Endangered and Threatened Wildlife; Sea Turtle Conservation, 30660-30666 [05-10670]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 102 (Friday, May 27, 2005)]
[Proposed Rules]
[Pages 30660-30666]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10670]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 050315074-5074-01; I.D. 022405B]
RIN 0648-AS92


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: NMFS proposes to require sea turtle conservation measures for 
all sea scallop dredge vessels fishing in the mid-Atlantic from May 1 
through November 30 each year. The proposed rule would require all 
vessels with a sea scallop dredge and which are required to have a 
Federal Atlantic sea scallop fishery permit, regardless of dredge size 
or vessel permit category, to modify their dredge(s) when fishing south 
of 41[deg] 9.0' N. latitude, from the shoreline to the outer boundary 
of the Exclusive Economic Zone. Any incidental take of threatened sea 
turtles in sea scallop dredge gear in compliance with this proposed 
gear modification requirement and other applicable requirements would 
be exempted from the prohibition against takes. This action is 
necessary to help reduce the take of sea turtles in scallop dredge gear 
and conserve loggerhead sea turtles, listed as threatened under the 
Endangered Species Act (ESA).

DATES: Comments on the proposed rule must be received by 5 p.m. EST on 
June 27, 2005.

ADDRESSES: Written comments on this action may be submitted on this 
proposed rule, identified by RIN 0648-AS92, by any one of the following 
methods:
    (1) NMFS/Northeast Region Website: https://www.nero.noaa.gov/nero/
regs/com.html. Follow the instructions on the website for submitting 
comments.
    (2) E-mail: scallopchainmat@noaa.gov Please include the RIN 0648-
AS92 in the subject line of the message.
    (3) Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instruction on the website for submitting comments.
    (4) Mail: Mary A. Colligan, Assistant Regional Administrator for 
Protected Resources, NMFS, Northeast Region, One Blackburn Drive, 
Gloucester, MA 01930, ATTN: Sea Turtle Conservation Measures, Proposed 
Rule
    (5) Facsimile (fax): 978-281-9394, ATTN: Sea Turtle Conservation 
Measures, Proposed Rule
    Copies of the Draft Environmental Assessment/Regulatory Impact 
Review and documents cited in the proposed rule can be obtained from 
https://www.nero.noaa.gov/nero/regs/com.html listed under the Electronic 
Access portion of this document or by writing to 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) or Barbara Schroeder (ph. 301-713-1401, fax 301-713-
0376).

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.
    Under the ESA and its implementing regulations, taking sea turtles 
under NMFS' jurisdiction, even incidentally, is prohibited, with 
exceptions identified in 50 CFR 223.206. The incidental take of 
endangered species may only legally be exempted by an incidental take 
statement or an incidental take permit issued pursuant to section 7 or 
10 of the ESA, respectively. Existing sea turtle conservation 
regulations at 50 CFR 223.206(d) exempt fishing activities and 
scientific research from the prohibition on takes of threatened sea 
turtles under certain conditions. This proposed rule would add an 
additional requirement with which vessels with sea scallop dredge gear 
must comply in order to have any incidental takes of threatened sea 
turtles exempted from the prohibition on takes.
    The incidental take and mortality of sea turtles as a result of 
scallop dredging has been documented in the mid-Atlantic. Based on the 
available information, NMFS has determined that the use of a dredge 
modified with a chain mat would sharply reduce the capture of sea 
turtles in the dredge itself, as well as any ensuing injuries and 
mortalities that occur as a result of being caught in the dredge (e.g. 
drowning, crushing in the dredge bag, crushing on deck, etc.; note: sea 
turtles may still interact with modified gear. See Interaction of 
dredge gear with sea turtles). This proposed action, taken under the 
authority in Section 4(d) of the ESA, is necessary to provide for the 
conservation of sea turtles.

Sea Turtle Bycatch in the Sea Scallop Dredge Fishery

    Based on the Northeast Fisheries Science Center (NEFSC) Observer 
Program data, a total of 62 observed sea turtle takes were attributed 
to the Atlantic sea scallop dredge fishery during normal fishery 
operations from March 1, 1996 through October 31, 2004. ``Observed'' or 
``observed take'' means seen and documented by a NMFS-approved 
observer. Of these, 43 were identified as loggerheads; the remaining 
animals were hard-shelled sea turtles that could not be positively 
identified. Four of the sea turtles were fresh dead upon retrieval or 
died on the vessel, 1 was alive but required resuscitation, 25 were 
alive but injured, 20 were alive with no apparent injuries, and 12 were 
listed as alive but condition unknown because the observer did not have 
sufficient opportunity to examine the turtle.
    In 2004, the NEFSC completed an assessment of sea turtle bycatch in 
the 2003 scallop dredge fishery in the mid-Atlantic (Long Island, New 
York to Cape Hatteras, North Carolina). Total estimated bycatch of sea 
turtles in this fishery from June 1 through November 30, 2003 was 749 
animals (C.V. = 0.28).
    A Biological Opinion on the Atlantic sea scallop Fishery Management 
Plan (FMP), issued on December 15, 2004, anticipates the take of up to 
749 loggerhead sea turtles annually as a result of the continued 
operation of the scallop dredge fishery with up to 479 of these takes 
resulting in injuries that would lead to death or an inability of the 
turtle to reproduce.

