[Federal Register Volume 67, Number 61 (Friday, March 29, 2002)]
[Proposed Rules]
[Pages 15160-15167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7708]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222, 223, and 224

[Docket No.020319061-2061-01; I.D. 031402B]
RIN 0648-AP81


Sea Turtle Conservation; Restrictions to Fishing Activities

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to prohibit the use of all pound net leaders 
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 from May 8 to June 30 each year. The affected area 
includes all Chesapeake Bay waters between the Maryland and Virginia 
state line (approximately 38 N. lat.) and the COLREGS line at the mouth 
of the Chesapeake Bay, and the waters of the James River, York River, 
and Rappahannock River downstream of the first bridge in each 
tributary. This action, taken under the Endangered Species Act of 1973 
(ESA), is necessary to conserve sea turtles listed as threatened or 
endangered and aid in the enforcement of the prohibition on takes.

DATES: Comments on this action are requested, and must be received at 
the appropriate address or fax number (ADDRESSES) by no later than 5 
p.m., eastern daylight time, on April 15, 2002.

ADDRESSES: Written comments on this action or requests for copies of 
the literature cited, the draft Environmental Assessment (EA)/ 
Regulatory Impact Review (RIR) should be addressed to the Assistant 
Regional Administrator for Protected Resources, NMFS, One Blackburn 
Drive, Gloucester, MA 01930. Comments and requests for supporting 
documents may also be sent via fax to 978-281-9394. Comments will not 
be

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accepted if submitted via e-mail or the Internet.

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

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the ESA. Kemp's ridley (Lepidochelys 
kempii), leatherback (Dermochelys coriacea), and hawksbill 
(Eretmochelys imbricata) sea turtles are listed as endangered. 
Loggerhead (Caretta caretta) and green (Chelonia mydas) sea turtles are 
listed as threatened, except for populations of green turtles in 
Florida and on the Pacific coast of Mexico, which are listed as 
endangered.
    Under the ESA and its implementing regulations, taking listed sea 
turtles--even incidentally--is prohibited, with exceptions identified 
in 50 CFR 223.206. The incidental take of endangered species may only 
legally be authorized by an incidental take statement or an incidental 
take permit issued pursuant to section 7 or 10 of the ESA. No 
incidental take of endangered sea turtles is currently authorized in 
the Virginia pound net fishery.
    Existing information indicates that pound nets with large mesh and 
stringer leaders incidentally take sea turtles. A pound net leader with 
stretched mesh greater than 12 inches (30.5 cm) is considered to be a 
large mesh leader. A stringer leader consists of vertical lines spaced 
apart in a portion of the leader and mesh in the rest of the leader. 
Based on the available information, NMFS determined that interactions 
with pound net leaders were the most likely cause of a significant 
portion of documented sea turtle mortality in the Chesapeake Bay during 
the spring of 2001. Furthermore, NMFS believes it is likely that pound 
nets are a significant factor in the unusual spring sea turtle 
mortality event that occurs annually in Virginia state waters. This 
proposed action is necessary to provide for the conservation of 
threatened and endangered turtles by minimizing incidental take in the 
Virginia pound net fishery during the spring.

