Final Rule 0648-AR69 69 FR 24997

Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Rules and Regulations
the Commission certified that the
proposed rule amendments, if
promulgated, would not have a
significant economic impact on a
substantial number of small business
entities, as defined in section 601(3) of
the RFA because the rule amendments
do not apply to small business entities.
Rather, these rules apply to individuals
who are interested in radio technique
solely with a personal aim and without
pecuniary interest.
II. Ordering Clauses
4. Parts 0 and 97 of the Commission’s
rules is amended as specified in rule
changes effective June 1, 2004.
5. The Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order, including the Initial
Regulatory Flexibility Certification, to
the Chief Counsel for Advocacy of the
Small Business Administration.
List of Subjects
47 CFR Part 0
Radio.
47 CFR Part 97
Radio, Volunteers.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.

■

§ 97.505

§ 97.3

(a) * * *
(9) An expired FCC-issued Technician
Class operator license document granted
before February 14, 1991: Element 1.
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*
*
*
*
■ 9. Section 97.507 is amended by
revising paragraph (a)(2) to read as
follows:

4. Section 97.3 is amended by revising
paragraph (a)(1) and by removing and
reserving paragraph (a)(17) to read as
follows:
Definitions.

(a) * * *
(1) Amateur operator. A person
named in an amateur operator/primary
license station grant on the ULS
consolidated licensee database to be the
control operator of an amateur station.
*
*
*
*
*
■ 5. Section 97.109 is amended by
revising paragraph (d) and removing
paragraph (e) to read as follows:
§ 97.109

§ 97.203(h)
■

§ 97.307

[Redesignated]

6. Section 97.203(h) is redesignated as
Section 97.205(h).
■ 7. Section 97.307 is amended by
revising paragraph (d) to read as follows:
Emission standards.

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*
*
*
(d) For transmitters installed after
January 1, 2003, the mean power of any
■ 1. The authority citation for part 0
spurious emission from a station
continues to read as follows:
transmitter or external RF power
amplifier transmitting on a frequency
Authority: Sec. 5, 48 Stat. 1068, as
below 30 MHz must be at least 43 dB
amended; 47 U.S.C. 155, 225, unless
otherwise noted.
below the mean power of the
fundamental emission. For transmitters
■ 2. Section 0.131 is amended by
revising paragraph (n) to read as follows: installed on or before January 1, 2003,
the mean power of any spurious
§ 0.131 Functions of the Bureau.
emission from a station transmitter or
*
*
*
*
*
external RF power amplifier
(n) Administers the Commission’s
transmitting on a frequency below 30
amateur radio programs (part 97 of this
MHz must not exceed 50 mW and must
chapter) and the issuing of maritime
be at least 40 dB below the mean power
mobile service identities (MMSIs).
of the fundamental emission. For a
*
*
*
*
*
transmitter of mean power less than 5 W
installed on or before January 1, 2003,
PART 97—AMATEUR RADIO SERVICE the attenuation must be at least 30 dB.
A transmitter built before April 15,
■ 3. The authority citation for part 97
1977, or first marketed before January 1,
continues to read as follows:
1978, is exempt from this requirement.
Authority: 48 Stat. 1066, 1082, as
*
*
*
*
*
amended; 47 U.S.C. 154, 303. Interpret or
■
8.
Section
97.505
is
amended
by
apply 48 Stat. 1064–1068, 1081–1105, as
revising paragraph (a)(9) to read as
amended; 47 U.S.C. 151–155, 301–609,
follows:
unless otherwise noted.

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*

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Preparing an examination.

(a) * * *
(2) Elements 1 and 2: Advanced or
General Class operators.
*
*
*
*
*
[FR Doc. 04–10203 Filed 5–4–04; 8:45 am]
BILLING CODE 6712–01–P

Station control.

*
*
*
*
(d) When a station is being
automatically controlled, the control
operator need not be at the control
point. Only stations specifically
designated elsewhere in this part may
be automatically controlled. Automatic
control must cease upon notification by
a District Director that the station is
transmitting improperly or causing
harmful interference to other stations.
Automatic control must not be resumed
without prior approval of the District
Director.
*
*
*
*
*

For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 0 and
97 as follows:

PART 0—COMMISSION
ORGANIZATION

§ 97.507

Element credit.

*

Rule Changes
■

24997

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 222 and 223
[Docket No. 040127028–4130–02; I.D
012104B]
RIN 0648–AR69

Sea Turtle Conservation: Additional
Exception to Sea Turtle Take
Prohibitions
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: NMFS is prohibiting the use
of all pound net leaders, set with the
inland end of the leader greater than 10
horizontal feet (3 m) from the mean low
water line, 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. Outside this area, the
prohibition of leaders with greater than
or equal to 12 inches (30.5 cm) stretched
mesh and leaders with stringers, as
established by the June 17, 2002 interim
final rule, will apply from May 6 to July
15 each year. This final action also
includes a framework mechanism by
which NMFS may take additional action
as necessary. This action, taken under
the Endangered Species Act of 1973
(ESA), is necessary to conserve sea
turtles listed as threatened or
endangered. NMFS also provides an
exception to the prohibition on
incidental take of threatened sea turtles

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Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Rules and Regulations

for pound net fishermen in compliance
with these regulations.
DATES: Effective May 5, 2004.
FOR FURTHER INFORMATION CONTACT:
Carrie Upite (ph. 978–281–9328 x6525,
fax 978–281–9394, email
[email protected]), or Barbara
Schroeder (ph. 301–713–1401, fax 301–
713–0376, email
[email protected]).
SUPPLEMENTARY INFORMATION:
Background
Incidental take, defined to include the
harassing, harming, wounding, trapping
and capturing, of threatened sea turtles
is not lawful (50 CFR 223.205). 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 authorized
incidental take of threatened sea turtles
for pound net fishermen who complied
with NMFS′ rule. In the rule, NMFS
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 were a year-round
requirement for fishermen to report all
interactions with sea turtles in their
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. Prior to issuance
of this rule, takes of threatened sea
turtles in pound nets were not
authorized, and a fisherman who
incidentally took a threatened sea turtle
risked criminal penalties and fines.
To better understand the interactions
between pound net gear and sea turtles,
NMFS conducted pound net monitoring
during the spring of 2002 and 2003.
This monitoring documented 23 sea
turtles either entangled in or impinged
on pound net leaders, 18 of which were
in leaders with less than 12 inches (30.5
cm) stretched mesh. Nine animals were
found entangled in leaders, of which 7
were dead, and 14 animals were found
impinged on leaders, of which one was
dead. In this situation, impingement
refers to a sea turtle being held against
the leader by the current, apparently

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unable to release itself under its own
ability. For these purposes, an animal
was still considered impinged if it had
its head and flipper poking through the
mesh. An animal was considered
entangled if a body part was tightly
wrapped one or more times in the mesh.
The 2002 and 2003 monitoring results
represent 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 problem than previously
believed. As such, NMFS believes that
additional restrictions are warranted to
reduce sea turtle entanglement in and
impingement on pound net gear.
The documented incidental take of
sea turtles in leaders, the ability for sea
turtles to continue to become entangled
in and impinged on pound net leaders
in the future, and the annual high
mortality of sea turtles in Virginia
during the spring, as evidenced by the
high number of dead sea turtles
stranding on beaches, are of particular
concern because approximately 50
percent of the Chesapeake Bay
loggerhead foraging population is
composed of the northern
subpopulation, a subpopulation that
may be declining. In addition, most of
the stranded turtles in Virginia are
juveniles, a life stage found to be critical
to the long term survival of the species.
This action is necessary to provide for
the conservation of threatened and
endangered sea turtles by reducing
incidental take in the Virginia pound
net fishery during the spring. Details
concerning sea turtle and pound net
interactions, the potential impact of
pound net leaders on sea turtles, and
justification for the need for additional
pound net leader regulations were
provided in the preamble to the
proposed rule (69 FR 5810, February 6,
2004).
Approved Measures
To conserve sea turtles, NMFS
prohibits the use of all offshore 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°

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14.55′ N. lat, 76° 30.40′ W. long.).
Offshore pound nets are defined as
those nets set with the inland end of
their leader greater than 10 horizontal
feet (3 m) from the mean low water line.
Additionally, outside this area, NMFS
retains the leader mesh size restriction
included in the previous interim final
rule on the pound net fishery (67 FR
41196, June 17, 2002), which prohibited
the use of all leaders with stretched
mesh greater than or equal to 12 inches
(30.5 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 from the Maryland-Virginia
State line (approximately 37° 55′ N. lat.,
75° 55′ W. long.), the Great Wicomico
River downstream of the Jessie Dupont
Memorial Highway Bridge (Route 200;
approximately 37° 50.84′ N. lat, 76°
22.09′ W. long.), 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 the Piankatank
River downstream of the Route 3 Bridge
(approximately 37° 30.62′ N. lat, 76°
25.19′ W. long.), to the COLREGS line at
the mouth of the 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, the leader restriction
applies to those nets set with the inland
end of the leader 10 horizontal feet (3
m) or less from the mean low water line.
In addition to avoiding applicable
penalties for failure to comply with ESA
regulations, Virginia pound net
fishermen who comply with these
restrictions may incidentally take listed
sea turtles without being subject to
penalties and fines for that take.
This final rule also retains the
framework mechanism currently in
place (that was included and analyzed
in the status quo alternative), 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 based on,
for example, water temperature and the
timing of sea turtles′ migration, that sea
turtles may still be vulnerable to
entanglement in pound net leaders after
July 15, NMFS may extend the effective
dates of this regulation. Should an
extension be necessary, NMFS would
issue a final rule in the Federal Register
explicitly stating the duration of the
extension. The extension would not last
beyond July 30. Additionally, under this
framework mechanism, if monitoring of
pound net leaders reveals that one sea

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Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Rules and Regulations
turtle is entangled alive in a pound net
leader or that one sea turtle is entangled
dead and NMFS determines that the
entanglement contributed to its death,
then NMFS may determine that
additional restrictions are necessary to
conserve sea turtles and prevent
entanglements. Such additional
restrictions may include reducing the
allowable mesh size for pound net
leaders or prohibiting all pound net
leaders regardless of mesh size in
Virginia waters. Should NMFS
determine that an additional restriction
is warranted, NMFS would
expeditiously issue a final rule that
would explicitly state any new gear
restriction as well as the applicable time
period for the restriction, which may be
extended through July 30. The area
where additional gear restrictions might
apply includes the same area as the
initial restriction, namely the Virginia
waters of the mainstem Chesapeake Bay
from the Maryland-Virginia State line
(approximately 38° N. lat.) to the
COLREGS line at the mouth of the
Chesapeake Bay, and portions of the
James River, the York River, Piankatank
River, the Rappahannock River, and the
Great Wicomico River.
The year-round reporting and
monitoring requirements for this fishery
established by the 2002 interim final
rule also remain in effect.
From 12:01 a.m. local time on May 6
through 11:59 p.m. local time on July 15
each year, fishermen are required to
stop fishing with and remove from the
water pound net leaders altogether or
pound net leaders measuring 12 inches
(30.5 cm) or greater stretched mesh and
pound net leaders with stringers,
depending upon the location of their
pound net site as indicated above.
Comments and Responses
On February 6, 2004, NMFS
published a proposed rule that would
prohibit the use of all pound net leaders
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, and all leaders
with stretched mesh greater than or
equal to 8 inches (20.3 cm) and leaders
with stringers 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,
from May 6 to July 15 each year.
Comments on this proposed action were
requested through March 8, 2004.

