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Sea Turtle Conservation; Modification to Fishing Activities
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: June 23, 2006 (Volume 71, Number 121)]
[Rules and Regulations]
[Page 36024-36033]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn06-12]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No. 060405097-6161-02; I.D. 033006E]
RIN 0648-AU10
Sea Turtle Conservation; Modification to Fishing Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is requiring that any offshore pound net leader in the
Virginia waters of the mainstem Chesapeake Bay, south of 37[deg]19.0'
N. lat. and west of 76[deg]13.0' W. long., and all waters south of
37[deg]13.0' N. lat. to the Chesapeake Bay Bridge Tunnel at the mouth
of the Chesapeake Bay, and the James and York Rivers downstream of the
first bridge in each tributary, during the period of May 6 through July
15, meet the definition of a modified pound net leader. Without this
final rule, existing regulations would continue to prohibit all
offshore pound net leaders in that area during that time frame. An
offshore pound net leader refers to a leader with the inland end set
greater than 10 horizontal feet (3 m) from the mean low water line.
While restrictions promulgated in 2004 on pound net leaders in the
Virginia waters of the Chesapeake Bay outside the aforementioned area
remain in effect, this final rule creates an exception to those
restrictions by allowing the use of modified pound net leaders in this
area. This action, taken under the Endangered Species Act of 1973
(ESA), responds to new information generated by gear research. It is
intended to conserve sea turtles listed as threatened under the ESA and
to help enforce the provisions of the ESA, including the provisions
against takes of endangered species, while enabling fishermen to use
leaders, an important component of pound net gear, during the regulated
period.
DATES: Effective June 23, 2006.
FOR FURTHER INFORMATION CONTACT: Pasquale Scida (ph. 978-281-9208, fax
978-281-9394), or Therese Conant (ph. 301-713-2322, fax 301-427-2522).
SUPPLEMENTARY INFORMATION:
Background
NMFS issued a final rule on May 5, 2004 (69 FR 24997), which
prohibited the use of offshore pound net leaders in
[[Page 36025]]
a portion of the Virginia Chesapeake Bay, which is renamed in this
final rule ``Pound Net Regulated Area I'', from May 6 through July 15
each year. An offshore pound net leader refers to a leader with the
inland end set greater than 10 horizontal feet (3 m) from the mean low
water line. The 2004 rule also prohibited the use of 12 inches (30.5
cm) and greater stretched mesh and stringers in nearshore pound net
leaders in Pound Net Regulated Area I and all pound net leaders
employed in the remainder of the Virginia Chesapeake Bay, which is
renamed in this final rule ``Pound Net Regulated Area II'', from May 6
through July 15. The 2004 rule contained other provisions that are not
relevant to this action. For complete details and justification for the
2004 rule, see 69 FR 24997.
In 2004 and 2005, NMFS implemented a coordinated research program
with pound net industry participants and other interested parties to
develop and test a modified pound net leader design with the goal of
eliminating or reducing sea turtle interactions while retaining an
acceptable level of fish catch. The modified pound net leader design
used in the experiment consisted of a combination of mesh and stiff
vertical lines. The mesh size was equal to or less than 8 inches (20.3
cm) and positioned at a depth that was no more than one-third the depth
of the water. The vertical lines were \5/16\ inch (0.8 cm) in diameter
strung vertically at a minimum of every 2 feet (61 cm) and attached to
a top line. The vertical lines rose from the top of the mesh up to a
top line to which they were attached. In 2005, hard lay line was used
for the vertical lines in order to make them more stiff. The hard lay
lines used in 2005 were made of \5/16\ inch (0.8 cm) sinking line, and
were polyester-wrapped around Polysteel, which is a blend of
polypropylene and polyethylene.
During the 2-year study, the modified leader was found effective in
reducing sea turtle interactions as compared to the unmodified leader.
The final results of the 2004 study found that out of eight turtles
impinged on or entangled in pound net leaders, seven were in an
unmodified leader. One leatherback turtle was found entangled in the
vertical lines of a modified leader. In response to the leatherback
entanglement, the gear was further modified by increasing the stiffness
of the vertical lines for the 2005 experiment. In 2005, 15 turtles
entangled in or impinged on the leaders of unmodified leaders, and no
turtles were found entangled in or impinged on modified leaders.
Furthermore, results of the finfish catch comparison suggest that the
modified leader caught similar quantities and size compositions as the
unmodified leader. Although, in 2005 the portion of the experiment with
both modified and unmodified leaders was of shorter duration than the
portion of the experiment with modified leaders, NMFS believes that the
results provide sufficient new information and justification to require
the use of the modified leader in certain areas. Specifically, the
experiment supports requiring modified leaders in a part of the
Virginia Chesapeake Bay where pound net leaders pose a greater risk to
sea turtles while allowing their use in an area of the Virginia
Chesapeake Bay where pound net leaders seem to pose less risk.
This action provides for the conservation of threatened sea turtles
and helps enforce the provisions of the ESA, including the prohibition
on takes of endangered species, by reducing incidental take in the
Virginia pound net fishery during the spring, while enabling fishermen
to use leaders during the regulated period. Additional details
concerning sea turtle and pound net interactions, the potential impact
of pound net leaders on sea turtles, the modified pound net leader
experiment, and justification for pound net leader regulations may be
found in the preamble to the 2004 proposed rule (69 FR 5810, February
6, 2004) and the 2006 proposed rule (71 FR 19675, April 17, 2006).
Approved Measures
NMFS changes the titles of the regulated areas defined in the 2004
rule, while retaining the previously established boundaries.
Pound Net Regulated Area I means Virginia waters of the mainstem
Chesapeake Bay, south of 37[deg]19.0' N. lat. and west of 76[deg]13.0'
W. long., and all waters south of 37[deg]13.0' N. lat. to the
Chesapeake Bay Bridge Tunnel (extending from approximately 37[deg]05'
N. lat., 75[deg]59' W. long. to 36[deg]55' N. lat., 76[deg]08' W.
long.) at the mouth of the Chesapeake Bay, and the portion of the James
River downstream of the Hampton Roads Bridge Tunnel (I-64;
approximately 36[deg]59.55' N. lat., 76[deg]18.64' W. long.) and the
York River downstream of the Coleman Memorial Bridge (Route 17;
approximately 37[deg]14.55' N. lat, 76[deg]30.40' W. long.).
