[Federal Register Volume 69, Number 25 (Friday, February 6, 2004)]
[Proposed Rules]
[Pages 5810-5817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2633]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 040127028-4028-01; I.D 012104B]
RIN 0648-AR69
Sea Turtle Conservation; Restrictions to Fishing Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes to prohibit the use of all pound net leaders
from May 6 to July 15 each year in the Virginia waters of the mainstem
Chesapeake Bay, south of 37 19.0' N. lat. and west of
76 13.0' W. long., and all waters south of
37 13.0' N. lat. to the Chesapeake Bay Bridge Tunnel at
the mouth of the Chesapeake Bay, and the James and York Rivers
downstream of the first bridge in each tributary. Additionally, NMFS
proposes to prohibit the use of all leaders with stretched mesh greater
than or equal to 8 inches (20.3 cm) and leaders with stringers from May
6 to July 15 each year in the Virginia waters of the Chesapeake Bay
outside the aforementioned area, extending to the Maryland-Virginia
State line and the Rappahannock River downstream of the first bridge,
and from the Chesapeake Bay Bridge Tunnel to the COLREGS line at the
mouth of the Chesapeake Bay. This action, taken under the Endangered
Species Act of 1973 (ESA), is necessary to conserve sea turtles listed
as threatened or endangered.
DATES: Comments on this action are requested, and must be received at
the appropriate address or fax number (see ADDRESSES) by no later than
5 p.m., eastern daylight time, on March 8, 2004.
ADDRESSES: Written comments on this action or requests for copies of
the literature cited, the draft Environmental Assessment (EA), or
Regulatory Impact Review (RIR) and Initial Regulatory Flexibility
Analysis should be addressed to the Assistant Regional Administrator
for Protected Resources, NMFS, One Blackburn Drive, Gloucester, MA
01930. Comments and requests for supporting documents may also be sent
via fax to 978-281-9394. Comments will not be accepted if submitted via
e-mail or the Internet.
FOR FURTHER INFORMATION CONTACT: Carrie Upite (ph. 978-281-9328 x6525,
fax 978-281-9394), or Barbara Schroeder (ph. 301-713-1401, fax 301-713-
0376).
SUPPLEMENTARY INFORMATION:
Background
All sea turtles that occur in U.S. waters are listed as either
endangered or threatened under the ESA. Kemp's ridley (Lepidochelys
kempii), leatherback (Dermochelys coriacea), and hawksbill
(Eretmochelys imbricata) sea turtles are listed as endangered.
Loggerhead (Caretta caretta) and green (Chelonia mydas) sea turtles are
listed as threatened, except for populations of green turtles in
Florida and on the Pacific coast of Mexico, which are listed as
endangered. Under the ESA and its implementing regulations, taking
listed sea turtles--even incidentally--is prohibited, with exceptions
identified in 50 CFR 223.206 for threatened sea turtles. The incidental
take of endangered species may only legally be authorized by an
incidental take statement or an incidental take permit issued pursuant
to section 7 or 10 of the ESA.
On June 17, 2002, based upon the best available information on sea
turtle and pound net interactions at the time, NMFS issued an interim
final rule that prohibited the use of all pound net leaders measuring
12 inches (30.5 cm) and greater stretched mesh and all pound net
leaders with stringers in the Virginia waters of the mainstem
Chesapeake Bay and portions of the Virginia tributaries from May 8 to
June 30 each year (67 FR 41196). Included in this interim final rule
was a year-round requirement for fishermen to report all interactions
with sea turtles in their
[[Page 5811]]
pound net gear to NMFS within 24 hours of returning from a trip, and a
year-round requirement for pound net fishing operations to be observed
by a NMFS-approved observer if requested by the Northeast Regional
Administrator. The interim final rule also established a framework
mechanism by which NMFS may make changes to the restrictions and/or
their effective dates on an expedited basis in order to respond to new
information and protect sea turtles. Under this framework mechanism, if
NMFS believes that sea turtles may still be vulnerable to entanglement
in pound net leaders after June 30 of any given year, the Assistant
Administrator, NOAA, (AA) may extend the effective dates of the
restrictions established by the regulations. Additionally, if
monitoring of pound net leaders during the time frame of the gear
restriction, May 8 through June 30 of each year, reveals that one sea
turtle is entangled alive in a pound net leader less than 12 inches
(30.5 cm) stretched mesh or that one sea turtle is entangled dead and
NMFS determines that the entanglement contributed to its death, then
NMFS may determine that additional restrictions are necessary to
conserve sea turtles and prevent entanglements. As a result of sea
turtle entanglements observed during the spring of 2003, NMFS issued a
temporary final rule restricting all pound net leaders throughout the
Virginia Chesapeake Bay and portions of the tributaries from July 16 to
July 30, 2003, pursuant to the framework mechanism of the 2002 interim
final rule (68 FR 41942, July 16, 2003).
Sea Turtle and Pound Net Interactions
Sea turtles have been documented entangled in pound net leaders.
Data collected in 1983 and 1984 found turtle entanglement in pound nets
with small mesh leaders (defined as 8 to 12 inch (20.3 to 30.5 cm)
stretched mesh) to be insignificant, but in 173 of the pound nets
examined with large mesh leaders (defined as 12 to 16 inch
(30.5 to 40.6 cm) stretched mesh), 30 turtles were found
entangled (0.2 turtles per net; Bellmund et al., 1987). This study also
found that in 38 nets examined with stringer mesh, 27 turtles were
documented entangled (0.7 turtles per net). The sampling area was
concentrated in the western Chesapeake Bay, with some sampling
occurring in other portions of the Virginia Chesapeake Bay. Surveys in
1979 and 1980 also found that most of the pound net leaders that
captured sea turtles consisted of large mesh (12 to 16 inches (30.5 to
40.6 cm)) and were found in the lower Chesapeake Bay (Lutcavage 1981).
