Taking of Marine Mammals Incidental to Commercial Fishing Operations; Bottlenose Dolphin Take Reduction Plan; Sea Turtle Conservation; Modification to Fishing Activities, 21695-21710 [2014-08665]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 74 (Thursday, April 17, 2014)]
[Proposed Rules]
[Pages 21695-21710]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08665]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222, 223, and 229

[Docket No. 110812495-4315-02]
RIN 0648-BB37


Taking of Marine Mammals Incidental to Commercial Fishing 
Operations; Bottlenose Dolphin Take Reduction Plan; Sea Turtle 
Conservation; Modification to Fishing Activities

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes to amend 
the Bottlenose Dolphin Take Reduction Plan (BDTRP) and its

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implementing regulations under the Marine Mammal Protection Act (MMPA). 
The amendment is needed to reduce incidental serious injury and 
mortality of strategic stocks of bottlenose dolphins in Virginia pound 
net fishing gear, and to provide consistent state and federal 
regulations for Virginia pound net fishing gear. This rule proposes the 
year-round use of modified pound net leaders for offshore Virginia 
pound nets in specified waters of the lower mainstem Chesapeake Bay and 
coastal state waters. Virginia pound net-related definitions, gear 
prohibitions, and non-regulatory measures are also proposed. Both 
regulatory and non-regulatory measures proposed in this rule are based 
on the Bottlenose Dolphin Take Reduction Team's (BDTRT) consensus 
recommendations. For consistency, NMFS also proposes to amend current 
regulations and definitions for Virginia pound nets under the 
Endangered Species Act (ESA) for sea turtle conservation.

DATES: Written comments on the proposed rule must be received before 
June 2, 2014.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2013-0064, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2013-0064, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to David Bernhart, Assistant 
Regional Administrator for Protected Resources, NMFS, 263 13th Avenue 
South, St. Petersburg, FL 33701-5505.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    This proposed rule, the BDTRP and its amendment, the Bottlenose 
Dolphin Take Reduction Team (BDTRT) meeting summaries with consensus 
recommendations, and other background documents are available at 
www.regulations.gov, or the Take Reduction Team Web site: https://www.nmfs.noaa.gov/pr/interactions/trt/bdtrp.htm, or by submitting a 
request to the Assistant Regional Administrator, Protected Resources 
(see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Stacey Horstman, NMFS Southeast 
Region, Stacey.Horstman@noaa.gov, 727-824-5312; Kristy Long, NMFS 
Office of Protected Resources, Kristy.Long@noaa.gov, 301-713-2322; or 
Carrie Upite, NMFS Northeast Region, Carrie.Upite@noaa.gov, 978-282-
8475.

SUPPLEMENTARY INFORMATION: 

Background

    The proposed rule combines two actions under different regulatory 
authorities. Specifically, these include amending: (1) The BDTRP and 
related definitions and prohibitions at 50 CFR 229.2, 229.3, and 229.35 
under the MMPA; and (2) current definitions and regulations issued 
under the ESA for sea turtle conservation at 50 CFR 222.102 and 
223.206(d)(10). NMFS is proposing to amend the BDTRP to meet its MMPA 
mandated goal of reducing incidental mortality and serious injury of 
strategic stocks of bottlenose dolphin from the Virginia pound net 
fishery. Regulations proposed under the MMPA for the Virginia pound net 
fishery are based on the BDTRT's consensus recommendations, which are 
generally consistent with existing regulations enacted under the ESA 
for sea turtle conservation, with some proposed revisions and updates. 
Therefore, amendments to the ESA sea turtle conservation regulations 
for the Virginia pound net fishery are proposed within the same 
rulemaking for consistency in definitions and regulations.

MMPA and the BDTRP

    Section 118(f)(1) of the MMPA (16 U.S.C. 1387(f)(1)) requires NMFS 
to develop and implement take reduction plans to help in the recovery 
or prevent the depletion of strategic marine mammal stocks that 
interact with Category I and II fisheries. The MMPA defines ``strategic 
stock'' as a marine mammal stock: (1) For which the level of direct 
human-caused mortality exceeds the potential biological removal (PBR) 
level; (2) which is declining and likely to be listed as a threatened 
species under the ESA; or (3) which is designated as a depleted species 
under the MMPA (16 U.S.C. 1362(1), (19), and (20)). PBR is the maximum 
number of animals, not including natural mortalities, that can be 
removed annually from a stock, while allowing that stock to reach or 
maintain its optimum sustainable population level. Category I or II 
fisheries are those with frequent or occasional accidental mortality 
and serious injury of marine mammals, respectively (16 U.S.C. 
1387(c)(1)(A)(i) and (ii)).
    The MMPA requires take reduction plans to meet short- and long-term 
goals. The short-term goal of a take reduction plan is to reduce, 
within six months of its implementation, the accidental mortality or 
serious injury of marine mammals in commercial fishing to levels less 
than PBR for the stock (16 U.S.C. 1387(f)(2)). The long-term goal of a 
take reduction plan is to reduce, within 5 years of its implementation, 
the accidental mortality or serious injury of marine mammals in 
commercial fishing to insignificant levels approaching a zero mortality 
and serious injury rate, commonly referred to as the zero mortality 
rate goal (ZMRG). NMFS has defined insignificant levels approaching a 
zero mortality and serious injury rate as 10 percent of PBR for a 
marine mammal stock (69 FR 43338; July 20, 2004). The long-term goal 
takes into account the economics of the fishery, the availability of 
existing technology, and existing state or regional fishery management 
plans. The MMPA also requires NMFS to amend take reduction plans and 
implement regulations as needed to meet these requirements and goals.
    On April 26, 2006, NMFS issued a final rule (71 FR 24776) 
implementing the BDTRP based mostly on the BDTRT's consensus 
recommendations. The BDTRP has been amended twice since then. Both 
amendments were based on the BDTRT's consensus recommendations for the 
same nighttime medium mesh gillnet fishing restrictions in North 
Carolina: (1) December 19, 2008 (73 FR 77531) by continuing the fishing 
restrictions for 3 years, expiring on May 26, 2012; and (2) July 31, 
2012 (77 FR 45268) by permanently continuing the fishing restrictions.
    The BDTRP contains both regulatory and non-regulatory conservation 
measures. These measures reduce serious injury and mortality of 13 
strategic stocks of bottlenose dolphins (Tursiops truncatus truncatus) 
in Category I and II commercial fisheries operating in the same area as 
the dolphin stocks. These measures are designed to meet the BDTRP's 
short-

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term goal and provide a framework for meeting the long-term goal. The 
regulatory measures in the BDTRP include seasonal gillnet restrictions, 
gear proximity requirements, and gear length restrictions. The non-
regulatory measures include continued research and monitoring, 
enforcement, outreach, and partnership efforts.
    The specific regulatory and non-regulatory measures in this 
proposed rule are designed to reduce serious injury and mortality of 
three strategic stocks of bottlenose dolphins in the Virginia pound net 
fishery. The three stocks include: (1) Western North Atlantic Northern 
Migratory coastal (NM); (2) Western North Atlantic Southern Migratory 
coastal (SM); and (3) Northern North Carolina Estuarine System (NNCES). 
The NM, SM and NNCES stocks can be found in Virginia state waters at 
various times of the year and are known to interact with Virginia pound 
nets.
    The NM and SM are coastal migratory stocks with larger populations 
and associated PBR levels than the NNCES stock. The NNCES stock is an 
estuarine stock found mainly in portions of North Carolina and Virginia 
bays and sounds. The NNCES stock is experiencing mortality likely 
approaching or exceeding its PBR level because of interactions with 
commercial fisheries, including the Virginia pound net fishery. The SM 
stock is not approaching or exceeding PBR. It is also not close to the 
ZMRG, however, and interactions with the Virginia pound net fishery may 
be preventing it from reaching the ZMRG. The NM stock is likely 
reaching the ZMRG, but continued interactions with the Virginia pound 
net fishery may prevent this in the long-term.