Virginia Spring Stranding Event

    The Sea Turtle Stranding and Salvage Network (STSSN), a network of 
organizations authorized by NMFS to respond to sea turtle stranding 
events, has documented high sea turtle strandings in Virginia waters 
during the spring for the past 23 years. From 1994 to 2001, the average 
date of the first reported stranding was May 15, and the highest number 
of strandings typically occurred during the second half of May through 
the end of June, when turtles were migrating into the Bay. The 
magnitude of this stranding event has increased in recent years. During 
May and June, total reported Virginia sea turtle strandings were 84 in 
1995, 85 in 1996, 164 in 1997, 181 in 1998, 129 in 1999, and 155 in 
2000. Strandings during the spring of 2001 were exceptionally high; 
preliminary data indicates that 265 sea turtles stranded on Virginia 
beaches during May and June. This was twice the average number of 
turtles that stranded annually during this time period from 1995 to 
2000. From 1995 to 2000, 60 percent of all reported strandings occurred 
during May and June.
    Most of the stranded sea turtles in Virginia have been loggerheads, 
but endangered Kemp's ridley and leatherback sea turtles have also 
stranded. Out of 1,067 total strandings in May and June from 1995 to 
2001, 958 loggerheads, 59 Kemp's ridleys, 17 leatherbacks, 1 green, and 
32 unidentified turtles were found. The majority of the stranded 
turtles have been of the juvenile/immature life stage.
    While some turtles with traumatic carapace injuries, propeller-like 
wounds or imbedded fish hooks (injuries not associated with pound nets) 
are documented each year, no cause of mortality is obvious for the 
majority of turtles that strand in Virginia. While current stranding 
levels are higher than in previous years, relatively healthy animals 
have been stranding on Virginia beaches for at least 20 years. 
Bellmund, et al. (1987) found that during spring stranding events in 
1983 and 1984, all turtles examined seemed healthy with the exception 
of one injured and two emaciated turtles.
    Although fresh dead turtles were found earlier in the season, most 
of the stranded turtles reported in the spring of 2000 and 2001 were 
moderately to severely decomposed. The ability to conduct necropsies is 
compromised by the condition of the stranded animals, and severely 
decomposed turtles are not usually necropsied. The majority of the 
stranded turtles that were examined by necropsy in 2000 and 2001 had 
good fat stores, suggesting that the animals were in good health prior 
to their death. Many of the necropsied turtles had full stomachs, and 
contents included blue crab, horseshoe crab, and fish. Twenty-three of 
66 loggerheads necropsied between May and December 2001 contained fish 
parts. The majority of the 2001 necropsies were conducted on animals 
that stranded in the Western Bay and on the Chesapeake Bay side of the 
eastern shore.
    The distribution of sea turtle strandings in Virginia varies 
slightly from year to year, but historically, most of the spring 
strandings in Virginia have been documented on the ocean facing beaches 
south of Cape Henry and the inshore beaches in the southern Chesapeake 
Bay. For instance, the majority of 1999 spring strandings occurred 
offshore in the Virginia Beach Oceanside area around the mouth of the 
Chesapeake Bay, but the majority of the spring strandings in 1998, 
2000, and 2001 occurred in inshore waters with concentrations around 
the southern tip of the eastern shore and the southern portion of the 
Chesapeake Bay around Virginia Beach and Hampton. Strandings in 2001 
were of particular concern because the majority of the strandings 
(approximately 65 percent) in May and June occurred along the 
Chesapeake Bay side of the eastern shore of Virginia and along the 
southern tip near Kiptopeke and Fisherman's Island, indicating a 
possible localized interaction. It is possible that some Virginia 
Chesapeake Bay turtle strandings are swept into the Chesapeake Bay from 
elsewhere, as the water patterns and currents entering the Chesapeake 
Bay could concentrate sea turtle strandings around the mouth. However, 
it is likely that in the Virginia Chesapeake Bay, most mortalities have 
occurred relatively close to the stranding location (Lutcavage 1981). 
Further, it has been estimated that strandings on ocean facing beaches 
represent, at best, only approximately 20 percent of the at-sea 
nearshore mortality, as only those turtles killed close to shore are 
most likely to strand (NMFS SEFSC 2001).

Factors Contributing to Strandings

    In response to the long term trend in elevated sea turtle 
strandings, NMFS instituted a program in 2001 to investigate 
interactions between sea turtles and Virginia fisheries during the 
historical stranding period. This program included inshore and offshore 
aerial surveys, traditional and alternative platform observer coverage 
of gillnet and pound net fisheries, and sonar surveys of pound net 
leaders.
    There is a complex mix of fisheries operating in Virginia 
Chesapeake Bay and ocean waters during May and June, including large 
and small mesh gillnet fisheries, whelk and crab pot fisheries, haul 
seine fisheries, scallop dredge and trawl fisheries, and the pound net 
fishery. At the time of the 2001

