Endangered and Threatened Wildlife; Sea Turtle Conservation, 63537-63546 [E7-22073]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 217 (Friday, November 9, 2007)]
[Proposed Rules]
[Pages 63537-63546]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-22073]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 071030628-7631-01]
RIN 0648-AV84


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.

-----------------------------------------------------------------------

SUMMARY: In 2006, the National Marine Fisheries Service (NMFS) issued 
regulations requiring the use of chain mat modified dredges in the 
Atlantic sea scallop fishery south of 41[deg] 9.0' North latitude from 
May 1 through November

[[Page 63538]]

30 each year. The existing requirements resulted from two final rules: 
one issued in August 2006 after prior public notice and opportunity for 
comment (August 25, 2006); and an emergency rule issued in November 
2006 for which prior notice and opportunity for comment was waived for 
good cause (November 15, 2006). These actions were necessary to help 
reduce mortality and injury to endangered and threatened sea turtles 
captured in scallop dredge gear and to conserve sea turtles listed 
under the Endangered Species Act (ESA). This action re-proposes the 
chain mat requirements, with some modifications. This proposed action 
would clarify the regulatory text regarding the chain-mat modified 
gear, add a transiting provision, and address a procedural error 
regarding the timing of the signing of the National Environmental 
Policy Act (NEPA) document during the issuance of the August 2006 final 
rule. Any incidental take of threatened sea turtles in 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: Comments on the proposed rule must be received by 5 p.m. EST on 
December 10, 2007.

ADDRESSES: Written comments on this action, identified by RIN 0648-
AV84, may be submitted by any one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking portal at https://
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, One Blackburn Drive, 
Gloucester, MA 01930, ATTN: Sea Turtle Conservation Measures, Proposed 
Rule.
    Copies of the Draft Environmental Assessment/Regulatory Impact 
Review 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, email ellen.keane@noaa.gov) or Barbara Schroeder (ph. 
301-713-2322, fax 301-427-2522, email barbara.schroeder@noaa.gov).

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' jurisdiction, even incidentally, is prohibited, with 
exceptions identified in 50 CFR 223.206. The term ``take'' means to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect or to attempt to engage in such conduct. 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. The incidental take, both lethal and 
non-lethal, of loggerhead and unidentified hard-shelled sea turtles as 
a result of scallop dredging has been observed in the sea scallop 
dredge fishery (Northeast Fisheries Science Center (NEFSC) Fisheries 
Sampling Branch (FSB), Observer Database). In addition, non-lethal 
takes of a green and a Kemp's ridley sea turtle have 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., 2004a).
    This rule is being proposed under the ESA provisions authorizing 
the issuance of regulations to conserve threatened species and for 
enforcement purposes (sections 4 and 11, respectively). This rule re-
proposes the existing chain mat regulations, with some modifications 
that apply to dredges in the Atlantic sea scallop fishery. The proposed 
rule, if implemented, would (1) clarify the requirements related to the 
use of chain mats in the Atlantic sea scallop dredge fishery, (2) add a 
transiting provision, and (3) address a procedural error in the August 
2006 rulemaking (71 FR 50361, August 25, 2006) that required the use of 
chain mats in the Atlantic sea scallop dredge fishery. In addition, 
NMFS is seeking public comment on the decision not to include in this 
proposed rule the configuration option for the chain-mat modified gear 
that was removed from the existing regulations by the November 2006 
emergency action (71 FR 66466, November 15, 2006).

Sea Turtle Bycatch in the Sea Scallop Dredge Fishery

    Sea turtles have been observed taken in the Atlantic sea scallop 
dredge fishery. ``Observed'' or ``observed take'' means seen and 
documented by a NMFS approved observer while on-watch. The majority of 
the takes have occurred in the mid-Atlantic; while one take occurred on 
southern Georges Bank. During 1996 through June 2007, 62 takes were 
observed in the sea scallop dredge fishery while an observer was on-
watch (excluding the experimental fishery described later): 1 each in 
1996, 1997, and 1999; 11 in 2001; 17 in 2002; 22 in 2003; 8 in 2004; 
and 1 in 2006 (NEFSC FSB, Observer Database). In addition, during this 
period, 14 sea turtles were reported taken while the observer was off-
watch (when an observer is on the vessel but not on duty) or on an 
unobserved haul (when an observer is on duty but unable to collect all 
information on a haul) (NEFSC, FSB, Observer Database), 2 turtles, 
neither observed, were reported during the preliminary testing of the 
chain-mat modified gear, and 8 turtles, 6 of which were observed, were 
captured during the course of the experimental fishery to test the 
chain-mat modified gear (DuPaul et al., 2004a). Of the 62 observed 
takes, 44 were identified as loggerhead sea turtles, 1 was identified 
as a green sea turtle, and the remaining animals were hard-shelled sea 
turtles that could not be positively identified (NEFSC FSB, Observer 
Database). A single take of a Kemp's ridley sea turtle was documented 
in this fishery during an off-watch haul in 2005 (NEFSC, FSB, Observer 
Database) and an unconfirmed take of a leatherback sea turtle was 
reported during the experimental fishery (DuPaul et al., 2004a). Of the 
62 turtles, 4 were fresh dead upon retrieval or died on the vessel, 1 
was alive but required resuscitation, 26 were alive but injured, 19 
were alive with no apparent injuries, and 12 were listed as alive but 
condition unknown.
    The NEFSC has completed an assessment of sea turtle bycatch in the 
Atlantic sea scallop dredge fishery in the mid-Atlantic for fishing 
years (FY) 2003, 2004, and 2005. The estimated total bycatch of 
loggerhead sea turtles in this fishery was 749 (C.V. = 0.28) in

[[Page 63539]]