Pound Net Regulated Area II means Virginia waters of the Chesapeake
Bay outside of Regulated Area I defined above, extending to the
Maryland-Virginia State line (approximately 37[deg]55' N. lat.,
75[deg]55' W. long.), the Great Wicomico River downstream of the Jessie
Dupont Memorial Highway Bridge (Route 200; approximately 37[deg]50.84'
N. lat, 76[deg]22.09' W. long.), the Rappahannock River downstream of
the Robert Opie Norris Jr. Bridge (Route 3; approximately 37[deg]37.44'
N. lat, 76[deg]25.40' W. long.), and the Piankatank River downstream of
the Route 3 Bridge (approximately 37[deg]30.62' N. lat, 76[deg]25.19'
W. long.) to the COLREGS line at the mouth of the Chesapeake Bay.
NMFS requires that from 12:01 a.m. local time on May 6 through
11:59 p.m. local time on July 15 each year, any offshore pound net
leader set in Pound Net Regulated Area I meets the definition of a
modified pound net leader. Offshore pound nets are defined as those
nets set with the inland end of the leader greater than 10 horizontal
feet (3 m) from the mean low water line. A modified pound net leader is
defined as a pound net leader that is affixed to or resting on the sea
floor and made of a lower portion of mesh and an upper portion of only
vertical lines such that--(a) the mesh size is equal to or less than 8
inches (20.3 cm) stretched mesh; (b) at any particular point along the
leader the height of the mesh from the seafloor to the top of the mesh
must be no more than one-third the depth of the water at mean lower low
water directly above that particular point; (c) the mesh is held in
place by vertical lines that extend from the top of the mesh up to a
top line, which is a line that forms the uppermost part of the pound
net leader; (d) the vertical lines are equal to or greater than \5/16\
inch (0.8 cm) in diameter and strung vertically at a minimum of every 2
feet (61 cm); and (e) the vertical lines are hard lay lines with a
level of stiffness equivalent to the stiffness of a \5/16\ inch (0.8
cm) diameter line composed of polyester wrapped around a blend of
polypropylene and polyethylene and containing approximately 42 visible
twists of strands per foot of line.
Due to the variations in manufacturing hard lay line in the cordage
industry, NMFS cannot provide a specific definition of hard lay line at
this time. Hard lay is a technical term used by the cordage industry to
describe line that is purposefully made to be stiff. Hard lay line is
made stiff by twisting the line material. Similar materials may be used
in soft lay line, but the tightness of the twists provides the
rigidity. These twists are added during three processes in the
construction of the line. They are added to the fibers, which are
twisted into yarns; to the yarns, which are twisted into strands; and
to strands, which are twisted into line. NMFS acknowledges that there
may be some variation in what is characterized as
[[Page 36026]]
hard lay lines, depending on how the manufacturer makes the line, but
the characteristics of hard lay line in the water should be similar.
The lines used in the 2005 experiment met the characteristics of hard
lay lines. The vertical hard lay lines used in the experiment were made
of polyester wrapped around Polysteel, which is a blend of
polypropylene and polyethylene, and were coated with copper paint to
prevent fouling, which also added a small amount of stiffness to the
lines. The diameter of the lines was \5/16\ inch (0.8 cm) and contained
approximately 42 twists of the strands per foot of line. As explained
above, twists can be added to fibers, yarns, and strands during the
manufacturing process, so a different number of twists at different
stages in the process may achieve an equivalent stiffness to the 42
twists of the strands per foot of line used in the 2005 experiment. The
vertical lines used in the 2005 experiment were not easily bent and
remained stiff in the water regardless of the submergence duration. It
is important that the hard lay lines used in the modified leaders
perform the same way as those used in the 2005 experiment, in order to
reduce the risk of sea turtle entanglement in pound net leaders.
Fishermen are afforded the flexibility to use other types of hard lay
line as long as it performs the same way as the line in the 2005
experiment and is inflexible and remains stiff regardless of soak time.
Existing mesh size and stringer restrictions on nearshore pound net
leaders in Pound Net Regulated Area I and all pound net leaders in
Pound Net Regulated Area II remain in place for the period from 12:01
a.m. local time on May 6 through 11:59 p.m. on July 15 each year.
However, this rule creates an exception to those restrictions by
allowing the use of modified pound net leaders during that period in
nearshore pound net leaders in Pound Net Regulated Area I and all pound
net leaders in Pound Net Regulated Area II. The year-round reporting
and monitoring requirements for this fishery and the framework
mechanism under the existing regulations also remain in effect.
Comments and Responses
On April 17, 2006, NMFS published a proposed rule (71 FR 19675)
that would require that all offshore pound net leaders set in Pound Net
Regulated Area I use a modified pound net leader. Comments on this
proposed action were requested through May 2, 2006. Eight comment
letters from seven different individuals or organizations were received
during the public comment period for the proposed rule. Six comment
letters supported the action, while no letters opposed the modified
leader requirement. Two comment letters were neither in favor nor
against the proposed action. A public hearing was also held in Virginia
Beach, Virginia on April 26, 2006, at which five individuals provided
oral comments. None of the oral comments were in opposition to the
proposed action. NMFS considered these comments on the proposed rule as
part of its decision making process. A complete summary of the comments
and NMFS' responses, grouped according to general subject matter in no
particular order, is provided here.
General Comments
Comment 1: One commenter stated that NMFS does not recognize the
impact of strong tidal currents on the risk of sea turtle impingements
in pound net leaders set Pound Net Regulated Area I and in nearshore
pound net leaders. The commenter recommended that the importance of
water current be addressed by refining the definition of ``nearshore''
and ``offshore'' pound nets to ``shoal water'' and ``deep water'' pound
nets, respectively. The commenter suggested that the effect of water
depth on current strength is what drives the risk of sea turtle
impingements, not just distance from shore, and recommended that the
following text be added to the definition of a nearshore pound net:
``or the pound net trap head be located in a low water depth of 18 feet
or less.''
Response: NMFS has monitored pound nets since 2002 and observed sea
turtles impinged on nets with varying current strengths. NMFS has found
that there are differences between nearshore and offshore nets with
respect to the risk to turtles based upon the location of observed
impingements and entanglements. However, NMFS recognizes distance from
shore is not the only factor that is associated with the risk of sea
turtle impingements. In the environmental assessment (EA) prepared for
this action, NMFS acknowledges that pound net location is used as a
proxy for environmental factors, including current, water depth,
temperature, tides, and sea turtle migration patterns, that may also
influence the risk of sea turtle interactions with pound net leaders.
Generally, areas close to shore are often shallower and have less
current than those areas farther from shore, but exceptions may occur
because environmental conditions vary locally. Recognizing that
geographic location, which may be a proxy for other environmental
factors, plays an important role in the risk of sea turtle entanglement
in and impingement on pound net leaders, NMFS does not believe that
sufficient evidence is available at this time to redefine nearshore and
offshore nets based upon only depth characteristics as a proxy for
current strength, generally, or upon a pound net trap head depth of 18
feet, specifically. Distance from the mean low water line was used as a
common characteristic of those nets considered nearshore, and,
therefore, less of a threat of sea turtle entanglement and impingement.
The geographic area of the required leader modification in offshore
nets in Pound Net Regulated Area I is designed not only to encompass
the total area with the most documented takes of sea turtles to prevent
turtle entanglements and impingements in pound net leaders, but also to
reflect the area in which entanglements and impingements are expected
to occur even if a sea turtle interaction has not been observed at
particular pound net sites.
Comment 2: One commenter reminded NMFS that the framework provision
in the regulations remains intact and that he has challenged this
provision in court.
Response: NMFS is aware that the commenter is currently challenging
the July 2003 application of the framework provision that was part of
the 2002 final rule. The existing framework provision, which was
established by the 2004 pound net rule, has not been challenged. This
rule does not affect the existing framework provision. NMFS has
responded to the commenter's argument in the context of the litigation
and awaits the court's decision.