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strandings, NMFS observed a number of the fisheries active in Virginia 
and did not detect significant sea turtle mortality. However, 
additional observer coverage is needed to adequately determine the 
level of sea turtle interactions with the various fisheries operating 
during the spring.
    The federally managed monkfish large mesh gillnet fishery 
(approximately 10-12 inch (25.4-30.5 cm) mesh) had approximately 41-
percent observer coverage in waters off Virginia from May 1 until it 
stopped operating off Virginia on May 29 when the fleet moved 
northward. In Virginia, 107 monkfish trips were observed, and one dead 
and two live loggerhead turtles were incidentally captured in this 
fishery. In May and June 2001, the monkfish fishery landed 
approximately 16 percent of the total landings with gillnet gear in 
Virginia. Two 10-14 inch (25.4-35.6 cm) mesh gillnet fisheries, the 
black drum and sandbar shark gillnet fisheries, occurred in state 
waters, in the vicinity of the highest number of turtle strandings 
(along the tip of the eastern shore). The black drum fishery had 
approximately 8-percent observer coverage during May and June, and no 
turtle takes were observed. Additionally, almost all of the black drum 
fishing effort ceased at the beginning of June, and there was not a 
large amount of sandbar shark gillnet effort during the spring 
stranding period. No large mesh gillnet fishing in the vicinity of the 
mouth of the Chesapeake Bay occurs from June 1 to June 30; during this 
time, gillnets with a stretched mesh size greater than 6 inches (15.2 
cm) are prohibited in Virginia's portion of the Chesapeake Bay south of 
Smith Island.
    During 2001, the small mesh gillnet fisheries (smaller than 6 inch 
(15.2 cm) mesh) were also considered as a potential contributor to the 
high sea turtle strandings. However, the amount of gillnet effort 
occurring in the Chesapeake Bay waters during May and June appears to 
be relatively small (e.g., approximately 11 percent of total Virginia 
Chesapeake Bay landings). Further, aerial surveys were conducted by the 
Virginia Institute of Marine Science (VIMS) in the inshore waters of 
the Chesapeake Bay and minimal gillnet effort was observed during June 
2001. Of the total gillnet landings in Virginia offshore and inshore 
waters during May and June 2001, small mesh gillnet landings for a 
variety of species, including Atlantic croaker and dogfish, represented 
approximately 82 percent. NMFS observed 2 percent of the Atlantic 
croaker fishery and 12 percent of the dogfish fishery during that time; 
no turtle takes were observed. While small mesh gillnets may entangle 
sea turtles, the level of interaction in Virginia waters during the 
spring is not expected to be high.
    The Virginia Marine Resources Commission (VMRC) restricted the use 
of trawls in Virginia's portion of the Chesapeake Bay in 1989, and no 
trawling effort occurs in the Chesapeake Bay. Aerial surveys, landings 
data, and dock surveys indicate that limited trawling occurs in Federal 
waters offshore of Virginia during May and June; approximately 18 
percent of total ocean landings in May and June 2001 were by scallop 
trawl gear (2,456 metric tons of 13,739 metric tons total). The scallop 
dredge fishery operates off of Virginia during May and June, consisting 
of approximately 78 percent of the total ocean landings in May and June 
2001. Sea turtle interactions with scallop dredges have been observed, 
but the magnitude of the interactions with this gear type has not been 
determined. While additional information is needed, this fishery may 
contribute to some sea turtle mortality documented on Virginia ocean 
side beaches.
    While whelk and crab pots may contribute to sea turtle mortality, 
it is unlikely that interactions with this gear type would result in a 
time and area specific mass stranding event. The majority of the whelk 
pot effort is found offshore, particularly outside Virginia's state 
waters, and few fishermen set their pots inside the Chesapeake Bay 
(Mansfield et al., 2001). The peak spring months for the whelk pot 
fishery are April and May. Crab pot fishing occurs throughout the 
Chesapeake Bay, including along the eastern shore and tip of the 
Delmarva Peninsula. Approximately 36 percent of the total Virginia 
Chesapeake Bay landings in May and June 2001 were from crab pots. Sea 
turtles may become entangled in crab pot gear, but due to the nature of 
the gear and manner in which it's fished, interactions are difficult to 
detect. As such, the magnitude of this fishery's contribution to 
Virginia sea turtle strandings is not known, but it is unlikely that 
sea turtle interactions with crab pots result in a mass mortality 
event.
    While a number of fisheries may contribute to sea turtle 
strandings, available data indicate that large mesh and stringer pound 
net leaders result in sea turtle entanglement and that the pound net 
fishery was a likely cause of a significant portion of the sea turtle 
mortality in the Chesapeake Bay during the spring of 2001. Pound nets 
are set throughout the Chesapeake Bay, in both Maryland and Virginia 
waters. In Virginia, the majority of pound net stands are located 
around the Virginia shore south of the mouth of the Potomac River 
(south of Smith Point), around the mouth of the Rappahannock River, 
around the mouth of the York River/Mobjack Bay, and along the southern 
portion of the eastern shore of Virginia. Landings by pound nets 
represented approximately 40 percent of the total landings in the 
Virginia Chesapeake Bay during May and June 2001.
    During 1980, high strandings were documented in areas where there 
were large numbers of working pound nets (Lutcavage, 1981). 
Additionally, pound nets are the dominant fishing gear observed 
immediately offshore of the Kiptopeke area and along the southern 
portion of the Virginia eastern shore, where most of the strandings 
occurred in the spring of 2001 and a concentration of spring strandings 
were documented in 1998 and 1999.
    Stringer leaders are found in the western Chesapeake Bay, around 
the tip of Mobjack Bay and just south of the mouth of the Potomac 
River, near Reedville. Strandings during 1998 to 2001 were observed on 
the western shore of the Chesapeake Bay in the vicinity of stringer 
pound net leaders, but strandings during these years were almost always 
highest in other areas of the Chesapeake Bay (e.g., during the spring 
of 2001, strandings were highest along the eastern shore). High turtle 
mortalities in late May and early June in Virginia have previously been 
attributed to entanglement in large mesh and stringer pound net leaders 
in the Chesapeake Bay (Lutcavage, 1981; Bellmund, et al. 1987). 
Specifically, pound net entanglement has been determined to account for 
up to 33 percent of sea turtle mortality in the Chesapeake Bay during 
some summers (Lutcavage and Musick 1985). A Virginia pound net survey 
in the 1980s documented ``many dead loggerheads and one [Kemp's] ridley 
hung by heads or limbs in area poundnet hedging [leaders]'' (Lutcavage, 
1981). This study also determined that based upon constriction features 
on stranded turtles, some beached carcasses had previously floated free 
of pound net leaders and that it was plausible that unidentified pound 
net leader deaths could account for many of the carcasses for which no 
mortality sources have been identified. However, five turtles entangled 
in pound net leaders were examined during 1984 and none of these 
turtles became disentangled by natural causes. These sea turtles 
instead completely decomposed in situ within 5 weeks (Bellmund, et al. 
1987). While additional information is necessary to

