[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68348-68355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27344]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 080219211-81123-01]
RIN 0648-AU98


Sea Turtle Conservation; Fishing Gear Inspection Program

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

ACTION: Final rule.

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SUMMARY: NMFS establishes an inspection program for modified pound net 
leaders in the Virginia waters of the mainstem Chesapeake Bay. Current 
regulations require modified pound net leaders, as defined in the 
regulations, in a portion of the Virginia Chesapeake Bay while also 
allowing them to be used in a different portion of the Chesapeake Bay. 
This action would help ensure that leaders used in those areas do in 
fact meet the definition of a modified pound net leader. This action, 
taken under the Endangered Species Act of 1973 (ESA), as amended, is 
intended to facilitate compliance with the existing regulation, which 
is designed to help protect threatened and endangered sea turtles.

DATES: Effective December 18, 2008.

FOR FURTHER INFORMATION CONTACT: Carrie Upite (ph. 978-281-9300 x6525, 
fax 978-281-9394), or Barbara Schroeder (ph. 301-713-2322, fax 301-427-
2522).

SUPPLEMENTARY INFORMATION:

Background

    Based upon documented sea turtle interactions with pound net 
leaders, NMFS issued a final rule on May 5, 2004 (69 FR 24997), that 
prohibited the use of offshore pound net leaders from

[[Page 68349]]

May 6 to July 15 in an area now referred to as ``Pound Net Regulated 
Area I''. Pound Net Regulated Area I is defined as 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.). 
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. The 
May 2004 rule also placed restrictions on nearshore pound net leaders 
in Pound Net Regulated Area I and on all pound net leaders employed in 
``Pound Net Regulated Area II.'' Pound Net Regulated Area II refers to 
Virginia waters of the Chesapeake Bay, outside of Pound Net Regulated 
Area I as defined above, 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. Pursuant to the 2004 
rule, nearshore pound net leaders in Pound Net Regulated Area I and all 
pound net leaders in Pound Net Regulated Area II must have mesh size 
less than 12 inches (30.5 cm) stretched mesh and may not employ 
stringers.
    In 2004 and 2005, NMFS implemented a coordinated research program 
with pound net industry participants and other interested parties to 
develop and test a modified pound net leader design with the goal of 
eliminating or reducing sea turtle interactions while retaining an 
acceptable level of fish catch. During the two year study, the modified 
leader was found to be effective in reducing sea turtle interactions as 
compared to the unmodified leader. The final results of the 2004 study 
found that out of eight turtles impinged on or entangled in the leaders 
of pound nets, seven were impinged on or entangled in an unmodified 
leader. One leatherback turtle was found entangled in a modified 
leader. In response to the leatherback entanglement, the gear was 
further modified by increasing the stiffness of the vertical lines for 
the 2005 experiment. The 2005 experiment found that 15 turtles were 
entangled in unmodified leaders, but no turtles were impinged on or 
entangled in modified leaders. Furthermore, results of the finfish 
catch comparison suggest that the modified leader caught similar 
quantities and size compositions as the unmodified leader.
    Based upon these results, on June 23, 2006, NMFS issued a final 
rule (71 FR 36024) that required any offshore pound net leader in Pound 
Net Regulated Area I during the period from May 6 through July 15 to 
meet the definition of a modified pound net leader. A modified pound 
net leader is defined as a pound net leader that is affixed to or 
resting on the sea floor and made of a lower portion of mesh and an 
upper portion of only vertical lines such that (a) the mesh size is 
equal to or less than 8 inches (20.3 cm) stretched mesh; (b) at any 
particular point along the leader the height of the mesh from the 
seafloor to the top of the mesh must be no more than one-third the 
depth of the water at mean lower low water directly above that 
particular point; (c) the mesh is held in place by vertical lines that 
extend from the top of the mesh up to a top line, which is a line that 
forms the uppermost part of the pound net leader; (d) the vertical 
lines are equal to or greater than 5/16 inch (0.8 cm) in diameter and 
strung vertically at a minimum of every 2 feet (61 cm); and (e) the 
vertical lines are hard lay lines with a level of stiffness equivalent 
to the stiffness of a 5/16 inch (0.8 cm) diameter line composed of 
polyester wrapped around a blend of polypropylene and polyethylene and 
containing approximately 42 visible twists of strands per foot of line.
    Existing mesh size and stringer restrictions on nearshore pound net 
leaders in Pound Net Regulated Area I and all pound net leaders in 
Pound Net Regulated Area II remained in place from May 6 through July 
15 of each year. However, the June 2006 rule created an exception to 
those restrictions by allowing the use of modified pound net leaders 
during that period in nearshore pound net leaders in Pound Net 
Regulated Area I and all pound net leaders in Pound Net Regulated Area 
II. The year-round reporting and monitoring requirements for this 
fishery and the framework mechanism under the existing regulations (50 
CFR 223.206(d)(10)) also remained in effect.
    After the 2006 final rule was published, NMFS determined that an 
onshore inspection program that examines a modified leader ready for 
deployment would help ensure the protection of sea turtles, while 
limiting the difficulties of and potential costs to fishermen 
associated with post-deployment inspections at-sea. The modified leader 
configuration was developed to protect sea turtles, and it is important 
that the leaders deployed in this fishery meet the standards embodied 
in the regulations.