In recent years, pound nets have been observed, and sea turtles
have been documented in the leaders. During the spring of 2001, with
limited monitoring effort, a NMFS observer reported finding five
moderately to severely decomposed loggerhead turtles against four
different large mesh pound net leaders (approximately 13 inch (33 cm)
mesh) along the Eastern shore of Virginia in early June. Given the
decomposition state and lack of multiple wrapped, entangling line
around the turtles, these turtles were determined to be not entangled
in the leaders, and the cause of death was uncertain. Virginia Marine
Resources Commission (VMRC) law enforcement agents also documented one
live and three dead sea turtles in pound net leaders along the Eastern
shore during the spring of 2001. The live turtle was entangled in a
leader with greater than 12 inches (30.5 cm) stretched mesh, but the
leader mesh size of the other entanglements was not recorded.
Additionally, during June of 2000, VMRC law enforcement agents reported
disentangling two live sea turtles from two Eastern shore leaders with
greater than 12 inches (30.5 cm) stretched mesh.
To better understand the interactions between sea turtles and pound
net gear, NMFS conducted pound net monitoring during the spring of 2002
and 2003. In 2002, NMFS monitored the active pound nets (n=70)
throughout the Virginia Chesapeake Bay from April 25 to June 1. As the
2002 interim final rule was not yet in place, approximately 8 of the
leaders surveyed had stretched mesh greater than or equal to 12 inches
(30.5 cm) or leaders with stringers. Eleven sea turtles were found in
pound net gear, but not all of the mortalities could be directly
attributed to interactions with pound nets. Four sea turtles were found
entangled in leaders, including two dead Kemp's ridley and two dead
loggerhead sea turtles. One of the Kemp's ridleys was found in a leader
with 8 inch (20.3 cm) stretched mesh, one loggerhead was found in a
leader with stringers, and the other two animals were found in leaders
with 14 inch (35.6 cm) stretched mesh. Based upon necropsy reports,
constriction wounds, and the magnitude of entanglement, entrapment in
pound net leaders was determined to be the cause of death of these
animals. Two additional loggerhead sea turtles were found alive in
pound net leaders, impinged on the leaders with their head and front
flippers through the mesh. These two animals were observed as not being
able to swim off of the leaders under their own ability. One moderately
decomposed loggerhead was found in the top line of a leader, but given
the lack of tight multiple wraps of line around the turtle, it was
inconclusive as to whether it was entangled before death or whether it
washed into the net after having died elsewhere. Four moderately to
severely decomposed loggerheads were found in leaders, but due to their
decomposition state and lack of entanglement in the mesh, it appeared
that the animals floated into the nets. These four sea turtles were not
considered as entangled in or impinged on the pound net leaders.
From April 21 to June 11, 2003, NMFS monitored the active pound net
leaders (n=56) with stretched mesh measuring less than 12 inches (30.5
cm). This monitoring effort resulted in the documentation of 17 sea
turtles found in pound net leaders. Of the 17 sea turtles, five sea
turtles were entangled in pound net leaders, of which two were
loggerheads (one dead) and three were Kemp's ridleys (two dead). There
is sufficient information to conclude that the death of these turtles
was attributable to entanglement in the pound net leaders given the
degree of entanglement and multiple wrapping of line around their
flippers, their decomposition state (fresh dead to moderately
decomposed), and their buoyancy (negatively buoyant, which typically
suggests recent mortality). Additionally, 12 sea turtles were found
held against, or impinged on, pound net leaders by the current. Of
these 12 impingements, 10 were loggerhead sea turtles (one dead), one
was an alive Kemp's ridley sea turtle, and one alive sea turtle's
species identification was unable to be determined. Two of these live
animals had their head and/or flipper through the leader mesh, but when
observed, the line was not wrapped multiple times around the turtle. As
the impinged turtles were not observed being able to move vertically on
the net, if a turtle could not breathe from the position where it was
impinged, it would have a low likelihood of survival if it remained on
the net for longer than approximately an hour. Of the 11 live
impingements, approximately 7 were found underwater, unable to reach
the surface to breathe, with an average of 3 hours until slack tide.
Eleven of the 17 incidents involved leaders measuring 11.5 inches (29.2
cm) stretched mesh, while six of the sea turtles were entangled in or
impinged on 8 inch (20.3 cm) stretched mesh leaders. In 2002 and 2003,
most of the observed sea turtles were found in nets along the
[[Page 5812]]
Eastern shore of Virginia, but three turtles were found in leaders in
the Western Chesapeake Bay.