FY2003 (Murray, 2004a), 180 (C.V. = 0.37) in FY2004 (Murray, 2005), and 
0 in FY2005 (Murray, 2007). It should be noted that although no turtles 
were estimated to have been captured in sea scallop dredge gear in 
FY2005, there were three interactions documented by observers who were 
off-watch at the time of the take. One turtle was identified as a 
Kemp's ridley; two were identified as loggerheads. The species was 
confirmed for all three interactions. As the observer was off-watch at 
the time of the takes, there was insufficient data associated with 
these events to allow the interactions to be used in the estimation of 
total turtle bycatch in the fishery (Murray, 2007). Although the 
estimate provided by the NEFSC is 0, NMFS recognizes that the actual 
take of sea turtles in the 2005 fishing year was greater.
    The NEFSC has attempted to identify a variable for predicting sea 
turtle bycatch in the dredge component of the scallop fishery (Murray, 
2004a, 2004b, 2005). Using a modeling approach, sea surface temperature 
(SST), depth, time-of-day, and tow time were identified as variables 
affecting observed bycatch rates of sea turtles with scallop dredge 
gear (Murray, 2004a, 2004b, 2005). However, the variable(s) associated 
with the highest bycatch rates changed from one year to another (e.g., 
SST, depth) or could not be further analyzed (e.g., time-of-day and tow 
time) because the information is not collected for the entire fishery 
(Murray, 2004a, 2004b, 2005). Therefore, a set of variables has not yet 
been found for forecasting sea turtle bycatch with scallop dredge gear.
    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 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 gear. 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 may fall many feet to the deck 
of the vessel and could suffer cracks to the carapace or other injuries 
as a result of the fall. After the bag is dumped, the dredge frame is 
often dropped on top of it. Thus, dumping the catch and lowering the 
gear onto deck are actions during which turtles could be injured. 
Additional information on sea turtle bycatch in the Atlantic sea 
scallop dredge fishery can be found in the draft Environmental 
Assessment for this action.

Experimental Fishery to Test the Modified Gear

    In response to information on the take of sea turtles in the sea 
scallop dredge fishery, NMFS worked with the scallop fishing industry 
and the Virginia Institute of Marine Science to investigate the use of 
a modified sea scallop dredge to keep sea turtles out of the dredge 
bag. The modified dredge has a chain mat hung over the opening of the 
bag, preventing sea turtles from entering the bag itself, and injuries 
that result from such capture. An experimental fishery to test the 
chain mat gear was conducted from July 17, 2003 October 9, 2004 (DuPaul 
et al., 2004a), with preliminary trials conducted from October 2002 
through January 2003 (letter from Dr. W. DuPaul to M. Colligan, August 
21, 2007). During the preliminary trials, two turtles were reported 
captured. DuPaul et al. (2004a) reported that one turtle was taken in 
the unmodified dredge; the other turtle was reported on the chain mat, 
subsequently swimming away as the gear was hauled.
    The experimental fishery to test the chain mat configuration was 
conducted on 11-foot (3.35-m), 14-foot (4.27-m), and 15-foot (4.57-m) 
dredges. The final report on the experimental fishery (DuPaul et al., 
2004a) and the draft Environmental Assessment for this action provide 
additional detail. During field trials of the chain mats, eight turtles 
(six of which were observed) were captured in the unmodified dredge; no 
turtles were captured in the modified dredge equipped with a chain mat. 
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 was reported by the fisherman as a 
leatherback sea turtle. The principal investigators did interview the 
captain and determined, based on the captain's description of the 
turtle, that it was likely the turtle was a leatherback. Thus, the 
turtle was reported as such in the final report on the experiment 
(DuPaul et al., 2004a).
    With respect to the catch of sea scallops, the dredge modified with 
the chain mat caught 6.71 percent less scallops than the unmodified 
dredge (DuPaul et al., 2004). The study shows that the chain mats can 
be effective in preventing the capture of sea turtles in the dredge bag 
without substantial reductions in the harvest of sea scallops.

Requirements for the Chain-mat Modified Dredge

    On August 25, 2006, NMFS issued a final rule to require the use of 
chain-mat modified dredges in the Atlantic sea scallop fishery south of 
41[deg] 9.0' N. latitude from May 1 through November 30 each year (71 
FR 50361). The chain mat regulation became effective on September 25, 
2006. The specific purpose of requiring the use of a chain mat is to 
keep sea turtles from being captured inside the dredge bag and to 
prevent the injury and mortality associated with such capture. As 
described previously, sea turtles captured in the dredge bag may suffer 
injury or mortality due to being struck by the dredge upon emptying the 
dredge bag, crushed by debris (e.g., large rocks) that collects in the 
dredge bag, or as a result of a fall while fishermen empty the bag.
    The August 2006 final rule included two options for configuring the 
gear. The first option specified a number of chains by dredge width. 
The second option required that each side of the opening created by the 
intersecting chains be 14 inches (35.5 cm) or less. Shortly after the 
rule's effective date, NMFS became aware of a discrepancy between the 
two options for configuring the chain mat in the August 2006 final 
rule. NMFS believed that both configurations would create a chain mat 
with openings of 14 inches (35.5 cm) or less per side. However, NMFS 
discovered that was not the case, and the configuration specifying a 
number of chains by dredge width resulted in some openings greater than 
14 inches (35.5 cm); therefore, NMFS proceeded with rulemaking to 
correct the discrepancy to ensure that sea turtles are protected to the 
extent intended by the August 2006 final rule. On November 15, 2006, 
NMFS published an emergency rule that removed the option that allowed 
the gear to be configured by dredge width (71 FR 66466). The emergency 
rule, which is currently in place and does not have an expiration date, 
requires Atlantic sea scallop dredge vessels to configure the chains 
such that the length of each side of the squares or rectangles formed 
by the chain is less than or equal to 14 inches (35.5 cm).