Approved Measures

    NMFS requires that any fisherman planning to use a modified pound 
net leader anywhere in Pound Net Regulated Area I or Pound Net 
Regulated Area II at any time from 12:01 a.m. local time on May 6 
through 11:59 p.m. local time on July 15 each year must adhere to the 
following requirements of the inspection program. First, the pound net 
fisherman or his/her representative must call NMFS at 757-414-0128 at 
least 72 hours before deploying modified leaders. During this call, the 
fisherman or representative and NMFS will discuss a meeting date, time, 
and location, as well as the fisherman's plans for setting his/her 
gear. The second component of the inspection program involves NMFS 
meeting the fisherman at the dock, or another mutually agreeable place, 
to examine the gear for compliance with the definition of a modified 
pound net leader. The regulations define a modified pound net leader as 
a pound net leader that is affixed to or resting on the sea floor and 
made of a lower portion of mesh and an upper portion of only vertical 
lines such that (a) the mesh size is equal to or less than 8 inches 
(20.3 cm) stretched mesh; (b) at any particular point along the leader 
the height of the mesh from the seafloor to the top of the mesh must be 
no more than one-third the depth of the water at mean lower low water 
directly above that particular point; (c) the mesh is held in place by 
vertical lines that extend from the top of the mesh up to a top line, 
which is a line that forms the uppermost part of the pound net leader; 
(d) the vertical lines are equal to or greater than 5/16 inch (0.8 cm) 
in diameter and strung vertically at a minimum of every 2 feet (61 cm); 
and (e) the vertical lines are hard lay lines with a level of stiffness 
equivalent to the stiffness of a 5/16 inch (0.8 cm) diameter line 
composed of polyester wrapped around a blend of

[[Page 68350]]

polypropylene and polyethylene and containing approximately 42 visible 
twists of strands per foot of line.
    During the inspection, NMFS will ascertain whether the leader meets 
the following four criteria taken from that definition: (1) the lower 
portion of the leader is mesh and the upper portion consists of only 
vertical lines; (2) the mesh size is equal to or less than 8 inches 
(20.3 cm) stretched mesh; (3) the vertical lines are equal to or 
greater than 5/16 inch (0.8 cm) in diameter and strung vertically at 
least every 2 feet (61 cm); and (4) the vertical lines are hard lay 
lines with a level of stiffness equivalent to the stiffness of a 5/16 
inch (0.8 cm) diameter line composed of polyester wrapped around a 
blend of polypropylene and polyethylene and containing approximately 42 
visible twists of strands per foot of line. During the inspection, the 
fisherman must provide accurate and specific latitude and longitude 
coordinates of the location at which the leader will be deployed. If 
the fisherman does not know his or her modified pound net leader 
latitude and longitude coordinates prior to the inspection, NMFS will 
have a detailed nautical chart available during the inspection for the 
fisherman to ascertain the specific coordinates of the gear. During the 
inspection, the fisherman must also provide NMFS with information on 
the low water depth at each end of the modified leader. NMFS will also 
measure the height of the mesh in relation to the height of the entire 
leader. If the leader meets the four criteria previously described, the 
measurement of the height of the mesh in relation to the total height 
of the leader is recorded, and the low water depth and the latitude and 
longitude coordinates of the specific location at which the leader will 
be deployed are provided and recorded, the leader will pass inspection. 
If it passes inspection, NMFS will tag the leader with one or more 
tamperproof tags (supplied by NMFS), each of which will be marked with 
a unique identification number. Additionally, the fisherman will 
receive a letter from NMFS noting that the leader has been inspected, 
the date of the inspection, the license holder's name, the tag 
number(s) of the attached tag(s), information on the modified leader as 
collected during the inspection, and the low water depth and the 
latitude and longitude coordinates for the specific location at which 
the inspected leader will be deployed. This letter must be retained on 
the vessel tending the inspected leader at all times it is deployed. 
The fisherman may set the inspected leader only after passing the 
inspection; the tags must remain on the gear. After tagging by NMFS, 
the tags may not be tampered with or removed. If a tag is damaged, 
destroyed, or lost due to any cause, the fisherman must call NMFS 
within 48 hours of discovery to report this incident. Any portion of a 
pound net leader that has been previously tagged must not be altered or 
replaced so that it fails to meet the modified pound net leader 
definition, unless that portion of the gear is reinspected, or unless 
that portion is altered or replaced after the time period from May 6 to 
July 15. It ultimately remains the fisherman's responsibility to ensure 
that his or her gear is in compliance with all components of the 
modified pound net leader definition when the leader is set in the 
water.
    If the onshore inspection indicates that the leader does not meet 
one or more of the four criteria, NMFS will tell the fisherman how to 
modify his or her gear in order to meet the criteria. If a fisherman 
plans on using a modified leader anywhere in Pound Net Regulated Area I 
or Pound Net Regulated Area II at any time from May 6 through July 15, 
he or she must schedule another inspection using the same procedure by 
which the initial inspection was scheduled, and ensure that the leader 
passes inspection prior to deployment. NMFS can inspect a net at any 
time prior to deployment, but all modified pound net leaders in 
Virginia Chesapeake Bay waters from May 6 through July 15 must have 
been inspected by NMFS. The inspection is only valid for one fishing 
season (e.g., May 6 to July 15, 2009).
    Compared to other gear types and fisheries, the pound net fishery 
in Virginia has several characteristics that make an inspection program 
such as this necessary, and possible, to implement. The gear is only 
deployed once during a season (unless later damaged), and the fact that 
the leaders are below the surface combined with the low water clarity 
and visibility in Chesapeake Bay make inspection of the gear during the 
season difficult. The number of pound nets for which the gear 
modification is required is relatively small (< 50), which makes the 
inspection program feasible to implement.
    All of the NMFS regulations existing at this time affecting sea 
turtles and pound net leaders in the Chesapeake Bay remain in effect.
    This action is implemented under the authority of ESA sections 4(d) 
and 11(f) and is necessary and appropriate to conserve threatened sea 
turtles and to enforce the provisions of the ESA, including the 
prohibition on takes of endangered sea turtles.

