03-17873. Sea Turtle Conservation Measures for the Pound Net Fishery in Virginia Waters

AGENCY:

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

ACTION:

Temporary final rule.

SUMMARY:

NOAA Fisheries is prohibiting the use of all pound net leaders in the Virginia waters of the mainstem Chesapeake Bay effective immediately through July 30, 2003. The affected area includes all Chesapeake Bay waters between the Maryland and Virginia state line (approximately 38° N. lat.) and the COLREGS line at the mouth of the Chesapeake Bay, and the waters of the James River, York River, and Rappahannock River downstream of the first bridge in each tributary. This action, taken under the Endangered Species Act of 1973 (ESA), is necessary to conserve sea turtles listed as threatened or endangered.

DATES:

Effective July 16, 2003, through July 30, 2003.

ADDRESSES:

Requests for copies of the literature cited, the Environmental Assessment (EA), or Regulatory Impact Review (RIR) should be addressed to the Assistant Regional Administrator for Protected Resources, NOAA Fisheries, One Blackburn Drive, Gloucester, MA 01930. Requests for supporting documents may also be sent via fax to 978-281-9394.

FOR FURTHER INFORMATION CONTACT:

Mary Colligan (ph. 978-281-9116, fax [phone]), or Barbara Schroeder (ph. 301-713-1401, fax [phone]).

SUPPLEMENTARY INFORMATION:

Background

Pound net leaders with greater than or equal to 12 inches (30.5 cm) stretched mesh and leaders with stringers have been documented to incidentally take sea turtles (Bellmund et al., 1987). High strandings of threatened and endangered sea turtles are documented on Virginia beaches each spring, and the number of strandings has increased in recent years. No cause of mortality is immediately apparent for the majority of turtles that strand in Virginia, but the circumstances surrounding the recent stranding events are consistent with fishery interactions in that a majority of the carcasses are undamaged and when examined seemed healthy. A discussion on fisheries interactions and strandings are provided in the preambles to the proposed rule (67 FR 15160, March 29, 2002) and the interim final rule (67 FR 41196, June 17, 2002). In light of documented entanglement in pound net leaders and high strandings in the vicinity of pound net operations, on June 17, 2002, NOAA Fisheries 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 pound net gear to NOAA Fisheries within 24 hours of returning from the trip and a year-round requirement for pound net fishing operations to be observed by a NOAA Fisheries-approved observer if requested by the Northeast Regional Administrator. The interim final rule also established a framework mechanism by which NOAA Fisheries 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 NOAA Fisheries receives information that a significant level of strandings will likely continue beyond June 30, 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 if one or more sea turtles are 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 NOAA Fisheries determines that the entanglement contributed to its death, then NOAA Fisheries may determine that additional restrictions are necessary to conserve sea turtles and prevent entanglements. The restrictions that may be implemented are limited to the alternatives previously considered in the EA. These alternatives included: (1) The restriction of all pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh; (2) the prohibition of all pound net leaders regardless of mesh size; and (3) the restriction of pound net leaders with greater than 16 inches stretched mesh and the modification of all other leaders with stringers by dropping the leader mesh 9 feet below mean low water and spacing stringer lines at least 3 feet apart. The interim final rule stated that should an extension of the effective dates of the prohibition of pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and pound net leaders with stringers be necessary or should NOAA Fisheries determine that an additional restriction is warranted, NOAA Fisheries would issue a rule. This rule would explicitly state the duration of the extension of the prohibition or the new mandatory gear restriction and the time period, which could also be extended for up to 30 days but not beyond July 30.

Details concerning the justification for the previous pound net leader restriction regulations and the previous high sea turtle stranding events in Virginia were provided in the preambles to the proposed rule (67 FR 15160, March 29, 2002) and the interim final rule (67 FR 41196, June 17, 2002) and are not repeated here.

2003 Pound Net Monitoring

From April 21 to June 11, 2003, NOAA Fisheries monitored pound net leaders with stretched mesh measuring less than 12 inches (30.5 cm), as well as sea turtle stranding levels and other fisheries active in the Virginia Chesapeake Bay and ocean waters. This monitoring effort resulted in the documentation of 17 sea turtles found in association with pound net leaders. The first documented sea turtle was found impinged on a pound net leader on May 11, and sea turtles were documented in leaders through June 11 when the monitoring program ceased. In total, 12 sea turtles were found held against or impinged on pound net leaders by the current. Of these 12 impingements, 11 were loggerhead sea turtles (one of which was dead) and one was a Kemp's ridley sea turtle (alive). There were an additional five sea turtles found entangled in pound net leaders, of which two were loggerheads (one dead) and three were Kemp's ridleys (two dead). Eleven of the 17 incidents involved leaders measuring 11.5 inches (29.2 cm) stretched mesh, while six of the sea turtles were entangled or impinged in 8 inch (20.3 cm) stretched mesh leaders. Most of the observed sea turtles were found in nets along the Eastern shore of Virginia, but two turtles were found in leaders near Mobjack Bay in the Western Chesapeake Bay.

As stated in the 2002 interim final rule, if even one sea turtle is entangled alive or if one sea turtle is entangled dead, and NOAA Fisheries determines that the entanglement contributed to its death, additional restrictions may be implemented by the publication of a final rule in the Federal Register. The spring 2003 monitoring effort documented two live sea turtles entangled in pound net leaders with 11.5 inches (29.2 cm) stretched mesh, and three dead sea turtles entangled in pound net leaders with either 11.5 inches (29.2 cm) or 8 inches (20.3 cm) stretched mesh. NOAA Fisheries believes that there is sufficient information to conclude that the death of these turtles is 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). Given these monitoring results documenting the entanglement of sea turtles in leaders with less than 12 inches (30.5 cm) stretched mesh, additional restrictions are warranted.