Re-proposal of the Chain Mat Requirements

    The proposed chain mat requirement is based on the results of the 
experimental fishery and is independently supported by

[[Page 63540]]

information gathered by observers on sea scallop vessels that captured 
turtles. As described previously, the experimental fishery showed that 
the chain mat prevents sea turtles from entering the dredge bag while 
not substantially affecting the catch of sea scallops. The spacing of 
the chains based on dredge width included in the August 2006 final rule 
was intended to be based on an experimental fishery to test the chain 
mat gear. In total, a series of 22 experimental cruises were carried 
out on commercial vessels using 11-foot (3.35-m), 14-foot (4.27-m), and 
15-ft (4.57-m) dredges. During the experimental fishery, 9 vertical 
chains were used for the 11-ft (3.35-m) dredge and 11 vertical and 6 
horizontal chains were used for the 14-foot (4.27-m) and 15-ft (4.57-m) 
dredges (DuPaul et al., 2004a). The report does not explicitly state 
the number of horizontal chains used on the 11-ft (3.35-m) dredge, but 
the researchers have stated that 5 or 6 chains were used. As indicated 
in the final report, the number of chains in and of itself is not what 
drove the configuration tested. Rather it was the target size of the 
openings that drove the number of chains to be used, and thus, the 
overall configuration. The openings were designed to prevent sea 
turtles of greater than 24 inches (60.96 cm) in length from entering 
the dredge bag (DuPaul et al., 2004a). Even though the size of the 
openings created by the intersecting chains used in the experimental 
fishery was not included in the final report on the experiment, 
information was provided that supports the 14 inch (35.5 cm) maximum 
opening. During the pilot study in 2002, the chain mat was rigged so 
that a grid of 12-inch (30.5 cm) squares was formed (DuPaul and 
Smolowitz, 2003). A placard, produced by Fisheries Survival Fund and 
Virginia Sea Grant, was included in the final report on the experiment 
to provide a full description and picture of the gear. The placard 
states that the number of chains used during the experimental fishery, 
spaced evenly on a normal sweep arrangement, should result in 
approximately a 12- to 13-inch (30.5 to 33 cm) square pattern. The 
experimental fishery showed that the use of a chain mat with the size 
openings used in the experiment prevented sea turtles from entering the 
dredge bag and incurring injuries from such capture.
    The requirement that the openings in the chain mat be 14 inches 
(35.5 cm) or less will reduce the severity of sea turtle-gear 
interactions given the size of sea turtles observed taken in the 
fishery. Fisheries observers collect information on the length and 
width of sea turtles observed taken. When it is not possible to collect 
measurements, the length and width can be estimated by the observer. 
For example, a turtle observed taken in 2004 in the sea scallop dredge 
fishery was estimated by the observer to be 170 cm (66.9 in) in length. 
The precision and accuracy of these estimated values is not known and 
may vary between observers. Therefore, only turtles for which measured 
values are available will be described here. Loggerhead sea turtles 
observed captured ranged in length from 62.2 107 cm (24.5 42.1 in) from 
notch to tip (curved carapace length (CCL)) (NEFSC FSB, Observer 
Database). When converted to straight carapace length (SCL) based on 
the formula for loggerheads provided in Teas (1993), the size range of 
the loggerhead sea turtles observed captured in the fishery is 57.5-100 
cm (22.6 39.4 in) SCL (NMFS, 2006). Loggerhead sea turtles observed 
captured in the scallop dredge fishery ranged in carapace width 
(curved) from 45.0 to 99 cm (17.7 - 39 in; NEFSC, FSB, Observer 
Database). When converted to straight carapace width based on the 
formula from Coles (1999), the width of loggerheads observed captured 
in this fishery ranged from 37.9-78.1 cm (14.9-30.7 in).
    The only Kemp's ridley sea turtle observed captured in scallop 
dredge gear to date measured 24.3 cm (9.6 in) from notch to tip (curved 
carapace length; NMFS, 2006) and 26.0 cm (10.2 in) curved carapace 
width (NEFSC FSB, Observer Database). Using the formula for Kemp's 
ridley sea turtles provided in Teas (1993), this is a straight carapace 
length of 23 cm (9.1 in; NMFS, 2006). When converted to straight 
carapace width based on the formula from Coles (1999), this is a 
straight width of 22.1 cm (8.7 in).
    The single green sea turtle observed captured in scallop dredge 
gear was estimated by the observer to be about 70 cm (27.6 in) in 
length (NMFS, 2006). Given that only one green and one Kemp's ridley 
sea turtle were observed in the scallop dredge fishery from 1996 to 
2005, it is likely that interactions with these species are relatively 
unique events on an individual haul basis (NMFS, 2006). Based on the 
experimental fishery and the size and identification of sea turtles 
captured by the scallop fishery, chain mats with openings measuring 
equal to or less than 14 inches (35.5 cm) per side will prevent most 
sea turtles from entering the dredge bag and injury and mortality 
resulting from such capture.
    The chain-mat modification is an important step following the chain 
mat experiments in the process to reduce sea turtle bycatch and the 
effects of that bycatch in the Atlantic sea scallop fishery. The NEFSC 
estimated that, in the 2003-fishing year, there were 749 sea turtles 
taken in the mid-Atlantic sea scallop fishery (Murray, 2004a). In the 
September 2006 Biological Opinion, NMFS anticipated that up to 749 
loggerhead sea turtles will be captured each year and up to 479 of 
these (approximately 64 percent) will result in serious injury (as 
defined in the NMFS Northeast Region ``Serious Injury Determinations 
for Sea Turtles Taken in Scallop Dredge Gear - Working Guidance'') or 
mortality (NMFS, 2006). The September 2006 Biological Opinion 
recognized that the use of the chain mats on scallop dredges will (1) 
reduce the likelihood that turtles that encounter the gear on the 
bottom will enter the dredge bag and be at further risk of injury or 
death, and (2) reduce the likelihood that turtles that encounter the 
gear in the water column will enter the dredge bag and be subsequently 
injured or killed. For these reasons, NMFS believes that the serious 
injury and mortality rate of sea turtles interacting with scallop 
dredge gear will be less than that calculated for the Biological 
Opinion since fewer turtles will be subject to injuries occurring 
within the dredge bag or as a result of dumping the dredge bag on deck 
(NMFS, 2006). However, the reduction in mortality rate can not be 
quantified.
    With the chain mat installed over the opening to the dredge bag, it 
is reasonable to assume that sea turtles that would otherwise enter the 
dredge bag will come into contact with the chain mat (at least) and be 
prevented from entering the dredge bag. Installing a chain mat over the 
opening of the dredge bag will not increase takes in this fishery and 
is expected to reduce capture in the bag and associated subsequent 
injury and mortality. 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 
would 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

