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Federal Register / Vol. 71, No. 121 / Friday, June 23, 2006 / Rules and Regulations

(c) Incorporation by reference. The
Director of the Federal Register
approves, in accordance with 5 U.S.C.
552(a) and 1 CFR part 51, the
incorporation by reference of the
National Council for Prescription Drug
Programs SCRIPT Standard,
Implementation Guide, Version 5,
Release 0, May 12, 2004, excluding the
Prescription Fill Status Notification
Transaction (and its three business
cases; Prescription Fill Status
Notification Transaction—Filled,
Prescription Fill Status Notification
Transaction—Not Filled, and
Prescription Fill Status Notification
Transaction—Partial Fill), Prescriber/
Pharmacist Interface SCRIPT Standard,
Implementation Guide, Version 8,
Release 1, October 2005, excluding the
Prescription Fill Status Notification
Transaction (and its three business
cases; Prescription Fill Status
Notification Transaction—Filled,
Prescription Fill Status Notification
Transaction—Not Filled, and
Prescription Fill Status Notification
Transaction—Partial Fill); the
Accredited Standards Committee X12N
270/271—Health Care Eligibility Benefit
Inquiry and Response, Version 4010,
May 2000, 004010X092 and Addenda to
Health Care Eligibility Benefit Inquiry
and Response, Version 4010, October
2002, Washington Publishing Company,
004010X092A1, and the National
Council for Prescription Drug Programs
Telecommunication Standard
Specification, Version 5, Release 1
(Version 5.1), September 1999, and
equivalent NCPDP Batch Standard
Batch Implementation Guide, Version 1,
Release 1 (Version 1.1), January 2000
supporting Telecommunications
Standard Implementation Guide,
Version 5, Release 1 (Version 5.1),
September 1999, for the NCPDP Data
Record in the Detail Data Record. You
may inspect copies of these materials at
the headquarters of the Centers for
Medicare & Medicaid Services (CMS),
7500 Security Boulevard, Baltimore,
Maryland 21244, Monday through
Friday from 8:30 a.m. to 4 p.m. or at the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at CMS, call 410–786–0273. For
information on the availability of this
material at NARA, call 202–741–6030,
or go to http://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html. You may obtain a
copy of the National Council for
Prescription Drug Programs SCRIPT
Standard, Version 5, Release 0, May 12,
2004 or the Prescriber/Pharmacist

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Interface SCRIPT Standard,
Implementation Guide, Version 8,
Release 1, October 2005, from the
National Council for Prescription Drug
Programs, Incorporated, 9240 E.
Raintree Drive, Scottsdale, AZ 85260–
7518; Telephone (480) 477–1000; and
fax (480) 767–1042 or http://
www.ncpdp.org. You may obtain a copy
of the Accredited Standards Committee
X12N 270/271—Health Care Eligibility
Benefit Inquiry and Response, Version
4010, May 2000, Washington Publishing
Company, 004010X092 and Addenda to
Health Care Eligibility Benefit Inquiry
and Response, Version 4010,
004010X092A1, October 2002, from the
Washington Publishing Company,301
West North Bend Way, Suite 107, P.O.
Box 15388, North Bend, WA 98045;
Telephone (425) 831–4999; and fax
(425) 831–3233 or http://www.wpcedi.com/. You may obtain a copy of the
National Council for Prescription Drug
Programs Telecommunication Standard
Guide, Version 5, Release 1 (Version
5.1), September 1999, and equivalent
NCPDP Batch Standard Batch
Implementation Guide, Version 1,
Release 1 (Version 1.1), January 2000
supporting Telecommunications
Standard Implementation Guide,
Version 5, Release 1 (Version 5.1),
September 1999, for the NCPDP Data
Record in the Detail Data Record, from
the National Council for Prescription
Drug Programs, Incorporated, 9240 E.
Raintree Drive, Scottsdale, AZ 85260–
7518; Telephone (480) 477–1000; and
FAX (480) 767–1042 or http://
www.ncpdp.org.
Authority: Section 1860D–4(e) of the
Social Security Act (42 U.S.C. 1395w–104(e))
(Catalog of Federal Domestic Assistance
Program No. 93.773 Medicare—Hospital
Insurance Program; and No. 93.774,
Medicare—Supplementary Medical
Insurance Program)
Dated: March 30, 2006.
Mark B. McClellan,
Administrator, Centers for Medicare &
Medicaid Services.
Approved: May 22, 2006.
Michael O. Leavitt,
Secretary.
[FR Doc. E6–9521 Filed 6–22–06; 8:45 am]
BILLING CODE 4120–01–P

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 222 and 223
[Docket No. 060405097–6161–02; I.D.
033006E]
RIN 0648–AU10

Sea Turtle Conservation; Modification
to Fishing Activities
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:

SUMMARY: NMFS is requiring that any
offshore pound net leader in the
Virginia waters of the mainstem
Chesapeake Bay, south of 37°19.0′ N.
lat. and west of 76°13.0′ W. long., and
all waters south of 37°13.0′ N. lat. to the
Chesapeake Bay Bridge Tunnel at the
mouth of the Chesapeake Bay, and the
James and York Rivers downstream of
the first bridge in each tributary, during
the period of May 6 through July 15,
meet the definition of a modified pound
net leader. Without this final rule,
existing regulations would continue to
prohibit all offshore pound net leaders
in that area during that time frame. 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. While restrictions
promulgated in 2004 on pound net
leaders in the Virginia waters of the
Chesapeake Bay outside the
aforementioned area remain in effect,
this final rule creates an exception to
those restrictions by allowing the use of
modified pound net leaders in this area.
This action, taken under the Endangered
Species Act of 1973 (ESA), responds to
new information generated by gear
research. It is intended to conserve sea
turtles listed as threatened under the
ESA and to help enforce the provisions
of the ESA, including the provisions
against takes of endangered species,
while enabling fishermen to use leaders,
an important component of pound net
gear, during the regulated period.
DATES: Effective June 23, 2006.
FOR FURTHER INFORMATION CONTACT:
Pasquale Scida (ph. 978–281–9208, fax
978–281–9394), or Therese Conant (ph.
301–713–2322, fax 301–427–2522).
SUPPLEMENTARY INFORMATION:

Background
NMFS issued a final rule on May 5,
2004 (69 FR 24997), which prohibited
the use of offshore pound net leaders in

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Federal Register / Vol. 71, No. 121 / Friday, June 23, 2006 / Rules and Regulations
a portion of the Virginia Chesapeake
Bay, which is renamed in this final rule
‘‘Pound Net Regulated Area I’’, from
May 6 through July 15 each year. 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 2004 rule also
prohibited the use of 12 inches (30.5
cm) and greater stretched mesh and
stringers in nearshore pound net leaders
in Pound Net Regulated Area I and all
pound net leaders employed in the
remainder of the Virginia Chesapeake
Bay, which is renamed in this final rule
‘‘Pound Net Regulated Area II’’, from
May 6 through July 15. The 2004 rule
contained other provisions that are not
relevant to this action. For complete
details and justification for the 2004
rule, see 69 FR 24997.
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) and positioned
at a depth that was no more than onethird the depth of the water. 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 more stiff. 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.
During the 2-year study, the modified
leader was found 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
pound net leaders, seven were in an
unmodified leader. One leatherback
turtle was found entangled in the
vertical lines of 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. In 2005, 15 turtles
entangled in or impinged on the leaders
of unmodified leaders, and no turtles
were found entangled in or impinged on
modified leaders. Furthermore, results