Impacts of Sea Scallop Dredging

    The only species positively identified by the NEFSC Observer 
Program to have been captured in sea scallop dredge gear is the 
loggerhead sea turtle; however, hardshell turtles were caught and not

[[Page 30661]]

identified by species. NMFS believes these unidentified sea turtles are 
not likely to be Kemp's ridley and green sea turtles which are expected 
to occur predominantly in inshore waters (i.e., bays and estuaries, and 
other coastal waters) where the scallop dredge fishery does not operate 
(Lutcavage and Musick 1985; Keinath et al. 1987; Morreale and Standora 
1993; Spotila 1998). In addition, while western Atlantic green turtles 
range from Massachusetts to Argentina, including the Gulf of Mexico and 
Caribbean, they are considered less abundant north of Cape Hatteras. 
Hawksbill sea turtles are uncommon in waters of the continental United 
States. There have been accounts of hawksbill sea turtles in south 
Florida and Texas and small hawksbill sea turtles have stranded as far 
north as Cape Cod, Massachusetts. However, many of these strandings 
were observed after hurricanes or offshore storms. No takes of 
hawksbill sea turtles have been recorded in the northeast or mid-
Atlantic fisheries covered by the NEFSC Observer Program. Given the 
information on sea turtle distribution in comparison to the 
distribution of scallop dredge effort within the mid-Atlantic and given 
observer identification of sea turtles captured in scallop dredge gear, 
NMFS considers it unlikely that Kemp's ridley, green, or hawksbill sea 
turtles will be captured in sea scallop dredges. As described above, 
the incidental take and mortality of loggerhead sea turtles in the sea 
scallop dredge fishery has been documented, and the potential for takes 
of loggerhead sea turtles exists when their distribution overlaps with 
the distribution of effort in the scallop dredge fishery.
    There are at least five western Atlantic loggerhead subpopulations. 
The south Florida nesting group is the largest known loggerhead nesting 
assemblage in the Atlantic and one of only two loggerhead nesting 
assemblages worldwide that have greater than 10,000 females nesting per 
year. The northern subpopulation is the second largest loggerhead 
nesting assemblage within the United States. The remaining three 
subpopulations (the Dry Tortugas, Florida Panhandle, and Yucatan) are 
much smaller subpopulations with nest counts ranging from roughly 100 - 
1,000 nests per year. To date, analysis of nesting data from the Index 
Nesting Beach Survey Program indicates that there is no discernable 
trend in abundance for the south Florida, northern or Florida Panhandle 
subpopulations. No conclusions can be made from nesting data on the Dry 
Tortugas and Yucatan nesting subpopulations at this time.
    Cohorts from each of the subpopulations are expected to occur in 
the action area. Genetic analysis of samples collected from benthic 
immature loggerhead sea turtles captured in pound nets in the Pamlico-
Albemarle Estuarine Complex in North Carolina from September-December 
of 1995-1997 indicated that cohorts from all five western Atlantic 
subpopulations were present (Bass et al. 2004). In a separate study, 
genetic analysis of samples collected from loggerhead sea turtles from 
Massachusetts to Florida found that all five western Atlantic 
loggerhead subpopulations were represented (Bowen et al. 2004). Bass et 
al. (2004) found that 80 percent of the juveniles and sub-adults 
utilizing the foraging habitat originated from the south Florida 
nesting population, 12 percent from the northern subpopulation, 6 
percent from the Yucatan subpopulation, and 2 percent from other 
rookeries. Tissue samples for genetic analysis have been collected from 
loggerhead sea turtles captured in the scallop dredge fishery. However, 
the results of the testing are still pending.
    The distribution of loggerhead sea turtles overlaps seasonally with 
the distribution of scallop fishing effort from the southern boundary 
of the management area from approximately the North Carolina/South 
Carolina border to Cape Cod, Massachusetts. Hard-shelled turtles have 
been injured and killed as a result of being captured in sea scallop 
dredge gear. Of the 62 turtles observed taken in the scallop dredge 
fishery, excluding the experimental fishery, 43 were positively 
identified as loggerhead sea turtles. The remaining animals were hard-
shelled turtles that could not be positively identified. All loggerhead 
sea turtles are still listed as threatened under the ESA as populations 
have not yet recovered. Reducing sea turtle mortality will help 
subpopulations to recover. NMFS must protect and conserve loggerhead 
sea turtle populations under the ESA.