[[Page 63541]]

generally are known to forage and rest on the sea floor as part of 
their normal behavior. The condition of sea turtles observed taken in 
the sea scallop dredge fishery ranges from alive with no apparent 
injuries to alive and injured to fresh dead. NMFS believes that 
interactions between sea turtles and sea scallop dredge gear that occur 
on the bottom are likely to result in serious injury to the sea turtle. 
Based on this assumption, NMFS believes that the unharmed/slightly 
injured turtles observed captured in the sea scallop dredge bag follow 
an interaction with sea scallop dredge gear in the water column.
    The second assumption relates to the apportionment of the 
seriousness of the interaction between sea turtles and the modified 
gear. Taking one of two extremes, one could assume all of the sea 
turtles that would come in contact with the modified gear and the chain 
mat (up to 749) would be unharmed. However, this assumption is not 
reasonable given that, in the case of a bottom interaction, the frame 
and cutting bar may pass over any sea turtles on the bottom, and the 
sea turtles would still be run over by the dredge bag since entry into 
the dredge bag would be prevented by the chain mat. A standard 15 ft 
(4.57 m) dredge frame weighs about 2500 lbs (1134 kg); the dredge bag 
with chains and club stick weighs another 2000 lbs (907 kg). Variations 
in materials may affect this weight by approximately plus or minus 15 
percent (Henry Milliken, NEFSC, pers. comm.). A sea turtle being run 
over by the gear would bear a significant amount of weight. At the 
other extreme, one could assume that all of the sea turtles that would 
come into contact with the modified gear and with the chain mat (up to 
749) would sustain serious injuries leading to death or failure to 
reproduce. This assumption is also unreasonable, given that some of the 
interactions are likely in the water column during haul back (or 
possibly during setting the gear). The haul back speed when the dredge 
is moving across the bottom ranges from 4 to 7 miles per hour. (6.4 to 
11.3 km per hour). Once the dredge is off bottom and traveling up to 
the surface, the speed ranges from 1 to 4 miles per hour (1.6 to 6.4 km 
per hour). As the gear is hauled through the water column, all turtles 
hitting the chain mat in this situation probably are not going to 
sustain serious injury leading to death or failure to reproduce because 
of the slow speed during haul back.
    The proper apportionment of the seriousness of interactions between 
sea turtles and the modified gear falls in between these two extremes. 
To arrive at a reasonable apportionment, we start with the assumption 
that interactions with scallop gear occur both on the bottom and in the 
water column, 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 failure to reproduce interactions on the sea floor or 
interactions in the water column.
    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 could be 
swept into the dredge bag, forcibly submerged for the remainder of the 
tow, and 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. Tows are often close to or over one hour in length, 
a duration known to cause physiological stress that may lead to 
drowning. While the mid-Atlantic scalloping areas consist more of sand 
substrates than New England's rougher bottom, gravel or larger rocks do 
enter the dredge bag even in the mid-Atlantic and may strike any 
turtles caught inside. Finally, as the dredge bag is hauled out of the 
water, it is suspended at a significant height above the deck and then 
its contents, including any turtles, are dumped on the vessel's deck. 
The gear is often dropped on the pile. Any sea turtles caught in the 
bag may be crushed by the contents of the bag as it is dumped or by the 
gear as it is dropped on top of the pile. Given the nature of the 
interaction on the bottom and during the tow once a turtle is caught in 
the bag, a conservative assumption is that no turtles taken from the 
sea floor are only seriously injured after they have entered the dredge 
bag. Therefore, a portion of the 479 sea turtles are conservatively 
assumed to sustain serious injuries leading to death or failure to 
reproduce due to bottom interactions with unmodified gear.
    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. 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. The dredge rides on the 
sea floor on shoes, which are part of the frame. The cutting bar, a 
thin steel edge, rides off the bottom from just above the sea floor to 
approximately 8 inches (20.3 cm). Since the turtles are not swept into 
the bag, they would be run over by the dredge bag and club stick. The 
dredge bag constitutes a substantial weight. Sea turtles that interact 
on the sea floor with the chain-mat modified dredge would probably fare 
just as poorly as those that interact with the unmodified dredge due to 
the substantial weight of the dredge frame and bag. Given the nature of 
the bottom interaction without the chain mat, NMFS believes that the 
same portion of the 479 sea turtles would still experience serious 
injuries that lead to mortality or failure to reproduce with the chain 
mat in place as without it.
    In 2005 and 2006, NMFS worked with industry to test a dredge with a 
modified cutting bar and bail designed to minimize impacts to turtles 
that may be encountered on the bottom (NMFS, 2005; Milliken et al., 
2007). Dredges used in the experiments were equipped with the chain mat 
configuration, although the purpose of the trials was not to test the 
chain mats. The project used turtle carcasses and model turtles to 
simulate a worse case scenario of a dredge overtaking a sea turtle 
lying motionless on the bottom. During the 2005 study, the turtle 
carcasses were observed lodged in front of the cutting bar and pushed 
along, eventually going under the cutting bar and getting caught on the 
chain mat. During the study in 2006, no carcasses were observed going 
under the cutting bar (Milliken et al., 2007) and, therefore, no 
carcasses interacted with the chain mat. It is important to note that 
the project was limited in that behavioral responses of a live turtle 
encountering a dredge could not be assessed.
    Any injuries to sea turtles taken in the water column are likely to 
be non-serious because sea turtles would hit the chain mat in the water 
column during haul back. Once off the bottom, the gear is hauled back 
through the water column at a slow speed (1 4 miles per hour (1.6 to 
6.4 km per hour)). 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. During the preliminary trials of the chain main configuration, 
one of the turtles was observed ``hanging onto'' to the chain mat, 
perhaps held by water pressure, and subsequently swimming away. NMFS 
has no indication that this type of interaction would result in serious 
injury. NMFS believes that in this type of interaction the animal is 
being held against the gear by water pressure as the gear moves through 
the