BDTRT Recommendations for Virginia Pound Nets

    After the BDTRP was implemented in May 2006, NMFS convened the 
BDTRT on June 19-20, 2007, to monitor its effectiveness. The BDTRT 
provided NMFS with one non-regulatory consensus recommendation for 
research on the Virginia pound net fishery. This recommendation was to 
continue exploring the effectiveness of modified pound net leaders 
compared to traditional leaders in maintaining finfish catch, 
especially for nets set in the lower part of the Chesapeake Bay near 
Lynnhaven, VA. Modified pound net leaders are constructed with a 
combination of hard lay vertical lines and mesh, with vertical lines 
comprising the top two-thirds of the net in the water column and mesh 
the bottom one-third. Alternatively, traditional leaders are made of 
all mesh from top to bottom. The BDTRT focused this research 
recommendation on nets near Lynnhaven because this is where the 
majority of bottlenose dolphin interactions with pound nets occur. 
Previous studies conducted in 2004 and 2005 tested the use of modified 
pound net leaders on offshore pound nets along the eastern Chesapeake 
Bay near Cape Charles for sea turtle conservation. These studies found 
modified pound net leaders were effective in maintaining finfish catch 
while reducing sea turtle interactions in the leader (Silva et al. 
2011). The BDTRT believed the modified leader design also showed 
promise for reducing bottlenose dolphin entanglements based on how they 
are made.
    In 2008, NMFS funded a grant awarded through North Carolina Sea 
Grant's competitive grant process to accomplish the BDTRT's research 
recommendation. Schaffler et al. (2011) tested modified pound net 
leaders using soft lay vertical lines on offshore pound nets set near 
Lynnhaven. They found increased catches of Spanish mackerel (targeted 
and marketable), decreased bycatch of rays and skates (non-target and 
unmarketable), and no effect on other valuable finfish catch. A follow-
up study conducted in 2011 found no significant difference in finfish 
catch when using modified leaders with soft lay versus hard lay 
vertical lines (Swingle et al. 2011). Hard lay lines are required in 
the construction of modified pound net leaders by the ESA sea turtle 
conservation regulations.
    NMFS held another BDTRT meeting September 9-11, 2009, to evaluate 
the BDTRP and review new scientific information that led to revisions 
to bottlenose dolphin stock structure. At this meeting, NMFS presented 
the results of Schaffler et al. (2011) and updated stranding and 
observer data showing bottlenose dolphin entanglements in Virginia 
pound net gear. The BDTRT reached consensus on both regulatory and non-
regulatory recommendations specific to Virginia pound nets fished in 
the lower mainstem waters of the Chesapeake Bay and Virginia state 
coastal waters. For more details on these recommended measures, please 
see the ADDRESSES section for where to get the 2007 and 2009 BDTRT 
meeting summaries.
    The following 2009 BDTRT regulatory consensus recommendations were 
provided to NMFS to reduce serious injury and mortality of bottlenose 
dolphins in the Virginia Pound Net fishery:
     Expand the waters in which the use of modified pound net 
leaders is currently required. This would include Virginia waters of 
the mainstem Chesapeake Bay west of the Chesapeake Bay Bridge Tunnel 
(CBBT). Seasonal use of modified leaders is required in this area under 
ESA sea turtle conservation regulations (i.e., Pound Net Regulated Area 
I (PNRA I); see Figure 1). Regulated waters would also extend east of 
the CBBT to include waters of the Chesapeake Bay mouth and Virginia 
coastal state waters north to the Maryland/Virginia line and south to 
the Virginia/North Carolina line. The area recommended by the BDTRT is 
the proposed action area and referred to as the Bottlenose Dolphin 
Pound Net Regulated Area (BDPNRA) throughout this rule (see Figure 2).
     Maintain a definition for modified pound net leaders 
consistent with the definition issued under ESA regulations (50 CFR 
222.102).
     Extend the seasonal requirements for offshore pound nets 
to use modified leaders year-round in the regulated waters described in 
the first bullet point above.
     Change the definition of ``nearshore pound net leaders'' 
from how it is currently defined in the regulations issued under the 
ESA (50 CFR 222.102). The new definition would be a ``pound net with a 
leader starting from 10 feet (3 m) horizontally from mean low water and 
ending at the king post at 12 feet (3.7 m) or less at mean low water 
(depth)''. The intent of this change is to ensure the king post-stake 
does not extend into depths beyond 12 feet (3.7 m) mean low water. The 
offshore pound net leader definition would remain the same as defined 
(50 CFR 222.102).
     Ensure consistency between regulations for Virginia pound 
nets regulated under the authority of ESA for sea turtles and any 
upcoming regulations for dolphins under the MMPA.
     Include the same pound net inspections and certifications 
required under the existing regulations issued under the ESA 50 CFR 
(223.206(d)(10)(vii)) or help ensure compliance and enforcement in 
other ways.
    The BDTRT also recommended non-regulatory measures for the Virginia 
pound net fishery at their 2009 meeting. The purpose of the non-
regulatory measures is to increase the BDTRP's success in meeting its 
short- and long-term goals by increasing the effectiveness of 
regulatory measures. The non-regulatory recommendations included 
forming a Virginia working group to help, as needed: (1) Further refine 
the BDTRT's consensus recommendations for rulemaking; (2)

[[Page 21698]]

develop proposals for pound net gear research; (3) identify gear 
similar to pound nets (i.e., fyke nets); (4) discuss how to address 
pound nets that may be considered nearshore or offshore pound nets; and 
(5) identify how many pound nets meet the current definition under ESA 
regulations of a nearshore pound net leader and if any may be affected 
by definition changes proposed by the BDTRT.
    The BDTRT also recommended outreach and coordination to help with 
compliance and monitoring of recommended regulatory measures for the 
Virginia pound net fishery. These measures included: (1) Informing the 
Virginia Marine Resources Commission (VMRC) of the BDTRT's 
recommendations for the fishery; (2) coordinating with the VMRC and 
other Federal entities to help with enforcement of regulations for the 
fishery; and (3) providing outreach and education to Virginia pound net 
fishermen on any upcoming regulations.

Virginia Pound Net Fishery

    Virginia pound nets are a Category II fishery under the MMPA 
because of interactions with bottlenose dolphins. A Category II fishery 
has occasional incidental mortality or serious injury of marine 
mammals, meaning incidental mortality or serious injury that is greater 
than 1 percent and less than 50 percent of a stock's PBR level.
    Virginia pound nets are passive fishing devices that use fixed gear 
for live entrapment of various finfish species. Pound nets target any 
fish species that swim into the net and become trapped in the 
``pound.'' Pound nets are not intended to catch fish through 
entanglement. Finfish species caught depend on the season the nets are 
fished and the fish in the area at that time (Mansfield et al. 2001). 
Pound nets are generally fished in Virginia from March/April to 
October/November, depending on weather and fishing success (Schaffler 
et al. 2011).
    The pound net is supported by poles driven into the sediment on 
which the net is strung, making it a semi-fixed structure. Pound nets 
have three sections that are all constructed of multifilament fiber: 
(1) The leader, a long, straight net set perpendicular to the beach 
that leads the fish offshore to the pound; (2) the heart, the portion 
of the net that funnels the fish into the pound; and (3) the pound, 
where the fish are entrapped. All three components of pound net gear 
are needed to effectively harvest fish. The net sections act together 
to turn fish swimming along the shore and guide them into the heart and 
pound. The fish are captured (i.e., not gilled) and held in the pound 
until they are harvested (Mansfield et al. 2001; NMFS 2004; NMFS 2006).
    Virginia pound net leaders are generally several hundred meters in 
length, extend from the sea floor to surface, and vary in mesh size and 
construction (DeAlteris and Silva 2007). There are both state and 
Federal seasonal regulations for how pound net leaders are constructed 
within the proposed BDPNRA. The type of seasonal requirements depends 
on whether pound nets meet the definition of an offshore or a nearshore 
pound net leader. Sea turtle conservation regulations define pound nets 
as having an offshore or nearshore pound net leader based on distance 
from shore at mean low water (50 CFR 222.102). Requirements for leader 
construction are either for all mesh (i.e., traditional, or non-
modified, leader) or a combination of mesh and vertical lines (i.e., 
modified leader).
    In 2006, NMFS established, through sea turtle conservation 
regulations issued under the ESA, annual seasonal requirements for 
pound nets meeting the definition of either an offshore or nearshore 
pound net leader. Offshore pound nets fished in the proposed BDPNRA 
waters west of the CBBT (i.e., PNRA I; Figure 1) from May 6 through 
July 15 are required to use modified pound net leaders (Sec.  
223.206(d)(10)(i)). Modified pound net leaders must be constructed with 
hard lay vertical lines instead of mesh for the top two-thirds of the 
leader and 8-inch (20.3 cm) or less stretched mesh for the bottom one-
third (50 CFR 222.102). Nearshore pound nets in all proposed BDPNRA 
waters (i.e., PNRA I and II; Figure 1) and all pound nets fished in 
PNRA II from May 6 through July 15 must be constructed of mesh 
measuring less than 12-inches (30.5 cm) stretched or constructed with 
modified leaders (Sec.  223.206(d)(10)(ii)).
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP17AP14.006

BILLING CODE 3510-22-C
    In 2010, Virginia required the use of modified pound net leaders 
following the BDTRT's 2009 consensus recommendations. The state 
regulations expanded the required use of modified pound net leaders for 
offshore nets in some areas per the BDTRT's recommendations. Fishermen 
using offshore pound nets in proposed BDPNRA waters west of the CBBT 
(i.e., PNRA I; Figure 1) are required to use modified pound net leaders 
from May 6 to July 31 (4VAC20-20-30E). This extended the sea turtle 
conservation requirements for using modified pound net leaders in this 
area by two weeks. The state further required any fishermen using pound 
nets in proposed BDPNRA waters east of the CBBT and in state coastal 
waters to use modified pound net leaders year round (4VAC20-20-30D). 
Modified pound net leaders were not previously required in this area 
under the ESA regulations.
    Both state and Federal regulations require inspection of modified 
pound net leaders before deployment. This is to ensure the modified 
pound net leader meets its regulatory definition (4VAC20-20-30D and 50 
CFR 223.206(d)(10)(vii), respectively). The inspection program requires 
fishermen to notify NMFS at least 72 hours before deploying modified 
pound net leaders. NMFS then examines the leaders for compliance with 
the definition of a modified pound net leader before the leader is 
deployed. This also involves collecting information from fishermen on 
the depth and physical coordinates of their gear and tagging the leader 
after it passes inspection to aid enforcement. The inspection program 
was implemented in this manner to reduce the difficulties of post-
deployment inspections of the gear at sea.
    To characterize the current pound nets in the proposed BDPNRA, the 
NMFS' Northeast Fishery Observer Program (NEFOP) surveyed Virginia

[[Page 21700]]

pound nets in this area from May to July 2010 and June 2011. The NEFOP 
identified 41 pound net locations within these waters, with an average 
leader length measuring 795 feet (242.3 m). All 41 pound nets were 
located within the southern Virginia mainstem waters of the Chesapeake 
Bay with no nets set in coastal state waters. Twenty-one of the 41 nets 
met the definition in the ESA regulations of a nearshore pound net 
leader, and 20 met the definition of an offshore pound net leader. Cape 
Charles was and still is the only area where nearshore pound net 
leaders were located. In 2010 and 2011 in the proposed BDPNRA, 21 
nearshore and 12 offshore pound nets were set along the eastern 
Chesapeake Bay near Cape Charles; two offshore nets were in the western 
Bay at Mobjack Bay; and six offshore nets were in the southern Bay near 
Lynnhaven Inlet.

