        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 222, 223, and 224
        [Docket No.020319061-2061-01; I.D. 031402B]
        RIN 0648-AP81
        Sea Turtle Conservation; Restrictions to Fishing Activities

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to prohibit the use of all pound net leaders 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 from May 8 to June 30 each year.  The affected area includes all Chesapeake Bay waters between the Maryland and Virginia state line (approximately 38  N. lat.) and the COLREGS line at the mouth of the Chesapeake Bay, and the waters of the James River, York River, and Rappahannock River downstream of the first bridge in each tributary.  This action, taken under the Endangered Species Act of 1973 (ESA), is necessary to conserve sea turtles listed as threatened or endangered and aid in the enforcement of the prohibition on takes.

          DATES:

          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 April 15, 2002.

          ADDRESSES:

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

          FOR FURTHER INFORMATION CONTACT:
          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 ESA.  Kemp's ridley (Lepidochelys kempii), leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) sea turtles are listed as endangered.  Loggerhead (Caretta caretta) and green (Chelonia mydas) sea turtles are listed as threatened, except for populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.
        Under the ESA and its implementing regulations, taking listed sea turtles—even incidentally—is prohibited, with exceptions identified in 50 CFR 223.206.  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 endangered sea turtles is currently authorized in the Virginia pound net fishery.
        Existing information indicates that pound nets with large mesh and stringer leaders incidentally take sea turtles.  A pound net leader with stretched mesh greater than 12 inches (30.5 cm) is considered to be a large mesh leader.  A stringer leader consists of vertical lines spaced apart in a portion of the leader and mesh in the rest of the leader.  Based on the available information, NMFS determined that interactions with pound net leaders were the most likely cause of a significant portion of documented sea turtle mortality in the Chesapeake Bay during the spring of 2001.  Furthermore, NMFS believes it is likely that pound nets are a significant factor in the unusual spring sea turtle mortality event that occurs annually in Virginia state waters.  This proposed action is necessary to provide for the conservation of threatened and endangered turtles by minimizing incidental take in the Virginia pound net fishery during the spring.
        Virginia Spring Stranding Event
        The Sea Turtle Stranding and Salvage Network (STSSN), a network of organizations authorized by NMFS to respond to sea turtle stranding events, has documented high sea turtle strandings in Virginia waters during the spring for the past 23 years.  From 1994 to 2001, the average date of the first reported stranding was May 15, and the highest number of strandings typically occurred during the second half of May through the end of June, when turtles were migrating into the Bay.  The magnitude of this stranding event has increased in recent years.  During May and June, total reported Virginia sea turtle strandings were 84 in 1995, 85 in 1996, 164 in 1997, 181 in 1998, 129 in 1999, and 155 in 2000.  Strandings during the spring of 2001 were exceptionally high; preliminary data indicates that 265 sea turtles stranded on Virginia beaches during May and June.  This was twice the average number of turtles that stranded annually during this time period from 1995 to 2000.  From 1995 to 2000, 60 percent of all reported strandings occurred during May and June.
        Most of the stranded sea turtles in Virginia have been loggerheads, but endangered Kemp's ridley and leatherback sea turtles have also stranded.  Out of 1,067 total strandings in May and June from 1995 to 2001, 958 loggerheads, 59 Kemp's ridleys, 17 leatherbacks, 1 green, and 32 unidentified turtles were found.  The majority of the stranded turtles have been of the juvenile/immature life stage.

        While some turtles with traumatic carapace injuries, propeller-like wounds or imbedded fish hooks (injuries not associated with pound nets) are documented each year, no cause of mortality is obvious for the majority of turtles that strand in Virginia.  While current stranding levels are higher than in previous years, relatively healthy animals have been stranding on Virginia beaches for at least 20 years.  Bellmund, et al. (1987) found that during spring stranding events in 1983 and 1984, all turtles examined seemed healthy with the exception of one injured and two emaciated turtles.
        Although fresh dead turtles were found earlier in the season, most of the stranded turtles reported in the spring of 2000 and 2001 were moderately to severely decomposed.  The ability to conduct necropsies is compromised by the condition of the stranded animals, and severely decomposed turtles are not usually necropsied.  The majority of the stranded turtles that were examined by necropsy in 2000 and 2001 had good fat stores, suggesting that the animals were in good health prior to their death.  Many of the necropsied turtles had full stomachs, and contents included blue crab, horseshoe crab, and fish.  Twenty-three of 66 loggerheads necropsied between May and December 2001 contained fish parts.  The majority of the 2001 necropsies were conducted on animals that stranded in the Western Bay and on the Chesapeake Bay side of the eastern shore.
        The distribution of sea turtle strandings in Virginia varies slightly from year to year, but historically, most of the spring strandings in Virginia have been documented on the ocean facing beaches south of Cape Henry and the inshore beaches in the southern Chesapeake Bay.  For instance, the majority of 1999 spring strandings occurred offshore in the Virginia Beach Oceanside area around the mouth of the Chesapeake Bay, but the majority of the spring strandings in 1998, 2000, and 2001 occurred in inshore waters with concentrations around the southern tip of the eastern shore and the southern portion of the Chesapeake Bay around Virginia Beach and Hampton.  Strandings in 2001 were of particular concern because the majority of the strandings (approximately 65 percent) in May and June occurred along the Chesapeake Bay side of the eastern shore of Virginia and along the southern tip near Kiptopeke and Fisherman's Island, indicating a possible localized interaction.  It is possible that some Virginia Chesapeake Bay turtle strandings are swept into the Chesapeake Bay from elsewhere, as the water patterns and currents entering the Chesapeake Bay could concentrate sea turtle strandings around the mouth.  However, it is likely that in the Virginia Chesapeake Bay, most mortalities have occurred relatively close to the stranding location (Lutcavage 1981).  Further, it has been estimated that strandings on ocean facing beaches represent, at best, only approximately 20 percent of the at-sea nearshore mortality, as only those turtles killed close to shore are most likely to strand (NMFS SEFSC 2001).
        Factors Contributing to Strandings
        In response to the long term trend in elevated sea turtle strandings, NMFS instituted a program in 2001 to investigate interactions between sea turtles and Virginia fisheries during the historical stranding period.  This program included inshore and offshore aerial surveys, traditional and alternative platform observer coverage of gillnet and pound net fisheries, and sonar surveys of pound net leaders.