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Nineteen comment letters from eighteen
different individuals or organizations
were received during the public
comment period for the proposed rule.
Four comment letters provided support
for the action, while 14 letters expressed
their opposition to the proposed
regulations. One comment letter was
neither in favor nor against the
proposed action. Additionally, a
petition signed by 1,077 individuals was
received requesting that the proposal be
withdrawn and terminated. A public
hearing was also held in Virginia Beach,
VA on February 19, 2004, and 11
individuals provided spoken comments.
Three of the 11 individuals also
provided written comments. All of the
spoken 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
recommended that the pound net leader
prohibitions and restrictions extend
throughout the year and that marine
sanctuaries be established in Virginia
waters.
Response: NMFS considered
regulating pound net leaders in
Virginia′s Chesapeake Bay during the
period of May through November,
which would encompass the full time
period when sea turtle presence and
pound net fishing in the Chesapeake
Bay overlap. However, few direct
observations of sea turtle impingement
on and entanglement in pound net
leaders exist after early summer. A
pound net characterization study by the
Virginia Institute of Marine Science
(VIMS) documented the entanglement of
one dead juvenile loggerhead sea turtle
in a pound net leader (approximately 11
inches (27.9 cm)) in October of 2000
(Mansfield et al., 2001), and one dead
loggerhead was found entangled in a
pound net leader in August 2001
(Mansfield et al., 2002). It is not
conclusively known if those animals
were dead prior to entanglement or if
the interaction with the pound net
leader resulted in their death.
Additionally, the level of sea turtle
strandings is substantially diminished
during the summer and fall months
which indicates a lower mortality rate.
With few direct observations of
entanglement in and impingement on
pound net leaders and without high
levels of strandings, similar to those
documented in the spring, there is not
a sufficient basis at this time to

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24999

conclude that pound net leaders are
responsible for high levels of sea turtle
mortality from August through
November. Accordingly, NMFS has
determined that it will not impose gear
restrictions on the Virginia pound net
fishery during the full time period of the
fishery from May through November.
National marine sanctuaries are
designated and managed by NOAA’s
National Marine Sanctuary Program.
The sanctuary designation process takes
several years and is not an option that
could be implemented currently. NMFS
has forwarded the comment to the
National Marine Sanctuary Program for
its consideration.
Comment 2: One commenter
recommended that pound nets be
prohibited in high recreational areas
due to potential hazards to human
personal safety.
Response: Under the ESA, NMFS’
authority to implement restrictions on
activities is restricted to those activities
that affect a species that NMFS manages
(e.g., federally endangered and
threatened sea turtles). Available
information does not indicate that the
level of sea turtle interactions with
pound nets in high recreational areas
necessitates restrictions to protect sea
turtles.
Comment 3: One commenter
recommended that formal ESA section 7
consultation be initiated on the Virginia
pound net fishery to adequately assess
the impacts of this fishery on listed
species.
Response: A formal consultation,
pursuant to section 7 of the ESA, was
previously conducted on the operation
of the Virginia pound net fishery, as
modified by the implementation of the
sea turtle conservation measures
enacted in 2002. This Biological
Opinion, issued on May 14, 2002,
concluded the Virginia pound net
fishery as conducted under NMFS′
implementation of sea turtle
conservation regulations (including the
issuance of an interim final rule that
restricted the use of pound net leaders
in the Virginia Chesapeake Bay from
May 8 to June 30, and required year
round monitoring and reporting) 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. Consultation on this
action has been reinitiated due to the
previously unanticipated take of sea
turtles in less than 12 inches (30.5 cm)
stretched mesh during 2003.
Additionally, a formal section 7
consultation has also been completed on
the proposed issuance of this new
regulation, including review of the

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operation of the pound net fishery with
new sea turtle conservation measures
for the Virginia pound net fishery. Due
to similarities in the proposed actions
and the effects on listed species, the
reinitiated 2002 consultation and the
new consultation on this final rule have
been combined. The Biological Opinion
was issued on April 16, 2004, and
concluded that the proposed action 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. The Incidental Take
Statement exempted the anticipated
annual take of no more than 505
loggerhead, 101 Kemp′s ridley, and 1
green sea turtle in all pounds set in the
action area. These takes are anticipated
to be live, uninjured animals.
Additionally, no more than 1
loggerhead, 1 Kemp’s ridley, 1 green, or
1 leatherback sea turtle are anticipated
to be either entangled or impinged in
leaders throughout the action area from
July 16 to May 5 each year. NMFS
further anticipates that, outside the
leader prohibited area, 1 loggerhead, 1
Kemp’s ridley, 1 green, or 1 leatherback
sea turtle will be entangled in leaders
with less than 12 inches (30.5 cm)
stretched mesh from May 6 to July 15
each year. For the purposes of the
analysis in the Biological Opinion,
entanglements and impingements are
considered to result in sea turtle
mortality. No incidental take of
hawksbill sea turtles or shortnose
sturgeon is anticipated.
Comment 4: Two commenters stated
that the authority and experience to
regulate state fisheries rests with the
Virginia Marine Resources Commission
(VMRC) and not NMFS, and, therefore,
characterized this action as
inappropriate. One additional
commenter believed that NMFS
regulatory and decision making
processes are being dictated by
environmental groups.
Response: NMFS agrees that the
authority to regulate state fisheries rests
with the respective state agency, in this
case, the VMRC. However, VMRC
cannot authorize incidental take of
threatened sea turtles; only NMFS has
the authority to do so. NMFS has the
authority and obligation to protect and
conserve all sea turtles that occur in
U.S. waters that are listed as endangered
or threatened under the ESA, regardless
of whether they occur in Federal or state
waters. This action is taken under the
authority of the ESA to conserve sea
turtles listed as threatened or
endangered.
NMFS bases its decision on the best
available data and knowledge of the

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situation; the decision is not dictated by
the opinion of any outside entity, be it
an environmental group, industry
participant, or other stakeholder.
Comment 5: One commenter noted
that recent sea turtle mortalities in
Virginia hopper dredging operations
have been higher than observed takes in
the Virginia pound net fishery, and
dredging has been allowed to continue.
Two additional commenters felt that
there was inequity with how NMFS
addresses and regulates potential
impacts to sea turtles.
Response: Under section 7 of the ESA,
Federal agencies must consult with
either NMFS or the U.S. Fish and
Wildlife Service (USFWS) to ensure
their proposed agency actions do not
jeopardize the continued existence of
listed species. The Norfolk and
Baltimore Districts of the Army Corps of
Engineers (ACOE) have previously
consulted with NMFS on dredging
operations in the Virginia Chesapeake
Bay. The impacts of hopper dredging on
listed species were previously
considered via formal section 7
consultations (NMFS NER 2002, NMFS
NER 2003), and Incidental Take
Statements were prepared to account for
the anticipated take in these operations.
From July 2000 to October 2003, 54 sea
turtles have been taken by Virginia
dredge operations. Some of the
incidents involved decomposed turtle
flippers and/or carapace parts, but most
of these takes were fresh dead turtles.
Most of these previous sea turtle takes
were exempted in the Incidental Take
Statements of the Biological Opinions.
Efforts are ongoing to work with the
ACOE to further minimize this take and
enhance existing monitoring programs.
NMFS continues to work with the
ACOE to reduce sea turtle takes in
dredging operations, as well as to
research and attempt to minimize sea
turtle mortality from other sources (e.g.,
fisheries, vessels, debris/water quality).
NMFS attempts to consider all of the
impacts to sea turtles cumulatively and
to reduce threats from all known
sources. NMFS and USFWS are in fact
working to minimize the impacts to sea
turtles from other activities as well (e.g.,
nesting habitat degradation, marine
debris, dredging, power plant
impingement). Nevertheless, 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

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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 put sea turtles at
risk.
Comment 6: Eight commenters felt
that leaders with greater than or equal
to 12 inches (30.5 cm) stretched mesh
and leaders with stringers result in the
most sea turtle mortalities, and
specifically recommended the status
quo option. One of the commenters
noted that decreasing the allowable
mesh size to less than 8 inches (20.3 cm)
stretched mesh would not help sea
turtles and solve the stranding problem,
but, because the problem is with the sea
turtles, it would only hurt the
fishermen.
Response: Based on historical
observations of pound net leaders
(Bellmund et al., 1987) and for the
reasons discussed in the preamble to the
2002 rule, NMFS recognizes that the
frequency of sea turtle takes in leaders
with stretched mesh 12 inches (30.5 cm)
and greater and leaders with stringers
may be higher than in smaller mesh
leaders. However, during 2002 and
2003, NMFS documented sea turtle
interactions with mesh leaders ranging
from 14 inches (35.6 cm) stretched mesh
down to 8 inches (20.3 cm) stretched
mesh. All but one of these takes were in
the leader prohibited area, as defined in
this final rule. Therefore, NMFS has
determined to prohibit all leaders in this
area to prevent takes in the area with
previous high sea turtle/pound net
interactions.
The justification for the further leader
mesh size restriction included in the
proposed rule was based upon the
occurrence of sea turtle takes in 8 inch
(20.3 cm) and greater stretched mesh
leaders. However, based upon
additional analysis of impingement to
entanglement ratios by NMFS, it
appears that restricting mesh size to less
than 8 inches (20.3 cm) stretched mesh
would not necessarily provide
additional conservation benefit to sea
turtles, over that provided by restricting
mesh size to less than 12 inches. In
addition to mesh size, the frequency of
sea turtle takes appears to be a function
of where the pound nets are set, with
pound nets set in certain areas having
a higher potential for takes for a variety
of possible reasons, such as depth of
water, current velocity, and proximity to
certain environmental characteristics or
optimal foraging grounds. For instance,
it is possible that takes may continue to
occur on 7.5–inch (19.1–cm) stretched
mesh leaders if set in certain
geographical areas. Additional analyses,