Bottlenose Dolphin Mortalities Associated With Virginia Pound Nets

    There is some uncertainty regarding which of the three bottlenose 
dolphin stocks or combination of stocks interact with the Virginia 
pound net fishery. Satellite-tagging and photo-identification data 
provide the best available information on the bottlenose dolphin 
stocks' movements during the fishing season. The NM stock is the only 
stock in Virginia state waters during the early (March-April) and later 
months (November) of the fishing season. From May through June, both 
the SM and NM stocks occur in state waters and may interact with pound 
nets. From July through August, both the SM and NNCES stocks are in 
state waters, which is when the most interactions with the Virginia 
pound net fishery are documented. From September through October, all 
three stocks (NM, SM, and NNCES) may occur in state waters and interact 
with pound nets.
    Bottlenose dolphin entanglements with the Virginia pound net 
fishery are documented by the Virginia Aquarium and Marine Science 
Center (VAQ) stranding network since 1997 and the NEFOP since 2003. 
NEFOP opportunistically observes this fishery; therefore, most of the 
information on these entanglements is from stranding data. Dolphins get 
entangled in the leader portion of the pound net, where they are 
removed alive or dead (Schaffler et al. 2011). Behavioral observations 
of dolphins show they use the leader as a foraging tool and likely get 
entangled as they herd fish toward the leader (Schaffler et al. 2011). 
Dolphins removed from the leader have twisted twine markings or 
impressions in the skin (Lynott and Barco, VAQ, pers. comm.) because 
the leaders are made of multifilament (i.e., twisted twine) material.
    Dolphins also strand dead close to pound nets with twisted twine 
marks consistent with a pound net leader entanglement (Schaffler et al. 
2011). The twisted twine marks are visible on the stranded dolphin's 
body when the markings are new and unhealed (Lynott and Barco, VAQ, 
pers. comm.). Careful examination of these markings can provide 
evidence of a fishery interaction (Read and Murray 2000; Kuiken 1996), 
and the presence of unhealed cuts or markings on the skin also 
indicates the animal interacted with and died from that fishery 
interaction (Read and Murray 2000). Therefore, the presence of unhealed 
twisted twine marks and the dolphin stranding in areas when the 
Virginia pound net fishery is active indicates the dolphin interacted 
with this fishery and is presumed to have ultimately died from that 
interaction.
    In Virginia state waters from 2002-2011, 84 bottlenose dolphins 
were found with evidence of pound net entanglement by the VAQ and 
NEFOP. Thirty-one of the 84 animals were found entangled in pound net 
leaders and removed either dead or alive. Only 3 of the 31 animals were 
released alive; although it is unknown whether the entanglement caused 
serious injuries that may have later led to death. Twenty-eight of the 
animals removed directly from pound net leaders were entangled in 
offshore pound nets; the remaining three animals were in nearshore 
pound nets. Fifty-three animals stranded dead with twisted twine marks 
indicating a pound net entanglement and resulting death. All of these 
animals had new and unhealed twisted twine markings (Lynott and Barco, 
VAQ, pers. comm.).
    Documented pound net interactions occurred in all months from April 
through November, which is typically the season for fishing pound nets 
in Virginia. Most interactions were in May through September, peaking 
in August. The majority (77 percent) of the 84 pound net interactions 
from 2002-2011 were in the southern portion of Chesapeake Bay near 
Lynnhaven Inlet. This is the area where the NEFOP documented six 
offshore pound nets in 2010 and 2011.
    Virginia pound net interactions were assigned to the three dolphin 
stocks based on which stocks are in waters where pound nets are fished 
during different times of year. Due to spatial overlap of stocks when 
the fishery is active and uncertainty in stock identification described 
above, interactions were assigned to either the NM stock only; both the 
SM and NM stocks; both the SM and NNCES stocks; or all three stocks. As 
a result, 41 of the 84 pound net interactions from 2002-2011 were 
assigned to the NM stock; 82 were assigned to the SM; and 57 to the 
NNCES stock. These assignments are not additive because of the 
overlapping nature of the stock and stock uncertainty. Total estimated 
bycatch mortality from interactions in Virginia pound nets cannot be 
generated because there is no systematic observer program for this 
fishery. Therefore, individual entanglements opportunistically observed 
by the NEFOP or documented by stranding data are a minimum count of 
Virginia pound net bycatch mortality per stock.
    To evaluate the impact of the Virginia pound net fishery on each 
stock, documented pound net interactions assigned to stocks are 
compared against PBR. The NNCES stock has the smallest abundance 
estimate and associated PBR at 7.9 animals per year, and fishery 
interactions, therefore, would present the greatest conservation risk 
to this stock. Therefore, interactions assigned to more than one stock, 
including the NNCES stock, are considered to be from the NNCES stock 
only to evaluate risk of exceeding PBR. From 2002-2011, the 57 pound 
net interactions assigned to the NNCES stock represent an annual 
average of 5.7 animals per year, which represents 72.2 percent of PBR. 
When looking at the most recent five years (2007-2011) that include 
recent state regulations, 25 pound net interactions were assigned to 
the NNCES stock. This represents an annual average of 5 animals per 
year, which represents 63.3 percent of PBR.
    Stranding data were used to evaluate the effectiveness of the 
state's 2010 regulations requiring the use of modified pound net 
leaders and the effect of these gear modifications on bottlenose 
dolphin interactions. Although the data set is limited to only two 
years (2010-2011), stranding data indicate a decreasing trend of 
bottlenose dolphin interactions with Virginia pound nets after the 
state's regulations. Therefore, when comparing stranding data for the 
two years immediately before (2008-2009) and after the state's 2010 
regulations, there was a decrease in bottlenose dolphin interactions. 
Specifically, there was a 64 percent decrease in the total average 
annual number of bottlenose dolphin interactions with pound nets for 
all proposed BDPNRA waters. The annual average was 11 dolphins in 2008-
2009 compared to 4 in 2010-2011. When evaluating this for the NNCES 
stock, the average annual number of bottlenose

[[Page 21701]]

dolphin interactions with pound nets decreased by 82 percent. This was 
a decrease from 8.5 (107.6 percent of PBR) animals per year from 2008-
2009 to 1.5 animals per year (19 percent of PBR) from 2010-2011.
    Pound net gear is not the only gear posing entanglement risks to 
these bottlenose dolphin stocks. Gillnets are another known significant 
source of serious injury and mortality. The NEFOP implements systematic 
observer coverage of the gillnet fishery. The most recent estimates of 
fishing mortality in coastal gillnets for the NNCES stock are from 
2004-2008. These estimates are a minimum of 2.3 animals per year (29 
percent of PBR) or a maximum of 18.99 animals per year (240 percent of 
PBR) (Waring et al. 2011). When evaluating total risk to the NNCES 
stock from known fishery-related serious injury and mortality, the 
total annual human-caused serious injury and mortality must be 
considered. This means the gillnet mortality estimate must be 
considered with the most recent five year annual average (2007-2011) 
for Virginia pound net interactions, which is 5 animals per year (63.3 
percent of PBR). Therefore, the total fishery mortality affecting this 
stock could be at least 23.99 animals per year.
    Mortalities and serious injuries of the NNCES stock likely exceed 
PBR. This is a concern when evaluating either total annual-human caused 
mortality and/or considering individual fishery-related impacts on the 
stock. If all the bottlenose dolphins interacting with pound nets 
belong to the NNCES stock, then the average annual mortality and 
serious injury incidental to pound nets caused more than 50 percent of 
the stock's mortality over the last five years (2007-2011). While the 
regulations appear successful in reducing bottlenose dolphin 
interactions in pound net leaders overall, interactions are still 
documented in months when modified leaders are not required. 
Conservation benefits are lost when requirements to use modified 
leaders are lifted west of the CBBT on August 1. Furthermore, the 
seasonal regulatory timeframes for areas west of the CBBT may not be 
adequate in the future. The Virginia pound net fishing season typically 
occurs from April through November. However, this is weather dependent, 
and fishermen may set pound net gear earlier and keep the gear in the 
water later in years with mild springs and winters. This increases the 
potential for interactions with bottlenose dolphins outside the 
timeframe when modified leaders are currently required. Therefore, 
additional regulations are still needed despite the decreasing overall 
trend in the average annual pound net interactions following the 
state's regulations. Requiring offshore pound nets to use modified 
pound net leaders year-round in the proposed BDPNRA will help ensure 
entanglements do not cause serious injury and mortality and exceed PBR 
for the NNCES stock while allowing the fishery to continue. This will 
also help reduce serious injury and mortality of both the SM and NM 
stocks incidental to Virginia pound nets that may be preventing the 
stocks from meeting or maintaining ZMRG.
    The modified leader design is an effective solution to reduce 
dolphin interactions with Virginia pound net leaders. Dolphins may use 
the leader as a foraging strategy by herding fish against the leader 
mesh wall. The reduced mesh webbing and spacing and design of the 
vertical lines of the modified leader reduce areas for dolphin 
entanglements. Therefore, research indicates the modified leader likely 
reduces the bycatch of dolphins (Schaffler et al. 2011). The evaluation 
of stranding and observer data also indicates the modified leader 
design reduces bottlenose dolphin interactions.