Sea turtle entanglements in pound net leaders are difficult to
detect. The sea turtles previously observed in leaders were found at
depths ranging from the surface to approximately 6 feet (1.8 m) under
the surface. The ability to observe a turtle below the surface depends
on a number of variables, including water clarity, sea state, and
weather conditions. Generally, turtles entangled more than a few feet
below the surface cannot be observed due to the poor water clarity in
the Chesapeake Bay. In 2001 and 2002, side scan sonar was used to
attempt to detect sub-surface sea turtle entanglements; no verified sea
turtle acoustical signatures were observed during these surveys
(Mansfield et al., 2002a; Mansfield et al., 2002b). However, the
effectiveness of side scan sonar surveys are limited by weather and sea
conditions (e.g., suspended sediments are reflected by the sonar and
monitoring is only successful in calm seas), and the acoustical
signature may vary with the sea turtle's orientation and location in
the net, size, and decomposition state (Mansfield et al. 2002a;
Mansfield et al. 2002b). Sonar surveys have potential in detecting sub-
surface turtle entanglements and impingements, but given the caveats,
the results obtained to date must be treated cautiously. While most of
the previously observed sea turtles were found near the surface, it
remains unclear whether the visual surface monitoring biased the
location of the take results. Sea turtles may be found throughout the
water column given their preferences for water temperature (e.g.,
generally greater than 11 C) and foraging (e.g.,
loggerheads and Kemp's ridleys in Virginia are primarily benthic
foragers). Mansfield and Musick (2003) found that 7 sea turtles (6
loggerheads and 1 Kemp's ridley) tracked in the Virginia Chesapeake Bay
from May 22 to July 17, 2002, dove to maximum depths ranging from
approximately 13.1 ft (4 m) to 41 ft (12.5 m). While the percentage of
time sea turtles spend at the surface compared to at depth is still
being clarified, sea turtles may be found throughout the water column.
As pound net leader characteristics are generally consistent from top
to bottom, it is probable that more sea turtles are in pound net
leaders than are observed or reported and the previous monitoring
efforts represent a minimum record of sea turtle entanglement and
impingement.
The 2002 and 2003 monitoring results documenting the entanglement
of sea turtles in leaders with less than 12 inches (30.5 cm) stretched
mesh represents new information not previously considered in prior
assessments of the Virginia pound net fishery, and entanglements in and
impingements on these leaders appear to be more of a significant
problem than originally believed. As such, additional restrictions are
warranted to prevent sea turtle entanglement in and impingement on
pound net gear.
Spring Sea Turtle Stranding Event
High strandings of threatened and endangered sea turtles are
documented on Virginia beaches each spring. The magnitude of this
stranding event has increased in recent years. During May and June,
total reported Virginia sea turtle strandings were 84 in 1995, 85 in
1996, 164 in 1997, 183 in 1998, 129 in 1999, 161 in 2000, 256 in 2001,
and 180 in 2002. In 2003, preliminary data indicate that 312 dead sea
turtles stranded on Virginia beaches during May and June, with most of
these occurring during the latter half of June. Strandings have also
been elevated in July, generally the first half of the month. For
instance, in 2003, the stranding peak occurred during the last two
weeks of June, but strandings remained consistent through the second
week of July, with a preliminary total of 48 turtles stranding from
July 1 to 15. Furthermore, from 1996 to 2003, strandings were generally
elevated during the first half of July, with an average of 23
strandings documented from July 1 to 15. In the latter half of July,
strandings typically decrease; from 1996 to 2003, an average of 11
strandings were documented from July 16 to 31.
Most of the stranded sea turtles in Virginia have been threatened
loggerheads, but endangered Kemp's ridley, green and leatherback sea
turtles have also stranded. Out of 1,559 total strandings in May and
June from 1995 to 2003, 1,372 loggerheads, 108 Kemp's ridleys, 28
leatherbacks, 1 green, and 50 unidentified turtles were found in
Virginia. The majority of stranded turtles have been of the juvenile/
immature life stage. Most of the stranded turtles reported in Virginia
during the spring have been moderately to severely decomposed. For
instance, in the spring of 2003, approximately 85 percent of the
strandings were either moderately to severely decomposed, compared to
approximately 6 percent that were fresh dead. The ability to conduct
necropsies is compromised by the condition of the stranded animals, and
severely decomposed turtles are not usually necropsied. The majority of
the stranded turtles that were examined by necropsy in the spring of
previous years had relatively good fat stores and full stomachs/
digestive tracts, suggesting that the animals were in good health prior
to their death.
From mid-May to mid-July 2003, approximately 47 percent of the
stranded animals were found along the Chesapeake Bay side of the
Eastern shore of Virginia, 23 percent were found in the Virginia Beach
ocean area, 15 percent in the Western Bay, 8 percent along the
oceanside of the Eastern shore, and 7 percent in the southern
Chesapeake Bay areas. While the distribution of sea turtle strandings
in Virginia varies slightly from year to year, there has been a high
concentration of stranded sea turtles found along the Eastern shore in
recent years. It is possible that some Virginia Chesapeake Bay turtle
strandings are swept into the Chesapeake Bay from elsewhere, as the
water patterns and currents entering the Chesapeake Bay could
concentrate sea turtle strandings around the mouth with certain wind
conditions (Valle-Levinson et al., 2001). Similarly, southwesterly
winds result in surface water outflows throughout the entrance to the
Chesapeake Bay, which could result in sea turtles being carried out of
the Chesapeake Bay. However, it is likely that in the Virginia
Chesapeake Bay, most mortalities have occurred relatively close to the
stranding location (Lutcavage 1981). A NMFS observer tagged 6 floating
dead sea turtles during the spring of 2003, and 2 sea turtles were
recovered the next day - one stranded approximately 500 yards (457 m)
away on the Eastern shore and another was found 6-7 nautical miles
(11.1-13 km) south of the Western Bay tagging location.
NMFS has evaluated the potential sea turtle mortality sources in
Virginia waters, and will continue to do so in the future. While some
turtles with traumatic carapace injuries, propeller-like wounds or
imbedded fish hooks have been documented each year, no cause of
mortality is obvious for the majority of turtles that strand.