Experimental Testing of Modified Dredge

    In response to the increase in observed takes, NMFS worked with the 
scallop fishing industry and Virginia Institute of Marine Science to 
investigate the use of a modified sea scallop dredge to keep sea 
turtles from being captured in the dredge bag. The modified dredge uses 
a chain mat configuration consisting of evenly spaced ``tickler'' 
(horizontal) and ``vertical'' (up and down) chains hung forward of the 
sweep, between the cutting bar and the sweep. This is a modified rock 
chain arrangement constructed of lighter, but stronger chain (DuPaul et 
al. 2004a).
    Preliminary trials of the chain mat gear were conducted in 2002, 
and an experimental fishery to test the gear was conducted from July 
17, 2003 - October 9, 2004. Trained observers were not present during 
the preliminary trials. During the preliminary trials, side-by-side 
testing of the gear was performed; in each tow, only one of the 
vessel's two dredges was modified with the chain mat. In these 
preliminary trials, there were two interactions with sea turtles. 
DuPaul et al. (2004a) reported that one turtle was taken in the 
unmodified dredge and the other turtle was ``hanging onto the chain 
mat'' and subsequently swam away. No further information on the two 
takes was available.
    Twelve different vessels participated in the 2003-2004 field 
evaluations of the chain mats. In each tow, the vessels fished with two 
sea scallop dredges, one unmodified on one side of the vessel and the 
other modified with the chain mat on the other side of the vessel. The 
trials were performed with dredges measuring between 11 and 15 ft (3.35 
- 4.57 m) wide. For 14 ft (4.27 m) and 15 ft (4.57 m) dredges, 11 
vertical and 6 horizontal chains were used; for smaller dredges, 9 
verticals were used (DuPaul et al. 2004a). Evenly spaced on a normal 
sweep arrangement, this should give about a 12-inch (30.5-cm) to 13-
inch (33.0-cm) square pattern.
    In total, side-by-side testing was conducted on 22 fishing trips, 
encompassing 277 fishing days and 3,248 tows (of which 2,823 tows were 
observed). A total of eight turtle interactions occurred (six of which 
were observed), all with the unmodified scallop dredge. Of the eight 
sea turtles caught, three were alive with no apparent injuries, three 
were alive released with injuries, one was killed when the dredge frame 
fell on the turtle, and one was killed prior to coming aboard. The six 
observed interactions were with loggerhead sea turtles. One of the 
unobserved interactions was reported by the fisherman as a loggerhead 
sea turtle. The second unobserved interaction was reported by the 
fisherman as a leatherback. NEFSC's general protocol for confirmation 
of at-sea species identification requires that the species be 
considered as unknown unless either the observer is experienced in sea 
turtle identification and has confidence in the identification, or the 
observer is inexperienced and has provided supporting information (i.e. 
photos, tissue samples). For both of

[[Page 30662]]

these unobserved takes, NMFS is considering the species identification 
to be ``unknown turtle spp.'' As far as NMFS is aware, the fishermen 
reporting the take of the leatherback and the take of the loggerhead 
have not been trained nor are they experienced in identifying sea 
turtle species. No supporting materials, such as photos or tissue 
samples, have been provided. Therefore, based on the confirmation 
protocol for at-sea species identification, NMFS considers the species 
identification of these takes to be ``unknown turtle spp.''
    With respect to the catch of sea scallops, the modified chain mat 
dredge caught 6.71 percent less scallops than the unmodified dredge 
(DuPaul et al. 2004a). DuPaul et al. (2004a) concluded that the chain 
mats can be effective in eliminating the incidence of sea turtle 
bycatch in the dredge without substantial reductions in the harvest of 
sea scallops.

Petition Request for Chain Mat Configuration

    On June 17, 2004, NMFS received a petition from the Fisheries 
Survival Fund and the Garden State Seafood Association requesting that 
NMFS promulgate an emergency rule pursuant to the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) that 
would require scallop dredges to be modified with additional chains as 
in the experimental fishery and scallop trawls to be modified by 
installation of a Turtle Excluder Device when fishing south of Long 
Island, New York and north of Cape Hatteras, North Carolina during the 
period May 1 - October 15 each year. On July 7, 2004, NMFS published a 
Notice of Receipt of the petition in the Federal Register and invited 
public comment for 30 days (69 FR 40850). NMFS published a response to 
the petition in the Federal Register on November 2, 2004 (69 FR 63498), 
announcing that it would not undertake an emergency rulemaking as 
requested by the petitioners because the circumstances outlined in the 
Petition did not justify an immediate need for a Magnuson-Stevens Act 
emergency rule and that the Magnuson-Stevens Act is not the appropriate 
authority for adequately addressing the incidental capture of sea 
turtles in scallop fishing gear (69 FR 63498). However, as described in 
the Notice of Decision on Petition for Emergency Rulemaking, NMFS 
indicated it would conduct rulemaking under the authority of the ESA to 
enact measures to address incidental sea turtle takes in the Atlantic 
sea scallop fishery (69 FR 63498).