[[Page 63542]]

water. Once, the gear stops moving and the pressure is relieved, the 
animal would be able to swim away. Some of the 479 seriously injured 
sea turtles probably obtained those injuries after being caught in the 
water column by unmodified gear, because the turtle were captured in 
the dredge bag. The chain mat would prevent these serious injuries, 
since the turtles would not be able to get into the dredge bag and, 
therefore, would not be crushed by debris in the bag, dumped on the 
deck from height, or crushed by falling gear.
    We also assume that the 270 unharmed/slightly injured sea turtles 
are taken in the water column. These turtles would come into contact 
with the chain mat and would either swim away unharmed or with injuries 
that are not likely to result in death or failure to reproduce. The 
gear is hauled back to the vessel at a slow speed, so any turtle 
hitting the chain mat would not be hit with great force and would 
likely be able to swim away. Based on this analysis, some of the 270 
interactions would result in contact with the chain mat, but this 
contact is not likely to result in serious injury.
    To summarize, NMFS believes the chain mat will prevent serious 
injury leading to death or failure to reproduce caused by crushing from 
debris in the dredge bag, dumping of turtles on the vessel's deck, and 
crushing them by the falling gear following an interaction in the water 
column. The chain mat would also prevent serious injuries from debris 
in the dredge bag or dumping/crushing on deck of sea turtles following 
an interaction on the sea floor. However, NMFS has 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 (although not likely) that bottom interactions cause 
only minor injuries. In the unlikely scenario of a turtle receiving 
only minor injuries following a bottom interaction, the chain mat 
modification would prevent additional injuries, that may be serious, 
resulting from capture in the dredge bag (i.e., injuries from debris in 
the bag, drowning from forced submergence, dropping on deck, or 
crushing by the dredge).

Clarification to the Regulatory Language

    The existing regulations require that any vessel with a sea scallop 
dredge and required to have an Atlantic sea scallop fishery permit, 
present in waters south of 41[deg] 9.0' North latitude from May 1 
through November 30, have each dredge configured with a chain mat. The 
chain mat must be composed of horizontal and vertical chains that are 
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) (50 CFR 223.206(d)(11)(i)). In addition, any vessel that 
harvests sea scallops in or from the waters described and 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)). NMFS is proposing three clarifications to 
this regulatory language.
    First, NMFS is proposing to change the language in Sec.  
223.206(d)(11)(ii) that states ``...such that each side of the square 
or rectangle formed by the intersecting chains is less than or equal to 
14 inches (35.5 cm).'' The openings formed by the horizontal and 
vertical chains and the sweep may, in some cases, result in openings 
with three sides rather than four. To clarify that all sides of the 
openings, regardless of whether the opening is three- or four-sided, 
must be less than or equal to 14 inches (35.5 cm), NMFS would modify 
this text to read ``...such that the openings formed by the 
intersecting chains have no more than 4 sides. The length of each side 
of the openings created by the intersecting chains, including the 
sweep, must be less than or equal to 14 inches (35.5 cm).''
    Second, NMFS proposes to change the text in Sec.  
223.206(d)(11)(ii) that reads, ``Any vessel that harvests sea scallops 
in or from the waters...'' to read, ``Any vessel that enters the 
waters....'' This revision would clarify that once a vessel has entered 
the waters described, it must comply with the requirement to have the 
chain mat affixed to the dredge for the duration of the trip regardless 
of whether the vessel is still in those waters. Third, NMFS would also 
revise the text in paragraph (d)(11)(i) that reads, ``...any 
vessel...present in waters...'' to ``...any vessel...that enters 
waters...'' This change would be made so that this subparagraph uses 
the same terminology as Sec.  223.206(d)(11)(ii). The regulations apply 
to all vessels required to have a Federal Atlantic sea scallop fishery 
permit and with sea scallop dredge gear entering waters south of 
41[deg] 9.0' N. latitude from May 1 through November 30 each year.

Transiting Provision

    This action, if implemented, would add a transiting provision to 
the regulations regarding the use of chain mats in the Atlantic sea 
scallop dredge fishery. With the proposed change to the regulatory 
language, vessels that transit through areas south of the 41[deg] 9.0' 
N. latitude line would be required to use chain mats when fishing north 
of the line. This is not the intent of the regulation as sea turtle 
interactions north of that line are unlikely. To address this issue, 
NMFS is proposing a transiting provision. Vessels would be exempted 
from the chain-mat requirements provided that the vessel has no 
scallops on-board and that the gear is stowed and not available for 
immediate use. Gear that is not available for immediate use is gear 
that is stowed in conformance with the methods described at 50 CFR 
648.23(b)(2). For scallop dredges, the gear must conform to one of the 
following: (1) the towing wire is detached from the scallop dredge, the 
towing wire is completely reeled up onto the winch, the dredge is 
secured and the dredge or the winch is covered so that it is rendered 
unusable for fishing; or (2) the towing wire is detached from the 
dredge and attached to a bright-colored poly ball no less than 24 
inches (60.9 cm) in diameter, with the towing wire left in its normal 
operating position (through the various blocks) and either is wound 
back to the first block (in the gallows) or is suspended at the end of 
the lifting block where its retrieval does not present a hazard to the 
crew and where it is readily visible from above.