Comment 3: One commenter noted that the cause and effect of sea
turtle impingements on pound net leaders remain largely unknown, and
that sea turtle impingements may occur in other fishing gear.
Response: Impingement on a pound net leader refers to a sea turtle
being held against the leader by the current, apparently unable to
release itself under its own ability. It is possible that a sea turtle
in a weakened state may become impinged on a leader by a slower current
than that which may impinge a strong, healthy sea turtle. While NMFS
does not have data that identifies how strong a current must be to
impinge a turtle of a given condition, NMFS does know that currents
lead to impingements of sea turtles against pound net leaders. For
instance, since 2002, 18 sea turtles (including 2 dead) have been found
impinged on pound
[[Page 36027]]
net leaders with varying current strength.
NMFS believes an impingement may compromise a sea turtle and result
in mortality. Based on the observations of impinged sea turtles on
pound net leaders during NMFS monitoring efforts and the modified
leader experiment, if an animal was impinged on a leader by the current
with its flippers inactive, NMFS believes that without any human
intervention the turtle could either swim away alive when slack tide
occurred, become entangled in the leader mesh when trying to free
itself, or drift away dead if it drowned prior to slack tide. In 2002
and 2003, six observed live impingements occurred near the surface, but
seven turtles were found underwater, unable to reach the surface to
breathe. Based on information on forcibly submerged sea turtles, it is
likely that if a turtle could not breathe from the position where it
was impinged on the net, it would have a low likelihood of survival if
it remained on the net for longer than approximately one hour, even if
it were a healthy turtle before becoming impinged (Henwood and Stuntz,
1987; Lutcavage and Lutz, 1997).
If fishing gear of any kind is fixed in the water column and a sea
turtle comes in contact with the gear, has one or both of its flippers
pinned against the net, and is unable to swim parallel to or off the
gear, it is possible that a sea turtle may become impinged on the
fishing gear. Impingement may occur on other types of fishing gear
besides pound net leaders. However, NMFS has no data, observations, or
anecdotal reports in other fisheries to suggest this occurs. Even if
NMFS had information indicating that sea turtles become impinged on
other types of gears, NMFS has the authority to regulate pound net gear
as one source of impingement.
Comments in Support of Alternatives Other Than the Proposed Alternative
Comment 4: Two commenters supported Non-Preferred Alternative 2
(NPA 2; e.g., required use of the modified leaders in both Pound Net
Regulated Areas I and II) because if a pound net leader is located in
an area where the risk of take exists, it seems reasonable to conclude
that the modified leader design would reduce the takes, regardless of
the location of the pound net leader (that is, relative to Pound Net
Regulated Areas I and II). One commenter suggested that pound net catch
and turtle interactions should be monitored to determine the level of
take by unmodified leaders in Pound Net Regulated Area II. One
commenter noted that the lack of observed takes and strandings in parts
of Pound Net Regulated Area II may be a function of lack of observer
effort, not actual lack of sea turtle mortality, and that stranding
surveys should be implemented in this area.
Response: In the proposed rule, NMFS put forward for consideration
the use of modified leaders in offshore nets in Pound Net Regulated
Area I because that was where the gear was tested, where the most
observed instances of sea turtle entanglements and impingements
occurred, and where NMFS believes the risk of entanglement and
impingement of sea turtles is greater based on observer data and on
using geographic location as a proxy for the environmental conditions
that contribute to entanglements and impingements. The modified leader
was designed to provide a benefit to sea turtles over traditional pound
net leaders. NMFS agrees that the modified leader should provide a
benefit to sea turtles outside the tested area because the modified
leader design reduces the amount of mesh in the water column, the
vertical lines are spaced to allow sea turtles to pass through more
easily, and the vertical lines are stiff to reduce the risk of
entanglement. In this final rule, NMFS has included a change from the
proposed rule, in that modified leaders are allowed to be fished in
nearshore pound net leaders in Pound Net Regulated Area I and in both
nearshore and offshore leaders in Pound Net Regulated Area II. NMFS is
not requiring the use of modified leaders in those areas, as sea turtle
impingements on and entanglements in pound net leaders have been
observed to be minimal and mesh size and stringer restrictions remain
in place. See section Changes From Proposed Rule for more information
on allowing the use of modified leaders in nearshore leaders and in
leaders in Pound Net Regulated Area II.
Since 2002, NMFS has observed pound net leaders in Pound Net
Regulated Area II and maintained a dedicated survey effort in this area
during 2004 and 2005. In Pound Net Regulated Area II, one sea turtle
interaction was observed in an offshore pound net leader in 2004
(offshore Lynnhaven, Virginia). NMFS acknowledges that after several
sea turtle takes were observed in a particular area (e.g., the southern
portion of the Eastern shore and Western Bay), more observer effort was
concentrated in that area. NMFS does not have any additional plans to
monitor the pound net catch and potential sea turtle interactions in
Pound Net Regulated Area II at this time. Furthermore, the Sea Turtle
Stranding and Salvage Network (STSSN) does collect data from Pound Net
Regulated Area II, and documented sea turtle strandings in this area
are historically lower than in the southern Chesapeake Bay. NMFS has
funded dedicated sea turtle stranding surveys along the southern tip of
the Eastern shore in previous years, in response to the historical high
levels of documented sea turtle strandings. It is true that more
observer effort and sea turtle stranding coverage has been allocated to
the Eastern shore in recent years, but NMFS has adequately monitored
other pound nets in other areas of the Chesapeake Bay, and the STSSN
continues to operate and respond to strandings in all areas of the
Chesapeake Bay.
Comment 5: One commenter supported NPA 3 (i.e., required use of the
modified leader for all offshore pound net leaders in Pound Net
Regulated Areas I and II) based on the historically high levels of sea
turtle take attributed to the pound net fishery. Because the proposed
action would re-open an area to the use of a modified pound net leader
that currently is closed to fishing with pound net leaders, the
increase in fishing effort should be offset by additional protection in
other geographic areas of the fishery to protect sea turtles.
Response: Despite previous monitoring efforts, only one turtle has
been observed entangled in a pound net leader in Pound Net Regulated
Area II. 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. The
boundaries of the regulated areas were determined based on a
combination of the locations of observed sea turtle entanglements in or
impingements on pound net leaders and the area in which sea turtles may
face a greater risk of entanglement in or impingement on pound net
leaders due to environmental conditions (e.g., current). Given the low
number of observations of sea turtles in pound net gear outside Pound
Net Regulated Area I and in nearshore nets, NMFS is not requiring the
use of the modified pound net leaders in Pound Net Regulated Area II,
but instead will allow its use should fishermen choose to switch their
gear. The pound net leader mesh size and stringer restrictions promulgated
in the 2004 rule remain in effect for Pound Net Regulated Area II.
