Endangered and Threatened Wildlife; Sea Turtle Conservation, 20667-20670 [E9-10311]
Download as PDF
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 52.232–10 by
revising the date of the clause; by
revising the last sentence or paragraph
(a), and by revising paragraphs (b) and
(c) to read as follows:
52.232–10 Payments under Fixed-Price
Architect-Engineer Contracts.
*
*
*
*
*
PAYMENTS UNDER FIXED-PRICE
ARCHITECT-ENGINEER CONTRACTS
(DATE)
(a) * * * The estimates, along with any
supporting data required by the
Contracting Officer, shall be prepared by
the Contractor and submitted along with
its voucher.
(b) After receipt of each substantiated
voucher the Government shall pay the
voucher as approved by the Contracting
Officer or authorized representative.
The Contracting Officer may require a
withhold of up to 10 percent of the
amounts due under paragraph (a) of this
clause in order to protect the
Government’s interest and ensure
satisfactory completion of the contract.
The amount of withhold shall be
determined based upon the contractor’s
performance record under this contract.
Whenever the Contracting Officer
determines that the work is
substantially complete and that the
amount retained is in excess of the
amount adequate for the protection of
the Government, the Contracting Officer
may release the excess amount to the
Contractor.
(c) Upon satisfactory completion by
the Contractor and final acceptance by
the Contracting Officer of all design
work done by the Contractor under the
‘‘Statement of Architect-Engineer
Services’’, the Contractor will be paid
the unpaid balance of any money due
for design work under the statement,
including all withheld amounts.
*
*
*
*
*
(End of clause)
[FR Doc. E9–10351 Filed 5–4–09; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 222 and 223
[Docket No. 0809121212–81515–01]
RIN 0648–AX20
Endangered and Threatened Wildlife;
Sea Turtle Conservation
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
VerDate Nov<24>2008
22:30 May 04, 2009
Jkt 217001
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
SUMMARY: The National Marine
Fisheries Service (NMFS) currently
requires the use of chain-mat modified
dredge gear in the Atlantic sea scallop
fishery south of 41°9.0′ North latitude
from May 1 through November 30 each
year. This gear is necessary to help
reduce mortality and injury to
endangered and threatened sea turtles
captured in this fishery and to conserve
sea turtles listed under the Endangered
Species Act (ESA). This proposed action
would make minor modifications to the
current requirements by clarifying
where on the dredge the chain mat
should be hung; by excluding the sweep
from the requirement that the side of
each opening in the chain mat be less
than or equal to 14 inches (35.5 cm);
and by adding definitions of the sweep
and the diamonds, which are terms used
to describe parts of the scallop dredge
gear. Any incidental take of threatened
sea turtles in Atlantic sea scallop dredge
gear in compliance with the gear
modification requirements and all other
applicable requirements will be
exempted from the ESA prohibition
against takes. NMFS is requesting public
comment on this action, the focus of
which is the minor modifications
described here. NMFS is not accepting
public comment on the existing chain
mat requirements through this proposed
rule.
DATES: Comments on the proposed rule
must be received by 5 p.m. EST on June
4, 2009.
ADDRESSES: Written comments on this
action, identified by RIN 0648–AX20,
may be submitted by any one of the
following methods:
• Electronic submissions: Submit all
electronic public comments via the
Federal eRulemaking portal at 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, 55
Great Republic Drive, Gloucester, MA
01930, Attn: Sea Turtle Conservation
Measures, Proposed Rule.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All personal identifying information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
20667
submit confidential business
information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter ‘‘N/A’’ in the required
fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
PDF file formats only.