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and perhaps data collection, will be
completed that may provide insights
into the relationship between mesh size
and sea turtle interactions. At this time,
the mesh size threshold that would
prevent sea turtle entanglements has not
been determined for mesh size below 12
inches (30.5 cm). As such, NMFS is
retaining the mesh size restriction
included in the 2002 interim final rule,
which is the restriction of leaders with
greater than or equal to 12 inches (30.5
cm) stretched mesh and leaders with
stringers, in areas outside the leader
prohibited area. It should also be noted
that during the public comment period,
it was recognized that an 8–inch (20.3–
cm) stretched mesh leader may in fact
be slightly smaller than 8 inches (20.3
cm), after it is coated and hung in the
water. For example, NMFS observers
measured nets to the nearest 0.125
inches (0.318 cm), so a sea turtle
entanglement recorded in an 8–inch
(20.3–cm) stretched mesh leader may
have in fact been in a leader with 7.95–
inches (20.2–cm) stretched mesh.
Whenever NMFS mentions that sea
turtles have been taken in 8 inch (20.3
cm) stretched mesh leaders, it refers to
nets that may have been slightly smaller
or larger (within 0.125 inches (0.318
cm)) than 8 inches (20.3 cm).
Comment 7: One commenter
continued to be concerned with the
potential take in leaders with less than
8 inches (20.3 cm) stretched mesh,
particularly as a result of impingement.
Response: NMFS has only
documented sea turtles in leaders with
8 inches (20.3 cm) and greater stretched
mesh 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), NMFS recognizes the
possibility that entanglements in leader
stretched mesh smaller than 8 inches
(20.3 cm) could occur. There are
differences between gillnet gear and
pound net leaders (e.g., monofilament
vs. multifilament material; drift, set, and
runaround vs. fixed stationary gear;
gilling vs. herding fishing method),
which likely factor into the potential for
sea turtle interactions and should be
considered when conducting any mesh
size comparison. NMFS does not expect
sea turtle impingements on pound net
leaders to occur outside the leader
prohibited area, because of the lack of
observed impingements on pound net
leaders outside of this area. Sea turtles
may continue to be entangled in leaders
with less than 12 inches (30.5 cm)
stretched mesh outside the leader
prohibited area. Further, given that only
one turtle was found entangled outside
the leader prohibited area in two years

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of monitoring, NMFS has chosen to
keep the restriction to leaders with
greater than or equal to 12 inches (30.5
cm) stretched mesh. However, NMFS
will continue monitoring pound nets for
sea turtle interactions and the
framework mechanism included in this
final rule will enable the enactment of
additional management measures if
determined necessary.
Comments on Validity of Scientific
Information
Comment 8: Sixteen commenters felt
that the limited observer data do not
support the conclusion that the pound
net fishery is a major source of
mortality, especially as the spring
strandings have been much higher than
the observed interactions in pound net
gear. Three commenters believed sea
turtles will not biologically benefit with
the proposed measures given the limited
take data. One commenter additionally
felt that this regulation, and its
supporting justification, establishes a
bad precedent for managing Virginia
fisheries.
Response: In 2002 and 2003, 23 sea
turtles were found either entangled in or
impinged on pound net leaders, while
in May, June and the first half of July
of 2002 and 2003, approximately 563
sea turtles were found stranded on
Virginia beaches. NMFS acknowledges
that other factors likely contribute to
spring sea turtle mortality in Virginia,
and NMFS does not assume that all sea
turtle strandings are the result of pound
net interactions. Sea turtle mortality
sources are difficult to detect from
evaluating the stranded animal. Few sea
turtles strand with evidence of fishery
interactions, but the lack of gear on a
carcass is not necessarily indicative of a
lack of fishery interaction. NMFS has
observed other fisheries and
investigated other potential causes, such
as dredge operations, for the annual
spring sea turtle mortality event and
determined that natural or non-fishing
related anthropogenic causes are not
consistent with the nature and timing of
most of the strandings (67 FR 15160,
March 29, 2002, 69 FR 5810, February
6, 2004). For instance, during the
approximate time period of the
proposed measures (May 16 to July 31,
2003), a preliminary count of 26 of 375
turtles were found on Virginia beaches
with carapace/plastron damage or
propeller-like wounds. It is unknown
how many of these injuries were pre or
post-mortem. Unlike for pound net
leaders, the level of sea turtle
interactions with other potential
mortality sources (e.g., other fisheries)
has not yet been conclusively
determined as few takes have been

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25001

documented. As noted above, NMFS has
data showing that pound net leaders
result in sea turtle entanglement and
impingement. NMFS believes that it is
likely that pound nets contribute to, but
do not cause all of, the high sea turtle
strandings documented each spring on
Virginia beaches. Under the ESA, NMFS
is responsible for protecting sea turtles
from various mortality sources.
There are several caveats, ones more
likely to result in underestimates,
associated with the pound net
monitoring studies that should be noted
when evaluating the number of animals
found in the gear. The sea turtles
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 a few feet
below the surface cannot be observed
due to the poor water clarity in the
Chesapeake Bay. In several instances in
2002 and 2003, due to tide state and
water clarity, even the top line of the
leader was unable to be viewed.
Additionally, NMFS’ sampling effort
was confined to two boats in 2002 and
one vessel during 2003, and each net
could not be sampled during every tidal
cycle, every hour, or even every day.
Some impingements, and some
entanglements, were undoubtedly
missed as a small fraction of the fishing
effort was observed. Due to funding and
staff constraints, NMFS observers did
not monitor pound nets after early June
in 2002 and 2003, and did not monitor
during the high spring stranding period
in 2003. As such, some sea turtle
entanglements and/or impingements
could have been missed later in the
season. Given these caveats, even if
pound nets caused every sea turtle
mortality in the Virginia Chesapeake
Bay, it is not expected that the number
of observed sea turtle interactions
would equal the number of strandings.
It should also be noted that a revised
analysis by NMFS found that nets were
observed a total of 838 times in 2002
and 2003, not 1463 times as noted in the
draft EA. This modification is a factor of
discounting the non-active nets and the
nets that were not able to be completely
observed due to shallow water depth
and lack of boat access.
NMFS considers the monitoring
information collected in 2002 and 2003
to be noteworthy, given that
entanglements were not previously
anticipated on leaders with less than 12
inches (30.5 cm) stretched mesh and
impingements on leaders were
observed, a phenomenon not previously

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believed to occur with such frequency.
NMFS believes that this data represent
new information on the interactions
between sea turtles and pound net
leaders and should be used to further
reduce takes in this fishery.
Sea turtles will benefit from this
action, as pound net leaders entangle
and impinge these animals and this
action will reduce these interactions.
The exact population benefit cannot be
determined, but as sea turtle
populations found in the Virginia
Chesapeake Bay have not yet recovered,
diligence must be used to reduce
mortality sources. Loggerheads and
Kemp’s ridleys have been found
interacting with pound net gear and are
the most common species found in the
Chesapeake Bay. 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). 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).
Kemp’s ridleys are considered to be
one of the world′s most endangered sea
turtle species. The population has been
drastically reduced from historical
nesting numbers, but the Turtle Expert
Working Group (1998, 2000) indicated
that the Kemp’s ridley population
appears to be in the early stage of a
recovery trajectory. Nesting data,
estimated number of adults, and
percentage of first time nesters have all
increased from lows experienced in the
1970’s and 1980’s. From 1985 to 1999,
the number of nests observed at Rancho
Nuevo and nearby beaches has
increased at a mean rate of 11.3 percent
per year, allowing cautious optimism
that the population is on its way to
recovery. Given the vulnerability of
these populations to chronic impacts

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from human-related activities, the high
level of spring sea turtle mortality in
Virginia must be reduced to help ensure
that these populations of loggerheads
and Kemp’s ridleys recover.
Additionally, most of the turtles
found in Virginia waters, as well as
found stranded during the spring, are of
the juvenile life stage (Mansfield et al.,
2001, Musick et al., 2000, Musick and
Limpus, 1997). 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 mortality documented
during the last several years may
negatively affect recovery. Any action
that helps reduce sea turtle mortality
will biologically benefit these species.
Regardless of whether NMFS issued
this final regulation, if NMFS identifies
additional sea turtle mortality sources,
NMFS would consider additional
management actions pursuant to its
obligations under the ESA. Therefore,
this final rule, or the justification for it,
does not set any precedent.
Comment 9: Two commenters
expressed their concern with closing a
portion of the fishery without a
complete understanding of the problem
and recommended more research,
particularly with respect to
impingements.
Response: NMFS is committed to
undertaking additional research to not
only continue studying the interactions
between pound nets and sea turtles, but
also to continue monitoring and
investigating sea turtle mortality in
Virginia during the spring. If any
scientific research results or future
study plans are available that would
provide more information, NMFS would
welcome receiving or discussing those
studies. However, given the results of
the pound net monitoring studies in
2002 and 2003, it is necessary to act on
the results at this time to minimize
additional sea turtle entanglements and
impingements in the future. The data
show that sea turtles are entangled in
and impinged on leader mesh sizes
smaller than what are currently
restricted and most of these interactions
have occurred in a specific geographical
area (i.e., in the leader prohibited area).

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Note that at this time NMFS chose to
retain the leader mesh size restriction as
included in the previous action on this
fishery (in areas outside the leader
prohibited area) in order to complete
additional analyses, and perhaps data
collection, on the conservation benefit
of different mesh size thresholds. NMFS
is committed to continuing to explore
the issue as well as working with the
industry to develop a gear modification
solution that would minimize sea turtle
takes and retain an acceptable level of
target catch.
Comment 10: Two commenters
disagreed that most impingements lead
to mortality, given the normal diving
behavior of sea turtles, the variable
strength of the tidal currents, and the
lack of observation time for the
impinged animals.
Response: NMFS observers
documented 14 sea turtles, 13 of these
alive, impinged on pound net leaders by
the current, during monitoring surveys
in 2002 and 2003. When an animal was
found impinged on the leader, it was
immediately released from the net by
the observer. Impinged sea turtles were
not observed on the net for any length
of time, due to the need to release an airbreathing endangered or threatened
species from fishing gear as soon as the
animal is found, and the uncertainty
surrounding how long the animal had
already been impinged and how
potentially compromised it was. If an
animal was impinged on a leader by the
current with its flippers inactive, based
on other observations of impinged sea
turtles, 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 of
the live impingements occurred near the
surface, but seven turtles were found
underwater, unable to reach the surface
to breathe, with an average of 3 hours
until slack tide. 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.
While a public comment noted that
sea turtles in Virginia have been found
to remain submerged for durations of 40
minutes under normal conditions, it is
unlikely that struggling, physiologically
stressed sea turtles in fishing gear could
do the same, as forcibly submerged
turtles rapidly consume their oxygen
stores (Lutcavage and Lutz, 1997). In
forcibly submerged loggerhead turtles,
blood oxygen was depleted to negligible
levels in less than 30 minutes (Lutz and

