Endangered and threatened species: Sea turtle conservation— Fishing Gear Inspection Program,

[Federal Register: March 1, 2007 (Volume 72, Number 40)]

[Proposed Rules]

[Page 9297-9301]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr01mr07-21]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 070215034-7034-01; I.D. 020907D]

RIN 0648-AU98

Sea Turtle Conservation; Fishing Gear Inspection Program

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

ACTION: Proposed rule; request for comments.

SUMMARY: NMFS proposes to establish an inspection program for modified pound net leaders in the Virginia waters of the mainstem Chesapeake Bay. Current regulations require modified pound net leaders, as defined in the regulations, in a portion of the Virginia Chesapeake Bay, and allow them to be used in a different portion of the Chesapeake Bay. This proposed action would ensure that leaders used in those areas do in fact meet the definition of a modified pound net leader. This action, taken under the Endangered Species Act of 1973 (ESA), as amended, is intended to facilitate compliance with the existing regulation, which is designed to help protect threatened and endangered sea turtles.

DATES: Comments on this action are requested, and must be received at the appropriate address or fax number (see ADDRESSES) by no later than 5 p.m., eastern daylight time, on April 2, 2007.

ADDRESSES: Written comments may be submitted on this proposed rule, identified by RIN 0648-AU98, by any one of the following methods:

(1) E-mail: poundnetinspection@noaa.gov. Please include the RIN 0648-AU98 in the subject line of the message.

(2) Federal eRulemaking Portal: http://www.regulations.gov. Follow

the instructions on the website for submitting comments.

(3) NMFS/Northeast Region Website: http://www.nero.noaa.gov/nero/regs/com.html Follow the instructions on the website for submitting

comments.

(4) Mail: Mary A. Colligan, Assistant Regional Administrator for Protected Resources, NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 01930, ATTN: Sea Turtle Conservation Measures, Proposed Rule

(5) Facsimile (fax): 978-281-9394, ATTN: Sea Turtle Conservation Measures, Proposed Rule

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in one of the above formats and by e- mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Pasquale Scida (ph. 978-281-9208, fax 978-281-9394), or Barbara Schroeder (ph. 301-713-2322, fax 301-427- 2522).

SUPPLEMENTARY INFORMATION:

Background

Based upon documented sea turtle interactions with pound net leaders, NMFS issued a final rule on May 5, 2004 (69 FR 24997), that prohibited the use of offshore pound net leaders from May 6 to July 15 in an area now referred to as ``Pound Net Regulated Area I''. Pound Net Regulated Area I is defined as the Virginia waters of the mainstem Chesapeake Bay, south of 37[deg]19.0' N. lat. and west of 76[deg]13.0' W. long., and all waters south of 37[deg]13.0' N. lat. to the Chesapeake Bay Bridge Tunnel (extending from approximately 37[deg]05' N. lat., 75[deg]59' W. long. to 36[deg]55' N. lat., 76 08' W. long.) at the mouth of the Chesapeake Bay, and the portion of the James River downstream of the Hampton Roads Bridge Tunnel (I-64; approximately 36[deg]59.55' N. lat., 76[deg] 18.64' W. long.) and the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37[deg]14.55' N. lat, 76[deg]30.40' W. long.). An offshore pound net leader refers to a leader with the inland end set greater than 10 horizontal feet (3 m) from the mean low water line. The May 2004 rule also placed restrictions on nearshore pound net leaders in Pound Net Regulated Area I and on all pound net leaders employed in ``Pound Net Regulated Area II.'' Pound Net Regulated Area II refers to Virginia waters of the Chesapeake Bay, outside of Pound Net Regulated Area I as defined above, extending to the Maryland-Virginia State line (approximately 37[deg]55' N. lat., 75[deg]55' W. long.), the Great Wicomico River downstream of the Jessie Dupont Memorial Highway Bridge (Route 200; approximately 37[deg]50.84' N. lat, 76[deg]22.09' W. long.), the Rappahannock River downstream of the Robert Opie Norris Jr. Bridge (Route 3; approximately 37[deg]37.44' N. lat, 76[deg]25.40' W. long.), and the Piankatank River downstream of the Route 3 Bridge (approximately 37[deg]30.62' N. lat, 76[deg]25.19' W. long.) to the COLREGS line at the mouth of the Chesapeake Bay. According to the 2004 rule, nearshore pound net leaders in Pound Net Regulated Area I and all pound net leaders in Pound Net Regulated Area II must have mesh size less than 12 inches (30.5 cm) stretched mesh and may not employ stringers.