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of the finfish catch comparison suggest
that the modified leader caught similar
quantities and size compositions as the
unmodified leader. Although, in 2005
the portion of the experiment with both
modified and unmodified leaders was of
shorter duration than the portion of the
experiment with modified leaders,
NMFS believes that the results provide
sufficient new information and
justification to require the use of the
modified leader in certain areas.
Specifically, the experiment supports
requiring modified leaders in a part of
the Virginia Chesapeake Bay where
pound net leaders pose a greater risk to
sea turtles while allowing their use in
an area of the Virginia Chesapeake Bay
where pound net leaders seem to pose
less risk.
This action provides for the
conservation of threatened sea turtles
and helps enforce the provisions of the
ESA, including the prohibition on takes
of endangered species, by reducing
incidental take in the Virginia pound
net fishery during the spring, while
enabling fishermen to use leaders
during the regulated period. Additional
details concerning sea turtle and pound
net interactions, the potential impact of
pound net leaders on sea turtles, the
modified pound net leader experiment,
and justification for pound net leader
regulations may be found in the
preamble to the 2004 proposed rule (69
FR 5810, February 6, 2004) and the 2006
proposed rule (71 FR 19675, April 17,
2006).
Approved Measures
NMFS changes the titles of the
regulated areas defined in the 2004 rule,
while retaining the previously
established boundaries.
Pound Net Regulated Area I means
Virginia waters of the mainstem
Chesapeake Bay, south of 37°19.0′ N.
lat. and west of 76°13.0′ W. long., and
all waters south of 37°13.0′ N. lat. to the
Chesapeake Bay Bridge Tunnel
(extending from approximately 37°05′
N. lat., 75°59′ W. long. to 36°55′ N. lat.,
76°08′ W. long.) at the mouth of the
Chesapeake Bay, and the portion of the
James River downstream of the
Hampton Roads Bridge Tunnel (I–64;
approximately 36°59.55′ N. lat.,
76°18.64′ W. long.) and the York River
downstream of the Coleman Memorial
Bridge (Route 17; approximately
37°14.55′ N. lat, 76°30.40′ W. long.).
Pound Net Regulated Area II means
Virginia waters of the Chesapeake Bay
outside of Regulated Area I defined
above, extending to the MarylandVirginia State line (approximately
37°55′ N. lat., 75°55′ W. long.), the Great
Wicomico River downstream of the

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Jessie Dupont Memorial Highway Bridge
(Route 200; approximately 37°50.84′ N.
lat, 76°22.09′ W. long.), the
Rappahannock River downstream of the
Robert Opie Norris Jr. Bridge (Route 3;
approximately 37°37.44′ N. lat,
76°25.40′ W. long.), and the Piankatank
River downstream of the Route 3 Bridge
(approximately 37°30.62′ N. lat,
76°25.19′ W. long.) to the COLREGS line
at the mouth of the Chesapeake Bay.
NMFS requires that from 12:01 a.m.
local time on May 6 through 11:59 p.m.
local time on July 15 each year, any
offshore pound net leader set in Pound
Net Regulated Area I meets the
definition of a modified pound net
leader. Offshore pound nets are defined
as those nets set with the inland end of
the leader greater than 10 horizontal feet
(3 m) from the mean low water line. A
modified pound net leader is 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.
Due to the variations in
manufacturing hard lay line in the
cordage industry, NMFS cannot provide
a specific definition of hard lay line at
this time. Hard lay is a technical term
used by the cordage industry to describe
line that is purposefully made to be stiff.
Hard lay line is made stiff by twisting
the line material. Similar materials may
be used in soft lay line, but the tightness
of the twists provides the rigidity. These
twists are added during three processes
in the construction of the line. They are
added to the fibers, which are twisted
into yarns; to the yarns, which are
twisted into strands; and to strands,
which are twisted into line. NMFS
acknowledges that there may be some
variation in what is characterized as

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hard lay lines, depending on how the
manufacturer makes the line, but the
characteristics of hard lay line in the
water should be similar. The lines used
in the 2005 experiment met the
characteristics of hard lay lines. The
vertical hard lay lines used in the
experiment were made of polyester
wrapped around Polysteel, which is a
blend of polypropylene and
polyethylene, and were coated with
copper paint to prevent fouling, which
also added a small amount of stiffness
to the lines. The diameter of the lines
was 5⁄16 inch (0.8 cm) and contained
approximately 42 twists of the strands
per foot of line. As explained above,
twists can be added to fibers, yarns, and
strands during the manufacturing
process, so a different number of twists
at different stages in the process may
achieve an equivalent stiffness to the 42
twists of the strands per foot of line
used in the 2005 experiment. The
vertical lines used in the 2005
experiment were not easily bent and
remained stiff in the water regardless of
the submergence duration. It is
important that the hard lay lines used in
the modified leaders perform the same
way as those used in the 2005
experiment, in order to reduce the risk
of sea turtle entanglement in pound net
leaders. Fishermen are afforded the
flexibility to use other types of hard lay
line as long as it performs the same way
as the line in the 2005 experiment and
is inflexible and remains stiff regardless
of soak time.
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 for the
period from 12:01 a.m. local time on
May 6 through 11:59 p.m. on July 15
each year. However, this rule creates 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 also remain in
effect.
Comments and Responses
On April 17, 2006, NMFS published
a proposed rule (71 FR 19675) that
would require that all offshore pound
net leaders set in Pound Net Regulated
Area I use a modified pound net leader.
Comments on this proposed action were
requested through May 2, 2006. Eight
comment letters from seven different
individuals or organizations were

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received during the public comment
period for the proposed rule. Six
comment letters supported the action,
while no letters opposed the modified
leader requirement. Two comment
letters were neither in favor nor against
the proposed action. A public hearing
was also held in Virginia Beach,
Virginia on April 26, 2006, at which five
individuals provided oral comments.
None of the oral comments were in
opposition to the proposed action.
NMFS considered these comments on
the proposed rule as part of its decision
making process. A complete summary of
the comments and NMFS’ responses,
grouped according to general subject
matter in no particular order, is
provided here.
General Comments
Comment 1: One commenter stated
that NMFS does not recognize the
impact of strong tidal currents on the
risk of sea turtle impingements in
pound net leaders set Pound Net
Regulated Area I and in nearshore
pound net leaders. The commenter
recommended that the importance of
water current be addressed by refining
the definition of ‘‘nearshore’’ and
‘‘offshore’’ pound nets to ‘‘shoal water’’
and ‘‘deep water’’ pound nets,
respectively. The commenter suggested
that the effect of water depth on current
strength is what drives the risk of sea
turtle impingements, not just distance
from shore, and recommended that the
following text be added to the definition
of a nearshore pound net: ‘‘or the pound
net trap head be located in a low water
depth of 18 feet or less.’’
Response: NMFS has monitored
pound nets since 2002 and observed sea
turtles impinged on nets with varying
current strengths. NMFS has found that
there are differences between nearshore
and offshore nets with respect to the
risk to turtles based upon the location
of observed impingements and
entanglements. However, NMFS
recognizes distance from shore is not
the only factor that is associated with
the risk of sea turtle impingements. In
the environmental assessment (EA)
prepared for this action, NMFS
acknowledges that pound net location is
used as a proxy for environmental
factors, including current, water depth,
temperature, tides, and sea turtle
migration patterns, that may also
influence the risk of sea turtle
interactions with pound net leaders.
Generally, areas close to shore are often
shallower and have less current than
those areas farther from shore, but
exceptions may occur because
environmental conditions vary locally.
Recognizing that geographic location,