Proposed Regulatory Changes to the BDTRP

    NMFS proposes to implement the BDTRP's 2009 regulatory 
recommendations for the Virginia pound net fishery with some revisions 
and updates. NMFS believes these measures are necessary to reduce 
serious injury and mortality of strategic stocks of bottlenose dolphins 
from interactions with Virginia pound net gear.
1. Proposed Regulated Waters and Virginia Pound Net Gear-Area Measures
    NMFS proposes to implement the BDTRT's consensus recommendation for 
where and when modified pound net leaders are used. The proposed 
regulated waters would include the Virginia waters of the lower 
mainstem Chesapeake Bay currently regulated under the sea turtle 
conservation regulations and would extend east of the CBBT to include 
coastal state waters north to the Maryland/Virginia line and south to 
the Virginia/North Carolina line (Figure 2). NMFS proposes to define 
these regulated waters as the BDPNRA. The proposed BDPNRA does not add 
to the waters currently regulated under the combined state and federal 
regulated areas for modified pound net leader requirements. It would 
combine them into one area under a single, additional regulatory 
authority.
BILLING CODE 3510-22-P

[[Page 21702]]

[GRAPHIC] [TIFF OMITTED] TP17AP14.007

BILLING CODE 3510-22-C
    NMFS proposes to require the year-round use of modified pound net 
leaders for offshore pound nets in the proposed BDPNRA as recommended 
by the BDTRT. Pound nets fished in the proposed BDPNRA and meeting the 
definition of an offshore pound net will be required to use modified 
pound net leaders year-round. The state currently requires the year-
round use of modified pound net leaders for all pound nets fished in 
the proposed BDPNRA waters east of the CBBT, including state coastal 
waters. However, in the proposed BDPNRA waters west of the CBBT, the 
combined state and Federal sea turtle regulations currently only 
require

[[Page 21703]]

offshore pound nets to use modified pound net leaders from May 6 
through July 31. Therefore, this proposed rule extends the required use 
of modified pound net leaders to year-round for offshore pound nets in 
all waters in the proposed BDPNRA. Requiring year-round use of modified 
pound net leaders on offshore pound nets will help reduce serious 
injury and mortality to all strategic stocks of bottlenose dolphins 
interacting with the gear in all months when the fishery is active.
    NMFS proposes to update the Purpose and Scope of the BDTRP under 
Sec.  229.35(a) based on the proposed regulations for pound nets. The 
purpose and scope currently only includes small, medium, and large mesh 
gillnets for the list of gear restricted by the section. The proposed 
update adds pound net gear to this list. This update will clarify gear 
regulated and restricted under this section based on proposed 
regulation. All other restrictions within the BDTRP would remain 
unchanged.
    NMFS also proposes to update the Regulated Waters of the BDTRP 
under Sec.  229.35(c). The regulated waters currently include those 
applicable to gillnet restrictions only. The proposed update includes 
reorganizing the regulated waters implementing regulations to add areas 
specific to pound nets, which are different than those specified for 
gillnets. Gillnet regulated waters are currently specified under Sec.  
229.35(c) and are proposed to be redesignated as Sec.  229.35(c)(i). 
This update does not change the gillnet regulated waters, it simply 
reorganizes them. Pound net regulated waters are proposed as Sec.  
229.35(c)(ii) to accommodate proposed regulated waters for using 
modified pound net leaders in the BDPNRA.
2. Proposed Terms in the BDTRP Related to Virginia Pound Nets
    NMFS also proposes to add and define several pound net related 
terms to the BDTRP under 50 CFR 229.2. Some of these were recommended 
by the BDTRT. Others were not considered by the BDTRT but are necessary 
for effective implementation of the BDTRT's recommended regulatory 
measures.
    The BDTRT recommended NMFS add to the BDTRP the same definition of 
a modified pound net leader as currently used in sea turtle 
conservation regulations. NMFS proposes to add this definition to 50 
CFR 229.2 with some modifications to clarify practices and more 
explicitly identify requirements for modified leader construction. 
Specifically, NMFS proposes to add a separate definition of hard lay 
lines, rather than include it in the modified pound net leader 
definition. Hard lay lines are required in the construction of modified 
pound net leaders. Therefore, hard lay lines are proposed as a separate 
definition, and the definition is clarified that fishermen can use line 
that is as least as stiff as what is defined. These proposed changes do 
not change the intent of the definition and what components make 
vertical lines hard lay. NMFS also proposes to add a phrase to the 
modified leader definition that the mesh portion of the modified leader 
be ``. . . held in place by a bottom chain, which is a line that forms 
the lowermost part of the pound net leader . . .''. The proposed 
revisions and updates to the modified pound net leader definition do 
not change the intent of the BDTRT's recommendations or the 
construction of the modified leaders as studied.
    The BDTRT also recommended a revised definition for a nearshore 
pound net leader and that the offshore pound net leader definition 
remains as currently defined in the sea turtle conservation 
regulations. Both of these terms are currently defined under the sea 
turtle conservation regulations. Those definitions use distance from 
shore (i.e., 10 horizontal feet (3 m)) of the inland end of the leader 
at mean low water as the only differentiating factor for both offshore 
and nearshore pound net leaders. The BDTRT's recommended definition for 
a nearshore pound net added a water depth end point to the current 
definition as another factor for determining if a net is nearshore. The 
Team added this water depth because they felt the distance from shore 
portion of the current definition may still allow the leader to extend 
into deeper, more offshore waters, where a modified leader should be 
used. Therefore, they recommended the most offshore pole at the pound 
end (i.e., king post) be at 12 feet (3.7 m) or less mean low water 
depth. This was to ensure the king post did not extend beyond the 12 
foot (3.7 m) depth where a modified leader should be used.
    NMFS is proposing to define both nearshore and offshore pound nets 
in the BDTRP based on the BDTRT's definition but with revisions. These 
revisions are needed to address concerns raised with the current 
definitions and the BDTRT's recommended definition of a nearshore pound 
net leader. NMFS' proposed definition removes the distance from shore 
part of the definitions and uses limits on water depth of the leader, 
regardless of tide, as the defining factor. Using water depth only is 
clearer and more consistent for fishermen and enforcement. It reduces 
environmental variability and interpretation of determining mean low 
water and distance from shore measurements. It also provides 
conservation benefits for protected species by ensuring leaders 
extending into deeper waters use modified leaders, despite the distance 
from shore. Therefore, NMFS proposes to define an offshore pound net 
based on any part of the leader in water depth of 14 feet (4.3 m) or 
greater at any tidal condition. A nearshore pound net will be defined 
as a pound net leader with every part of its leader in waters less than 
14 feet (4.3 m) at any tidal condition. NMFS coordinated with various 
NOAA offices and BDTRT members to develop these proposed definitions. 
NMFS also considered the BDTRT's recommended definition, pound net 
leader characteristics, and depth of the fishing grounds. The average 
tidal range in Chesapeake Bay within the proposed BDPNRA is 
approximately 2.4 feet (73.2 cm). Therefore, NMFS' proposed 14 feet 
(4.3 m) water depth is consistent with the BDTRT's recommended depth of 
12 feet (3.7 m) at mean low water. Based on 2010 and 2011 NEFOP data, 
no nets will change from offshore to nearshore pound nets and vice 
versa as a result of the proposed definition changes.
    NMFS also proposes to define pound nets. Although this was not 
considered or recommended by the BDTRT, the term is currently not 
defined in 50 CFR 229.2 or the sea turtle conservation regulations. 
NMFS believes it is necessary to define the type of gear to which these 
proposed regulations apply. In addition to defining the gear, NMFS 
proposes to ensure that all sections of the gear are fished at the same 
time. Pound nets are made of three sections: The leader, heart, and 
pound. All three sections are needed to actively fish the gear. 
However, the NEFOP data show that fishermen sometimes leave portions of 
their gear in the water (e.g., only the leader) to where it is not 
actively catching fish but still poses an entanglement risk to 
protected species. Therefore, NMFS proposes that the leader, heart, and 
pound must be fished at the same time with the exception of a 
continuous 10-day period to deploy, remove, and/or repair gear. NMFS 
proposes the 10-day duration after discussion with pound net gear 
experts as a suitable and realistic time period for deploying, 
removing, and/or repairing gear. The purpose of this requirement is to 
reduce gear in the water that is no longer fishing, but still poses an 
entanglement risk to dolphins and sea turtles.

[[Page 21704]]

3. Proposed Education and Enforcement of Virginia Pound Net Gear-Area 
Measures
    Education and enforcement are necessary parts of any regulatory 
program to ensure they are working as intended. The BDTRT recommended 
NMFS either include the same pound net leader inspections as in the sea 
turtle conservation regulations or help ensure compliance and 
enforcement of proposed measures. NMFS agrees helping fishermen comply 
with regulations and assisting enforcement efforts are important. 
Therefore, NMFS proposes a combination of both an education program for 
Virginia pound net fishermen and collaborative on-water enforcement of 
deployed gear. Specifically, under the BDTRP, NMFS proposes to require 
education and compliance training for all fishermen deploying a 
modified pound net leader on offshore pound nets at any time in the 
proposed BDPNRA. Fishermen will be required to attend a one-time 
training prior to deploying modified pound net leaders. They will 
receive a certificate for attending the training that they must keep on 
their vessel. NMFS will retain its discretion to provide exceptions to 
this training in limited circumstances to add flexibility for any 
potential hardships. For enforcement, NMFS will coordinate with the 
VMRC to conduct on-water enforcement and monitoring of the modified 
leader through a Joint Enforcement Agreement.
    The purpose of the proposed education and enforcement is to more 
efficiently ensure and accurately determine compliance with the 
modified leader requirements. Conducting compliance training for 
fishermen educates them about gear requirements before the gear is 
constructed and deployed. Coordinating with the VMRC to evaluate the 
gear in the water provides more opportunities for accurate measurements 
of some of the gear requirements.