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determine how often sea turtles become disentangled from pound net 
leaders, it is plausible that turtles may become dislodged from pound 
net leaders either by the strong current in certain areas of the 
Chesapeake Bay, the decomposition process, or fishermen disentangling 
dead sea turtles if detected.
    Data collected in 1983 and 1984 found turtle entanglement in pound 
nets with small mesh leaders (defined as 8 to 12 inch (20.3 to 30.5 cm) 
stretched mesh) to be insignificant, but in 173 pound nets examined 
with large mesh leaders (defined as >12 to 16 inch (>30.5 to 40.6 cm) 
stretched mesh), 0.2 turtles per net were found entangled (30 turtles; 
Bellmund, et al., 1987). This study also found that in 38 nets examined 
with stringer mesh, 0.7 turtles per net were documented entangled (27 
turtles). The sampling area was concentrated in the western Chesapeake 
Bay, with some sampling occurring in other portions of the Virginia 
Chesapeake Bay. Turtle entanglements in pound net leaders began in mid-
May, increased in early June, and reached a plateau in late June 
(Bellmund, et al. 1987). In 1984, no entanglements were observed after 
late June. Surveys in 1979 and 1980 also found that most of the pound 
net leaders that captured sea turtles consisted of large mesh (12 to 16 
inches (30.5 to 40.6 cm)) and were found in the lower Chesapeake Bay. 
Anecdotal reports from North Carolina pound net fishermen during the 
early 1980s stated that sea turtle entanglements occurred in pound net 
leaders with approximately 8 inch (20.3 cm) mesh and greater. While 
smaller mesh nets may pose some entanglement risk to sea turtles, the 
degree of entanglement has not been documented as well as entanglement 
in stretched mesh leaders 12 inches (30.5 cm) and greater. Leader mesh 
greater than or equal to 12 inch (30.5 cm) stretch and leaders with 
stringers likely account for the largest number of sea turtle 
entanglements in pound net gear in the Virginia Chesapeake Bay.
    NMFS recognizes that the majority of scientific information on sea 
turtle and pound net interactions in Virginia dates back to the 1980s. 
However, the factors involved in entanglement, namely the size of sea 
turtles' heads and flippers relative to mesh size and stringers, are 
the same today as they were in the 1980s. NMFS anticipates that sea 
turtles will continue to interact with large mesh and stringer leaders 
in the Chesapeake Bay. In fact, during the spring of 2001, several sea 
turtles were documented in association with pound net leaders. VMRC law 
enforcement agents documented one live and three dead sea turtles in 
pound net leaders along the eastern shore. The live turtle was 
entangled in a leader with greater than 12 inches (30.5 cm) stretched 
mesh, but the leader mesh size of the other entanglements was not 
documented. Additionally, during June of 2000, VMRC law enforcement 
agents reported disentangling two live sea turtles from two eastern 
shore leaders with greater than 12 inches (30.5 cm) stretched mesh. 
Although it is possible that some turtle carcasses drift into pound net 
leaders post-mortem, sea turtles have been documented entangled in 
pound net leaders where entanglement was determined to be the cause of 
death.
    Sea turtle entanglements in pound net leaders are difficult to 
detect. Sea turtles observed in leaders in the spring of 2001 were 
found at the surface. Due to the poor water clarity in the Chesapeake 
Bay, turtles entangled below the surface cannot be observed. 
Additionally, pound net fishermen do not typically tend their leaders, 
so a turtle entangled in the leader, even at the surface, may go 
unnoticed. It is likely that significantly more sea turtles are 
entangled in pound net leaders than are observed or reported (Lutcavage 
1981). Similarly, it is probable that significantly higher turtle 
mortality occurred over the past 23 years than was documented on 
Virginia beaches. Since many dead turtles fail to strand where they can 
be documented by the STSSN, the number of stranded turtles represents 
an unknown sub-sample of the total mortality that occurs each spring.
     NMFS has investigated other potential causes for the annual spring 
sea turtle mortality event, but natural or non-fishing related 
anthropogenic causes are not consistent with the nature of the 
strandings. The absence of other species in the most recent stranding 
events and the absence of high sea turtle strandings in other Atlantic 
states during the time period when turtles are migrating are 
inconsistent with cold stunning, a toxic algae bloom, epizootic or 
other disease. Further, the stranded turtles exhibited no major 
traumatic injuries such as might be caused by dredging or blasting. 
Conversely, the circumstances surrounding the spring strandings are 
consistent with fishery interactions, which 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 fish in 
their stomach. Sea turtles are generally not agile enough to capture 
finfish under natural conditions, and thus would only consume large 
quantities of finfish by interacting with fishing gear or bycatch 
(Mansfield, et al. 2002, Bellmund, et al. 1987, Shoop and Ruckdechel 
1982).
    Based on the nature and location of turtle strandings, the type of 
fishing gear in the vicinity of the greatest number of strandings, the 
lack of observed takes in other fisheries operating in Virginia waters 
during the 2001 stranding period, the known interactions between sea 
turtles and large mesh and stringer pound net leaders, and several 
documented sea turtle entanglements in pound net leaders, NMFS 
concluded that pound nets were a likely cause of a significant number 
of the high sea turtle strandings in Virginia in May and June 2001.
    As a result of information obtained in 2001, NMFS implemented an 
emergency rule that required all pound net leaders measuring 8 inches 
(20.3 cm) or greater stretched mesh and all pound net leaders with 
stringers to be tied up in the Virginia waters of the mainstem 
Chesapeake Bay and the tidal waters of the James, York, and 
Rappahannock Rivers from June 19 to July 19, 2001 (66 FR 33489 June 22, 
2001). Sea turtle strandings decreased after this rule was in effect, 
but as a result of delays in determining which fishery caused the 
strandings and in implementing management measures, the rule was 
enacted after the period of the highest sea turtle strandings. The 
emergency measures likely reduced subsequent entanglements in large 
mesh and stringer pound net leaders. While fishery interactions may 
vary from year to year, NMFS believes it is likely that pound nets 
contribute to the high sea turtle strandings documented every spring.