In 2004 and 2005, NMFS implemented a coordinated research program with pound net industry participants and other interested parties to develop and test a modified pound net leader design with the goal of eliminating or reducing sea turtle interactions while retaining an acceptable level of fish catch. The modified pound net leader design used in the experiment consisted of a combination of mesh and stiff vertical lines. The mesh size was equal to or less than 8 inches (20.3 cm). The mesh was positioned at a depth that was no more than one-third the depth of the water.

[[Page 9298]]

The vertical lines were \5/16\ inch (0.8 cm) in diameter strung vertically at a minimum of every 2 feet (61 cm) and attached to a top line. The vertical lines rose from the top of the mesh up to a top line to which they were attached. In 2005, hard lay line was used for the vertical lines in order to make them stiffer. The hard lay lines used in 2005 were made of \5/16\ inch (0.8 cm) sinking line, and were polyester-wrapped around Polysteel, which is a blend of polypropylene and polyethylene. The design was based on the premise that the sea turtles would pass through the upper two-thirds of the leader, through the stiff vertical lines, without entangling in or impinging on the leader.

During the 2-year study, the modified leader was found to be effective in reducing sea turtle interactions as compared to the unmodified leader. The final results of the 2004 study found that out of eight turtles impinged on or entangled in the leaders of pound nets, seven were impinged on or entangled in an unmodified leader. One leatherback turtle was found entangled in a modified leader. In response to the leatherback entanglement, the gear was further modified by increasing the stiffness of the vertical lines for the 2005 experiment. The 2005 experiment found that 15 turtles entangled in unmodified leaders, but no turtles were impinged on or entangled in modified leaders. Furthermore, results of the finfish catch comparison suggest that the modified leader caught similar quantities and size compositions as the unmodified leader.

Based upon these results, on June 23, 2006, NMFS issued a final rule (71 FR 36024) that required any offshore pound net leader in Pound Net Regulated Area I during the time period from May 6 through July 15 to meet the definition of a modified pound net leader. A modified pound net leader was defined as a pound net leader that is affixed to or resting on the sea floor and made of a lower portion of mesh and an upper portion of only vertical lines such that (a) the mesh size is equal to or less than 8 inches (20.3 cm) stretched mesh; (b) at any particular point along the leader the height of the mesh from the seafloor to the top of the mesh must be no more than one-third the depth of the water at mean lower low water directly above that particular point; (c) the mesh is held in place by vertical lines that extend from the top of the mesh up to a top line, which is a line that forms the uppermost part of the pound net leader; (d) the vertical lines are equal to or greater than 5/16-inch (0.8-cm) in diameter and strung vertically at a minimum of every 2 feet (61 cm); and (e) the vertical lines are hard lay lines with a level of stiffness equivalent to the stiffness of a \5/16\ inch (0.8 cm) diameter line composed of polyester wrapped around a blend of polypropylene and polyethylene and containing approximately 42 visible twists of strands per foot of line.

Existing mesh size and stringer restrictions on nearshore pound net leaders in Pound Net Regulated Area I and all pound net leaders in Pound Net Regulated Area II remain in place from May 6 through July 15 each year. However, the June 2006 rule created an exception to those restrictions by allowing the use of modified pound net leaders during that period in nearshore pound net leaders in Pound Net Regulated Area I and all pound net leaders in Pound Net Regulated Area II. The year- round reporting and monitoring requirements for this fishery and the framework mechanism under the existing regulations (May 5, 2004, 69 FR 24997) also remained in effect.