Interaction of Dredge Gear with Sea Turtles

    Risks to sea turtles from capture in dredge gear include forced 
submergence and injury. Sea turtles forcibly submerged in any type of 
restrictive gear would eventually suffer fatal consequences from 
prolonged anoxia and/or seawater infiltration of the lung (Lutcavage et 
al. 1997). Sea turtles caught in scallop dredge gear often suffer 
injuries. The most commonly observed injury is damage to the carapace. 
The causes of these injuries are unknown, but the most likely appear to 
be from being struck by the dredge (during a tow or upon emptying of 
the dredge bag), 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. 
Under typical fishing operations, the dredge is hauled to the surface, 
lifted above the deck of the vessel and emptied by turning the bag 
over. Under such conditions, a turtle caught in the bag would fall many 
feet to the deck of the vessel and could suffer cracks to the carapace 
as a result of the fall. After the bag is dumped, the dredge frame is 
often dropped on top of it with the cutting bar, located on the bottom 
aft part of the frame, also constituting a crushing weight. Thus, 
dumping of the catch and the sudden lowering of the gear onto the deck 
are actions during which turtles could be injured. As the modified 
dredge will reduce the likelihood of sea turtle capture in the dredge 
bag, carapace injuries sustained while the turtle is in the dredge or 
brought on board the vessel will be reduced with use of the chain mat 
configuration. Additionally, the possibility that sea turtles will be 
forcibly submerged due to capture in the dredge bag will be sharply 
reduced.
    The NEFSC estimated, in the 2003 fishing year, there were 749 sea 
turtles taken in the mid-Atlantic sea scallop fishery. According to the 
December 15, 2004 biological opinion, the agency anticipates that up to 
749 sea turtles will be taken each year without the chain mat 
configuration in place, and up to 479 of these (approximately 64 
percent) are expected to sustain injuries leading to death or failure 
to reproduce. With the chain mat installed over the opening of the 
dredge bag, it is reasonable to assume that up to 749 sea turtles will 
come into contact with the chain mat (at least). Data do not exist on 
the percentage of sea turtles interacting with the chain mat-modified 
gear that will be unharmed, sustain minor injuries, or sustain serious 
injuries that will result in death or failure to reproduce. However, 
there are several assumptions that can be made to help estimate the 
degree of interaction. The first assumption is that sea turtles likely 
interact with scallop dredge gear both on the sea floor as the gear is 
being fished and in the water column as the gear is hauled back to the 
vessel. This is a reasonable assumption, because sea turtles have been 
observed in the area in which scallop gear operates and they have been 
seen near scallop vessels when they are fishing or hauling gear. In 
addition, sea turtles generally are known to forage and rest on the sea 
floor as part of their normal behavior.
    The second assumption relates to the apportionment of the 
seriousness of the interaction between sea turtles and the modified 
gear. For this, we start with the assumption that up to 749 sea turtles 
will still interact with the chain mat-modified gear, and the estimate 
that up to 479 sea turtles will be seriously injured/killed and 270 
will be unharmed/slightly injured without the chain mat. There are two 
scenarios in which sea turtles may sustain serious injuries that lead 
to death or the failure to reproduce interactions on the sea floor or 
interactions in the water column.
    With the chain mat in place, it is reasonable to assume that the 
sea turtles on the sea floor would still interact with the gear, but 
that the nature of the interaction would be different. NMFS assumes 
that some portion of the 479 seriously injured sea turtles are taken on 
the bottom. The precise number, however, cannot be quantified. As the 
dredge is fished on the bottom, sea turtles may be passed over with the 
dredge frame and cutting bar, which weigh thousands of pounds. Without 
the chain mat modification, the sea turtle may be swept into the dredge 
bag, forcibly submerged for the remainder of the tow, and will be at 
risk of further injury due to being tumbled around or hit by debris 
inside the bag or being crushed when the catch is dumped on the 
vessel's deck. With the modified gear, the sea turtles may still be hit 
by the leading edge of the frame and cutting bar and would likely be 
forced down to the sea floor rather then swept into the dredge bag. 
Since the turtles are not swept into the bag, they would be run over by 
the aft portion of the dredge including the bag which constitutes a 
crushing weight. As a result, sea turtles on the bottom that interact 
with the modified dredge would probably fare just as poorly as those 
that interact with the unmodified dredge. Given the nature of the 
bottom interaction without the chain mat, it is reasonable to assume 
that the same portion of the 479 sea turtles interacting with the gear 
on the