Given the results of the modified leader experiment, NMFS believes
that requiring the use of the modified leader design in the offshore
areas of Pound
[[Page 36028]]
Net Regulated Area I will afford approximately the same protection to
sea turtles as the existing regulations. It is possible that sea
turtles may interact with the lower leader mesh because sea turtles in
the lower Chesapeake Bay commonly make dives of over 40 minutes during
the day (Byles, 1988; Mansfield and Musick, 2003b, 2004) and dive
depths range from approximately 13.1 ft (4 m) to 41 ft (12.5 m)
(Mansfield and Musick, 2003). However, all interactions during the 2004
and 2005 modified leader experiment were recorded in the top portion of
unmodified leaders (at depths within the top two-thirds of the depth of
mean lower low water). One turtle was found entangled in the vertical
lines of a modified leader during the 2004 experiment; no interactions
were observed in the 2005 modified leader during the experiment. As
described below, NMFS continues to believe that sea turtle interactions
with the bottom mesh are possible, but, as shown by the experiment, are
infrequent and are minimized by the leader design. As such, despite the
increase in fishing effort, allowing the modified pound net leaders in
an area previously closed to leaders is expected to provide a level of
protection to sea turtles similar to that of the current closure and
restrictions.
Comments Regarding the Modified Pound Net Leader Design
Comment 6: One commenter that participated in the modified pound
net leader experiment in 2004 and 2005 stated that he would not switch
back and forth between traditional and modified leaders, as he found
the modified leader just as effective as the traditional leader at
maintaining an acceptable level of fish catch.
Response: NMFS does not object if pound net fishermen choose to
fish with the modified pound net leader outside of the regulated time
period. There are currently no Federal pound net restrictions in place
outside of the time period of May 6 through July 15 that would prevent
the modified pound net leader from being used from July 16 through May
5. NMFS recognizes that this may alleviate some costs associated with
switching from an unmodified pound net leader to a modified pound net
leader to comply with the regulations included in this final rule.
Comment 7: One commenter noted that it is not possible for the
modified pound net leader to be one-third the depth of the water at
mean lower low water directly above that particular point because the
sea floor is contoured, and therefore creating a tapered leader would
not be possible. Furthermore, a map displaying the contour of the sea
floor is not available. The commenter also stated that if the bottom
line of the leader must traverse over an uneven sea bed, then the
bottom line, to meet the proposed requirements of a modified leader,
must be longer than the top line. This would mean that the ties on the
bottom line would have to be farther apart than the top line for the
net to be suspended perpendicular to the seafloor. This commenter
recommended that the specification of the modified pound net leader be
exactly the same as the modified pound net leader specifications used
in the 2005 experiment, as the modified leader was effective at
preventing entanglement and impingement.
Response: The modified pound net leader was designed cooperatively
with pound net fishermen, NMFS, the Virginia Institute of Marine
Science, the Virginia Marine Resources Commission, and the Virginia
Aquarium and Marine Science Center staff. It is NMFS' intent that the
properties of the modified pound net leader in the final regulations be
the same as the specifications of the leader that were tested during
the experiment. The fishermen that participated in the experiment
reported that the modified pound net leaders were tapered (wedge-
shaped) such that the depth of the mesh at any point along the leader
was never more than one-third the depth of mean low water directly
above that particular point. Note that this final rule does not require
that the mesh be exactly one-third the depth of the water, but rather
that the mesh be no more than one-third the depth of the water. In
order to achieve this, fishermen may decrease the depth of the mesh as
the water becomes shallower by either lacing it into the middle line or
cutting it. A contour map of the seafloor is not necessary to achieve
this specification. A fisherman may determine the depth of the water
along their pound net leader using a marked, weighted line as a
measuring tool. Alternatively, a simple fish finder or inexpensive
acoustic depth recorder both report bottom depth. The bottom line of
the leader may traverse over an uneven sea bed and could, therefore, be
longer than the top line. The length of the bottom line would not be
affected by the type of leader (modified versus unmodified) being fished.
Comment 8: One commenter, while acknowledging the effectiveness of
the modified pound net leader demonstrated through the experiment,
noted that it is possible that small turtles that feed on the benthos,
such as Kemp's ridleys and loggerheads, may become entangled in or
impinged on the mesh of the modified pound net leader in the lower
third of the water column in areas where the lower third of the leader
is of substantial size.
Response: NMFS agrees that there is some small, unquantifiable risk
of entanglement or impingement of sea turtles in the lower third of the
modified leader, and this risk is discussed in the EA prepared for this
action. The design of the modified leader, including the vertical lines
spaced 2 feet (0.61 m) apart, was proposed to allow sea turtles to pass
through the upper two-thirds of the leader, through the vertical lines,
without entangling in or impinging on the leader. NMFS is aware that
some turtles are known to forage on the benthos and around pound nets,
and therefore may interact with the lower leader mesh. Further, turtles
have been observed to dive to the bottom regardless of water
temperature, and loggerheads in the Chesapeake Bay have been observed
to spend up to 90 percent of time beneath the surface of the water
(Mansfield et al., 2005). Despite this information indicating that
turtles could interact with the mesh in the lower third of the modified
pound net leader, all interactions during the 2004 and 2005 experiment
were recorded in the top portion of the unmodified leaders (at depths
within the top two-thirds of the depth of mean lower low water). At
this time, data are not available to determine if turtles are likely to
become impinged or entangled upon their first contact with the pound
net leader or if, once a non-entangling interaction occurs, they
attempt to move away (in any direction) from the interaction site and
eventually become impinged or entangled after several interactions. If
the second scenario occurs, it is possible that a turtle could interact
with the bottom mesh of a modified leader in the lower water column
without becoming entangled and then move up the leader and through the
vertical lines.
NMFS recognizes that it is possible that interactions could have
occurred in the bottom one-third of leaders and were not observed
during monitoring. In 2001 and 2002, side scan sonar was used to
attempt to detect sub-surface sea turtle entanglements, but no verified
sea turtle acoustical signatures were observed during these surveys
(Mansfield et al., 2002a; Mansfield et al., 2002b). A number of factors
are thought to influence the use of side scan sonar, including weather,
sea conditions, water turbidity, the size and condition of the animal,
and the orientation of the turtle in the net. During the 2004 and 2005
experiment, side scan sonar was again used to detect subsurface sea
turtle interactions along
[[Page 36029]]
the Eastern shore. The nets were monitored twice each day, both
visually (up to the top ten feet of the net) and with sonar, using a
diver to visually inspect each suspected sonar contact (DeAlteris et
al., 2004). In 2004, two sea turtles were identified through sonar
monitoring, and five were found via visual inspection (the visually
identified sea turtles had not yet been scanned via sonar). In 2005,
sonar monitoring identified four sea turtle interactions independent of
leader removal. Because sonar was shown to be a successful method of
sea turtle detection during the experiment, NMFS believes it is
unlikely that unobserved interactions occurred in the dropped mesh
portion of the modified leaders. However, it is possible that an
interaction that did not result in a turtle being impinged or entangled
occurred as described above (i.e., the turtle interacted with bottom
mesh and then moved up the leader and through the vertical lines). If
this occurred, the relatively short duration of the interaction would
have decreased the probability of the interaction being detected by
sonar monitoring.
Comment 9: One commenter noted that the vertical lines used in the
modified leader are not without problems as demonstrated by the
drowning of one leatherback turtle during the experiment.
Response: In 2004, a dead leatherback sea turtle was found
entangled in the vertical line of the experimental leader. The necropsy
report indicated that the turtle appeared to be in good health and that
the cause of death was entanglement in the pound net leader and
drowning. Subsequent histological analysis revealed that the
leatherback suffered from ependymoma (brain tumor with possible
neurological dysfunction), pneumonia, and hepatitis (Swingle et al.,
2005). As a result of the leatherback's entanglement, a different type
of line was used for the vertical lines in the modified leader in 2005.
