[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Proposed Rules]
[Pages 20667-20670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10311]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 0809121212-81515-01]
RIN 0648-AX20


Endangered and Threatened Wildlife; Sea Turtle Conservation

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) currently 
requires the use of chain-mat modified dredge gear in the Atlantic sea 
scallop fishery south of 41[deg]9.0' North latitude from May 1 through 
November 30 each year. This gear is necessary to help reduce mortality 
and injury to endangered and threatened sea turtles captured in this 
fishery and to conserve sea turtles listed under the Endangered Species 
Act (ESA). This proposed action would make minor modifications to the 
current requirements by clarifying where on the dredge the chain mat 
should be hung; by excluding the sweep from the requirement that the 
side of each opening in the chain mat be less than or equal to 14 
inches (35.5 cm); and by adding definitions of the sweep and the 
diamonds, which are terms used to describe parts of the scallop dredge 
gear. Any incidental take of threatened sea turtles in Atlantic sea 
scallop dredge gear in compliance with the gear modification 
requirements and all other applicable requirements will be exempted 
from the ESA prohibition against takes. NMFS is requesting public 
comment on this action, the focus of which is the minor modifications 
described here. NMFS is not accepting public comment on the existing 
chain mat requirements through this proposed rule.

DATES: Comments on the proposed rule must be received by 5 p.m. EST on 
June 4, 2009.

ADDRESSES: Written comments on this action, identified by RIN 0648-
AX20, may be submitted by any one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking portal at http://www.regulations.gov.
     Fax: 978-281-9394, ATTN: Sea Turtle Conservation Measures, 
Proposed Rule.
     Mail: Mary A. Colligan, Assistant Regional Administrator 
for Protected Resources, NMFS, Northeast Region, 55 Great Republic 
Drive, Gloucester, MA 01930, Attn: Sea Turtle Conservation Measures, 
Proposed Rule.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Copies of the Draft Supplemental Environmental Assessment/
Regulatory Impact Review can be obtained from http://www.nero.noaa.gov/nero/regs/com.html listed under the Electronic Access portion of this 
document or by writing to Pasquale Scida, NMFS, Northeast Region, 55 
Great Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Pasquale Scida (ph. 978-281-9208, fax 
978-281-9394, e-mail [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act of 1973 
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback 
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) sea 
turtles are listed as endangered. The loggerhead (Caretta caretta) and 
green (Chelonia mydas) sea turtles are listed as threatened, except for 
breeding populations of green turtles in Florida and on the Pacific 
coast of Mexico that are listed as endangered. Kemp's ridley, 
hawksbill, loggerhead, and green sea turtles are hard-shelled sea 
turtles.
    Under the ESA and its implementing regulations, taking sea turtles 
under NMFS's jurisdiction, even incidentally, is prohibited, with 
exceptions identified at 50 CFR 223.206. The incidental take, both 
lethal and non-lethal, of loggerhead, Kemp's ridley, and unidentified 
hard-shelled sea turtles as a result of scallop dredging has been 
observed in the Atlantic sea scallop fishery (Northeast Fisheries 
Science Center (NEFSC) Fisheries Sampling Branch (FSB), Observer 
Database). In addition, a non-lethal take of a green sea turtle has 
been observed in this fishery (NEFSC FSB, Observer Database) and one 
unconfirmed take of a leatherback sea turtle was reported during the 
experimental fishery to test the chain-mat modified gear (DuPaul et 
al., 2004).
    Sea turtles caught in scallop dredge gear often suffer injuries. 
The most commonly observed injury is damage to the carapace. The exact 
causes of these injuries are unknown, but most likely appear to be from 
being struck by the

[[Page 20668]]