Copies of the Draft Supplemental
Environmental Assessment/Regulatory
Impact Review can be obtained from
https://www.nero.noaa.gov/nero/regs/
com.html listed under the Electronic
Access portion of this document or by
writing to Pasquale Scida, NMFS,
Northeast Region, 55 Great Republic
Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT:
Pasquale Scida (ph. 978–281–9208, fax
978–281–9394, e-mail
pasquale.scida@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’s jurisdiction, even incidentally,
is prohibited, with exceptions identified
at 50 CFR 223.206. The incidental take,
both lethal and non-lethal, of
loggerhead, Kemp’s ridley, and
unidentified hard-shelled sea turtles as
a result of scallop dredging has been
observed in the Atlantic sea scallop
fishery (Northeast Fisheries Science
Center (NEFSC) Fisheries Sampling
Branch (FSB), Observer Database). In
addition, a non-lethal take of a green sea
turtle has been observed in this fishery
(NEFSC FSB, Observer Database) and
one unconfirmed take of a leatherback
sea turtle was reported during the
experimental fishery to test the chainmat modified gear (DuPaul et al., 2004).
Sea turtles caught in scallop dredge
gear often suffer injuries. The most
commonly observed injury is damage to
the carapace. The exact causes of these
injuries are unknown, but most likely
appear to be from being struck by the
E:\FR\FM\05MYP1.SGM
05MYP1
20668
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
dredge (during a tow or upon emptying
of the dredge bag on deck), crushed by
debris (e.g., large rocks) that collects in
the dredge bag, or as a result of a fall
during hauling of the dredge. The chain
mat is a grid of horizontal and vertical
chains hung over the mouth of the
dredge bag to prevent sea turtles from
entering the bag and to prevent injury
and mortality that results from such
capture (i.e., due to debris in the bag, a
fall while emptying the bag, or dropping
of the gear on the catch). A full
description of the chain mat and the
benefits to sea turtles can be found in
the proposed and final rules
implementing the regulations (72 FR
63537, November 9, 2007; 73 FR 18984,
April 8, 2008) and the associated
Environmental Assessment (NMFS
2008).
In 2008, an image analysis that
calculated the length of the sides of the
openings created by the intersecting
horizontal and vertical chains for an 11ft. chain-mat equipped dredge was
completed. Only a single photograph
was analyzed in this analysis. The
analysis showed that the lengths of the
sides of the openings were both greater
than and less than 14 inches and that 14
inches was within the range of openings
tested in the experimental fishery.
Based on this information, NMFS reevaluated the chain mat requirements
and the analysis conducted for the April
2008 rule. NMFS found that the
available information continues to
support an opening of 14 inches or less
and that the conclusions of the analysis
conducted for the April 2008 rule are
still valid.
This proposed rule would modify the
existing chain mat regulations that
apply to chain-mat modified dredges in
the Atlantic sea scallop fishery. This
proposed rule, if implemented, would
(1) more clearly define where on the
dredge gear the chain mat must be hung;
(2) exclude the sweep from the
requirement that each side of the
opening must be 14 inches (35.5 cm) or
less; and (3) define the ‘‘sweep’’ and the
‘‘diamonds’’, which are terms used to
describe parts of the scallop dredge gear.
This rule is being proposed under the
ESA provisions authorizing the issuance
of regulations to conserve threatened
species and for enforcement purposes
(sections 4(d) and 11(f), respectively).
Configuration of the Gear
The current regulations define a chain
mat as ‘‘* * * a device designed to be
installed in a scallop dredge forward of
the sweep, as described in 50 CFR
223.206, for the purpose of excluding
sea turtles from the dredge.’’ The
regulations at 50 CFR 223.206 state, in
VerDate Nov<24>2008
22:30 May 04, 2009
Jkt 217001
part, that ‘‘During the time period of
May 1 through November 30, any vessel
with a sea scallop dredge and required
to have a Federal Atlantic sea scallop
fishery permit, regardless of dredge size
or vessel permit category, that enters
waters south of 41°9.0′ N. latitude, from
the shoreline to the outer boundary of
the Exclusive Economic Zone must have
on each dredge a chain mat described as
follows. The chain mat must be
composed of horizontal (‘‘tickler’’)
chains and vertical (up-and-down)
chains that are configured such that the
openings formed by the intersecting
chains have no more than 4 sides. The
length of each side of the openings
formed by the intersecting chains,
including the sweep, must be less than
or equal to 14 inches (35.5 cm).’’ NMFS
has determined that ‘‘forward of the
sweep’’ does not fully describe the
configuration and that more specificity
would ensure that the requirements are
met consistently in the manner NMFS
intends. Therefore, this proposed rule
would clarify that the chain mat must
cover the entire opening of the dredge
bag by specifying that ‘‘The vertical and
horizontal chains must be hung to cover
the opening of the dredge bag such that
the vertical chains extend from the back
of the cutting bar to the sweep. The
horizontal chains must intersect the
vertical chains such that the length of
each side of the openings formed by the
intersecting chains is less than or equal
to 14 inches (35.5 cm) * * *’’ These
changes simply clarify the existing
requirements and would not result in
any additional or different biological,
physical, or socio-economic impacts.