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which may be a proxy for other
environmental factors, plays an
important role in the risk of sea turtle
entanglement in and impingement on
pound net leaders, NMFS does not
believe that sufficient evidence is
available at this time to redefine
nearshore and offshore nets based upon
only depth characteristics as a proxy for
current strength, generally, or upon a
pound net trap head depth of 18 feet,
specifically. Distance from the mean
low water line was used as a common
characteristic of those nets considered
nearshore, and, therefore, less of a threat
of sea turtle entanglement and
impingement. The geographic area of
the required leader modification in
offshore nets in Pound Net Regulated
Area I is designed not only to
encompass the total area with the most
documented takes of sea turtles to
prevent turtle entanglements and
impingements in pound net leaders, but
also to reflect the area in which
entanglements and impingements are
expected to occur even if a sea turtle
interaction has not been observed at
particular pound net sites.
Comment 2: One commenter
reminded NMFS that the framework
provision in the regulations remains
intact and that he has challenged this
provision in court.
Response: NMFS is aware that the
commenter is currently challenging the
July 2003 application of the framework
provision that was part of the 2002 final
rule. The existing framework provision,
which was established by the 2004
pound net rule, has not been
challenged. This rule does not affect the
existing framework provision. NMFS
has responded to the commenter’s
argument in the context of the litigation
and awaits the court’s decision.
Comment 3: One commenter noted
that the cause and effect of sea turtle
impingements on pound net leaders
remain largely unknown, and that sea
turtle impingements may occur in other
fishing gear.
Response: Impingement on a pound
net leader refers to a sea turtle being
held against the leader by the current,
apparently unable to release itself under
its own ability. It is possible that a sea
turtle in a weakened state may become
impinged on a leader by a slower
current than that which may impinge a
strong, healthy sea turtle. While NMFS
does not have data that identifies how
strong a current must be to impinge a
turtle of a given condition, NMFS does
know that currents lead to
impingements of sea turtles against
pound net leaders. For instance, since
2002, 18 sea turtles (including 2 dead)
have been found impinged on pound

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net leaders with varying current
strength.
NMFS believes an impingement may
compromise a sea turtle and result in
mortality. Based on the observations of
impinged sea turtles on pound net
leaders during NMFS monitoring efforts
and the modified leader experiment, if
an animal was impinged on a leader by
the current with its flippers inactive,
NMFS believes that without any human
intervention the turtle could either
swim away alive when slack tide
occurred, become entangled in the
leader mesh when trying to free itself,
or drift away dead if it drowned prior
to slack tide. In 2002 and 2003, six
observed live impingements occurred
near the surface, but seven turtles were
found underwater, unable to reach the
surface to breathe. Based on information
on forcibly submerged sea turtles, it is
likely that if a turtle could not breathe
from the position where it was
impinged on the net, it would have a
low likelihood of survival if it remained
on the net for longer than approximately
one hour, even if it were a healthy turtle
before becoming impinged (Henwood
and Stuntz, 1987; Lutcavage and Lutz,
1997).
If fishing gear of any kind is fixed in
the water column and a sea turtle comes
in contact with the gear, has one or both
of its flippers pinned against the net,
and is unable to swim parallel to or off
the gear, it is possible that a sea turtle
may become impinged on the fishing
gear. Impingement may occur on other
types of fishing gear besides pound net
leaders. However, NMFS has no data,
observations, or anecdotal reports in
other fisheries to suggest this occurs.
Even if NMFS had information
indicating that sea turtles become
impinged on other types of gears, NMFS
has the authority to regulate pound net
gear as one source of impingement.
Comments in Support of Alternatives
Other Than the Proposed Alternative
Comment 4: Two commenters
supported Non-Preferred Alternative 2
(NPA 2; e.g., required use of the
modified leaders in both Pound Net
Regulated Areas I and II) because if a
pound net leader is located in an area
where the risk of take exists, it seems
reasonable to conclude that the
modified leader design would reduce
the takes, regardless of the location of
the pound net leader (that is, relative to
Pound Net Regulated Areas I and II).
One commenter suggested that pound
net catch and turtle interactions should
be monitored to determine the level of
take by unmodified leaders in Pound
Net Regulated Area II. One commenter
noted that the lack of observed takes

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and strandings in parts of Pound Net
Regulated Area II may be a function of
lack of observer effort, not actual lack of
sea turtle mortality, and that stranding
surveys should be implemented in this
area.
Response: In the proposed rule,
NMFS put forward for consideration the
use of modified leaders in offshore nets
in Pound Net Regulated Area I because
that was where the gear was tested,
where the most observed instances of
sea turtle entanglements and
impingements occurred, and where
NMFS believes the risk of entanglement
and impingement of sea turtles is greater
based on observer data and on using
geographic location as a proxy for the
environmental conditions that
contribute to entanglements and
impingements. The modified leader was
designed to provide a benefit to sea
turtles over traditional pound net
leaders. NMFS agrees that the modified
leader should provide a benefit to sea
turtles outside the tested area because
the modified leader design reduces the
amount of mesh in the water column,
the vertical lines are spaced to allow sea
turtles to pass through more easily, and
the vertical lines are stiff to reduce the
risk of entanglement. In this final rule,
NMFS has included a change from the
proposed rule, in that modified leaders
are allowed to be fished in nearshore
pound net leaders in Pound Net
Regulated Area I and in both nearshore
and offshore leaders in Pound Net
Regulated Area II. NMFS is not
requiring the use of modified leaders in
those areas, as sea turtle impingements
on and entanglements in pound net
leaders have been observed to be
minimal and mesh size and stringer
restrictions remain in place. See section
Changes From Proposed Rule for more
information on allowing the use of
modified leaders in nearshore leaders
and in leaders in Pound Net Regulated
Area II.
Since 2002, NMFS has observed
pound net leaders in Pound Net
Regulated Area II and maintained a
dedicated survey effort in this area
during 2004 and 2005. In Pound Net
Regulated Area II, one sea turtle
interaction was observed in an offshore
pound net leader in 2004 (offshore
Lynnhaven, Virginia). NMFS
acknowledges that after several sea
turtle takes were observed in a
particular area (e.g., the southern
portion of the Eastern shore and
Western Bay), more observer effort was
concentrated in that area. NMFS does
not have any additional plans to
monitor the pound net catch and
potential sea turtle interactions in
Pound Net Regulated Area II at this

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time. Furthermore, the Sea Turtle
Stranding and Salvage Network
(STSSN) does collect data from Pound
Net Regulated Area II, and documented
sea turtle strandings in this area are
historically lower than in the southern
Chesapeake Bay. NMFS has funded
dedicated sea turtle stranding surveys
along the southern tip of the Eastern
shore in previous years, in response to
the historical high levels of documented
sea turtle strandings. It is true that more
observer effort and sea turtle stranding
coverage has been allocated to the
Eastern shore in recent years, but NMFS
has adequately monitored other pound
nets in other areas of the Chesapeake
Bay, and the STSSN continues to
operate and respond to strandings in all
areas of the Chesapeake Bay.
Comment 5: One commenter
supported NPA 3 (i.e., required use of
the modified leader for all offshore
pound net leaders in Pound Net
Regulated Areas I and II) based on the
historically high levels of sea turtle take
attributed to the pound net fishery.
Because the proposed action would reopen an area to the use of a modified
pound net leader that currently is closed
to fishing with pound net leaders, the
increase in fishing effort should be
offset by additional protection in other
geographic areas of the fishery to protect
sea turtles.
Response: Despite previous
monitoring efforts, only one turtle has
been observed entangled in a pound net
leader in Pound Net Regulated Area II.
NMFS has sufficient evidence to
conclude that there is a localized
interaction between sea turtles and
pound nets along the Eastern shore of
Virginia and in the Western Chesapeake
Bay. The boundaries of the regulated
areas were determined based on a
combination of the locations of observed
sea turtle entanglements in or
impingements on pound net leaders and
the area in which sea turtles may face
a greater risk of entanglement in or
impingement on pound net leaders due
to environmental conditions (e.g.,
current). Given the low number of
observations of sea turtles in pound net
gear outside Pound Net Regulated Area
I and in nearshore nets, NMFS is not
requiring the use of the modified pound
net leaders in Pound Net Regulated Area
II, but instead will allow its use should
fishermen choose to switch their gear.
The pound net leader mesh size and
stringer restrictions promulgated in the
2004 rule remain in effect for Pound Net
Regulated Area II.
Given the results of the modified
leader experiment, NMFS believes that
requiring the use of the modified leader
design in the offshore areas of Pound