Determining the cause of death in stranded sea turtles is difficult,
given the level of decomposition of most stranded turtles and the lack
of evidence, due in part to sea turtles' anatomy (e.g., hard carapace,
scaly skin). However, the circumstances surrounding the spring
strandings are consistent with fishery interactions as a likely cause
of some perhaps a significant number of sea turtles deaths and,
therefore, strandings. These circumstances include relatively healthy
turtles prior to the time of their death,
[[Page 5813]]
a large number of strandings in a short time period, no external wounds
on the majority of the turtles, no common characteristic among stranded
turtles that would suggest disease as the main cause of death, and
turtles with finfish in their stomachs (which has been believed to
indicate interactions with fishing gear (Bellmund et al., 1987) or
bycatch discarded from vessels (Shoop and Ruckdeschel, 1982)).
While a concentration of strandings has been consistently found in
the vicinity of pound nets, and a number of dead floating sea turtles
were documented around pound nets in recent years, a cause and effect
relationship between pound net interactions and high spring strandings
cannot be statistically derived based on the available data. However,
NMFS has documented that fishing with pound net leaders results in
lethal and non-lethal take of sea turtles. NMFS concludes that this
constitutes sufficient evidence to form the basis for these proposed
restrictions on pound net leaders.
Impact of High Mortality on Sea Turtle Populations
Sea turtles have been documented entangled in and impinged on pound
net leaders, and the purpose of this proposed action is to prevent sea
turtle entanglements in and impingements on Virginia pound net gear.
The documented interactions between sea turtles and pound net leaders,
as well as the annual Virginia spring strandings, are of concern for
the following reasons: (1) All of the entangled, impinged and stranded
animals are listed as either endangered or threatened under the ESA
which means these species are in danger of extinction or likely to
become endangered; (2) the level of strandings in Virginia has been
elevated the last seven years, and there is no reason to believe that
high spring strandings will abate in future years without regulatory
action; (3) sea turtles have been observed entangled in leader mesh
sizes smaller than what is currently restricted; (4) sea turtles have
been observed impinged on leaders by the current, a phenomenon not
previously believed to occur with such frequency, and impingements are
likely to continue to occur on small mesh leaders in areas where
impingements have been documented; (5) the greatest percentage of
Virginia spring strandings in recent years has been along the southern
tip of the Eastern shore, where a large number of pound nets are
located; (6) approximately 50 percent of the Chesapeake Bay loggerhead
foraging population is composed of the northern subpopulation, a
subpopulation that may be declining; and (7) most of the stranded
turtles have been juveniles, a life stage found to be critical to the
long term survival of the species.
Most loggerheads in U.S. waters come from one of five genetically
distinct nesting subpopulations. The largest loggerhead subpopulation
occurs from 29 N. lat. on the east coast of Florida to
Sarasota on the west coast and shows recent increases in numbers of
nesting females based upon an analysis of annual surveys of all nesting
beaches. However, a more recent analysis limited to nesting data from
the Index Nesting Beach Survey program from 1989 to 2002, a period
encompassing index surveys that are more consistent and more accurate
than surveys in previous years, has shown no detectable trend (B.
Witherington, Florida Fish and Wildlife Conservation Commission, pers.
comm., 2002). Thus, it is unclear whether the increase in documented
sea turtle mortalities in Virginia could partly be a function of the
status of the South Florida subpopulation of loggerheads, which make up
approximately 50 percent of the loggerheads found in the Chesapeake
Bay. The northern subpopulation that nests from northeast Florida
through North Carolina is much smaller, and nesting numbers are stable
or declining. Genetic studies indicate that approximately one-half of
the juvenile loggerheads inhabiting Chesapeake Bay during the spring
and summer are from the smaller, northern subpopulation (TEWG, 2000;
Bass et al., 1998; Norrgard, 1995). Approximately 3,800 nesting females
are estimated for the northern subpopulation of loggerhead sea turtles
(TEWG, 2000). The impact of the high level of mortality experienced by
loggerhead turtles each spring off Virginia on the population's ability
to recover is of significant concern. The northern subpopulation
produces 65 percent males, while the South Florida subpopulation is
estimated to produce 20 percent males (NMFS SEFSC, 2001). As males do
not appear to show the same degree of site fidelity as females, the
high proportion of males produced in the northern subpopulation may be
an important source of males for all loggerheads inhabiting the
Atlantic. The loss of the male contribution from the northern
subpopulation may restrict gene flow and result in a loss of genetic
diversity to the loggerhead population as a whole. The loss of females
from the northern subpopulation may preclude future reproduction,
reducing the likelihood of both future survival and recovery of the
northern subpopulation of loggerheads. Given the vulnerability of these
subpopulations to chronic impacts from human-related activities, the
high level of spring sea turtle mortality in Virginia must be reduced
to help ensure that these subpopulations of loggerheads will recover.
Most of the turtles stranding in Virginia waters during the spring
are of the juvenile/immature life stages. The specific age at maturity
for most sea turtles is unknown; the age of maturity for loggerheads
occurs from approximately 21-35 years (TEWG, 2000). Studies have
concluded that sea turtles must have high annual survival as juveniles
and adults to ensure that sufficient numbers of animals survive to
reproductive maturity to maintain stable populations (Crouse et al.,
1987; Crowder et al., 1994; Crouse, 1999). Given their long maturation
period, relatively small decreases in annual survival rates of both
juvenile and adult loggerhead sea turtles may destabilize the
population, thereby potentially reducing the likelihood of survival and
recovery of the population. As such, the historical high level of
mortality in Virginia plus the increase in loggerhead mortality
documented during the last several years may negatively affect the
recovery of the loggerhead population.