Exclusion of the Sweep
Second, NMFS proposes to exclude
the sweep from the requirement that
each side of the openings formed by the
intersecting chains be less than or equal
to 14 inches (35.5 cm). For those
openings adjacent to the sweep, the
sweep chain will create one side of the
opening. Under the current
requirements, the length of the side
created by the sweep chain must be 14
inches (35.5 cm) or less. However,
NMFS has re-examined this requirement
and has found that except in rare cases,
the size of the openings along the sweep
will be smaller (even if the length of the
side created by the sweep exceeds 14
inches (35.5 cm)) than the size of the
openings created by a square with 14
inches (35.5 cm) per side, the maximum
opening allowed throughout the chain
mat. Given the configuration of the
dredge gear, it is possible that one
opening at the bottom of the arc created
by the sweep could be greater than the
opening created by a square with 14
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
inches (35.5 cm) per side if the vertical
chains forming the two sides of this
opening were at or near 14 inches (35.5
cm) in length.
There are several reasons why this
proposed change would result in
inconsequential impacts on the
conservation benefit of the chain mats.
First, along the sweep, the openings are
irregularly shaped and may be three- or
four-sided (see EA for figure), generally
resulting in a smaller opening than
throughout the rest of the chain mat.
Given the configuration of the gear and
the area of the openings along the
sweep, the number of openings that may
be larger than the opening created by a
square with 14 inches (35.5 cm) per side
is limited to a single opening in the
chain mat. Second, the increase in size
of the one opening is only a small
fraction of the size of the openings
allowed throughout the chain mat due
to the arc in the sweep. This increase is
further limited by the fact that the
sweep chain is generally a heavier
chain, which would take up some of the
space within the opening. Third, this
slightly larger opening would only be
present on a subset of the dredges used
in the fishery and, where present on a
dredge, would be limited to only one of
the chain mat openings. In some cases,
fishermen are configuring the gear such
that the sides of the openings created by
the intersecting chains are less than 14
inches (35.5 cm) to allow for chain
stretch and wear. In these cases, the
opening at the bottom of the arc created
by the sweep would likely be smaller
than that created by a square with 14
inches (35.5 cm) per side, and all of the
openings in the chain mat would be
consistent with the openings allowed
under the current regulations.
Given that the slightly larger opening
is limited to one opening on a subset of
the dredges used in the fishery and that
the increase in the size of the opening
is small due to the way the gear is
configured, the conservation benefit to
sea turtles under this requirement is
essentially the same as the current
requirements. While possible, it is
highly unlikely that a sea turtle that
would be excluded by a square with 14
inches (35.5 cm) per side would
encounter and pass through the one
slightly larger opening that may be
present on some dredges.
Chain mats are currently required in
certain areas and times. This rule would
not change the spatial or temporal
extent of the requirements. It would
make minor modifications to how the
gear is configured. However, given that
the modifications are minor and that the
gear would continue to be required in
the same areas and times, this action
E:\FR\FM\05MYP1.SGM
05MYP1
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
would not result in any additional
impacts to the physical environment or
to habitat. This change would also not
result in any additional economic costs
(see Classification section).