Impacts on Sea Turtles

    The annual high mortality in Virginia in May and June is of concern 
for the following reasons: (1) The level of spring strandings in 
Virginia has been high for approximately 20 years and elevated for the 
last 5 years, and it is believed that high strandings will continue to 
occur during this time period; (2) strandings over the past 4 years 
have been concentrated along the southern tip of the eastern shore, 
suggesting a potential localized interaction; (3) approximately 50 
percent of the Chesapeake Bay loggerhead foraging population is 
composed of the northern subpopulation, a subpopulation that may be 
declining; and (4) most of the stranded turtles have been juveniles, a

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life stage found to be critical to the long term survival of the 
species.
    Most loggerheads in U.S. waters come from one of four genetically 
distinct nesting subpopulations. A subpopulation that nests in south 
Florida is much larger and has shown recent increases in numbers of 
nesting females. The increase in documented sea turtle mortalities in 
Virginia could partly be a function of the increase in the southern 
subpopulation of loggerheads, which make up approximately 50 percent of 
the loggerheads found in the Chesapeake Bay. The northern subpopulation 
that nests from northeast Florida through North Carolina is much 
smaller and nesting numbers are stable or declining. Genetic studies 
indicate that approximately one-half of the juvenile loggerheads 
inhabiting Chesapeake Bay during the spring and summer are from the 
smaller, northern subpopulation (TEWG 2000; Norrgard, 1995). 
Approximately 3,800 nesting females are estimated for the northern 
subpopulation of loggerhead sea turtles (TEWG 2000). The impact of the 
high level of mortality experienced by loggerhead turtles each spring 
off Virginia on the population's ability to recover is of significant 
concern. The northern subpopulation produces 65 percent males, while 
the southern subpopulation is estimated to produce 80 percent females 
(NMFS SEFSC 2001). As males do not appear to show the same degree of 
site fidelity as females, it is possible that the high proportion of 
males produced in the northern subpopulation are an important source of 
males for all loggerheads inhabiting the Atlantic. The loss of the male 
contribution from the northern subpopulation may restrict gene flow and 
result in a loss of genetic diversity to the loggerhead population as a 
whole. The loss of females from the northern subpopulation may preclude 
future reproduction, reducing the likelihood of both future survival 
and recovery of the northern subpopulation of loggerheads. While the 
size of the southern subpopulation of loggerheads appears to be 
increasing, the high level of spring sea turtle mortality in Virginia 
must be reduced to help ensure that the southern subpopulation of 
loggerheads continues to recover.
    Most of the turtles stranding in Virginia waters during the spring 
are of the juvenile/immature life stages. The specific age at maturity 
for most sea turtles is unknown; the age of maturity for loggerheads 
occurs from approximately 21-35 years (TEWG 2000). Studies have 
concluded that sea turtles must have high annual survival as juveniles 
and adults to ensure that sufficient numbers of animals survive to 
reproductive maturity to maintain stable populations (Crouse, et al. 
1987, Crowder, et al., 1994, Crouse, 1999). Given their long maturation 
period, relatively small decreases in annual survival rates of both 
juvenile and adult loggerhead sea turtles may destabilize the 
population, thereby potentially reducing the likelihood of survival and 
recovery of the population. As such, the historical high level of 
mortality in Virginia plus the increase in loggerhead mortality 
documented during the last several years may negatively affect the 
recovery of the loggerhead population.