Proposed Non-Regulatory Changes to the BDTRP

    NMFS proposes to update the non-regulatory measures in the BDTRP 
based on the BDTRT's recommendations for Virginia pound nets. NMFS 
agrees with all the BDTRT's non-regulatory measures. Some of these were 
already implemented because of their adaptive nature, and others will 
continue to be implemented in the future as needed. NMFS initially 
formed a Virginia pound net working group per the BDTRT's 
recommendations to help further refine several parts of their 
regulatory recommendations. NMFS consulted with several of these 
working group members throughout the development of this proposed rule 
and will continue this dialogue in the future as needed.
    NMFS coordinated with the VMRC per the BDTRT's recommendations. The 
Team recommended NMFS inform the state of their recommendations for the 
Virginia pound net fishery and coordinate with them on enforcement. 
Following the BDTRT's 2009 meeting, NMFS sent a letter to the state and 
provided them with the team's recommendations. The VMRC subsequently 
implemented state regulations requiring modified pound net leaders 
partly based on the team's recommendations. NMFS also started 
coordinating with the VMRC in 2011 for on-water enforcement and 
inspections of modified leaders through a Joint Enforcement Agreement. 
NMFS will continue to partner with the state on enforcement.
    The BDTRT noted the importance of outreach to Virginia pound net 
fishermen on any regulations regarding pound net gear. NMFS agrees and 
will provide outreach to fishermen in several ways. First, NMFS will 
send all the Virginia pound net fishermen within the proposed BDPNRA a 
letter informing them of this proposed rule based on the BDTRT's 
consensus recommendations. Second, during the proposed and final rule 
process, NMFS' fishery liaisons will be available to answer questions 
as necessary and provide additional information. Finally, as mentioned 
above, NMFS proposes to conduct required compliance training for all 
affected fishermen before they deploy their gear. This additional 
outreach combined with the educational training will help ensure 
fishermen understand any gear requirements before deployment.

ESA and Sea Turtle Conservation Measures

    All sea turtles in U.S. waters are listed as either endangered or 
threatened under the ESA. The Kemp's ridley (Lepidochelys kempii), 
leatherback (Dermochelys coriacea), and hawksbill (Eretmochelys 
imbricata) sea turtles are listed as endangered. The green turtle 
(Chelonia mydas) and Northwest Atlantic Ocean Distinct Population 
Segment of loggerhead sea turtles (Caretta caretta) are listed as 
threatened. However, the breeding populations of green turtles in 
Florida and on the Pacific Coast of Mexico are listed as endangered.
    Under the ESA and its implementing regulations, taking sea turtles, 
even incidentally, is prohibited. Take is defined under the ESA as ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect or attempt to engage in any such conduct''. The term incidental 
take refers to takings of endangered and threatened species that result 
from, but are not the purpose of, an otherwise lawful activity. The 
incidental take of listed species may be exempted from the ESA take 
prohibition by an incidental take statement or permit issued under 
section 7 or 10 of the ESA, respectively. Sea turtle conservation 
regulations at Sec.  223.206(d) provide some exemptions for the 
incidental take of threatened sea turtles in fishing activities and 
scientific research.

History of Sea Turtle Conservation for the Virginia Pound Net Fishery

    Both juvenile and adult sea turtles generally occur in the Virginia 
waters of Chesapeake Bay from May through November (Lutcavage and 
Musick 1985; Musick and Limpus 1997; Mansfield et al. 2009). Loggerhead 
sea turtles are the most abundant sea turtle species in that area, 
followed by Kemp's ridleys, then greens, and leatherbacks (Mansfield 
2006). Juvenile loggerheads and Kemp's ridleys specifically appear to 
use the Virginia waters of Chesapeake Bay as important growth and 
foraging habitats (Bellmund et al. 1987; Musick and Limpus 1997; 
Mansfield et al. 2009).
    Stranded sea turtles are found during all months that sea turtles 
occur in the Virginia Chesapeake Bay waters. The total number of annual 
strandings varies slightly from year to year. From 1995 to 2011, total 
annual strandings ranged from a low of 158 in 1995 to a high of 523 in 
2003. High concentrations of stranded sea turtles were found along Cape 
Charles in the early 2000s. Between 2000 and 2003, from April through 
September, sea turtle strandings along Cape Charles accounted for 
approximately 43 percent of all strandings in Virginia. Reported 
stranding numbers declined after 2004. From 2004 to 2011 for the same 
months and area, average strandings decreased to 34 percent of all 
strandings in Virginia (Thomas et al. 2012).
    In Virginia, each spring and early summer, the Sea Turtle Stranding 
and Salvage Network reports high sea turtle strandings. Most of the 
previous high stranding events occurred between May and June, with 
elevated strandings during the first half of July. In 2009, however, a 
concentration of increased strandings (n = 36) occurred along Cape 
Charles from July 24 to September 30. This was a four-fold increase in 
strandings compared to the previous four years in the same time and 
area. These strandings also occurred later,

[[Page 21705]]

with peak numbers in late July through September.
    The available data cannot statistically demonstrate a causal 
connection between pound net interactions and high spring strandings. 
However, there is data indicating the pound net fishery was a likely 
cause of a portion of sea turtle mortality in Chesapeake Bay (NMFS 
2004). Carcass decomposition limits post-death assessment of many 
stranded turtles, but available information on some strandings was 
consistent with mortality from fisheries interactions (Trapani et al. 
2009).
    NMFS has documented lethal and non-lethal takes of sea turtles in 
pound net leaders. Specifically, the NEFOP monitored and characterized 
the pound net fishery while it was active in 2002, 2003, 2004, 2005, 
2009, and 2010. Research was also conducted on modified pound net 
leaders in 2004 and 2005. A total of 31 entanglements in leaders and 18 
impingements (i.e., turtles held against the leader by the current) 
were documented by the NEFOP or recorded during modified leader 
studies. All documented entanglements and impingements occurred in 
either May or June. These documented entanglements and impingements 
represent minimum counts of sea turtle interactions in pound net 
leaders.
    NMFS issued a series of amendments to the sea turtle conservation 
regulations for the Virginia pound net fishery (Sec.  223.206(d)(10)) 
to reduce takes of sea turtles in leaders because of documented 
interactions and high stranding events. An interim final rule was 
published in 2002 (67 FR 41196; June 17, 2002). This rule contained 
several requirements and prohibitions for pound nets set in the 
Virginia waters of the mainstem Chesapeake Bay and portions of the 
tributaries. From May 8 through June 30 in these areas, pound net 
leaders made with either stringers (i.e., vertical lines) or stretched 
mesh measuring 12 inches (30.5 cm) and greater were prohibited. 
Fishermen were also required to report all interactions with sea 
turtles in their pound net gear to NMFS within 24 hours of returning 
from the fishing trip. The interim final rule also included a year-
round requirement that pound net fishing operations must be observed by 
a NMFS-approved observer if requested. Finally, the 2002 rule 
established a framework to further protect sea turtles. The framework 
allows NMFS to change the restrictions and their effective dates on an 
expedited basis by responding to new information, such as the 
entanglement of a sea turtle in a pound net leader.
    NMFS issued a final rule in 2004 pertaining to Virginia pound nets 
(69 FR 24997; May 5, 2004). This rule prohibited the use of offshore 
pound net leaders from May 6 through July 15 in the waters defined as 
PNRA I (see Figure 1). It also retained the mesh size requirements and 
stringer prohibitions established by the 2002 interim final rule. These 
requirements and prohibitions were established for nearshore pound net 
leaders only in PNRA I and all pound net leaders in PNRA II from May 6 
through July 15. The rule also defined a pound net leader, offshore 
pound net leader, and nearshore pound net leader. Finally, it retained 
the monitoring and reporting requirements and framework mechanism 
established in 2002.
    In 2006, NMFS issued another final rule requiring the use of 
modified pound net leaders for offshore pound nets (71 FR 36024; June 
23, 2006). Specifically, any offshore pound net leader set in PNRA I 
from May 6 through July 15 each year must use a modified pound net 
leader. The final rule also defined a modified pound net leader. 
Finally, it retained the prior mesh size requirements and stringer 
prohibitions for nearshore pound nets in PNRA I and all leaders in PNRA 
II; monitoring and reporting provisions; and framework mechanism.
    Lastly, NMFS issued a final rule in 2008 establishing a land-based 
inspection program for modified pound net leaders (73 FR 68348; 
November 18, 2008). Following the 2006 final rule, NMFS recognized the 
need for an inspection program to determine if a modified pound net 
leader met the regulatory definition prior to deployment. Pre-
deployment inspections were intended to help ensure the protection of 
sea turtles, while limiting the difficulties of post-deployment 
inspections at-sea. Therefore, the inspection program requires 
fishermen to notify NMFS at least 72 hours before deploying modified 
pound net leaders fished in the Virginia Chesapeake Bay waters from May 
6 through July 15. NMFS then examines modified leaders for compliance 
with the definition of a modified pound net leader. This inspection 
also involves collecting information from fishermen on the depth and 
physical location of their gear and tagging the leader after it passes 
inspection to aid enforcement.