dredge (during a tow or upon emptying of the dredge bag on deck), 
crushed by debris (e.g., large rocks) that collects in the dredge bag, 
or as a result of a fall during hauling of the dredge. The chain mat is 
a grid of horizontal and vertical chains hung over the mouth of the 
dredge bag to prevent sea turtles from entering the bag and to prevent 
injury and mortality that results from such capture (i.e., due to 
debris in the bag, a fall while emptying the bag, or dropping of the 
gear on the catch). A full description of the chain mat and the 
benefits to sea turtles can be found in the proposed and final rules 
implementing the regulations (72 FR 63537, November 9, 2007; 73 FR 
18984, April 8, 2008) and the associated Environmental Assessment (NMFS 
2008).
    In 2008, an image analysis that calculated the length of the sides 
of the openings created by the intersecting horizontal and vertical 
chains for an 11-ft. chain-mat equipped dredge was completed. Only a 
single photograph was analyzed in this analysis. The analysis showed 
that the lengths of the sides of the openings were both greater than 
and less than 14 inches and that 14 inches was within the range of 
openings tested in the experimental fishery. Based on this information, 
NMFS re-evaluated the chain mat requirements and the analysis conducted 
for the April 2008 rule. NMFS found that the available information 
continues to support an opening of 14 inches or less and that the 
conclusions of the analysis conducted for the April 2008 rule are still 
valid.
    This proposed rule would modify the existing chain mat regulations 
that apply to chain-mat modified dredges in the Atlantic sea scallop 
fishery. This proposed rule, if implemented, would (1) more clearly 
define where on the dredge gear the chain mat must be hung; (2) exclude 
the sweep from the requirement that each side of the opening must be 14 
inches (35.5 cm) or less; and (3) define the ``sweep'' and the 
``diamonds'', which are terms used to describe parts of the scallop 
dredge gear. This rule is being proposed under the ESA provisions 
authorizing the issuance of regulations to conserve threatened species 
and for enforcement purposes (sections 4(d) and 11(f), respectively).

Configuration of the Gear

    The current regulations define a chain mat as ``* * * a device 
designed to be installed in a scallop dredge forward of the sweep, as 
described in 50 CFR 223.206, for the purpose of excluding sea turtles 
from the dredge.'' The regulations at 50 CFR 223.206 state, in part, 
that ``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, that enters 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 (up-
and-down) chains that are configured such that the openings formed by 
the intersecting chains have no more than 4 sides. The length of each 
side of the openings formed by the intersecting chains, including the 
sweep, must be less than or equal to 14 inches (35.5 cm).'' NMFS has 
determined that ``forward of the sweep'' does not fully describe the 
configuration and that more specificity would ensure that the 
requirements are met consistently in the manner NMFS intends. 
Therefore, this proposed rule would clarify that the chain mat must 
cover the entire opening of the dredge bag by specifying that ``The 
vertical and horizontal chains must be hung to cover the opening of the 
dredge bag such that the vertical chains extend from the back of the 
cutting bar to the sweep. The horizontal chains must intersect the 
vertical chains such that the length of each side of the openings 
formed by the intersecting chains is less than or equal to 14 inches 
(35.5 cm) * * *'' These changes simply clarify the existing 
requirements and would not result in any additional or different 
biological, physical, or socio-economic impacts.

Exclusion of the Sweep

    Second, NMFS proposes to exclude the sweep from the requirement 
that each side of the openings formed by the intersecting chains be 
less than or equal to 14 inches (35.5 cm). For those openings adjacent 
to the sweep, the sweep chain will create one side of the opening. 
Under the current requirements, the length of the side created by the 
sweep chain must be 14 inches (35.5 cm) or less. However, NMFS has re-
examined this requirement and has found that except in rare cases, the 
size of the openings along the sweep will be smaller (even if the 
length of the side created by the sweep exceeds 14 inches (35.5 cm)) 
than the size of the openings created by a square with 14 inches (35.5 
cm) per side, the maximum opening allowed throughout the chain mat. 
Given the configuration of the dredge gear, it is possible that one 
opening at the bottom of the arc created by the sweep could be greater 
than the opening created by a square with 14 inches (35.5 cm) per side 
if the vertical chains forming the two sides of this opening were at or 
near 14 inches (35.5 cm) in length.
    There are several reasons why this proposed change would result in 
inconsequential impacts on the conservation benefit of the chain mats. 
First, along the sweep, the openings are irregularly shaped and may be 
three- or four-sided (see EA for figure), generally resulting in a 
smaller opening than throughout the rest of the chain mat. Given the 
configuration of the gear and the area of the openings along the sweep, 
the number of openings that may be larger than the opening created by a 
square with 14 inches (35.5 cm) per side is limited to a single opening 
in the chain mat. Second, the increase in size of the one opening is 
only a small fraction of the size of the openings allowed throughout 
the chain mat due to the arc in the sweep. This increase is further 
limited by the fact that the sweep chain is generally a heavier chain, 
which would take up some of the space within the opening. Third, this 
slightly larger opening would only be present on a subset of the 
dredges used in the fishery and, where present on a dredge, would be 
limited to only one of the chain mat openings. In some cases, fishermen 
are configuring the gear such that the sides of the openings created by 
the intersecting chains are less than 14 inches (35.5 cm) to allow for 
chain stretch and wear. In these cases, the opening at the bottom of 
the arc created by the sweep would likely be smaller than that created 
by a square with 14 inches (35.5 cm) per side, and all of the openings 
in the chain mat would be consistent with the openings allowed under 
the current regulations.
    Given that the slightly larger opening is limited to one opening on 
a subset of the dredges used in the fishery and that the increase in 
the size of the opening is small due to the way the gear is configured, 
the conservation benefit to sea turtles under this requirement is 
essentially the same as the current requirements. While possible, it is 
highly unlikely that a sea turtle that would be excluded by a square 
with 14 inches (35.5 cm) per side would encounter and pass through the 
one slightly larger opening that may be present on some dredges.
    Chain mats are currently required in certain areas and times. This 
rule would not change the spatial or temporal extent of the 
requirements. It would make minor modifications to how the gear is 
configured. However, given that the modifications are minor and that 
the gear would continue to be required in the same areas and times, 
this action