Comments and Responses

    On March 1, 2007, NMFS published a proposed rule (72 FR 9297) that 
would establish an inspection program for those Virginia pound net 
fishermen who intend to use modified pound net leaders. Comments on 
this proposed action were requested through April 2, 2007. Three 
comment letters were received during the public comment period for the 
proposed rule. Two comment letters supported the action, while one 
comment letter was neither in favor nor against the proposed action. 
Additionally, the Virginia Department of Environmental Quality agreed 
with NMFS that the action is consistent with the enforceable policies 
of Virginia's Coastal Resources Management Program. NMFS considered the 
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 expressed concern with commercial fishing 
in general and its impacts on sea turtles and marine birds, 
recommending that longlines, purse seines, and trawling be prohibited. 
Two additional commenters urged NMFS to address the documented 
loggerhead declines in nesting numbers and further reduce the bycatch 
of loggerhead sea turtles throughout the Atlantic.
    Response: NMFS has and will continue to consider the impacts to 
listed sea turtles and to reduce threats from known sources. NMFS and 
the United States Fish and Wildlife Service (USFWS) are working to 
minimize the impacts to sea turtles from activities such as nesting 
habitat degradation, marine debris, dredging, and power plant 
impingement, and acknowledge that 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

[[Page 68351]]

that adversely affect sea turtles. For example, NMFS is currently 
evaluating Atlantic Coast trawl fisheries and considering amendments to 
the regulatory requirements for Turtle Excluder Devices in trawl 
fisheries (72 FR 7382, February 15, 2007). While commercial fisheries 
with impacts to sea turtles may be addressed through other avenues, 
this final rule involves only Virginia Chesapeake Bay pound net gear 
and an inspection program to help ensure modified pound net leaders are 
consistent with the definition of a modified pound net leader (50 CFR 
222.102). All impacted marine species were considered in the National 
Environmental Policy Act review on the action, and no impacts to marine 
birds are anticipated from this final rule.
    NMFS is aware of the reported declines in loggerhead nesting 
numbers. NMFS and the U.S. Fish and Wildlife Service published a Notice 
of Availability of the draft revised Loggerhead Recovery Plan on May 
30, 2008 (73 FR 31066). The draft revised plan is available at 
www.nmfs.noaa.gov/pr/recovery/plans.htm. Additionally, the Loggerhead 
Turtle Expert Working Group is currently assessing the status of and 
preparing a report on the loggerhead population in the Western North 
Atlantic. These initiatives will help NMFS determine the best course of 
action to ensure recovery of loggerhead sea turtles. Loggerheads remain 
listed pursuant to the ESA, and NMFS continues to work to reduce all 
mortality sources and promote recovery.
    Comment 2: One commenter felt the bycatch of dolphins and seabirds 
should be monitored and minimized.
    Response: The purpose of this rule is to establish an inspection 
program to help ensure compliance with previous regulations established 
to protect endangered and threatened sea turtles. The effects of pound 
net regulations (and the pound net fishery in general) on dolphins and 
seabirds were considered in the National Environmental Policy Act 
analysis conducted on the 2006 final rule establishing the modified 
leader requirement (June 2006 Final Environmental Assessment (EA) and 
Regulatory Impact Review Regulatory Flexibility Act Analysis of Sea 
Turtle Conservation Measures for the Pound Net Fishery in Virginia 
Waters of the Chesapeake Bay). This rule was determined to not result 
in any impacts on the environment that were not already evaluated as 
part of previous rulemaking and found to be not significant. NMFS also 
strives to protect marine mammals and seabirds through other programs.
    Comment 3: One commenter urged NMFS to undertake an inter-agency 
consultation to establish incidental take levels in the Chesapeake Bay 
and Atlantic coast fisheries to avoid jeopardy.
    Response: Inter-agency consultations, pursuant to section 7 of the 
ESA, are completed on actions authorized, funded, or carried out by a 
Federal agency. NMFS consults on all fisheries actions with a Federal 
nexus, such as the implementation of a Fishery Management Plan or other 
Federal rulemaking. As a result, management actions for Federal 
fisheries in the Atlantic (and state fisheries occurring in the 
Chesapeake Bay subject to Federal regulation) have already been 
considered with respect to their impacts on sea turtles, and incidental 
take statements have been issued for these actions. Specific to this 
action, 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 2004. An incidental take statement was 
issued as a result of the 2004 consultation. The 2006 modified pound 
net leader requirement was determined not to trigger reinitiation of 
formal consultation, as that proposed 2006 action provided the same 
level of protection as what was considered in the 2004 Biological 
Opinion. Thus, a formal section 7 consultation (and accompanying 
incidental take statement) was not completed on the 2006 action. 
Section 7 consultations on management actions for other state fisheries 
occurring in the Chesapeake Bay or in the Atlantic Ocean would not be 
appropriate because there is no Federal action on which to consult.

