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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Parts 222 and 223
          - [Docket No.010618158-1158-01; I.D.061301B]
          - RIN 0648-AP34

# AGENCY:

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

# ACTION:

Temporary rule; request for comments.

# SUMMARY:

NMFS is requiring all Virginia permitted fishermen deploying pound nets with leaders measuring 8 inches (20.3 cm) or greater stretched mesh and leaders with stringers to tie up such leaders in the Virginia waters of the mainstem Chesapeake Bay and tributaries for a period of 30 days.  This action is necessary to protect threatened and endangered sea turtles.

# DATES:

                        This action is effective from 11:59 p.m. local time June 19, 2001 through 11:59 p.m. local time July 19, 2001.  Comments on this action are requested, and must be received at the appropriate address or fax number (                        **ADDRESSES**                        ) by no later than 5 p.m., eastern daylight time, on July 19, 2001..                    

# ADDRESSES:

Written comments on this action or request for copies of the literature cited or the Environmental Assessment (EA) should be addressed to the Assistant Regional Administrator for Protected Resources, NMFS, One Blackburn Drive, Gloucester, MA 01930.  Comments may also be sent via fax to 978-281-9394.  Comments will not be accepted if submitted via e-mail or the Internet.

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

## Background

                    All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA).  The Kemp's ridley (                    *Lepidochelys kempii*), leatherback (                    *Dermochelys coriacea*), and hawksbill (                    *Eretmochelys imbricata*) are listed as endangered.  Loggerhead (                    *Caretta caretta*) and green (                    *Chelonia mydas*) turtles are listed as threatened, except for populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.                 

                    Under the ESA and its implementing regulations, taking sea turtles--even incidentally--is prohibited, with exceptions identified in 50 CFR 223.206.  The incidental take of endangered species may only legally be authorized by an incidental take statement or an incidental take permit issued pursuant to section 7 or 10 of the ESA.  No incidental take of sea turtles is currently authorized in the Virginia pound net fisheries.  Existing NMFS regulations specify procedures that NMFS may use to determine that unauthorized takings of sea turtles are occurring during fishing activities, and to impose additional restrictions to conserve sea turtles and to prevent unauthorized takings (50 CFR 223.206(d)(4)).  Restrictions may be effective for a period of up to 30 days                           ( print page 33490)                        and may be renewed for additional periods of up to 30 days each.                 

Existing information indicates that pound nets with large mesh and stringer leaders incidentally take sea turtles, and based on the available information, NMFS has determined that fishing with this gear is the most likely cause of significant increases in the stranding of sea turtles in the Chesapeake Bay. This action is necessary to protect threatened and endangered turtles from further unauthorized incidental take in state water fisheries. 

## Recent Stranding Events

The Sea Turtle Stranding and Salvage Network (STSSN) documented a high level of sea turtle strandings in Virginia inshore waters this spring.  From May 19 to June 11, 2001, preliminary data indicate 160 sea turtles washed ashore dead in Virginia.  The number of stranded sea turtles began to increase dramatically after May 29.  On 3 separate days in June, more than 20 turtle strandings were reported for each day.  Loggerhead turtles comprised the majority of the strandings (137), but 16 Kemp’s ridley, 1 green, and 6 unidentified sea turtles also stranded during this time.  Most of the stranded turtles were juveniles. 

Approximately 22 sea turtles were also reported as floating dead around the mouth of and in various parts of the Chesapeake Bay during early June.  It is unknown whether these turtles eventually washed ashore and were recorded by the STSSN.  Additionally, aerial surveys conducted this spring in offshore Virginia waters as well as in the inshore Chesapeake Bay waters have observed sea turtles.  While these turtles were alive when observed, their presence indicates that turtles are continuing to migrate into the Chesapeake Bay and may be subject to fishery interactions.  Aerial surveys conducted in May and June between the Maryland and Virginia State line, from the oceanside beaches out to the shelf break, have documented hundreds of live turtles throughout the survey area.  An additional 13 sea turtles were observed on an aerial survey of the southern portion of the Chesapeake Bay on June 8. 

For the majority of turtles that stranded, there were no obvious external signs of the cause of death.  Two of the turtles found on the eastern shore of Virginia had large fish hooks imbedded in them.  Five turtles had cracks/propeller-like wounds on their carapaces, although it is impossible to determine whether these wounds occurred pre- or post-mortem.  One turtle found on the ocean side of the eastern shore of Virginia had a large hole in its neck, and another turtle found on the bay side had three puncture holes on three of its flippers. 