        There is a complex mix of fisheries operating in Virginia Chesapeake Bay and ocean waters during May and June, including large and small mesh gillnet fisheries, whelk and crab pot fisheries, haul seine fisheries, scallop dredge and trawl fisheries, and the pound net fishery.  At the time of the 2001 strandings, NMFS observed a number of the fisheries active in Virginia and did not detect significant sea turtle mortality.  However, additional observer coverage is needed to adequately determine the level of sea turtle interactions with the various fisheries operating during the spring.
        The federally managed monkfish large mesh gillnet fishery (approximately 10-12 inch (25.4-30.5 cm) mesh) had approximately 41-percent observer coverage in waters off Virginia from May 1 until it stopped operating off Virginia on May 29 when the fleet moved northward.  In Virginia, 107 monkfish trips were observed, and one dead and two live loggerhead turtles were incidentally captured in this fishery.  In May and June 2001, the monkfish fishery landed approximately 16 percent of the total landings with gillnet gear in Virginia.  Two 10-14 inch (25.4-35.6 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).  The black drum fishery had approximately 8-percent observer coverage during May and June, and no turtle takes were observed.  Additionally, almost all of the black drum fishing effort ceased at the beginning of June, and there was not a large amount of sandbar shark gillnet effort during the spring stranding period.  No large mesh gillnet fishing in the vicinity of the mouth of the Chesapeake Bay occurs from June 1 to June 30; 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.
        During 2001, the small mesh gillnet fisheries (smaller than 6 inch (15.2 cm) mesh) were also considered as a potential contributor to the high sea turtle strandings.  However, the amount of gillnet effort occurring in the Chesapeake Bay waters during May and June appears to be relatively small (e.g., approximately 11 percent of total Virginia Chesapeake Bay landings).  Further, aerial surveys were conducted by the Virginia Institute of Marine Science (VIMS) in the inshore waters of the Chesapeake Bay and minimal gillnet effort was observed during June 2001.  Of the total gillnet landings in Virginia offshore and inshore waters during May and June 2001, small mesh gillnet landings for a variety of species, including Atlantic croaker and dogfish, represented approximately 82 percent.  NMFS observed 2 percent of the Atlantic croaker fishery and 12 percent of the dogfish fishery during that time; no turtle takes were observed.  While small mesh gillnets may entangle sea turtles, the level of interaction in Virginia waters during the spring is not expected to be high.
        The Virginia Marine Resources Commission (VMRC) restricted the use of trawls in Virginia's portion of the Chesapeake Bay in 1989, and no trawling effort occurs in the Chesapeake Bay.  Aerial surveys, landings data, and dock surveys indicate that limited trawling occurs in Federal waters offshore of Virginia during May and June; approximately 18 percent of total ocean landings in May and June 2001 were by scallop trawl gear (2,456 metric tons of 13,739 metric tons total).  The scallop dredge fishery operates off of Virginia during May and June, consisting of approximately 78 percent of the total ocean landings in May and June 2001.  Sea turtle interactions with scallop dredges have been observed, but the magnitude of the interactions with this gear type has not been determined.  While additional information is needed, this fishery may contribute to some sea turtle mortality documented on Virginia ocean side beaches.

        While whelk and crab pots may contribute to sea turtle mortality, it is unlikely that interactions with this gear type would result in a time and area specific mass stranding event.  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 peak spring months for the whelk pot fishery are April and May.  Crab pot fishing occurs throughout the Chesapeake Bay, including along the eastern shore and tip of the Delmarva Peninsula.  Approximately 36 percent of the total Virginia Chesapeake Bay landings in May and June 2001 were from crab pots.  Sea turtles may become entangled in crab pot gear, but due to the nature of the gear and manner in which it's fished, interactions are difficult to detect.  As such, the magnitude of this fishery's contribution to Virginia sea turtle strandings is not known, but it is unlikely that sea turtle interactions with crab pots result in a mass mortality event.
        While a number of fisheries may contribute to sea turtle strandings, available data indicate that large mesh and stringer pound net leaders result in sea turtle entanglement and that the pound net fishery was a likely cause of a significant portion of the sea turtle mortality in the Chesapeake Bay during the spring of 2001.  Pound nets are set throughout the Chesapeake Bay, in both Maryland and Virginia waters.  In Virginia, the majority of pound net stands are located around the Virginia shore south of the mouth of the Potomac River (south of Smith Point), around the mouth of the Rappahannock River, around the mouth of the York River/Mobjack Bay, and along the southern portion of the eastern shore of Virginia.  Landings by pound nets represented approximately 40 percent of the total landings in the Virginia Chesapeake Bay during May and June 2001.
        During 1980, high strandings were documented in areas where there were large numbers of working pound nets (Lutcavage, 1981).  Additionally, pound nets are the dominant fishing gear observed immediately offshore of the Kiptopeke area and along the southern portion of the Virginia eastern shore, where most of the strandings occurred in the spring of 2001 and a concentration of spring strandings were documented in 1998 and 1999.

        Stringer leaders are found in the western Chesapeake Bay, around the tip of Mobjack Bay and just south of the mouth of the Potomac River, near Reedville.  Strandings during 1998 to 2001 were observed on the western shore of the Chesapeake Bay in the vicinity of stringer pound net leaders, but strandings during these years were almost always highest in other areas of the Chesapeake Bay (e.g., during the spring of 2001, strandings were highest along the eastern shore). High turtle mortalities in late May and early June in Virginia have previously been attributed to entanglement in large mesh and stringer pound net leaders in the Chesapeake Bay (Lutcavage, 1981; Bellmund, et al. 1987).  Specifically, pound net entanglement has been determined to account for up to 33 percent of sea turtle mortality in the Chesapeake Bay during some summers (Lutcavage and Musick 1985).  A Virginia pound net survey in the 1980s documented “many dead loggerheads and one [Kemp's] ridley hung by heads or limbs in area poundnet hedging [leaders]” (Lutcavage, 1981).  This study also determined that based upon constriction features on stranded turtles, some beached carcasses had previously floated free of pound net leaders and that it was plausible that unidentified pound net leader deaths could account for many of the carcasses for which no mortality sources have been identified.  However, five turtles entangled in pound net leaders were examined during 1984 and none of these turtles became disentangled by natural causes.  These sea turtles instead completely decomposed in situ within 5 weeks (Bellmund, et al. 1987).  While additional information is necessary to determine how often sea turtles become disentangled from pound net leaders, it is plausible that turtles may become dislodged from pound net leaders either by the strong current in certain areas of the Chesapeake Bay, the decomposition process, or fishermen disentangling dead sea turtles if detected.