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Net Regulated Area I will afford
approximately the same protection to
sea turtles as the existing regulations. It
is possible that sea turtles may interact
with the lower leader mesh because sea
turtles in the lower Chesapeake Bay
commonly make dives of over 40
minutes during the day (Byles, 1988;
Mansfield and Musick, 2003b, 2004)
and dive depths range from
approximately 13.1 ft (4 m) to 41 ft (12.5
m) (Mansfield and Musick, 2003).
However, all interactions during the
2004 and 2005 modified leader
experiment were recorded in the top
portion of unmodified leaders (at depths
within the top two-thirds of the depth
of mean lower low water). One turtle
was found entangled in the vertical
lines of a modified leader during the
2004 experiment; no interactions were
observed in the 2005 modified leader
during the experiment. As described
below, NMFS continues to believe that
sea turtle interactions with the bottom
mesh are possible, but, as shown by the
experiment, are infrequent and are
minimized by the leader design. As
such, despite the increase in fishing
effort, allowing the modified pound net
leaders in an area previously closed to
leaders is expected to provide a level of
protection to sea turtles similar to that
of the current closure and restrictions.
Comments Regarding the Modified
Pound Net Leader Design
Comment 6: One commenter that
participated in the modified pound net
leader experiment in 2004 and 2005
stated that he would not switch back
and forth between traditional and
modified leaders, as he found the
modified leader just as effective as the
traditional leader at maintaining an
acceptable level of fish catch.
Response: NMFS does not object if
pound net fishermen choose to fish with
the modified pound net leader outside
of the regulated time period. There are
currently no Federal pound net
restrictions in place outside of the time
period of May 6 through July 15 that
would prevent the modified pound net
leader from being used from July 16
through May 5. NMFS recognizes that
this may alleviate some costs associated
with switching from an unmodified
pound net leader to a modified pound
net leader to comply with the
regulations included in this final rule.
Comment 7: One commenter noted
that it is not possible for the modified
pound net leader to be one-third the
depth of the water at mean lower low
water directly above that particular
point because the sea floor is contoured,
and therefore creating a tapered leader
would not be possible. Furthermore, a

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map displaying the contour of the sea
floor is not available. The commenter
also stated that if the bottom line of the
leader must traverse over an uneven sea
bed, then the bottom line, to meet the
proposed requirements of a modified
leader, must be longer than the top line.
This would mean that the ties on the
bottom line would have to be farther
apart than the top line for the net to be
suspended perpendicular to the
seafloor. This commenter recommended
that the specification of the modified
pound net leader be exactly the same as
the modified pound net leader
specifications used in the 2005
experiment, as the modified leader was
effective at preventing entanglement
and impingement.
Response: The modified pound net
leader was designed cooperatively with
pound net fishermen, NMFS, the
Virginia Institute of Marine Science, the
Virginia Marine Resources Commission,
and the Virginia Aquarium and Marine
Science Center staff. It is NMFS’ intent
that the properties of the modified
pound net leader in the final regulations
be the same as the specifications of the
leader that were tested during the
experiment. The fishermen that
participated in the experiment reported
that the modified pound net leaders
were tapered (wedge-shaped) such that
the depth of the mesh at any point along
the leader was never more than onethird the depth of mean low water
directly above that particular point.
Note that this final rule does not require
that the mesh be exactly one-third the
depth of the water, but rather that the
mesh be no more than one-third the
depth of the water. In order to achieve
this, fishermen may decrease the depth
of the mesh as the water becomes
shallower by either lacing it into the
middle line or cutting it. A contour map
of the seafloor is not necessary to
achieve this specification. A fisherman
may determine the depth of the water
along their pound net leader using a
marked, weighted line as a measuring
tool. Alternatively, a simple fish finder
or inexpensive acoustic depth recorder
both report bottom depth. The bottom
line of the leader may traverse over an
uneven sea bed and could, therefore, be
longer than the top line. The length of
the bottom line would not be affected by
the type of leader (modified versus
unmodified) being fished.
Comment 8: One commenter, while
acknowledging the effectiveness of the
modified pound net leader
demonstrated through the experiment,
noted that it is possible that small
turtles that feed on the benthos, such as
Kemp’s ridleys and loggerheads, may
become entangled in or impinged on the

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mesh of the modified pound net leader
in the lower third of the water column
in areas where the lower third of the
leader is of substantial size.
Response: NMFS agrees that there is
some small, unquantifiable risk of
entanglement or impingement of sea
turtles in the lower third of the modified
leader, and this risk is discussed in the
EA prepared for this action. The design
of the modified leader, including the
vertical lines spaced 2 feet (0.61 m)
apart, was proposed to allow sea turtles
to pass through the upper two-thirds of
the leader, through the vertical lines,
without entangling in or impinging on
the leader. NMFS is aware that some
turtles are known to forage on the
benthos and around pound nets, and
therefore may interact with the lower
leader mesh. Further, turtles have been
observed to dive to the bottom
regardless of water temperature, and
loggerheads in the Chesapeake Bay have
been observed to spend up to 90 percent
of time beneath the surface of the water
(Mansfield et al., 2005). Despite this
information indicating that turtles could
interact with the mesh in the lower
third of the modified pound net leader,
all interactions during the 2004 and
2005 experiment were recorded in the
top portion of the unmodified leaders
(at depths within the top two-thirds of
the depth of mean lower low water). At
this time, data are not available to
determine if turtles are likely to become
impinged or entangled upon their first
contact with the pound net leader or if,
once a non-entangling interaction
occurs, they attempt to move away (in
any direction) from the interaction site
and eventually become impinged or
entangled after several interactions. If
the second scenario occurs, it is possible
that a turtle could interact with the
bottom mesh of a modified leader in the
lower water column without becoming
entangled and then move up the leader
and through the vertical lines.
NMFS recognizes that it is possible
that interactions could have occurred in
the bottom one-third of leaders and
were not observed during monitoring. In
2001 and 2002, side scan sonar was
used to attempt to detect sub-surface sea
turtle entanglements, but no verified sea
turtle acoustical signatures were
observed during these surveys
(Mansfield et al., 2002a; Mansfield et
al., 2002b). A number of factors are
thought to influence the use of side scan
sonar, including weather, sea
conditions, water turbidity, the size and
condition of the animal, and the
orientation of the turtle in the net.
During the 2004 and 2005 experiment,
side scan sonar was again used to detect
subsurface sea turtle interactions along