[[Page 20669]]

would not result in any additional impacts to the physical environment 
or to habitat. This change would also not result in any additional 
economic costs (see Classification section).

Definition of the Sweep and the Diamonds

    As the modifications above specifically exclude the sweep from the 
requirement that the openings in the chain mat be 14 inches (35.5 cm) 
per side, NMFS would add a definition of the sweep to the regulations. 
NMFS is proposing to define the sweep as ``A chain extending, usually 
in an arc, from one end of the dredge frame to the other to which the 
ring bag, including the diamonds, is attached. The sweep forms the edge 
of the opening of the dredge bag.'' NMFS would also add a definition of 
the ``diamonds'' to the regulations. NMFS is proposing to define the 
diamonds as ``the triangular shaped portions of the ring bag on the 
`dredge bottom' as defined at 50 CFR 648.2.'' This definition is 
necessary as the term diamonds is used to define the sweep.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866. A description of the action, why it 
is being considered, and the legal basis for this action are contained 
in the preamble. No reporting, recordkeeping, or other compliance 
requirements are proposed. No duplicative, overlapping, or conflicting 
Federal rules have been identified.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
As a result, an initial regulatory flexibility analysis is not required 
and none has been prepared.
    The small entities affected by the chain mat regulations are 
Atlantic sea scallop fishermen entering waters south of 41[deg] 9.0' N. 
latitude from the shoreline to the outer boundary of the Exclusive 
Economic Zone. These regulations apply to all vessels with a sea 
scallop dredge(s) and required to have a Federal Atlantic sea scallop 
fishery permit, regardless of the dredge size or vessel permit 
category.
    The final rule (73 FR 18984, April 8, 2008) and Final Environmental 
Assessment/Final Regulatory Flexibility Act Analysis/Regulatory Impact 
Review (EA/FRFA/RIR) (NMFS 2008) implementing the chain-mat modified 
dredge requirements identified 314 vessels that would be affected by 
the chain mat requirements. The economic impacts of the minor changes 
proposed here are described below.
    Under the current requirements, the length of each side of the 
opening created by the intersecting chains, including the side created 
by the sweep chain, must be 14 inches (35.5 cm) or less. NMFS has 
identified two alternate ways to configure the gear to comply with the 
regulation as currently written. Fishermen could create smaller 
openings (approximately 9-10 inches (27.9-25.4 cm) per side) throughout 
the mat to ensure that the length of the side created by the sweep was 
less than or equal to 14 inches (35.5 cm). However, it was never the 
intention that the requirement result in openings in the chain mat of 
9-10 inches (27.9-25.4 cm) per side. Alternatively, fishermen could add 
a small piece of chain to any opening where the length of the side 
created by the sweep is greater than 14 inches (35.5 cm). The number of 
openings that would require a piece of additional chain is expected to 
be limited to that area along the sweep that is curved. This short 
piece of chain would divide the sweep, creating two smaller openings. 
The pieces of chain would be no more than 14 inches (35.5 cm), and in 
many cases, the segments are likely to be much less than 14 inches 
(35.5 cm). As described in the EA (NMFS 2008) for the final rule (73 FR 
18984, April 8, 2008) requiring the use of chain-mat modified dredge 
gear, a 15-ft (4.57-m) dredge with frame, bag, and club stick weighs 
approximately 4500 pounds (2041 kg). The weight of the chain mat was 
estimated to be between 67 pounds (30.1 kg) for a 10-ft (3.05-m) dredge 
and 176 pounds (79.8 kg) for a 15-ft (4.57-m) dredge (NMFS 2008). In 
the economic analysis for the 2008 regulations, a conservative estimate 
(20 percent) of the additional chain required to comply with the 14-
inch (35.5-cm) requirement was used. Therefore, it is likely that the 
costs of these additional small segments were subsumed in that 
analysis. However, some additional information on the amount of chain 
required to divide these openings is provided here. The estimated cost 
for the chain was $2.00 to $3.00 per foot. Therefore, given that the 
additional chain required is only a short segment added to a limited 
number of openings, it is expected that the economic costs would be 
minimal. This amount of chain is also not expected to affect the weight 
of the gear or its efficiency.
    The proposed action would not result in any additional costs, and, 
under this action, the vessel would not incur the costs associated with 
adding small lengths of additional chain to ensure that the sweep 
segments do not exceed 14 inches (35.5 cm). Therefore, the differences 
in cost between a chain mat configured under the current requirements 
and one configured as proposed here are minimal. This action would not 
affect the profitability of the vessel. As this action is not expected 
to result in any additional costs or to affect the profitability of the 
vessel, it will not contribute to cumulative economic impacts.
    With the exception of the rare cases described in the preamble, the 
size of the openings along the sweep will be smaller (even if the 
length of the side created by the sweep exceeds 14 inches (35.5 cm)) 
than the size of the openings created by a square with 14 inches (35.5 
cm) per side, the maximum opening allowed throughout the chain mat. 
Therefore, the proposed action would only result in inconsequential 
impacts on the conservation benefit of the chain mats (see preamble). 
In addition, the clarification as to the configuration of the gear and 
the additional definitions would not result in any socio-economic 
impacts.