Proposed Regulatory Changes to ESA Sea Turtle Conservation Measures

    NMFS proposes to amend the ESA sea turtle conservation regulations 
for the Virginia pound net fishery for consistency with some of the 
proposed BDTRP amendments under the MMPA and to clarify the intent of 
the original regulations. ESA regulations for sea turtle conservation 
are found at 50 CFR parts 222 and 223. The main proposed changes to the 
ESA regulations are to ensure any Virginia pound net related terms are 
defined the same between both the ESA regulations and the MMPA 
regulations. The proposed education and enforcement program for 
facilitating compliance with the use of modified leaders is also 
proposed under the ESA regulations to replace the existing land-based 
inspection program. The times and areas currently requiring the use of 
modified pound net leaders for offshore pound nets and requirements for 
nearshore pound nets for sea turtle conservation will remained 
unchanged in Sec.  223.206(d)(10)(i) and (ii).
1. Proposed Amendments for Terms Related to Virginia Pound Nets
    NMFS proposes to revise, define, and add several pound net related 
terms under 50 CFR 222.102. The purpose of these changes and additions 
is to: (1) Clarify the definitions in the previous regulations 
promulgated under the ESA while providing consistency with the newly 
proposed MMPA measures governing the same fishery; and (2) add 
definitions to assist in effective implementation of the regulatory 
measures.
    Modified pound net leaders are currently defined at 50 CFR 222.102. 
NMFS proposes to remove the description for hard lay lines that is 
currently at the end of the modified pound net leader definition and 
define hard lay lines and modified pound net leaders separately. Hard 
lay lines are currently described within the modified pound net leader 
definition itself but are not formerly defined outside this 
description. Therefore, hard lay lines are proposed as a separate 
definition and removed from the end of the modified pound net leader 
definition. The hard lay line definition is also clarified so that 
fishermen can use line at least as stiff as what is defined. These 
proposed changes do not change the intent of the definition and what 
components make vertical lines hard lay. NMFS also proposes to add a 
phrase to the modified leader definition that the mesh portion of the 
modified leader be ``. . . held in place by a bottom chain, which is a 
line that forms the lowermost part of the pound net leader . . .'' This 
serves to clarify the configuration of the modified pound net leader 
and does not change the intent of

[[Page 21706]]

the regulations or the construction of the modified leaders as studied.
    NMFS also proposes to revise the definitions of nearshore and 
offshore pound net leaders currently defined at 50 CFR 222.102. As 
noted earlier, the BDTRT recommended revisions to the nearshore pound 
net leader definition. This recommendation was to address concerns with 
nearshore pound nets potentially extending into deeper, more offshore 
waters where modified pound net leaders should be used to reduce 
protected species interactions. Subsequent discussions and coordination 
with various NOAA offices and BDTRT members resulted in slightly 
revised definitions as proposed. Both nearshore and offshore pound net 
leaders are currently defined in the regulations and use distance from 
shore at mean low water as a defining factor. The proposed nearshore 
and offshore pound net leader definitions revise the current 
definitions by removing distance from shore and using water depth of 
the leader regardless of tide as the only defining factor. As 
mentioned, using water depth only is clearer and more consistent for 
fishermen and enforcement. Therefore, NMFS proposes to define an 
offshore pound net leader as a leader with any part of the leader in 
water depths of 14 feet (4.3 m) or greater at any tidal condition. A 
nearshore pound net leader will be defined as a leader with every part 
of its leader in water depths less than 14 feet (4.3 m) at any tidal 
condition. While initiated by the BDTRT for bottlenose dolphins, NMFS 
proposes to revise these definitions in the ESA regulations as they 
more effectively capture the original intent and purpose of defining 
nearshore and offshore pound net leaders for sea turtle conservation. 
They will also aid public interpretation of the regulations and ensure 
consistency between ESA and MMPA regulations affecting the Virginia 
pound net fishery. No existing leaders will change from an offshore to 
nearshore pound net or vice versa based on the proposed definition 
changes.
    Finally, NMFS proposes a new definition for pound nets at 50 CFR 
222.102. This term was not previously defined but is helpful to 
identify the type of gear to which these regulations apply. In addition 
to defining the gear, NMFS proposes to ensure that all sections of the 
gear are fished at the same time. As discussed previously, NEFOP data 
show that fishermen sometimes leave portions of their gear in the water 
(e.g., only the leader) so that it is not actively catching fish but 
still poses a risk of entanglement to protected species. Therefore, 
NMFS proposes that the leader, heart, and pound must be fished at the 
same time with the exception of a continuous 10-day period to deploy, 
remove, and/or repair their gear. The purpose of this requirement is to 
reduce gear in the water that is no longer fishing but still poses an 
entanglement risk.
2. Proposed Education and Enforcement of Virginia Pound Net Gear-Area 
Measures
    In 2008, NMFS established a land-based inspection program for 
modified pound net leaders to determine if a modified pound net leader 
met the regulatory definition prior to deployment. The purpose of this 
program was to ensure the protection of sea turtles, while limiting the 
difficulties of post-deployment inspections at-sea. The program shows 
effectiveness in evaluating the gear on land, but it is time intensive 
for both NMFS and fishermen and does not evaluate the gear as it is 
fished in the water. Further, there are other techniques available 
(e.g., scuba divers) that will provide more accurate measurements of 
some of the gear requirements.
    NMFS, therefore, proposes a combination of an education program for 
Virginia pound net fishermen and a collaborative on-water enforcement 
program for deployed gear to replace the current inspection program. 
Specifically, NMFS proposes to remove the current Virginia modified 
pound net leader inspection program at Sec.  223.206(d)(10)(vii). NMFS 
proposes to require education and compliance training for all fishermen 
deploying a modified pound net leader in Virginia state waters at any 
time from May 6 through July 15 of any year. Fishermen will be required 
to attend a one-time training prior to deploying modified pound net 
leaders. Fishermen will receive a certificate for attending the 
training that they must keep on their vessel during fishing operations. 
NMFS will retain its discretion to provide exceptions to this training 
in limited circumstances to add flexibility for any potential 
hardships. For the on-water enforcement, NMFS will coordinate with the 
VMRC to conduct on-water enforcement and monitoring of the modified 
leader through a Joint Enforcement Agreement. The purpose of this 
proposed education and enforcement program is to more efficiently and 
accurately determine compliance with the modified leader requirements 
and alleviate the burden from annual on-land inspections.

Technical Amendments

    NMFS proposes two technical amendments to the existing PNRA I and 
II definitions in 50 CFR 222.102. The first clarifies the northern and 
the southern boundaries of PNRA I to ease interpretation of the 
boundary lines and clarify the regulated area. The area regulated under 
PNRA I remains unchanged. The northern boundary of PNRA I is currently 
referred to in the definition as ``. . . 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 . . .''. The proposed 
definition replaces this with the following four points connected by a 
straight line: (1) Where 37[deg]19.0' N. lat. meets the shoreline of 
the Severn River fork, near Stump Point, Virginia (western portion of 
Mobjack Bay), which is approximately 76[deg]26.75' W. long.; (2) 
37[deg]19.0' N. lat., 76[deg]13.0' W. long.; (3) 37[deg]13.0' N. lat., 
76[deg]13.0' W. long.; and (4) where 37[deg]13.0' N. lat. meets the 
eastern shoreline of Chesapeake Bay, Virginia, near Elliotts Creek, 
which is approximately 76[deg]00.75' W. long. The southern boundary of 
PNRA I is currently referred to in the definition as ``. . . 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[deg]08' W. 
long.) at the mouth of the Chesapeake Bay . . .''. The proposed 
definition revises two of the coordinates from 37[deg]05' N. lat. to 
37[deg]07' N. lat. and 75[deg]59' W. long. to 75[deg]58' W. long., 
respectively.
    The second technical amendment clarifies the southeast boundary of 
PNRA II. The purpose of this amendment is to clarify the boundary line 
and regulated area at the mouth of the Chesapeake Bay north of 
Fisherman's Island and east to Smith Island. The southeast boundary of 
PNRA II is currently referred to in the definition as ``. . . to the 
COLREGS line at the mouth of the Chesapeake Bay''. The proposed 
definition replaces this with ``. . . to the COLREGS line at the mouth 
of the Chesapeake Bay and 37[deg]07' N. lat. between Kiptopeke and 
Smith Island, Northampton County, Virginia''.

Classification

    This proposed rule was determined to be not significant under 
Executive Order 12866.
    NMFS determined this action is consistent to the maximum extent 
practicable with the enforceable policies of the Virginia Coastal Zone 
Management Program. This determination was submitted for review by the 
responsible state agencies under