2003 Spring Stranding Event

As mentioned, 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, 181 in 1998, 129 in 1999, 155 in 2000, 265 in 2001, and 182 in 2002. In 2003, preliminary data indicate that 302 dead sea turtles stranded on Virginia beaches during May and June.

The 2003 spring stranding season in Virginia began later than usual. Based upon historical Sea Turtle Stranding and Salvage Network (STSSN) data, strandings in Virginia typically begin in mid-May, with strandings remaining elevated until June 30. In the spring of 2003, water temperatures were relatively cool in Virginia. The first sea turtle stranding was documented on May 18, but stranding levels were relatively low until June. In May, 22 dead animals stranded, and in June, 280 dead sea turtles were documented. The majority of the 2003 spring strandings occurred during the last two weeks in June and continue through July with a total of 27 documented through July 5.

Approved Measures

To conserve sea turtles, the AA prohibits the use of all pound net leaders in the Virginia waters of the mainstem Chesapeake Bay and portions of the Virginia tributaries effective through July 30, 2003. The area where this gear restriction applies includes the Virginia waters of the mainstem Chesapeake Bay from the Maryland-Virginia state line (approximately 37°55′ N. lat., 75°55′ W. long.) to the COLREGS line at the mouth of the Chesapeake Bay; the James River downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 36°59.55′ N. lat., 76°18.64′ W. long.); the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37°14.55′ N. lat, 76°30.40′ 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.).

NOAA Fisheries recognizes that there may be a localized interaction between sea turtles and pound nets along the Eastern shore, as that is the area where most of the sea turtles have been observed in pound net gear this spring. Given that one or more turtles have been found entangled live and dead in pound net leaders with less than 12 inch (30.5 cm) stretched mesh, NOAA Fisheries has the authority to implement additional restrictions this year. Under the framework provision included in the 2002 interim final rule, only an option previously analyzed in the EA may be considered. Given the amount of time it takes to order, purchase, and hang a leader and the timing of this rule related to the sunset date (July 30, 2003), restricting leaders with 8 inches (20.3 cm) or greater stretched mesh would be effectively the same as restricting all leaders regardless of mesh size. Further, given the data collected this spring, sea turtle impingement on leaders of various sizes is a more significant problem than originally believed and this impingement may continue to occur on leaders with less than 8 inches (20.3 cm) stretched mesh in the areas where impingements were previously documented. Prohibiting all leaders throughout the Virginia Chesapeake Bay is the only available option that will reduce sea turtle entanglements and impingements in pound net leaders.

As mentioned previously, the Virginia stranding season has been relatively late this year. As strandings were highest in the latter half of June and remained elevated through June 30, NOAA Fisheries believes that elevated strandings could continue into the end of July and that an extension of the prohibition of all pound net leaders is warranted until July 30, 2003.

This prohibition of pound net leaders is effective July 16, 2003, through July 30, 2003. In subsequent years, the original restrictions included in the 2002 interim final rule will be in effect (i.e., restriction of pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and pound net leaders with stringers from May 8 to June 30 each year), unless modified or replaced by a new rule. For the duration of this gear prohibition, fishermen are required to stop fishing with all pound net leaders in the designated area.

The year-round reporting and monitoring requirements for this fishery established by the 2002 interim final rule remain in effect.

Classification

This rule has been determined to be not significant for the purposes of Executive Order 12866.

The AA finds that providing prior notice and an opportunity to comment on this rule would be impracticable and contrary to the public interest. 50 CFR 223.206(d)(2)(v)(E) allows NOAA Fisheries to modify restrictions on pound net leaders and extend the effective date of those restrictions until July 30 each year if, in leaders complying with those regulations, one or more sea turtles are found entangled live or one or more sea turtles are found entangled dead and the entanglement contributed to its death. Turtles have recently been found entangled in leaders that comply with the regulations, and are at immediate risk of additional harm if no additional protections are implemented. If NOAA Fisheries were to provide notice and an opportunity to comment, it would pass the July 30 date on which the effectiveness of any restictions lapses and miss the opportunity to provide additional protections for the sea turtles that will still be in the areas. Therefore, the AA finds good cause exists under 5 U.S.C. 553(b)(B) to waive the requirement for prior notice and opportunity for public comment.

The AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day effective date of this final rule. Such a delay would be contrary to the public interest because sea turtles are currently present in Virginia waters and are being subject to entanglement and impingement in pound net leaders and potential subsequent mortality. Any delay in the effective date of this final rule would prevent NOAA Fisheries from meeting its obligations under the ESA to prevent harm to sea turtles.

NOAA Fisheries previously prepared a final regulatory flexibility analysis (FRFA) which describes the impact the 2002 interim final rule would have on small entities. The FRFA considered the potential implementation of the framework provision and the alternative currently proposed for implementation (i.e. prohibition of all pound net leaders). Nevertheless, because prior notice and opportunity for comment are not required for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act are inapplicable.

List of Subjects 50 CFR Part 223

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

Dated: July 10, 2003.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for Part 223 continues to read as follows:

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

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

§ 223.206

Exceptions to prohibitions relating to sea turtles.

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(d) * * *

(2) * * *

(v) * * *

(F) Additional restrictions for pound net leaders through July 30, 2003. Based upon 2003 spring monitoring results and the framework provision noted in paragraph (d)(2)(v)(E) of this section, from July 16, 2003 to July 30, 2003, all pound net leaders are prohibited and must be removed from the waters described in paragraph (d)(2)(v)(B) of this section.

* * * * *