        Data collected in 1983 and 1984 found turtle entanglement in pound nets with small mesh leaders (defined as 8 to 12 inch (20.3 to 30.5 cm) stretched mesh) to be insignificant, but in 173 pound nets examined with large mesh leaders (defined as >12 to 16 inch (>30.5 to 40.6 cm) stretched mesh), 0.2 turtles per net were found entangled (30 turtles; Bellmund, et al., 1987).  This study also found that in 38 nets examined with stringer mesh, 0.7 turtles per net were documented entangled (27 turtles).  The sampling area was concentrated in the western Chesapeake Bay, with some sampling occurring in other portions of the Virginia Chesapeake Bay.  Turtle entanglements in pound net leaders began in mid-May, increased in early June, and reached a plateau in late June (Bellmund, et al. 1987).  In 1984, no entanglements were observed after late June.  Surveys in 1979 and 1980 also found that most of the pound net leaders that captured sea turtles consisted of large mesh (12 to 16 inches (30.5 to 40.6 cm)) and were found in the lower Chesapeake Bay.  Anecdotal reports from North Carolina pound net fishermen during the early 1980s stated that sea turtle entanglements occurred in pound net leaders with approximately 8 inch (20.3 cm) mesh and greater.  While smaller mesh nets may pose some entanglement risk to sea turtles, the degree of entanglement has not been documented as well as entanglement in stretched mesh leaders 12 inches (30.5 cm) and greater.  Leader mesh greater than or equal to 12 inch (30.5 cm) stretch and leaders with stringers likely account for the largest number of sea turtle entanglements in pound net gear in the Virginia Chesapeake Bay.
        NMFS recognizes that the majority of scientific information on sea turtle and pound net interactions in Virginia dates back to the 1980s.  However, the factors involved in entanglement, namely the size of sea turtles' heads and flippers relative to mesh size and stringers, are the same today as they were in the 1980s.  NMFS anticipates that sea turtles will continue to interact with large mesh and stringer leaders in the Chesapeake Bay.  In fact, during the spring of 2001, several sea turtles were documented in association with pound net leaders.  VMRC law enforcement agents documented one live and three dead sea turtles in pound net leaders along the eastern shore.  The live turtle was entangled in a leader with greater than 12 inches (30.5 cm) stretched mesh, but the leader mesh size of the other entanglements was not documented.  Additionally, during June of 2000, VMRC law enforcement agents reported disentangling two live sea turtles from two eastern shore leaders with greater than 12 inches (30.5 cm) stretched mesh.  Although it is possible that some turtle carcasses drift into pound net leaders post-mortem, sea turtles have been documented entangled in pound net leaders where entanglement was determined to be the cause of death.
        Sea turtle entanglements in pound net leaders are difficult to detect.  Sea turtles observed in leaders in the spring of 2001 were found at the surface.  Due to the poor water clarity in the Chesapeake Bay, turtles entangled below the surface cannot be observed.  Additionally, pound net fishermen do not typically tend their leaders, so a turtle entangled in the leader, even at the surface, may go unnoticed.  It is likely that significantly more sea turtles are entangled in pound net leaders than are observed or reported (Lutcavage 1981).  Similarly, it is probable that significantly higher turtle mortality occurred over the past 23 years than was documented on Virginia beaches.  Since many dead turtles fail to strand where they can be documented by the STSSN, the number of stranded turtles represents an unknown sub-sample of the total mortality that occurs each spring.

         NMFS has investigated other potential causes for the annual spring sea turtle mortality event, but natural or non-fishing related anthropogenic causes are not consistent with the nature of the strandings.  The absence of other species in the most recent stranding events and the absence of high sea turtle strandings in other Atlantic states during the time period when turtles are migrating are inconsistent with cold stunning, a toxic algae bloom, epizootic or other disease.  Further, the stranded turtles exhibited no major traumatic injuries such as might be caused by dredging or blasting.  Conversely, the circumstances surrounding the spring strandings are consistent with fishery interactions, which 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 fish in their stomach.  Sea turtles are generally not agile enough to capture finfish under natural conditions, and thus would only consume large quantities of finfish by interacting with fishing gear or bycatch (Mansfield, et al. 2002, Bellmund, et al. 1987, Shoop and Ruckdechel 1982).
        Based on the nature and location of turtle strandings, the type of fishing gear in the vicinity of the greatest number of strandings, the lack of observed takes in other fisheries operating in Virginia waters during the 2001 stranding period, the known interactions between sea turtles and large mesh and stringer pound net leaders, and several documented sea turtle entanglements in pound net leaders, NMFS concluded that pound nets were a likely cause of a significant number of the high sea turtle strandings in Virginia in May and June 2001.
        As a result of information obtained in 2001, NMFS implemented an emergency rule that required all pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh and all pound net leaders with stringers to be tied up in the Virginia waters of the mainstem Chesapeake Bay and the tidal waters of the James, York, and Rappahannock Rivers from June 19 to July 19, 2001 (66 FR 33489 June 22, 2001).  Sea turtle strandings decreased after this rule was in effect, but as a result of delays in determining which fishery caused the strandings and in implementing management measures, the rule was enacted after the period of the highest sea turtle strandings.  The emergency measures likely reduced subsequent entanglements in large mesh and stringer pound net leaders.  While fishery interactions may vary from year to year, NMFS believes it is likely that pound nets contribute to the high sea turtle strandings documented every spring.
        Impacts on Sea Turtles

        The annual high mortality in Virginia in May and June is of concern for the following reasons: (1) The level of spring strandings in Virginia has been high for approximately 20 years and elevated for the last 5 years, and it is believed that high strandings will continue to occur during this time period; (2) strandings over the past 4 years have been concentrated along the southern tip of the eastern shore, suggesting a potential localized interaction; (3) approximately 50 percent of the Chesapeake Bay loggerhead foraging population is composed of the northern subpopulation, a subpopulation that may be declining; and (4) most of the stranded turtles have been juveniles, a life stage found to be critical to the long term survival of the species.
        Most loggerheads in U.S. waters come from one of four genetically distinct nesting subpopulations.  A subpopulation that nests in south Florida is much larger and has shown recent increases in numbers of nesting females.  The increase in documented sea turtle mortalities in Virginia could partly be a function of the increase in the southern subpopulation of loggerheads, which make up approximately 50 percent of the loggerheads found in the Chesapeake Bay.  The northern subpopulation that nests from northeast Florida through North Carolina is much smaller and nesting numbers are stable or declining.  Genetic studies indicate that approximately one-half of the juvenile loggerheads inhabiting Chesapeake Bay during the spring and summer are from the smaller, northern subpopulation (TEWG 2000; Norrgard, 1995).  Approximately 3,800 nesting females are estimated for the northern subpopulation of loggerhead sea turtles (TEWG 2000).  The impact of the high level of mortality experienced by loggerhead turtles each spring off Virginia on the population's ability to recover is of significant concern.  The northern subpopulation produces 65 percent males, while the southern subpopulation is estimated to produce 80 percent females (NMFS SEFSC 2001).  As males do not appear to show the same degree of site fidelity as females, it is possible that the high proportion of males produced in the northern subpopulation are an important source of males for all loggerheads inhabiting the Atlantic.  The loss of the male contribution from the northern subpopulation may restrict gene flow and result in a loss of genetic diversity to the loggerhead population as a whole.  The loss of females from the northern subpopulation may preclude future reproduction, reducing the likelihood of both future survival and recovery of the northern subpopulation of loggerheads.  While the size of the southern subpopulation of loggerheads appears to be increasing, the high level of spring sea turtle mortality in Virginia must be reduced to help ensure that the southern subpopulation of loggerheads continues to recover.