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the Eastern shore. The nets were
monitored twice each day, both visually
(up to the top ten feet of the net) and
with sonar, using a diver to visually
inspect each suspected sonar contact
(DeAlteris et al., 2004). In 2004, two sea
turtles were identified through sonar
monitoring, and five were found via
visual inspection (the visually identified
sea turtles had not yet been scanned via
sonar). In 2005, sonar monitoring
identified four sea turtle interactions
independent of leader removal. Because
sonar was shown to be a successful
method of sea turtle detection during
the experiment, NMFS believes it is
unlikely that unobserved interactions
occurred in the dropped mesh portion
of the modified leaders. However, it is
possible that an interaction that did not
result in a turtle being impinged or
entangled occurred as described above
(i.e., the turtle interacted with bottom
mesh and then moved up the leader and
through the vertical lines). If this
occurred, the relatively short duration of
the interaction would have decreased
the probability of the interaction being
detected by sonar monitoring.
Comment 9: One commenter noted
that the vertical lines used in the
modified leader are not without
problems as demonstrated by the
drowning of one leatherback turtle
during the experiment.
Response: In 2004, a dead leatherback
sea turtle was found entangled in the
vertical line of the experimental leader.
The necropsy report indicated that the
turtle appeared to be in good health and
that the cause of death was
entanglement in the pound net leader
and drowning. Subsequent histological
analysis revealed that the leatherback
suffered from ependymoma (brain
tumor with possible neurological
dysfunction), pneumonia, and hepatitis
(Swingle et al., 2005). As a result of the
leatherback’s entanglement, a different
type of line was used for the vertical
lines in the modified leader in 2005. In
2004, the vertical line did not have a
hard lay and was not painted. In 2005,
hard lay line was used, and no sea turtle
interactions were documented in the
modified leaders. The line used in 2004
was flexible enough to wrap around part
of the turtle. Therefore, in 2005, the
participants in the experiment used
stiffer line so that the line was less
likely to wrap around a sea turtle’s head
or flipper. NMFS believes that the
requirement to use hard lay line will
prevent sea turtle entanglements in the
modified pound net leaders’ vertical
lines.

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Comments on the Definition of Hard Lay
Line
Comment 10: One commenter noted
that Virginia watermen know what
‘‘hard lay’’ line means, implying that
additional specifications in the
regulation regarding the type of vertical
lines that must be used are unnecessary.
Response: Hard lay is a technical term
used by the cordage industry to describe
line that is purposefully made to be stiff.
As described previously in this final
rule, hard lay refers to the tightness of
the fibers that are twisted together.
Similar materials may be used in soft
lay line, but the tightness of the twists
provides the rigidity. While industry
participants may be familiar with the
term hard lay, it is important to ensure
the modified leader lines retain the
same properties as those used in the
experiment in order to protect sea
turtles from entanglement. In a previous
section, a description of the hard lay
line used in the experiment is provided.
Comment 11: One commenter stated
that lines made from nylon become soft
over time, while lines constructed out of
plastics will remain rigid over time.
Furthermore, every time the line is
painted it becomes stiffer.
Response: NMFS appreciates this
comment in order to better understand
line characteristics.
Comments Related to Stranding Levels
Comment 12: One commenter stated
that the proposed pound net restrictions
will not solve the high spring sea turtle
stranding problem in Virginia waters.
Several commenters indicated that
NMFS should provide adequate
observer coverage to ascertain other
sources of sea turtle mortality
(particularly recreational and
commercial boating activities and
fishing activities).
Response: NMFS agrees with the
commenter that pound net restrictions
will not solve the high spring sea turtle
problem in Virginia waters, given that
pound net leaders are not the sole
source of spring mortalities. NMFS does
believe that pound nets play a role in
the annual spring stranding event, based
upon observations of entangled and
impinged sea turtles on pound net
leaders and the location of the majority
of sea turtle strandings. Regulating
pound net leaders, a gear type known to
kill sea turtles by entangling and
impinging them, is expected to
minimize the effects of one source of
mortality that leads to strandings.
Since 2001, several fisheries have
been observed in Virginia with few
observed turtle takes. However, NMFS
recognizes that variations in fishery-

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turtle interactions may occur in any
given year, and is committed to
continue monitoring the active fisheries
in and around Virginia. The NMFS 2006
monitoring program is anticipated to
include observer coverage in the
Virginia/Chesapeake Bay gillnet and
trawl fisheries. At least 69 days of
observer coverage are allocated for
gillnet fisheries in the Virginia
Chesapeake Bay during May and June
2006. Further, NMFS scientists are
evaluating the use of sonar to detect and
ascertain the extent of sea turtle
interactions in Chesapeake Bay pot gear.
NMFS has developed a brochure titled
‘‘Marine Mammal and Sea Turtle
Protection: Guidelines for Recreational
Fishermen,’’ which provides
information to minimize sea turtle
injuries in recreational fishing gear.
NMFS also has plans to work with
Virginia organizations to institute an
educational campaign aimed at reducing
sea turtle interactions with recreational
fishermen and boaters.
In 2004 and 2005, NMFS funded
professional necropsies and associated
lab costs on fresh dead animals in
Virginia to determine the health of a
subset of stranded animals. Of the 20
sea turtles examined, documented
mortality sources included human
interactions, such as fisheries
entanglements, hook ingestions, and
vessel strikes, as well as disease
pathologies, pneumonia, and parasites.
NMFS will continue to fund these fresh
dead professional necropsies in 2006.
NMFS will also continue to closely
monitor sea turtle stranding levels and
to evaluate interactions with other
mortality sources not previously
considered that may contribute to sea
turtle strandings. NMFS and the U.S.
Fish and Wildlife Service (USFWS) are
working to minimize the impacts to sea
turtles from other activities in addition
to fishing (e.g., habitat degradation,
marine debris, dredging, water quality,
power plant impingement). Fishing
activities, however, have been
recognized as one of the most significant
threats to sea turtle survival (Magnuson
et al., 1990, Turtle Expert Working
Group 2000).
Comment 13: One commenter noted
that as sea turtle populations recover,
the number of sea turtle interactions
with fishing gear will also increase. The
commenter seemed to be asking what
NMFS sea turtle program goals are.
Response: All sea turtles are listed as
either endangered or threatened under
the ESA. The goals of the NMFS sea
turtle program include reducing impacts
to sea turtles in order to achieve
recovery of the species. NMFS evaluates
the status of sea turtles through various

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avenues (e.g., species status reviews,
ESA section 7 consultation process) and
is aware of the latest research and
survey efforts that monitor population
trends. NMFS and USFWS recovery
plans are available for each sea turtle
species. These recovery plans outline a
number of recovery criteria, and
associated actions to achieve these
criteria, that must be met before
delisting. It is possible that an increase
in sea turtle abundance would lead to
more documented interactions in
fishing gear, which, in turn, may lead to
additional or different restrictions to
help protect the populations. Sea turtles
have not recovered and remain in need
of protection under the ESA. In the
future, NMFS will continue to evaluate
sea turtle mortality sources and consider
management measures to minimize
those threats.
Comment 14: One commenter stated
that new information, presented at the
26th Annual Symposium on Sea Turtle
Biology and Conservation in April of
2006, indicates that the southern
subpopulation of loggerheads has
declined 29 percent over the last 17
years. The northern subpopulation of
loggerheads also appears to be
declining. The commenter provides an
opinion that fisheries in the western and
eastern Atlantic may be negatively
affecting loggerhead populations.
Response: Previously, the status of the
northern subpopulation, based on
number of loggerhead nests, has been
classified as stable or declining (TEWG
2000). Preliminary new analysis of
nesting data for 11 beaches in North
Carolina, South Carolina, and Georgia
shows a declining trend of 2 percent
annually over a 23-year period (1982–
2005) for the northern loggerhead
subpopulation (B. Schroeder, NMFS,
pers. comm.). The status of the southern
subpopulation is a bit more unclear as
the nesting data are currently under
review. The southern subpopulation of
loggerheads appeared to be stable or
increasing based upon annual nesting
totals from all beaches from 1989 to
1998 (TEWG 2000). NMFS is aware that
a presentation at the 26th Annual
Symposium on Sea Turtle Biology and
Conservation indicated that, based on
an analysis of nesting data, the southern
subpopulation of loggerheads has
declined 29 percent over the last 17
years (1989–2005; A. Meylan, Florida
Fish and Wildlife Conservation
Commission, pers. comm.). NMFS
continues to evaluate nesting data for
loggerheads, and the Loggerhead
Recovery Plan (currently under
revision) will also contain updated
population trend information.