[[Page 30663]]

bottom would still experience serious injuries that lead to mortality 
or failure to reproduce with the chain mat in place as without it.
    NMFS assumes that the remaining portion of the 479 seriously 
injured sea turtles are taken in the water column. Again, the precise 
number cannot be quantified. Any injuries due to an interaction in the 
water column during haul back with the chain mat-modified gear are 
likely to be non-serious. The chain mat would prevent serious injuries, 
since the turtles would not be able to get into the dredge bag; 
therefore, they would not be dumped on the deck from height or crushed 
by falling gear. Once off the bottom, the gear is hauled back through 
the water column at a slow speed (1 to 4 miles per hour (1.6-6.5 km/
hr)), so NMFS assumes that any turtle hitting the chain mat in the 
water column would not be hit with great force and would likely be able 
to swim away without serious injury. During the preliminary trials of 
the chain mat configuration, one turtle was observed ``hanging onto'' 
the chain mat, perhaps held by water pressure, and subsequently 
swimming away. NMFS has no indication that this interaction, or this 
type of interaction, would result in serious injury. NMFS' assumption 
about this type of interaction is that the animal is being held against 
the gear by water pressure as the gear moves through the water during 
haul back. The vessel often continues to move forward as the gear is 
hauled. Once the gear stops moving and the pressure is relieved, the 
animal would be able to swim away without serious injury. Therefore, 
NMFS assumes that the portion of the 479 sea turtles taken in the water 
column are unlikely to be seriously injured. NMFS also assumes that the 
270 unharmed/slightly injured sea turtles are taken in the water column 
and that serious injury to these turtles caused by the chain mat is 
unlikely for the reasons listed above.
    In summary, the chain mat can logically be assumed to prevent 
serious injury leading to death or failure to reproduce caused by the 
dumping of turtles on the vessel's deck and crushing them by the 
falling gear following an interaction in the water column interaction. 
The chain mat would also prevent serious injuries from dumping/crushing 
on deck of sea turtles following an interaction on the sea floor. 
However, we have made the conservative assumption that a turtle in a 
bottom interaction sustains serious injuries on the bottom, so, under 
this conservative assumption, there would not be a benefit from the 
chain mat for bottom interactions. This assumption, however, may be too 
conservative in that it is possible that turtles in a bottom 
interaction only receive minor injuries.
    NMFS recognizes that the specific nature of the interaction between 
sea turtles and sea scallop dredge gear remains unknown, as sea turtles 
could be taken when the dredge is fished on the bottom or during haul 
back and NMFS cannot conclude that the modified dredge eliminates 
interactions with sea turtles. The chain mat sharply reduces the 
capture of sea turtles in the dredge bag and, therefore, sharply 
reduces drowning and serious injuries that result from such capture. 
NMFS does not know how sea scallop dredge gear (with or without the 
modification) may interact with sea turtles on the ocean bottom. DuPaul 
et al. (2004a) report that sea turtles have been hauled up on top of 
the gear, either on the frame or near the twine top. Many were seen to 
swim away when the gear reached the vessel. Sea turtles may have been 
prevented from escaping by either being wedged in the forward parts of 
the dredge frame or held by the flow of water against the dredge. These 
interactions would occur regardless of whether the dredge is modified 
with the proposed chain mat or not. Further testing is necessary to 
determine what effects the entire gear, including the chain mat 
modification, has on sea turtles, aside from the positive effect of the 
chain mat of reducing injury or mortality of sea turtles by keeping 
them out of the dredge bag. Video work is being conducted to provide 
more information on the interactions between sea turtles and sea 
scallop dredge gear in the water. This action does not preclude NMFS 
from taking further regulatory action as new information becomes 
available.

Modification of Sea Scallop Dredge Gear

    To conserve sea turtles, NMFS proposes that all vessels required to 
have a Federal Atlantic sea scallop fishery permit and using Atlantic 
sea scallop dredge gear, regardless of dredge size or vessel permit 
category, be required to modify their dredge(s) when fishing south of 
41[deg] 9.0' N. lat., from the shoreline to the outer boundary of the 
Exclusive Economic Zone, from May 1 through November 30 each year. All 
dredges used for fishing must be modified with evenly spaced 
``tickler'' (horizontal) chains and ``vertical'' (up-and-down) chains 
in the following configuration, which is dependent on the size of the 
dredge frame width. Dredges with a frame width of greater than 13 ft 
(3.96 m) would be required to use 11 vertical and 6 tickler chains; 
dredges with a frame width of 11 to 13 ft (3.35 to 3.96 m) would be 
required to use 9 vertical and 5 tickler chains; dredges with a frame 
width of 10 ft (3.05 m) to less than 11 ft (3.35 m) would be required 
to use 7 vertical and 4 tickler chains; and dredges with a frame width 
of less than 10 ft (3.05 m) would be required to use 5 vertical and 3 
tickler chains. If a vessel elects to use a different configuration, 
the length of each side of the squares formed by the chain must be less 
than or equal to 14 inches (35.5 cm).
    Interactions have been observed in the sea scallop fishery from New 
Jersey south through the Virginia/North Carolina border from late June 
to late October and the potential for interactions exists during May 
and November due to the overlap in distribution of loggerhead sea 
turtles and dredge fishing effort in the southern range of the fishery 
(Shoop and Kenney 1992; Braun-McNeill and Epperly 2004). Implementation 
of the proposed gear restrictions from May through November is expected 
to increase protection of sea turtles. The scallop management area 
defined in the FMP consists of the resource throughout its range in 
waters under the jurisdiction of the U.S. NMFS does not anticipate any 
fishing south of Cape Hatteras, North Carolina due to a lack of scallop 
resources. Thus, the timing of these proposed measures are based on 
Cape Hatteras as the lower boundary. Should scallop fishing occur south 
of this boundary or if observer records indicate interactions north of 
Long Island, New York, NMFS may reconsider the timing and area of the 
conservation measures.

