[Federal Register Volume 71, Number 121 (Friday, June 23, 2006)]
[Rules and Regulations]
[Pages 36024-36033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5608]


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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

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

ACTION: Final rule.

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SUMMARY: NMFS is requiring that any offshore pound net leader in the 
Virginia waters of the mainstem Chesapeake Bay, south of 37[deg]19.0' 
N. lat. and west of 76[deg]13.0' W. long., and all waters south of 
37[deg]13.0' N. lat. to the Chesapeake Bay Bridge Tunnel 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

[[Page 36025]]

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 one-third 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 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[deg]19.0' N. lat. and west of 76[deg]13.0' 
W. long., and all waters south of 37[deg]13.0' N. lat. to the 
Chesapeake Bay Bridge Tunnel (extending from approximately 37[deg]05' 
N. lat., 75[deg]59' W. long. to 36[deg]55' N. lat., 76[deg]08' W. 
long.) at the mouth of the Chesapeake Bay, and the portion of the James 
River downstream of the Hampton Roads Bridge Tunnel (I-64; 
approximately 36[deg]59.55' N. lat., 76[deg]18.64' W. long.) and the 
York River downstream of the Coleman Memorial Bridge (Route 17; 
approximately 37[deg]14.55' N. lat, 76[deg]30.40' W. long.).
    Pound Net Regulated Area II means Virginia waters of the Chesapeake 
Bay outside of Regulated Area I defined above, extending to the 
Maryland-Virginia State line (approximately 37[deg]55' N. lat., 
75[deg]55' W. long.), the Great Wicomico River downstream of the Jessie 
Dupont Memorial Highway Bridge (Route 200; approximately 37[deg]50.84' 
N. lat, 76[deg]22.09' W. long.), the Rappahannock River downstream of 
the Robert Opie Norris Jr. Bridge (Route 3; approximately 37[deg]37.44' 
N. lat, 76[deg]25.40' W. long.), and the Piankatank River downstream of 
the Route 3 Bridge (approximately 37[deg]30.62' N. lat, 76[deg]25.19' 
W. long.) to the COLREGS line at the mouth of the Chesapeake Bay.
    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

[[Page 36026]]

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 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, 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

[[Page 36027]]

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 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 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 re-open 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

[[Page 36028]]

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 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 one-third 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 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

[[Page 36029]]

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.

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-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

[[Page 36030]]

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.
    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 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

[[Page 36031]]

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.
    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 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

[[Page 36032]]

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.

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 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.

0
For reasons stated in the preamble, 50 CFR parts 222 and 223 are 
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.; 31 
U.S.C. 9701.


0
2. In Sec.  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:


Sec.  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 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[deg]19.0' N. lat. and west of 76[deg]13.0' 
W. long., and all waters south of 37[deg]13.0' N. lat. to the 
Chesapeake Bay Bridge Tunnel (extending from approximately 37[deg]05' 
N. lat., 75[deg]59' W. long. to 36[deg]55' N. lat., 76[deg]08' W. 
long.) at the mouth of the Chesapeake Bay, and the portion of the James 
River downstream of the Hampton Roads Bridge Tunnel (I-64; 
approximately 36[deg]59.55' N. lat., 76[deg]18.64' W. long.) and the 
York River downstream of the Coleman Memorial Bridge (Route 17; 
approximately 37[deg]14.55' N. lat, 76[deg]30.40' W. long.)
    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[deg]55' N. lat., 
75[deg]55' W. long.), the Great Wicomico River downstream of the Jessie 
Dupont Memorial Highway Bridge (Route 200; approximately 37[deg]50.84' 
N. lat, 76[deg]22.09' W. long.), the Rappahannock River downstream of 
the Robert Opie Norris Jr. Bridge (Route 3; approximately 37[deg]37.44' 
N. lat, 76[deg]25.40' W. long.), and the Piankatank River downstream of 
the Route 3 Bridge (approximately 37[deg]30.62' N. lat, 76[deg]25.19' 
W. long.) to the COLREGS line at the mouth of the Chesapeake Bay.
* * * * *

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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


[[Page 36033]]


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


Sec.  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 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 access to the pound net gear so it may be observed by a 
NMFS-approved observer if requested by the Northeast Regional 
Administrator. All NMFS-approved 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