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NMFS continues to consider the
impacts to listed sea turtles, including
loggerheads, and to reduce threats from
known sources. NMFS and USFWS are
working to minimize the impacts to sea
turtles from activities such as nesting
habitat degradation, marine debris,
dredging, and power plant
impingement, but fishing activities have
been recognized as one of the most
significant threats to sea turtle survival
(Magnuson et al., 1990, Turtle Expert
Working Group 2000). To respond to
these threats, NMFS is comprehensively
evaluating the impacts of fishing gear
types on sea turtles throughout the U.S.
Atlantic Ocean and Gulf of Mexico, as
part of the Strategy for Sea Turtle
Conservation and Recovery in Relation
to Atlantic Ocean and Gulf of Mexico
Fisheries (Strategy) (NMFS 2001). Based
on the information developed for the
Strategy, NMFS may impose restrictions
on or modifications to other activities
that adversely affect sea turtles. NMFS
will continue to monitor fishing
activities in Virginia, as well as other
potential sea turtle mortality sources.
Comments Related to Economic and
Social Impact Assessment
Comment 15: Several commenters
expressed concern with the delay in
publishing the proposed regulations and
requested emergency action to get the
regulations in place as soon as possible.
Response: NMFS has been committed
to enacting regulations to require
modified leaders in a portion of the
Virginia pound net fishery as
expeditiously as possible, in order to
give the fishermen advance notification
and ensure measures are in place before
the regulated period begins on May 6.
However, the new regulations contained
in this final rule were not enacted before
the start of the fishing season this year.
NMFS recognizes that the industry
begins planning for the next fishing
season in approximately December or
January and is sensitive to the industry’s
time constraints required to outfit their
gear in compliance with the regulations.
Changes From the Proposed Rule
Based upon public comments
received and further assessment, NMFS
has determined that a modification to
the measures included in the proposed
rule is warranted. Specifically, the
proposed rule stated that the existing
mesh size and stringer restrictions on
nearshore pound net leaders in Pound
Net Regulated Area I and on all pound
net leaders in Pound Net Regulated Area
II would remain in place and are not
affected by the proposed rule. In this
final rule, the mesh size and stringer
restrictions applicable to those leaders

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continue to remain in effect. However,
NMFS has decided to allow fishermen
with nearshore leaders in Pound Net
Regulated Area I and any type of leader
in Pound Net Regulated Area II to use
leaders meeting the definition of
modified pound net leaders should they
so choose. Allowing the use of the
modified leader design in these leaders
may benefit sea turtles as described in
the response to Comment 4. However,
because specific gear requirements are
already in place for nearshore leaders in
Pound Net Regulated Area I and all
leaders in Pound Net Regulated Area II,
and leaders in those locations are less
likely to result in sea turtle
entanglements and impingements based
on existing information, NMFS decided
not to require fishermen in those areas
to purchase and install a new type of
leader. Allowing the use of modified
pound net leaders to nearshore nets in
Pound Net Regulated Area I and all
pound net leaders in Pound Net
Regulated Area II falls within the range
of alternatives described and analyzed
in the draft EA, between the measures
included in the proposed rule and NPA
2 (required use of the modified leader in
all pound nets set within Pound Net
Regulated Areas I and II during the
regulated period).
Classification
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
The Assistant Administrator for
Fisheries (AA) finds good cause under
5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date of this final rule.
To determine the appropriate properties
for the modified pound net leader in
this rulemaking, NMFS needed the
results of the 2005 modified pound net
leader experiment. The final report for
the experiment was not available to
NMFS until January 2006. NMFS then
reviewed and analyzed the report and
integrated the new information into the
rulemaking documents.
NMFS has identified a modified
leader design that will conserve sea
turtles while enabling fishermen to use
pound net leaders, and pound net
fishermen are not able to fish with their
leaders under existing regulations. The
existing regulations prohibit the use of
offshore pound net leaders, an integral
component of pound net gear, in a part
of the southern Chesapeake Bay from
May 6 to July 15 each year. There is
good cause to waive the 30-day delay in
the effective date of this final rule as it
would enable fishermen to set their
leaders immediately and salvage a
portion of the spring/summer fishing
season, while ensuring that threatened

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and endangered sea turtles continue to
be protected from fishing mortalities.
This final rule also allows fishermen in
a different part of the Virginia
Chesapeake Bay to use the modified
leader if they so choose. The modified
leader is expected to benefit sea turtles
in that area as well, it provides
fishermen with another option for
allowable gear and, because this portion
of the rule is voluntary, fishermen do
not need time to comply.
NMFS has prepared a final regulatory
flexibility analysis that describes the
economic impact this final rule will
have on small entities. A summary of
the analysis follows:
A statement of the need for, and
objectives of, this rulemaking are
presented in the preamble and not
repeated here.
The small entities affected by this
action are the commercial fishing
operations forming the Virginia pound
net fishery in the Chesapeake Bay. This
action requires any offshore pound net
leader set in Pound Net Regulated Area
I from May 6 through July 15 each year
to meet the definition of a modified
pound net leader. This requirement will
affect approximately five fishermen (the
number that fish offshore leaders in the
lower Chesapeake Bay). This action also
allows the use of modified pound net
leaders in nearshore pound net leaders
in Pound Net Regulated Area I and in
all leaders set in Pound Net Regulated
Area II during this same time frame.
This authorization will affect
approximately 16 fishermen (the
number that fish in the upper bay, who
may choose to use the modified leader
design). A total of 21 fishermen will be
affected by the rule.
NMFS has minimized economic
impacts by selecting the alternative
adopted in the final rule. That
alternative was chosen because it will
enable a group of fishermen to use
leaders—a key component of pound net
gear—during a peak fishing season,
thereby enabling them to earn revenues
while also reducing impacts of pound
net gear on sea turtles. The revenues
earned by the group of fishermen
required to use modified pound net
leaders would be larger than the costs
incurred to modify the leaders. The net
change in revenues is positive 16.9 to
33.7 percent for the 5 lower bay
fishermen. For the 16 upper bay
fishermen, there will not be a net
change in revenues due to compliance
with the rule. This alternative was also
selected because it allows, but does not
require, fishermen to use modified
leaders in a part of the Chesapeake Bay
where risks to sea turtles from pound
net gear appear to be lower.