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Bentley, 1985 in Lutcavage and Lutz,
1997). The rapidity and extent of
internal changes are likely functions of
the intensity of underwater struggling
and the length of submergence. For
instance, oxygen stores were depleted
within 15 minutes in tethered green sea
turtles diving to escape (Wood et al.,
1984 in Lutcavage and Lutz, 1997).
Given that some forcibly submerged sea
turtles on pound net leaders have been
observed struggling, it is unlikely that
the submergence duration of impinged
animals would be the same as for nonimpinged sea turtles. Besides the one
specimen of an unknown species of sea
turtle found in June 2003, the turtles
observed impinged in 2002 and 2003
were not observed moving vertically on
the net, given that in most cases, at least
one of their flippers were rendered
inactive as they were held against the
net. The unidentified sea turtle found in
June 2003, that either slipped deeper
down the net or escaped before the
observer could evaluate it further, had
both of its front flippers active. Four
impinged sea turtles had their head and/
or flipper through the leader mesh, but
because the part was not wrapped
multiple times in the net, it was not
considered entangled. Often the
impinged turtles were documented as
held against the nets by very slight,
almost slack, currents. It is unknown
how long those animals were impinged
on the net before being observed. It
could be that those animals were held
against the net for more than
approximately an hour and when
observed impinged with the slight
current, they were already in a
compromised state. If a sea turtle
remains alive after an impingement and
swims freely, it could become impinged
on or entangled in another nearby
pound net leader. This animal would
likely already be in a compromised
state, which would further augment the
impacts of forced submergence.
Comment 11: Five commenters noted
the difference between nearshore and
offshore nets along the Eastern shore of
Virginia, with respect to the different
current strength, water depth and
observed turtle takes. Two of these
commenters felt that the potential for
impingements could not be extrapolated
to the entire fishery or to nets in
shallower waters with weaker currents.
Response: NMFS observed sea turtles
impinged on nets with what appeared to
be varying current strengths. NMFS
agrees that additional research is
necessary on the current strength
needed to impinge a sea turtle, and
recognizes that there appear to be
differences between nearshore and
offshore nets with respect to

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impingement potential and sea turtle
interactions. It was NMFS′ previous
assumption that all net locations in the
leader prohibited area experienced
similar conditions, namely relatively
high currents regardless of water depth,
given that impingements have been
documented in those nets set in the
Western Bay and along the Eastern
shore and NMFS’ observations
documented swift moving currents in
all of those net locations. Information
from the public comments suggested
that the differences between nearshore
and offshore nets are noteworthy, and
the difference in impingement potential
must be considered. Based on these
comments, NMFS re-analyzed the 2002
and 2003 monitoring records and the
data do support that there is a
statistically significant difference
between observed sea turtle takes in
nearshore and offshore nets. In 2002 and
2003, offshore nets accounted for all of
the observed impingements (n=14) and
8 of the 9 observed entanglements. One
dead loggerhead was documented in a
nearshore 8 inch (20.3 cm) stretched
mesh leader in June 2003. During 2002
and 2003, there were 345 surveys of
nearshore nets and 480 surveys of
offshore nets. Thirteen surveys did not
have a nearshore or offshore
designation. Based upon the
observations of nearshore nets, it does
appear that they pose a significantly
lower risk to sea turtles and as such,
NMFS has modified the leader
prohibited area in this final rule to
exclude nearshore nets. Nearshore nets
are defined to include those nets with
the inland end of their leader 10
horizontal feet (3 m) or less from the
mean low water line, and offshore nets
include all other nets set in various
water depths. The revised leader
prohibited area includes all areas where
sea turtles were documented impinged
on pound net leaders.
Generally, areas close to shore are
often shallower and have less current
than those areas further from shore, but
exceptions may occur because
environmental conditions can vary
locally. Distance from shore is likely a
proxy for other factors (e.g., water
depth, current speed) influencing sea
turtle interaction rates. For this action,
distance from the mean low water line
was used as a common characteristic of
those nets considered to be nearshore.
NMFS will be collecting more data on
current strengths in the Virginia
Chesapeake Bay, and until additional
information may indicate otherwise,
NMFS considers distance from shore to
be suitable to separate nearshore and
offshore nets.

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Comment 12: Three commenters
disagreed with NMFS’ statement that
there are unreported sub-surface sea
turtle mortalities in pound net leaders,
because the previous side scan sonar
surveys did not detect any sea turtle
takes.
Response: In 2001, 7 days of side scan
sonar surveys were completed from May
24 through August 3 (with no surveys
completed from June 24 to July 22 due
to weather), for a total of 825 images for
the 55 active pound net leaders
surveyed (Mansfield et al., 2002a). In
2002, 9 days of surveys were conducted
from May 22 to June 27, for a total of
1,848 images for the 61 active pound net
leaders surveyed (Mansfield et al.,
2002b). In 2001 and 2002, surveys were
conducted almost equally in the
Western Bay and along the Eastern
shore. No sub-surface acoustical
signatures were noted during these
surveys. The use of side scan sonar as
a means to detect sub-surface sea turtle
entanglements may have potential, but
additional research on sub-surface
interactions is needed. Mansfield et al.
(2002a, 2002b) state that a number of
factors may influence the use of side
scan sonar, including weather, sea
conditions, water turbidity, the size and
decomposition state of the animal, and
the orientation of the turtle in the net.
NMFS recognizes that survey
scheduling is limited by weather and
sea conditions, but considers that side
scan survey results may continue to be
affected by water turbidity, the size and
decomposition state of the animal, and
the orientation of the turtle in the net.
These issues must be addressed in
future surveys before conclusively
determining that sea turtles are not
found in pound net leaders sub-surface.
NMFS conducted forward searching
sonar testing in April 2003 to further
explore the issue, but due to technical
difficulties (e.g., narrow band width,
time needed to familiarize staff with
equipment and image interpretation,
scheduling), testing had to be curtailed
while visual monitoring was conducted.
Additional sonar testing is anticipated
to be conducted in the spring of 2004.
However, because sea turtles can be
present throughout the water column, it
is possible that subsurface
entanglements and impingements occur.
Data indicate that while the spring
water column temperatures are stratified
and sea turtles may prefer warmer
surface waters, sea turtles may also be
found at depth. Sea turtles generally
inhabit water temperatures greater than
11° C (Epperly et al., 1995), and
loggerheads and Kemp’s ridleys in
Virginia waters forage on benthic
species. As sea turtles use the

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Chesapeake Bay as developmental
foraging grounds (Byles, 1988,
Lutcavage and Musick, 1985, Musick
and Limpus, 1997), they will be
periodically near the bottom if they are
foraging and may come in contact with
pound net leaders at depth. Musick et
al. (1984) found that crustaceans
aggregate on large epibiotic loads that
grow on the pound net stakes and
horseshoe crabs (a preferred prey for
loggerheads) become concentrated at the
bottom of the net. Additionally,
Mansfield and Musick (2003) found that
seven sea turtles (six loggerheads and
one 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). Further, Byles (1988)
and Mansfield and Musick (2003, 2004)
found that sea turtles in the lower
Chesapeake Bay commonly make dives
of over 40 minutes during the day.
While the percentage of time spent at
each depth range needs to be clarified,
it is improbable that turtles, during a 40
minute period, are never found at
depths deeper than the depth at which
sea turtles were observed entangled and
impinged (e.g., approximately 6 feet (1.8
m)). This information suggests that sea
turtles will be found through the water
column, even though they may prefer
warmer surface waters. While side scan
sonar survey results have not
documented the sub-surface
entanglement of sea turtles in two years
of surveys, NMFS believes these results
should be treated cautiously,
recognizing the potential limitations of
this technique and known sea turtle
behavior patterns.
Comment 13: One commenter
disagreed with NMFS′ statement that
the mesh size characteristics are
generally consistent from the top to
bottom of the leader.
Response: It is possible that different
nets in different areas of the Chesapeake
Bay are set with different mesh sizes
from top to bottom. The statement in the
proposed rule was that pound net leader
characteristics are generally consistent
from top to bottom. NMFS conducted
pound net leader observations during
2002 and 2003 for a total of 126
individual active nets observed, and
documented different mesh sizes in the
top and bottom of the leader in only one
or two nets, but notes that nets were not
routinely monitored from top to bottom.
In 2002 and 2003 combined, there were
approximately 26 nets that did change
mesh sizes from the shallower end to
the deeper end of the leader (moving
horizontally along the leader), but that
is not what was referred to in NMFS′
original statement. Additionally, NMFS

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discussed this issue with four pound net
fishermen and this subset of fishermen
indicated that they used one mesh size
in their leaders.
Comment 14: One commenter
disagreed with NMFS′ statement that
pound net leaders in the Virginia
Chesapeake Bay are one mile (1,609 m)
long.
Response: The Economic and Social
Environment section (Section 4.3) of the
draft EA stated that ‘‘...fish swimming
along the shore are turned towards the
pound by the leader (sometimes a mile
long), guided into the heart, and then
into the pound...’’ The purpose of this
paragraph was to provide background
information on the configuration of
pound net gear, and it is NMFS’
understanding that in certain areas
pound net leaders can be one mile
(1,609 m) long (Dumont and Sundstron,
1961). Based upon field observations in
Virginia however, NMFS agrees with the
comment that pound net leaders in
Virginia do not reach one mile (1,609 m)
long. In fact, Section 28.2–307 of the
Code of Virginia restricts the total length
of a single fixed fishing device to 1,200
feet (365.8 m) or less. The reference to
the leader length of one mile (1,609 m)
was deleted in the final EA.
Comment 15: One commenter noted
that pound net operations are critical
sources of food for birds, protected
under the Migratory Bird Treaty Act, in
the Virginia Chesapeake Bay, and NMFS
failed to consider this biological benefit
in its analysis. Further, this commenter
felt that pound net operations are
beneficial for sea turtles, as important
sources of food from the discards of the
pound nets.
Response: NMFS recognizes that a
variety of birds feed on the catch and
discards from the pound net fishery.
That potential benefit to avian species
was analyzed in the final EA. However,
birds have also been documented
entangled, dead and alive, in the leaders
and have been documented entangled
and entrapped in the pounds and hearts,
both dead and alive. Monitoring efforts
in 2002 and 2003 documented several
dead birds entangled in leaders, hearts,
or pounds with varying mesh sizes,
including 12 pelicans, 10 cormorants, 6
gulls, 2 gannets, 2 common loons, 1
royal tern, and 130 birds of unidentified
species. Since individual nets were
surveyed multiple times, and since it is
difficult to identify decomposing birds,
some birds may have been counted
multiple times. Regardless, the avian
mortality documented during 2002 and
2003 does not represent total mortality
to these species, as surveys documented
only a portion of total fishing effort.
Birds foraging in Chesapeake Bay may