Restrictions on Pound Net Leaders
To conserve sea turtles, the AA proposes to prohibit the use of all
pound net leaders from May 6 to July 15 each year in the Virginia
waters of the mainstem Chesapeake Bay, south of 37 19.0'
N. lat. and west of 76 13.0' W. long., and all waters
south of 37 13.0' N. lat. to the Chesapeake Bay Bridge
Tunnel (extending from approximately 37 05' N. lat.,
75 59' W. long. to 36 55' N. lat.,
76 08' W. long.) at the mouth of the Chesapeake Bay, and
the portion of the James River downstream of the Hampton Roads Bridge
Tunnel (I-64; approximately 36 59.55' N. lat.,
76 18.64' W. long.) and the York River downstream of the
Coleman Memorial Bridge (Route 17; approximately 37
14.55' N. lat, 76 30.40' W. long.). Additionally, the AA
proposes to prohibit the use of all leaders with stretched mesh greater
than or equal to 8 inches (20.3 cm) and leaders with stringers from May
6 to July 15 each year in the Virginia waters of the Chesapeake Bay
outside the aforementioned closed area, extending to the Maryland-
Virginia State line (approximately 37 55' N. lat.,
75 55' W. long.) and the Rappahannock River downstream
of the Robert Opie Norris Jr. Bridge (Route 3; approximately
37 37.44' N. lat, 76 25.40' W. long.),
and from the Chesapeake Bay Bridge Tunnel
[[Page 5814]]
to the COLREGS line at the mouth of the Chesapeake Bay.
This prohibition of pound net leaders would be effective from 12:01
a.m. local time on May 6 through 11:59 p.m. local time on July 15 each
year. For the duration of this proposed gear restriction, fishermen
would be required to stop fishing with pound net leaders altogether or
pound net leaders measuring 8 inches (20.3 cm) or greater stretched
mesh and pound net leaders with stringers, depending upon the location
of their pound net site as indicated above.
NMFS has sufficient evidence to conclude that there is a localized
interaction between sea turtles and pound nets along the Eastern shore
of Virginia and in the Western Chesapeake Bay. Sea turtles have been
observed in pound net gear along the Eastern shore in recent years. Sea
turtles have also been found impinged on and entangled in leaders in
the Western Bay, during recent monitoring studies as well as surveys in
the 1980s. Entanglements in and impingements on pound net leaders have
been documented in leaders with as small as 8 inch (20.3 cm) stretched
mesh and in leaders with stringers. Impingements occur when the sea
turtles are held against the net by the current, which could happen
with any mesh size (i.e., on leaders smaller than 8 inches (20.3 cm)
stretched mesh) in areas where impingements were previously documented
(e.g., the southern portion of the Eastern shore, where currents appear
to be strong). At this time, NMFS cannot determine the current strength
that results in impingements, but available data show that impingements
have only occurred in certain areas, locations where observer reports
and anecdotal information suggest currents are ``strong''. During 2003
monitoring efforts, there were few active pound nets found in the
southern Chesapeake Bay outside the Eastern shore and Mobjack Bay (in
the Western Chesapeake Bay) areas. The area where leaders would be
prohibited was defined to exclude those pound nets in locations where
sea turtles have never been found entangled or impinged, despite
monitoring efforts. To prevent entanglements and impingements (leading
to the potential subsequent drowning of sea turtles), NMFS proposes to
prohibit all pound net leaders in a portion of the southern Chesapeake
Bay.
While there have not been any documented entanglements or
impingements outside the southern Chesapeake Bay area where all pound
net leaders would be prohibited, NMFS is proposing to restrict leader
mesh size in the remainder of the Virginia Chesapeake Bay to less than
8 inches (20.3 cm) stretched mesh and prohibit the use of stringers,
because the best available information shows that sea turtles have been
entangled in pound net leaders with stretched mesh 8 inches (20.3 cm)
and greater and in leaders with stringers. Given that gillnets with
less than 8 inches (20.3 cm) stretched mesh have been found to entangle
sea turtles (Gearhart, 2002), there is the possibility that
entanglements in leader mesh smaller than 8 inches (20.3 cm) stretched
mesh could occur. However, given the differences between gillnet gear
and pound net leaders (e.g., monofilament versus multifilament
material; drift, set, and runaround versus fixed stationary gear;
gilling vs. herding fishing method), the lack of reported entanglements
in pound net leaders with stretched mesh less than 8 inches (20.3 cm),
and the lack of reported impingements in the area in which leader mesh
size would be restricted, NMFS believes that allowing the use of
leaders but restricting the stretched mesh size to less than 8 inches
(20.3 cm) is protective of sea turtles. NMFS does not expect sea turtle
impingements on pound net leaders to occur outside the leader
prohibited area given the lack of observed impingements on pound net
leaders, which appears to be related to geographical location and
current strength. No sea turtles have been found entangled in or
impinged on the pound or heart of pound net gear to date, and as such,
the use of those components of the pound net gear is not restricted.