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Non-preferred alternative 1 (NPA 1)
would maintain the current regulations,
including a prohibition on the use of
offshore pound net leaders in Pound Net
Regulated Area I, and would prohibit
leaders with stretched mesh greater than
or equal to 12 inches (30.5 cm) and
leaders with stringers in the remainder
of the Virginia Chesapeake Bay during
the period of May 6 through July 15
each year. NPA 1 would not have
changed the economic status quo. NPA
1 was rejected because it would not take
advantage of the modified leader design
developed to enable fishermen to
generate revenues by fishing while also
protecting sea turtles.
Non-preferred alternative 2 (NPA 2)
would require any pound net leader
used during the period of May 6 through
July 15 in either Pound Net Regulated
Area I or Pound Net Regulated Area II
to be a modified pound net leader. NPA
2 would have imposed economic costs
on all pound net fishermen in the
Virginia Chesapeake Bay. NPA 2 was
rejected because at this time requiring
all pound net fishermen in the Virginia
Chesapeake Bay to use modified leaders
seems overbroad. While lower bay
fishermen who are currently prohibited
from using offshore leaders will be able
to recoup costs through increased
fishing opportunity, upper bay
fishermen, who are required to use the
modified leader under NPA 2, would
incur extra costs for minimal benefit to
sea turtles given that those fishermen
can already fish with leaders subject to
mesh size and stringer restrictions
designed to protect sea turtles and, at
this time, offshore leaders in Pound Net
Regulated Area II are not known to
present as much of a risk to sea turtles
as those in Pound Net Regulated Area I.
For the 5 lower bay fishermen, the net
change in revenues is positive 12.0 to
28.9 percent while the net change in
revenues for the 16 upper bay fishermen
is negative by 3.6 to 7.2 percent. NMFS
believes tailoring the requirement to the
area that presents the greatest risk to sea
turtles and allowing (but not requiring)
the use of modified leaders in other
areas is more appropriate given existing
information.
Non-preferred alternative 3 (NPA 3) is
similar to the proposed action, but
would require the modified pound net
leader design to be used in any offshore
leader, while any nearshore leader
would still be required to use stretched
mesh less than 12 inches (30.5 cm) and
stringers would be prohibited. NPA 3
would have greater economic effects
than the final rule and was rejected
because at this time offshore leaders in
Pound Net Regulated Area II are not
known to present the same risks to sea

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turtles as those in Pound Net Regulated
Area I. In addition, based on existing
information, NPA 3 would have been
overbroad. While lower bay fishermen
using offshore leaders will be able to
recoup costs through increased fishing
opportunity, upper bay fishermen with
offshore leaders in Pound Net Regulated
Area II would have incurred extra costs
for not much benefit to sea turtles,
because those fishermen can already use
pound net leaders with mesh size and
stringer restrictions designed to protect
sea turtles and because of the lesser risk
to sea turtles from offshore leaders in
Pound Net Regulated Area II. For the 5
lower bay fishermen, the net change in
revenues is positive 16.9 to 33.7
percent, while for the 16 fishermen in
the upper bay the net change in
revenues is negative by 3.6 to 7.2
percent.
This action does not contain new
reporting or recordkeeping
requirements.
No comments were received
specifically on the initial regulatory
flexibility analysis. Comments on
economic impacts of the proposed rule
and response to them appear in the
preamble to this final rule and are
incorporated herein.
A formal consultation pursuant to
section 7 of the ESA was conducted on
the previous 2004 rule (69 FR 24997,
May 5, 2004). The April 16, 2004
Biological Opinion concluded that the
operation of the Virginia pound net
fishery with NMFS’ sea turtle
conservation measures may adversely
affect but is not likely to jeopardize the
continued existence of the loggerhead,
leatherback, Kemp’s ridley, green, or
hawksbill sea turtle, or shortnose
sturgeon. NMFS has determined that
this action does not trigger reinitiation
of formal consultation.
This final rule contains policies with
federalism implications that were
sufficient to warrant preparation of the
following federalism assessment under
Executive Order 13132. The Acting
Assistant Secretary for Legislative and
Intergovernmental Affairs provided
notice of the proposed action to the
Governor of Virginia on April 17, 2006.
The Secretary of Natural Resources in
Virginia responded on behalf of the
Governor of Virginia on April 26, 2006.
In this letter, he expressed his support
of the proposed action, but noted
concerns with the delay in publishing
the proposed rule and recommended
shortening the time frame to implement
the final rule. NMFS’ position
supporting the need to issue the
regulations is explained in the preamble
to this rule and incorporated herein.
NMFS has endeavored to address the

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Federal Register / Vol. 71, No. 121 / Friday, June 23, 2006 / Rules and Regulations

concerns of elected officials by
continuing to expedite issuance of the
rule. NMFS did find good cause under
5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date of this final rule,
given that such a delay would be
contrary to the public interest. The
federalism official certifies that NMFS
has complied with the requirements of
Executive Order 13132 for this final
rule.

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Literature Cited
Byles, R.A. 1988. The behavior and ecology
of sea turtles in Virginia. Ph.D.
dissertation. Virginia Institute of Marine
Science, College of William and Mary,
Gloucester Point, Virginia. 112 pp.
DeAlteris, J., D. Chosid, R. Silva and P.
Politis. 2004. Evaluation of the
performance of an alternative leader
design on the bycatch of sea turtles and
the catch of finfish in Chesapeake bay
pound nets, offshore Kiptopeake, VA.
Final Report submitted to the National
Oceanic and Atmospheric
Administration.
Henwood, T.A., and W. Stuntz. 1987.
Analysis of sea turtle captures and
mortalities during commercial shrimp
trawling. Fish. Bull., U.S. 85(4):813–817.
Lutcavage, M.E. and P.L. Lutz. 1997. Diving
physiology, p. 277–296. In P.L. Lutz and
J.A. Musick, (eds), The Biology of Sea
Turtles, CRC Press, Boca Raton, Florida.
432 pp.
Magnuson, J.J., J.A. Bjorndal, W.D. DuPaul,
G.L. Graham, D.W. Owens, C.H.
Peterson, P.C.H. Prichard, J.I.
Richardson, G.E. Saul, and C.W. West.
1990. Decline of Sea Turtles: Causes and
Prevention. Committee on Sea Turtle
Conservation, Board of Environmental
Studies and Toxicology, Board on
Biology, Commission of Life Sciences,
National Research Council, National
Academy Press, Washington, D.C. 259
pp.
Mansfield, K.L., E.E. Seney, and J.A. Musick.
2002a. An evaluation of sea turtle
abundances, mortalities and fisheries
interactions in the Chesapeake Bay,
Virginia, 2001. Final Report submitted to
the National Marine Fisheries Service
Northeast Region, Gloucester, MA.
Contract #43–EA–NF–110773.
Mansfield, K.L., E.E. Seney, M.A. Fagan, J.A.
Musick, K.L. Frisch, and A.E. Knowles.
2002b. An evaluation of interactions
between sea turtles and pound net
leaders in the Chesapeake Bay, Virginia.
Final Report submitted to the National
Marine Fisheries Service Northeast
Region, Gloucester, MA. Contract
#EA1330–02–SE–0075.
Mansfield, K.A. and J.A. Musick. 2003.
Loggerhead sea turtle diving behavior.
Virginia Institute of Marine Science.
Final report submitted to the U.S. Army
Corps of Engineers, Norfolk, Virginia. 41
pp.
Mansfield, K.A. and J.A. Musick. 2004. Sea
turtle diving behavior in Virginia.
Virginia Institute of Marine Science.
Final report submitted to the U.S. Army

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Corps of Engineers, Norfolk, Virginia. 38
pp.
Mansfield, K.A. and J.A. Musick. 2005. Sea
turtle diving behavior. Virginia Institute
of Marine Science. 2004 Final report
submitted to the U.S. Army Corps of
Engineers, Norfolk, Virginia. 25 pp.
National Marine Fisheries Service (NMFS).
2001. Decision Memorandum from
Donald R. Knowles (Office of Protected
Resources) to William T. Hogarth
(Assistant Administrator for Fisheries).
Strategy for Sea Turtle Conservation and
Recovery in Relation to Atlantic Ocean
and Gulf of Mexico Fisheries. June 1,
2001.
Swingle, W.M., C.T. Harry, S.G. Barco. 2005.
Sea turtle surveys and stranding
response on Virginia’s Eastern shore
2005. Final report submitted to NOAA,
National Marine Fisheries Service,
Northeast Regional Office, Gloucester,
MA. Contract #: EM133F05SE3836.
VAQF Scientific Report 2005–03,
Virginia Beach, VA. 21 pp.
Turtle Expert Working Group (TEWG). 1998.
An assessment of the Kemp’s ridley
(Lepidochelys kempi) and loggerhead
(Caretta caretta) sea turtle populations in
the Western North Atlantic. NOAA
Technical Memorandum NMFS–SEFSC–
409. 96 pp.