Pound Net Fishery Comments

    Comment 4: Two commenters expressed support for at-sea compliance 
checks and increased enforcement efforts in the pound net fishery.
    Response: The purpose of the on-shore inspection program is not to 
preclude regular enforcement activities that would have occurred 
independent of this action. One of the reasons NMFS establishes this 
inspection program is to aid in enforcement efforts. Regular 
inspections conducted in the water to evaluate the configuration of 
modified pound net leaders were determined to be a greater challenge 
for this fishery as most of the pound net leader is typically set under 
the water, the water clarity in the Chesapeake Bay is generally poor, 
and there may be debris in the water that could endanger the inspector. 
Conducting a land based inspection, and tagging the gear with yellow 
tamperproof tags along the top of the leader (so they will be visible 
from the surface), will help law enforcement identify and follow up 
with those leaders that may not be in compliance with the regulations. 
Again, at sea compliance checks and enforcement efforts will occur as 
have been done in previous years, but this inspection program is 
initiated independent of those activities.
    Comment 5: Two commenters suggested that observer coverage/
monitoring in the pound net fishery be increased during the regulated 
period to ensure that the modified leaders are working and to further 
characterize the fishery. One of those commenters additionally 
recommended that observer coverage is needed on all fisheries active 
when sea turtles are present, in particular the previously unobserved 
haul seine, trawl, and pot fisheries.
    Response: When allocating resources and evaluating other fisheries 
for bycatch, NMFS will continue to consider additional monitoring of 
the pound net fishery to observe modified pound net leaders. NMFS has 
characterized the pound net fishery in the past (e.g., in 2002, 2003 
and 2004), and while the number of participants in the fishery may have 
changed slightly since that time, NMFS does not anticipate that changes 
have occurred that would affect the information in or purpose of this 
rule. As for observer coverage in other fisheries, on August 3, 2007, 
NMFS published a final rule (72 FR 43176) that authorizes NMFS to place 
observers on vessels participating in state or federal fisheries upon 
NMFS' request. NMFS will make an annual determination identifying which 
fisheries to observe based on the following criteria: the fishery 
operates at the same time and in the same place as sea turtles; the 
fishery operates at the same time or prior to elevated sea turtle 
strandings; or the fishery uses a gear type or technique known to 
result in sea turtle bycatch; and NMFS intends to monitor the fishery 
and anticipates that it will have the funds to do so. That rule allows 
observers to monitor fisheries (e.g., haul seine, pot gear) 
specifically for sea turtle bycatch. Additionally, the NMFS Northeast 
Fisheries Science Center allocates observer coverage in various areas, 
including Virginia, each year to monitor finfish and protected species 
bycatch.
    Comment 6: One commenter noted that research should continue to be 
conducted to determine whether more effective gear modifications are 
available as well as to assess the diving

