Page 24998]]

for pound net fishermen in compliance with these regulations.

DATES: Effective May 5, 2004.

FOR FURTHER INFORMATION CONTACT: Carrie Upite (ph. 978-281-9328 x6525, 
fax 978-281-9394, email [email protected]), or Barbara Schroeder 
(ph. 301-713-1401, fax 301-713-0376, email [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    Incidental take, defined to include the harassing, harming, 
wounding, trapping and capturing, of threatened sea turtles is not 
lawful (50 CFR 223.205). 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 authorized incidental take 
of threatened sea turtles for pound net fishermen who complied with 
NMFS' rule. In the rule, NMFS 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 were a year-round requirement for fishermen to report all 
interactions with sea turtles in their 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. Prior to issuance of this rule, takes of threatened sea 
turtles in pound nets were not authorized, and a fisherman who 
incidentally took a threatened sea turtle risked criminal penalties and 
fines.
    To better understand the interactions between pound net gear and 
sea turtles, NMFS conducted pound net monitoring during the spring of 
2002 and 2003. This monitoring documented 23 sea turtles either 
entangled in or impinged on pound net leaders, 18 of which were in 
leaders with less than 12 inches (30.5 cm) stretched mesh. Nine animals 
were found entangled in leaders, of which 7 were dead, and 14 animals 
were found impinged on leaders, of which one was dead. In this 
situation, impingement refers to a sea turtle being held against the 
leader by the current, apparently unable to release itself under its 
own ability. For these purposes, an animal was still considered 
impinged if it had its head and flipper poking through the mesh. An 
animal was considered entangled if a body part was tightly wrapped one 
or more times in the mesh.
    The 2002 and 2003 monitoring results represent 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 problem than previously believed. As such, NMFS 
believes that additional restrictions are warranted to reduce sea 
turtle entanglement in and impingement on pound net gear.
    The documented incidental take of sea turtles in leaders, the 
ability for sea turtles to continue to become entangled in and impinged 
on pound net leaders in the future, and the annual high mortality of 
sea turtles in Virginia during the spring, as evidenced by the high 
number of dead sea turtles stranding on beaches, are of particular 
concern because approximately 50 percent of the Chesapeake Bay 
loggerhead foraging population is composed of the northern 
subpopulation, a subpopulation that may be declining. In addition, most 
of the stranded turtles in Virginia are juveniles, a life stage found 
to be critical to the long term survival of the species. This action is 
necessary to provide for the conservation of threatened and endangered 
sea turtles by reducing incidental take in the Virginia pound net 
fishery during the spring. Details concerning sea turtle and pound net 
interactions, the potential impact of pound net leaders on sea turtles, 
and justification for the need for additional pound net leader 
regulations were provided in the preamble to the proposed rule (69 FR 
5810, February 6, 2004).

Approved Measures

    To conserve sea turtles, NMFS prohibits the use of all offshore 
pound net leaders from May 6 to July 15 each year in the Virginia 
waters of the mainstem Chesapeake Bay, south of 37[deg] 19.0' N. lat. 
and west of 76[deg] 13.0' W. long., and all waters south of 37[deg] 
13.0' N. lat. to the Chesapeake Bay Bridge Tunnel (extending from 
approximately 37[deg] 05' N. lat., 75[deg] 59' W. long. to 36[deg] 55' 
N. lat., 76[deg] 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[deg] 59.55' N. lat., 76[deg] 18.64' W. 
long.) and the York River downstream of the Coleman Memorial Bridge 
(Route 17; approximately 37[deg] 14.55' N. lat, 76[deg] 30.40' W. 
long.). Offshore pound nets are defined as those nets set with the 
inland end of their leader greater than 10 horizontal feet (3 m) from 
the mean low water line. Additionally, outside this area, NMFS retains 
the leader mesh size restriction included in the previous interim final 
rule on the pound net fishery (67 FR 41196, June 17, 2002), which 
prohibited the use of all leaders with stretched mesh greater than or 
equal to 12 inches (30.5 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 from the Maryland-Virginia 
State line (approximately 37[deg] 55' N. lat., 75[deg] 55' W. long.), 
the Great Wicomico River downstream of the Jessie Dupont Memorial 
Highway Bridge (Route 200; approximately 37[deg] 50.84' N. lat, 76[deg] 
22.09' W. long.), 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.), and the Piankatank River downstream of the 
Route 3 Bridge (approximately 37[deg] 30.62' N. lat, 76[deg] 25.19' W. 
long.), to the COLREGS line at the mouth of the Chesapeake Bay. South 
of 37[deg] 19.0' N. lat. and west of 76[deg] 13.0' W. long., and all 
waters south of 37[deg] 13.0' N. lat. to the Chesapeake Bay Bridge 
Tunnel, the leader restriction applies to those nets set with the 
inland end of the leader 10 horizontal feet (3 m) or less from the mean 
low water line. In addition to avoiding applicable penalties for 
failure to comply with ESA regulations, Virginia pound net fishermen 
who comply with these restrictions may incidentally take listed sea 
turtles without being subject to penalties and fines for that take.
    This final rule also retains the framework mechanism currently in 
place (that was included and analyzed in the status quo alternative), 
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 based on, for example, water temperature and the timing 
of sea turtles' migration, that sea turtles may still be vulnerable to 
entanglement in pound net leaders after July 15, NMFS may extend the 
effective dates of this regulation. Should an extension be necessary, 
NMFS would issue a final rule in the Federal Register explicitly 
stating the duration of the extension. The extension would not last 
beyond July 30. Additionally, under this framework mechanism, if 
monitoring of pound net leaders reveals that one sea

[[Page 24999]]

turtle is entangled alive in a pound net leader 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. Such 
additional restrictions may include reducing the allowable mesh size 
for pound net leaders or prohibiting all pound net leaders regardless 
of mesh size in Virginia waters. Should NMFS determine that an 
additional restriction is warranted, NMFS would expeditiously issue a 
final rule that would explicitly state any new gear restriction as well 
as the applicable time period for the restriction, which may be 
extended through July 30. The area where additional gear restrictions 
might apply includes the same area as the initial restriction, namely 
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, and portions of the James River, 
the York River, Piankatank River, the Rappahannock River, and the Great 
Wicomico River.
    The year-round reporting and monitoring requirements for this 
fishery established by the 2002 interim final rule also remain in 
effect.
    From 12:01 a.m. local time on May 6 through 11:59 p.m. local time 
on July 15 each year, fishermen are required to stop fishing with and 
remove from the water pound net leaders altogether or pound net leaders 
measuring 12 inches (30.5 cm) or greater stretched mesh and pound net 
leaders with stringers, depending upon the location of their pound net 
site as indicated above.

Comments and Responses

    On February 6, 2004, NMFS published a proposed rule that would 
prohibit the use of all pound net leaders south of 37[deg] 19.0' N. 
lat. and west of 76[deg] 13.0' W. long., and all waters south of 
37[deg] 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, and all leaders with stretched mesh 
greater than or equal to 8 inches (20.3 cm) and leaders with stringers 
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, from May 6 to July 15 each year. Comments 
on this proposed action were requested through March 8, 2004. Nineteen 
comment letters from eighteen different individuals or organizations 
were received during the public comment period for the proposed rule. 
Four comment letters provided support for the action, while 14 letters 
expressed their opposition to the proposed regulations. One comment 
letter was neither in favor nor against the proposed action. 
Additionally, a petition signed by 1,077 individuals was received 
requesting that the proposal be withdrawn and terminated. A public 
hearing was also held in Virginia Beach, VA on February 19, 2004, and 
11 individuals provided spoken comments. Three of the 11 individuals 
also provided written comments. All of the spoken comments were in 
opposition to the proposed action. NMFS considered these comments on 
the proposed rule as part of its decision making process. A complete 
summary of the comments and NMFS' responses, grouped according to 
general subject matter in no particular order, is provided here.

General Comments

    Comment 1: One commenter recommended that the pound net leader 
prohibitions and restrictions extend throughout the year and that 
marine sanctuaries be established in Virginia waters.
    Response: NMFS considered regulating pound net leaders in 
Virginia's Chesapeake Bay during the period of May through November, 
which would encompass the full time period when sea turtle presence and 
pound net fishing in the Chesapeake Bay overlap. However, few direct 
observations of sea turtle impingement on and entanglement in pound net 
leaders exist after early summer. A pound net characterization study by 
the Virginia Institute of Marine Science (VIMS) documented the 
entanglement of one dead juvenile loggerhead sea turtle in a pound net 
leader (approximately 11 inches (27.9 cm)) in October of 2000 
(Mansfield et al., 2001), and one dead loggerhead was found entangled 
in a pound net leader in August 2001 (Mansfield et al., 2002). It is 
not conclusively known if those animals were dead prior to entanglement 
or if the interaction with the pound net leader resulted in their 
death. Additionally, the level of sea turtle strandings is 
substantially diminished during the summer and fall months which 
indicates a lower mortality rate. With few direct observations of 
entanglement in and impingement on pound net leaders and without high 
levels of strandings, similar to those documented in the spring, there 
is not a sufficient basis at this time to conclude that pound net 
leaders are responsible for high levels of sea turtle mortality from 
August through November. Accordingly, NMFS has determined that it will 
not impose gear restrictions on the Virginia pound net fishery during 
the full time period of the fishery from May through November.
    National marine sanctuaries are designated and managed by NOAA's 
National Marine Sanctuary Program. The sanctuary designation process 
takes several years and is not an option that could be implemented 
currently. NMFS has forwarded the comment to the National Marine 
Sanctuary Program for its consideration.
    Comment 2: One commenter recommended that pound nets be prohibited 
in high recreational areas due to potential hazards to human personal 
safety.
    Response: Under the ESA, NMFS' authority to implement restrictions 
on activities is restricted to those activities that affect a species 
that NMFS manages (e.g., federally endangered and threatened sea 
turtles). Available information does not indicate that the level of sea 
turtle interactions with pound nets in high recreational areas 
necessitates restrictions to protect sea turtles.
    Comment 3: One commenter recommended that formal ESA section 7 
consultation be initiated on the Virginia pound net fishery to 
adequately assess the impacts of this fishery on listed species.
    Response: A formal consultation, pursuant to section 7 of the ESA, 
was previously conducted on the operation of the Virginia pound net 
fishery, as modified by the implementation of the sea turtle 
conservation measures enacted in 2002. This Biological Opinion, issued 
on May 14, 2002, concluded the Virginia pound net fishery as conducted 
under NMFS' implementation of sea turtle conservation regulations 
(including the issuance of an interim final rule that restricted the 
use of pound net leaders in the Virginia Chesapeake Bay from May 8 to 
June 30, and required year round monitoring and reporting) may 
adversely affect but is not likely to jeopardize the continued 
existence of the loggerhead, leatherback, Kemp's ridley, green, or 
hawksbill sea turtle, or shortnose sturgeon. Consultation on this 
action has been reinitiated due to the previously unanticipated take of 
sea turtles in less than 12 inches (30.5 cm) stretched mesh during 
2003. Additionally, a formal section 7 consultation has also been 
completed on the proposed issuance of this new regulation, including 
review of the