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exploit pound nets for prey but they are
not dependent on this source of forage.
NMFS believes that the risk of mortality,
disruption of normal feeding behaviors,
and other unknown ecological effects to
avian species resulting from pound nets
outweighs any perceived benefit of
concentrating prey resources.
Sea turtles have been found alive and
uninjured in the pounds of pound net
gear, and are assumed to be foraging on
the entrapped species. Tagging data
collected by VIMS suggest that some sea
turtles exhibit strong site fidelity to
certain pound nets (Mansfield and
Musick, in press). Turtles may also feed
on the discards of pound net gear
outside the pound, but the harm or
benefit of this foraging resource are
unknown. Turtles′ proximity to the gear
may in fact increase the potential for
interactions with the leaders. NMFS
believes the negative impact from
interactions with the leaders outweighs
any potential benefit from the
concentration of prey items or
availability of discards. It is also
unknown what impact pound nets have
on the behavior and development of sea
turtles in the Chesapeake Bay.
Comments Related to Stranding Levels
Comment 16: Thirteen commenters
stated that the proposed pound net
restrictions will not solve the high
spring sea turtle stranding problem in
Virginia waters, and NMFS should
continue to explore other sources of sea
turtle mortality (e.g., vessel impacts,
habitat degradation, water quality, lack
of prey items, other fisheries). One of
the commenters recommended that the
menhaden fishery be regulated so there
would be more food and better water
quality for marine species, sea turtles
included. Observer coverage on other
spring fisheries in Virginia, as well as
continued observer coverage on the
pound net fishery, was recommended
by four of the commenters.
Response: As discussed in Comment
8, NMFS does not believe that pound
nets are the sole source of spring turtle
mortalities in Virginia. NMFS does
believe that pound nets play a role in
the annual spring stranding event.
Prohibiting a gear type known to
entangle and impinge sea turtles in an
area with documented takes will protect
sea turtles from potential mortality
associated with these pound net leaders,
and reduce the strandings that occur
from this gear type.
Since 2001, several fisheries have
been observed in Virginia with few
documented sea turtle takes. However,
NMFS recognizes that variations in
fishery-turtle interactions may occur
between years, and is committed to

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continued monitoring of fisheries in and
around Virginia. The NMFS 2004
monitoring program is anticipated to
include observer coverage of the gillnet
fisheries in offshore and nearshore
Virginia and Chesapeake Bay waters;
alternative platform observer coverage
of the large mesh gillnet black drum
fishery; observer coverage of the trawl
and scallop dredge fisheries in offshore
Virginia waters; investigations into sea
turtle interactions with the whelk and
crab pot fisheries; and pound net
monitoring. NMFS is also working to
place observers on board the menhaden
purse seine fishery in the Chesapeake
Bay. NMFS will also be providing
funding for professional necropsies and
associated lab costs on fresh dead sea
turtles in Virginia to get a better picture
of the health of a subset of stranded sea
turtles, and working with Virginia
organizations to institute an educational
campaign aimed at reducing sea turtle
interactions with recreational fishermen
and boaters. NMFS will 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 recognizes that water quality
and habitat degradation from many
sources can influence sea turtle
distribution, prey availability, foraging
ability, reproduction, and survival. Sea
turtles are not very easily directly
affected by changes in water quality or
increased suspended sediments, but if
these alterations make habitat less
suitable for turtles and hinder their
capability to forage, eventually they
might tend to leave or avoid these less
desirable areas (Ruben and Morreale,
1999). The Chesapeake Bay watershed is
highly developed and may contribute to
impaired water quality via stormwater
runoff or point sources. However, due to
the volume of water in the mainstem
Chesapeake Bay, the impacts of
pollutants may be slightly reduced
compared to certain tributaries. In a
characterization of the chemical
contaminant effects on living resources
in the Chesapeake Bay’s tidal rivers, the
mainstem Bay was not characterized
due to the historically low levels of
chemical contamination, but the James
River was characterized as an area with
potential adverse chemical contaminant
effects to living resources (Chesapeake
Bay Program Office 1999). NMFS,
USFWS, and the Environmental
Protection Agency (EPA) are currently
engaged in ESA section 7 consultations
on EPA’s water quality standards and
aquatic life criteria. Through those
consultations, the effects of EPA’s water

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quality standards will be evaluated with
respect to potential impacts to listed
species.
NMFS recognizes that the blue crab
population in the Chesapeake Bay has
declined from previous levels (Seney,
2003). A diet analysis of stranded
loggerhead and Kemp’s ridley sea turtles
in Virginia found that the diet of
loggerheads appears to have shifted to a
fish dominated diet in the mid–1990s
and in 2001 to 2002, from horseshoe
crab dominance during the early to
mid–1980s and blue crab dominance in
the late 1980s and early 1990s (Seney,
2003). Menhaden, croaker, seatrout,
striped bass and bluefish were the fish
species most frequently found in the
recent loggerhead samples, with all of
these fish species being commercially
important in Virginia’s gillnet and
pound net fisheries (Mansfield et al.,
2001, 2002a in Seney, 2003). Seney
(2003) stated the fish species
composition and the fact that few turtles
had consumed both fish and scavenging
mud snails suggests that the turtles
examined were feeding on primarily
live and fresh dead fish from nets. It
remains uncertain whether these results
are biased because sampling was
conducted on only stranded animals
and it could be that more fish was found
in the stomachs of stranded loggerheads
because some were interacting with
fishing gear, which contributed to their
demise. Based upon these results
however, it does appear that
loggerheads are shifting their diet and
the decline of the horseshoe and blue
crab populations may be increasing
loggerheads’ interaction rate with
fishing gear. The future ramifications of
this are unclear and it warrants further
research. A small subset of Kemp’s
ridleys was sampled and data suggest
that blue crabs and spider crabs were
key components of the Virginia Kemp’s
ridley diet from 1987 to 2002. However,
based on the body condition of the
majority of stranded turtles, sea turtles
in the Chesapeake Bay do not appear to
be compromised by a lack of food. The
decline of the horseshoe and blue crab
populations may result in a diet shift to
different species (e.g., different species
of crab) or potential move to a different
foraging area.
Again, it should be stressed that
NMFS believes that high spring
strandings may be a result of an
accumulation of factors, most notably
fishery interactions, but pound net
leaders are known to take sea turtles and
NMFS believes that interactions with
pound net leaders likely contribute to
the overall strandings.
Comment 17: Twelve commenters
noted that the number of active pound

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nets (large mesh and stringer leaders in
particular) have decreased since the
1980s while the number of strandings
have increased in recent years.
Response: NMFS agrees that there are
currently fewer pound net leaders, in
particular those utilizing large mesh and
stringer leaders, in the Virginia
Chesapeake Bay in comparison to the
1980s. It is unclear whether the
reduction in pound nets has been
consistent throughout the Virginia
Chesapeake Bay, or whether the number
of pound nets in one area has decreased
significantly and the number in another
area has remained relatively the same or
potentially increased. The number of
pound net licenses issued in Virginia
has remained the same since 1994, due
to a limited entry program, and one
license is assigned to each pound net.
So while the number of pound nets has
apparently decreased since the 1980s,
the number of licenses issued (n=161)
has been approximately the same since
1994. This suggests that the number of
pound nets in the Virginia Chesapeake
Bay has been approximately the same
since 1994, but NMFS recognizes that
the number of active nets in any given
season may vary among years. Also,
NMFS notes that pound net landings
from 1990 to 1999 have increased at an
annual rate of 8.33 percent, while the
annual revenues from pound net
landings have increased by 17.31
percent (Kirkley et al., 2001).
Regardless, NMFS disagrees with the
conclusion that some turtle strandings
cannot be attributed to pound net
leaders because strandings have
increased while the number of leaders
have decreased. NMFS recognizes that
the increase in documented sea turtle
mortalities could be a function of the
increase and improvement in the level
of stranding effort, coverage, and
reporting that has occurred, especially
along the Eastern shore, and perhaps a
function of the apparent increase in
abundance of the southern population
of loggerheads, which make up
approximately 50 percent of the
loggerheads found in the Virginia
Chesapeake Bay. Pound net leaders
(regardless of how many are in the
Chesapeake Bay) still entangle and
impinge sea turtles and the ESA
requires NMFS to use the best available
scientific information to protect the
species. There have been documented
sea turtle entanglements in leaders that
were determined to have caused
mortality by drowning. Impingements
represent a take under the ESA that may
lead to mortality.
Comment 18: Four commenters
acknowledged that elevated strandings
abate by the end of June or early July

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and the pound net fishery operates
throughout the turtle residency period
in the Chesapeake Bay. They noted that
if pound nets were the problem, one
would expect strandings to remain at
elevated levels throughout the season.
One of the commenters noted that there
have been no documented takes after
June 15, 2003, to the present.
Response: From 1995 to 2002, the
average monthly sea turtle strandings
for Virginia (oceanside and Chesapeake
Bay combined) were the highest in June
(117), followed by May (39), July (28),
August (26), October (18), and
September (17). Strandings do continue
throughout the sea turtle residency
period, but not at the elevated levels
seen in the spring. As noted in
Comment 1, to NMFS’ knowledge, there
have been 2 observed turtles in pound
net leaders after the spring, but there
also has been very limited observer
coverage during that time. It is possible
that entanglements and impingements
are occurring in pound net leaders after
the spring, and contributing to stranding
levels, but there are no notable
observations to suggest that, or that the
frequency of takes is the same as in the
spring. It is also possible that sea turtles
are more vulnerable to pound net
entanglement and impingement in the
spring, as they are moving into the
Chesapeake Bay, migrating through a
concentration of pound nets set near the
mouth of the Chesapeake Bay. NMFS
acknowledges that additional
information would be beneficial to
adequately assess the risk of
entanglement/impingements in pound
net leaders after the spring, and to
determine why sea turtles may not be
interacting as frequently with leaders
during this time. The only directed
study on temporal entanglements dates
back to the 1980s, and the sampling area
was concentrated in the western
Chesapeake Bay. Bellmund et al., (1987)
stated that entanglements in pound net
leaders began in mid-May, increased in
early June, and reached a plateau in late
June. In 1984, surveys were conducted
through September, and no
entanglements were observed after late
June. Bellmund et al. (1987) further
stated that these data suggest pound
nets pose mortality threats to sea turtles
in the Chesapeake Bay for a relatively
short period of the year even though
most sea turtles reside in the
Chesapeake Bay from May through
October. Additionally, from 1981 to
1984, 14 loggerheads and 2 Kemp’s
ridleys were monitored via radio
tracking (Byles, 1988). Three of the
animals became entangled in leaders;
the other animals tracked in the summer