The Proposed Action

After the 2006 final rule was published, NMFS determined that an onshore inspection program that examines a modified leader ready for deployment would help ensure the protection of sea turtles, while avoiding the difficulties of and potential costs to fishermen associated with post-deployment inspections at-sea. For example, most of the pound net leader is typically set under the water, the water clarity in the Chesapeake Bay is generally poor, and there may be debris in the water that could endanger the inspector. In addition, if a fisherman was asked to haul the leader for an inspection once it was deployed, there would be a loss in fishing time. The modified leader configuration was developed to protect sea turtles, and it is important that the leaders deployed in this fishery meet the same standards as those tested in 2004 and 2005 and now embodied in the regulations. NMFS proposes an inspection program that would: (1) Provide fishermen with the assurance that their leaders meet the definition of a modified pound net leader before setting their gear, thereby avoiding the costs associated with having to haul their gear during the fishing season, fix any parts of the leader determined by an authorized officer during an at-sea inspection to be non-compliant with the regulation, and reset the gear; (2) provide managers with the knowledge that the offshore leaders in Pound Net Regulated Area I are configured in a ``turtle- safe'' manner; and (3) aid in enforcement efforts.

If a pound net fisherman intends to use a modified pound net leader anywhere in Pound Net Regulated Area I or Pound Net Regulated Area II at any time during the period from May 6 through July 15, he or she would adhere to the following requirements of the inspection program. First, the pound net fisherman, or his/her representative, would call NMFS at 757-414-0128 at least 72 hours before the modified leaders are to be deployed. During this call, the fisherman or representative and NMFS would discuss a meeting date, time, and location, as well as the fisherman's plans for setting his/her gear. While NMFS realizes that setting pound net gear is dependent upon weather conditions, allotting a window of 72 hours or more enables the fishermen and NMFS to arrange a mutually agreeable meeting time to examine the modified leaders. The second component of the inspection program involves a meeting between NMFS and the fisherman at the dock or place of leader fabrication, or another mutually agreeable place, to allow NMFS to examine the gear. This inspection may include, but is not limited to, measuring the mesh size, the spacing and diameter of the vertical lines, and the height of the mesh in relation to the entire leader height, as well as examining the hard lay line, to help ensure the modified leader meets the definition of a modified leader as established in the June 2006 final rule. During the inspection, the fisherman must inform NMFS of the specific location of deployment of his or her inspected pound net leader. If the modified leader meets the regulatory requirements, NMFS will tag the leader with one or more tamperproof tags (provided by NMFS) each of which will be marked with a unique identification number. Additionally, the fisherman will receive a letter from NMFS at the time of inspection noting that the leader has been inspected, the date of the inspection, the license holder's name for the site at which the leader will be set, the tag numbers of the attached tags, and the location of the inspected pound net leader. This letter must remain with the fisherman during fishing activities. The fisherman could then set his or her inspected leaders at any time after the dockside check, but the tags must remain on the gear. After tagging by NMFS, the tags may not be tampered with or removed from the inspected nets. Any modification to the tags on the leader, or their removal, is prohibited and voids the inspection information in the letter. If such occurs and the inspection information in the letter

[[Page 9299]]

becomes void, the fisherman would not be in compliance with the regulations and be subject to law enforcement action. If the onshore inspection indicates that the gear does not meet the requirements, then the fisherman would be told how to make his or her gear compliant with the regulation before setting it in the water for the season.

Compared to other gear types and fisheries, the pound net fishery in Virginia has several characteristics that make an inspection program such as this necessary, and possible, to implement. The gear is only deployed once during a season (unless later damaged), and the fact that the leaders are below the surface combined with the low water clarity and visibility in Chesapeake Bay make inspection of the gear during the season virtually impossible. The number of pound nets for which the gear modification is required is relatively small (