[Federal Register Volume 74, Number 176 (Monday, September 14, 2009)]
[Rules and Regulations]
[Pages 46930-46933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22039]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 0809121212-91160-02]
RIN 0648-AX20


Endangered and Threatened Wildlife; Sea Turtle Conservation

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

ACTION: Final rule.

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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. NMFS issues this final rule to make minor modifications to these 
chain-mat requirements. This final rule clarifies where on the dredge 
the chain mat must be hung, excludes 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 adds 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.

DATES: Effective October 14, 2009.

ADDRESSES: Copies of the Supplement to the Environmental Assessment/
Regulatory Impact Review prepared for this final rule may be obtained 
by writing to Ellen Keane, NMFS, Northeast Region, 55 Great Republic 
Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:  Ellen Keane (ph. 978-282-8476, fax 
978-281-9394, email [email protected]).

[[Page 46931]]


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. Due to the inability to 
distinguish between these populations of green turtles away from the 
nesting beach, NMFS considers green sea turtles endangered wherever 
they occur in U.S. waters. 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' 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 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 
opening 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). Additional information on the background, affected 
environment, and environmental consequences of this action is included 
in the preamble to the proposed rule (74 FR 20667, May 5, 2009) and in 
the Supplement to the Environmental Assessment (NMFS 2009).
    This action is being taken under the ESA provisions authorizing the 
issuance of regulations to conserve threatened species and for 
enforcement purposes (sections 4(d) and 11(f), respectively). This 
final rule modifies the existing chain mat regulations that apply to 
chain-mat modified dredges in the Atlantic sea scallop fishery to: (1) 
more clearly define where on the dredge gear the chain mat must be 
hung; (2) exclude the sweep from the requirement that the each side of 
the opening 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.
    Specifically, the chain-mat regulations now require 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 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. The action does 
not change the requirement that any vessel that enters the waters 
described above 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 (50 CFR 223.206 
(d)(11)(ii)) or the transiting provision (50 CFR 223.206 (d)(11)(iii).

Comments and Responses

    On May 5, 2009, NMFS published a proposed rule which would clarify 
where on the dredge the chain mat should be hung, exclude the sweep 
from the requirement that each side of the opening in the chain mat be 
less than or equal to 14 inches (35.5 cm), and add definitions of the 
sweep and diamonds (74 FR 20667). Comments on this proposed rule were 
requested through June 4, 2009. Four comment letters from individuals 
or organizations were received during the public comment period. One 
comment letter was related to the Hawaii shallow set longline fishery, 
and another letter was related to overfishing. These two comment 
letters are not relevant to the proposed action and are not discussed 
further. One commenter was generally supportive of the action but 
provided comments on particular aspects of the rule. One commenter 
expressed neither support for nor opposition to the action. A complete 
summary of the comments/issues raised in the relevant comment letters 
and NMFS' responses, grouped according to general subject matter in no 
particular order, is provided here.
    Comment 1: The commenter supports the refinements. While the 
proposed changes stating that the chain mat must cover the entire 
opening of the dredge bag provide more clarity, the exclusion of the 
sweep from the 14-inch (35.5-cm) requirement is a significant 
improvement that helps insure the configuration of the chain mat more 
closely resembles the design that Fisheries Survival Fund developed and 
tested.
    Response: The information available on the size and identification 
of sea turtles encountered in this fishery and the gear tested during 
the experimental fishery supports the 14-inch (35.5-cm) requirement. As 
described in the Supplement to the Environmental Assessment and the 
proposed rule (74 FR 20667, May 5, 2009), excluding the sweep from the 
14-inch (35.5-cm) requirement will only have an inconsequential impact 
on the degree to which the modified gear provides protection to sea 
turtles. This change will result in only one slightly larger opening on 
a subset of dredges used in the fishery, and this increase in size of 
the opening is small due to the way the gear is configured. For these 
reasons, this action excludes the sweep from the 14-inch (35.5-cm) 
requirement.
    Comment 2: Applying the 14-inch (35.5-cm) requirement to the sides 
of

[[Page 46932]]