        Most of the turtles stranding in Virginia waters during the spring are of the juvenile/immature life stages.  The specific age at maturity for most sea turtles is unknown; the age of maturity for loggerheads occurs from approximately 21-35 years (TEWG 2000).  Studies have concluded that sea turtles must have high annual survival as juveniles and adults to ensure that sufficient numbers of animals survive to reproductive maturity to maintain stable populations (Crouse, et al. 1987, Crowder, et al., 1994, Crouse, 1999).  Given their long maturation period, relatively small decreases in annual survival rates of both juvenile and adult loggerhead sea turtles may destabilize the population, thereby potentially reducing the likelihood of survival and recovery of the population.  As such, the historical high level of mortality in Virginia plus the increase in loggerhead mortality documented during the last several years may negatively affect the recovery of the loggerhead population.
        Modification of Pound Net Gear
        To conserve sea turtles, the Assistant Administrator, NOAA, (AA) proposes to prohibit the use of all pound net leaders measuring 12 inches (30.5 cm) or 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.  The area where this gear restriction would apply includes the Virginia waters of the mainstem Chesapeake Bay from the Maryland-Virginia state line (approximately 37° 55′ N. lat., 75° 55′ W. long.) to the COLREGS line at the mouth of the Chesapeake Bay; the James River downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 36° 59.55′ N. lat., 76° 18.64′ W. long.); the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37° 14.55′ N. lat, 76° 30.40′ W. long.); and the Rappahannock River downstream of the Robert Opie Norris Jr. Bridge (Route 3; approximately 37° 37.44′ N. lat, 76°  25.40′ W. long.).
        This prohibition of pound net leaders would be effective from 12:00 a.m. local time on May 8 through 11:59 p.m. local time on June 30 each year.  For the duration of this proposed gear restriction, fishermen would be required to stop fishing with pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and pound net leaders with stringers in the designated area.
        From 1994 to 2001, the average date of the first reported stranding in Virginia was May 15.  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 and reduce any subsequent strandings on Virginia beaches, the proposed measures should go into effect at least 1 week prior to the stranding commencement date, or on May 8 each year.  Based upon STSSN strandings data, strandings in Virginia typically remain elevated until June 30, indicating that turtles may be vulnerable to entanglement in pound net leaders until this time.  Implementation of the proposed gear restrictions during this time period is expected to prevent the reoccurrence of sea turtle takes in the pound net fishery in the spring and high numbers of strandings in Virginia.

        In addition to establishing the restriction on leader mesh size and leaders with stringers, this proposed rule would also create a framework mechanism by which NMFS may make changes to the restrictions and/or their effective dates on an expedited basis in order to respond to new information and protect sea turtles.  Under this framework mechanism, if NMFS makes a determination, for example, due to water temperature and the timing of sea turtles' migration, that sea turtles may still be vulnerable to entanglement in pound net leaders after June 30, the AA may extend the effective dates of this regulation.  Should an extension of the effective dates of the prohibition of pound net leaders measuring 12 inches (30.5 cm) or greater stretched mesh and pound net leaders with stringers be necessary, NMFS would issue a final rule to be effective upon publication in the Federal Register explicitly stating the duration of the extension.  The extension would not exceed 30 days from the date of its publication.

        From May 8 to June 30, NMFS intends to continue to closely monitor sea turtle stranding levels and other fisheries active in the Chesapeake Bay and nearshore and offshore Virginia waters, including pound net leaders with a stretched mesh size measuring less than 12 inches (30.5 cm).  If monitoring of pound net leaders reveals that one sea turtle is entangled alive in a pound net leader less than 12 inches (30.5 cm) stretched mesh or that one sea turtle is entangled dead and NMFS determines that the entanglement contributed to its death, then NMFS may determine that additional restrictions are necessary to conserve sea turtles and prevent entanglements.  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 immediately file a final rule with the Office of the Federal Register.  Such a rule would explicitly state the new mandatory gear restriction as well as the time period, which may also be extended for up to 30 days through a subsequent rule.  The area where additional gear restrictions would 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, and the Rappahannock River.
        In 2001, NMFS implemented an emergency rule that prohibited the use of all pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh and all pound net leaders with stringers in the Virginia waters of the mainstem Chesapeake Bay and the tidal waters of the James, York, and Rappahannock Rivers from June 19 to July 19.  While sea turtles may interact with smaller mesh leaders (less than 12 inch (30.5 cm) stretched mesh), NMFS believes that prohibiting the use of leaders greater than or equal to 12 inches (30.5 cm) stretched mesh and leaders with stringers will reduce most of the potential sea turtle entanglements in pound net leaders, and subsequent strandings on Virginia beaches.  NMFS chose to restrict the use of leaders with stretched mesh greater than or equal to 8 inches (20.3 cm) in 2001 because there is some information indicating that sea turtles have been entangled in 8 inch (20.3 cm) stretched mesh and because an unprecedented number of loggerheads had already stranded in the spring of 2001 at the time of the emergency rule.  While there is evidence to suggest that turtle entanglements may occur in leaders with stretched mesh smaller than 12 inches (30.5 cm), the majority of the scientific information to date indicates that leaders greater than 12 inches (30.5 cm) stretched mesh and leaders with stringers result in the majority of sea turtle pound net entanglements in the Virginia Chesapeake Bay.  NMFS expects that prohibiting leaders with greater than or equal to 12 inches (30.5 cm) stretched mesh will be sufficient to protect sea turtles, while minimizing the impacts to the pound net fishery.  However, as mentioned previously, should monitoring reveal one sea turtle entangled alive or one sea turtle entangled dead, and NMFS determines that the entanglement contributed to its death, in a pound net leader less than 12 inches (30.5 cm) stretched mesh, NMFS may impose additional restrictions in May or June on an expedited basis.
        Classification
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