[[Page 68352]]

and foraging behavior of turtles around pound net gear.
    Response: In 2004 and 2005, NMFS implemented a coordinated research 
program with pound net industry participants and other interested 
parties to develop and test a modified pound net leader design with the 
goal of eliminating or reducing sea turtle interactions while retaining 
an acceptable level of fish catch. During the 2-year study, the 
modified leader was found effective in reducing sea turtle interactions 
as compared to the unmodified leader. In 2004, out of eight turtles 
impinged on or entangled in pound net leaders, seven were in an 
unmodified leader. One leatherback turtle was found entangled in the 
vertical lines of a modified leader, and as a result, the gear was 
further modified by increasing the stiffness of the vertical lines for 
the 2005 experiment. In 2005, 15 turtles entangled in or impinged on 
the leaders of unmodified leaders, and no turtles were found entangled 
in or impinged on modified leaders. This two year project tested a 
realistic, feasible alternative to traditional pound net leaders - one 
that testing shows to protect sea turtles while retaining fish catch. 
Note that in 2004, NMFS, through the National Fish and Wildlife 
Foundation, issued a public request for proposals to further reduce sea 
turtle interactions with Virginia pound net gear. Few testable ideas 
were submitted, and emphasis was then put on the modified leader design 
mentioned above. As such, no additional plans are underway to test 
alternative pound net gear considering the limited resources available 
and other fishing gear types that may need bycatch reduction measures 
and/or testing. Alternative designs or research plans to reduce sea 
turtle bycatch in pound net gear, as well as any other fishing gear, 
are always welcomed and can be sent to the NMFS Northeast Region 
Protected Resources Division at 55 Great Republic Drive, Gloucester, MA 
01930.
    Previous studies by the Virginia Institute of Marine Science 
(Mansfield 2006) have tracked sea turtles in the Virginia Chesapeake 
Bay, but those studies did not specifically focus on sea turtles' 
foraging and diving around pound net gear (and it is very difficult to 
do so given the unpredictability of turtle behavior). NMFS will 
consider additional satellite tracking studies to monitor sea turtle 
foraging and diving behavior in the future.
    Comment 7: One commenter noted that the regulations pertaining to 
the pound net fishery should be strengthened to better address the 
bycatch of loggerhead turtles.
    Response: NMFS has been researching the bycatch of sea turtles in 
Virginia fisheries for several years. Based on observed interactions 
with sea turtles and pound net leaders, NMFS has implemented various 
regulations in the Virginia pound net fishery since 2001. Regulations 
have been modified over time, based upon new information obtained on 
sea turtle interactions in the fishery. While sea turtle strandings and 
observed interactions in Virginia fishing gear will continue to be 
evaluated, NMFS does not believe there is a need to further regulate 
the Virginia pound net fishery at this time.
    Comment 8: One commenter noted that the following information 
should be provided: the reporting of sea turtle takes by pound net 
fishermen; the results of any at-sea monitoring performed since the 
regulations have been in place; data on strandings of sea turtles in 
the Chesapeake Bay; the results of any at-sea compliance checks; and 
whether there has been any enforcement action taken against nets found 
to be out of compliance with the regulations. The commenter claimed 
that the omission of this information in the proposed rule left 
significant gaps in the public's ability to comment on the impacts of 
the pound net fishery on threatened and endangered sea turtles.
    Response: NMFS requested public comments on the proposal to 
establish a land-based modified leader inspection program to help 
determine whether the leaders meet the existing regulatory definition 
of a modified pound net leader. We believe sufficient information was 
provided to enable the public to comment on that topic. Nevertheless, 
data on sea turtle strandings in the Chesapeake Bay were included in 
the 2006 EA. There have not been any sea turtles in pound net 
operations reported to NMFS by fishermen since the June 2006 final 
rule. NMFS concluded that this rule will complement at-sea enforcement 
efforts. In addition, all NOAA enforcement actions that result in a 
charge are published monthly in the Commercial Fisheries News.

Inspection Program Logistics

    Comment 9: One commenter recommended that NMFS require the modified 
leader design in any offshore leader fished from early May to mid-July 
within the geographic range of the Virginia pound net fishery. The 
commenter recommended all older leaders should be replaced with the new 
modified design.
    Response: When NMFS was considering a rule to require the modified 
pound net leader in the Virginia pound net fishery, the geographic 
scope of such a requirement was evaluated. Despite observer coverage 
throughout the Virginia Chesapeake Bay, all but one observed sea turtle 
interaction in an offshore leader occurred in the area where the 
modified leader is currently required. In light of that, NMFS believes 
the geographic scope of the modified leader requirement is reasonable. 
Further, the geographic area for the requirement is beyond the scope of 
this rulemaking to establish an onshore inspection program for Virginia 
modified pound net leaders.
    Comment 10: One commenter felt that fishermen should provide NMFS 
with information about the depth of the site at which the leader will 
be set to confirm the modified leader meets the definition in the 
regulations (e.g., the height of the mesh must be no more than one-
third the depth of the water at mean lower low water).
    Response: During the inspection process, NMFS will collect 
information on the low water depth at each end of the fisherman's 
modified pound net leader. After considering the public comments 
received and further assessment, NMFS determined that this modification 
to the measures in the proposed rule is warranted. Fishermen will be 
required to provide information on the low water depth at each end of 
their modified pound net leader at the site at which it will be set. 
This information, in conjunction with NMFS measuring the height of the 
mesh in relation to the height of the entire leader, will be useful in 
helping to determine whether the leader, once deployed at the location, 
meets the requirement that the mesh be no more than one third the depth 
of mean lower low water. The collection-of-information requirement 
pursuant to the Paperwork Reduction Act (PRA) has been revised to 
include collecting specific depth data from fishermen (OMB number 0648-
0559).
    With respect to the portion of the modified leader definition that 
states the height of the mesh must be no more than one-third the depth 
of the water at mean lower low water, the methodology that can be used 
to calculate mean lower low water is summarized in the Small Entity 
Compliance Guide, which will be sent to all Virginia pound net 
licensees. Copies of this document are available upon request by 
calling 978-281-9300 extension 6525, or can be found on the NMFS 
Northeast Region Protected Resources Division web site (under Gear 
Restrictions for the Virginia Pound Net