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and fall were able to forage around the
nets with little apparent entanglement
threat (Byles, 1988, Musick et al., 1994,
Mansfield et al., 2002b).
NMFS acknowledges that there are
few documented sea turtle interactions
with pound net leaders after mid-June.
However, there also have not been any
directed monitoring efforts during this
time; NMFS monitoring in 2003 ended
on June 11 due to funding and logistical
constraints. Monitoring was not
conducted during the peak of the 2003
stranding period and it is possible that
many more sea turtles would have been
observed entangled in or impinged on
leaders during that time. As stated in
the responses to Comments 8 and 16,
NMFS does not believe pound nets
cause all of the strandings in Virginia,
and as noted in the proposed rule, a
cause and effect relationship between
pound net interactions and high spring
strandings cannot be statistically
derived based on the available data,
even though 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. The facts remain that
turtles have been observed entangled in
and impinged on pound net leaders
during the spring.
Comment 19: Two commenters noted
that the proposed rule failed to identify
what action NMFS would take if the
final rule is implemented as proposed
and high strandings continue in the
spring.
Response: Monitoring of potential
mortality sources will continue to occur
this spring, and the information
gathered from these monitoring
initiatives would inform what action
NMFS would take if strandings
continue. It is possible that additional
mortality sources may be identified and
appropriate actions taken. NMFS
believes this final rule will result in
reduced sea turtle mortality associated
with pound net gear in the Chesapeake
Bay. The final rule includes the
framework mechanism that enables
NMFS to 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.
Comment 20: Two commenters felt
that healthy sea turtles can forage
around the pound nets without being
entangled or impinged, and the animals
observed in pound net gear, and found
stranded on Virginia′s beaches, are sick,
diseased (like some of those found in
Florida), cold stunned, and tired. One
additional commenter felt that
strandings are a result of natural

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selection, and that NMFS should not
interfere with lack of recovery of those
animals with weak genes.
Response: The ESA’s prohibition
against take applies to all endangered or
threatened animals. A capture in fishing
gear is still a take, regardless of the
animal’s condition and whether it is
weak, sick, or in any other way
compromised. Unless the take is
authorized pursuant to a regulation, a
permit, or in the Incidental Take
Statement of a Biological Opinion, the
person who incidentally takes a listed
animal is subject to criminal penalties
and fines. The condition of sea turtles
is therefore not relevant to NMFS′
determination to permit an additional
exception to the take prohibitions.
In any event, NMFS has no
information to suggest that the animals
found entangled or impinged on leaders
during the spring of 2002 and 2003 were
unhealthy before their capture. The
animals observed by NMFS as entangled
and impinged have visually appeared
healthy (e.g., not emaciated, not
externally compromised). Granted, the
live turtles and the dead turtles not
necropsied may have had other
problems besides those that are able to
be visually observed. Necropsies were
performed on 4 of the 7 dead entangled
turtles found in pound net leaders in
2002 and 2003. One additional Kemp’s
ridley sea turtle is anticipated to be
necropsied (found in May 2003); NMFS
is waiting for the necropsy results from
this animal. The other two dead animals
were left in situ to monitor their status.
Necropsy results from 2 of the 7 dead
entangled turtles showed that the turtles
had adequate fat stores, full stomach
and/or intestines, and no evidence of
disease. A necropsy by the Armed
Forces Institute of Pathology on one of
the dead Kemp’s ridleys recovered from
a leader found that ‘‘the animal was
active and in good nutritional condition
at the time of death’’ and concluded that
entrapment in fishing gear was the
cause of death. One of the 4 necropsy
reports only stated that the turtle was
female with nematodes and digested
tissue in its digestive tract.
Most of the turtles stranded in
Virginia have been moderately to
severely decomposed (e.g., 85 percent in
2003). The ability to conduct necropsies
is limited 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 they were in good health prior to
their death. NMFS has no evidence to

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suggest that sea turtles found in the
Chesapeake Bay during the spring are
weakened from their seasonal migration.
There is also no evidence of widespread
disease in these stranded animals. As
referred to in a public comment, a
Florida epizootic occurred from October
2000 through March 2001, although a
few cases a year have been seen since
then. The epizootic appears to have
been limited to south Florida. The
hallmark symptom was a varying degree
of paralysis which affected voluntarily
movements and certain reflexes. Fortynine alive stranded loggerheads were
confirmed to have been caused by the
epizootic. However, a living animal was
necessary to make the diagnosis. Many
of the dead loggerheads found during
that period may have also died from the
same disease, but it was not possible to
determine their cause of death. The
animals that have stranded in Virginia
have not exhibited the same symptoms
as those found in the Florida stranding
event that was associated with an
epizootic, nor has the epizootic
continued in any significant way
beyond early 2001. In the early 1990s,
four live stranded animals in Virginia
exhibited signs of a central nervous
system disturbance, later determined to
be a bacterial encephalitis (George et al.,
1995). These animals were dull and
listless when undisturbed, but when
handled, they moved their flippers
spastically and showed a hyperflexion
of the neck. At this time, NMFS has no
data indicating that the sea turtles found
in Virginia pound nets have a central
nervous system problem. As mentioned,
NMFS is providing funding to conduct
necropsies and lab analyses on fresh
dead sea turtles this spring, which will
hopefully provide additional
information on the health of some of
these stranded animals.
It is unlikely that the spring stranded
animals in Virginia were cold stunned.
The average water temperature on May
6 at the NOAA National Ocean Service
Kiptopeke, Virginia station was 16.1 C
from 1999 to 2002, 16.6 C on May 7, and
17.2 C on May 8. Average water
temperatures in 2003 were 14.3 C, 15.1
C, and 17.1 C on May 6, 7, and 8,
respectively, not notably different from
the most recent 4–year average. Water
temperatures generally increase
gradually over the spring and summer,
and in 2003, most of the sea turtle
strandings occurred during the last two
weeks of June, when water temperatures
were warmer. For example, on June 22,
the average water temperature at the
Kiptopeke station was 21° C. Mansfield
et al., (2001) and Mansfield and Musick
(2003) state that analyses by VIMS have

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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). Cold stunning
typically occurs during the time of the
year when water temperatures are
decreasing, not increasing, and is well
documented in other areas. Sea turtles,
the majority of them Kemp′s ridleys,
wash ashore cold stunned each fall/
winter along the beaches of Cape Cod
Bay, Massachusetts, beginning with the
first sustained storm front after the Cape
Cod Bay water temperatures have
dropped to or below 10° C. From the
available data on cold stunning and sea
turtle preferences for water temperature,
it is unlikely that the sea turtles found
stranded and in pound net gear in
Virginia during May and June are cold
stunned.
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 in
Virginia are consistent with fishery
interactions as a likely cause of
mortality and, therefore, strandings.
These circumstances include relatively
healthy turtles prior to the time of their
death, a large number of strandings in
a short time period, no external wounds
on the majority of the turtles, no
common characteristic among stranded
turtles that would suggest disease as the
main cause of death, and turtles with
finfish in their stomachs (which
suggests interactions with fishing gear
(Bellmund et al., 1987) or bycatch
discarded from vessels (Shoop and
Ruckdeschel, 1982)).
As to whether these turtle mortalities
may be the result of natural selection,
anthropogenic impacts have impeded
sea turtle recovery, significantly
contributing to their endangered and
threatened status. Anthropogenic
mortality sources are considered to far
outweigh natural mortality sources.
There is no evidence to support the
notion that turtles interacting with
pound nets (or other fisheries gear) are
genetically weakened and predisposed
to incidental capture. As direct and
indirect impacts to sea turtles continue
through, for example, habitat
destruction, marine debris and
pollution, and incidental take in
fisheries, dredging, and power plant
operations, it remains necessary to
attempt to recover and rehabilitate those
sea turtles that may be able to be saved.
Sea turtle populations have not yet

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recovered, and as such, NMFS has a
statutory obligation to manage and
protect these species. Reduction of
mortality from anthropogenic sources is
necessary to achieve recovery of these
species.
Comments Related to Economic and
Social Impact Assessment:
Comment 21: Eleven comments were
received recommending that NMFS
work with the industry on this issue and
develop and test pound net leader
modifications.
Response: On September 3, 2003,
VMRC convened a meeting with NMFS,
representatives from the pound net
industry, VIMS, the Virginia Marine
Science Museum, and the Virginia
Department of Game and Inland
Fisheries, to discuss the 2002 and 2003
pound net leader monitoring results,
high spring sea turtle strandings, and
potential measures to reduce sea turtle
interactions with pound net gear. At this
meeting, NMFS expressed its desire to
work with the industry to develop gear
modification solutions and requested
ideas on potential leader configurations.
NMFS has an effort underway, in
conjunction with industry participants,
to develop and test an alternative leader
design along the Eastern shore during
the spring of 2004. This alternative
leader design is the non-preferred
alternative 5 considered in the EA, but
was not able to be fully analyzed with
respect to benefits to sea turtles because
of the lack of data. After monitoring and
analyzing the results of this study, it
will be determined if the modification is
effective at reducing sea turtle capture,
while retaining an acceptable level of
target catch, or if additional research is
necessary.
Additionally, NMFS has partnered
with the National Fish and Wildlife
Foundation to establish a fishing gear
mini-grant program for sea turtles that is
aimed at working with industry (and
other interested public stakeholders) to
promote research, development, and
testing for alternative leader designs in
the Virginia pound net fishery.
Proposals were due on April 15 and
funding decisions are expected to be
made by July 15, 2004.
While research is ongoing and NMFS
is committed to pursuing a gear
modification solution for this fishery, it
remains necessary to implement
additional restrictions on the Virginia
pound net fishery at this time due to the
documented takes in leaders in
compliance with the 2002 interim final
rule and continuing levels of sea turtle
mortality in Virginia waters.
Comment 22: Thirteen commenters
expressed their concern with the high

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economic impacts to fishermen from
this proposed action, and one of these
commenters believed that the economic
impacts were underestimated and that
economic burden from the proposed
action would prohibit fishermen from
fishing pound nets year round. Four of
the 13 commenters recommended
compensation to the fishermen that do
not fish this season.
Response: NMFS used the best
available information to estimate the
economic costs to the pound net fishery.
The overall economic impact may be
considered underestimated since
indirect economic impacts were not
assessed. For example, processing
plants or fish houses may be affected
indirectly by the management measures
imposed on this fishery.
NMFS only estimated the direct
economic impacts, which are the
impacts on the harvester. In the
economic analysis of direct impacts,
averages are reported, and an average
may not reflect an individual’s actual
position. That is, what an individual
actually earned in revenues may be less
or more than the reported average. Also
note the reported coefficient of variation
(CV) for the anticipated revenue loss of
$40,474 under the proposed rule was
1.08 percent (See Table 5.1.2.6 in the
EA). The CV is equal to the standard
deviation divided by the mean (i.e., 1.08
percent = [$43,712/$40,474]). That is,
given a standard deviation of $43,712,
some harvesters may have earned as
much as $127,024 (=mean+2*standard
deviation=$40,474+2*($43,712)) in the
same area and during the same time
period. It is the average revenue per
harvester NMFS reports along with the
statistical variation (reported in a CV).
Industry losses were overestimated.
The total number of harvesters in the
lower portion of the Virginia
Chesapeake Bay was biased up by two
to three harvesters. That is, these two or
three harvesters can modify their leader
mesh size versus remove their leaders.
This results in industry losses being
overestimated.
In summary, total economic impacts
may be underestimated since indirect
economic impacts were not included.
Direct impacts on the individual were
not over or underestimated, as averages
were reported. Direct industry impacts
were overestimated. This response
refers to the economic impacts
associated with the proposed rule, as
the proposed rule is what was
commented upon. However, with this
final rule, the economic impacts to the
pound net fishery are reduced as
compared to the proposed rule. The
economic impacts of this final rule are
smaller than those evaluated for the