The rate of decomposition varied, but the majority of the stranded turtles were moderately decomposed.  Turtles examined by necropsy were found to have been in good health prior to their death.  Many of the turtles had full stomachs, and contents included blue crab, horseshoe crab, and some fish. 

The majority of the strandings (approximately 65 percent) occurred along the Chesapeake Bay side of the eastern shore of Virginia and along the southern tip near Kiptopeke and Fisherman’s Island.  The wind during much of the stranding event was blowing toward the eastern shore and could have contributed to the concentration of strandings on the eastern shore during the first few days of June. 

## Analysis of Other Factors

The existing data indicate that the most likely anthropogenic source of sea turtle mortality in Virginia this year is interactions with the pound net fishery.  There is a complex matrix of fisheries operating in Virginia during the spring, including large and small mesh gillnet fisheries, whelk and crab pot fisheries, and the pound net fishery.  Due to previous concern over fisheries in the Chesapeake Bay and in the waters off Virginia, NMFS observed a number of the fisheries active in the area at the time of the strandings.  The federally managed monkfish large mesh gillnet fishery (approximately 10-12 inch mesh) had near 100 percent observer coverage in waters off Virginia from May 1 until it stopped operating on May 29.  As of May 29, 82 monkfish trips were observed in Virginia and two live and one dead loggerhead turtle were incidentally captured in this fishery.  An experimental blackfin monkfish fishery with 100 percent observer coverage was also occurring offshore Virginia during the time of the strandings and one dead loggerhead turtles was taken in 35 observed trips.  Two 13-14 inch (33.0-35.6 cm) mesh gillnet fisheries, the black drum and sandbar shark gillnet fisheries, occurred in state waters, in the vicinity of the highest number of turtle strandings (along the tip of the eastern shore).  However, during May and June, both of these fisheries had good alternative platform observer coverage (approximately 75 trips observed in both fisheries), and no turtle takes were observed.  Additionally, almost all of the black drum fishing effort ceased at the beginning of June, and there has not been a large amount of sandbar shark gillnet effort.  No large mesh gillnet fishing in the vicinity of the mouth of the Chesapeake Bay occurs from June 1 to June 30, because during this time, gillnets with a stretched mesh size greater than 6 inches (15.2 cm) are prohibited in Virginia’s portion of the Chesapeake Bay south of Smith Island. 

There has been only a limited amount of small mesh gillnet effort occurring in Virginia waters during May and June.  NMFS has observed 14 (seven in the Chesapeake Bay and seven in the ocean) small mesh gillnet trips for croaker and spot in May, and 4 trips from June 1 to June 10.  No takes have been observed in these small mesh gillnets.  Aerial survey flights conducted in the inshore waters of the Chesapeake Bay also have not documented a large amount of gillnet fishing.  No trawling occurs in the Chesapeake Bay, as the Virginia Marine Resources Commission (VMRC) restricted the use of trawls in Virginia’s portion of the Chesapeake Bay in 1989.  Aerial surveys, landings data, and dock surveys indicate that limited trawling occurs in Federal waters offshore of Virginia during May and June. 

                    While whelk and crab pots may contribute to some sea turtle mortalities, the nature of the recent 160 strandings does not implicate pot gear.  The majority of the whelk pot effort is found offshore, particularly outside Virginia’s state waters, and few fishermen set their pots inside the Chesapeake Bay (Mansfield                     *et al.*, 2001).  The spring peak months for the whelk pot fishery are April and May.  Crab pot fishing occurs in the Chesapeake Bay, in the vicinity of the eastern shore and tip of the Delmarva Peninsula, but it is unlikely that sea turtle interactions with crab pots resulted in the high level of strandings observed this year.                 

                    Pound nets are the only remaining gear type in the Chesapeake Bay that may have contributed to the high stranding event.  High mortalities in late May and early June in Virginia have previously been attributed to entanglement in large mesh pound net leaders in the Chesapeake Bay (Bellmund                     *et al.*                     1987; Musick                     *et al.*                     1985).  Pound nets with large (greater than 10 inch (                    >                    25.4 cm)) mesh leaders set where the currents are strong may entangle turtles when they enter the Chesapeake Bay.  A 1986 study by the Virginia Institute of Marine Science (VIMS) found that entanglements in pound net leaders began in mid-May, increasing in early June, and reaching a plateau in late June.  Mortalities drop off substantially by the end of June, and turtles tracked using radio transmitters were able to forage around the nets                           ( print page 33491)                        without injury (Musick                     *et al.*, 1985; Byles, 1988).                 