Spatial Extent of the Proposed Action

    As described above the proposed rule would require the use of the 
chain mat on sea scallop dredge vessels when fishing south of 41[deg] 
9.0' N. latitude, from the shoreline to the outer boundary of the EEZ. 
While NMFS is proposing using the 200-nautical mile limit of the EEZ as 
the eastern boundary for the gear modification, NMFS is considering 
replacing the eastern EEZ boundary with a north-south (longitudinal) 
line so as to separate the Mid-Atlantic sea scallop fishing area from 
the Southern New England sea scallop fishing area. NMFS is considering 
an eastern boundary at 70[deg] 20' W. long. (the western edge of the 
Nantucket Lightship Closed Area) as well as any options proposed during 
the public comment period. NMFS has analyzed the physical, biological, 
and socio-economic impacts that this proposed rule would have based on 
the outer boundary of the EEZ as the eastern boundary. If the EEZ

[[Page 30664]]

boundary is replaced with this longitudinal line, the geographic area 
in which the chain mat configuration would be required would be smaller 
than the area of the proposed action. Any impacts to habitat or the 
physical environment resulting from the modification are expected to be 
less than the impacts of the proposed action as a smaller geographic 
area would impacted. The proposed action is not considered to have a 
significant economic impact on the industry. Economic impacts are 
likely to be reduced even further if the EEZ boundary is replaced with 
a longitudinal line to the west of that boundary as fewer vessels are 
likely to be required to use the chain mat configuration. The benefit 
to the sea turtle population is not expected to change if the EEZ 
boundary is replaced with this longitudinal line as sea turtles are not 
expected to interact with sea scallop dredge gear in the southern New 
England sea scallop fishing area. Although hard-shelled sea turtles do 
occur seasonally in New England waters (roughly June-October) turtles 
are generally observed in inshore waters (i.e., bays and estuaries) 
where the scallop fishery does not operate. Relatively high levels of 
observer coverage (22 percent - 51 percent) occurred in portions of the 
Georges Bank Multispecies Closed Areas that were conditionally opened 
to scallop fishing in the 1999 and 2000 scallop fishing years. Despite 
this high level of observer coverage and operation of scallop dredge 
vessels in the area during June - October, no sea turtles were observed 
captured in scallop dredge gear. In general, replacing the EEZ boundary 
with the proposed longitudinal line will result in the same benefit to 
sea turtles as the proposed action, while impacts to the physical 
environment and habitat, as well as social and economic effects, are 
likely to be reduced.