Definition of the Sweep and the
Diamonds
As the modifications above
specifically exclude the sweep from the
requirement that the openings in the
chain mat be 14 inches (35.5 cm) per
side, NMFS would add a definition of
the sweep to the regulations. NMFS is
proposing to define the sweep as ‘‘A
chain extending, usually in an arc, from
one end of the dredge frame to the other
to which the ring bag, including the
diamonds, is attached. The sweep forms
the edge of the opening of the dredge
bag.’’ NMFS would also add a definition
of the ‘‘diamonds’’ to the regulations.
NMFS is proposing to define the
diamonds as ‘‘the triangular shaped
portions of the ring bag on the ‘dredge
bottom’ as defined at 50 CFR 648.2.’’
This definition is necessary as the term
diamonds is used to define the sweep.
Classification
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866. A
description of the action, why it is being
considered, and the legal basis for this
action are contained in the preamble.
No reporting, recordkeeping, or other
compliance requirements are proposed.
No duplicative, overlapping, or
conflicting Federal rules have been
identified.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
As a result, an initial regulatory
flexibility analysis is not required and
none has been prepared.
The small entities affected by the
chain mat regulations are Atlantic sea
scallop fishermen entering waters south
of 41° 9.0′ N. latitude from the shoreline
to the outer boundary of the Exclusive
Economic Zone. These regulations
apply to all vessels with a sea scallop
dredge(s) and required to have a Federal
Atlantic sea scallop fishery permit,
regardless of the dredge size or vessel
permit category.
The final rule (73 FR 18984, April 8,
2008) and Final Environmental
Assessment/Final Regulatory Flexibility
Act Analysis/Regulatory Impact Review
(EA/FRFA/RIR) (NMFS 2008)
implementing the chain-mat modified
dredge requirements identified 314
VerDate Nov<24>2008
22:30 May 04, 2009
Jkt 217001
vessels that would be affected by the
chain mat requirements. The economic
impacts of the minor changes proposed
here are described below.
Under the current requirements, the
length of each side of the opening
created by the intersecting chains,
including the side created by the sweep
chain, must be 14 inches (35.5 cm) or
less. NMFS has identified two alternate
ways to configure the gear to comply
with the regulation as currently written.
Fishermen could create smaller
openings (approximately 9–10 inches
(27.9–25.4 cm) per side) throughout the
mat to ensure that the length of the side
created by the sweep was less than or
equal to 14 inches (35.5 cm). However,
it was never the intention that the
requirement result in openings in the
chain mat of 9–10 inches (27.9–25.4 cm)
per side. Alternatively, fishermen could
add a small piece of chain to any
opening where the length of the side
created by the sweep is greater than 14
inches (35.5 cm). The number of
openings that would require a piece of
additional chain is expected to be
limited to that area along the sweep that
is curved. This short piece of chain
would divide the sweep, creating two
smaller openings. The pieces of chain
would be no more than 14 inches (35.5
cm), and in many cases, the segments
are likely to be much less than 14 inches
(35.5 cm). As described in the EA
(NMFS 2008) for the final rule (73 FR
18984, April 8, 2008) requiring the use
of chain-mat modified dredge gear, a 15ft (4.57-m) dredge with frame, bag, and
club stick weighs approximately 4500
pounds (2041 kg). The weight of the
chain mat was estimated to be between
67 pounds (30.1 kg) for a 10-ft (3.05-m)
dredge and 176 pounds (79.8 kg) for a
15-ft (4.57-m) dredge (NMFS 2008). In
the economic analysis for the 2008
regulations, a conservative estimate (20
percent) of the additional chain required
to comply with the 14-inch (35.5-cm)
requirement was used. Therefore, it is
likely that the costs of these additional
small segments were subsumed in that
analysis. However, some additional
information on the amount of chain
required to divide these openings is
provided here. The estimated cost for
the chain was $2.00 to $3.00 per foot.
Therefore, given that the additional
chain required is only a short segment
added to a limited number of openings,
it is expected that the economic costs
would be minimal. This amount of
chain is also not expected to affect the
weight of the gear or its efficiency.