In 2004, the vertical line did not have a hard lay and was not painted.
In 2005, hard lay line was used, and no sea turtle interactions were
documented in the modified leaders. The line used in 2004 was flexible
enough to wrap around part of the turtle. Therefore, in 2005, the
participants in the experiment used stiffer line so that the line was
less likely to wrap around a sea turtle's head or flipper. NMFS
believes that the requirement to use hard lay line will prevent sea
turtle entanglements in the modified pound net leaders' vertical lines.
Comments on the Definition of Hard Lay Line
Comment 10: One commenter noted that Virginia watermen know what
``hard lay'' line means, implying that additional specifications in the
regulation regarding the type of vertical lines that must be used are
unnecessary.
Response: Hard lay is a technical term used by the cordage industry
to describe line that is purposefully made to be stiff. As described
previously in this final rule, hard lay refers to the tightness of the
fibers that are twisted together. Similar materials may be used in soft
lay line, but the tightness of the twists provides the rigidity. While
industry participants may be familiar with the term hard lay, it is
important to ensure the modified leader lines retain the same
properties as those used in the experiment in order to protect sea
turtles from entanglement. In a previous section, a description of the
hard lay line used in the experiment is provided.
Comment 11: One commenter stated that lines made from nylon become
soft over time, while lines constructed out of plastics will remain
rigid over time. Furthermore, every time the line is painted it becomes
stiffer.
Response: NMFS appreciates this comment in order to better
understand line characteristics.
Comments Related to Stranding Levels
Comment 12: One commenter stated that the proposed pound net
restrictions will not solve the high spring sea turtle stranding
problem in Virginia waters. Several commenters indicated that NMFS
should provide adequate observer coverage to ascertain other sources of
sea turtle mortality (particularly recreational and commercial boating
activities and fishing activities).
Response: NMFS agrees with the commenter that pound net
restrictions will not solve the high spring sea turtle problem in
Virginia waters, given that pound net leaders are not the sole source
of spring mortalities. NMFS does believe that pound nets play a role in
the annual spring stranding event, based upon observations of entangled
and impinged sea turtles on pound net leaders and the location of the
majority of sea turtle strandings. Regulating pound net leaders, a gear
type known to kill sea turtles by entangling and impinging them, is
expected to minimize the effects of one source of mortality that leads
to strandings.
Since 2001, several fisheries have been observed in Virginia with
few observed turtle takes. However, NMFS recognizes that variations in
fishery-turtle interactions may occur in any given year, and is
committed to continue monitoring the active fisheries in and around
Virginia. The NMFS 2006 monitoring program is anticipated to include
observer coverage in the Virginia/Chesapeake Bay gillnet and trawl
fisheries. At least 69 days of observer coverage are allocated for
gillnet fisheries in the Virginia Chesapeake Bay during May and June
2006. Further, NMFS scientists are evaluating the use of sonar to
detect and ascertain the extent of sea turtle interactions in
Chesapeake Bay pot gear. NMFS has developed a brochure titled ``Marine
Mammal and Sea Turtle Protection: Guidelines for Recreational
Fishermen,'' which provides information to minimize sea turtle injuries
in recreational fishing gear. NMFS also has plans to work with Virginia
organizations to institute an educational campaign aimed at reducing
sea turtle interactions with recreational fishermen and boaters.
In 2004 and 2005, NMFS funded professional necropsies and
associated lab costs on fresh dead animals in Virginia to determine the
health of a subset of stranded animals. Of the 20 sea turtles examined,
documented mortality sources included human interactions, such as
fisheries entanglements, hook ingestions, and vessel strikes, as well
as disease pathologies, pneumonia, and parasites. NMFS will continue to
fund these fresh dead professional necropsies in 2006.
NMFS will also continue to closely monitor sea turtle stranding
levels and to evaluate interactions with other mortality sources not
previously considered that may contribute to sea turtle strandings.
NMFS and the U.S. Fish and Wildlife Service (USFWS) are working to
minimize the impacts to sea turtles from other activities in addition
to fishing (e.g., habitat degradation, marine debris, dredging, water
quality, power plant impingement). Fishing activities, however, have
been recognized as one of the most significant threats to sea turtle
survival (Magnuson et al., 1990, Turtle Expert Working Group 2000).
Comment 13: One commenter noted that as sea turtle populations
recover, the number of sea turtle interactions with fishing gear will
also increase. The commenter seemed to be asking what NMFS sea turtle
program goals are.
Response: All sea turtles are listed as either endangered or
threatened under the ESA. The goals of the NMFS sea turtle program
include reducing impacts to sea turtles in order to achieve recovery of
the species. NMFS evaluates the status of sea turtles through various
[[Page 36030]]
avenues (e.g., species status reviews, ESA section 7 consultation
process) and is aware of the latest research and survey efforts that
monitor population trends. NMFS and USFWS recovery plans are available
for each sea turtle species. These recovery plans outline a number of
recovery criteria, and associated actions to achieve these criteria,
that must be met before delisting. It is possible that an increase in
sea turtle abundance would lead to more documented interactions in
fishing gear, which, in turn, may lead to additional or different
restrictions to help protect the populations. Sea turtles have not
recovered and remain in need of protection under the ESA. In the
future, NMFS will continue to evaluate sea turtle mortality sources and
consider management measures to minimize those threats.
Comment 14: One commenter stated that new information, presented at
the 26th Annual Symposium on Sea Turtle Biology and Conservation in
April of 2006, indicates that the southern subpopulation of loggerheads
has declined 29 percent over the last 17 years. The northern
subpopulation of loggerheads also appears to be declining. The
commenter provides an opinion that fisheries in the western and eastern
Atlantic may be negatively affecting loggerhead populations.
Response: Previously, the status of the northern subpopulation,
based on number of loggerhead nests, has been classified as stable or
declining (TEWG 2000). Preliminary new analysis of nesting data for 11
beaches in North Carolina, South Carolina, and Georgia shows a
declining trend of 2 percent annually over a 23-year period (1982-2005)
for the northern loggerhead subpopulation (B. Schroeder, NMFS, pers.
comm.). The status of the southern subpopulation is a bit more unclear
as the nesting data are currently under review. The southern
subpopulation of loggerheads appeared to be stable or increasing based
upon annual nesting totals from all beaches from 1989 to 1998 (TEWG
2000). NMFS is aware that a presentation at the 26th Annual Symposium
on Sea Turtle Biology and Conservation indicated that, based on an
analysis of nesting data, the southern subpopulation of loggerheads has
declined 29 percent over the last 17 years (1989-2005; A. Meylan,
Florida Fish and Wildlife Conservation Commission, pers. comm.). NMFS
continues to evaluate nesting data for loggerheads, and the Loggerhead
Recovery Plan (currently under revision) will also contain updated
population trend information.