Modification of Pound Net Gear

    To conserve sea turtles, the Assistant Administrator, NOAA, (AA) 
proposes to prohibit the use of all pound net leaders measuring 12 
inches (30.5 cm) or 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. The area where this gear restriction would apply includes the 
Virginia waters of the mainstem Chesapeake Bay from the Maryland-
Virginia state line (approximately 37 deg. 55' N. lat., 75 deg. 55' W. 
long.) to the COLREGS line at the mouth of the Chesapeake Bay; the 
James River downstream of the Hampton Roads Bridge Tunnel (I-64; 
approximately 36 deg. 59.55' N. lat., 76 deg. 18.64' W. long.); the 
York River downstream of the Coleman Memorial Bridge (Route 17; 
approximately 37 deg. 14.55' N. lat, 76 deg. 30.40' W. long.); and the 
Rappahannock River downstream of the Robert Opie Norris Jr. Bridge 
(Route 3; approximately 37 deg. 37.44' N. lat, 76 deg. 25.40' W. 
long.).
    This prohibition of pound net leaders would be effective from 12:00 
a.m. local time on May 8 through 11:59 p.m. local time on June 30 each 
year. For the duration of this proposed gear restriction, fishermen 
would be required to stop fishing with pound net leaders measuring 12 
inches (30.5 cm) or greater stretched mesh and pound net leaders with 
stringers in the designated area.
    From 1994 to 2001, the average date of the first reported stranding 
in Virginia was May 15. 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 and reduce any subsequent strandings on Virginia 
beaches, the proposed measures should go into effect at least 1 week 
prior to the stranding commencement date, or on May 8 each year. Based 
upon STSSN strandings data, strandings in Virginia typically remain 
elevated until June 30, indicating that turtles may be vulnerable to 
entanglement in pound net leaders until this time. Implementation of 
the proposed gear restrictions during this time period is expected to 
prevent the reoccurrence of sea turtle takes in the pound net fishery 
in the spring and high numbers of strandings in Virginia.
    In addition to establishing the restriction on leader mesh size and 
leaders with stringers, this proposed rule would also create a 
framework mechanism by which NMFS may make changes to the restrictions 
and/or their effective dates on an expedited basis in order to respond 
to new information and protect sea turtles. Under this framework 
mechanism, if NMFS makes a determination, for example, due to water 
temperature and the timing of sea turtles' migration, that sea turtles 
may still be vulnerable to entanglement in pound net leaders after June 
30, the AA may extend the effective dates of this regulation. Should an 
extension of the effective dates of the prohibition of pound net 
leaders measuring 12 inches (30.5 cm) or greater stretched mesh and 
pound net leaders with stringers be necessary, NMFS would issue a final 
rule to be effective upon publication in the Federal Register 
explicitly stating the duration of the extension. The extension would 
not exceed 30 days from the date of its publication.
    From May 8 to June 30, NMFS intends to continue to closely monitor 
sea turtle stranding levels and other fisheries active in the 
Chesapeake Bay and nearshore and offshore Virginia waters, including 
pound net leaders with a stretched mesh size measuring less than 12 
inches (30.5 cm). If monitoring of pound net leaders reveals that one 
sea turtle is entangled alive in a pound net leader less than 12 inches 
(30.5 cm) stretched mesh or that one sea turtle is entangled dead and 
NMFS determines that the entanglement contributed to its death, then 
NMFS may determine that additional restrictions are necessary to 
conserve sea turtles and prevent entanglements. 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 immediately file a final rule with the Office 
of the Federal Register. Such a rule would explicitly state the new 
mandatory gear restriction as well as the time period, which may also 
be extended for up to 30 days through a subsequent rule. The

[[Page 15165]]