[[Page 25000]]

operation of the pound net fishery with new sea turtle conservation 
measures for the Virginia pound net fishery. Due to similarities in the 
proposed actions and the effects on listed species, the reinitiated 
2002 consultation and the new consultation on this final rule have been 
combined. The Biological Opinion was issued on April 16, 2004, and 
concluded that the proposed action may adversely affect, but is not 
likely to jeopardize, the continued existence of the loggerhead, 
leatherback, Kemp's ridley, green, or hawksbill sea turtle, or 
shortnose sturgeon. The Incidental Take Statement exempted the 
anticipated annual take of no more than 505 loggerhead, 101 Kemp's 
ridley, and 1 green sea turtle in all pounds set in the action area. 
These takes are anticipated to be live, uninjured animals. 
Additionally, no more than 1 loggerhead, 1 Kemp's ridley, 1 green, or 1 
leatherback sea turtle are anticipated to be either entangled or 
impinged in leaders throughout the action area from July 16 to May 5 
each year. NMFS further anticipates that, outside the leader prohibited 
area, 1 loggerhead, 1 Kemp's ridley, 1 green, or 1 leatherback sea 
turtle will be entangled in leaders with less than 12 inches (30.5 cm) 
stretched mesh from May 6 to July 15 each year. For the purposes of the 
analysis in the Biological Opinion, entanglements and impingements are 
considered to result in sea turtle mortality. No incidental take of 
hawksbill sea turtles or shortnose sturgeon is anticipated.
    Comment 4: Two commenters stated that the authority and experience 
to regulate state fisheries rests with the Virginia Marine Resources 
Commission (VMRC) and not NMFS, and, therefore, characterized this 
action as inappropriate. One additional commenter believed that NMFS 
regulatory and decision making processes are being dictated by 
environmental groups.
    Response: NMFS agrees that the authority to regulate state 
fisheries rests with the respective state agency, in this case, the 
VMRC. However, VMRC cannot authorize incidental take of threatened sea 
turtles; only NMFS has the authority to do so. NMFS has the authority 
and obligation to protect and conserve all sea turtles that occur in 
U.S. waters that are listed as endangered or threatened under the ESA, 
regardless of whether they occur in Federal or state waters. This 
action is taken under the authority of the ESA to conserve sea turtles 
listed as threatened or endangered.
    NMFS bases its decision on the best available data and knowledge of 
the situation; the decision is not dictated by the opinion of any 
outside entity, be it an environmental group, industry participant, or 
other stakeholder.
    Comment 5: One commenter noted that recent sea turtle mortalities 
in Virginia hopper dredging operations have been higher than observed 
takes in the Virginia pound net fishery, and dredging has been allowed 
to continue. Two additional commenters felt that there was inequity 
with how NMFS addresses and regulates potential impacts to sea turtles.
    Response: Under section 7 of the ESA, Federal agencies must consult 
with either NMFS or the U.S. Fish and Wildlife Service (USFWS) to 
ensure their proposed agency actions do not jeopardize the continued 
existence of listed species. The Norfolk and Baltimore Districts of the 
Army Corps of Engineers (ACOE) have previously consulted with NMFS on 
dredging operations in the Virginia Chesapeake Bay. The impacts of 
hopper dredging on listed species were previously considered via formal 
section 7 consultations (NMFS NER 2002, NMFS NER 2003), and Incidental 
Take Statements were prepared to account for the anticipated take in 
these operations. From July 2000 to October 2003, 54 sea turtles have 
been taken by Virginia dredge operations. Some of the incidents 
involved decomposed turtle flippers and/or carapace parts, but most of 
these takes were fresh dead turtles. Most of these previous sea turtle 
takes were exempted in the Incidental Take Statements of the Biological 
Opinions. Efforts are ongoing to work with the ACOE to further minimize 
this take and enhance existing monitoring programs. NMFS continues to 
work with the ACOE to reduce sea turtle takes in dredging operations, 
as well as to research and attempt to minimize sea turtle mortality 
from other sources (e.g., fisheries, vessels, debris/water quality).
    NMFS attempts to consider all of the impacts to sea turtles 
cumulatively and to reduce threats from all known sources. NMFS and 
USFWS are in fact working to minimize the impacts to sea turtles from 
other activities as well (e.g., nesting habitat degradation, marine 
debris, dredging, power plant impingement). Nevertheless, fishing 
activities have been recognized as one of the most significant threats 
to sea turtle survival (Magnuson et al., 1990, Turtle Expert Working 
Group 2000). To respond to these threats, NMFS is comprehensively 
evaluating the impacts of fishing gear types on sea turtles throughout 
the U.S. Atlantic Ocean 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 (Strategy) (NMFS 2001). Based on the 
information developed for the Strategy, NMFS may impose restrictions on 
or modifications to other activities that put sea turtles at risk.
    Comment 6: Eight commenters felt that leaders with greater than or 
equal to 12 inches (30.5 cm) stretched mesh and leaders with stringers 
result in the most sea turtle mortalities, and specifically recommended 
the status quo option. One of the commenters noted that decreasing the 
allowable mesh size to less than 8 inches (20.3 cm) stretched mesh 
would not help sea turtles and solve the stranding problem, but, 
because the problem is with the sea turtles, it would only hurt the 
fishermen.
    Response: Based on historical observations of pound net leaders 
(Bellmund et al., 1987) and for the reasons discussed in the preamble 
to the 2002 rule, NMFS recognizes that the frequency of sea turtle 
takes in leaders with stretched mesh 12 inches (30.5 cm) and greater 
and leaders with stringers may be higher than in smaller mesh leaders. 
However, during 2002 and 2003, NMFS documented sea turtle interactions 
with mesh leaders ranging from 14 inches (35.6 cm) stretched mesh down 
to 8 inches (20.3 cm) stretched mesh. All but one of these takes were 
in the leader prohibited area, as defined in this final rule. 
Therefore, NMFS has determined to prohibit all leaders in this area to 
prevent takes in the area with previous high sea turtle/pound net 
interactions.
    The justification for the further leader mesh size restriction 
included in the proposed rule was based upon the occurrence of sea 
turtle takes in 8 inch (20.3 cm) and greater stretched mesh leaders. 
However, based upon additional analysis of impingement to entanglement 
ratios by NMFS, it appears that restricting mesh size to less than 8 
inches (20.3 cm) stretched mesh would not necessarily provide 
additional conservation benefit to sea turtles, over that provided by 
restricting mesh size to less than 12 inches. In addition to mesh size, 
the frequency of sea turtle takes appears to be a function of where the 
pound nets are set, with pound nets set in certain areas having a 
higher potential for takes for a variety of possible reasons, such as 
depth of water, current velocity, and proximity to certain 
environmental characteristics or optimal foraging grounds. For 
instance, it is possible that takes may continue to occur on 7.5-inch 
(19.1-cm) stretched mesh leaders if set in certain geographical areas. 
Additional analyses,

[[Page 25001]]

and perhaps data collection, will be completed that may provide 
insights into the relationship between mesh size and sea turtle 
interactions. At this time, the mesh size threshold that would prevent 
sea turtle entanglements has not been determined for mesh size below 12 
inches (30.5 cm). As such, NMFS is retaining the mesh size restriction 
included in the 2002 interim final rule, which is the restriction of 
leaders with greater than or equal to 12 inches (30.5 cm) stretched 
mesh and leaders with stringers, in areas outside the leader prohibited 
area. It should also be noted that during the public comment period, it 
was recognized that an 8-inch (20.3-cm) stretched mesh leader may in 
fact be slightly smaller than 8 inches (20.3 cm), after it is coated 
and hung in the water. For example, NMFS observers measured nets to the 
nearest 0.125 inches (0.318 cm), so a sea turtle entanglement recorded 
in an 8-inch (20.3-cm) stretched mesh leader may have in fact been in a 
leader with 7.95-inches (20.2-cm) stretched mesh. Whenever NMFS 
mentions that sea turtles have been taken in 8 inch (20.3 cm) stretched 
mesh leaders, it refers to nets that may have been slightly smaller or 
larger (within 0.125 inches (0.318 cm)) than 8 inches (20.3 cm).
    Comment 7: One commenter continued to be concerned with the 
potential take in leaders with less than 8 inches (20.3 cm) stretched 
mesh, particularly as a result of impingement.
    Response: NMFS has only documented sea turtles in leaders with 8 
inches (20.3 cm) and greater stretched mesh 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), NMFS recognizes the possibility that entanglements in leader 
stretched mesh smaller than 8 inches (20.3 cm) could occur. There are 
differences between gillnet gear and pound net leaders (e.g., 
monofilament vs. multifilament material; drift, set, and runaround vs. 
fixed stationary gear; gilling vs. herding fishing method), which 
likely factor into the potential for sea turtle interactions and should 
be considered when conducting any mesh size comparison. NMFS does not 
expect sea turtle impingements on pound net leaders to occur outside 
the leader prohibited area, because of the lack of observed 
impingements on pound net leaders outside of this area. Sea turtles may 
continue to be entangled in leaders with less than 12 inches (30.5 cm) 
stretched mesh outside the leader prohibited area. Further, given that 
only one turtle was found entangled outside the leader prohibited area 
in two years of monitoring, NMFS has chosen to keep the restriction to 
leaders with greater than or equal to 12 inches (30.5 cm) stretched 
mesh. However, NMFS will continue monitoring pound nets for sea turtle 
interactions and the framework mechanism included in this final rule 
will enable the enactment of additional management measures if 
determined necessary.