The proposed action would not result
in any additional costs, and, under this
action, the vessel would not incur the
costs associated with adding small
PO 00000
Frm 00040
Fmt 4702
Sfmt 4702
20669
lengths of additional chain to ensure
that the sweep segments do not exceed
14 inches (35.5 cm). Therefore, the
differences in cost between a chain mat
configured under the current
requirements and one configured as
proposed here are minimal. This action
would not affect the profitability of the
vessel. As this action is not expected to
result in any additional costs or to affect
the profitability of the vessel, it will not
contribute to cumulative economic
impacts.
With the exception of the rare cases
described in the preamble, the size of
the openings along the sweep will be
smaller (even if the length of the side
created by the sweep exceeds 14 inches
(35.5 cm)) than the size of the openings
created by a square with 14 inches (35.5
cm) per side, the maximum opening
allowed throughout the chain mat.
Therefore, the proposed action would
only result in inconsequential impacts
on the conservation benefit of the chain
mats (see preamble). In addition, the
clarification as to the configuration of
the gear and the additional definitions
would not result in any socio-economic
impacts.
Literature Cited
DuPaul, W.D., D.B. Rudders, and
R.J. Smolowitz. 2004a. Industry trials of
a modified sea scallop dredge to
minimize the catch of sea turtles. Final
Report. November 2004. VIMS Marine
Resources Report, No. 2004–12. 35 pp.
NMFS (National Marine Fisheries
Service). 2008. Final Environmental
Assessment and Regulatory Impact
Review/Regulatory Flexibility Act
Analysis of Sea Turtle Conservation
Measures for the Atlantic Sea Scallop
Dredge Fishery. 152 pp.
Dated: April 29, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Parts 222 and
223
Endangered and threatened species.
For the reasons set forth in the
preamble, 50 CFR parts 222 and 223 are
proposed to be amended as follows:
PART 222—GENERAL ENDANGERED
AND THREATENED MARINE SPECIES
1. The authority citation for part 222
continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.; 16
U.S.C. 742a et seq.; 31 U.S.C. 9701.
2. In § 222.102, the definition of
‘‘Diamonds’’ and ‘‘Sweep’’ are added in
alphabetical order to read as follows:
E:\FR\FM\05MYP1.SGM
05MYP1
20670
§ 222.102
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
Definitions.
*
*
*
*
*
Diamonds, with respect to dredge or
dredge gear as defined in this section,
means the triangular shaped portions of
the ring bag on the ‘‘dredge bottom’’ as
defined in 50 CFR 648.2.
*
*
*
*
*
Sweep, with respect to dredge or
dredge gear as defined in this section,
means a chain extending, usually in an
arc, from one end of the dredge frame
to the other to which the ring bag,
including the diamonds, is attached.
The sweep forms the edge of the
opening of the dredge bag.
*
*
*
*
*
PART 223—THREATENED MARINE
AND ANADROMOUS SPECIES
3. The authority citation for part 223
continues to read as follows:
VerDate Nov<24>2008
22:30 May 04, 2009
Jkt 217001
Authority: 16 U.S.C. 1531–1543; subpart B,
§ 223.12 also issued under 16 U.S.C. 1361 et
seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).
4. In § 223.206, paragraph (d)(11)(i) is
revised to read as follows:
§ 223.206 Exemptions to prohibitions
relating to sea turtles.
*
*
*
*
*
(11) Restrictions applicable to sea
scallop dredges in the mid-Atlantic—(i)
Gear Modification. During the time
period of May 1 through November 30,
any vessel with a sea scallop dredge and
required to have a Federal Atlantic sea
scallop fishery permit, regardless of
dredge size or vessel permit category,
that enters waters south of 41°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-anddown’’) chains that are configured such
that the openings formed by the
PO 00000
Frm 00041
Fmt 4702
Sfmt 4702
intersecting chains have no more than 4
sides. The vertical and horizontal chains
must be hung to cover the opening of
the dredge bag such that the vertical
chains extend from the back of the
cutting bar to the sweep. The horizontal
chains must intersect the vertical chains
such that the length of each side of the
openings formed by the intersecting
chains is less than or equal to 14 inches
(35.5 cm) with the exception of the side
of any individual opening created by the
sweep. The chains must be connected to
each other with a shackle or link at each
intersection point. The measurement
must be taken along the chain, with the
chain held taut, and include one shackle
or link at the intersection point and all
links in the chain up to, but excluding,
the shackle or link at the other
intersection point.