[[Page 21707]]

section 307 of the Coastal Zone Management Act.
    This action contains policies with federalism implications that 
were sufficient to warrant preparation of a federalism summary impact 
statement under Executive Order 13132 and a federalism consultation 
with officials in the state of Virginia. Accordingly, the Assistant 
Secretary for Legislative and Intergovernmental Affairs provided notice 
of the proposed action to the appropriate officials in Virginia.
    NMFS examined the proposed action for compliance with ESA Section 7 
requirements. This action was found to be in compliance with the legal 
requirements of Section 7 of the ESA. Furthermore, the only impacts 
associated with the measures contained in this proposed rule are likely 
to be beneficial to listed species because the proposed action requires 
the year-round use of beneficial gear modifications rather than the 
current seasonal use.
    This proposed rule does not contain collection-of-information 
requirements subject to the Paperwork Reduction Act. The sea turtle 
conservation regulations have a current Paperwork Reduction Act 
collection requirement in place (OMB control number 0648-0559) for the 
existing inspection program. This proposed rule would remove that 
collection of information requirement, reducing the overall burden.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if implemented, would not have 
a significant economic impact on a substantial number of small 
entities. The factual basis for this determination is as follows:
    The purpose of this proposed rule is to reduce serious injury and 
mortality of bottlenose dolphins from incidental takes in the Virginia 
pound net fishery by amending the BDTRP under the MMPA implementing 
regulations. The proposed rule also amends current regulations and 
definitions for Virginia pound nets under the ESA for sea turtle 
conservation for consistency. The MMPA and ESA provide the statutory 
base for the proposed rule.
    As discussed in the preamble, this proposed rule would result in 
duplicative and overlapping regulations for fishermen using pound nets 
in a portion of the proposed action area. This duplication and overlap 
would result from current restrictions promulgated under a separate 
regulatory authority. In essence, this proposed rule would expand the 
area and timeframe currently subject to restrictions on the use of 
pound nets in which the regulations would apply. Both the current 
regulations and the regulations proposed by this rule would be 
established under NOAA's own authority, and this proposed rule has been 
carefully developed to create consistency with the current regulations. 
As a result, no conflict would result from this duplication and overlap 
and the burden associated with compliance would not increase under 
duplicate promulgation because compliance under one authority would 
satisfy the requirements of both. No other duplicative, overlapping, or 
conflicting federal rules have been identified.
    This proposed rule would remove existing documentation and 
reporting provisions associated with the current annual gear inspection 
requirements. The proposed rule would replace these requirements with a 
proposed one-time education and compliance training requirement. This 
compliance training does not include any reporting or record-keeping 
requirements and, as a result, would reduce the overall burden 
associated with these tasks on the fishermen expected to be directly 
affected by this proposed rule. Otherwise, this proposed rule would 
simply expand the circumstances under which fishermen would have to use 
a specific type of leader when using pound nets in the proposed action 
area. All affected fishermen are expected to currently have experience 
using this type of leader and this experience is consistent with the 
professional skill necessary for the use of pound nets. As a result, no 
change in the professional skills necessary to meet this compliance 
requirement would be expected. This proposed action would not establish 
any new reporting, record-keeping, or other compliance requirements.
    This proposed action would be expected to directly affect fishermen 
who use pound nets in the proposed BDPNRA (i.e., the proposed action 
area described in the preamble). In 2010, Virginia sold 41 licenses to 
16 entities who fished with pound nets within the proposed BDPNRA. The 
average annual dockside revenue from all fishing activities for these 
entities in 2010 was approximately $126,557 (2010 dollars). More recent 
data are not available.
    The Small Business Administration (SBA) has established size 
criteria for all major industry sectors in the U.S. including fish 
harvesters. A business involved in fish harvesting is classified as a 
small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and 
combined annual receipts do not exceed $19.0 million (NAICS code 
114111, Finfish Fishing) for all its affiliated operations worldwide. 
This receipts threshold is the result of a final rule issued by the SBA 
on June 20, 2013, that increased the size standard for the Finfish 
Fishing sector from $4.0 to $19.0 million (78 FR 37398). The new 
threshold became effective July 22, 2013. Based on the estimated 
average annual revenue of entities using Virginia pound net gear in 
2010, all entities expected to be directly affected by this proposed 
rule are believed to be small business entities.
    As previously stated, in 2010, Virginia sold 41 licenses to 16 
entities who fished with pound nets within the proposed BDPNRA. 
Excluding oysters, clams, and shellfish licenses, over 3,000 commercial 
fishing licenses were sold to Virginia commercial fishermen in 2010. 
Therefore, this proposed rule would be expected to affect less than one 
percent of commercial fishermen in Virginia and, as a result, would not 
be expected to affect a significant number of small entities.
    The proposed changes to the pound net leader requirements would be 
expected to result in continued normal fishing practices, harvests, 
prices, and revenues. The proposed rule requires the year-round use of 
modified pound net leaders in the entire proposed BDPNRA. Although 
these regulations would be more restrictive than current requirements, 
no economic effects on fishermen are expected. In response to current 
requirements, fishermen are expected to already use modified leaders 
for the entire fishing season when fishing with pound net gear in these 
areas even if not required, for two main reasons: (1) Research on the 
catch efficiency of modified pound net leaders within the proposed 
BDPNRA showed no significant differences in harvest weight for the 
species analyzed when compared to using traditional leaders; and (2) 
the costs associated with maintaining two types of leaders and 
switching the gear when modified leaders are not required would not 
make rational economic sense given the absence of improvements in catch 
efficiency. Traditional leaders installed on offshore pound nets cost 
$5,418 to make and install/remove. Maintaining and using both types of 
leaders (i.e., traditional and modified) would require expenditure of 
this cost, in addition to the cost of making a modified leader, as well 
as labor costs of switching leaders. If harvest and revenue is not 
increased by switching to the traditional leader, as demonstrated by 
available research, then bearing these additional gear and labor costs 
would be unjustified. Thus, even though this proposed rule would

[[Page 21708]]

change the pound net leader requirements, all fishermen who would be 
potentially affected are expected to currently use modified leaders 
when using pound nets in the area and time specified by this proposed 
rule. Therefore, no economic impacts are expected to result from the 
proposed rule.
    Because this proposed rule, if implemented, would not be expected 
to have a significant direct adverse economic impact on a substantial 
number of small entities, an initial regulatory flexibility analysis is 
not required and one was not prepared.

References Cited

    Available upon request (see FOR FURTHER INFORMATION CONTACT).

List of Subjects

50 CFR Part 222

    Endangered and Threatened species, Exports, and Reporting and 
recordkeeping requirements.

50 CFR Part 223

    Endangered and Threatened species, Exports, and Transportation.

50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and record keeping 
requirements.

    Dated: April 9, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 222, 223, and 
229 are proposed to be amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
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.

0
2. In Sec.  222.102:
0
a. Add the definitions for ``Hard lay lines'', ``Nearshore pound net 
leader or nearshore pound net'', ``Offshore pound net leader or 
offshore pound net'', and ``Pound net''; and
0
b. Revise the definitions for ``Modified pound net leader,'' ``Pound 
net leader,'' ``Pound Net Regulated Area I,'' and ``Pound Net Regulated 
Area II'' in alphabetical order to read as follows:


Sec.  222.102  Definitions.

* * * * *
    Hard lay lines mean lines that are at least as stiff as 5/16 inch 
(0.8 cm) diameter line composed of polyester wrapped around a blend of 
poly-propylene and polyethylene and 42 visible twists of strands per 
foot of line.
* * * * *
    Modified pound net leader means 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 the mesh size is 
equal to or less than 8 inches (20.3 cm) stretched mesh; 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; the mesh is held in place by a bottom chain that 
forms the lowermost part of the pound net leader; the vertical lines 
(stringers) 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; 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 the vertical lines are hard lay lines.
    Nearshore pound net leader or nearshore pound net means a pound net 
with every part of the leader (from the most offshore pole at the pound 
end of the leader to the most inshore pole of the leader) in less than 
14 feet (4.3 m) of water at any tidal condition.
* * * * *
    Offshore pound net leader or offshore pound net means a pound net 
with any part of the leader (from the most offshore pole at the pound 
end of the leader to the most inshore pole of the leader) in water 
greater than or equal to 14 feet (4.3 m) at any tidal condition.
* * * * *
    Pound net means a fixed entrapment gear attached to posts or stakes 
with three continuous sections from offshore to inshore consisting of: 
(1) A pound made of mesh netting that entraps the fish; (2) at least 
one heart made of a mesh netting that is generally in the shape of a 
heart and aids in funneling fish into the pound; and (3) a leader, 
which is a long, straight element consisting of mesh or vertical lines 
that directs the fish offshore towards the pound.
    Pound net leader means a long straight net that directs 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, also known as vertical lines, are spaced a regular distance 
apart and are not crossed by other lines to form mesh.
    Pound Net Regulated Area I means Virginia waters of the mainstem 
Chesapeake Bay and the portion of the James River seaward of the 
Hampton Roads Bridge Tunnel (Interstate Highway-64) and the York River 
seaward of the Coleman Memorial Bridge (Route 17), bounded to the south 
and east by the Chesapeake Bay Bridge Tunnel (Route 13; extending from 
approximately 37[deg]07' N. lat., 75[deg]58' W. long. to 36[deg]55' N. 
lat., 76[deg]08' W. long.), and to the north by the following points 
connected by straight lines and in the order listed:

------------------------------------------------------------------------
            Point                           Area description
------------------------------------------------------------------------
1............................  Where 37[deg]19.0' N. lat. meets the
                                shoreline of the Severn River fork, near
                                Stump Point, Virginia (western portion
                                of Mobjack Bay), which is approximately
                                76[deg]26.75' W. long.
2............................  37[deg]19.0' N. lat., 76[deg]13.0' W.
                                long.
3............................  37[deg]13.0' N. lat., 76[deg]13.0' W.
                                long.
4............................  Where 37[deg]13.0' N. lat. meets the
                                eastern shoreline of Chesapeake Bay,
                                Virginia, near Elliotts Creek, which is
                                approximately 76[deg]00.75' W. long.
------------------------------------------------------------------------

    Pound Net Regulated Area II means Virginia waters of the Chesapeake 
Bay outside of Pound Net Regulated Area I, bounded by the Maryland-
Virginia State line to the north and by the COLREGS line at the mouth 
of the Chesapeake Bay and 37[deg]07' N. lat. between Kiptopeke and 
Smith Island, Northampton County, Virginia to the south and east. This 
area includes the Great Wicomico River seaward of the Jessie Dupont 
Memorial Highway Bridge (Route 200), the Rappahannock River downstream 
of the Robert Opie Norris Jr. Bridge (Route 3), the Piankatank River 
downstream of the Route 3 Bridge, and all other tributaries within 
these boundaries.
* * * * *

[[Page 21709]]

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
4. In Sec.  223.205, paragraphs (b)(17) through (b)(20) are revised to 
read as follows:


Sec.  223.205  Sea turtles.