Comments on Validity of Scientific Information

    Comment 8: Sixteen commenters felt that the limited observer data 
do not support the conclusion that the pound net fishery is a major 
source of mortality, especially as the spring strandings have been much 
higher than the observed interactions in pound net gear. Three 
commenters believed sea turtles will not biologically benefit with the 
proposed measures given the limited take data. One commenter 
additionally felt that this regulation, and its supporting 
justification, establishes a bad precedent for managing Virginia 
fisheries.
    Response: In 2002 and 2003, 23 sea turtles were found either 
entangled in or impinged on pound net leaders, while in May, June and 
the first half of July of 2002 and 2003, approximately 563 sea turtles 
were found stranded on Virginia beaches. NMFS acknowledges that other 
factors likely contribute to spring sea turtle mortality in Virginia, 
and NMFS does not assume that all sea turtle strandings are the result 
of pound net interactions. Sea turtle mortality sources are difficult 
to detect from evaluating the stranded animal. Few sea turtles strand 
with evidence of fishery interactions, but the lack of gear on a 
carcass is not necessarily indicative of a lack of fishery interaction. 
NMFS has observed other fisheries and investigated other potential 
causes, such as dredge operations, for the annual spring sea turtle 
mortality event and determined that natural or non-fishing related 
anthropogenic causes are not consistent with the nature and timing of 
most of the strandings (67 FR 15160, March 29, 2002, 69 FR 5810, 
February 6, 2004). For instance, during the approximate time period of 
the proposed measures (May 16 to July 31, 2003), a preliminary count of 
26 of 375 turtles were found on Virginia beaches with carapace/plastron 
damage or propeller-like wounds. It is unknown how many of these 
injuries were pre or post-mortem. Unlike for pound net leaders, the 
level of sea turtle interactions with other potential mortality sources 
(e.g., other fisheries) has not yet been conclusively determined as few 
takes have been documented. As noted above, NMFS has data showing that 
pound net leaders result in sea turtle entanglement and impingement. 
NMFS believes that it is likely that pound nets contribute to, but do 
not cause all of, the high sea turtle strandings documented each spring 
on Virginia beaches. Under the ESA, NMFS is responsible for protecting 
sea turtles from various mortality sources.
    There are several caveats, ones more likely to result in 
underestimates, associated with the pound net monitoring studies that 
should be noted when evaluating the number of animals found in the 
gear. The sea turtles 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 a few feet below the surface cannot be 
observed due to the poor water clarity in the Chesapeake Bay. In 
several instances in 2002 and 2003, due to tide state and water 
clarity, even the top line of the leader was unable to be viewed. 
Additionally, NMFS' sampling effort was confined to two boats in 2002 
and one vessel during 2003, and each net could not be sampled during 
every tidal cycle, every hour, or even every day. Some impingements, 
and some entanglements, were undoubtedly missed as a small fraction of 
the fishing effort was observed. Due to funding and staff constraints, 
NMFS observers did not monitor pound nets after early June in 2002 and 
2003, and did not monitor during the high spring stranding period in 
2003. As such, some sea turtle entanglements and/or impingements could 
have been missed later in the season. Given these caveats, even if 
pound nets caused every sea turtle mortality in the Virginia Chesapeake 
Bay, it is not expected that the number of observed sea turtle 
interactions would equal the number of strandings. It should also be 
noted that a revised analysis by NMFS found that nets were observed a 
total of 838 times in 2002 and 2003, not 1463 times as noted in the 
draft EA. This modification is a factor of discounting the non-active 
nets and the nets that were not able to be completely observed due to 
shallow water depth and lack of boat access.
    NMFS considers the monitoring information collected in 2002 and 
2003 to be noteworthy, given that entanglements were not previously 
anticipated on leaders with less than 12 inches (30.5 cm) stretched 
mesh and impingements on leaders were observed, a phenomenon not 
previously

[[Page 25002]]

believed to occur with such frequency. NMFS believes that this data 
represent new information on the interactions between sea turtles and 
pound net leaders and should be used to further reduce takes in this 
fishery.
    Sea turtles will benefit from this action, as pound net leaders 
entangle and impinge these animals and this action will reduce these 
interactions. The exact population benefit cannot be determined, but as 
sea turtle populations found in the Virginia Chesapeake Bay have not 
yet recovered, diligence must be used to reduce mortality sources. 
Loggerheads and Kemp's ridleys have been found interacting with pound 
net gear and are the most common species found in the Chesapeake Bay. 
Most loggerheads in U.S. waters come from one of five genetically 
distinct nesting subpopulations. The largest loggerhead subpopulation 
occurs from 29[deg] 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). 
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).
    Kemp's ridleys are considered to be one of the world's most 
endangered sea turtle species. The population has been drastically 
reduced from historical nesting numbers, but the Turtle Expert Working 
Group (1998, 2000) indicated that the Kemp's ridley population appears 
to be in the early stage of a recovery trajectory. Nesting data, 
estimated number of adults, and percentage of first time nesters have 
all increased from lows experienced in the 1970's and 1980's. From 1985 
to 1999, the number of nests observed at Rancho Nuevo and nearby 
beaches has increased at a mean rate of 11.3 percent per year, allowing 
cautious optimism that the population is on its way to recovery. Given 
the vulnerability of these populations 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 populations of 
loggerheads and Kemp's ridleys recover.
    Additionally, most of the turtles found in Virginia waters, as well 
as found stranded during the spring, are of the juvenile life stage 
(Mansfield et al., 2001, Musick et al., 2000, Musick and Limpus, 1997). 
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 mortality documented during 
the last several years may negatively affect recovery. Any action that 
helps reduce sea turtle mortality will biologically benefit these 
species.
    Regardless of whether NMFS issued this final regulation, if NMFS 
identifies additional sea turtle mortality sources, NMFS would consider 
additional management actions pursuant to its obligations under the 
ESA. Therefore, this final rule, or the justification for it, does not 
set any precedent.
    Comment 9: Two commenters expressed their concern with closing a 
portion of the fishery without a complete understanding of the problem 
and recommended more research, particularly with respect to 
impingements.
    Response: NMFS is committed to undertaking additional research to 
not only continue studying the interactions between pound nets and sea 
turtles, but also to continue monitoring and investigating sea turtle 
mortality in Virginia during the spring. If any scientific research 
results or future study plans are available that would provide more 
information, NMFS would welcome receiving or discussing those studies. 
However, given the results of the pound net monitoring studies in 2002 
and 2003, it is necessary to act on the results at this time to 
minimize additional sea turtle entanglements and impingements in the 
future. The data show that sea turtles are entangled in and impinged on 
leader mesh sizes smaller than what are currently restricted and most 
of these interactions have occurred in a specific geographical area 
(i.e., in the leader prohibited area). Note that at this time NMFS 
chose to retain the leader mesh size restriction as included in the 
previous action on this fishery (in areas outside the leader prohibited 
area) in order to complete additional analyses, and perhaps data 
collection, on the conservation benefit of different mesh size 
thresholds. NMFS is committed to continuing to explore the issue as 
well as working with the industry to develop a gear modification 
solution that would minimize sea turtle takes and retain an acceptable 
level of target catch.
    Comment 10: Two commenters disagreed that most impingements lead to 
mortality, given the normal diving behavior of sea turtles, the 
variable strength of the tidal currents, and the lack of observation 
time for the impinged animals.
    Response: NMFS observers documented 14 sea turtles, 13 of these 
alive, impinged on pound net leaders by the current, during monitoring 
surveys in 2002 and 2003. When an animal was found impinged on the 
leader, it was immediately released from the net by the observer. 
Impinged sea turtles were not observed on the net for any length of 
time, due to the need to release an air-breathing endangered or 
threatened species from fishing gear as soon as the animal is found, 
and the uncertainty surrounding how long the animal had already been 
impinged and how potentially compromised it was. If an animal was 
impinged on a leader by the current with its flippers inactive, based 
on other observations of impinged sea turtles, NMFS believes that 
without any human intervention the turtle could either swim away alive 
when slack tide occurred, become entangled in the leader mesh when 
trying to free itself, or drift away dead if it drowned prior to slack 
tide. In 2002 and 2003, six of the live impingements occurred near the 
surface, but seven turtles were found underwater, unable to reach the 
surface to breathe, with an average of 3 hours until slack tide. It is 
likely that if a turtle could not breathe from the position where it 
was impinged on the net, it would have a low likelihood of survival if 
it remained on the net for longer than approximately one hour.
    While a public comment noted that sea turtles in Virginia have been 
found to remain submerged for durations of 40 minutes under normal 
conditions, it is unlikely that struggling, physiologically stressed 
sea turtles in fishing gear could do the same, as forcibly submerged 
turtles rapidly consume their oxygen stores (Lutcavage and Lutz, 1997). 
In forcibly submerged loggerhead turtles, blood oxygen was depleted to 
negligible levels in less than 30 minutes (Lutz and

[[Page 25003]]