From 1994 to 2003, the average date of the first reported stranding
in Virginia was May 13. However, sea turtle mortality would have
occurred before the animals stranded on Virginia beaches. In order for
the proposed pound net restrictions to reduce sea turtle interactions
with pound net leaders, the proposed measures should go into effect at
least one week prior to the stranding commencement date, or on May 6
each year. Implementing restrictions on this date would ensure
protective measures would be in place at the time when sea turtles are
expected to be in the Chesapeake Bay and are becoming vulnerable to
mortality sources. Note that this is two days earlier than the date of
the restrictions enacted in the 2002 interim final rule, as the date
was modified based upon updated stranding information. Additionally,
water temperature data support implementation of the proposed measures
on May 6. Mansfield et al. (2001) and Mansfield and Musick (2003) state
that analyses by the Virginia Institute of Marine Science have
estimated that sea turtles migrate into the Chesapeake Bay when water
temperatures warm to approximately 16 to 18 C. However,
sea turtles do frequent waters as cool as 11 C (Epperly
et al., 1995). From 1999 to 2003, the average water temperature on May
6 at the NOAA National Ocean Service Kiptopeke, Virginia station was
15.7 C, with average water temperatures increasing to
16.3 C on May 7 and 17.1 C on May 8. An
additional analysis conducted by the NMFS Southeast Fisheries Science
Center found that in week 18 (April 30 to May 6) and week 19 (May 7 to
May 13), approximately 85 percent and 90 percent, respectively, of the
area encompassing the mouth of the Chesapeake Bay (from the COLREGS
line to the 20 m (65.6 ft) depth contour) contained sea surface
temperatures of 11 C and warmer (NMFS, unpub. data,
2003). This indicates that water temperatures around the mouth of the
Chesapeake Bay are within sea turtles' preferred temperature range in
early May and, therefore, supports the effective date of the proposed
regulations.
A previous study in 1983 and 1984 found that sea turtle
entanglements in pound net gear increased slowly until early June, then
increased sharply and reached a plateau by late June, with few
entanglements occurring after June (Bellmund et al., 1987). Since the
early 1980s, there has not been a directed pound net monitoring effort
from mid-June to July, but monitoring for sea turtle strandings has
continued during this time frame. As mentioned, typically the peak of
Virginia strandings has been from mid-May to mid-June. However,
strandings data show that the peak can occur earlier and later. For
instance, in 2003, the stranding peak occurred during the last two
weeks of June and strandings remained consistent through the second
week of July (e.g., 48 sea turtles stranded from July 1-15, 2003). The
2003 stranding peak was 10-15 days later than in 2001 and 2002 (Swingle
and Barco, 2003). Given that sea turtle presence in the Chesapeake Bay
is dependent upon water temperature, which makes the stranding peak
somewhat variable, it is important to ensure sea turtles are protected
during the period of apparent vulnerability (as indicated by elevated
strandings). While there is some concern that entanglements could
continue until the end of July or throughout the sea turtle residency
[[Page 5815]]
period in the Chesapeake Bay, based upon the available data on sea
turtle entanglements, impingements, and stranding patterns, the
greatest potential for sea turtles to interact with pound net leaders
would occur during May and June, and extend into the first half of
July.
The time frame of the 2002 interim final rule extended until June
30. This end date was based on the previous Bellmund et al. (1987)
study and the historical stranding patterns, showing that documented
sea turtle entanglements and strandings, respectively, taper off at the
end of June. The 2002 interim final rule also contained a framework
mechanism that enabled NMFS to extend the regulations for up to 30
days, but that measure was not included in this proposed action due to
difficulties experienced with enacting regulations on a real time
basis. Given the variability in the stranding peak, the elimination of
the framework mechanism, and the need to be protective of these listed
species, the proposed measures would extend to July 15. Implementation
of the proposed measures during this time period is expected to prevent
sea turtle entanglement in and impingement on pound net leaders in the
spring. Note that NMFS is seeking public comments not only on the
measures included in this proposed rule (e.g., the closure to the use
of all pound net leaders, its geographical extent, the restrictions on
leader mesh size and stringers, and their geographical extent), but
also on the suitability of the time frame of the proposed measures.
NMFS will consider comments on those topics as well as new developments
in the scientific information base during the preparation of the final
rule for this action.
NMFS plans to continue analyzing the potential natural and
anthropogenic mortality sources in Virginia inshore, nearshore, and
offshore waters. As part of this larger initiative, NMFS intends to
continue to closely monitor sea turtle stranding levels and other
fisheries active in the Chesapeake Bay and nearshore and offshore
Virginia waters. Further, NMFS is beginning to implement a coordinated
research program with pound net industry participants and other
interested parties to develop and test pound net leader modifications
with the goal of eliminating or reducing sea turtle interactions while
retaining an acceptable level of fish catch. Additionally, in the near
future, NMFS plans to holistically evaluate the impacts of pound nets
(as well as other fishing gear types) on sea turtles throughout the
Atlantic and Gulf of Mexico, as part of the Strategy for Sea Turtle
Conservation and Recovery in Relation to Atlantic Ocean and Gulf of
Mexico Fisheries (NMFS 2001).
The year-round reporting and monitoring requirements for this
fishery established by the 2002 interim final rule remain in effect.
For instance, all Virginia pound net fishermen are still required to
report all sea turtle interactions (e.g., dead or alive; entangled,
impinged, or floated into their net) in any part of their pound net
gear (e.g., pound, heart, or leader) to NMFS within 24 hours of
returning from the trip in which the take was documented. To date, NMFS
has not received any reports from fishermen of sea turtles in their
pound net leaders, but NMFS observers have documented these
interactions. In 2003, several live sea turtle captures in pounds were
reported to NMFS. Note that this action would change the telephone
number to which to report sea turtle interactions from the telephone
number previously included in the 2002 interim final rule.