area where additional gear restrictions would 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, and 
the Rappahannock River.
    In 2001, NMFS implemented an emergency rule that prohibited the use 
of all pound net leaders measuring 8 inches (20.3 cm) or greater 
stretched mesh and all pound net leaders with stringers in the Virginia 
waters of the mainstem Chesapeake Bay and the tidal waters of the 
James, York, and Rappahannock Rivers from June 19 to July 19. While sea 
turtles may interact with smaller mesh leaders (less than 12 inch (30.5 
cm) stretched mesh), NMFS believes that prohibiting the use of leaders 
greater than or equal to 12 inches (30.5 cm) stretched mesh and leaders 
with stringers will reduce most of the potential sea turtle 
entanglements in pound net leaders, and subsequent strandings on 
Virginia beaches. NMFS chose to restrict the use of leaders with 
stretched mesh greater than or equal to 8 inches (20.3 cm) in 2001 
because there is some information indicating that sea turtles have been 
entangled in 8 inch (20.3 cm) stretched mesh and because an 
unprecedented number of loggerheads had already stranded in the spring 
of 2001 at the time of the emergency rule. While there is evidence to 
suggest that turtle entanglements may occur in leaders with stretched 
mesh smaller than 12 inches (30.5 cm), the majority of the scientific 
information to date indicates that leaders greater than 12 inches (30.5 
cm) stretched mesh and leaders with stringers result in the majority of 
sea turtle pound net entanglements in the Virginia Chesapeake Bay. NMFS 
expects that prohibiting leaders with greater than or equal to 12 
inches (30.5 cm) stretched mesh will be sufficient to protect sea 
turtles, while minimizing the impacts to the pound net fishery. 
However, as mentioned previously, should monitoring reveal one sea 
turtle entangled alive or one sea turtle entangled dead, and NMFS 
determines that the entanglement contributed to its death, in a pound 
net leader less than 12 inches (30.5 cm) stretched mesh, NMFS may 
impose additional restrictions in May or June on an expedited basis.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS has prepared an initial regulatory flexibility analysis that 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained at the 
beginning of the preamble and in the SUMMARY section. A summary of the 
analysis follows:
    The fishery affected by this proposed rule is the Virginia pound 
net fishery in the Chesapeake Bay. According to the 2001 VMRC survey 
data, of the 160 pound net licenses issued in Virginia, where one 
license is assigned to each pound net, 72 licenses are fishing in the 
waters potentially affected by this proposed rule. Based upon data from 
1999 to 2001, Virginia pound net fishermen earned $84,300 in annual 
revenues and landed 352,300 pounds of fish annually on average.
    The proposed action prohibits pound net leaders with 12 inches 
(30.5 cm) and greater stretched mesh, as well as those using stringers, 
from May 8 to June 30. The non-preferred alternative 1 prohibits pound 
net leaders with 8 inches (20.3 cm) and greater stretched mesh, as well 
as those using stringers, from May 8 to June 30. The non-preferred 
alternative 2 prohibits all pound net leaders from May 8 to June 30. 
Finally, the non-preferred alternative 3 prohibits pound net leaders 
with greater than 16 inches (40.6 cm) stretched mesh, and requires 
pound net leaders with stringers to drop the mesh to 9 feet (2.7 m) 
below mean low water and to space stringer lines at least 3 feet (0.9 
m) apart, from May 15 to approximately June 15.
    According to VMRC data from 1999 to 2001, 27 fishermen were fishing 
approximately 64 pound nets from May 8 to June 30. During this period, 
fishermen earned revenues of $16,700 and landed 69,300 pounds of fish, 
on average. Prohibiting the use of all pound net leaders with greater 
than or equal to 12 inches (30.5 cm) stretched mesh and leaders with 
stringers from May 8 to June 30 would potentially affect approximately 
11 fishermen fishing approximately 24 pound nets. Under the worst case 
scenario in which fishermen choose not to replace their leaders with 
nets less than 12 inches (30.5 cm) stretched mesh, but remove their 
leaders altogether between May 8 and June 30, forgone industry revenues 
would be $192,000 and the cost to remove and replace pound net leaders 
would be $16,700, resulting in an industry total of $208,700. A 
fisherman affected by this proposed rule would on average incur revenue 
losses of $16,700 from not fishing and a cost of $1,600 to remove and 
replace leaders on their pound nets in the worst case. A fisherman's 
annual revenue in this scenario will be reduced by 22 percent on 
average, given annual revenues of $84,300. If fishermen do replace 
their leader with one with less than 12 inches (30.5 cm) stretched 
mesh, and it is operational, then the economic impact of this 
alternative is $1,600 to remove and replace the leader plus 
approximately $8,300 for a compliant leader. While there may be 
additional revenue differences associated with fishing with a smaller 
leader, those potential differences cannot be determined.
    If NMFS determines that this proposed rule should be extended, the 
economic impacts to the pound net fishery will be greater. Based on the 
2001 VMRC data, weekly revenues per fisherman from May 8 to June 30 
were $2,200. For every week extended, forgone industry revenues would 
be $23,100, in the worst case scenario, assuming fishermen remove their 
leaders instead of switching to a smaller mesh leader. Therefore, if 
the extension was until July 15, forgone industry revenues would be 
approximately $46,200. Given a 2-week extension, a fisherman's annual 
revenues would now be reduced by 27 percent, versus 22 percent without 
the extension, under the worst case scenario. If fishermen were able to 
switch to a smaller mesh size leader and the requirement is extended, 
no additional cost would be incurred.
    Should additional management measures be implemented as a result of 
information on pound net leader and sea turtle interactions obtained 
via monitoring, the restrictions may affect either those pound net 
leaders measuring 8 inches (20.3 cm) or greater stretched mesh or all 
pound net leaders regardless of mesh size in the Virginia waters of the 
mainstem Chesapeake Bay. If pound net leaders greater than or equal to 
8 inches (20.3 cm) are prohibited, approximately 13 fishermen fishing 
approximately 31 pound nets would be affected. This number of affected 
participants includes those pound net fishermen with previously 
restricted leaders. From May 8 to June 30, forgone industry revenues 
would be $237,400 and the cost to remove and replace pound net leaders 
would be $20,300, for a total of $257,700 in the worst case scenario, 
assuming fishermen remove their leaders instead of switching to a 
smaller mesh leader. If all pound net leaders, regardless of mesh size, 
are prohibited, 27 fishermen fishing approximately 64 pound nets would 
be affected. From May 8 to June 30, forgone industry revenues would be

[[Page 15166]]