Bentley, 1985 in Lutcavage and Lutz, 1997). The rapidity and extent of 
internal changes are likely functions of the intensity of underwater 
struggling and the length of submergence. For instance, oxygen stores 
were depleted within 15 minutes in tethered green sea turtles diving to 
escape (Wood et al., 1984 in Lutcavage and Lutz, 1997). Given that some 
forcibly submerged sea turtles on pound net leaders have been observed 
struggling, it is unlikely that the submergence duration of impinged 
animals would be the same as for non-impinged sea turtles. Besides the 
one specimen of an unknown species of sea turtle found in June 2003, 
the turtles observed impinged in 2002 and 2003 were not observed moving 
vertically on the net, given that in most cases, at least one of their 
flippers were rendered inactive as they were held against the net. The 
unidentified sea turtle found in June 2003, that either slipped deeper 
down the net or escaped before the observer could evaluate it further, 
had both of its front flippers active. Four impinged sea turtles had 
their head and/or flipper through the leader mesh, but because the part 
was not wrapped multiple times in the net, it was not considered 
entangled. Often the impinged turtles were documented as held against 
the nets by very slight, almost slack, currents. It is unknown how long 
those animals were impinged on the net before being observed. It could 
be that those animals were held against the net for more than 
approximately an hour and when observed impinged with the slight 
current, they were already in a compromised state. If a sea turtle 
remains alive after an impingement and swims freely, it could become 
impinged on or entangled in another nearby pound net leader. This 
animal would likely already be in a compromised state, which would 
further augment the impacts of forced submergence.
    Comment 11: Five commenters noted the difference between nearshore 
and offshore nets along the Eastern shore of Virginia, with respect to 
the different current strength, water depth and observed turtle takes. 
Two of these commenters felt that the potential for impingements could 
not be extrapolated to the entire fishery or to nets in shallower 
waters with weaker currents.
    Response: NMFS observed sea turtles impinged on nets with what 
appeared to be varying current strengths. NMFS agrees that additional 
research is necessary on the current strength needed to impinge a sea 
turtle, and recognizes that there appear to be differences between 
nearshore and offshore nets with respect to impingement potential and 
sea turtle interactions. It was NMFS' previous assumption that all net 
locations in the leader prohibited area experienced similar conditions, 
namely relatively high currents regardless of water depth, given that 
impingements have been documented in those nets set in the Western Bay 
and along the Eastern shore and NMFS' observations documented swift 
moving currents in all of those net locations. Information from the 
public comments suggested that the differences between nearshore and 
offshore nets are noteworthy, and the difference in impingement 
potential must be considered. Based on these comments, NMFS re-analyzed 
the 2002 and 2003 monitoring records and the data do support that there 
is a statistically significant difference between observed sea turtle 
takes in nearshore and offshore nets. In 2002 and 2003, offshore nets 
accounted for all of the observed impingements (n=14) and 8 of the 9 
observed entanglements. One dead loggerhead was documented in a 
nearshore 8 inch (20.3 cm) stretched mesh leader in June 2003. During 
2002 and 2003, there were 345 surveys of nearshore nets and 480 surveys 
of offshore nets. Thirteen surveys did not have a nearshore or offshore 
designation. Based upon the observations of nearshore nets, it does 
appear that they pose a significantly lower risk to sea turtles and as 
such, NMFS has modified the leader prohibited area in this final rule 
to exclude nearshore nets. Nearshore nets are defined to include those 
nets with the inland end of their leader 10 horizontal feet (3 m) or 
less from the mean low water line, and offshore nets include all other 
nets set in various water depths. The revised leader prohibited area 
includes all areas where sea turtles were documented impinged on pound 
net leaders.
    Generally, areas close to shore are often shallower and have less 
current than those areas further from shore, but exceptions may occur 
because environmental conditions can vary locally. Distance from shore 
is likely a proxy for other factors (e.g., water depth, current speed) 
influencing sea turtle interaction rates. For this action, distance 
from the mean low water line was used as a common characteristic of 
those nets considered to be nearshore. NMFS will be collecting more 
data on current strengths in the Virginia Chesapeake Bay, and until 
additional information may indicate otherwise, NMFS considers distance 
from shore to be suitable to separate nearshore and offshore nets.
    Comment 12: Three commenters disagreed with NMFS' statement that 
there are unreported sub-surface sea turtle mortalities in pound net 
leaders, because the previous side scan sonar surveys did not detect 
any sea turtle takes.
    Response: In 2001, 7 days of side scan sonar surveys were completed 
from May 24 through August 3 (with no surveys completed from June 24 to 
July 22 due to weather), for a total of 825 images for the 55 active 
pound net leaders surveyed (Mansfield et al., 2002a). In 2002, 9 days 
of surveys were conducted from May 22 to June 27, for a total of 1,848 
images for the 61 active pound net leaders surveyed (Mansfield et al., 
2002b). In 2001 and 2002, surveys were conducted almost equally in the 
Western Bay and along the Eastern shore. No sub-surface acoustical 
signatures were noted during these surveys. The use of side scan sonar 
as a means to detect sub-surface sea turtle entanglements may have 
potential, but additional research on sub-surface interactions is 
needed. Mansfield et al. (2002a, 2002b) state that a number of factors 
may influence the use of side scan sonar, including weather, sea 
conditions, water turbidity, the size and decomposition state of the 
animal, and the orientation of the turtle in the net. NMFS recognizes 
that survey scheduling is limited by weather and sea conditions, but 
considers that side scan survey results may continue to be affected by 
water turbidity, the size and decomposition state of the animal, and 
the orientation of the turtle in the net. These issues must be 
addressed in future surveys before conclusively determining that sea 
turtles are not found in pound net leaders sub-surface. NMFS conducted 
forward searching sonar testing in April 2003 to further explore the 
issue, but due to technical difficulties (e.g., narrow band width, time 
needed to familiarize staff with equipment and image interpretation, 
scheduling), testing had to be curtailed while visual monitoring was 
conducted. Additional sonar testing is anticipated to be conducted in 
the spring of 2004.
    However, because sea turtles can be present throughout the water 
column, it is possible that subsurface entanglements and impingements 
occur. Data indicate that while the spring water column temperatures 
are stratified and sea turtles may prefer warmer surface waters, sea 
turtles may also be found at depth. Sea turtles generally inhabit water 
temperatures greater than 11[deg] C (Epperly et al., 1995), and 
loggerheads and Kemp's ridleys in Virginia waters forage on benthic 
species. As sea turtles use the

[[Page 25004]]

Chesapeake Bay as developmental foraging grounds (Byles, 1988, 
Lutcavage and Musick, 1985, Musick and Limpus, 1997), they will be 
periodically near the bottom if they are foraging and may come in 
contact with pound net leaders at depth. Musick et al. (1984) found 
that crustaceans aggregate on large epibiotic loads that grow on the 
pound net stakes and horseshoe crabs (a preferred prey for loggerheads) 
become concentrated at the bottom of the net. Additionally, Mansfield 
and Musick (2003) found that seven sea turtles (six loggerheads and one 
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). Further, Byles (1988) and Mansfield and 
Musick (2003, 2004) found that sea turtles in the lower Chesapeake Bay 
commonly make dives of over 40 minutes during the day. While the 
percentage of time spent at each depth range needs to be clarified, it 
is improbable that turtles, during a 40 minute period, are never found 
at depths deeper than the depth at which sea turtles were observed 
entangled and impinged (e.g., approximately 6 feet (1.8 m)). This 
information suggests that sea turtles will be found through the water 
column, even though they may prefer warmer surface waters. While side 
scan sonar survey results have not documented the sub-surface 
entanglement of sea turtles in two years of surveys, NMFS believes 
these results should be treated cautiously, recognizing the potential 
limitations of this technique and known sea turtle behavior patterns.
    Comment 13: One commenter disagreed with NMFS' statement that the 
mesh size characteristics are generally consistent from the top to 
bottom of the leader.
    Response: It is possible that different nets in different areas of 
the Chesapeake Bay are set with different mesh sizes from top to 
bottom. The statement in the proposed rule was that pound net leader 
characteristics are generally consistent from top to bottom. NMFS 
conducted pound net leader observations during 2002 and 2003 for a 
total of 126 individual active nets observed, and documented different 
mesh sizes in the top and bottom of the leader in only one or two nets, 
but notes that nets were not routinely monitored from top to bottom. In 
2002 and 2003 combined, there were approximately 26 nets that did 
change mesh sizes from the shallower end to the deeper end of the 
leader (moving horizontally along the leader), but that is not what was 
referred to in NMFS' original statement. Additionally, NMFS discussed 
this issue with four pound net fishermen and this subset of fishermen 
indicated that they used one mesh size in their leaders.
    Comment 14: One commenter disagreed with NMFS' statement that pound 
net leaders in the Virginia Chesapeake Bay are one mile (1,609 m) long.
    Response: The Economic and Social Environment section (Section 4.3) 
of the draft EA stated that ``...fish swimming along the shore are 
turned towards the pound by the leader (sometimes a mile long), guided 
into the heart, and then into the pound...'' The purpose of this 
paragraph was to provide background information on the configuration of 
pound net gear, and it is NMFS' understanding that in certain areas 
pound net leaders can be one mile (1,609 m) long (Dumont and Sundstron, 
1961). Based upon field observations in Virginia however, NMFS agrees 
with the comment that pound net leaders in Virginia do not reach one 
mile (1,609 m) long. In fact, Section 28.2-307 of the Code of Virginia 
restricts the total length of a single fixed fishing device to 1,200 
feet (365.8 m) or less. The reference to the leader length of one mile 
(1,609 m) was deleted in the final EA.
    Comment 15: One commenter noted that pound net operations are 
critical sources of food for birds, protected under the Migratory Bird 
Treaty Act, in the Virginia Chesapeake Bay, and NMFS failed to consider 
this biological benefit in its analysis. Further, this commenter felt 
that pound net operations are beneficial for sea turtles, as important 
sources of food from the discards of the pound nets.
    Response: NMFS recognizes that a variety of birds feed on the catch 
and discards from the pound net fishery. That potential benefit to 
avian species was analyzed in the final EA. However, birds have also 
been documented entangled, dead and alive, in the leaders and have been 
documented entangled and entrapped in the pounds and hearts, both dead 
and alive. Monitoring efforts in 2002 and 2003 documented several dead 
birds entangled in leaders, hearts, or pounds with varying mesh sizes, 
including 12 pelicans, 10 cormorants, 6 gulls, 2 gannets, 2 common 
loons, 1 royal tern, and 130 birds of unidentified species. Since 
individual nets were surveyed multiple times, and since it is difficult 
to identify decomposing birds, some birds may have been counted 
multiple times. Regardless, the avian mortality documented during 2002 
and 2003 does not represent total mortality to these species, as 
surveys documented only a portion of total fishing effort. Birds 
foraging in Chesapeake Bay may exploit pound nets for prey but they are 
not dependent on this source of forage. NMFS believes that the risk of 
mortality, disruption of normal feeding behaviors, and other unknown 
ecological effects to avian species resulting from pound nets outweighs 
any perceived benefit of concentrating prey resources.
    Sea turtles have been found alive and uninjured in the pounds of 
pound net gear, and are assumed to be foraging on the entrapped 
species. Tagging data collected by VIMS suggest that some sea turtles 
exhibit strong site fidelity to certain pound nets (Mansfield and 
Musick, in press). Turtles may also feed on the discards of pound net 
gear outside the pound, but the harm or benefit of this foraging 
resource are unknown. Turtles' proximity to the gear may in fact 
increase the potential for interactions with the leaders. NMFS believes 
the negative impact from interactions with the leaders outweighs any 
potential benefit from the concentration of prey items or availability 
of discards. It is also unknown what impact pound nets have on the 
behavior and development of sea turtles in the Chesapeake Bay.

Comments Related to Stranding Levels

    Comment 16: Thirteen commenters stated that the proposed pound net 
restrictions will not solve the high spring sea turtle stranding 
problem in Virginia waters, and NMFS should continue to explore other 
sources of sea turtle mortality (e.g., vessel impacts, habitat 
degradation, water quality, lack of prey items, other fisheries). One 
of the commenters recommended that the menhaden fishery be regulated so 
there would be more food and better water quality for marine species, 
sea turtles included. Observer coverage on other spring fisheries in 
Virginia, as well as continued observer coverage on the pound net 
fishery, was recommended by four of the commenters.
    Response: As discussed in Comment 8, NMFS does not believe that 
pound nets are the sole source of spring turtle mortalities in 
Virginia. NMFS does believe that pound nets play a role in the annual 
spring stranding event. Prohibiting a gear type known to entangle and 
impinge sea turtles in an area with documented takes will protect sea 
turtles from potential mortality associated with these pound net 
leaders, and reduce the strandings that occur from this gear type.
    Since 2001, several fisheries have been observed in Virginia with 
few documented sea turtle takes. However, NMFS recognizes that 
variations in fishery-turtle interactions may occur between years, and 
is committed to