NMFS is also proposing to modify the titles of adjacent sections of
regulatory text for sea turtles and fishery interactions, in order to
make the appropriate sections of regulatory text more easily
identifiable to readers.
Classification
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS has prepared an initial regulatory flexibility analysis that
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered, and the legal basis for this action are contained at the
beginning of the preamble and in the SUMMARY section. A summary of the
analysis follows:
The fishery affected by this proposed rule is the Virginia pound
net fishery in the Chesapeake Bay. The proposed action prohibits all
pound net leaders in a portion of the southern Chesapeake Bay, and
prohibits leaders with stretched mesh greater than or equal to 8 inches
(20.3 cm) and leaders with stringers in the remainder of the Virginia
Chesapeake Bay, from May 6 to July 15 each year. Non-preferred
alternative 1 is the same as the proposed action, but the time period
of the restrictions is from May 6 to June 30. Non-preferred alternative
2 prohibits pound net leaders with 8 inches (20.3 cm) and greater
stretched mesh, as well as leaders with stringers, in the Virginia
Chesapeake Bay from May 6 to July 15. Non-preferred alternative 3 is
the same as the proposed action, but the pound and heart, in addition
to the leader, must also be removed in a portion of the southern
Chesapeake Bay. Non-preferred alternative 4 prohibits all pound net
leaders from May 6 to July 15 in the Virginia Chesapeake Bay. Finally,
in addition to the mesh size restrictions in a portion of the Virginia
Chesapeake Bay, non-preferred alternative 5 modifies the pound net
leader configuration in a portion of the southern Chesapeake Bay (i.e.,
the area where all leaders are proposed to be prohibited in the
proposed action) so that the mesh height is restricted to one-third the
depth of the water, the mesh must be less than 8 inches (20.3 cm) and
held with ropes 3/8 inches (0.95 cm) or greater in diameter strung
vertically a minimum of every 2 feet (61 cm) and attached to a top
line.
According to the 2002 VMRC data, there are 31 harvesters actively
fishing pound nets from May 6 to July 15, with 10 harvesters located in
the lower portion of the Virginia Chesapeake Bay and 21 harvesters
located in the upper portion of the Virginia Chesapeake Bay. These 31
harvesters fish approximately 40 pound nets in the upper portion of the
Virginia Chesapeake Bay (=21 harvesters x 1.9 pound nets/harvester) and
30 pound nets in the lower portion of the Virginia Chesapeake Bay (=10
harvesters x 3.0 pound nets/harvester). Based on 2000 to 2002 data,
annual landings per harvester were 280,996 pounds (127,457 kg) in the
upper portion of the Virginia Chesapeake Bay and 257,491 pounds
(116,795 kg) in the lower portion of the Virginia Chesapeake Bay.
Annual revenues per harvester were $64,483 and $105,298 in the upper
and lower region, respectively. From May 6 to July 15, landings per
harvester were 96,946 pounds (43,973 kg) in the upper region and 95,380
pounds (43,263 kg) in the lower region. Estimated revenues per
harvester were $18,102 and $40,474 in the upper and lower region,
respectively.
Of the 31 harvesters, 45 percent of the harvesters (=[4 located in
the upper region +10 located in the lower region]/31 total harvesters)
fishing from May 6 to July 15 would be affected by this proposed
action. Approximately 34 pound nets in total would be affected by this
proposed action, with 4 in the upper portion of the Virginia Chesapeake
Bay and 30 in the lower portion of the Virginia Chesapeake Bay.
In the upper portion of the Virginia Chesapeake Bay, two potential
responses to the leader mesh size restrictions would be either choosing
to not fish or switching to a smaller leader
[[Page 5816]]
mesh size during the restricted period. If a harvester chooses not to
fish, their revenues decrease by 17.1 percent, since they incur revenue
losses and the cost of removing their gear. If a harvester switches to
a smaller mesh leader, his or her revenues would be reduced by 8.4
percent. For purposes of this analysis, we assumed the harvester will
modify their gear since they want to minimize their economic loss.
Therefore, in the upper bay region, annual revenues may be reduced by
8.4 percent per harvester under the proposed action. In the upper bay
region, five of the six alternatives, not counting the ``no action''
alternative, are the same. The proposed action and non-preferred
alternatives 1, 2, 3, and 5 require the leader mesh to be less than 8
inches (20.3 cm). As such, the impacts of those non-preferred
alternatives would be the same as those for the proposed action in the
upper bay area; annual revenues would be reduced by a low of 8.4
percent per harvester and 4 harvesters would be affected. Under non-
preferred alternative 4, all leaders must be removed from the Virginia
Chesapeake Bay. This alternative impacts all 21 harvesters in the upper
region, and annual revenues per harvester would be reduced by 33.5
percent.
In the lower portion of the Virginia Chesapeake Bay where all
leaders are prohibited under the proposed action, management actions
vary between alternatives. Under all of the alternatives, all 10
harvesters would be impacted. With the proposed action, annual revenues
per harvester would be reduced by a high of 43.2 percent. The proposed
action and non-preferred alternative 4 are the same, and annual
revenues per harvester would be reduced by 43.2 percent. The economic
impact under non-preferred alternative 1 would be less compared to the
proposed action (34.5 percent reduction in annual revenues versus 43.2
percent), because the restricted time period is shorter. The impact
under the non-preferred alternative 3 would be greater than the
proposed action (50.3 percent reduction in annual revenues versus 43.2
percent), because additional labor costs are incurred to remove the
heart and pound in addition to the leader. Reductions in annual
revenues per harvester would be less under non-preferred alternatives 2
and 5 in comparison to the proposed action, since these non-preferred
alternatives allow a harvester to modify their gear and continue to
fish. In the lower bay area, the non-preferred alternative 2 would
reduce annual revenues per harvester by 8.6 percent to 12.1 percent,
depending on how many nets they set. Under non-preferred alternative 5,
annual revenues per harvester would be reduced by 12.1 percent. Taking
no action would not have economic consequences, at least in the short
term.