Classification

    The proposed rule has been determined to be significant by the 
Office of Management and Budget for the purposes of Executive Order 
12866.
    NMFS has prepared an initial regulatory flexibility analysis that 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained in the 
beginning of this section in the preamble and in the SUMMARY section of 
the preamble. No reporting, record keeping, or other compliance 
requirements are proposed. A summary of the analysis follows:
    The fishery affected by this proposed rule is the mid-Atlantic sea 
scallop dredge fishery. The proposed action requires all vessels, 
regardless of dredge size or vessel permit category, to modify their 
dredge gear from May 1 through November 30 when fishing south of 
41[deg] 9.0' N. lat., from the shoreline to outer boundary of the 
Exclusive Economic Zone. The proposed gear modification is fairly 
inexpensive (between $177.37 and $778.44 per vessel). Therefore, NMFS 
assumes that a vessel will convert their gear and continue fishing in 
the area. According to Vessel Trip Report (VTR) Data for 2003, 314 
vessels fished in the mid-Atlantic from May 1 through November 30. Of 
these, 277 were limited access vessels and 37 were general category 
vessels. In 2003, the 314 affected vessels earned approximately 221.4 
million dollars in revenues using a total of 40,888 days at sea. The 
277 limited access vessels earned approximately 98 percent of the total 
industry revenues and 95 percent of the industry revenues were earned 
using scallop dredge gear. On average, limited access vessels earned 
between $441,800 and $895,100 per year and general category vessels 
earned between $46,700 and $162,000 per year.
    Using the materials recommended in DuPaul et al. (2004a) and 
average costs for labor, the cost for modifying a scallop dredge ranges 
from a $177.37 for a dredge less than 10 ft (3.05 m) to $389.22 for a 
dredge greater than 13 ft (3.96 m). The second cost to the industry is 
the loss of catch with the modified dredge. During the 2003-2004 field 
trials, the modified dredge caught, on average, 6.71 percent less 
scallops than the unmodified dredge (DuPaul et al. 2004a). This is 
slightly less than the loss of 6.76 percent reported in the draft final 
report on the experiment (DuPaul et al. 2004b). The economic analysis 
assumed a loss of 6.76 percent. If fishermen do not increase their 
effort to offset this loss, they will experience a reduction in 
revenues. Assuming that the fishermen do not minimize this loss by 
increasing effort, revenue for a limited access vessel may be reduced 
between a low of $18,800 to a high of $38,700; while revenue for a 
general category vessel may be reduced between $1,300 and $5,600. The 
total impact of the cost to modify the gear and loss of revenue due to 
reduction in catch may reduce a vessel's annual revenues on average 
between 3 percent and 7.8 percent.
    Of the 314 affected vessels, 193 vessels may have their revenues 
reduced by 5 percent or less, 116 vessels may have their revenues 
reduced between 5 and 10 percent, and 5 vessels may have their revenues 
reduced by greater than 10 percent. Of the 121 vessels that may have 
revenue reductions exceeding 5 percent, 27, 29, 29, and 22 of the 
vessels are registered to the state of Massachusetts, New Jersey, 
Virginia, and North Carolina, respectively. Annual industry revenues 
would be reduced by 4.3 percent (=$9.6 million/$221.4 million).
    Five alternatives were evaluated: (1) The preferred alternative 
(PA) is to require the chain mat modification on all vessels with a 
Federal Atlantic sea scallop fishery permit and a sea scallop dredge, 
regardless of dredge size or vessel permit category, when fishing south 
of 41[deg] 9.0' N latitude, from the shoreline to the outer boundary of 
the EEZ from May 1 through November 30 each year ; (2) non-preferred 
alternative 1 (NPA 1) is exactly the same as the PA; however, the gear 
modifications are only required from May 1 through October 15; (3) non-
preferred alternative 2 (NPA 2) is exactly the same as the PA; however, 
the gear modification is only required for vessels that have dredge 
frames greater than 11 ft (3.35 m) wide; (4) non-preferred alternative 
3 (NPA 3) prohibits the use of all sea scallop dredge gear south of 
41[deg] 9.0' N. lat. from May 1 through November 30; and (5) the no-
action alternative. All business entities participating in the sea 
scallop dredge fisheries are considered small business entities. Under 
the no action alternative, fishing practices would not be restricted or 
modified; therefore, there is no economic impact on the individual or 
industry. The reduction in annual revenues per vessel is expected to 
range from 3.0 to 7.8 percent for the PA, 3.0 to 7.6 percent for NPA 1, 
4.4 to 4.5 percent for NPA 2 and 31.8 to 65.2 percent for NPA 3. NPA 3 
has the greatest economic impact and all 314 affected vessels can 
expect revenue reductions greater than 5 percent. The PA has the next 
lowest economic impact (121 vessels with annual revenue reductions 
greater than 5 percent), followed by NPA 1 (54 vessels), and NPA 2 with 
the lowest economic impact (35 vessels). The PA, NPA 1, and NPA 2 could 
be considered to have similar economic impacts since the differential 
is so small. Under the PA, 314 vessels are affected and industry 
revenues are reduced by 4.3 percent. Under NPA 1 and NPA 3, 314 vessels 
are affected, and industry revenues are reduced by 3.7 percent and 63.6 
percent, respectively. Under NPA 2, 234 vessels are affected and 
industry revenues are reduced by 3.9 percent. In summary, NPA 3 has the

[[Page 30665]]

highest cost to the industry, the PA ranks second in industry cost, and 
NPA 1 and NPA 2 rank third and fourth, respectively, in industry cost.