        NMFS has prepared an initial regulatory flexibility analysis that describes the economic impact this proposed rule, if adopted, would have on small entities.  A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the preamble and in the SUMMARY section.  A summary of the analysis follows:
        The fishery affected by this proposed rule is the Virginia pound net fishery in the Chesapeake Bay.  According to the 2001 VMRC survey data, of the 160 pound net licenses issued in Virginia, where one license is assigned to each pound net, 72 licenses are fishing in the waters potentially affected by this proposed rule.  Based upon data from 1999 to 2001, Virginia pound net fishermen earned $84,300 in annual revenues and landed 352,300 pounds of fish annually on average.
        The proposed action prohibits pound net leaders with 12 inches (30.5 cm) and greater stretched mesh, as well as those using stringers, from May 8 to June 30.  The non-preferred alternative 1 prohibits pound net leaders with 8 inches (20.3 cm) and greater stretched mesh, as well as those using stringers, from May 8 to June 30.  The non-preferred alternative 2 prohibits all pound net leaders from May 8 to June 30.  Finally, the non-preferred alternative 3 prohibits pound net leaders with greater than 16 inches (40.6 cm) stretched mesh, and requires pound net leaders with stringers to drop the mesh to 9 feet (2.7 m) below mean low water and to space stringer lines at least 3 feet (0.9 m) apart, from May 15 to approximately June 15.
        According to VMRC data from 1999 to 2001, 27 fishermen were fishing approximately 64 pound nets from May 8 to June 30.  During this period, fishermen earned revenues of $16,700 and landed 69,300 pounds of fish, on average.  Prohibiting the use of all pound net leaders with greater than or equal to 12 inches (30.5 cm) stretched mesh and leaders with stringers from May 8 to June 30 would potentially affect approximately 11 fishermen fishing approximately 24 pound nets.  Under the worst case scenario in which fishermen choose not to replace their leaders with nets less than 12 inches (30.5 cm) stretched mesh, but remove their leaders altogether between May 8 and June 30, forgone industry revenues would be $192,000 and the cost to remove and replace pound net leaders would be $16,700, resulting in an industry total of $208,700.  A fisherman affected by this proposed rule would on average incur revenue losses of $16,700 from not fishing and a cost of $1,600 to remove and replace leaders on their pound nets in the worst case.  A fisherman's annual revenue in this scenario will be reduced by 22 percent on average, given annual revenues of $84,300.  If fishermen do replace their leader with one with less than 12 inches (30.5 cm) stretched mesh, and it is operational, then the economic impact of this alternative is $1,600 to remove and replace the leader plus approximately $8,300 for a compliant leader.  While there may be additional revenue differences associated with fishing with a smaller leader, those potential differences cannot be determined.
        If NMFS determines that this proposed rule should be extended, the economic impacts to the pound net fishery will be greater.  Based on the 2001 VMRC data, weekly revenues per fisherman from May 8 to June 30 were $2,200.  For every week extended, forgone industry revenues would be $23,100, in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader.  Therefore, if the extension was until July 15, forgone industry revenues would be approximately $46,200.  Given a 2-week extension, a fisherman's annual revenues would now be reduced by 27 percent, versus 22 percent without the extension, under the worst case scenario.  If fishermen were able to switch to a smaller mesh size leader and the requirement is extended, no additional cost would be incurred.

        Should additional management measures be implemented as a result of information on pound net leader and sea turtle interactions obtained via monitoring, the restrictions may affect either those pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh or all pound net leaders regardless of mesh size in the Virginia waters of the mainstem Chesapeake Bay.  If pound net leaders greater than or equal to 8 inches (20.3 cm) are prohibited, approximately 13 fishermen fishing approximately 31 pound nets would be affected.  This number of affected participants includes those pound net fishermen with previously restricted leaders.  From May 8 to June 30, forgone industry revenues would be $237,400 and the cost to remove and replace pound net leaders would be $20,300, for a total of $257,700 in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader.  If all pound net leaders, regardless of mesh size, are prohibited, 27 fishermen fishing approximately 64 pound nets would be affected.  From May 8 to June 30, forgone industry revenues would be $444,600 and the cost to remove and replace pound net leaders would be $43,200, for a total of $487,800.  The costs to an individual fisherman under either of these additional measures would be the same as the initial gear restriction; a fisherman would on average incur revenue losses of $16,700 from not fishing and a cost of $1,600 to remove and replace leaders on their pound nets between May 8 and June 30 in the worst case scenario.
        Taking no action would not have economic consequences, at least in the short term.  The impacts of the non-preferred alternative 1 would be the same as those previously described for the prohibition of pound net leaders measuring 8 inches (20.3 cm) or greater stretched mesh and stringers; approximately 13 fishermen fishing approximately 31 pound nets would be affected by the non-preferred alternative 1.  From May 8 to June 30, forgone industry revenues would be $237,400 and the cost to remove and replace pound net leaders would be $20,300, for a total of $257,700 in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader.  The impacts of the non-preferred alternative 2 would be the same as those previously described for the prohibition of all pound net leaders; approximately 27 fishermen fishing 64 pound nets would be affected by the non-preferred alternative 2.  From May 8 to June 30, forgone industry revenues would be $444,600 and the cost to remove and replace pound net leaders would be $43,200, for a total of $487,800.  Under the non-preferred alternative 3, 7 fishermen fishing approximately 14 pound nets would be affected.  From May 8 to June 30, forgone industry revenues would be $125,000 and the cost to remove and replace pound net leaders would be $11,200, for a total of $136,200 in the worst case scenario, assuming fishermen remove their leaders instead of switching to a smaller mesh leader.  The costs to an individual fisherman under all of the alternatives would be the same; a fisherman would on average incur revenue losses of $16,700 from not fishing and a cost of $1,600 to remove and replace leaders on their pound nets between May 8 and June 30.  Under the proposed action, the non-preferred alternative 1 and the non-preferred alternative 3, if fishermen are able to switch to a smaller leader mesh size, and it is operational, the economic impacts would be $1,600 to remove and replace the leader plus approximately $8,300 for a compliant leader.

          Dated: March 25, 2002.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries.

          List of Subjects

          50 CFR Parts 222 and 224

        Administrative practice and procedure, Endangered and threatened Species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

          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, 223, and 224 are proposed to be amended as follows:

            PART 222—GENERAL ENDANGERED AND THREATENED MARINE SPECIES

          1.  The authority citation for part 222 continues to read as follows:

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

          2.  In § 222.102, the definition of “Pound net leader” is added in alphabetical order 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 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.

            PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

          1.  The authority citation for part 223 is revised to read as follows:

            Authority:
            16 U.S.C. 1531 et seq.; subpart B, § 223.12 also issued under 16 U.S.C. 1361 et seq.

          2.  In § 223.205, paragraphs (b)(14) and (15) are revised and paragraph (b)(16) is added to read as follows:

            § 223.205
            Sea turtles.

            (b) * * *
            (14) Sell, barter, trade or offer to sell, barter, or trade, a TED that is not an approved TED;
            (15) Fail to comply with the restrictions set forth in § 223.206(d)(2)(v) regarding pound net leaders; or
            (16) Attempt to do, solicit another to do, or cause to be done, any of the foregoing.

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

            § 223.206
            Exceptions to prohibitions relating to sea turtles.