[[Page 25005]]

continued monitoring of fisheries in and around Virginia. The NMFS 2004 
monitoring program is anticipated to include observer coverage of the 
gillnet fisheries in offshore and nearshore Virginia and Chesapeake Bay 
waters; alternative platform observer coverage of the large mesh 
gillnet black drum fishery; observer coverage of the trawl and scallop 
dredge fisheries in offshore Virginia waters; investigations into sea 
turtle interactions with the whelk and crab pot fisheries; and pound 
net monitoring. NMFS is also working to place observers on board the 
menhaden purse seine fishery in the Chesapeake Bay. NMFS will also be 
providing funding for professional necropsies and associated lab costs 
on fresh dead sea turtles in Virginia to get a better picture of the 
health of a subset of stranded sea turtles, and working with Virginia 
organizations to institute an educational campaign aimed at reducing 
sea turtle interactions with recreational fishermen and boaters. NMFS 
will continue to closely monitor sea turtle stranding levels and to 
evaluate interactions with other mortality sources not previously 
considered that may contribute to sea turtle strandings.
    NMFS recognizes that water quality and habitat degradation from 
many sources can influence sea turtle distribution, prey availability, 
foraging ability, reproduction, and survival. Sea turtles are not very 
easily directly affected by changes in water quality or increased 
suspended sediments, but if these alterations make habitat less 
suitable for turtles and hinder their capability to forage, eventually 
they might tend to leave or avoid these less desirable areas (Ruben and 
Morreale, 1999). The Chesapeake Bay watershed is highly developed and 
may contribute to impaired water quality via stormwater runoff or point 
sources. However, due to the volume of water in the mainstem Chesapeake 
Bay, the impacts of pollutants may be slightly reduced compared to 
certain tributaries. In a characterization of the chemical contaminant 
effects on living resources in the Chesapeake Bay's tidal rivers, the 
mainstem Bay was not characterized due to the historically low levels 
of chemical contamination, but the James River was characterized as an 
area with potential adverse chemical contaminant effects to living 
resources (Chesapeake Bay Program Office 1999). NMFS, USFWS, and the 
Environmental Protection Agency (EPA) are currently engaged in ESA 
section 7 consultations on EPA's water quality standards and aquatic 
life criteria. Through those consultations, the effects of EPA's water 
quality standards will be evaluated with respect to potential impacts 
to listed species.
    NMFS recognizes that the blue crab population in the Chesapeake Bay 
has declined from previous levels (Seney, 2003). A diet analysis of 
stranded loggerhead and Kemp's ridley sea turtles in Virginia found 
that the diet of loggerheads appears to have shifted to a fish 
dominated diet in the mid-1990s and in 2001 to 2002, from horseshoe 
crab dominance during the early to mid-1980s and blue crab dominance in 
the late 1980s and early 1990s (Seney, 2003). Menhaden, croaker, 
seatrout, striped bass and bluefish were the fish species most 
frequently found in the recent loggerhead samples, with all of these 
fish species being commercially important in Virginia's gillnet and 
pound net fisheries (Mansfield et al., 2001, 2002a in Seney, 2003). 
Seney (2003) stated the fish species composition and the fact that few 
turtles had consumed both fish and scavenging mud snails suggests that 
the turtles examined were feeding on primarily live and fresh dead fish 
from nets. It remains uncertain whether these results are biased 
because sampling was conducted on only stranded animals and it could be 
that more fish was found in the stomachs of stranded loggerheads 
because some were interacting with fishing gear, which contributed to 
their demise. Based upon these results however, it does appear that 
loggerheads are shifting their diet and the decline of the horseshoe 
and blue crab populations may be increasing loggerheads' interaction 
rate with fishing gear. The future ramifications of this are unclear 
and it warrants further research. A small subset of Kemp's ridleys was 
sampled and data suggest that blue crabs and spider crabs were key 
components of the Virginia Kemp's ridley diet from 1987 to 2002. 
However, based on the body condition of the majority of stranded 
turtles, sea turtles in the Chesapeake Bay do not appear to be 
compromised by a lack of food. The decline of the horseshoe and blue 
crab populations may result in a diet shift to different species (e.g., 
different species of crab) or potential move to a different foraging 
area.
    Again, it should be stressed that NMFS believes that high spring 
strandings may be a result of an accumulation of factors, most notably 
fishery interactions, but pound net leaders are known to take sea 
turtles and NMFS believes that interactions with pound net leaders 
likely contribute to the overall strandings.
    Comment 17: Twelve commenters noted that the number of active pound 
nets (large mesh and stringer leaders in particular) have decreased 
since the 1980s while the number of strandings have increased in recent 
years.
    Response: NMFS agrees that there are currently fewer pound net 
leaders, in particular those utilizing large mesh and stringer leaders, 
in the Virginia Chesapeake Bay in comparison to the 1980s. It is 
unclear whether the reduction in pound nets has been consistent 
throughout the Virginia Chesapeake Bay, or whether the number of pound 
nets in one area has decreased significantly and the number in another 
area has remained relatively the same or potentially increased. The 
number of pound net licenses issued in Virginia has remained the same 
since 1994, due to a limited entry program, and one license is assigned 
to each pound net. So while the number of pound nets has apparently 
decreased since the 1980s, the number of licenses issued (n=161) has 
been approximately the same since 1994. This suggests that the number 
of pound nets in the Virginia Chesapeake Bay has been approximately the 
same since 1994, but NMFS recognizes that the number of active nets in 
any given season may vary among years. Also, NMFS notes that pound net 
landings from 1990 to 1999 have increased at an annual rate of 8.33 
percent, while the annual revenues from pound net landings have 
increased by 17.31 percent (Kirkley et al., 2001).
    Regardless, NMFS disagrees with the conclusion that some turtle 
strandings cannot be attributed to pound net leaders because strandings 
have increased while the number of leaders have decreased. NMFS 
recognizes that the increase in documented sea turtle mortalities could 
be a function of the increase and improvement in the level of stranding 
effort, coverage, and reporting that has occurred, especially along the 
Eastern shore, and perhaps a function of the apparent increase in 
abundance of the southern population of loggerheads, which make up 
approximately 50 percent of the loggerheads found in the Virginia 
Chesapeake Bay. Pound net leaders (regardless of how many are in the 
Chesapeake Bay) still entangle and impinge sea turtles and the ESA 
requires NMFS to use the best available scientific information to 
protect the species. There have been documented sea turtle 
entanglements in leaders that were determined to have caused mortality 
by drowning. Impingements represent a take under the ESA that may lead 
to mortality.
    Comment 18: Four commenters acknowledged that elevated strandings 
abate by the end of June or early July

[[Page 25006]]

and the pound net fishery operates throughout the turtle residency 
period in the Chesapeake Bay. They noted that if pound nets were the 
problem, one would expect strandings to remain at elevated levels 
throughout the season. One of the commenters noted that there have been 
no documented takes after June 15, 2003, to the present.
    Response: From 1995 to 2002, the average monthly sea turtle 
strandings for Virginia (oceanside and Chesapeake Bay combined) were 
the highest in June (117), followed by May (39), July (28), August 
(26), October (18), and September (17). Strandings do continue 
throughout the sea turtle residency period, but not at the elevated 
levels seen in the spring. As noted in Comment 1, to NMFS' knowledge, 
there have been 2 observed turtles in pound net leaders after the 
spring, but there also has been very limited observer coverage during 
that time. It is possible that entanglements and impingements are 
occurring in pound net leaders after the spring, and contributing to 
stranding levels, but there are no notable observations to suggest 
that, or that the frequency of takes is the same as in the spring. It 
is also possible that sea turtles are more vulnerable to pound net 
entanglement and impingement in the spring, as they are moving into the 
Chesapeake Bay, migrating through a concentration of pound nets set 
near the mouth of the Chesapeake Bay. NMFS acknowledges that additional 
information would be beneficial to adequately assess the risk of 
entanglement/impingements in pound net leaders after the spring, and to 
determine why sea turtles may not be interacting as frequently with 
leaders during this time. The only directed study on temporal 
entanglements dates back to the 1980s, and the sampling area was 
concentrated in the western Chesapeake Bay. Bellmund et al., (1987) 
stated that entanglements in pound net leaders began in mid-May, 
increased in early June, and reached a plateau in late June. In 1984, 
surveys were conducted through September, and no entanglements were 
observed after late June. Bellmund et al. (1987) further stated that 
these data suggest pound nets pose mortality threats to sea turtles in 
the Chesapeake Bay for a relatively short period of the year even 
though most sea turtles reside in the Chesapeake Bay from May through 
October. Additionally, from 1981 to 1984, 14 loggerheads and 2 Kemp's 
ridleys were monitored via radio tracking (Byles, 1988). Three of the 
animals became entangled in leaders; the other animals tracked in the 
summer and fall were able to forage around the nets with little 
apparent entanglement threat (Byles, 1988, Musick et al., 1994, 
Mansfield et al., 2002b).
    NMFS acknowledges that there are few documented sea turtle 
interactions with pound net leaders after mid-June. However, there also 
have not been any directed monitoring efforts during this time; NMFS 
monitoring in 2003 ended on June 11 due to funding and logistical 
constraints. Monitoring was not conducted during the peak of the 2003 
stranding period and it is possible that many more sea turtles would 
have been observed entangled in or impinged on leaders during that 
time. As stated in the responses to Comments 8 and 16, NMFS does not 
believe pound nets cause all of the strandings in Virginia, and as 
noted in the proposed rule, a cause and effect relationship between 
pound net interactions and high spring strandings cannot be 
statistically derived based on the available data, even though 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. The facts remain that turtles have 
been observed entangled in and impinged on pound net leaders during the 
spring.
    Comment 19: Two commenters noted that the proposed rule failed to 
identify what action NMFS would take if the final rule is implemented 
as proposed and high strandings continue in the spring.
    Response: Monitoring of potential mortality sources will continue 
to occur this spring, and the information gathered from these 
monitoring initiatives would inform what action NMFS would take if 
strandings continue. It is possible that additional mortality sources 
may be identified and appropriate actions taken. NMFS believes this 
final rule will result in reduced sea turtle mortality associated with 
pound net gear in the Chesapeake Bay. The final rule includes the 
framework mechanism that enables NMFS to 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.
    Comment 20: Two commenters felt that healthy sea turtles can forage 
around the pound nets without being entangled or impinged, and the 
animals observed in pound net gear, and found stranded on Virginia's 
beaches, are sick, diseased (like some of those found in Florida), cold 
stunned, and tired. One additional commenter felt that strandings are a 
result of natural selection, and that NMFS should not interfere with 
lack of recovery of those animals with weak genes.
    Response: The ESA's prohibition against take applies to all 
endangered or threatened animals. A capture in fishing gear is still a 
take, regardless of the animal's condition and whether it is weak, 
sick, or in any other way compromised. Unless the take is authorized 
pursuant to a regulation, a permit, or in the Incidental Take Statement 
of a Biological Opinion, the person who incidentally takes a listed 
animal is subject to criminal penalties and fines. The condition of sea 
turtles is therefore not relevant to NMFS' determination to permit an 
additional exception to the take prohibitions.
    In any event, NMFS has no information to suggest that the animals 
found entangled or impinged on leaders during the spring of 2002 and 
2003 were unhealthy before their capture. The animals observed by NMFS 
as entangled and impinged have visually appeared healthy (e.g., not 
emaciated, not externally compromised). Granted, the live turtles and 
the dead turtles not necropsied may have had other problems besides 
those that are able to be visually observed. Necropsies were performed 
on 4 of the 7 dead entangled turtles found in pound net leaders in 2002 
and 2003. One additional Kemp's ridley sea turtle is anticipated to be 
necropsied (found in May 2003); NMFS is waiting for the necropsy 
results from this animal. The other two dead animals were left in situ 
to monitor their status. Necropsy results from 2 of the 7 dead 
entangled turtles showed that the turtles had adequate fat stores, full 
stomach and/or intestines, and no evidence of disease. A necropsy by 
the Armed Forces Institute of Pathology on one of the dead Kemp's 
ridleys recovered from a leader found that ``the animal was active and 
in good nutritional condition at the time of death'' and concluded that 
entrapment in fishing gear was the cause of death. One of the 4 
necropsy reports only stated that the turtle was female with nematodes 
and digested tissue in its digestive tract.
    Most of the turtles stranded in Virginia have been moderately to 
severely decomposed (e.g., 85 percent in 2003). The ability to conduct 
necropsies is limited 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 they were in good health prior to 
their death. NMFS has no evidence to

