[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Rules and Regulations]
[Pages 66466-66469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19304]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 061030282-6282-01; I.D. 102506A]
RIN 0648-AU97


Endangered and Threatened Wildlife; Sea Turtle Conservation; 
Correction

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

ACTION: Emergency final rule; correction.

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SUMMARY: On August 25, 2006, NMFS issued a final rule to require the 
use of chain mats on sea scallop dredges in the mid-Atlantic sea 
scallop fishery in order to help protect sea turtles. The regulation 
became effective on September 25, 2006. Shortly after the rule's 
effective date, NMFS became aware of a discrepancy between the two 
options in the regulation for configuring the chain mat. This emergency 
final rule corrects the existing regulation to ensure that the 
protection to sea turtles expected from the August 25, 2006 rule is 
achieved. This emergency final rule requires that any vessel with a sea 
scallop dredge and required to have a Federal Atlantic sea scallop 
fishery permit, regardless of dredge size or vessel permit category, 
present in waters south of 41[deg] 9.0' N. lat., from the shoreline to 
the outer boundary of the Exclusive Economic Zone must have on each 
dredge a chain mat composed of horizontal (tickler) and vertical (``up-
and-down'') chains for the duration of the trip. The chains must be 
configured such that the length of each side of the square or rectangle 
formed by the intersecting chains is less than or equal to 14 inches 
(35.5 cm). Any incidental take of threatened sea turtles in sea scallop 
dredge gear in compliance with this gear modification requirement and 
all other applicable requirements will be exempted from the Endangered 
Species Act's prohibition against takes.

DATES: Effective November 18, 2006.

ADDRESSES: Ellen Keane, NMFS, Northeast Region, One Blackburn Drive, 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Ellen Keane (ph. 978-281-9300 x6526, 
fax 978-281-9394, email [email protected]) or Barbara Schroeder (ph. 
301-713-2322, fax 301-427-2522, email [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    On August 25, 2006, NMFS issued a final rule to require sea turtle 
conservation measures for all sea scallop dredge vessels fishing south 
of 41[deg] 9.0' N. latitude from May 1 through November 30 each year 
(71 FR 50361, ``chain mat regulation''). The chain mat regulation is in 
effect now and the requirement to use chain mats applies each year from 
May 1 through November 30. All vessels with a sea scallop dredge 
required to have a Federal Atlantic sea scallop fishery permit, 
regardless of dredge size or vessel permit category, are required to 
modify their dredge(s) when present in waters south of 41[deg] 9.0' N. 
latitude, from the shoreline to the outer boundary of the Exclusive 
Economic Zone (EEZ). Vessels that harvest sea scallops from these 
waters are required to have the chain mat installed on their dredge(s) 
for the duration of the trip. This action was necessary to help reduce 
mortality and injury to endangered and threatened sea turtles in 
scallop dredge gear and to conserve sea turtles listed under the 
Endangered Species Act (ESA). For background information and 
justification for these measures, please refer to the May 25, 2005 
proposed rule (70 FR 30660), the August 2006 final rule and the 
Environmental Assessment (EA) prepared for that action.
    The chain mat regulation provides fishermen with two options for 
configuring the gear. Under the first option, fishermen are required to 
use a specified number of vertical and horizontal chains depending on 
the width of the dredge. The second option requires that the gear be 
configured such that no opening was greater than 14 inches (35.5 cm) on 
a side. The spacing of the chains under the first option was intended 
to be based on the experimental fishery (July 17, 2003 - October 9, 
2004) to test the chain mat gear. The August 2006 final rule and EA 
include details of the study. During the experimental fishery, 11 
vertical and 6 horizontal chains were used for the 14 and 15 ft (4.27 
and 4.57 m) dredges, while 9 vertical and 6 horizontal chains were used 
for the 11 ft (3.35 m) dredge. Spaced on a normal sweep arrangement, 
this configuration resulted in a square or rectangle that was less than 
or equal to 14 inches (35.5 cm) on each side. The study showed that the 
use of a chain mat of this size prevented sea turtles from entering the 
dredge bag and injuries that resulted from such capture. NMFS believed 
that the two options for configuring the chains produced the same 
result, namely rectangles or