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proposed rule. Fewer nets are affected
due to the smaller closure area and
leader mesh size outside the leader
prohibited area is not further restricted.
With this final rule, annual revenues per
harvester would be reduced by 14.7
percent to 29.4 percent, depending on
how many nets the harvesters set.
Industry revenues would be reduced by
7.3 percent (=$0.19M/$2.6M). Without
authorization from Congress, NMFS
cannot provide compensation to
industry. For details on how the
reductions in revenues were calculated,
refer to Sections 5.1.2 and 5.8.2 in the
EA. Virginia′s 2002 landings data
indicated 31 harvesters (Table 5.1.2.3 in
EA) landed fish from May 6 to July 15,
and there were 53 harvesters that fished
year round. Excluding the May 6 to July
15 time period in 2002, 16 harvesters
fished in the lower bay and earned
revenues of $48,126 (CV=1.22). This
implies there were six harvesters in the
lower bay that did not fish from May 6
to July 15 in 2002. Therefore, some
harvesters fishing pound nets do survive
from an economic perspective by
harvesting outside the proposed rule
time period. However, NMFS does not
have any information as to whether
these six harvesters have alternative
supplementary sources of income.
Comment 23: Six commenters
expressed concern with the delay in
publishing the proposed regulations,
especially as the industry begins
planning for the next fishing season
early in the calendar year.
Response: NMFS has been working to
alleviate the impacts of the Virginia
pound net fishery on sea turtles as
expeditiously as possible, in order to
give the fishermen advance notification
and ensure measures are in place before
the historical period of high strandings.
NMFS recognizes that the industry
begins planning for the next fishing
season in approximately December or
January and is sensitive to fishermen’s
time constraints required to outfit their
gear with mesh in compliance with
required measures. NMFS issued the
proposed rule as soon as possible after
taking the necessary time to acquire and
analyze the available data, explore the
management alternatives, and prepare
and review the necessary documents.
Similarly, NMFS issued this final rule
as soon as possible after thoroughly
reviewing and considering public
comments and determining if
modifications to the proposed rule were
necessary.
Comment 24: One commenter felt that
the timeframe of the restrictions was too
long and that fishing would be
inappropriately curtailed when water

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temperatures were too cold for sea
turtles.
Response: NMFS believes that, given
the available information, the time
period for the pound net restrictions is
appropriate. 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
1 week prior to the stranding
commencement date, or on May 6 each
year. Implementing protective measures
by May 6 would ensure they are in place
at the time when sea turtles are
expected to be in the Chesapeake Bay
and are becoming vulnerable to
mortality sources.
Based on historical Sea Turtle
Stranding and Salvage Network
(STSSN) stranding data, typically the
peak of Virginia strandings has been
from mid-May to mid-June. However,
the stranding 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
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 occurs during May and June,
and extends into the first half of July. In
some years the peak period of high
strandings may be shorter than the time
period addressed by this final rule, but
historically, high sea turtle strandings
have been documented throughout the
proposed time period of the leader
restrictions. Implementation of the gear
restrictions from May 6 to July 15 will
account for stranding peak variability
among years and is expected to
minimize the occurrence of sea turtle
takes in the pound net fishery in the

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Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Rules and Regulations
spring and, thus, reduce the strandings
that occur from this gear type.
While monitoring surface water
temperature and implementing
restrictions based on reaching a predesignated water temperature may
account for seasonal variability,
enacting regulations based upon real
time water temperature is impractical
due to the amount of time required for
the agency to implement and for
fishermen to comply with the
regulations, and the potential variability
of water temperature within different
locations in the Chesapeake Bay and
within the water column. NMFS has
considered historical surface water
temperatures (not real time monitoring)
in establishing previous area closures.
Real time monitoring of water
temperature as a trigger for regulations
is not practical for this situation, nor is
it appropriate given the predictable time
period of annual spring strandings in
Virginia. Further, NMFS believes that a
consistent effective date better enables
industry to plan its fishing activities, as
fishermen would know in advance
specifically when the restrictions would
apply.
Changes From the Proposed Rule
Based upon public comments
received, NMFS has determined that
several modifications to the measures
included in the proposed rule are
warranted. Specifically, the area in the
southern portion of the Chesapeake Bay
where all pound net leaders are
prohibited has been reduced, and the
nearshore boundary to which the
prohibition applies has been moved
from the beach to offshore, excluding
those nets set with the inland end of the
leader 10 horizontal feet (3 m) or less
from the mean low water line. This
modification was deemed appropriate
given public comments noting that there
is a difference between the nearshore
and offshore nets, and that this
difference may impact sea turtle
interaction rates, in particular the
occurrence of impingements. As noted
in the response to Comment 11, NMFS
had originally considered the
environmental conditions in the
locations where the offshore and
nearshore nets are set to be similar,
based upon reports from NMFS
observers and general understanding of
the currents in the Chesapeake Bay (e.g.,
strong along the Eastern shore near the
mouth of the Chesapeake Bay). Given
the public comments indicating that the
currents and take conditions are
different between offshore and
nearshore nets, NMFS considered those
potential differences when reanalyzing
the take information. The data support

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this modification, in that in 2002 and
2003, offshore nets accounted for all of
the observed impingements (n=14) and
eight of the nine observed
entanglements. One dead sea turtle was
observed entangled in a nearshore 8–
inch (20.3–cm) stretched mesh leader
along the Eastern shore. The difference
in takes between the offshore and
nearshore nets is statistically significant
with a chi-square value of 3.841 and
p<0.01. In the lower Chesapeake Bay
(encompassing the proposed leader
prohibited area), approximately 60
percent (13 of 22) of the active pound
nets surveyed in 2003 were nearshore
nets. In 2002 and 2003, there were 345
surveys of nearshore nets and 480
surveys of offshore nets throughout the
Virginia Chesapeake Bay, and 13
surveys did not specify the location.
NMFS recognizes that the best available
information suggests that the boundary
of the leader prohibited area should be
modified to account for this distinction
between the effects of offshore and
nearshore nets on listed sea turtles.
Additionally, NMFS has determined
that this final rule should not change
the restricted leader mesh size outside
the leader prohibited area from 12
inches (30.5 cm) to 8 inches (20.3 cm)
stretched mesh. Based upon additional
analysis on impingement to
entanglement ratios by NMFS, it
appears that restricting mesh size to less
than 8 inches (20.3 cm) stretched mesh
would not necessarily provide the
anticipated conservation benefit to sea
turtles. In addition to mesh size, the
frequency of sea turtle takes may be a
function of where the pound nets are
set, with pound nets set in certain areas
having a higher potential of takes for a
variety of reasons, such as depth of
water, current velocity, and proximity to
certain environmental characteristics or
optimal foraging grounds. Additional
analyses, and perhaps data collection, is
planned to be completed that may
provide insights into the relationship
between mesh size and sea turtle
interactions. At this time, the mesh size
threshold that would prevent sea turtle
entanglements cannot be determined for
mesh sizes below 12 inches (30.5 cm).
Hence, at this time NMFS is not making
an additional modification to leader
mesh size and is retaining the mesh size
restriction included in the 2002 interim
final rule, specifically the restriction of
leaders with greater than or equal to 12
inches (30.5 cm) stretched mesh (as well
as leaders with stringers), outside the
leader prohibited area. While some
takes may still occur in less than 12
inches (30.5 cm) stretched mesh,
retaining this mesh size restriction

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25009

should still provide a conservation
benefit to sea turtles (Bellmund et al.,
1987).
This final rule also includes the
contains the framework mechanism that
was a component of the 2002 interim
final rule, and of the status quo
alternative included and analyzed in the
EA. This mechanism enables NMFS to
make changes to the restrictions based
upon new information, and extend the
effective date of the restrictions until
July 30 on an expedited basis. This final
rule does not reduce the allowable
leader stretched mesh size to less than
8 inches (20.3 cm) as proposed, for
reasons identified previously. NMFS
intends to continue to monitor fisheries
active in the Virginia Chesapeake Bay
and ocean waters, including pound net
leaders with a stretched mesh size
measuring less than 12 inches (30.5 cm)
outside the leader prohibited area.
Retaining this framework mechanism is
necessary to respond to any new
information on the interactions between
sea turtles and pound nets and ensure
that sea turtles can be protected from
additional take should monitoring
document the entanglement of a live or
dead sea turtle outside the leader
prohibited area. The framework
mechanism was excluded from the
proposed rule due to difficulties
experienced with enacting regulations
on a real time basis. NMFS recognizes
that delays have been experienced with
the framework mechanism, as observed
in 2003. To alleviate some of the
temporal delays associated with the
issuance of a framework measure,
NMFS will prepare portions of the
required documents ahead of time, in
the event that a mid-season framework
action is necessary.
In the proposed rule, NMFS stated
that the purpose of the action was to
prevent sea turtle entanglement in and
impingement on pound net gear. NMFS
continues to believe that sea turtles will
be protected by this final rule, and that
sea turtle entanglements in and
impingements on pound net leaders will
be reduced. However, this discussion of
the final rule has noted that the goal of
the action is to minimize or reduce sea
turtle interactions with pound net gear,
because sea turtle entanglements, and
possibly impingements, may still occur
in leaders outside the leader prohibited
area. As noted previously, all
documented sea turtle interactions,
except one entanglement in an 8–inch
(20.3–cm) stretched mesh leader, have
occurred inside the leader prohibited
area. It is believed that the measures in
the final rule will be protective of sea
turtles and reduce takes in this fishery,
given that leaders are prohibited in the

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area with most of the documented sea
turtle takes. Given this information,
with the recognition that NMFS is
continuing to collect information on sea
turtle and pound net interactions, the
purpose of this action is to reduce future
sea turtle entanglements in and
impingements on pound net gear.
This final rule corrects an item related
to year-round reporting that was
inadvertently deleted in the proposed
rule. The preamble to the proposed rule
noted that all Virginia pound net
fishermen would still be 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. However, the
proposed regulatory text relating to the
reporting of captured dead or injured
sea turtles was inadvertently deleted
and must be reinserted.
NMFS has also included in this final
rule geographical boundaries for the
leader mesh size restrictions in the
Great Wicomico River and the
Piankatank River, based upon a public
comment requesting that the
geographical areas in those Western
Chesapeake Bay tributaries be better
defined. This modification is for
clarification purposes only and does not
change the biological, economic, or
social analysis included in the EA.
The final rule clarifies that this action
adds a new exception to prohibitions on
the take of threatened sea turtles,
something that was not explicitly noted
in the title of the proposed rule. The
prohibitions against taking in 50 CFR
223.205(a) do not apply to the
incidental take of any member of a
threatened species of sea turtle during
fishing or scientific research activities,
to the extent that those involved are in
compliance with all applicable
requirements of 50 CFR 223.206(d). By
adding the prohibitions and restrictions
on leaders in the Virginia Chesapeake
Bay to 50 CFR 223.206(d), this final rule
adds a new exception and modifies the
previous pound net related exception to
the prohibitions on take of threatened
sea turtles. NMFS has changed the title
of this final rule to more accurately
reflect what this rule entails, including
the exception to the prohibitions on
take.
Classification
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
The 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.