[[Page 25007]]

suggest that sea turtles found in the Chesapeake Bay during the spring 
are weakened from their seasonal migration. There is also no evidence 
of widespread disease in these stranded animals. As referred to in a 
public comment, a Florida epizootic occurred from October 2000 through 
March 2001, although a few cases a year have been seen since then. The 
epizootic appears to have been limited to south Florida. The hallmark 
symptom was a varying degree of paralysis which affected voluntarily 
movements and certain reflexes. Forty-nine alive stranded loggerheads 
were confirmed to have been caused by the epizootic. However, a living 
animal was necessary to make the diagnosis. Many of the dead 
loggerheads found during that period may have also died from the same 
disease, but it was not possible to determine their cause of death. The 
animals that have stranded in Virginia have not exhibited the same 
symptoms as those found in the Florida stranding event that was 
associated with an epizootic, nor has the epizootic continued in any 
significant way beyond early 2001. In the early 1990s, four live 
stranded animals in Virginia exhibited signs of a central nervous 
system disturbance, later determined to be a bacterial encephalitis 
(George et al., 1995). These animals were dull and listless when 
undisturbed, but when handled, they moved their flippers spastically 
and showed a hyperflexion of the neck. At this time, NMFS has no data 
indicating that the sea turtles found in Virginia pound nets have a 
central nervous system problem. As mentioned, NMFS is providing funding 
to conduct necropsies and lab analyses on fresh dead sea turtles this 
spring, which will hopefully provide additional information on the 
health of some of these stranded animals.
    It is unlikely that the spring stranded animals in Virginia were 
cold stunned. The average water temperature on May 6 at the NOAA 
National Ocean Service Kiptopeke, Virginia station was 16.1 C from 1999 
to 2002, 16.6 C on May 7, and 17.2 C on May 8. Average water 
temperatures in 2003 were 14.3 C, 15.1 C, and 17.1 C on May 6, 7, and 
8, respectively, not notably different from the most recent 4-year 
average. Water temperatures generally increase gradually over the 
spring and summer, and in 2003, most of the sea turtle strandings 
occurred during the last two weeks of June, when water temperatures 
were warmer. For example, on June 22, the average water temperature at 
the Kiptopeke station was 21[deg] C. Mansfield et al., (2001) and 
Mansfield and Musick (2003) state that analyses by VIMS have estimated 
that sea turtles migrate into the Chesapeake Bay when water 
temperatures warm to approximately 16 to 18[deg] C. However, sea 
turtles do frequent waters as cool as 11[deg] C (Epperly et al., 1995). 
Cold stunning typically occurs during the time of the year when water 
temperatures are decreasing, not increasing, and is well documented in 
other areas. Sea turtles, the majority of them Kemp's ridleys, wash 
ashore cold stunned each fall/winter along the beaches of Cape Cod Bay, 
Massachusetts, beginning with the first sustained storm front after the 
Cape Cod Bay water temperatures have dropped to or below 10[deg] C. 
From the available data on cold stunning and sea turtle preferences for 
water temperature, it is unlikely that the sea turtles found stranded 
and in pound net gear in Virginia during May and June are cold stunned.
    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 in Virginia are consistent with fishery interactions 
as a likely cause of mortality and, therefore, strandings. These 
circumstances include relatively healthy turtles prior to the time of 
their death, 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 
suggests interactions with fishing gear (Bellmund et al., 1987) or 
bycatch discarded from vessels (Shoop and Ruckdeschel, 1982)).
    As to whether these turtle mortalities may be the result of natural 
selection, anthropogenic impacts have impeded sea turtle recovery, 
significantly contributing to their endangered and threatened status. 
Anthropogenic mortality sources are considered to far outweigh natural 
mortality sources. There is no evidence to support the notion that 
turtles interacting with pound nets (or other fisheries gear) are 
genetically weakened and predisposed to incidental capture. As direct 
and indirect impacts to sea turtles continue through, for example, 
habitat destruction, marine debris and pollution, and incidental take 
in fisheries, dredging, and power plant operations, it remains 
necessary to attempt to recover and rehabilitate those sea turtles that 
may be able to be saved. Sea turtle populations have not yet recovered, 
and as such, NMFS has a statutory obligation to manage and protect 
these species. Reduction of mortality from anthropogenic sources is 
necessary to achieve recovery of these species.

Comments Related to Economic and Social Impact Assessment:

    Comment 21: Eleven comments were received recommending that NMFS 
work with the industry on this issue and develop and test pound net 
leader modifications.
    Response: On September 3, 2003, VMRC convened a meeting with NMFS, 
representatives from the pound net industry, VIMS, the Virginia Marine 
Science Museum, and the Virginia Department of Game and Inland 
Fisheries, to discuss the 2002 and 2003 pound net leader monitoring 
results, high spring sea turtle strandings, and potential measures to 
reduce sea turtle interactions with pound net gear. At this meeting, 
NMFS expressed its desire to work with the industry to develop gear 
modification solutions and requested ideas on potential leader 
configurations.
    NMFS has an effort underway, in conjunction with industry 
participants, to develop and test an alternative leader design along 
the Eastern shore during the spring of 2004. This alternative leader 
design is the non-preferred alternative 5 considered in the EA, but was 
not able to be fully analyzed with respect to benefits to sea turtles 
because of the lack of data. After monitoring and analyzing the results 
of this study, it will be determined if the modification is effective 
at reducing sea turtle capture, while retaining an acceptable level of 
target catch, or if additional research is necessary.
    Additionally, NMFS has partnered with the National Fish and 
Wildlife Foundation to establish a fishing gear mini-grant program for 
sea turtles that is aimed at working with industry (and other 
interested public stakeholders) to promote research, development, and 
testing for alternative leader designs in the Virginia pound net 
fishery. Proposals were due on April 15 and funding decisions are 
expected to be made by July 15, 2004.
    While research is ongoing and NMFS is committed to pursuing a gear 
modification solution for this fishery, it remains necessary to 
implement additional restrictions on the Virginia pound net fishery at 
this time due to the documented takes in leaders in compliance with the 
2002 interim final rule and continuing levels of sea turtle mortality 
in Virginia waters.
    Comment 22: Thirteen commenters expressed their concern with the 
high

[[Page 25008]]

economic impacts to fishermen from this proposed action, and one of 
these commenters believed that the economic impacts were underestimated 
and that economic burden from the proposed action would prohibit 
fishermen from fishing pound nets year round. Four of the 13 commenters 
recommended compensation to the fishermen that do not fish this season.
    Response: NMFS used the best available information to estimate the 
economic costs to the pound net fishery. The overall economic impact 
may be considered underestimated since indirect economic impacts were 
not assessed. For example, processing plants or fish houses may be 
affected indirectly by the management measures imposed on this fishery.
    NMFS only estimated the direct economic impacts, which are the 
impacts on the harvester. In the economic analysis of direct impacts, 
averages are reported, and an average may not reflect an individual's 
actual position. That is, what an individual actually earned in 
revenues may be less or more than the reported average. Also note the 
reported coefficient of variation (CV) for the anticipated revenue loss 
of $40,474 under the proposed rule was 1.08 percent (See Table 5.1.2.6 
in the EA). The CV is equal to the standard deviation divided by the 
mean (i.e., 1.08 percent = [$43,712/$40,474]). That is, given a 
standard deviation of $43,712, some harvesters may have earned as much 
as $127,024 (=mean+2*standard deviation=$40,474+2*($43,712)) in the 
same area and during the same time period. It is the average revenue 
per harvester NMFS reports along with the statistical variation 
(reported in a CV).
    Industry losses were overestimated. The total number of harvesters 
in the lower portion of the Virginia Chesapeake Bay was biased up by 
two to three harvesters. That is, these two or three harvesters can 
modify their leader mesh size versus remove their leaders. This results 
in industry losses being overestimated.
    In summary, total economic impacts may be underestimated since 
indirect economic impacts were not included. Direct impacts on the 
individual were not over or underestimated, as averages were reported. 
Direct industry impacts were overestimated. This response refers to the 
economic impacts associated with the proposed rule, as the proposed 
rule is what was commented upon. However, with this final rule, the 
economic impacts to the pound net fishery are reduced as compared to 
the proposed rule. The economic impacts of this final rule are smaller 
than those evaluated for the proposed rule. Fewer nets are affected due 
to the smaller closure area and leader mesh size outside the leader 
prohibited area is not further restricted. With this final rule, annual 
revenues per harvester would be reduced by 14.7 percent to 29.4 
percent, depending on how many nets the harvesters set. Industry 
revenues would be reduced by 7.3 percent (=$0.19M/$2.6M). Without 
authorization from Congress, NMFS cannot provide compensation to 
industry. For details on how the reductions in revenues were 
calculated, refer to Sections 5.1.2 and 5.8.2 in the EA. Virginia's 
2002 landings data indicated 31 harvesters (Table 5.1.2.3 in EA) landed 
fish from May 6 to July 15, and there were 53 harvesters that fished 
year round. Excluding the May 6 to July 15 time period in 2002, 16 
harvesters fished in the lower bay and earned revenues of $48,126 
(CV=1.22). This implies there were six harvesters in the lower bay that 
did not fish from May 6 to July 15 in 2002. Therefore, some harvesters 
fishing pound nets do survive from an economic perspective by 
harvesting outside the proposed rule time period. However, NMFS does 
not have any information as to whether these six harvesters have 
alternative supplementary sources of income.
    Comment 23: Six commenters expressed concern with the delay in 
publishing the proposed regulations, especially as the industry begins 
planning for the next fishing season early in the calendar year.
    Response: NMFS has been working to alleviate the impacts of the 
Virginia pound net fishery on sea turtles as expeditiously as possible, 
in order to give the fishermen advance notification and ensure measures 
are in place before the historical period of high strandings. NMFS 
recognizes that the industry begins planning for the next fishing 
season in approximately December or January and is sensitive to 
fishermen's time constraints required to outfit their gear with mesh in 
compliance with required measures. NMFS issued the proposed rule as 
soon as possible after taking the necessary time to acquire and analyze 
the available data, explore the management alternatives, and prepare 
and review the necessary documents. Similarly, NMFS issued this final 
rule as soon as possible after thoroughly reviewing and considering 
public comments and determining if modifications to the proposed rule 
were necessary.
    Comment 24: One commenter felt that the timeframe of the 
restrictions was too long and that fishing would be inappropriately 
curtailed when water temperatures were too cold for sea turtles.
    Response: NMFS believes that, given the available information, the 
time period for the pound net restrictions is appropriate. 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 1 week 
prior to the stranding commencement date, or on May 6 each year. 
Implementing protective measures by May 6 would ensure they are in 
place at the time when sea turtles are expected to be in the Chesapeake 
Bay and are becoming vulnerable to mortality sources.
    Based on historical Sea Turtle Stranding and Salvage Network 
(STSSN) stranding data, typically the peak of Virginia strandings has 
been from mid-May to mid-June. However, the stranding 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 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 occurs during May and June, 
and extends into the first half of July. In some years the peak period 
of high strandings may be shorter than the time period addressed by 
this final rule, but historically, high sea turtle strandings have been 
documented throughout the proposed time period of the leader 
restrictions. Implementation of the gear restrictions from May 6 to 
July 15 will account for stranding peak variability among years and is 
expected to minimize the occurrence of sea turtle takes in the pound 
net fishery in the