[[Page 66467]]

squares with sides measuring 14 inches (35.5 cm) or less. Based on the 
results of the experimental fishery to test the chain mat, the life 
history of sea turtles, and the size of sea turtles observed taken in 
the sea scallop dredge fishery, a spacing of 14 inches (35.5 cm) or 
less is expected to prevent most, if not all, sea turtles from entering 
the dredge bag.
    Shortly after the rule's effective date, NMFS became aware of a 
discrepancy between the two options in the regulation for configuring 
the chain mat. Fishermen reported that gear configured according to the 
number of chains specified by dredge width could result in openings of 
16.5 inches (42.9 cm). NMFS investigated these reports and found that, 
depending on the dredge width and configuration, using the number of 
chains specified for the dredge width does result in openings greater 
than 14 inches (35.5 cm) in certain cases. The larger-than-expected 
openings may reduce the chain mat's effectiveness in reducing sea 
turtle injuries because sea turtles may slip through the chain mat and 
enter the dredge bag. Once in the dredge bag, sea turtles are at risk 
of serious injury and mortality as they may be struck by its contents, 
forcibly submerged, and/or dumped on the vessel's deck and crushed by 
the gear. The August 2006 final rule was issued in order to prevent 
these sources of serious injury and mortality. Therefore, NMFS is 
issuing this emergency final rule to correct the mistake in the chain 
mat regulation in order to ensure it achieves its intended purpose to 
help protect sea turtles listed under the ESA during the time when the 
distribution of sea turtles overlaps with that of the scallp fishery, 
namely from May through November. This rule is issued pursuant to 
sections 4(d) and 11(f) of the ESA. It requires that all sea scallop 
vessels present in mid-Atlantic waters from May 1 through November 30 
configure their dredges such that no opening in the chain mat is 
greater than 14 inches (35.5 cm) on a side. The area affected by the 
regulation remains waters south of 41[deg] 9.0' N. latitude, from the 
shoreline to the outer boundary of the EEZ. The temporal extent of the 
regulation remains May 1 through November 30 each year.
    The EA for Sea Turtle Conservation Measures for the mid-Atlantic 
Sea Scallop Dredge Fishery analyzed the biological, physical, economic, 
and social impacts that would result from the chain mat regulation, as 
well as a number of other alternatives. The analysis presented in the 
EA for the biological and physical consequences of the chain mat 
regulation evaluated the impacts resulting from the expected opening of 
14 inches (35.5 cm) or less. Therefore, the impacts of the chain mat 
configuration required by this emergency rule have been analyzed in the 
previous EA. This action is categorically excluded from the requirement 
to prepare either an EA or an Environmental Impact Statement under the 
National Environmental Policy Act. The categorical exclusion prepared 
for this emergency rule discusses the minor impacts that may result 
from this action.
    The EA also analyzed the economic and social impacts of the August 
2006 chain mat regulation. The cost of the gear modification is 
composed of the potential revenue loss due to a reduction in sea 
scallop dredge catch and the cost of the material and labor to 
configure the dredge. The potential reduction in catch was based on the 
results of the experimental fishery to test the chain mat modified 
gear. The experimental fishery used three dredge widths (11-, 14-, and 
15-ft dredge widths (3.35, 4.27, and 4.57 m)) with chain mat openings 
less than or equal to 14 inches (35.5 cm). During the experimental 
fishery, an average reduction of approximately 6.7 percent was 
observed. This average loss was used to estimate the cost due to a 
reduction in scallop catch. As this analysis was based on openings of 
less than or equal to 14 inches (35.5 cm) per side used in the 
experimental fishery, this emergency final rule is not expected to 
result in any additional costs due to scallop catch reduction that have 
not already been evaluated in the EA for the chain mat regulation.
    The second cost is the cost to modify the gear, namely, the costs 
to purchase and install the chains. Since many vessels have already 
installed the chain mat, there will be a slight additional cost to 
reconfigure the gear to comply with the new regulation. However, this 
cost is expected to be minimal. First, as described above, vessels 
could choose one of two options for configuring the gear. Some vessels 
have chosen to configure it such that the openings are less than 14 
inches (35.5 cm) and, therefore, will not have to reconfigure the gear. 
Additionally, openings greater than 14 inches (35.5 cm) only result 
from using the specified number of chains in certain cases, depending 
on dredge width and configuration. Therefore, some vessels following 
the specified number of chains will also not have to reconfigure their 
gear. However, an unknown number of vessels will need to reconfigure 
the gear. For these vessels, the cost is expected to be minimal. NMFS 
does not anticipate that this emergency rule will result in any loss of 
fishing time for vessels that need to reconfigure the gear. There are 
two costs in reconfiguring the gear, the cost of materials and the cost 
of labor. These vessels will have already purchased the majority of the 
chain needed to configure the chain mat. There will be a slight 
additional cost for the purchase of additional chain in order to 
achieve openings equal to or less than 14 inches (35.5 cm). However, 
the amount of additional chain needed will be less than that already 
purchased. The EA estimated a labor cost of approximately 50 dollars 
per dredge if the vessel were to use a welder to attach the chain mat. 
This emergency final rule will require some additional welding, but 
this cost is minimal. Therefore, this emergency final rule does not 
significantly change the economic impacts anticipated in the EA.