NMFS continues to consider the impacts to listed sea turtles,
including loggerheads, and to reduce threats from known sources. NMFS
and USFWS are working to minimize the impacts to sea turtles from
activities such as nesting habitat degradation, marine debris,
dredging, and power plant impingement, but fishing activities have been
recognized as one of the most significant threats to sea turtle
survival (Magnuson et al., 1990, Turtle Expert Working Group 2000). To
respond to these threats, NMFS is comprehensively evaluating the
impacts of fishing gear types on sea turtles throughout the U.S.
Atlantic Ocean and Gulf of Mexico, as part of the Strategy for Sea
Turtle Conservation and Recovery in Relation to Atlantic Ocean and Gulf
of Mexico Fisheries (Strategy) (NMFS 2001). Based on the information
developed for the Strategy, NMFS may impose restrictions on or
modifications to other activities that adversely affect sea turtles.
NMFS will continue to monitor fishing activities in Virginia, as well
as other potential sea turtle mortality sources.
Comments Related to Economic and Social Impact Assessment
Comment 15: Several commenters expressed concern with the delay in
publishing the proposed regulations and requested emergency action to
get the regulations in place as soon as possible.
Response: NMFS has been committed to enacting regulations to
require modified leaders in a portion of the Virginia pound net fishery
as expeditiously as possible, in order to give the fishermen advance
notification and ensure measures are in place before the regulated
period begins on May 6. However, the new regulations contained in this
final rule were not enacted before the start of the fishing season this
year. NMFS recognizes that the industry begins planning for the next
fishing season in approximately December or January and is sensitive to
the industry's time constraints required to outfit their gear in
compliance with the regulations.
Changes From the Proposed Rule
Based upon public comments received and further assessment, NMFS
has determined that a modification to the measures included in the
proposed rule is warranted. Specifically, the proposed rule stated that
the existing mesh size and stringer restrictions on nearshore pound net
leaders in Pound Net Regulated Area I and on all pound net leaders in
Pound Net Regulated Area II would remain in place and are not affected
by the proposed rule. In this final rule, the mesh size and stringer
restrictions applicable to those leaders continue to remain in effect.
However, NMFS has decided to allow fishermen with nearshore leaders in
Pound Net Regulated Area I and any type of leader in Pound Net
Regulated Area II to use leaders meeting the definition of modified
pound net leaders should they so choose. Allowing the use of the
modified leader design in these leaders may benefit sea turtles as
described in the response to Comment 4. However, because specific gear
requirements are already in place for nearshore leaders in Pound Net
Regulated Area I and all leaders in Pound Net Regulated Area II, and
leaders in those locations are less likely to result in sea turtle
entanglements and impingements based on existing information, NMFS
decided not to require fishermen in those areas to purchase and install
a new type of leader. Allowing the use of modified pound net leaders to
nearshore nets in Pound Net Regulated Area I and all pound net leaders
in Pound Net Regulated Area II falls within the range of alternatives
described and analyzed in the draft EA, between the measures included
in the proposed rule and NPA 2 (required use of the modified leader in
all pound nets set within Pound Net Regulated Areas I and II during the
regulated period).
Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Assistant Administrator for Fisheries (AA) finds good cause
under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date of
this final rule. To determine the appropriate properties for the
modified pound net leader in this rulemaking, NMFS needed the results
of the 2005 modified pound net leader experiment. The final report for
the experiment was not available to NMFS until January 2006. NMFS then
reviewed and analyzed the report and integrated the new information
into the rulemaking documents.
NMFS has identified a modified leader design that will conserve sea
turtles while enabling fishermen to use pound net leaders, and pound
net fishermen are not able to fish with their leaders under existing
regulations. The existing regulations prohibit the use of offshore
pound net leaders, an integral component of pound net gear, in a part
of the southern Chesapeake Bay from May 6 to July 15 each year. There
is good cause to waive the 30-day delay in the effective date of this
final rule as it would enable fishermen to set their leaders
immediately and salvage a portion of the spring/summer fishing season,
while ensuring that threatened
[[Page 36031]]
and endangered sea turtles continue to be protected from fishing
mortalities. This final rule also allows fishermen in a different part
of the Virginia Chesapeake Bay to use the modified leader if they so
choose. The modified leader is expected to benefit sea turtles in that
area as well, it provides fishermen with another option for allowable
gear and, because this portion of the rule is voluntary, fishermen do
not need time to comply.
NMFS has prepared a final regulatory flexibility analysis that
describes the economic impact this final rule will have on small
entities. A summary of the analysis follows:
A statement of the need for, and objectives of, this rulemaking are
presented in the preamble and not repeated here.
The small entities affected by this action are the commercial
fishing operations forming the Virginia pound net fishery in the
Chesapeake Bay. This action requires any offshore pound net leader set
in Pound Net Regulated Area I from May 6 through July 15 each year to
meet the definition of a modified pound net leader. This requirement
will affect approximately five fishermen (the number that fish offshore
leaders in the lower Chesapeake Bay). This action also allows the use
of modified pound net leaders in nearshore pound net leaders in Pound
Net Regulated Area I and in all leaders set in Pound Net Regulated Area
II during this same time frame. This authorization will affect
approximately 16 fishermen (the number that fish in the upper bay, who
may choose to use the modified leader design). A total of 21 fishermen
will be affected by the rule.
NMFS has minimized economic impacts by selecting the alternative
adopted in the final rule. That alternative was chosen because it will
enable a group of fishermen to use leaders--a key component of pound
net gear--during a peak fishing season, thereby enabling them to earn
revenues while also reducing impacts of pound net gear on sea turtles.
The revenues earned by the group of fishermen required to use modified
pound net leaders would be larger than the costs incurred to modify the
leaders. The net change in revenues is positive 16.9 to 33.7 percent
for the 5 lower bay fishermen. For the 16 upper bay fishermen, there
will not be a net change in revenues due to compliance with the rule.
This alternative was also selected because it allows, but does not
require, fishermen to use modified leaders in a part of the Chesapeake
Bay where risks to sea turtles from pound net gear appear to be lower.
Non-preferred alternative 1 (NPA 1) would maintain the current
regulations, including a prohibition on the use of offshore pound net
leaders in Pound Net Regulated Area I, and would prohibit leaders with
stretched mesh greater than or equal to 12 inches (30.5 cm) and leaders
with stringers in the remainder of the Virginia Chesapeake Bay during
the period of May 6 through July 15 each year. NPA 1 would not have
changed the economic status quo. NPA 1 was rejected because it would
not take advantage of the modified leader design developed to enable
fishermen to generate revenues by fishing while also protecting sea
turtles.
Non-preferred alternative 2 (NPA 2) would require any pound net
leader used during the period of May 6 through July 15 in either Pound
Net Regulated Area I or Pound Net Regulated Area II to be a modified
pound net leader. NPA 2 would have imposed economic costs on all pound
net fishermen in the Virginia Chesapeake Bay. NPA 2 was rejected
because at this time requiring all pound net fishermen in the Virginia
Chesapeake Bay to use modified leaders seems overbroad. While lower bay
fishermen who are currently prohibited from using offshore leaders will
be able to recoup costs through increased fishing opportunity, upper
bay fishermen, who are required to use the modified leader under NPA 2,
would incur extra costs for minimal benefit to sea turtles given that
those fishermen can already fish with leaders subject to mesh size and
stringer restrictions designed to protect sea turtles and, at this
time, offshore leaders in Pound Net Regulated Area II are not known to
present as much of a risk to sea turtles as those in Pound Net
Regulated Area I. For the 5 lower bay fishermen, the net change in
revenues is positive 12.0 to 28.9 percent while the net change in
revenues for the 16 upper bay fishermen is negative by 3.6 to 7.2
percent. NMFS believes tailoring the requirement to the area that
presents the greatest risk to sea turtles and allowing (but not
requiring) the use of modified leaders in other areas is more
appropriate given existing information.