[[Page 25009]]

spring and, thus, reduce the strandings that occur from this gear type.
    While monitoring surface water temperature and implementing 
restrictions based on reaching a pre-designated water temperature may 
account for seasonal variability, enacting regulations based upon real 
time water temperature is impractical due to the amount of time 
required for the agency to implement and for fishermen to comply with 
the regulations, and the potential variability of water temperature 
within different locations in the Chesapeake Bay and within the water 
column. NMFS has considered historical surface water temperatures (not 
real time monitoring) in establishing previous area closures. Real time 
monitoring of water temperature as a trigger for regulations is not 
practical for this situation, nor is it appropriate given the 
predictable time period of annual spring strandings in Virginia. 
Further, NMFS believes that a consistent effective date better enables 
industry to plan its fishing activities, as fishermen would know in 
advance specifically when the restrictions would apply.

Changes From the Proposed Rule

    Based upon public comments received, NMFS has determined that 
several modifications to the measures included in the proposed rule are 
warranted. Specifically, the area in the southern portion of the 
Chesapeake Bay where all pound net leaders are prohibited has been 
reduced, and the nearshore boundary to which the prohibition applies 
has been moved from the beach to offshore, excluding those nets set 
with the inland end of the leader 10 horizontal feet (3 m) or less from 
the mean low water line. This modification was deemed appropriate given 
public comments noting that there is a difference between the nearshore 
and offshore nets, and that this difference may impact sea turtle 
interaction rates, in particular the occurrence of impingements. As 
noted in the response to Comment 11, NMFS had originally considered the 
environmental conditions in the locations where the offshore and 
nearshore nets are set to be similar, based upon reports from NMFS 
observers and general understanding of the currents in the Chesapeake 
Bay (e.g., strong along the Eastern shore near the mouth of the 
Chesapeake Bay). Given the public comments indicating that the currents 
and take conditions are different between offshore and nearshore nets, 
NMFS considered those potential differences when reanalyzing the take 
information. The data support this modification, in that in 2002 and 
2003, offshore nets accounted for all of the observed impingements 
(n=14) and eight of the nine observed entanglements. One dead sea 
turtle was observed entangled in a nearshore 8-inch (20.3-cm) stretched 
mesh leader along the Eastern shore. The difference in takes between 
the offshore and nearshore nets is statistically significant with a 
chi-square value of 3.841 and p<0.01. In the lower Chesapeake Bay 
(encompassing the proposed leader prohibited area), approximately 60 
percent (13 of 22) of the active pound nets surveyed in 2003 were 
nearshore nets. In 2002 and 2003, there were 345 surveys of nearshore 
nets and 480 surveys of offshore nets throughout the Virginia 
Chesapeake Bay, and 13 surveys did not specify the location. NMFS 
recognizes that the best available information suggests that the 
boundary of the leader prohibited area should be modified to account 
for this distinction between the effects of offshore and nearshore nets 
on listed sea turtles.
    Additionally, NMFS has determined that this final rule should not 
change the restricted leader mesh size outside the leader prohibited 
area from 12 inches (30.5 cm) to 8 inches (20.3 cm) stretched mesh. 
Based upon additional analysis on impingement to entanglement ratios by 
NMFS, it appears that restricting mesh size to less than 8 inches (20.3 
cm) stretched mesh would not necessarily provide the anticipated 
conservation benefit to sea turtles. In addition to mesh size, the 
frequency of sea turtle takes may be a function of where the pound nets 
are set, with pound nets set in certain areas having a higher potential 
of takes for a variety of reasons, such as depth of water, current 
velocity, and proximity to certain environmental characteristics or 
optimal foraging grounds. Additional analyses, and perhaps data 
collection, is planned to be completed that may provide insights into 
the relationship between mesh size and sea turtle interactions. At this 
time, the mesh size threshold that would prevent sea turtle 
entanglements cannot be determined for mesh sizes below 12 inches (30.5 
cm). Hence, at this time NMFS is not making an additional modification 
to leader mesh size and is retaining the mesh size restriction included 
in the 2002 interim final rule, specifically the restriction of leaders 
with greater than or equal to 12 inches (30.5 cm) stretched mesh (as 
well as leaders with stringers), outside the leader prohibited area. 
While some takes may still occur in less than 12 inches (30.5 cm) 
stretched mesh, retaining this mesh size restriction should still 
provide a conservation benefit to sea turtles (Bellmund et al., 1987).
    This final rule also includes the contains the framework mechanism 
that was a component of the 2002 interim final rule, and of the status 
quo alternative included and analyzed in the EA. This mechanism enables 
NMFS to make changes to the restrictions based upon new information, 
and extend the effective date of the restrictions until July 30 on an 
expedited basis. This final rule does not reduce the allowable leader 
stretched mesh size to less than 8 inches (20.3 cm) as proposed, for 
reasons identified previously. NMFS intends to continue to monitor 
fisheries active in the Virginia Chesapeake Bay and ocean waters, 
including pound net leaders with a stretched mesh size measuring less 
than 12 inches (30.5 cm) outside the leader prohibited area. Retaining 
this framework mechanism is necessary to respond to any new information 
on the interactions between sea turtles and pound nets and ensure that 
sea turtles can be protected from additional take should monitoring 
document the entanglement of a live or dead sea turtle outside the 
leader prohibited area. The framework mechanism was excluded from the 
proposed rule due to difficulties experienced with enacting regulations 
on a real time basis. NMFS recognizes that delays have been experienced 
with the framework mechanism, as observed in 2003. To alleviate some of 
the temporal delays associated with the issuance of a framework 
measure, NMFS will prepare portions of the required documents ahead of 
time, in the event that a mid-season framework action is necessary.
    In the proposed rule, NMFS stated that the purpose of the action 
was to prevent sea turtle entanglement in and impingement on pound net 
gear. NMFS continues to believe that sea turtles will be protected by 
this final rule, and that sea turtle entanglements in and impingements 
on pound net leaders will be reduced. However, this discussion of the 
final rule has noted that the goal of the action is to minimize or 
reduce sea turtle interactions with pound net gear, because sea turtle 
entanglements, and possibly impingements, may still occur in leaders 
outside the leader prohibited area. As noted previously, all documented 
sea turtle interactions, except one entanglement in an 8-inch (20.3-cm) 
stretched mesh leader, have occurred inside the leader prohibited area. 
It is believed that the measures in the final rule will be protective 
of sea turtles and reduce takes in this fishery, given that leaders are 
prohibited in the

[[Page 25010]]

area with most of the documented sea turtle takes. Given this 
information, with the recognition that NMFS is continuing to collect 
information on sea turtle and pound net interactions, the purpose of 
this action is to reduce future sea turtle entanglements in and 
impingements on pound net gear.
    This final rule corrects an item related to year-round reporting 
that was inadvertently deleted in the proposed rule. The preamble to 
the proposed rule noted that all Virginia pound net fishermen would 
still be 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. 
However, the proposed regulatory text relating to the reporting of 
captured dead or injured sea turtles was inadvertently deleted and must 
be reinserted.
    NMFS has also included in this final rule geographical boundaries 
for the leader mesh size restrictions in the Great Wicomico River and 
the Piankatank River, based upon a public comment requesting that the 
geographical areas in those Western Chesapeake Bay tributaries be 
better defined. This modification is for clarification purposes only 
and does not change the biological, economic, or social analysis 
included in the EA.
    The final rule clarifies that this action adds a new exception to 
prohibitions on the take of threatened sea turtles, something that was 
not explicitly noted in the title of the proposed rule. The 
prohibitions against taking in 50 CFR 223.205(a) do not apply to the 
incidental take of any member of a threatened species of sea turtle 
during fishing or scientific research activities, to the extent that 
those involved are in compliance with all applicable requirements of 50 
CFR 223.206(d). By adding the prohibitions and restrictions on leaders 
in the Virginia Chesapeake Bay to 50 CFR 223.206(d), this final rule 
adds a new exception and modifies the previous pound net related 
exception to the prohibitions on take of threatened sea turtles. NMFS 
has changed the title of this final rule to more accurately reflect 
what this rule entails, including the exception to the prohibitions on 
take.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-
day delay in effective date of this final rule. Such a delay would be 
contrary to the public interest because sea turtles are anticipated to 
occur in Virginia waters in May, during the 30-day delay period. Sea 
turtles are found to occur in water temperatures of 11[deg] C and 
warmer. Analysis conducted by the NMFS Southeast Fisheries Science 
Center found that in week 17 (April 23 to April 29), week 18 (April 30 
to May 6), and week 19 (May 7 to May 13), approximately 80 percent, 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[deg] C and 
warmer (NOAA Fisheries, unpub. data, 2003). Data from 1993 to 2002 were 
included in the analysis. This indicates that water temperatures around 
the mouth of the Chesapeake Bay are well within sea turtles' preferred 
temperature range in late April and early May. There is no information 
to suggest that the water temperatures this year would be notably 
different than in previous years. As such, sea turtles are likely to be 
present in the Virginia Chesapeake Bay during the 30-day delay period, 
and at this time, these turtles would likely be subject to entanglement 
and impingement in pound net leaders and potential subsequent 
mortality.
    NMFS has prepared a final regulatory flexibility analysis that 
describes the economic impact this final rule would have on small 
entities. A summary of the analysis follows:
    The fishery affected by this final rule is the Virginia pound net 
fishery in the Chesapeake Bay. The final rule prohibits all offshore 
pound net leaders in a portion of the southern Chesapeake Bay, and 
retains the prohibition of leaders with stretched mesh greater than or 
equal to 12 inches (30.5 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 would prohibit all pound net leaders 
in a portion of the southern Chesapeake Bay, and prohibit 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 June 30. Non-preferred alternative 2 would prohibit 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 similar to the non-preferred 
alternative 1, except that the pound and heart, in addition to the 
leader, must also be removed in a portion of the southern Chesapeake 
Bay, and the time frame of the restrictions would be from May 6 to July 
15 each year. Non-preferred alternative 4 would prohibit all pound net 
leaders from May 6 to July 15 in the Virginia Chesapeake Bay. In 
addition to the 8 inches (20.3 cm) and greater mesh size restrictions 
in a portion of the Virginia Chesapeake Bay, non-preferred alternative 
5 would modify the pound net leader configuration in a portion of the 
southern Chesapeake Bay so that the mesh height would be restricted to 
one-third the depth of the water, the mesh would be required to 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. Non-preferred alternative 6 includes the 
measures in the proposed rule, namely a prohibition of all pound net 
leaders in a portion of the southern Chesapeake Bay, and a prohibition 
of 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.
    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 average revenues per harvester were $64,483 (CV=0.73) and 
$105,298 (CV=0.91) 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 (CV=0.88) and $40,474 
(CV=1.08) in the upper and lower region, respectively.
    Of the 31 harvesters, 33 percent of the harvesters (=[0 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 action. 
Approximately 12 pound nets in total would be affected by this action,