            (d) * * *
            (2) * * *
            (v) Gear requirement—pound net leaders—(A) Restrictions on pound net leaders.  During the time period of May 8 through June 30, any pound net leader in the waters described in paragraph (d)(2)(v)(B) of this section  must have a mesh size less than 12 inches (30.5 cm) stretched mesh and may not employ stringers.  Any pound net leader with mesh measuring 12 inches (30.5 cm) or greater or any pound net leader with stringers must be removed from the waters described in paragraph (d)(2)(v)(B) of this section prior to May 8 and may not be reset until July 1 unless that date is extended by the AA pursuant to § 223.206(d)(2)(v)(C).
            (B) Regulated waters.  The restrictions on pound net leaders described in paragraph (d)(2)(v)(A) of this section apply to the following waters: the Virginia waters of the mainstem Chesapeake Bay from the Maryland-Virginia State line (approximately 37° 55′ N. lat., 75° 55′ W. long.) to the COLREGS line at the mouth of the Chesapeake Bay; the James River downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 36° 59.55′ N. lat., 76°  18.64′ W. long.); the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37° 14.55′ N. lat, 76° 30.40′ W. long.); and the Rappahannock River downstream of the Robert Opie Norris Jr. Bridge (Route 3; approximately 37° 37.44′ N. lat, 76° 25.40′ W. long.).
            (C) Expedited modification of restrictions and effective dates.  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)(2)(v)(A) of this section on pound net leaders in the waters identified in (d)(2)(v)(B) of this section, the AA may issue a notification 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 strandings will likely continue beyond June 30, the AA may issue a final rule extending the effective dates of the restrictions as necessary to protect threatened sea turtles.

            PART 224— ENDANGERED MARINE AND ANADROMOUS SPECIES

          1.  The authority citation for part 224 is revised to read as follows:

            Authority:
            16 U.S.C. 1531 et seq.; and 16 U.S.C. 1361 et seq.

          2.  In § 224.104, paragraph (e) is added to read as follows:

            § 224.104
            Special requirements for fishing activities to protect endangered sea turtles.

            (e) Fishermen fishing pound nets in waters identified in § 223.206(d)(2)(v)(B) in compliance with rules for threatened sea turtles specified in § 223.206 of this chapter will not be subject to civil penalties under the Act for incidental captures of endangered sea turtles in pound net leaders.

      [FR Doc. 02-7708 Filed 3-28-02; 8:45 am]
      BILLING CODE 3510-22-S


        NATIONAL TRANSPORTATION SAFETY BOARD
        49 CFR Part 830
        [Docket No.: NTSB-2021-0004]
        RIN 3147-AA20
        Amendment to the Definition of Unmanned Aircraft Accident

          AGENCY:
          National Transportation Safety Board (NTSB).

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          The National Transportation Safety Board (NTSB) proposes amending the definition of “Unmanned aircraft accident” by removing the weight-based requirement and replacing it with an airworthiness certificate or airworthiness approval requirement. The weight threshold is no longer an appropriate criterion because unmanned aircraft systems (UAS) under 300 lbs. are operating in high-risk environments, such as beyond line-of-sight and over populated areas. The proposed definition will allow the NTSB to be notified of and quickly respond to UAS events with safety significance.

          DATES:
          Send comments on or before July 20, 2021.

          ADDRESSES:
          You may send comments, identified by Docket Number (No.) NTSB-2021-0004, by any of the following methods:
          • Federal e-Rulemaking Portal: http://www.regulations.gov.

          • Email: rulemaking@ntsb.gov.

          • Fax: 202-314-6090.
          • Mail/Hand Delivery/Courier: NTSB, Office of General Counsel, 490 L'Enfant Plaza East SW, Washington, DC 20594.

            Instructions: All submissions in response to this NPRM must include Docket No. NTSB-2021-0004. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

            Docket: For access to the docket, go to http://www.regulations.gov and search Docket No. NTSB-2021-0004.

          FOR FURTHER INFORMATION CONTACT:
          Kathleen Silbaugh, General Counsel, (202) 314-6080, rulemaking@ntsb.gov.

        SUPPLEMENTARY INFORMATION:
        I. Background
        The NTSB prescribes regulations governing the notification and reporting of accidents involving civil aircraft. As an independent federal agency charged with investigating and establishing the facts, circumstances, and probable cause of every civil aviation accident in the United States, the NTSB has an interest in redefining a UAS accident in light of recent developments in the industry.
        For NTSB purposes, “unmanned aircraft accident” means an occurrence associated with the operation of an unmanned aircraft that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, and in which any person suffers death or serious injury, or in which the aircraft has a maximum gross takeoff weight of 300 lbs. or greater and receives substantial damage.

        At the time this definition was contemplated, the weight-based requirement was necessary because defining an accident solely on “substantial damage” would have required investigations of numerous small UAS crashes with no significant safety issues. See Final Rule, 75 FR 51953, 51954 (Aug. 24, 2010). Consequently, there is no legal requirement to report or for the NTSB to investigate events involving substantial damage to UAS weighing less than 300 lbs. because these are not recognized “unmanned aircraft accidents” under the NTSB's regulations. While this definition ensured that the NTSB expended resources on UAS events involving the most significant risk to public safety, the advent of higher capability UAS applications—such as commercial drone delivery flights operating in a higher risk environment (e.g., populated areas, beyond line-of-sight operations, etc.)—has prompted the agency to propose an updated definition of “unmanned aircraft accident.” Moreover, in the August 24, 2010, Final Rule, the NTSB anticipated future updates of the definition given the evolving nature of UAS technology and operations. Id.

        II. Airworthiness Certification/Approval
        The NTSB believes that an updated definition is necessary given the changing UAS industry. Pursuant to section 44807 of the Federal Aviation Administration (FAA) Reauthorization Act of 2018 (Reauthorization Act), the FAA has recently promulgated proposed rulemaking regarding UAS. Section 44807 directed the Department of Transportation to use a risk-based approach to determine if certain UAS may operate safely in the national airspace. A number of drone delivery operations, among other applications, have begun using: (1) FAA Special Airworthiness Certificates—Experimental, or (2) approvals under the exemption processes per section 44807 of the Reauthorization Act that allows the FAA to grant exemptions on an individual basis. As drone delivery and other applications develop, airworthiness certification will become more prevalent for certain unmanned aircraft similar to that of manned aircraft.
        Therefore, an unmanned aircraft—of any size or weight—used for certain activities will require airworthiness certification or approvals due to higher risk potential, such as flights over populated areas for deliveries. Moreover, a substantially-damaged delivery drone may uncover significant safety issues, the investigation of which may enhance aviation safety through the independent and established NTSB process. This proposed definition change will treat a UAS with airworthiness certification or airworthiness approval in the same manner as a manned aircraft with airworthiness certification or airworthiness approval, thereby enabling the NTSB to immediately investigate, influence corrective actions, and propose safety recommendations.
        Accordingly, the proposed definition will be flexible to account for changes in the UAS industry and will allow the NTSB to respond quickly to UAS events with safety significance, while not burdening the agency or public with unnecessary responses.
        III. Unaffected Regulations
        A. 49 CFR 830.2 Aircraft Accident
        There is no change to the current definition of “aircraft accident” for those events in which death or serious injury occurs regardless of weight or airworthiness status.
        B. 14 CFR Part 107 Small Unmanned Aircraft Systems
        The proposed definition will only affect those operations under 14 CFR part 107 that apply to small UAS that weigh less than 55 lbs. and hold an airworthiness certificate. As for the remaining small UAS operated under part 107 that do not hold airworthiness certificates or approvals, the “airworthiness certificate or approval” criteria in the proposed definition will not apply; only events resulting in serious injury or death will be categorized as an “accident.”
        C. Section 349 of the Reauthorization Act
        This proposed definition will not affect hobbyist/modeler operations. The NTSB does not intend to investigate such accidents.
        IV. Regulatory Analysis
        Because the NTSB is an independent agency, this rule does not require an assessment of its potential costs and benefits under section 6(a)(3) of Executive Order (E.O.) 12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993). In addition, the NTSB has considered whether this rule would have a significant economic impact on a substantial number of small entities, under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.
        The NTSB does not anticipate this rule will have a substantial, direct effect on state or local governments or will preempt state law; as such, this rule does not have implications for federalism under E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999).
        This rule complies with all applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996), to minimize litigation, eliminate ambiguity, and reduce burden. The NTSB has evaluated this rule under: E.O. 12898, Federal Actions to Address Environmental Judice in Minority Populations and Low-Income Populations, 59 FR 7629 (Feb. 16, 1994); E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 62 FR 19885 (Apr. 21, 1997); E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000); E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 18, 2001); and the National Environmental Policy Act, 42 U.S.C. 4321-47. Pursuant to the Paperwork Reduction Act, the NTSB has determined that there is no new requirement for information collection associated with this proposed rule. The NTSB has concluded that this NPRM neither violates nor requires further consideration under those orders and statutes.
        The NTSB has concluded that this proposed rule neither violates nor requires further consideration under the aforementioned Executive orders and acts.