Procedural Error

    This action is also necessary to address a procedural error in the 
rulemaking that required chain mats on dredges in the Atlantic sea 
scallop fisehry. NMFS prepared an Environmental Assessment (EA) that 
analyzed the impacts on the human environment, and a Finding of No 
Significant Impact (FONSI) for the chain mat regulation. While the 
draft EA and FONSI circulated for review during the decision-making 
process at the proposed and final rule stages, due to an oversight, the 
FONSI was not signed concurrent with the decision to issue the final 
rule (memo from Patricia A. Kurkul to William T. Hogarth, October 19, 
2006). However, the EA was reconsidered and the FONSI was signed as 
soon as the mistake was discovered. This rulemaking would further 
address this procedural oversight by ensuring that NMFS follows all of 
the National Environmental Policy Act procedures in the proper 
sequence.

Request for Comments

    While NMFS encourages public comment on any aspect of this proposed

[[Page 63543]]

action, NMFS is specifically requesting comments on a number of issues, 
including the lack of a proposal to define the configuration by dredge 
width and the number of horizontal and vertical chains (an option 
removed by the November 2006 emergency rule), the replacement cost of 
the gear, and the northern extent of the regulations. As described 
previously, the chain mat regulations originally allowed two options 
for configuring the gear that NMFS believed achieved openings of less 
than or equal to 14 inches (35.5 cm) per side. However, subsequent to 
the rule's effective date, NMFS learned that, in some cases, the 
configurations specified by dredge width resulted in openings that were 
larger than expected and desired. NMFS corrected this discrepancy by 
removing the option that allowed the gear to be configured by dredge 
width in an emergency rulemaking (71 FR 66466, November 15, 2006). 
Prior notice and comment and most of the 30-day delay in effective date 
were waived for good cause. As there was no comment period during this 
emergency rulemaking, NMFS is, at this time, specifically requesting 
comment on the removal of the option that allowed a specified number of 
chains by dredge width.
    Some have asked NMFS to define the configuration required by a 
table identifying the number of horizontal and vertical chains by 
dredge width as in the original chain mat rule. However, the size of 
the opening created by the chains is the important factor in preventing 
sea turtles from entering the dredge bag, not the number of chains. 
NMFS investigated whether it would be feasible to specify a number of 
chains by dredge width that would achieve the desired spacing of 14 
inches (35.5 cm). NMFS has limited information on the distance between 
the cutting bar and the sweep, but this information does show that this 
distance can vary by up to 1.7 ft (0.52 m) for certain dredge widths 
(NMFS, 2007). Given the limited information available and the high 
degree of variability in this distance, it would be difficult to 
specify a number of horizontal chains that would achieve the desired 
spacing. As a result, NMFS is not defining the configuration based on a 
specified number of chains, but by the desired size opening, which is 
the important factor for sea turtle conservation. However, NMFS is 
requesting public comments on this issue to see if there are other 
factors to be considered, to obtain information on the possible 
variations in the rigging (e.g., the sweep), and to solicit suggestions 
on whether or how variations can be accounted for in a configuration 
table.
    NMFS recognizes that as the chains and links/shackles wear, they 
will need to be replaced. NMFS anticipates that a high quality chain 
such as that used in the experimental fishery should last for a fishing 
season. Therefore, the estimated cost to purchase the materials for the 
chain mat would be an annual cost. To achieve a configuration of 14 
inches (35.5 cm), the cost of materials is estimated at approximately 
$150 for a 10-ft (3.05-m) dredge to $410 for a 15-ft (4.57-m) dredge. 
However, NMFS recognizes that the longevity of the chain and the links/
shackles depends on a number of factors including the type of chain 
installed, the rigging of the chain, the dredge configuration, area 
fished and other factors that may increase or decrease average wear. 
Due to the high number of variables, NMFS is requesting comment on this 
issue in order to better assess the costs associated with this 
replacement. Specifically, NMFS is requesting information on the size, 
type, and longevity of the chain used to configure the chain-mat in 
modified sea scallop dredge gear.
    As described in the EA, the chain-mat modification is required in 
the mid-Atlantic and on the southern portion of Georges Bank. Since the 
regulation's effective date (September 25, 2006; 71 FR 50361, August 
25, 2006), some have expressed concern that the chains should not be 
required on vessels fishing on Georges Bank as it is less likely that 
sea turtles will be captured in the gear in that area. Prior to 2005, 
no sea turtle takes had been observed in the sea scallop dredge fishery 
outside the mid-Atlantic region. In the 1999 and 2000 scallop fishing 
years, 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. Despite this 
high level of observer coverage and operation of scallop dredge vessels 
in the area during June to October, no sea turtles were observed 
captured in scallop dredge gear. From 2001 through 2004, observer 
coverage was low in the Georges Bank region (<1 percent in 2001, 2002, 
and 2003; <2 percent from September through November 2004 with most of 
the coverage occurring in November) (Murray, 2004a, 2005). In August 
2005, a Kemp's ridley was taken at approximately 40[deg] 58' N. lat./
67[deg] 16' W. long. by a dredge vessel operating on southern Georges 
Bank indicating that takes in this area are possible. In addition, the 
take of sea turtles in other fisheries has been documented along this 
southern edge. Based on (1) the known distribution of sea turtles, (2) 
sea scallop dredge fishing effort, and (3) the observed take of sea 
turtles in this fishery, NMFS expects the take of sea turtles by dredge 
vessels operating over Georges Bank to be rare. However, as described 
in the EA, sea turtles are known to be present on the southern portion 
of Georges, and the chain mats would prevent the capture of sea turtles 
in the dredge bag in this area. Therefore, NMFS is proposing to 
maintain the northern boundary of 41[deg] 9.0' N. lat. However, NMFS is 
specifically requesting comment on this boundary.