*
*
*
*
*
[FR Doc. E9–10311 Filed 4–30–09; 4:15 pm]
BILLING CODE 3510–22–P
E:\FR\FM\05MYP1.SGM
05MYP1
Agencies
[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Proposed Rules]
[Pages 20667-20670]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10311]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 223
[Docket No. 0809121212-81515-01]
RIN 0648-AX20
Endangered and Threatened Wildlife; Sea Turtle Conservation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The National Marine Fisheries Service (NMFS) currently
requires the use of chain-mat modified dredge gear in the Atlantic sea
scallop fishery south of 41[deg]9.0' North latitude from May 1 through
November 30 each year. This gear is necessary to help reduce mortality
and injury to endangered and threatened sea turtles captured in this
fishery and to conserve sea turtles listed under the Endangered Species
Act (ESA). This proposed action would make minor modifications to the
current requirements by clarifying where on the dredge the chain mat
should be hung; by excluding the sweep from the requirement that the
side of each opening in the chain mat be less than or equal to 14
inches (35.5 cm); and by adding definitions of the sweep and the
diamonds, which are terms used to describe parts of the scallop dredge
gear. Any incidental take of threatened sea turtles in Atlantic sea
scallop dredge gear in compliance with the gear modification
requirements and all other applicable requirements will be exempted
from the ESA prohibition against takes. NMFS is requesting public
comment on this action, the focus of which is the minor modifications
described here. NMFS is not accepting public comment on the existing
chain mat requirements through this proposed rule.
DATES: Comments on the proposed rule must be received by 5 p.m. EST on
June 4, 2009.
ADDRESSES: Written comments on this action, identified by RIN 0648-
AX20, may be submitted by any one of the following methods:
Electronic submissions: Submit all electronic public
comments via the Federal eRulemaking portal at 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, 55 Great Republic
Drive, Gloucester, MA 01930, Attn: Sea Turtle Conservation Measures,
Proposed Rule.
Instructions: All comments received are a part of the public record
and will generally be posted to https://www.regulations.gov without
change. All personal identifying information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit confidential business information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter ``N/A'' in the required
fields if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Copies of the Draft Supplemental Environmental Assessment/
Regulatory Impact Review can be obtained from https://www.nero.noaa.gov/nero/regs/com.html listed under the Electronic Access portion of this
document or by writing to Pasquale Scida, NMFS, Northeast Region, 55
Great Republic Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Pasquale Scida (ph. 978-281-9208, fax
978-281-9394, e-mail pasquale.scida@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's jurisdiction, even incidentally, is prohibited, with
exceptions identified at 50 CFR 223.206. The incidental take, both
lethal and non-lethal, of loggerhead, Kemp's ridley, and unidentified
hard-shelled sea turtles as a result of scallop dredging has been
observed in the Atlantic sea scallop fishery (Northeast Fisheries
Science Center (NEFSC) Fisheries Sampling Branch (FSB), Observer
Database). In addition, a non-lethal take of a green sea turtle has
been observed in this fishery (NEFSC FSB, Observer Database) and one
unconfirmed take of a leatherback sea turtle was reported during the
experimental fishery to test the chain-mat modified gear (DuPaul et
al., 2004).
Sea turtles caught in scallop dredge gear often suffer injuries.