          List of Subjects in 49 CFR Part 830
          Air transportation, Aircraft accidents, Aircraft incidents, Airworthiness directives and standards, Aviation safety, Drones, Investigations, Reporting and recordkeeping requirements, Safety, Unmanned aircraft systems.

        The Chairman of the National Transportation Safety Board, Robert L. Sumwalt, III, having reviewed and approved this document, is delegating the authority to electronically sign this document to Brian Curtis, who is the Deputy Managing Director for Investigations, for purposes of publication in the Federal Register during the COVID-19 pandemic.

          Brian Curtis,
          Deputy Managing Director for Investigations.

        Accordingly, for the reasons stated in the Preamble, the NTSB proposes to amend 49 CFR part 830 as follows:

          PART 830—NOTIFICATION AND REPORTING OF AIRCRAFT ACCIDENTS OR INCIDENTS AND OVERDUE AIRCRAFT, AND PRESERVATION OF AIRCRAFT WRECKAGE, MAIL, CARGO, AND RECORDS

        1. The authority citation for part 830 continues to read as follows:

          Authority:
          49 U.S.C. 1101-1155; Pub. L. 85-726, 72 Stat. 731 (codified as amended at 49 U.S.C. 40101).

          § 830.2
          [Amended]

        2. Amend § 830.2 in paragraph (2) of the definition of “Unmanned aircraft accident” by removing the phrase “has a maximum gross takeoff weight of 300 pounds or greater” and adding in its place “holds an airworthiness certificate or approval”.

      [FR Doc. 2021-09807 Filed 5-20-21; 8:45 am]
      BILLING CODE 7533-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AT89
        Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of availability of draft economic analysis.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis for the proposal to designate critical habitat for the Pacific coast distinct population segment of the western snowy plover (Charadrius alexandrinus nivosus) under the Endangered Species Act of 1973 (Act), as amended. The draft economic analysis finds that, over the next 20 years, costs associated with western snowy plover conservation activities are forecast to range from $272.8 to $645.3 million. In constant dollars, the draft economic analysis estimates there will be an economic impact of $514.9 to $1,222.7 million over the next 20 years. The greatest economic impact (approximately 90 to 95 percent of total future impact using 3 and 7 percent discount rates) is expected to occur to recreation; other activities impacted include plover management, real estate development, military base operations, and gravel extraction. Comments previously submitted on the December 17, 2004, proposed rule (69 FR 75608) during the initial comment period need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final rule.

          DATES:
          Comments must be submitted directly to the Service (see ADDRESSES section) on or before 30 days after publication of this notice.

          ADDRESSES:
          If you wish to comment on the proposed rule or draft economic analysis, you may submit your comments and materials by any one of several methods:
          1. You may submit written comments and information by mail or hand-delivery to the Arcata Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon Road, Arcata, California 95521.
          2. Written comments may be sent by facsimile to 707-822-8411.

          3. You may send your comments by electronic mail (e-mail) to fw8snowyplover@fws.gov. For directions on how to submit electronic filing of comments, see the “Public Comments Solicited” section below.

          You may obtain copies of the draft economic analysis by mail or by visiting our Web site at http://www.fws.gov/pacific/sacramento/default.htm. You may review comments and materials received, and review supporting documentation used in preparation of this proposed rule, by appointment, during normal business hours, at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Michael Long, Field Supervisor, Arcata Fish and Wildlife Office (telephone 707-822-7201; facsimile 707-822-8411).

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited

        We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule and the draft economic analysis. On the basis of public comment, during the development of our final determination, we may find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. We particularly seek comments concerning:
        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh benefits of exclusion;
        (2) Specific information on the distribution of the western snowy plover, the amount and distribution of the species' habitat, and which habitat is essential to the conservation of the species, and why;
        (3) Land-use designations and current or planned activities in the subject area and their possible impacts on the species or proposed critical habitat;
        (4) Whether our approach to listing or critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments;
        (5) Any foreseeable economic, environmental, or other impacts resulting from the proposed designation of critical habitat or coextensively from the listing, and in particular, any impacts on small entities or families;
        (6) Whether the draft economic analysis identifies all State and local costs. If not, what other costs should be included;
        (7) Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the listing of the species or the proposed designation of critical habitat;
        (8) Whether the draft economic analysis correctly assesses the effect on regional costs associated with the proposed designation;
        (9) Whether the proposed designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation;
        (10) Whether the draft economic analysis appropriately identifies all costs that could result from the designation or coextensively from the listing;
        (11) Specific information that would help us further understand the effects of designation on small businesses that depend on recreation and tourism. Based on the information we receive on small business that depend on recreation and tourism, we are considering excluding areas based on disproportionate costs from the final designation per our discretion under section 4(b)(2) of the Act. We are specifically seeking comment along with additional information concerning our final determination for these three areas; and
        (12) We are also considering excluding areas from the final designation, and are requesting comments on the benefits of excluding or including in critical habitat the areas as discussed in our proposed rule.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

        If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Please submit electronic comments to fw8snowyplover@fws.gov in ASCII file format and avoid the use of special characters or any form of encryption. Please also include “Attn: Western snowy plover” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Arcata Fish and Wildlife Office at phone number 707-822-7201. Please note that the e-mail address fw8snowyplover@fws.gov will be closed out at the termination of the public comment period.
        Background
        On December 17, 2004 (69 FR 75608), we proposed to designate as critical habitat a total of approximately 17,299 acres (ac) (7,001 hectares (ha)) within 35 units along the coasts of California, Oregon, and Washington. In developing this proposal, we evaluated those lands determined to contain habitat features essential to the conservation of the Pacific coast population of the western snowy plover to ascertain if any specific areas are appropriate for exclusion from critical habitat pursuant to section 4(b)(2) of the Act. Section 4(b)(2) requires us to take into account economic and other impacts resulting from designation, and allows us to exclude areas with essential habitat features if the benefits of exclusion outweigh those of designation. Additionally, the newly amended section 4(a)(3) requires exclusion of military lands subject to an Integrated Natural Resources Management Plan (INRMP) that benefits the species. We have excluded several units based on these provisions. Additionally, we have considered, but are not proposing, several areas that were either unoccupied at the time of listing (1993) or are unoccupied now.