                    Data collected in 1983 and 1984 found turtle entanglement in pound nets with small mesh leaders to be insignificant, but in 173 pound nets examined with large mesh leaders, 0.2 turtles per net were found entangled (30 turtles; Musick                     *et al.*, 1986).  The 1986 VIMS study also found that in 38 nets examined with stringer mesh, 0.7 turtles per net were documented entangled (27 turtles).  Pound net observations in North Carolina during the early 1980s also documented entanglements in pound net leaders with 8-inch (20.3-cm) mesh and greater.                 

                    Pound nets are set throughout the Chesapeake Bay, with gear found in the mainstem of the bay (e.g., Mobjack Bay) and along the eastern shore of Virginia, around the mouth of and in the York River, and around the mouth of and in the Rappahannock River.  Pound nets are the main fishing gear observed immediately offshore of the Kiptopeke area and along the southern portion of the Virginia eastern shore, where most of the 2001 strandings have occurred.  There are approximately 16 to 20 pound nets along the southern portion of the eastern shore, and approximately one-third of these nets use large mesh leaders.  Large mesh leaders are utilized in this high flow area to prevent flotsam from getting entangled in the leaders and causing the net to be swept away, which happens in locations with strong tidal currents.  In the southern area of the eastern shore, large mesh leaders (approximately 12 inch (30.5 cm) mesh) are set in deep water (approximately 20 to 30 ft (6.1 to 9.1 m)), while small mesh leaders (approximately 6 to 8 inch (15.2 to 20.3 cm) mesh) are set closer to shore in up to 10 ft (3.0 m) of water.  While stringer leaders are not used along the eastern shore, they are found in the western bay, around the tip of Mobjack Bay and just south of the mouth of the Potomac River, near Reedville.  While fishing effort varies from spring to fall, a survey conducted in the fall of 2000 found nine stringer leaders in the western Chesapeake Bay (Mansfield                     *et al.*, 2001).  Several sea turtle strandings have occurred on the western shore of the Chesapeake Bay during the spring of 2001, but strandings have not been documented at the same magnitude as along the eastern shore.  As mentioned previously, this may be a reflection of prevailing winds rather than the location of turtle mortalities.  In any event, stringer mesh leaders have been found to pose a large entanglement threat to sea turtles (Musick                     *et al.*, 1986).                 

Several sea turtles have been documented in pound net leaders this spring.  A NMFS observer found three loggerhead turtles against two different large mesh pound net leaders (approximately 13 inch (33.0 cm)) off Sunset Beach on the eastern shore in early June.  The two pound nets were set in deep water (approximately 25 feet (7.6 m)) and were the farthest out in the water relative to the other nets in the area.  On June 14 off Sunset Beach, the NMFS observer documented six loggerheads and one Kemp’s ridley stranded dead on the beach in the vicinity of 19 pound nets.  VMRC law enforcement agents also documented two dead and one live sea turtle in pound net leaders along the eastern shore. 

Sea turtle entanglements in pound net leaders are often difficult to detect.  These five observed sea turtles were found in the leaders at the water’s surface.  Due to the lack of water clarity in the Chesapeake Bay, turtles entangled below the surface may go unobserved.  Thus, it is likely that significantly more sea turtles have been entangled this spring in the pound nets than were observed. 

NMFS has continuously investigated other possible causes for the sea turtle mortality events, but non-fishing related causes for the increase in dead sea turtles are not consistent with the nature of the strandings this spring.  For instance, the absence of other species in the most recent stranding events was inconsistent with a toxic algae bloom, disease, or other water quality impact.  Further, there were no major traumatic injuries such as might be caused by dredging or blasting. 

                    Due to the location of the turtle strandings, the type of fishing gear in the vicinity of the greatest number of strandings, and the known interactions between sea turtles and large mesh and stringer pound net leaders, pound nets have been considered to be the likely cause of the high sea turtle strandings in Virginia in May and June 2001.  Specifically, large mesh (greater than 8 inches (                    >                    20.3 cm)) and stringer leaders pose the greatest current entanglement threat to sea turtles in the Chesapeake Bay.                 

## Impacts on Sea Turtles

Strandings in Virginia are almost always highest during the month of June and stranding reports have increased in recent years.  For example, for the month of June sea turtle strandings were 57 in 1995, 62 in 1996, 133 in 1997, 153 in 1998, 125 in 1999, and 85 in 2000.  From June 1 through June 11, 2001, preliminary reports indicate 105 sea turtles stranded on Virginia beaches. 