Classification

    This action has been determined to be not significant under 
Executive Order 12866.
    NMFS has prepared an initial regulatory flexibility analysis that 
described 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 
preamble. No reporting, record keeping, or other compliance 
requirements are proposed. No duplicative, overlapping, or conflicting 
Federal rules have been identified. A summary of the analysis follows.
    The fishery affected by this proposed rule is the Atlantic sea 
scallop dredge fishery. The proposed action requires all vessels, 
regardless of the dredge size or vessel permit category, that enter 
waters south of 41[deg] 9.0' N. lat. from the shoreline to the EEZ to 
modify their dredge gear from May 1 through November 30 each year. The 
proposed gear modification is fairly inexpensive. Therefore, NMFS 
assumes that vessels will convert their gear and continue fishing in 
the area. According to the Vessel Trip Report (VTR) data for 2003, 314 
vessels fished south of 41[deg] 9.0' N. lat. 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.
    This analysis estimates the costs of the initial requirement to use 
chain-mat

[[Page 63544]]

modified gear in the Atlantic sea scallop dredge fishery outlined in 
the table provided in the August 2006. The table specified 11 vertical 
and 6 horizontal chains for dredges with a frame width greater than 13 
ft (3.96 m), 9 vertical and 5 horizontal chains for dredges of 11 ft 
(3.35 m)to 13 ft (3.96 m), 7 vertical and 4 horizontal chains for 
dredges of 10 ft (3.05 m) to less than 11 ft (3.35 m), and 5 vertical 
and 3 horizontal chains for dredges of less than 10 ft (3.05 m). Some 
vessels with different dredge configurations may incur additional costs 
due to the requirement for 14 inches (35.5 cm) or less, if they had 
based their configuration on the table and it did not produce 14 inch 
(35.5 cm) openings, but these costs are expected to be minimal and will 
not significantly affect the analysis. Using the materials recommended 
in DuPaul et al. (2004a) and average costs for labor, the cost for 
modifying a scallop dredge ranges from $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. This cost will not be affected by the requirement of 14-inch 
(35.5-cm) openings as these openings are similar in size to those used 
during the experimental fishery. 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 assumes a loss 
of 6.76 percent, as reported in the draft report on the experiment. 
Therefore, the analysis slightly overestimated the economic impacts. 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 states 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 x 100).
    There is also a cost associated with maintaining the gear. This 
cost depends on a number of factors including the type and grade of 
chain utilized, the configuration and rigging of the gear, and the area 
fished. Based on the use of a high quality chain, NMFS anticipates that 
the chain mat would need to be replaced each fishing season. It is 
unlikely that the replacement of chains will occur at a single point 
during the season as chains may break during fishing operations or may 
wear at different rates. Nevertheless, it is expected that the entire 
chain mat would be replaced over the course of a fishing season. 
Therefore, fishermen will incur the costs associated with purchasing 
the chains and shackles to configure the gear each year.
    Other potential costs are those due to increased drag, weight, and 
tow times, as well as increased fuel consumption, which will result 
from adding chains to the dredge. The NEFSC provided information on the 
weight of a standard scallop dredge for the August 2006 rule. The total 
weight (+/- 15 percent) of a sea scallop dredge with a width of 15 ft 
(4.57 m) is approximately 2,500 pounds (1134 kg) for the dredge frame 
and another 2,000 pounds (907 kg) for the chain bag with chains and 
club sticks. The weight of the chain mat is estimated to be between 56 
pounds (25 kg) for a 10-ft (3.05-m) dredge and 147 pounds (66.7 kg) for 
a 15-ft (4.57-m) dredge. Assuming 20 percent additional chains and 
shackles would be required for some vessels to comply with the 14 inch 
(35.5 cm) requirement (a conservative overestimate), the range of 
weights would increase by 11 lbs (5 kg) for a 10-ft (3.05-m) dredge to 
29 lbs (13 kg) for a 15-ft (4.57-m) dredge. The weight of the chain-mat 
modified dredge is not considerably different from the unmodified 
dredge. The additional chain that some vessels may have added to comply 
with the requirement for a 14-inch (35.5-cm) opening is a fraction of 
the chain required for the chain mat as a whole, and the addition of 
this chain is not expected to substantially increase the weight of the 
gear. Therefore, NMFS does not anticipate that the additional chain 
will substantially impact the efficiency of the dredge and does not 
anticipate any significant costs resulting from extra weight on the 
gear.
    There are some additional costs for vessels that need to 
reconfigure the gear to comply with the requirement to have openings 
measuring 14 inches (35.5 cm) or less per side. The costs due to a loss 
of catch evaluated here are based on the scallop loss observed during 
the experimental fishery (6.7 percent). Given that the openings in the 
gear used in the experimental fishery are of similar size to the 
openings required by the proposed regulation and that the analysis uses 
the loss of catch estimated in the experimental fishery, the impacts 
due to a loss of catch included in the analysis for the original chain 
mat regulation (described previously) apply to this proposed action as 
well. Therefore, the only difference is in the cost to reconfigure the 
gear.
    As described previously, there are two costs associated with 
reconfiguring the gear - the cost of materials and the cost of labor. 
Vessels will have already purchased the majority of the chain needed to 
configure the chain mat. There will be a slight additional cost for 
some vessels 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. If 
you assume 20 percent additional chains and shackles would be required 
to comply with the 14 inch (35.5 cm) requirement (a conservative 
overestimate), the additional costs for a 10-foot (3.05-m) dredge would 
be approximately $26 and the costs for a 15-foot (4.57-m) dredge would 
be approximately $68. This estimate uses the same costs for materials 
considered in the analysis described previously. Some additional 
welding would be required to reconfigure the gear to meet the 14 inch 
(35.5 cm) requirement. However, it is unlikely that this cost would 
exceed the cost of initially configuring the gear. The cost to the 
industry of reconfiguring the gear to meet the 14 inch (35.5 cm) or 
less requirement cannot be quantified at this time as it is unknown how 
many vessels would need to reconfigure their gear. However, these 
impacts are expected to be minimal given that: (1) some vessels had 
already configured their gear according to this option; (2) the use of 
the table resulted in openings meeting this requirement in certain 
cases; and (3) the cost to reconfigure the gear is less than the cost 
to initially configure the gear.
    Three alternatives were evaluated for this action. Under the No 
Action Alternative, vessels would be required to comply with the 
existing chain mat requirements. That is, any vessels with a Federal 
Atlantic sea scallop fishery permit and a sea scallop dredge,