[[Page 25011]]

all found in the lower portion of the Virginia Chesapeake Bay.
    In the upper bay region, five of the seven alternatives, not 
counting the ``no action'' alternative, are the same. This final rule 
does not impose additional requirements on those leaders found in the 
upper bay region, so the revenue reductions would be zero. The non-
preferred alternatives 1, 2, 3, 5, and 6 would require the leader mesh 
to be less than 8 inches (20.3 cm). 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 mesh size during the restricted period. If harvesters 
choose not to fish, their revenues decrease by 15.1 percent to 17.1 
percent (depending on the time frame of the restrictions), since they 
incur revenue losses and the cost of removing their gear from the 
water. 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 harvesters will modify their gear since they 
want to minimize their economic loss. Therefore, in the upper bay 
region, annual revenues may be reduced by a low of 8.4 percent per 
harvester under non-preferred alternatives 1, 2, 3, 5, and 6, and 4 
harvesters would be affected. Under non-preferred alternative 4, all 
leaders must be removed from the Virginia Chesapeake Bay. This 
alternative would impact 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 
offshore leaders are prohibited under the final rule, management 
actions vary between alternatives. Under all of the alternatives, all 
10 harvesters would be impacted. With this final rule, annual revenues 
per harvester would be reduced by 14.7 percent to 29.4 percent, 
depending on how many nets the harvesters set. The economic impact 
under non-preferred alternative 1 would be more compared to the final 
action (34.5 percent reduction in annual revenues versus a maximum of 
29.4 percent), because more nets would be impacted. The impact under 
the non-preferred alternative 3 would be greater than this final rule 
(50.3 percent reduction in annual revenues versus a maximum of 29.4 
percent), because additional labor costs would be incurred to remove 
the heart and pound in addition to the leader and more nets would be 
affected. The impacts of non-preferred alternative 4 and non-preferred 
alternative 6 are the same, and annual revenues per harvester would be 
reduced by 43.2 percent. Reductions in annual revenues per harvester 
would be less under non-preferred alternatives 2 and 5 in comparison to 
the final rule, since these non-preferred alternatives would allow 
harvesters 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. The status quo 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 final rule, industry revenues would be reduced by 
7.3 percent (=$0.19M/$2.6M). Under non-preferred alternatives 1, 2, 3, 
5, and 6, industry revenues would be reduced by 14.8 percent, 4.9 
percent, 21.2 percent, 5.8 percent, and 18.3 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 would 
switch to a smaller mesh leader and continue to fish in those areas 
with leader mesh size restrictions, instead of removing their leaders 
entirely. Non-preferred alternatives 2 and 5, although less costly to 
the industry, were not chosen as the preferred alternative because they 
cannot be evaluated for benefit to conservation of sea turtles. At this 
point in time, we are unable to determine whether leader mesh sizes 
less than 8 inches (20.3 cm) have a different catch rate than leaders 
with mesh between 8 and 12 inches (20.3 and 30.5 cm). As such, looking 
strictly at a mesh size restriction, non-preferred alternative 2 would 
not necessarily afford adequate protection for sea turtles in the lower 
Chesapeake Bay area where observed sea turtle interactions have been 
the highest. Non-preferred alternative 5 was rejected because it 
consisted of a gear modification that is currently untested as a means 
to reduce sea turtle interactions.
    This action does not contain new reporting or record keeping 
requirements.
    This final rule does not duplicate, overlap or conflict with other 
Federal rules.
    Thirteen comments were received and addressed (see Comments Related 
to Economic and Social Impact Assessment) on the initial regulatory 
flexibility analysis.
    A formal consultation pursuant to section 7 of the ESA was 
conducted on this action. The Biological Opinion on this action 
concluded that the operation of the Virginia pound net fishery with 
NMFS' sea turtle conservation measures may adversely affect but is not 
likely to jeopardize the continued existence of the loggerhead, 
leatherback, Kemp's ridley, green, or hawksbill sea turtle, or 
shortnose sturgeon. An incidental take statement was issued for this 
action. Copies of this Biological Opinion are available by contacting 
(978) 281-9328 or FAX (978) 281-9394.
    This final rule contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132. Accordingly, the Acting Assistant Secretary for 
Legislative and Intergovernmental Affairs provided notice of the 
proposed action to the Governor of Virginia on March 3, 2004. No 
comments on the federalism implications of the proposed action were 
received in response to the March 2004 letter.

    Dated: April 29, 2004.
Rebecca Lent,
Deputy Assisstant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

List of Subjects

50 CFR Part 222

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

50 CFR Part 223

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

0
For the reasons set forth in the preamble, 50 CFR parts 222 and 223 are 
amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
1. The authority citation for 50 CFR part 222 continues to read as 
follows:

    Authority: 16 U.S.C. 1631 et seq.

0
2. In Sec.  222.102, the definition of ``Pound net leader'' is revised 
to read as follows:


Sec.  222.102  Definitions.

* * * * *
    Pound net leader means a long straight net that directs the fish 
offshore towards the pound, an enclosure that captures the fish. Some 
pound net

[[Page 25012]]

leaders are all mesh, while others have stringers and mesh. Stringers 
are vertical lines in a pound net leader that are spaced a certain 
distance apart and are not crossed by horizontal lines to form mesh. An 
offshore pound net leader refers to a leader with the inland end set 
greater than 10 horizontal feet (3 m) from the mean low water line. A 
nearshore pound net leader refers to a leader with the inland end set 
10 horizontal feet (3 m) or less from the mean low water line.
* * * * *

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.

0
2. 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)(10) regarding pound net leaders; or
* * * * *

0
3. In Sec.  223.206, paragraph (d)(2)(iv) is removed; (d) introductory 
text and (d)(2) paragraph heading are revised; and paragraph (d)(10) 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)(10) 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--* * *
    * * * * *
    (10) 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 offshore pound net leader, as defined in 
the definition for pound net leader in Sec.  222.102, in the Virginia 
waters of the mainstem Chesapeake Bay, south of 37[deg] 19.0' N. lat. 
and west of 76[deg] 13.0' W. long., and all waters south of 37[deg] 
13.0' N. lat. to the Chesapeake Bay Bridge Tunnel (extending from 
approximately 37[deg] 05' N. lat., 75[deg] 59' W. long. to 36[deg] 55' 
N. lat., 76[deg] 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[deg] 59.55' N. lat., 76[deg] 18.64' W. 
long.) and the York River downstream of the Coleman Memorial Bridge 
(Route 17; approximately 37[deg] 14.55' N. lat, 76[deg] 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[deg] 55' N. lat., 75[deg] 55' W. long.), the Great Wicomico River 
downstream of the Jessie Dupont Memorial Highway Bridge (Route 200; 
approximately 37[deg] 50.84' N. lat, 76[deg] 22.09' W. long.), 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.), and the Piankatank River downstream of the Route 3 Bridge 
(approximately 37[deg] 30.62' N. lat, 76[deg] 25.19' W. long.) to the 
COLREGS line at the mouth of the Chesapeake Bay, must have only mesh 
size less than 12 inches (30.5 cm) stretched mesh and may not employ 
stringers. South of 37[deg] 19.0 N. lat. and west of 76[deg] 13.0' W. 
long., and all waters south of 37[deg] 13.0' N. lat. to the Chesapeake 
Bay Bridge Tunnel (extending from approximately 37[deg] 05' N. lat., 
75[deg] 59' W. long. to 36[deg] 55' N. lat., 76[deg] 08' W. long.), the 
leader restriction applies to nearshore pound nets, as defined in the 
definition for pound net leader in Sec.  222.102. Any pound net leader 
with stretched mesh measuring 12 inches (30.5 cm) or greater or any 
pound net leader with stringers must be removed from the waters 
described in this paragraph (d) prior to May 6 and may not be reset 
until July 16.
    (iii) Reporting requirement. At any time during the year, if a sea 
turtle is taken live and uninjured in a pound net operation, the 
operator of the 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. 
The report shall include a description of the sea turtles condition at 
the time of release and the measures taken as required in paragraph 
(d)(1) of this section. At any time during the year, if a sea turtle is 
taken in a pound net operation, and is determined to be injured, or if 
a turtle is captured dead, the operator of the vessel shall immediately 
notify NMFS Northeast Regional Office and the appropriate 
rehabilitation or stranding network, as determined by NMFS Northeast 
Regional Office.
    (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.
    (v) Expedited modification of restrictions and effective dates. 
From May 6 to July 15 of each year, if NMFS receives information that 
one sea turtle is entangled alive or that one sea turtle is entangled 
dead, and NMFS determines that the entanglement contributed to its 
death, in pound net leaders that are in compliance with the 
restrictions described in paragraph (d)(10)(ii) of this section, NMFS 
may issue a final rule modifying the restrictions on pound net leaders 
as necessary to protect threatened sea turtles. Such modifications may 
include, but are not limited to, reducing the maximum allowable mesh 
size of pound net leaders and prohibiting the use of pound net leaders 
regardless of mesh size. In addition, if information indicates that a 
significant level of sea turtle entanglements, impingements or 
strandings will likely continue beyond July 15, NMFS may issue a final 
rule extending the effective date of the restrictions, including any 
additional restrictions imposed under this subparagraph, for an 
additional 15 days, but not beyond July 30, to protect threatened sea 
turtles.
[FR Doc. 04-10207 Filed 5-4-04; 8:45 am]
BILLING CODE 3510-22-S