[[Page 68353]]

Fishery - 2008 Modified Leader Inspection Program) at http://www.nero.noaa.gov/prot_res/seaturtles/regs.html. In general, the depth 
at mean lower low water for a particular location can be calculated 
using the predicted and actual tide measurements located at http://tidesandcurrents.noaa.gov.
    Comment 11: One commenter recommended that the fishermen should 
call NMFS at least 96 hours, instead of 72 hours as proposed, before 
the modified leaders are to be deployed to give the inspectors and 
fishermen more time to arrange the inspection. Another commenter 
recommended that NMFS establish set times and locations where fishermen 
can bring their gear for inspection.
    Response: NMFS did not receive any comments from fishermen 
indicating that 72 hours would be an unrealistic schedule for arranging 
an inspection. Similarly, the NMFS inspector has noted that 72 hours is 
an appropriate time frame. The 72 hour window was chosen to allow 
enough time to arrange the inspection while ensuring the fishermen 
would not be burdened with having to call too far in advance when their 
deployment plans may still be unclear. If a fisherman wants to call to 
arrange the inspection 96 hours in advance of deployment, there is 
nothing in the regulations that would preclude him/her from doing so.
    NMFS does not believe establishing a set time and location for the 
fishermen to bring in their gear for inspection is realistic. Fishermen 
may set their gear at any time during the year, and as such, purchase 
and rig their leaders at varying times as well. It would be more 
cumbersome on the industry to have them adhere to a rigid schedule for 
inspections, instead of arranging the inspection when their gear is 
available and ready for deployment. The NMFS inspector has indicated 
that the proposed inspection plans are realistic and suitable.

Changes From the Proposed Rule

    As a result of the comments received and further assessment, NMFS 
has determined that two modifications to the measures included in the 
proposed rule are warranted. First, the proposed rule indicated that 
during the inspection, fishermen must inform NMFS of the ``specific 
location where his or her inspected pound net leader will be set.'' The 
final rule clarifies the type of information sought to identify 
``specific location'' by indicating that, during the inspection, 
fishermen must provide accurate and specific latitude and longitude 
coordinates of the location at which the leader will be deployed. If 
the fisherman does not know his or her modified pound net leader 
latitude and longitude coordinates prior to the inspection, NMFS will 
have a detailed nautical chart available during the inspection for the 
fisherman to ascertain the specific coordinates of the gear. Second, 
during the inspection, fishermen must provide NMFS with information on 
the low water depth at each end of their modified leader at the 
location at which it will be set. Knowing the depth, in conjunction 
with NMFS measuring the height of the mesh in relation to the height of 
the entire leader, will be useful in helping to determine whether the 
leader, once deployed at the location, meets the requirement that the 
mesh be no more than one third the depth of mean lower low water. The 
collection-of-information requirement pursuant to the PRA has been 
revised to include collecting latitude and longitude coordinates and 
specific depth data from fishermen (OMB number 0648-0559).