Literature Cited

    Bass, A. L., S. P. Epperly, and J. Braun-McNeill. 2004 Multi-year 
analysis of stock composition of a loggerhead sea turtle (Caretta 
caretta) foraging habitat using maximum likelihood and Bayesian 
methods. Conservation Genetics. 5:783-796.
    Braun-McNeill, J. and S. P. Epperly. 2004. Spatial and temporal 
distribution of sea turtles in the western North Atlantic and the U.S. 
Gulf of Mexico from Marine Recreational Statistic Survey (MRFSS). 
Marine Fisheries Review. 64(4)50-56.
    Bowen, B. W., A. L. Bass, S. Chow, M. Bostrom, K. A. Bjorndal, A. 
B. Bolten, T. Okuyama, B. M. Bolker, S. P. Epperly, E. LaCasella, D. 
Shaver, M. Dodd, S. R. Hopkins-Murphy, J. A. Musick, M. Swingle, K. 
Rankin-Baransky, W. Teas, W. N. Witzell, and P. H. Dutton. 2004. Natal 
homing in juvenile loggerhead turtles (Caretta caretta). Molecular 
Ecology. 13:3797-3808.
    DuPaul, W. D. 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.
    DuPaul, W. D. 2004b .Industry trials of a modified sea scallop 
dredge to minimize the catch of sea turtles. Draft Final Report. August 
2004. Contract Number POEA 133F-03-SE-0235. 11 pp.
    Epperly, S. P. and J. Braun-McNeill. 2002. The use of AVHRR imagery 
and the management of sea turtles interactions in the mid-Atlantic 
bight. NMFS Southeast Fisheries Science Center. Unpublished.
    Keinath, J. A., J. A. Musick, and R. A. Byles. 1987. Aspects of the 
biology of Virginia's sea turtles: 1979-1986. Virginia J. Sci. 38(4): 
329-336.
    Lutcavage, M. E. and J. A. Musick. 1985. Aspects of the biology of 
sea turtles in Virginia. Copeia. 2:449-456.
    Lutcavage, M.E., P. Plotkin, B. Witherington, and P.L. Lutz. 1997. 
Human impacts on sea turtle survival. In P.L. Lutz and J.A. Musick 
(eds). The Biology of Sea Turtles, CRC Press, Boca Raton, Florida. pp 
387-409.
    Morreale, S. J. and E. A. Standora. 1998. Early life stage ecology 
of sea turtles in northeastern U.S. waters. U.S. Dep. Commer. NOAA 
Tech. Mem. NMFS-SEFSC-413. 49 pp.
    Murray, K. T. 2004. Bycatch of sea turtles in the mid-Atlantic sea 
scallop (Placopecten magellanicus) dredge fishery during 2003. 2nd ed. 
U.S. Dep Commer., Northeast Fisheries Science Center Reference Document 
04-11. Northeast Fisheries Science Center. Woods Hole, MA. 25 pp.
    Shoop, C.R. and R.D. Kenney. 1992. Seasonal distributions and 
abundance of loggerhead and leatherback sea turtles in waters of the 
northeastern United States. Herpetol. Monogr. 6: 43-67.
    Spotila, J.R., P.T. Plotkin, and J.A. Keinath. 1998 In water 
population survey of sea turtles in Delaware Bay. Unpublished Report. 
Final report to National Marine Fisheries Service, Office of Protected 
Resources for work conducted under contract number 43AANF600211 and 
NMFS permit number 1007 by Drexel University, Philadelphia, PA. 21 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: May 23, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set forth in the preamble, 50 CFR part 222 is 
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 ``Chain mat'' and ``Dredge 
or dredge gear'' are added in alphabetical order to read as follows:


Sec.  222.102  Definitions.

* * * * *
    Chain mat means 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.
* * * * *
    Dredge or dredge gear, with respect to the fishery operating under 
the Atlantic Sea Scallop Fishery Management Plan, means gear consisting 
of a mouth frame attached to a holding bag constructed of metal rings, 
or any other modification to this design, that can be or is used in the 
harvest of scallops.
* * * * *
    For the reasons set forth in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:
    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).
    2. In Sec.  223.205, paragraph (b)(16) is redesignated as (b)(17); 
paragraph (b)(15) is revised and new paragraph (b)(16) is added to read 
as follows:


Sec.  223.205  Sea turtles.

* * * * *
    (b) * * *
    (15) Fail to comply with the restrictions set forth in Sec.  
223.206(d)(10) regarding pound net leaders;
    (16) Fail to comply with the restrictions set forth in Sec.  
223.206(d)(11) regarding sea scallop dredges; or
* * * * *
    3. In Sec.  223.206, paragraph (d) introductory text is revised and 
paragraph (d)(11) is added to read as follows:


Sec.  223.206  Exemptions to prohibitions relating to sea turtles.

* * * * *
    (d) Exception for incidental taking. The prohibitions against 
taking in Sec.  223.205(a) do not apply to the incidental take of any 
member of a threatened species of sea turtle (i.e., a take not directed 
towards such member) during fishing or scientific research activities, 
to the extent that those involved are in compliance with all applicable 
requirements of paragraphs (d)(1) through (d)(11) of this section, or 
in compliance with the terms and conditions of an incidental take 
permit issued pursuant to paragraph (a)(2) of this section.
* * * * *
    (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 which is 
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 
described as follows. The chain mat must be composed of ``tickler'' 
(horizontal) chains and ``vertical'' chains that are evenly spaced and 
configured in the following manner

[[Page 30666]]

dependent on the dredge width: Dredges with a frame width of greater 
than 13 ft (3.96 m) must use 11 vertical and 6 tickler chains; dredges 
with a frame width of 11 ft to 13 ft (3.35-3.96 m) must use 9 vertical 
and 5 tickler chains; dredges with a frame width of 10 ft (3.05 m) to 
less than 11 ft (3.35 m) must use 7 vertical and 4 tickler chains; 
dredges with a frame width of less than 10 ft must use 5 vertical and 3 
tickler chains. The tickler and vertical chains must be connected to 
each other with a shackle or link at the intersection point. If a 
vessel elects to use a different configuration, the length of each side 
of the square or rectangle formed by the intersecting chains must be 
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) must have the chain mat configuration installed 
on all dredges for the duration of the trip.
[FR Doc. 05-10670 Filed 5-26-05; 8:45 am]
BILLING CODE 3510-22-S