        For a discussion of previous Federal actions regarding the Pacific coast population of the western snowy plover, please see the December 7, 1999, final rule (64 FR 68508) and December 17, 2004, proposed rule (69 FR 75608) to designate critical habitat for the Pacific coast population of the western snowy plover. The December 7, 1999, final rule was remanded and partially vacated by the United States District Court for the District of Oregon on July 2, 2003, in order for us to conduct a new analysis of economic impacts (Coos County Board of County Commissioners et al. v. Department of the Interior et al., CV 02-6128, M. Hogan). The court set a deadline of December 1, 2004, for submittal of a new proposed critical habitat designation to the Federal Register. The court-established deadline for submittal of the final designation is September 20, 2005.
        Critical habitat identifies specific areas that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

        Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We are announcing the availability of a draft economic analysis for the proposal to designate certain areas as critical habitat for the Pacific coast population of the western snowy plover. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        Costs related to conservation activities for the proposed western snowy plover critical habitat pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $272.8 to $645.3 million over the next 20 years on a present value basis. In constant dollars, the draft economic analysis estimates there will be an economic impact of $514.9 to $1,222.7 million expressed in constant dollars over the next 20 years. The activities affected by plover protection may include recreation, plover management, real estate development, military base operations, and gravel extraction. Over three quarters of all future costs are associated with five central and southern California units, which include the following: Monterey to Moss Landing (CA-12C), Pismo Beach/Nipomo (CA-16), Morro Bay Beach (CA-15C), Jetty Road to Aptos (CA-12A), and Silver Strand (CA-27C). For further information, see the draft economic analysis; exhibits ES-6 and ES-7 provide detailed cost information for all activities on a unit-by-unit basis.
        Required Determinations—Amended
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for the Pacific coast population of the western snowy plover will result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying draft economic analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. In our proposed rule we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for the Pacific coast population of the western snowy plover would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., recreation, residential and related development, and commercial gravel mining). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our draft economic analysis of this proposed designation, we evaluated the potential economic effects on small business entities and small governments resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We evaluated small business entities in five categories: Habitat and plover management activities, beach-related recreation activities, residential and related development, activities on military lands, and commercial mining. Of these five categories, impacts of plover conservation to habitat and plover management, and activities on military lands are not anticipated to affect small entities as discussed in Appendix A of our draft economic analysis. The following summary of the information contained in Appendix A of the draft economic analysis provides the basis for our determination.
        On the basis of our analysis of western snowy plover conservation measures, we determined that this proposed designation of critical habitat for the western snowy plover would result in potential economic effects to recreation. Section 4 of the draft economic analysis discusses impacts of restrictions on recreational activity at beaches containing potential critical habitat for the plover. Individual recreators may experience welfare losses as a result of foregone or diminished trips to the beach. If fewer trips are taken by recreators, then some local businesses serving these visitors may be indirectly affected. The scope of our analysis makes identification of the exact businesses that may be affected difficult. Presently, we do not believe that this proposed designation will have an effect on a substantial number of small businesses and would also not result in a significant effect to impacted small businesses; however, we are requesting additional information on the effects of this proposed designation for our determination in our final rule.

        For development activities, a detailed analysis of impacts to these activities is presented in Section 5 of the draft economic analysis. For this analysis, we determined that two development projects occurring within the potential critical habitat are expected to incur costs associated with plover conservation efforts. One of these projects is funded by Humboldt County, which does not qualify as a small government, and is therefore not relevant to this small business analysis. The economic impact to the one project that qualifies as a small business is estimated to be 2.5 percent of the tax revenue. Because only one small business is estimated to be impacted by this proposal and only 2.5 percent of revenues are estimated to be incurred, we have determined that this proposed designation will not have an effect on a substantial number of small businesses.
        For gravel mining activities, we have determined that five gravel mining companies exist within Unit CA-4D of the proposed designation of critical habitat. We determined that the annualized impact from plover conservation activities to these small businesses was approximately 0.5 percent of the total sales of these five mining companies. From this analysis, we have determined that this proposed designation would also not result in a significant effect to the annual sales of these small businesses impacted by this proposed designation.
        Based on this data we have determined that this proposed designation would not affect a substantial number of small businesses involved in residential and related development and commercial gravel mining. Further, we have determined that this proposed designation would also not result in a significant effect to the annual sales of those small businesses impacted by this proposed designation. We also believe that this proposed designation would not affect a substantial number of small businesses involved in recreation and would not result in a significant effect to these businesses; however, we request further information on the impacts of this proposed designation to this economic sector for our final rulemaking. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of this designation for a more detailed discussion of potential economic impacts to small business entities.
        Executive Order 13211
        On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The proposed rule is considered a significant regulatory action under E.O. 12866 due to it potentially raising novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Appendix A of the draft economic analysis provides a detailed discussion and analysis of this determination. The draft economic analysis determines that none of the impacts of this proposed designation are relevant to energy supply, distribution, or use. Therefore we have determined that this proposed designation is not likely to produce “a significant adverse effect” as a result of western snowy plover conservation activities. Therefore, this action is not a significant action and no Statement of Energy Effects is required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) The economic analysis discusses potential impacts of critical habitat designation for the western snowy plover including administrative costs, water management activities, oil and gas activities, concentrated animal feeding operations, agriculture, and transportation. The analysis estimates that costs of the rule could range from $272.8 to $645.3 million over the next 20 years. In constant dollars, the draft economic analysis estimates there will be an economic impact of $514.9 to $1,222.7 million over the next 20 years. Recreational activities are expected to experience the greatest economic impacts related to western snowy plover conservation activities. Impacts on small governments are not anticipated. For example, costs to recreators would not be expected to be passed on to entities that qualify as small governments. Consequently, for the reasons discussed above, we do not believe that the designation of critical habitat for the western snowy plover will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Takings

        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for western snowy plover. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of critical habitat for the western snowy plover does not pose significant takings implications.
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: August 1, 2005.
          Craig Manson,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 05-16149 Filed 8-15-05; 8:45 am]
      BILLING CODE 4310-55-P