List of Subjects
50 CFR Part 222
Endangered and threatened species,
Exports, Reporting and recordkeeping
requirements.
50 CFR Part 223
Endangered and threatened species,
Exports, Transportation.
Dated: June 16, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.

For reasons stated in the preamble, 50
CFR parts 222 and 223 are amended as
follows:

■

PART 222—GENERAL ENDANGERED
AND THREATENED MARINE SPECIES
1. The authority citation for part 222
continues to read as follows:

■

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

2. In § 222.102, the definitions of
‘‘Modified pound net leader’’ and
‘‘Pound Net Regulated Area I’’ and
‘‘Pound Net Regulated Area II’’ are
added in alphabetical order to read as
follows:

■

§ 222.102

Definitions.

*

*
*
*
*
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

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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 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;
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 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.
*
*
*
*
*
Pound Net Regulated Area I means
Virginia waters of the mainstem
Chesapeake Bay, south of 37°19.0′ N.
lat. and west of 76°13.0′ W. long., and
all waters south of 37°13.0′ N. lat. to the
Chesapeake Bay Bridge Tunnel
(extending from approximately 37°05′
N. lat., 75°59′ W. long. to 36°55′ N. lat.,
76°08′ W. long.) at the mouth of the
Chesapeake Bay, and the portion of the
James River downstream of the
Hampton Roads Bridge Tunnel (I–64;
approximately 36°59.55′ N. lat.,
76°18.64′ W. long.) and the York River
downstream of the Coleman Memorial
Bridge (Route 17; approximately
37°14.55′ N. lat, 76°30.40′ W. long.)
Pound Net Regulated Area II means
Virginia waters of the Chesapeake Bay
outside of Pound Net Regulated Area I
defined above, extending to the
Maryland-Virginia State line
(approximately 37°55′ N. lat., 75°55′ W.
long.), the Great Wicomico River
downstream of the Jessie Dupont
Memorial Highway Bridge (Route 200;
approximately 37°50.84′ N. lat,
76°22.09′ W. long.), the Rappahannock
River downstream of the Robert Opie
Norris Jr. Bridge (Route 3;
approximately 37°37.44′ N. lat,
76°25.40′ W. long.), and the Piankatank
River downstream of the Route 3 Bridge
(approximately 37°30.62′ N. lat,
76°25.19′ W. long.) to the COLREGS line
at the mouth of the Chesapeake Bay.
*
*
*
*
*
PART 223—THREATENED MARINE
AND ANADROMOUS SPECIES
3. The authority citation for part 223
continues to read as follows:

■

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Federal Register / Vol. 71, No. 121 / Friday, June 23, 2006 / Rules and Regulations
Authority: 16 U.S.C. 1531–1543; subpart B,
§ 223.201–202 also issued under 16 U.S.C.
1361 et seq.; 16 U.S.C. 5503(d) for
§ 223.206(d)(9).

4. In § 223.206, paragraph (d)(10) is
revised to read as follows:

■

§ 223.206 Exceptions to prohibitions
relating to sea turtles.

*
*
*
*
(d) * * *
(10) Restrictions applicable to pound
nets in Virginia—(i) Offshore pound net
leaders in Pound Net Regulated Area I.
During the time period of May 6 through
July 15 each year, any offshore pound
net leader in Pound Net Regulated Area
I must meet the definition of a modified
pound net leader. Any offshore pound
net leader in Pound Net Regulated Area
I that does not meet the definition of a
modified pound net leader must be
removed from the water prior to May 6
and may not be reset until July 16.
(ii) Nearshore pound net leaders in
Pound Net Regulated Area I and all
pound net leaders in Pound Net
Regulated Area II. During the time
period of May 6 to July 15 each year,
any nearshore pound net leader in
Pound Net Regulated Area I and any
pound net leader in Pound Net
Regulated Area II must have only mesh
size less than 12 inches (30.5 cm)
stretched mesh and may not employ
stringers. Any nearshore pound net
leader in Pound Net Regulated Area I or
any pound net leader in Pound Net
Regulated Area II with stretched mesh
measuring 12 inches (30.5 cm) or
greater, or with stringers, must be
removed from the water prior to May 6
and may not be reset until July 16. A
pound net leader is exempt from these

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*

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measures only if it meets the definition
of a modified pound net leader.
(iii) Protocol for measuring mesh size.
This protocol applies to measuring
mesh size in leaders described in 50
CFR 223.206(d)(10)(i) and
223.206(d)(10)(ii). Mesh sizes are
measured by a wedge-shaped gauge
having a taper of 0.79 in. (2 cm) in 3.15
in. (8 cm) and a thickness of 0.09 in. (2.3
mm) inserted into the meshes under a
pressure or pull of 11.02 lb. (5 kg). The
mesh size is the average of the
measurement of any series of 20
consecutive meshes. The mesh in the
leader is measured at or near the
horizontal and vertical center of a leader
panel.
(iv) Reporting requirement. At any
time during the year, if a sea turtle is
taken live and uninjured in a pound net
operation, the operator of the vessel
must report the incident to the NMFS
Northeast Regional Office, (978) 281–
9328 or fax (978) 281–9394, within 24
hours of returning from the trip in
which the incidental take was
discovered. The report shall include a
description of the sea turtles condition
at the time of release and the measures
taken as required in paragraph (d)(1) of
this section. At any time during the
year, if a sea turtle is taken in a pound
net operation, and is determined to be
injured, or if a turtle is captured dead,
the operator of the vessel shall
immediately notify NMFS Northeast
Regional Office and the appropriate
rehabilitation or stranding network, as
determined by NMFS Northeast
Regional Office.
(v) Monitoring. Owners or operators of
pound net fishing operations must allow

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36033

access to the pound net gear so it may
be observed by a NMFS-approved
observer if requested by the Northeast
Regional Administrator. All NMFSapproved observers will report any
violations of this section, or other
applicable regulations and laws.
Information collected by observers may
be used for law enforcement purposes.
(vi) Expedited modification of
restrictions and effective dates. From
May 6 to July 15 of each year, if NMFS
receives information that one sea turtle
is entangled alive or that one sea turtle
is entangled dead, and NMFS
determines that the entanglement
contributed to its death, in pound net
leaders that are in compliance with the
restrictions described in paragraph
(d)(10)(ii) of this section, NMFS may
issue a final rule modifying the
restrictions on pound net leaders as
necessary to protect threatened sea
turtles. Such modifications may
include, but are not limited to, reducing
the maximum allowable mesh size of
pound net leaders and prohibiting the
use of pound net leaders regardless of
mesh size. In addition, if information
indicates that a significant level of sea
turtle entanglements, impingements or
strandings will likely continue beyond
July 15, NMFS may issue a final rule
extending the effective date of the
restrictions, including any additional
restrictions imposed under this
paragraph (d)(10)(vi), for an additional
15 days, but not beyond July 30, to
protect threatened sea turtles.
[FR Doc. 06–5608 Filed 6–20–06; 2:19 pm]
BILLING CODE 3510–22–P

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