In recent years, sea turtles strandings have been documented earlier in the spring, with 55 turtle strandings (45 loggerheads, 5 Kemp’s ridleys, 5 unidentified) reported in Virginia from May 1 to May 31, 2001.  While 70 sea turtles stranded during the same time period in 2000, that was an exceptionably high year; only 5 stranded in 1999, 30 in May 1998, 35 in 1997, 29 in 1996 and 34 in 1995.  The strandings in May 2001 are approximately twice the average number of turtles stranded in May from 1995 to 2000.  While these earlier stranding patterns may be explained by water temperature fluctuations and associated effects on turtle migrations, strandings in June 2001 have also been elevated.  The high level of strandings in May and June this year and the number of dead loggerheads and Kemp’s ridleys may pose a risk to these populations. 

Most loggerheads in U.S. waters come from one of two genetically distinct nesting populations.  The population that nests in south Florida is much larger and has shown increases in nesting.  The northern population that nests from northeast Florida through North Carolina is much smaller and nesting numbers are stable or declining.  Previous genetic analysis suggests that approximately one-half of the juvenile loggerheads inhabiting the Chesapeake Bay during the spring and summer are from the smaller, northern population (TEWG, 2000; Norrgard, 1995). 

The Virginia strandings in May and June 2001 are of concern for the following reasons: (1) The level of strandings in Virginia have been high over the last 5 years and continue to increase this year; (2) the strandings occurred during a time when observer coverage in the large and small mesh gillnet fisheries found little evidence of sea turtle take; (3) most of the strandings were concentrated along the southern tip of the eastern shore, suggesting a potential localized interaction; (4) the take of ESA-listed sea turtles is unauthorized without a incidental take statement or permit; and (5) the non-recovering northern subpopulation of threatened loggerheads comprises approximately one-half of the mixed stock off Virginia. 

The increase in loggerhead mortality documented during the last several years may affect the recovery of the loggerhead populations, especially as the mortality is occurring at an important point when turtles are migrating inshore to their summer foraging grounds in the Chesapeake Bay. 
      ( print page 33492)    

## Modification of Pound Net Gear

The exemption for incidental taking of sea turtles in 50 CFR 223.206(d)(1) does not apply to endangered sea turtles (i.e., Kemp’s ridleys) nor does it authorize incidental takings during fishing activities if the takings may be likely to jeopardize the continued existence of a species listed under the ESA, pursuant to NMFS regulations at 50 CFR 223.206(d)(4) provide that the Assistant Administrator for Fisheries, NOAA, (AA) may issue a determination that incidental takings in the course of fishing activities are unauthorized, and specify procedures that the AA may use to impose additional restrictions to conserve listed sea turtles and prevent such takings.  Sixteen endangered Kemp’s ridleys and one green turtle stranded on the shores of Virginia this year, which indicates that there may be unauthorized takes occurring in these waters.  While most of the stranded turtles were loggerheads, there is no incidental take statement nor incidental take permit for any of these threatened or endangered turtles.  The unregulated incidental take of sea turtles in state fisheries needs to be minimized to the extent practicable to ensure recovery of these species.  The level of mortality suffered by loggerhead turtles this spring off Virginia is high and may be adversely impacting the northern nesting population of loggerheads.  Strandings in Virginia have been high over the last 5 years, and if the strandings continue at the current rate, the number of sea turtle mortalities will exceed previous levels.  Continued mortality caused by unauthorized incidental capture in all pound net leaders greater or equal to 8 inches (20.3 cm) stretched mesh and pound net leaders with stringers during loggerheads’ migration into and residency in the Chesapeake Bay may affect the ability of the northern population to recover.  Therefore, the AA issues this determination that takings of threatened or endangered sea turtles by all Virginia permitted fishermen deploying pound nets with leaders of 8 inches or greater (≥ 20.3 cm) stretched mesh and leaders with stringers in Virginia waters of the mainstem Chesapeake Bay and tributaries are unauthorized, and issues this additional restriction on fishing activities to conserve and protect threatened and endangered sea turtles in the Chesapeake Bay.  Specifically, the AA requires that in the Virginia waters of the mainstem Chesapeake Bay and the tidal waters of the James, York, and Rappahannock Rivers, all Virginia permitted fishermen deploying pound nets with leaders measuring 8 inches (20.3 cm) or greater stretched mesh and all pound nets with stringer leaders must tie up their leaders.  The leaders must be tied up in such a manner so that the mesh and stringers are rolled up and tied off, and are not fishing in the water.  The heart(s) and pound may remain in the water, and only the leaders must be tied up.  The area where this gear modification applies includes 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; the tidal James River; the tidal York River; and the tidal Rappahannock River.  This modification of the pound net leaders is effective from 11:59 p.m. local time June 19, 2001 through 11:59 p.m. local time July 19, 2001.  For the duration of this mandatory gear modification, all pound net leaders measuring 8 inches or greater stretched (≥ 20.3 cm) mesh and pound net leaders with stringers must be tied up, and all fishing with these leaders must be curtailed in the designated area.  All such pound net leaders that are currently set must be modified by 11:59 p.m local time on June 19, 2001. 