Literature Cited

    DuPaul, W.D., D.B. Rudders, and R.J. Smolowitz. 2004a. Industry 
trials of a modified sea scallop dredge to minimize the catch of sea 
turtles. Final Report. November 2004. VIMS Marine Resources Report, No. 
2004-12. 35 pp.
    NMFS (National Marine Fisheries Service). 2008. Final Environmental 
Assessment and Regulatory Impact Review/Regulatory Flexibility Act 
Analysis of Sea Turtle Conservation Measures for the Atlantic Sea 
Scallop Dredge Fishery. 152 pp.

    Dated: April 29, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

List of Subjects in 50 CFR Parts 222 and 223

    Endangered and threatened species.

    For the reasons set forth in the preamble, 50 CFR parts 222 and 223 
are proposed to be 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 Sec.  222.102, the definition of ``Diamonds'' and ``Sweep'' 
are added in alphabetical order to read as follows:

[[Page 20670]]

Sec.  222.102  Definitions.

* * * * *
    Diamonds, with respect to dredge or dredge gear as defined in this 
section, means the triangular shaped portions of the ring bag on the 
``dredge bottom'' as defined in 50 CFR 648.2.
* * * * *
    Sweep, with respect to dredge or dredge gear as defined in this 
section, means a chain extending, usually in an arc, from one end of 
the dredge frame to the other to which the ring bag, including the 
diamonds, is attached. The sweep forms the edge of the opening of the 
dredge bag.
* * * * *

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    3. 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).

    4. In Sec.  223.206, paragraph (d)(11)(i) 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, that enters 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 (``up-and-down'') chains that are 
configured such that the openings formed by the intersecting chains 
have no more than 4 sides. The vertical and horizontal chains must be 
hung to cover the opening of the dredge bag such that the vertical 
chains extend from the back of the cutting bar to the sweep. The 
horizontal chains must intersect the vertical chains such that the 
length of each side of the openings formed by the intersecting chains 
is less than or equal to 14 inches (35.5 cm) with the exception of the 
side of any individual opening created by the sweep. 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.
* * * * *
[FR Doc. E9-10311 Filed 4-30-09; 4:15 pm]
BILLING CODE 3510-22-P