Classification

    This final rule has been determined to be not significant by the 
Office of Management and Budget for the purposes of Executive Order 
12866.
    Because the rulemaking requirements of 5 U.S.C. 553 are not 
required by the Administrative Procedure Act or any other law, the 
analytical requirements of the Regulatory Flexibility Act are not 
applicable.
    The Assistant Administrator for Fisheries (AA) finds good cause 
under 5 U.S.C. 553(b)(B) to waive the requirement for prior notice and 
opportunity for public comment on this rule as it would be 
impracticable and contrary to the public interest. On August 25, 2006, 
NMFS issued a final rule requiring chain mats to be used under certain 
conditions on scallop dredges in order to help protect sea turtles (71 
FR 50361). The August 25, 2006, final rule became effective on 
September 25, 2006. Shortly after the rule's effective date, NMFS was 
made aware of a discrepancy between the two options in the regulation 
for configuring the chain mat. One option was to use the specified 
number of horizontal and vertical chains based on width of dredge 
frame; the other option was to use as many horizontal and vertical 
chains that would produce rectangles or squares with sides equaling 14 
inches (35.5 cm) or less. NMFS believed that the two options would 
produce the same result, namely rectangles or squares with sides 
measuring 14 inches (35.5 cm) or less. Based on the results of the 
experiment to test the chain mat modification, the life history of 
loggerhead sea turtles-- the predominant species observed caught in 
dredges-- and the size of sea turtles observed taken in the sea scallop 
dredge fishery, a spacing of 14 inches

[[Page 66468]]

(35.5 cm) or less is expected to prevent most, if not all sea turtles, 
from entering the dredge bag. However, upon implementation of the 
August 25, 2006, final rule, NMFS discovered that, at least for some 
dredge widths, using the specified number of vertical and horizontal 
chains produces rectangles or squares that are greater than 14 inches 
(35.5 cm).
    This emergency final rule must be implemented immediately because 
the variance in chain mat configurations may reduce the effectiveness 
of the regulation in reducing sea turtle injuries. Under the current 
regulations, for some chain mat configurations based on dredge width 
and the specified number of horizontal and vertical chains, some sea 
turtles may slip through the openings in the chain mat and enter the 
dredge bag. As explained in the preambles to the proposed (70 FR 30660, 
May 27, 2005) and final (71 FR 50361, August 25, 2006) rules regarding 
the chain mat requirement, sea turtles that enter the dredge bag are at 
risk of injury and mortality as they may be struck by the contents of 
the dredge bag, forcibly submerged, and/or dumped on the vessel's deck 
and crushed by the gear.
    The best available information indicates that a large number of sea 
turtles are injured and killed in the scallop dredge fishery when it 
overlaps with sea turtles in the mid-Atlantic (NMFS, 2006). Loggerhead, 
Kemp's ridley, and green sea turtles undergo temperature dependent 
seasonal migrations along the mid-Atlantic coast (Morreale and 
Standora, 1998; Plotkin and Spotila, 2002). In general, these sea 
turtles occur in waters from Virginia to New York from May through 
November and in waters off North Carolina year-round (NMFS, 1994), 
although they are considered rare north of Cape Hatteras in the winter 
(Mitchell et al., 2003). NMFS does not anticipate any fishing south of 
Cape Hatteras due to the lack of scallop resources there. When the sea 
temperature drops in the Mid-Atlantic, sea turtles migrate away from 
the area and are at less risk of getting caught in the dredge bag. Data 
show that sea turtle distribution overlaps with that of the scallop 
dredge fishery in the Mid-Atlantic during the period from May 1 through 
November 30. Therefore, the potential for interactions between the 
scallop dredge fishery and sea turtles exists this year through 
November, and sea turtles remain at risk of injury or mortality due to 
capture in the dredge bag unless this rule is implemented immediately.
    It would be impracticable and contrary to the public interest to 
allow for prior notice and an opportunity for public comment on this 
final rule as the delay would prevent the agency from executing its 
function of conserving sea turtles listed as threatened or endangered 
under the Endangered Species Act. The overlap between the sea scallop 
dredge fishery and sea turtle distribution in the Mid-Atlantic lasts 
from May 1 through November 30. During this period, sea turtles are at 
the greatest risk of injury and mortality due to interactions with 
scallop dredge gear. If this regulation were delayed to allow for prior 
notice and opportunity for public comment, sea turtles would remain 
exposed to the risk of slipping through chain mats configured with 
openings greater than 14 inches (35.5 cm) and of being injured or 
killed as a result.
    To ensure the chain mat requirement provides the intended 
conservation benefit to listed sea turtles, NMFS must correct the chain 
mat regulation as soon as possible given that the distribution of sea 
turtles overlaps with the scallop fishery through November. Therefore, 
good cause exists under 5 U.S.C. 553(b)(B) to waive the requirement for 
prior notice and opportunity for public comment.
    The AA also finds good cause under 5 U.S.C. 553(d)(3) to waive part 
of the 30-day delay in effective date of this final rule. Such a delay 
would reduce the level of protection afforded to sea turtles during the 
period their distribution overlaps with the scallop dredge fishery. The 
overlap between the sea scallop dredge fishery and sea turtle 
distribution in the Mid-Atlantic lasts from May 1 through November 30. 
During this period, sea turtles are at the greatest risk of injury and 
mortality due to interactions with the dredge gear. If the effective 
date of this regulation were delayed, sea turtles would remain exposed 
to the risk of slipping through chain mats configured with openings 
greater than 14 inches (35.5 cm) and of being injured or killed as a 
result. In addition, allowing for a 30-day delay in effectiveness would 
prevent the agency from executing its function of conserving sea 
turtles listed as threatened or endangered under the Endangered Species 
Act. However, because some fishermen may need some time to modify their 
chain mats to attach extra chains, NMFS will delay the effective date 
of this rule until November 20, 2006.