                    The fishery affected by this temporary rule is the Virginia pound net fishery in the Chesapeake Bay.  Virginia permitted fishermen deploying pound nets with leaders measuring 8 inches or greater (≥ 20.3 cm) stretched mesh and leaders with stringers will be affected.  While target species catch rates will likely decrease due to the inability to use the leaders on the pound nets, the heart(s) and pound may still be set, which may result in some level of catch.  From June 20 to July 20, 2000, the total landings for all pound nets in Virginia waters were 1,284,147 lbs (582,489 kg), with a total value of $437,868.  This represents the worst case scenario of landings forgone as a result of this temporary rule.  However, not all of the pound nets in Virginia waters are equipped with large mesh leaders or leaders with stringers.  While landings data have not been separated into landings from large mesh, small mesh, or stringer leaders, based on information obtained from the Mansfield                     *et al.*, (2001) fall pound net characterization, approximately 20 out of 82 active pound nets will be affected by this rule (approximately 1/4 of the total pound nets set in Virginia waters).  Assuming the same number of pound nets will be fished, the same amount of fish will be landed, and the value of these landings will be similar from June 20 to July 20, 2000 to 2001, the landings that may be forgone by the issuance of this temporary rule would be 313,207 lbs (142,071 kg) of fish, with a total value of $106,797.  Pound nets catch a variety of fish species, so this total value amount incorporates a range of fish prices.  Most of the fishermen that fish pound nets with large mesh leaders in this area also fish nets with small mesh leaders closer to shore, reducing the economic impact of this temporary gear modification.                 

                    As mentioned previously, stringer leaders are only set in the western Chesapeake Bay, around the tip of Mobjack Bay and just south of the mouth of the Potomac River, near Reedville.  A survey conducted in the fall of 2000 found only nine stringer leaders in the western Chesapeake Bay (Mansfield                     *et al.*, 2001), so the impact of this temporary gear modification will only impact this limited group of fishermen who deploy pound nets using stringer leaders in the western part of the bay.                 

This restriction has been announced on the NOAA weather channel, in newspapers, and other media. 

## Additional Conservation Measures

                    The AA may withdraw or modify any additional restriction on fishing activities if the AA determines that such action is warranted.  Notification of any additional sea turtle conservation measures, including any extension of this 30-day action, will be published in the                     **Federal Register**                     pursuant to 50 CFR 223.206(d)(4).                 

NMFS will continue to monitor sea turtle strandings to gauge the effectiveness of these conservation measures as well as compliance. Classification 

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

The AA has determined that this action is necessary to respond to an emergency situation to provide adequate protection for endangered and threatened sea turtles, pursuant to the ESA and other applicable law. 

                    Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this action.  It would be contrary to the public interest to provide prior notice and opportunity for comment because providing notice and comment would prevent the agency from implementing this action in a timely manner to protect the ESA-listed sea turtles.  Notification of and opportunity to comment on the procedures allowing the implementation of temporary measures to protect sea turtles was provided through the proposed rule which                           ( print page 33493)                        established these actions (57 FR 18446, April 30, 1992).  For the same reasons, the AA finds good cause also under 5 U.S.C. 553(d)(3) not to delay the effective date of this rule for 30 days.  NMFS is making the rule effective 11:59 p.m. local time June 19, 2001 through 11:59 p.m. local time July 19, 2001.  Immediately, pound net leaders measuring 8 inches or greater (≥ 20.3 cm) and pound net leaders with stringers must be tied up in the designated area, and all fishing with these leaders must be curtailed.  As stated earlier, this restriction has been announced on the NOAA weather radio, in newspapers, and other media.                 

                    As prior notice and an opportunity for public comment are not required to be provided for this notification by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601*et seq.*, are inapplicable.                 

                    The AA prepared an EA for the final rule (57 FR 57348, December 4, 1992) requiring turtle excluder device use in shrimp trawls and creating the regulatory framework for the issuance of notices such as this.  Copies of the EA and literature cited are available (see                     **ADDRESSES**                    ).                

Authority:16 U.S.C. 1531,                         *et seq.*

Dated:  June 18, 2001.

Rolland A. Schmitten,

Director, Habitat Conservation, National Marine Fisheries Service

[FR Doc. 01-15676 Filed 6-18-01; 4:40 pm]

BILLING CODE  3510-22-S