Annual industry revenues are $2.6 million for the pound net
fishery. Under the proposed action, industry revenues would be reduced
by 18.3 percent (=$0.476M/$2.6M). Under non-preferred alternatives 1,
2, 3, and 5, industry revenues would be reduced by 14.8 percent, 4.9
percent, 21.2 percent, and 5.8 percent, respectively. With the
preceding five alternatives, 14 of 31 harvesters would be affected by
the management actions. Under non-preferred alternative 4, all
harvesters would be affected and forgone industry revenues would be
reduced by 34.9 percent. Again, these numbers assume fishermen will
switch to a smaller mesh leader and continue to fish in those areas
with leader mesh size restrictions, instead of removing their leaders
entirely.
This action does not proposed new reporting or record keeping
requirements.
This proposed rule does not duplicate, overlap or conflict with
other Federal rules.
Authority: 16 U.S.C. 1531, et seq.
February 2, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Part 223
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 50 CFR part 223 is
proposed to be amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. In Sec. 223.205, paragraph (b)(15) is revised to read as
follows:
Sec. 223.205 Sea turtles.
* * * * *
(b) * * *
(15) Fail to comply with the restrictions set forth in Sec.
223.206(d)(9) regarding pound net leaders; or
* * * * *
2. In Sec. 223.206, paragraph (d) (2)(iv) is removed; (d)
introductory text and (d)(2) paragraph heading are revised; and
paragraph (d)(9) is added to read as follows:
Sec. 223.206 Exemptions to prohibitions relating to sea turtles.
* * * * *
(d) Exception for incidental taking. The prohibitions against
taking in Sec. 223.205(a) do not apply to the incidental take of any
member of a threatened species of sea turtle (i.e., a take not directed
towards such member) during fishing or scientific research activities,
to the extent that those involved are in compliance with all applicable
requirements of paragraphs (d)(1) through (d)(9) of this section, or in
compliance with the terms and conditions of an incidental take permit
issued pursuant to paragraph (a)(2) of this section.
* * * * *
(2) Gear requirements for trawlers-* * *
* * * * *
(d) * * *
(9) Restrictions applicable to pound nets in Virginia-(i) Area
closed to use of pound net leaders. During the time period of May 6
through July 15 each year, any pound net leader in the Virginia waters
of the mainstem Chesapeake Bay, south of 37 19.0' N.
lat. and west of 76 13.0' W. long., and all waters south
of 37 13.0' N. lat. to the Chesapeake Bay Bridge Tunnel
(extending from approximately 37 05' N. lat.,
75 59' W. long. to 36 55' N. lat.,
76 08' W. long.) at the mouth of the Chesapeake Bay, and
the portion of the James River downstream of the Hampton Roads Bridge
Tunnel (I-64; approximately 36 59.55' N. lat.,
76 18.64' W. long.) and the York River downstream of the
Coleman Memorial Bridge (Route 17; approximately 37
14.55' N. lat, 76 30.40' W. long.) must be removed from
the water so that no part of the leader contacts the water. All pound
net leaders must be removed from the waters described in this
subparagraph prior to May 6 and may not be reset until July 16.
(ii) Area with pound net leader mesh size restrictions. During the
time period of May 6 to July 15 each year, any pound net leader in the
Virginia waters of the Chesapeake Bay outside the area described in
(i), extending to the Maryland-Virginia State line (approximately
37 55' N. lat., 75 55' W. long.) and the
Rappahannock River downstream of the Robert Opie Norris Jr. Bridge
(Route 3; approximately 37 37.44' N. lat,
76 25.40' W. long.), and from the Chesapeake Bay Bridge
Tunnel (extending from approximately 37 05' N. lat.,
75 59' W. long. to 36 55' N. lat.,
76 08' W. long.) to the COLREGS line at the mouth of the
Chesapeake Bay, must have only mesh size less than 8
[[Page 5817]]
inches (20.3 cm) stretched mesh and may not employ stringers. Any pound
net leader with stretched mesh measuring 8 inches (20.3 cm) or greater
or any pound net leader with stringers must be removed from the waters
described in this subparagraph prior to May 6 and may not be reset
until July 16.
(iii) Reporting requirement. At any time during the year, if a
turtle is taken live and uninjured in a pound net operation, in the
pound or in the leader, the operator of vessel must report the incident
to the NMFS Northeast Regional Office, (978) 281-9328 or fax (978) 281-
9394, within 24 hours of returning from the trip in which the
incidental take was discovered.
(iv) Monitoring. Owners or operators of pound net fishing
operations must allow access to the pound net gear so it may be
observed by a NMFS-approved observer if requested by the Northeast
Regional Administrator. All NMFS-approved observers will report any
violations of this section, or other applicable regulations and laws.
Information collected by observers may be used for law enforcement
purposes.
[FR Doc. 04-2633 Filed 2-5-04; 8:45 am]
BILLING CODE 3510-22-S