$444,600 and the cost to remove and replace pound net leaders would be 
$43,200, for a total of $487,800. The costs to an individual fisherman 
under either of these additional measures would be the same as the 
initial gear restriction; a fisherman would on average incur revenue 
losses of $16,700 from not fishing and a cost of $1,600 to remove and 
replace leaders on their pound nets between May 8 and June 30 in the 
worst case scenario.
    Taking no action would not have economic consequences, at least in 
the short term. The impacts of the non-preferred alternative 1 would be 
the same as those previously described for the prohibition of pound net 
leaders measuring 8 inches (20.3 cm) or greater stretched mesh and 
stringers; approximately 13 fishermen fishing approximately 31 pound 
nets would be affected by the non-preferred alternative 1. From May 8 
to June 30, forgone industry revenues would be $237,400 and the cost to 
remove and replace pound net leaders would be $20,300, for a total of 
$257,700 in the worst case scenario, assuming fishermen remove their 
leaders instead of switching to a smaller mesh leader. The impacts of 
the non-preferred alternative 2 would be the same as those previously 
described for the prohibition of all pound net leaders; approximately 
27 fishermen fishing 64 pound nets would be affected by the non-
preferred alternative 2. From May 8 to June 30, forgone industry 
revenues would be $444,600 and the cost to remove and replace pound net 
leaders would be $43,200, for a total of $487,800. Under the non-
preferred alternative 3, 7 fishermen fishing approximately 14 pound 
nets would be affected. From May 8 to June 30, forgone industry 
revenues would be $125,000 and the cost to remove and replace pound net 
leaders would be $11,200, for a total of $136,200 in the worst case 
scenario, assuming fishermen remove their leaders instead of switching 
to a smaller mesh leader. The costs to an individual fisherman under 
all of the alternatives would be the same; a fisherman would on average 
incur revenue losses of $16,700 from not fishing and a cost of $1,600 
to remove and replace leaders on their pound nets between May 8 and 
June 30. Under the proposed action, the non-preferred alternative 1 and 
the non-preferred alternative 3, if fishermen are able to switch to a 
smaller leader mesh size, and it is operational, the economic impacts 
would be $1,600 to remove and replace the leader plus approximately 
$8,300 for a compliant leader.

    Dated: March 25, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries.

List of Subjects

50 CFR Parts 222 and 224
    Administrative practice and procedure, Endangered and threatened 
Species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.
50 CFR Part 223
    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 50 CFR parts 222, 223, 
and 224 are proposed to be amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

    1. The authority citation for part 222 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.
    2. In Sec. 222.102, the definition of ``Pound net leader'' is added 
in alphabetical order 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 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.
* * * * *

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 is revised to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.; subpart B, Sec. 223.12 also 
issued under 16 U.S.C. 1361 et seq.
    2. In Sec. 223.205, paragraphs (b)(14) and (15) are revised and 
paragraph (b)(16) is added to read as follows:


Sec. 223.205  Sea turtles.

* * * * *
    (b) * * *
    (14) Sell, barter, trade or offer to sell, barter, or trade, a TED 
that is not an approved TED;
    (15) Fail to comply with the restrictions set forth in 
Sec. 223.206(d)(2)(v) regarding pound net leaders; or
    (16) Attempt to do, solicit another to do, or cause to be done, any 
of the foregoing.
* * * * *

    3. In Sec. 223.206, paragraph (d)(2)(v) is added to read as 
follows:


Sec. 223.206  Exceptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (2) * * *
    (v) Gear requirement--pound net leaders--(A) Restrictions on pound 
net leaders. During the time period of May 8 through June 30, any pound 
net leader in the waters described in paragraph (d)(2)(v)(B) of this 
section must have a mesh size less than 12 inches (30.5 cm) stretched 
mesh and may not employ stringers. Any pound net leader with mesh 
measuring 12 inches (30.5 cm) or greater or any pound net leader with 
stringers must be removed from the waters described in paragraph 
(d)(2)(v)(B) of this section prior to May 8 and may not be reset until 
July 1 unless that date is extended by the AA pursuant to 
Sec. 223.206(d)(2)(v)(C).
    (B) Regulated waters. The restrictions on pound net leaders 
described in paragraph (d)(2)(v)(A) of this section apply to the 
following waters: the Virginia waters of the mainstem Chesapeake Bay 
from the Maryland-Virginia State line (approximately 37 deg. 55' N. 
lat., 75 deg. 55' W. long.) to the COLREGS line at the mouth of the 
Chesapeake Bay; the James River downstream of the Hampton Roads Bridge 
Tunnel (I-64; approximately 36 deg. 59.55' N. lat., 76 deg. 18.64' W. 
long.); the York River downstream of the Coleman Memorial Bridge (Route 
17; approximately 37 deg. 14.55' N. lat, 76 deg. 30.40' W. long.); and 
the Rappahannock River downstream of the Robert Opie Norris Jr. Bridge 
(Route 3; approximately 37 deg. 37.44' N. lat, 76 deg. 25.40' W. 
long.).
    (C) Expedited modification of restrictions and effective dates. 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)(2)(v)(A) of 
this section on pound net leaders in the waters identified in 
(d)(2)(v)(B) of this section, the AA may issue a notification 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

[[Page 15167]]

use of pound net leaders regardless of mesh size. In addition, if 
information indicates that a significant level of sea turtle strandings 
will likely continue beyond June 30, the AA may issue a final rule 
extending the effective dates of the restrictions as necessary to 
protect threatened sea turtles.
* * * * *

PART 224-- ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 is revised to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.; and 16 U.S.C. 1361 et seq.
    2. In Sec. 224.104, paragraph (e) is added to read as follows:


Sec. 224.104  Special requirements for fishing activities to protect 
endangered sea turtles.

* * * * *
    (e) Fishermen fishing pound nets in waters identified in 
Sec. 223.206(d)(2)(v)(B) in compliance with rules for threatened sea 
turtles specified in Sec. 223.206 of this chapter will not be subject 
to civil penalties under the Act for incidental captures of endangered 
sea turtles in pound net leaders.
[FR Doc. 02-7708 Filed 3-28-02; 8:45 am]
BILLING CODE 3510-22-S