the squares (or triangles) formed by the sweep would mean that the 
other squares in the mat would have to be significantly smaller than 
14-inches (35.5-cm) per side because the sweep hangs in an arc. The 
commenter claims that the chain mat design, as tested, had openings 
with sides that exceeded 14 inches (35.5 cm) and yet the test results 
showed that the device was highly effective in protecting sea turtles 
by preventing them from entering the dredge bag. For this reason, the 
commenter agrees that the new rule ``would result in inconsequential 
impacts on the conservation benefit of the chain mats.''
    Response: As described in the Supplement to the EA and the proposed 
rule (74 FR 20667, May 5, 2009), NMFS identified two alternate ways to 
configure the gear to comply with the 14-inch requirement throughout 
the chain mat, including the sweep. One of these would result in 
smaller openings (approximately 9-10 inches (22.9 25.4 cm) per side) 
throughout the chain mat. It was never the intention that the 
requirement result in openings in the chain mat of 9-10 inches (22.9- 
25.4 cm) per side. The second way fishermen could comply with the 14-
inch requirement including the sweep would be to add a small piece of 
chain to any opening where the sweep side measured more than 14 inches, 
dividing the sweep and creating two smaller openings. The number of 
openings that would require modification with a small piece of chain 
would be limited to that area along the sweep that is curved.
    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 in 2008. Only a single 
photograph of one 11-ft dredge was analyzed. The analysis showed that 
the lengths of the sides of the openings on the image analyzed were 
both greater than and less than 14 inches (35.5 cm) and that 14 inches 
(35.5 cm) was within the range of openings tested in the experimental 
fishery. Based on this information, NMFS re-evaluated the chain mat 
requirements and found that the available information continues to 
support an opening of 14 inches (35.5 cm) or less and that the 
conclusions of the analysis conducted for the April 2008 rule are still 
valid.
    The proposed rule describes the reasons why excluding the sweep 
from the 14-inch requirement would only result in inconsequential 
impacts on the conservation benefits of the chain mats. In general, 
there may only be one slightly larger opening on a subset of dredges 
used in the fishery and the increase in the size of that opening is 
small due to the way the gear is configured. Therefore, the 
conservation benefits to sea turtles are essentially the same. It is 
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 present on some dredges.
    Comment 3: The commenter requests that NMFS consider that any 
vessel leaving a mid-Atlantic port for a Georges Bank access area trip 
would have to install the chains to transit the regulated area, 
uninstall them at sea to fish, and then reinstall them for the return 
voyage. The commenter claims that the alleged lack of a transit 
provision an exemption for vessels embarking on a declared access area 
trip outside the regulated area serves no purpose. All vessels have a 
Vessel Monitoring System (VMS), and it would be an easy matter to know 
if vessels were fishing in the mid-Atlantic. Enforcement officials 
would be able to confirm that the vessel was declared into an access 
program.
    Response: The current chain-mat regulations have a transiting 
provision, allowing transiting vessels to be exempted from the 
requirements provided the dredge gear is stowed and there are no 
scallops on-board. A vessel leaving a port in the mid-Atlantic would 
not need to install the gear while transiting to the fishing grounds 
provided it met those conditions of the transiting provision. As a 
consequence of this provision, vessels fishing north of the line would 
need to either land the catch north of the line or install chain mats 
before transiting back through the regulated area with scallops on-
board.
    It is possible to determine if the vessel has declared into an 
access area. However, the northern boundary of the chain-mat regulation 
divides the Closed Area I (CAI) and Closed Area II (CAII) Scallop 
Access Areas. Therefore, vessels fishing in CAI or CAII may or may not 
be within the regulated area. The VMS regulations require scallop 
vessels to be responsible for position reports ``at least twice per 
hour.'' Although speed and vessel tracklines might indicate fishing 
activity, half-hour polls alone do not provide a full picture of where 
the vessel was between polls. Therefore, increased polling would be 
necessary to determine where the vessel was fishing. At this time, 
increased polling is not possible because the current technology 
provided by the VMS vendors does not support changing the reporting 
rate by fishery declaration. Before a vessel starts a trip, it must 
declare whether the trip will be general category or limited access and 
the area in which it will fish. The vendors do not have the capacity to 
sort through the declarations and target polling intervals accordingly. 
In addition, it is more enforceable during an at-sea boarding to have 
the requirement that the chain-mat gear be installed as the boarding 
officer would not need to make the determination whether the vessel is 
or recently has been fishing or is only transiting. For these reasons, 
NMFS is not modifying the transiting provision with this action.
    Comment 4: There are no objectionable vessel safety or enforcement 
concerns with the proposed rule.
    Response: NMFS concurs with this comment.

Changes From the Proposed Rule

    No changes have been made from the proposed rule (74 FR 20667, May 
5, 2009).

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this rule would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis is not required and none has been prepared.

Literature Cited

    DuPaul, W. D., D. B. Rudders, and R. J. Smolowitz. 2004. 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. NOAA, NMFS Northeast Regional Office. 
Gloucester, MA. 152 pp.
    NMFS (National Marine Fisheries Service). 2009. Final Supplement to 
the Environmental Assessment/Finding of No Significant Impact and 
Regulatory Impact Review for Sea Turtle Conservation Measures for the 
Atlantic Sea Scallop Dredge Fishery. NOAA, NMFS Northeast Regional 
Office. Gloucester, MA. 26 pp.

[[Page 46933]]

List of Subjects in 50 CFR Parts 222 and 223

    Endangered and threatened species.

    Dated: September 8, 2009.
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 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 definition of ``Diamonds'' and ``Sweep'' are 
added in alphabetical order to read as follows:


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

0
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).


0
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.

* * * * *
    (d) * * *
    (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. E9-22039 Filed 9-11-09; 8:45 am]
BILLING CODE 3510-22-S