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has prepared a final regulatory flexibility analysis that 
describes the economic impact this final rule will have on small 
entities. A summary of the analysis follows.
    A statement of the need for, and objectives of, this rulemaking are 
presented in the preamble and not repeated here.
    No comments were received on the initial regulatory flexibility 
analysis or the economic impacts of the proposed rule.
    The Final Environmental Assessment (EA) and Regulatory Impact 
Review/Regulatory Flexibility Act Analysis of Sea Turtle Conservation 
Measures for the Pound Net Fishery in Virginia Waters of the Chesapeake 
Bay (June 2006) analyzed the economic impacts of requiring the use of 
the modified leader for offshore pound nets in Regulated Area I and 
allowing the use of the modified leader by all other pound nets in the 
Virginia waters of Chesapeake Bay between May 6 and July 15. The 
analysis found the rule would increase net revenues for five fishermen 
in the lower Bay by allowing them to fish offshore pound nets during 
the regulated period, compared to the previous 2004 rule that 
prohibited leaders. The cost of fabricating and deploying the modified 
leader was more than offset by the increase in revenues. Additionally, 
the EA noted that the public benefits from turtle protection using the 
modified leader were indistinguishable from the leader prohibition. 
This rule does not change those conclusions; rather, it would help to 
support the benefits identified. If the compliance rate for use of the 
modified leader for offshore pound nets in Regulated Area I is not 100 
percent, there is potential for a reduction in the benefits from turtle 
protection. The economic incentives for a fisherman to decide not to 
comply with the existing regulations are minor; however, fishermen may 
not comply with the modified leader design specifications due to an 
inadvertent error in construction. In either case, benefits from the 
existing regulation could be reduced if the modified leader does not 
meet the regulatory definition.
    The cost to a fisherman of undergoing a land based inspection is 
small. Assuming that fishing is not impeded by the regulation\1\, and 
the inspection is arranged at a location convenient to the fisherman, 
the principal cost to fishermen would be the opportunity cost of their 
time to arrange and undergo the inspection estimated at $21.50 per 
leader. Assuming telephone costs of $1.25 to arrange the meeting, the 
total cost would be $22.75 per leader. Fishermen are also required to 
notify NMFS by telephone if a tag is lost, damaged, or destroyed. It is 
estimated such a call, should it be necessary, would take approximately 
5 minutes for an estimated cost of $2.90 per lost/damaged/destroyed tag 
(considering telephone charges and opportunity cost of time). The 
number of fishermen and leaders affected by this rule will depend on 
how many fishermen adopt the modified leader. At the low end, if it is 
assumed that only those fishermen required to use the modified leader 
in order to fish do so, the estimate is five fishermen in the lower 
Chesapeake Bay with seven offshore leaders would incur inspection 
costs. Depending on the number of leaders a fisherman deploys, the cost 
per fisherman would range from $22.75 to $45.50 or 0.03 to 0.06 percent 
of average annual revenues per fisherman. A mid-range estimate suggests 
fishermen would replace all offshore pound net leaders with the 
modified leader. At the end of five years, 21 fishermen with 32 pound 
nets would incur costs between $22.75 to

[[Page 68354]]

$45.50 or 0.03 to 0.08 percent of average annual revenues. At the high 
end, if it is assumed that during the normal leader replacement cycle, 
all fishermen adopt the modified leader for all pound nets used in 
Pound Net Regulated Areas I and II during May 6 to July 15, the 
estimate at the end of five years would be 21 fishermen and 46 pound 
nets. The annual cost per fisherman would range from $22.75 to $91.00, 
or 0.04 to 0.08 percent of average annual revenues. The total annual 
cost to the pound net industry would be $157.70 at the low level of 
adoption, or $1,046.50 under full adoption, which are 0.007 to 0.047 
percent of industry revenues. Note that the cost of reporting lost, 
damaged, or destroyed tags is not included in the individual fisherman 
or industry estimates because there is no verifiable estimate of 
expected rate of tag loss. If one assumes three tags per leader and a 
10 percent loss rate, the total industry cost would increase by $5.80 
to $40.60 per year depending on the level of adoption and the year. 
NMFS also analyzed the ``no action'' alternative, for which there would 
not be any economic impacts on small entities.
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    \1\That is, fishermen are able to fish before the regulated 
period with an existing leader. Alternatively, if fishermen used the 
modified leader outside the regulated period, they would generally 
remove the leader for cleaning/maintenance at some time during the 
year; if inspection services were available during that time, 
fishing would not be impeded.
---------------------------------------------------------------------------

    This final rule requires those fishermen who wish to deploy a 
modified leader from May 6 through July 15, to make their modified 
leaders available for inspection and tagging. Additionally, fishermen 
would be required to retain a letter that the leader has passed 
inspection for the relevant period. Under existing regulations, 
fishermen had to be familiar with the design requirements for the 
modified leader; this knowledge continues to be required under this 
rule. In the event that a tagged leader is damaged or destroyed, 
fishermen would be required to report the loss to NMFS personnel. To 
access the inspection program and report lost or damaged tags, 
fishermen would need access to a telephone. No new skills would be 
required for compliance.
    As stated above, the rule was compared to the status quo, which 
does not require inspection of modified pound net leaders, but does 
require compliance of modified leaders with the design specifications 
described in previous regulation. The alternative contained in this 
final rule was prepared to help ensure the level of turtle protection 
anticipated by the June 23, 2006 rule (71 FR 36024) is achieved. The 
rule was designed to minimize the economic burden to the fisherman by 
allowing the inspections at a place of convenience (e.g., dock) and by 
allowing inspection at any point prior to deployment (i.e., leaders 
could be deployed in months prior to May 6). Additionally, fishermen 
avoid the potential expense and lost revenues that could occur should a 
leader need to be removed from the water for inspection or because it 
did not meet the design requirements for a modified leader described in 
the existing regulation.
    This final rule contains a collection-of-information requirement 
subject to the PRA and which has been approved by OMB under control 
number 0648-0559. Public reporting burden for the modified pound net 
leader inspection program is estimated to average a maximum of 2 and 
one half hours per fisherman (or 51 hours for all Virginia pound net 
fishermen), including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This final rule contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132. The Assistant Secretary for Legislative and 
Intergovernmental Affairs provided notice of the proposed action to the 
Governor of Virginia on March 7, 2007. No comments were received in 
response to the March 2007 letter.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Transportation.