Non-preferred alternative 3 (NPA 3) is similar to the proposed
action, but would require the modified pound net leader design to be
used in any offshore leader, while any nearshore leader would still be
required to use stretched mesh less than 12 inches (30.5 cm) and
stringers would be prohibited. NPA 3 would have greater economic
effects than the final rule and was rejected because at this time
offshore leaders in Pound Net Regulated Area II are not known to
present the same risks to sea turtles as those in Pound Net Regulated
Area I. In addition, based on existing information, NPA 3 would have
been overbroad. While lower bay fishermen using offshore leaders will
be able to recoup costs through increased fishing opportunity, upper
bay fishermen with offshore leaders in Pound Net Regulated Area II
would have incurred extra costs for not much benefit to sea turtles,
because those fishermen can already use pound net leaders with mesh
size and stringer restrictions designed to protect sea turtles and
because of the lesser risk to sea turtles from offshore leaders in
Pound Net Regulated Area II. For the 5 lower bay fishermen, the net
change in revenues is positive 16.9 to 33.7 percent, while for the 16
fishermen in the upper bay the net change in revenues is negative by
3.6 to 7.2 percent.
This action does not contain new reporting or recordkeeping
requirements.
No comments were received specifically on the initial regulatory
flexibility analysis. Comments on economic impacts of the proposed rule
and response to them appear in the preamble to this final rule and are
incorporated herein.
A formal consultation pursuant to section 7 of the ESA was
conducted on the previous 2004 rule (69 FR 24997, May 5, 2004). The
April 16, 2004 Biological Opinion concluded that the operation of the
Virginia pound net fishery with NMFS' sea turtle conservation measures
may adversely affect but is not likely to jeopardize the continued
existence of the loggerhead, leatherback, Kemp's ridley, green, or
hawksbill sea turtle, or shortnose sturgeon. NMFS has determined that
this action does not trigger reinitiation of formal consultation.
This final rule contains policies with federalism implications that
were sufficient to warrant preparation of the following federalism
assessment under Executive Order 13132. The Acting Assistant Secretary
for Legislative and Intergovernmental Affairs provided notice of the
proposed action to the Governor of Virginia on April 17, 2006. The
Secretary of Natural Resources in Virginia responded on behalf of the
Governor of Virginia on April 26, 2006. In this letter, he expressed
his support of the proposed action, but noted concerns with the delay
in publishing the proposed rule and recommended shortening the time
frame to implement the final rule. NMFS' position supporting the need
to issue the regulations is explained in the preamble to this rule and
incorporated herein. NMFS has endeavored to address the
[[Page 36032]]
concerns of elected officials by continuing to expedite issuance of the
rule. NMFS did find good cause under 5 U.S.C. 553(d)(3) to waive the
30-day delay in effective date of this final rule, given that such a
delay would be contrary to the public interest. The federalism official
certifies that NMFS has complied with the requirements of Executive
Order 13132 for this final rule.
Literature Cited
Byles, R.A. 1988. The behavior and ecology of sea turtles in
Virginia. Ph.D. dissertation. Virginia Institute of Marine Science,
College of William and Mary, Gloucester Point, Virginia. 112 pp.
DeAlteris, J., D. Chosid, R. Silva and P. Politis. 2004. Evaluation
of the performance of an alternative leader design on the bycatch of
sea turtles and the catch of finfish in Chesapeake bay pound nets,
offshore Kiptopeake, VA. Final Report submitted to the National
Oceanic and Atmospheric Administration.
Henwood, T.A., and W. Stuntz. 1987. Analysis of sea turtle captures
and mortalities during commercial shrimp trawling. Fish. Bull., U.S.
85(4):813-817.
Lutcavage, M.E. and P.L. Lutz. 1997. Diving physiology, p. 277-296.
In P.L. Lutz and J.A. Musick, (eds), The Biology of Sea Turtles, CRC
Press, Boca Raton, Florida. 432 pp.
Magnuson, J.J., J.A. Bjorndal, W.D. DuPaul, G.L. Graham, D.W. Owens,
C.H. Peterson, P.C.H. Prichard, J.I. Richardson, G.E. Saul, and C.W.
West. 1990. Decline of Sea Turtles: Causes and Prevention. Committee
on Sea Turtle Conservation, Board of Environmental Studies and
Toxicology, Board on Biology, Commission of Life Sciences, National
Research Council, National Academy Press, Washington, D.C. 259 pp.
Mansfield, K.L., E.E. Seney, and J.A. Musick. 2002a. An evaluation
of sea turtle abundances, mortalities and fisheries interactions in
the Chesapeake Bay, Virginia, 2001. Final Report submitted to the
National Marine Fisheries Service Northeast Region, Gloucester, MA.
Contract #43-EA-NF-110773.
Mansfield, K.L., E.E. Seney, M.A. Fagan, J.A. Musick, K.L. Frisch,
and A.E. Knowles. 2002b. An evaluation of interactions between sea
turtles and pound net leaders in the Chesapeake Bay, Virginia. Final
Report submitted to the National Marine Fisheries Service Northeast
Region, Gloucester, MA. Contract #EA1330-02-SE-0075.
Mansfield, K.A. and J.A. Musick. 2003. Loggerhead sea turtle diving
behavior. Virginia Institute of Marine Science. Final report
submitted to the U.S. Army Corps of Engineers, Norfolk, Virginia. 41 pp.
Mansfield, K.A. and J.A. Musick. 2004. Sea turtle diving behavior in
Virginia. Virginia Institute of Marine Science. Final report
submitted to the U.S. Army Corps of Engineers, Norfolk, Virginia. 38 pp.
Mansfield, K.A. and J.A. Musick. 2005. Sea turtle diving behavior.
Virginia Institute of Marine Science. 2004 Final report submitted to
the U.S. Army Corps of Engineers, Norfolk, Virginia. 25 pp.
National Marine Fisheries Service (NMFS). 2001. Decision Memorandum
from Donald R. Knowles (Office of Protected Resources) to William T.
Hogarth (Assistant Administrator for Fisheries). Strategy for Sea
Turtle Conservation and Recovery in Relation to Atlantic Ocean and
Gulf of Mexico Fisheries. June 1, 2001.
Swingle, W.M., C.T. Harry, S.G. Barco. 2005. Sea turtle surveys and
stranding response on Virginia's Eastern shore 2005. Final report
submitted to NOAA, National Marine Fisheries Service, Northeast
Regional Office, Gloucester, MA. Contract #: EM133F05SE3836.
VAQF Scientific Report 2005-03, Virginia Beach, VA. 21 pp.