* * * * *
    (b) * * *
    (17) Set, fish with, or fail to remove a modified pound net leader 
in Pound Net Regulated Area I or Pound Net Regulated Area II defined in 
50 CFR 222.102 and referenced in 50 CFR 223.206(d)(10) at any time from 
May 6 through July 15 unless the pound net licensee and the vessel 
operator meet the modified pound net leader compliance training 
requirements in accordance with 50 CFR 223.206(d)(10)(vii).
    (18) Alter or replace any portion of a modified pound net leader so 
that the altered or replaced portion no longer meets the modified pound 
net leader definition in 50 CFR 222.102, unless that alteration or 
replacement occurs outside the regulated period of May 6 through July 
15.
    (19) Set, fish with, or fail to remove a modified pound net leader 
at any time from May 6 through July 15 in Pound Net Regulated Area I or 
Pound Net Regulated Area II unless the fisherman has on board the 
vessel a valid modified pound net leader compliance training 
certificate issued by NMFS.
    (20) Set, fish with, or fail to remove pound net gear in Pound Net 
Regulated Area I or Pound Net Regulated Area II, unless it has the all 
three continuous sections as defined in 50 CFR 222.102, except that one 
or more sections may be missing for a maximum period of 10 days for 
purposes of setting, removing, and/or repairing pound nets.
* * * * *
0
5. In Sec.  223.206, paragraph (d)(10)(vii) is revised to read as 
follows:


Sec.  223.206  Exemptions to prohibitions relating to sea turtles.

* * * * *
    (d) * * *
    (10) * * *
    (vii) Modified pound net leader compliance training. Any pound net 
licensee and any vessel operator who have modified pound net leaders 
set in Pound Net Regulated Area I or Pound Net Regulated Area II at any 
time from May 6 through July 15 must have completed modified pound net 
leader compliance training and possess on board the vessel a valid 
modified pound net leader compliance training certificate issued by 
NMFS. NMFS retains discretion to provide exemptions in limited 
circumstances where appropriate. Notice will be given by NMFS 
announcing the times and locations of modified pound net leader 
compliance training.
* * * * *

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
6. The authority citation for part 229 continues to read as follows:

    Authority:  16. U.S.C. 1361 et seq; Sec.  229.32(f) also issued 
under 16 U.S.C. 1531 et seq.

0
7. In Sec.  229.2, the definitions ``Hard lay lines,'' ``Modified pound 
net leader,'' ``Nearshore pound net,'' ``Offshore pound net,'' and 
``Pound net'' are added in alphabetical order to read as follows:


Sec.  229.2  Definitions.

* * * * *
    Hard lay lines mean lines that are at least as stiff as \5/16\ inch 
(0.8 cm) diameter line composed of polyester wrapped around a blend of 
poly-propylene and polyethylene and 42 visible twists of strands per 
foot of line.
* * * * *
    Modified pound net leader means 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 the mesh size is 
equal to or less than 8 inches (20.3 cm) stretched mesh; 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; the mesh is held in place by a bottom chain that 
forms the lowermost part of the pound net leader; the vertical lines 
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; 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 the 
vertical lines are hard lay lines.
    Nearshore pound net means a pound net with every part of the leader 
(from the most offshore pole at the pound end of the leader to the most 
inshore pole of the leader) in less than 14 feet (4.3 m) of water at 
any tidal condition.
* * * * *
    Offshore pound net means a pound net with any part of the leader 
(from the most offshore pole at the pound end of the leader to the most 
inshore pole of the leader) in water greater than or equal to 14 feet 
(4.3 m) at any tidal condition.
* * * * *
    Pound net means a fixed entrapment gear attached to posts or stakes 
with three continuous sections from offshore to inshore consisting of: 
(1) A pound made of mesh netting that entraps the fish; (2) at least 
one heart made of a mesh netting that is generally in the shape of a 
heart and aids in funneling fish into the pound; and (3) a leader, 
which is a long, straight element consisting of mesh or vertical lines 
that directs the fish offshore towards the pound.
* * * * *
0
8. In Sec.  229.3 paragraph (s) and paragraph (v) are revised to read 
as follows:


Sec.  229.3  Prohibitions.

* * * * *
    (s) It is prohibited to set, fish with, or possess on board a 
vessel unless stowed, or fail to remove, any gillnet or pound net from 
the waters specified in Sec.  229.35(c) unless the gear complies with 
the specified restrictions set forth in Sec.  229.35(d).
* * * * *
    (v) It is prohibited to set, fish with, or fail to remove a 
modified pound net leader in the Bottlenose Dolphin Pound Net Regulated 
Area unless the fisherman has on board the vessel a valid modified 
pound net leader compliance training certificate issued by NMFS.
* * * * *
0
9. In Sec.  229.35:
0
a. Revise paragraphs (a), (c), and (d)(2)(ii) and;,
0
b. In paragraph (b) add the definition for ``Bottlenose Dolphin Pound 
Net Registered Area''.
    The revisions and additions read as follows:


Sec.  229.35  Bottlenose Dolphin Take Reduction Plan.

    (a) Purpose and scope. The purpose of this section is to implement 
the Bottlenose Dolphin Take Reduction Plan (BDTRP) to reduce incidental 
mortality and serious injury of strategic stocks of bottlenose dolphins 
within the Western North Atlantic coastal morphotype in specific 
Category I and II commercial fisheries from New Jersey through Florida. 
Specific Category I and

[[Page 21710]]

II commercial fisheries within the scope of the BDTRP are indentified 
and updated in the annual List of Fisheries. Gear restricted by this 
section includes small, medium, and large mesh gillnets and pound nets. 
The geographic scope of the BDTRP is all tidal and marine waters within 
6.5 nautical miles (12 km) of shore from the New York-New Jersey border 
southward to Cape Hatteras, North Carolina, and within 14.6 nautical 
miles (27 km) of shore from Cape Hatteras, southward to, and including 
the east coast of Florida down to the fishery management council 
demarcation line between the Atlantic Ocean and the Gulf of Mexico (as 
described in Sec.  600.105 of this title).
    (b) * * *
    Bottlenose Dolphin Pound Net Regulated Area means all Virginia 
marine waters of the Atlantic Ocean within 3 nautical miles (5.56 km) 
of shoreline and all adjacent tidal waters, bounded on the north by 
38[deg]01.6' N. (Maryland/Virginia border) and on the south by 
36[deg]33' N (Virginia/North Carolina border); and all southern 
Virginia waters of the mainstem Chesapeake Bay bounded on the south and 
west by the Hampton Roads Bridge Tunnel across the James River and the 
Coleman Memorial Bridge across the York River; and north and east by 
the following points connected by straight lines in the order listed:

------------------------------------------------------------------------
                 Point                           Area description
------------------------------------------------------------------------
1......................................  Where 37[deg]19.0' N. lat.
                                          meets the shoreline of the
                                          Severn River fork, near Stump
                                          Point, Virginia (western
                                          portion of Mobjack Bay), which
                                          is approximately 76[deg]26.75'
                                          W. long.
2......................................  37[deg]19.0' N. lat.,
                                          76[deg]13.0' W. long.
3......................................  37[deg]13.0' N. lat.,
                                          76[deg]13.0' W. long.
4......................................  Where 37[deg]13.0' N. lat.
                                          meets the eastern shoreline of
                                          Chesapeake Bay, Virginia, near
                                          Elliotts Creek, which is
                                          approximately 76[deg]00.75' W.
                                          long.
------------------------------------------------------------------------

* * * * *
    (c) BDTRP Regulated Waters--(i) Gillnets. The regulations 
pertaining to gillnets in this section apply to New Jersey, Delaware, 
and Maryland State waters; Northern North Carolina State waters; 
Northern Virginia State waters; South Carolina, Georgia, and Florida 
waters; Southern North Carolina State waters; and Southern Virginia 
State waters as defined in Sec.  229.35(b), except for the waters 
identified in Sec.  229.34(a)(2), with the following modification and 
addition. From Chincoteague to Ship Shoal Inlet in Virginia (37[deg]52' 
N. 75[deg]24.30' W. to 37[deg]11.90' N. 75[deg]48.30' W) and South 
Carolina, Georgia, and Florida waters, those waters landward of the 72 
COLREGS demarcation line (International Regulations for Preventing 
Collisions at Sea, 1972), as depicted or noted on nautical charts 
published by the National Oceanic and Atmospheric Administration (Coast 
Charts 1:80,000 scale), and as described in 33 CFR part 80 are excluded 
from the regulations.
    (ii) Pound nets. The regulations pertaining to pound nets in this 
section apply to the Bottlenose Dolphin Pound Net Regulated Area.
    (d) * * *
    (2) * * *
    (ii) Pound nets. (A) Year-round, any offshore pound net in the 
Bottlenose Dolphin Pound Net Regulated Area must use a modified pound 
net leader.
    (B) Year-round, any nearshore and offshore pound nets set in the 
Bottlenose Dolphin Pound Net Regulated Area must have all three 
continuous sections as defined in 50 CFR 229.2, except that one or more 
sections may be missing for a maximum period of 10 days for purposes of 
setting, removing, and/or repairing pound nets.
    (C) The pound net licensee and the vessel operator of any offshore 
pound net set in the Bottlenose Dolphin Pound Net Regulated Area must 
have completed modified pound net leader compliance training and 
possess on board the vessel a valid modified pound net leader 
compliance training certificate issued by NMFS. NMFS retains discretion 
to provide exemptions in limited circumstances where appropriate. 
Notice will be given by NMFS announcing the times and locations of 
modified pound net leader compliance training.
* * * * *
[FR Doc. 2014-08665 Filed 4-16-14; 8:45 am]
BILLING CODE 3510-22-P