Literature Cited

    Mitchell, G. H., R. D. Kenney, A. M. Farak, R. J. Campbell. 2003. 
Evaluation of occurrence of endangered and threatened marine species in 
naval ship trial areas and transit lanes in the Gulf of Maine and 
offshore of Georges Bank. Naval Undersea Warfare Center Division 
Newport, Rhode Island. NUWC-NPT Technical Memo 0-121A. 113 pp.
    Morreale, S. J. and E. A. Standora. 1998. Early life stage econlogy 
of sea turtles in northeastern U.S. waters. U.S. Dep. Commer. NOAA 
Tech. Mem. NMFS-SEFSC-413. 49pp.
    NMFS (National Marine Fisheries Service). 1994. State and federal 
fishery interactions with sea turtles in the mid-Atlantic area. NOAA/
NMFS, Silver Spring, MD. 13 pp.
    NMFS (National Marine Fisheries Service). 2006. Endangered Species 
Act Section 7 Consultation on the Atlantic Sea Scallop Fishery 
Management Plan. NMFS, Northeast Regional Office. 106 pp.
    Plotkin P. T. and J. R. Spotila. 2002. Post nesting migrations of 
loggerhead turtles, Caretta caretta, from Georgia, USA: conservation 
implications for a genetically distinct subpopulation. Oryx. 36(4):396-
399.

List of Subjects in 50 CFR Part 223

    Exports, Imports, Transportation.

    Dated: November 8, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set forth in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.12 also 
issued under 16 U.S.C. 1361 et. seq.; 16 U.S.C. 5503(d) for Sec.  
223.206(d)(9).

0
2. In Sec.  223.206, paragraph (d)(11) is revised to read as follows:


Sec.  223.206  Exemptions to prohibitions relating to sea turtles.

* * * * *
    (11) Restrictions applicable to sea scallop dredges in the mid-
Atlantic--(i) Gear Modification. During the time period of May 1 
through November 30, any vessel with a sea scallop dredge and required 
to have a Federal Atlantic sea scallop fishery permit, regardless of 
dredge size or vessel permit category, present in waters south of 
41[deg] 9.0' N. latitude, from the shoreline to the outer boundary of 
the Exclusive Economic Zone must have on each dredge a chain mat 
described as follows. The chain mat must be composed of horizontal 
(``tickler'') chains and vertical chains that are configured such that 
the length

[[Page 66469]]

of each side of the square or rectangle formed by the intersecting 
chains is less than or equal to 14 inches (35.5 cm). The chains must be 
connected to each other with a shackle or link at each intersection 
point. The measurement must be taken along the chain, with the chain 
held taut, and include one shackle or link at the intersection point 
and all links in the chain up to, but excluding, the shackle or link at 
the other intersection point.
    (ii) Any vessel that harvests sea scallops in or from the waters 
described in (d)(11)(i) and that is required to have a Federal Atlantic 
sea scallop fishery permit must have the chain mat configuration 
installed on all dredges for the duration of the trip.
[FR Doc. E6-19304 Filed 11-14-06; 8:45 am]
BILLING CODE 3510-22-S