    Dated: November 12, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701.

0
2. In Sec.  223.205, paragraphs (b)(16) and (b)(17) are redesignated as 
(b)(21) and (b)(22), respectively, and new paragraphs (b) (16) - (20) 
are added to read as follows:


Sec.  223.205  Sea turtles.

* * * * *
    (b) * * *
    (16) Set, use, or fail to remove a pound net leader in Pound Net 
Regulated Area I or Pound Net Regulated Area II at any time from May 6 
through July 15 that does not meet the leader construction 
specifications described in 50 CFR 223.206(d)(10) and 50 CFR 222.102;
    (17) Set, use, or haul a modified pound net leader in Pound Net 
Regulated Area I or Pound Net Regulated Area II defined in 50 CFR 
222.102 and referenced in 50 CFR 223.206(d)(10) at any time from May 6 
through July 15 unless that leader has been inspected and tagged by 
NMFS in accordance with 50 CFR 223.206(d)(10)(vii) prior to deploying 
the leader;
    (18) Alter or replace any portion of a pound net leader that has 
been previously tagged by NMFS in accordance with 50 CFR 
223.206(d)(10)(vii) so that the altered or replaced portion is no 
longer consistent with the modified pound net leader definition in 50 
CFR 222.102, unless that altered or replaced portion is inspected and 
tagged by NMFS in accordance with 50 CFR 223.206(d)(10)(vii) or that 
alteration or replacement occurs after the regulated period of May 6 
through July 15;
    (19) Remove, transfer, sell, purchase, affix, or tamper with any 
tags used by NMFS to mark pound net leaders;
    (20) Fish, use, or haul a modified pound net leader at any time 
from May 6 through July 15 unless the fisherman has on board the vessel 
a letter issued by NMFS indicating that the leader has passed 
inspection;
* * * * *

0
3. In Sec.  223.206, paragraph (d)(10)(vii) is added to read as 
follows:


Sec.  223.206  Exemptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (10) * * *
    (vii) Modified leader inspection program. Any fisherman planning to 
use a modified pound net leader in Pound Net Regulated Area I or Pound 
Net Regulated Area II at any time from May 6 through July 15 must make 
his/her leader available for inspection and tagging by NMFS according 
to the following procedures. At least 72 hours prior to deploying a 
modified pound net leader, the fisherman or his/her representative must 
call NMFS at 757-414-0128 between 7:00 a.m. and 5:00 p.m. local time 
and arrange for a

[[Page 68355]]

mutually agreeable meeting date, time, and place. The fisherman must 
meet NMFS at such location at the designated time and allow NMFS to 
examine his or her gear to help ensure the leader is in compliance with 
the definition of a modified pound net leader. NMFS will ascertain 
whether the leader meets the following four criteria taken from that 
definition: (1) the lower portion of the leader is mesh and the upper 
portion consists of only vertical lines; (2) the mesh size is equal to 
or less than 8 inches (20.3 cm) stretched mesh; (3) the vertical lines 
are equal to or greater than 5/16 inch (0.8 cm) in diameter and strung 
vertically at least every 2 feet (61 cm); and (4) the vertical lines 
are hard lay lines with a level of stiffness equivalent to the 
stiffness of a 5/16 inch (0.8 cm) diameter line composed of polyester 
wrapped around a blend of polypropylene and polyethylene and containing 
approximately 42 visible twists of strands per foot of line. NMFS will 
also measure the height of the mesh in relation to the height of the 
entire leader. During the inspection, the fisherman must provide 
accurate and specific latitude and longitude coordinates of the 
location at which the leader will be deployed, as well as information 
on the low water depth at each end of the modified leader at the site 
at which it will be set. If the leader meets the four criteria 
previously described, the measurement of the height of the mesh in 
relation to the total height of the leader is recorded, and the low 
water depth and latitude and longitude coordinates of the specific 
location at which the leader will be deployed are provided and 
recorded, the leader will pass inspection. If it passes inspection, 
NMFS will tag the leader with one or more tamperproof tags. Removing or 
tampering with any tag placed on the leader by NMFS is prohibited. If a 
tag is damaged, destroyed, or lost due to any cause, the fisherman must 
call NMFS at 757-414-0128 within 48 hours of discovery to report this 
incident. After the leader is determined to have passed inspection, 
NMFS will issue a letter to the fisherman indicating that the leader 
passed inspection. The fisherman must retain that letter on board his/
her vessel tending the inspected leader at all times it is deployed. 
Modified pound net leaders must pass inspection prior to being used at 
any time during the time period from May 6 through July 15 of each 
year.
* * * * *
[FR Doc. E8-27344 Filed 11-17-08; 8:45 am]
BILLING CODE 3510-22-S