[[Page 63545]]

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 EEZ must have each dredge configured with a chain mat from May 1 
through November 30 each year. Vessels that harvest sea scallop in or 
from these waters must have the chain mat configuration installed on 
all dredges for the duration of the trip. The Preferred Alternative is 
the same as the No Action; with minor modifications to the regulatory 
text to clarify the regulatory requirements and the addition of a 
transiting provision. Alternative 1 would remove the existing 
requirements for chain-mat modified dredges in the Atlantic sea scallop 
fishery. This alternative is necessary to provide for a comparative 
analysis of the alternatives.
    All business entities participating in the sea scallop dredge 
fisheries are considered small business entities. The Preferred 
Alternative and the No Action Alternative have the same economic 
impact; while Alternative 1 will have a lesser impact. Under the 
Preferred Alternative and the No Action Alternative, 314 vessels are 
affected and industry revenues are reduced by 4.3 percent. The 
Preferred Alternative and the No Action Alternative provide the most 
protection to sea turtles; while Alternative 1 leaves sea turtles 
vulnerable to capture, injury, and mortality that result from such 
capture, in the sea scallop dredge bag.

Literature Cited

    Coles, W.C. 1999. Aspects of the biology of sea turtles in the mid-
Atlantic bight. Unpublished dissertation, The College of William and 
Mary in Virginia. 149 pp.
    DuPaul, W. D. and R. J. Smolowitz. 2003. The development of a 
modified sea scallop dredge. Final Contract Report. February 14, 2003. 
VIMS Marine Resources Report, No. 2003-1. 9 pp.
    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.
    DuPaul, W. D., D. B. Rudders, and R. J. Smolowitz. 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.
    Milliken, H. O., L. Belskis, W. DuPaul, J. Gearhart, H. Haas, J. 
Mitchell, R. Smolowitz, and W. Teas. 2007. Evaluation of a modified 
scallop dredge's ability to reduce the likelihood of damage to 
loggerhead sea turtle carcasses. U.S. Dep Commer., Northeast Fisheries 
Science Center Reference Document 07-07. Northeast Fisheries Science 
Center. Woods Hole, MA. 30 pp. Available at https://www.nefsc.noaa.gov/
nefsc/publications/
 Murray, K. T. 2004a. 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. 
Available at https://www.nefsc.noaa.gov/nefsc/publications/
 Murray, K. T. 2004b. Magnitude and distribution of sea turtle 
bycatch in the sea scallop (Placopecten magellanicus) dredge fishery in 
two areas in the northwestern Atlantic Ocean, 2001-2002. Fish. Bull. 
102:671-681.
    Murray, K. T. 2005. Total bycatch estimate of loggerhead turtles 
(Caretta caretta) in the 2004 Atlantic sea scallop (Placopecten 
magellanicus) dredge fishery. U.S. Dep Commer., Northeast Fisheries 
Science Center Reference Document 05-12. Northeast Fisheries Science 
Center. Woods Hole, MA. 22 pp. Available at https://www.nefsc.noaa.gov/
nefsc/publications/
 Murray, K. T. 2007. Estimated bycatch of loggerhead turtles 
(Caretta caretta) in U.S. mid-Atlantic scallop trawl gear, 2004-2005, 
and in sea scallop dredge gear, 2005. U.S. Dep Commer. Northeast 
Fisheries Science Center Reference Document 07-04. Northeast Fisheries 
Science Center. Woods Hole, MA. 30 pp. Available at https://
www.nefsc.noaa.gov/nefsc/publications/
 NMFS (National Marine Fisheries Service). 2005. Scallop dredge 
evaluations. F/V Capt. Wick, Panama City FL. 6/18/05-6/23/05. Report 
and Video. NOAA, National Marine Fisheries Service, Southeast Fisheries 
Science Center. Harvesting Systems and Engineering Branch. Received 7/
12/2005. 8 pp.
    NMFS (National Marine Fisheries Service) 2006. Endangered Species 
Act section 7 consultation on the Atlantic sea scallop fishery 
management. Biological Opinion. Sep. 2006. NOAA, National Marine 
Fisheries Service Northeast Regional Office. Gloucester, MA. 104 pp. 
plus appendices.
    Teas, W. G. 1993. Species composition and size class distribution 
of marine turtle strandings on the Gulf of Mexico and southeast United 
States coasts, 1985-1991. NOAA Tech. Memo. NMFS-SEFSC-315. 43 pp.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Reporting and 
recordkeeping requirements, Transportation.

    Dated: November 6, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    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:

    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).
    In Sec.  223.206, paragraph (d)(11) 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 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). 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 enters 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.
    (iii) Vessels subject to the requirements in (d)(11)(i) and 
(d)(11)(ii) transiting waters south of 41[deg] 9.0' N. latitude, from 
the shoreline to the outer boundary of the Exclusive Economic

[[Page 63546]]

Zone, will be exempted from the chain-mat requirements provided the 
dredge gear is stowed in accordance with Sec.  648.23(b) and there are 
no scallops on-board.
[FR Doc. E7-22073 Filed 11-8-07; 8:45 am]
BILLING CODE 3510-22-S