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Such a delay would be contrary to the
public interest because sea turtles are
anticipated to occur in Virginia waters
in May, during the 30–day delay period.
Sea turtles are found to occur in water
temperatures of 11° C and warmer.
Analysis conducted by the NMFS
Southeast Fisheries Science Center
found that in week 17 (April 23 to April
29), week 18 (April 30 to May 6), and
week 19 (May 7 to May 13),
approximately 80 percent, 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
(NOAA Fisheries, unpub. data, 2003).
Data from 1993 to 2002 were included
in the analysis. This indicates that water
temperatures around the mouth of the
Chesapeake Bay are well within sea
turtles’ preferred temperature range in
late April and early May. There is no
information to suggest that the water
temperatures this year would be notably
different than in previous years. As
such, sea turtles are likely to be present
in the Virginia Chesapeake Bay during
the 30–day delay period, and at this
time, these turtles would likely be
subject to entanglement and
impingement in pound net leaders and
potential subsequent mortality.
NMFS has prepared a final regulatory
flexibility analysis that describes the
economic impact this final rule would
have on small entities. A summary of
the analysis follows:
The fishery affected by this final rule
is the Virginia pound net fishery in the
Chesapeake Bay. The final rule prohibits
all offshore pound net leaders in a
portion of the southern Chesapeake Bay,
and retains the prohibition of 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, from May 6 to
July 15 each year. Non-preferred
alternative 1 would prohibit all pound
net leaders in a portion of the southern
Chesapeake Bay, and prohibit 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
June 30. Non-preferred alternative 2
would prohibit 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 similar to the nonpreferred alternative 1, except that the
pound and heart, in addition to the
leader, must also be removed in a
portion of the southern Chesapeake Bay,

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and the time frame of the restrictions
would be from May 6 to July 15 each
year. Non-preferred alternative 4 would
prohibit all pound net leaders from May
6 to July 15 in the Virginia Chesapeake
Bay. In addition to the 8 inches (20.3
cm) and greater mesh size restrictions in
a portion of the Virginia Chesapeake
Bay, non-preferred alternative 5 would
modify the pound net leader
configuration in a portion of the
southern Chesapeake Bay so that the
mesh height would be restricted to onethird the depth of the water, the mesh
would be required to 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.
Non-preferred alternative 6 includes the
measures in the proposed rule, namely
a prohibition of all pound net leaders in
a portion of the southern Chesapeake
Bay, and a prohibition of 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.
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 average
revenues per harvester were $64,483
(CV=0.73) and $105,298 (CV=0.91) 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 (CV=0.88) and
$40,474 (CV=1.08) in the upper and
lower region, respectively.
Of the 31 harvesters, 33 percent of the
harvesters (=[0 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
action. Approximately 12 pound nets in
total would be affected by this action,

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Federal Register / Vol. 69, No. 87 / Wednesday, May 5, 2004 / Rules and Regulations
all found in the lower portion of the
Virginia Chesapeake Bay.
In the upper bay region, five of the
seven alternatives, not counting the ‘‘no
action’’ alternative, are the same. This
final rule does not impose additional
requirements on those leaders found in
the upper bay region, so the revenue
reductions would be zero. The nonpreferred alternatives 1, 2, 3, 5, and 6
would require the leader mesh to be less
than 8 inches (20.3 cm). 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 mesh size during the
restricted period. If harvesters choose
not to fish, their revenues decrease by
15.1 percent to 17.1 percent (depending
on the time frame of the restrictions),
since they incur revenue losses and the
cost of removing their gear from the
water. 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 harvesters will modify their gear
since they want to minimize their
economic loss. Therefore, in the upper
bay region, annual revenues may be
reduced by a low of 8.4 percent per
harvester under non-preferred
alternatives 1, 2, 3, 5, and 6, and 4
harvesters would be affected. Under
non-preferred alternative 4, all leaders
must be removed from the Virginia
Chesapeake Bay. This alternative would
impact 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 offshore
leaders are prohibited under the final
rule, management actions vary between
alternatives. Under all of the
alternatives, all 10 harvesters would be
impacted. With this final rule, annual
revenues per harvester would be
reduced by 14.7 percent to 29.4 percent,
depending on how many nets the
harvesters set. The economic impact
under non-preferred alternative 1 would
be more compared to the final action
(34.5 percent reduction in annual
revenues versus a maximum of 29.4
percent), because more nets would be
impacted. The impact under the nonpreferred alternative 3 would be greater
than this final rule (50.3 percent
reduction in annual revenues versus a
maximum of 29.4 percent), because
additional labor costs would be incurred
to remove the heart and pound in
addition to the leader and more nets
would be affected. The impacts of nonpreferred alternative 4 and nonpreferred alternative 6 are the same, and

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annual revenues per harvester would be
reduced by 43.2 percent. Reductions in
annual revenues per harvester would be
less under non-preferred alternatives 2
and 5 in comparison to the final rule,
since these non-preferred alternatives
would allow harvesters 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. The status quo
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 final rule, industry revenues would
be reduced by 7.3 percent (=$0.19M/
$2.6M). Under non-preferred
alternatives 1, 2, 3, 5, and 6, industry
revenues would be reduced by 14.8
percent, 4.9 percent, 21.2 percent, 5.8
percent, and 18.3 percent, respectively.
With the preceding five alternatives, 14
of 31 harvesters would be affected by
the management actions. Under nonpreferred alternative 4, all harvesters
would be affected and forgone industry
revenues would be reduced by 34.9
percent. Again, these numbers assume
fishermen would switch to a smaller
mesh leader and continue to fish in
those areas with leader mesh size
restrictions, instead of removing their
leaders entirely. Non-preferred
alternatives 2 and 5, although less costly
to the industry, were not chosen as the
preferred alternative because they
cannot be evaluated for benefit to
conservation of sea turtles. At this point
in time, we are unable to determine
whether leader mesh sizes less than 8
inches (20.3 cm) have a different catch
rate than leaders with mesh between 8
and 12 inches (20.3 and 30.5 cm). As
such, looking strictly at a mesh size
restriction, non-preferred alternative 2
would not necessarily afford adequate
protection for sea turtles in the lower
Chesapeake Bay area where observed
sea turtle interactions have been the
highest. Non-preferred alternative 5 was
rejected because it consisted of a gear
modification that is currently untested
as a means to reduce sea turtle
interactions.
This action does not contain new
reporting or record keeping
requirements.
This final rule does not duplicate,
overlap or conflict with other Federal
rules.
Thirteen comments were received and
addressed (see Comments Related to
Economic and Social Impact

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25011

Assessment) on the initial regulatory
flexibility analysis.
A formal consultation pursuant to
section 7 of the ESA was conducted on
this action. The Biological Opinion on
this action 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. An incidental take
statement was issued for this action.
Copies of this Biological Opinion are
available by contacting (978) 281–9328
or FAX (978) 281–9394.
This final rule contains policies with
federalism implications that were
sufficient to warrant preparation of a
federalism assessment under Executive
Order 13132. Accordingly, the Acting
Assistant Secretary for Legislative and
Intergovernmental Affairs provided
notice of the proposed action to the
Governor of Virginia on March 3, 2004.
No comments on the federalism
implications of the proposed action
were received in response to the March
2004 letter.
Dated: April 29, 2004.
Rebecca Lent,
Deputy Assisstant Administrator for
Regulatory Programs, National Marine
Fisheries Service.

List of Subjects
50 CFR Part 222
Administrative practice and
procedure, Endangered and threatened
species, Exports, Imports, Reporting and
recordkeeping requirements.
50 CFR Part 223
Administrative practice and
procedure, Endangered and threatened
species, Exports, Imports, Reporting and
recordkeeping requirements.
■ For the reasons set forth in the
preamble, 50 CFR parts 222 and 223 are
amended as follows:
PART 222—GENERAL ENDANGERED
AND THREATENED MARINE SPECIES
1. The authority citation for 50 CFR
part 222 continues to read as follows:

■

Authority: 16 U.S.C. 1631 et seq.

2. In § 222.102, the definition of
‘‘Pound net leader’’ is revised to read as
follows:
■

§ 222.102

Definitions.

*

*
*
*
*
Pound net leader means a long
straight net that directs the fish offshore
towards the pound, an enclosure that
captures the fish. Some pound net

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leaders are all mesh, while others have
stringers and mesh. Stringers are
vertical lines in a pound net leader that
are spaced a certain distance apart and
are not crossed by horizontal lines to
form mesh. 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. A
nearshore pound net leader refers to a
leader with the inland end set 10
horizontal feet (3 m) or less from the
mean low water line.
*
*
*
*
*
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.

2. In § 223.205, paragraph (b)(15) is
revised to read as follows:
■

§ 223.205

Sea turtles.

*

*
*
*
*
(b) * * *
(15) Fail to comply with the
restrictions set forth in § 223.206(d)(10)
regarding pound net leaders; or
*
*
*
*
*
■ 3. In § 223.206, paragraph (d)(2)(iv) is
removed; (d) introductory text and (d)(2)
paragraph heading are revised; and
paragraph (d)(10) is added to read as
follows:
§ 223.206 Exemptions to prohibitions
relating to sea turtles.

*

*
*
*
*
(d) Exception for incidental taking.
The prohibitions against taking in
§ 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)(10) 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—*
**
*****
(10) 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 offshore pound net leader, as
defined in the definition for pound net
leader in § 222.102, in the Virginia
waters of the mainstem Chesapeake Bay,
south of 37° 19.0′ N. lat. and west of 76°

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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.), the Great Wicomico River
downstream of the Jessie Dupont
Memorial Highway Bridge (Route 200;
approximately 37° 50.84′ N. lat, 76°
22.09′ W. long.), 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 the Piankatank
River downstream of the Route 3 Bridge
(approximately 37° 30.62′ N. lat, 76°
25.19′ W. long.) to the COLREGS line at
the mouth of the Chesapeake Bay, must
have only mesh size less than 12 inches
(30.5 cm) stretched mesh and may not
employ stringers. 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.), the leader restriction
applies to nearshore pound nets, as
defined in the definition for pound net
leader in § 222.102. Any pound net
leader with stretched mesh measuring
12 inches (30.5 cm) or greater or any
pound net leader with stringers must be
removed from the waters described in
this paragraph (d) prior to May 6 and
may not be reset until July 16.
(iii) 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

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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.
(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 NMFSapproved 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.
(v) 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
subparagraph, for an additional 15 days,
but not beyond July 30, to protect
threatened sea turtles.
[FR Doc. 04–10207 Filed 5–4–04; 8:45 am]
BILLING CODE 3510–22–S

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