Turtle Expert Working Group (TEWG). 1998. An assessment of the
Kemp's ridley (Lepidochelys kempi) and loggerhead (Caretta caretta)
sea turtle populations in the Western North Atlantic. NOAA Technical
Memorandum NMFS-SEFSC-409. 96 pp.
List of Subjects
50 CFR Part 222
Endangered and threatened species, Exports, Reporting and
recordkeeping requirements.
50 CFR Part 223
Endangered and threatened species, Exports, Transportation.
Dated: June 16, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
? For reasons stated in the preamble, 50 CFR parts 222 and 223 are
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 definitions of ``Modified pound net leader''
and ``Pound Net Regulated Area I'' and ``Pound Net Regulated Area II''
are added in alphabetical order to read as follows:
Sec. 222.102 Definitions.
* * * * *
Modified pound net leader means a pound net leader that is affixed
to or resting on the sea floor and made of a lower portion of mesh and
an upper portion of only vertical lines such that: The mesh size is
equal to or less than 8 inches (20.3 cm) stretched mesh; at any
particular point along the leader the height of the mesh from the
seafloor to the top of the mesh must be no more than one-third the
depth of the water at mean lower low water directly above that
particular point; the mesh is held in place by vertical lines that
extend from the top of the mesh up to a top line, which is a line that
forms the uppermost part of the pound net leader; the vertical lines
are equal to or greater than \5/16\ inch (0.8 cm) in diameter and
strung vertically at a minimum of every 2 feet (61 cm); and the
vertical lines are hard lay lines with a level of stiffness equivalent
to the stiffness of a \5/16\ inch (0.8 cm) diameter line composed of
polyester wrapped around a blend of polypropylene and polyethylene and
containing approximately 42 visible twists of strands per foot of line.
* * * * *
Pound Net Regulated Area I means Virginia waters of the mainstem
Chesapeake Bay, south of 37[deg]19.0' N. lat. and west of 76[deg]13.0'
W. long., and all waters south of 37[deg]13.0' N. lat. to the
Chesapeake Bay Bridge Tunnel (extending from approximately 37[deg]05'
N. lat., 75[deg]59' W. long. to 36[deg]55' N. lat., 76[deg]08' W.
long.) at the mouth of the Chesapeake Bay, and the portion of the James
River downstream of the Hampton Roads Bridge Tunnel (I-64;
approximately 36[deg]59.55' N. lat., 76[deg]18.64' W. long.) and the
York River downstream of the Coleman Memorial Bridge (Route 17;
approximately 37[deg]14.55' N. lat, 76[deg]30.40' W. long.)
Pound Net Regulated Area II means Virginia waters of the Chesapeake
Bay outside of Pound Net Regulated Area I defined above, extending to
the Maryland-Virginia State line (approximately 37[deg]55' N. lat.,
75[deg]55' W. long.), the Great Wicomico River downstream of the Jessie
Dupont Memorial Highway Bridge (Route 200; approximately 37[deg]50.84'
N. lat, 76[deg]22.09' W. long.), the Rappahannock River downstream of
the Robert Opie Norris Jr. Bridge (Route 3; approximately 37[deg]37.44'
N. lat, 76[deg]25.40' W. long.), and the Piankatank River downstream of
the Route 3 Bridge (approximately 37[deg]30.62' N. lat, 76[deg]25.19'
W. long.) to the COLREGS line at the mouth of the Chesapeake Bay.
* * * * *
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
? 3. The authority citation for part 223 continues to read as follows:
[[Page 36033]]
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
? 4. In Sec. 223.206, paragraph (d)(10) is revised to read as follows:
Sec. 223.206 Exceptions to prohibitions relating to sea turtles.
* * * * *
(d) * * *
(10) Restrictions applicable to pound nets in Virginia--(i)
Offshore pound net leaders in Pound Net Regulated Area I. During the
time period of May 6 through July 15 each year, any offshore pound net
leader in Pound Net Regulated Area I must meet the definition of a
modified pound net leader. Any offshore pound net leader in Pound Net
Regulated Area I that does not meet the definition of a modified pound
net leader must be removed from the water prior to May 6 and may not be
reset until July 16.
(ii) Nearshore pound net leaders in Pound Net Regulated Area I and
all pound net leaders in Pound Net Regulated Area II. During the time
period of May 6 to July 15 each year, any nearshore pound net leader in
Pound Net Regulated Area I and any pound net leader in Pound Net
Regulated Area II must have only mesh size less than 12 inches (30.5
cm) stretched mesh and may not employ stringers. Any nearshore pound
net leader in Pound Net Regulated Area I or any pound net leader in
Pound Net Regulated Area II with stretched mesh measuring 12 inches
(30.5 cm) or greater, or with stringers, must be removed from the water
prior to May 6 and may not be reset until July 16. A pound net leader
is exempt from these measures only if it meets the definition of a
modified pound net leader.
(iii) Protocol for measuring mesh size. This protocol applies to
measuring mesh size in leaders described in 50 CFR 223.206(d)(10)(i)
and 223.206(d)(10)(ii). Mesh sizes are measured by a wedge-shaped gauge
having a taper of 0.79 in. (2 cm) in 3.15 in. (8 cm) and a thickness of
0.09 in. (2.3 mm) inserted into the meshes under a pressure or pull of
11.02 lb. (5 kg). The mesh size is the average of the measurement of
any series of 20 consecutive meshes. The mesh in the leader is measured
at or near the horizontal and vertical center of a leader panel.
(iv) Reporting requirement. At any time during the year, if a sea
turtle is taken live and uninjured in a pound net operation, the
operator of the vessel must report the incident to the NMFS Northeast
Regional Office, (978) 281-9328 or fax (978) 281-9394, within 24 hours
of returning from the trip in which the incidental take was discovered.
The report shall include a description of the sea turtles condition at
the time of release and the measures taken as required in paragraph
(d)(1) of this section. At any time during the year, if a sea turtle is
taken in a pound net operation, and is determined to be injured, or if
a turtle is captured dead, the operator of the vessel shall immediately
notify NMFS Northeast Regional Office and the appropriate
rehabilitation or stranding network, as determined by NMFS Northeast
Regional Office.
(v) 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.
(vi) Expedited modification of restrictions and effective dates.
From May 6 to July 15 of each year, if NMFS receives information that
one sea turtle is entangled alive or that one sea turtle is entangled
dead, and NMFS determines that the entanglement contributed to its
death, in pound net leaders that are in compliance with the
restrictions described in paragraph (d)(10)(ii) of this section, NMFS
may issue a final rule modifying the restrictions on pound net leaders
as necessary to protect threatened sea turtles. Such modifications may
include, but are not limited to, reducing the maximum allowable mesh
size of pound net leaders and prohibiting the use of pound net leaders
regardless of mesh size. In addition, if information indicates that a
significant level of sea turtle entanglements, impingements or
strandings will likely continue beyond July 15, NMFS may issue a final
rule extending the effective date of the restrictions, including any
additional restrictions imposed under this paragraph (d)(10)(vi), for
an additional 15 days, but not beyond July 30, to protect threatened
sea turtles.
[FR Doc. 06-5608 Filed 6-20-06; 2:19 pm]
BILLING CODE 3510-22-P