The most commonly observed injury is damage to the carapace. The exact
causes of these injuries are unknown, but most likely appear to be from
being struck by the
[[Page 20668]]
dredge (during a tow or upon emptying of the dredge bag on deck),
crushed by debris (e.g., large rocks) that collects in the dredge bag,
or as a result of a fall during hauling of the dredge. The chain mat is
a grid of horizontal and vertical chains hung over the mouth of the
dredge bag to prevent sea turtles from entering the bag and to prevent
injury and mortality that results from such capture (i.e., due to
debris in the bag, a fall while emptying the bag, or dropping of the
gear on the catch). A full description of the chain mat and the
benefits to sea turtles can be found in the proposed and final rules
implementing the regulations (72 FR 63537, November 9, 2007; 73 FR
18984, April 8, 2008) and the associated Environmental Assessment (NMFS
2008).
In 2008, an image analysis that calculated the length of the sides
of the openings created by the intersecting horizontal and vertical
chains for an 11-ft. chain-mat equipped dredge was completed. Only a
single photograph was analyzed in this analysis. The analysis showed
that the lengths of the sides of the openings were both greater than
and less than 14 inches and that 14 inches was within the range of
openings tested in the experimental fishery. Based on this information,
NMFS re-evaluated the chain mat requirements and the analysis conducted
for the April 2008 rule. NMFS found that the available information
continues to support an opening of 14 inches or less and that the
conclusions of the analysis conducted for the April 2008 rule are still
valid.
This proposed rule would modify the existing chain mat regulations
that apply to chain-mat modified dredges in the Atlantic sea scallop
fishery. This proposed rule, if implemented, would (1) more clearly
define where on the dredge gear the chain mat must be hung; (2) exclude
the sweep from the requirement that each side of the opening must be 14
inches (35.5 cm) or less; and (3) define the ``sweep'' and the
``diamonds'', which are terms used to describe parts of the scallop
dredge gear. This rule is being proposed under the ESA provisions
authorizing the issuance of regulations to conserve threatened species
and for enforcement purposes (sections 4(d) and 11(f), respectively).
Configuration of the Gear
The current regulations define a chain mat as ``* * * a device
designed to be installed in a scallop dredge forward of the sweep, as
described in 50 CFR 223.206, for the purpose of excluding sea turtles
from the dredge.'' The regulations at 50 CFR 223.206 state, in part,
that ``During the time period of May 1 through November 30, any vessel
with a sea scallop dredge and required to have a Federal Atlantic sea
scallop fishery permit, regardless of dredge size or vessel permit
category, that enters waters south of 41[deg]9.0' N. latitude, from the
shoreline to the outer boundary of the Exclusive Economic Zone must
have on each dredge a chain mat described as follows. The chain mat
must be composed of horizontal (``tickler'') chains and vertical (up-
and-down) chains that are configured such that the openings formed by
the intersecting chains have no more than 4 sides. The length of each
side of the openings formed by the intersecting chains, including the
sweep, must be less than or equal to 14 inches (35.5 cm).'' NMFS has
determined that ``forward of the sweep'' does not fully describe the
configuration and that more specificity would ensure that the
requirements are met consistently in the manner NMFS intends.
Therefore, this proposed rule would clarify that the chain mat must
cover the entire opening of the dredge bag by specifying that ``The
vertical and horizontal chains must be hung to cover the opening of the
dredge bag such that the vertical chains extend from the back of the
cutting bar to the sweep. The horizontal chains must intersect the
vertical chains such that the length of each side of the openings
formed by the intersecting chains is less than or equal to 14 inches
(35.5 cm) * * *'' These changes simply clarify the existing
requirements and would not result in any additional or different
biological, physical, or socio-economic impacts.
Exclusion of the Sweep
Second, NMFS proposes to exclude the sweep from the requirement
that each side of the openings formed by the intersecting chains be
less than or equal to 14 inches (35.5 cm). For those openings adjacent
to the sweep, the sweep chain will create one side of the opening.
Under the current requirements, the length of the side created by the
sweep chain must be 14 inches (35.5 cm) or less. However, NMFS has re-
examined this requirement and has found that except in rare cases, the
size of the openings along the sweep will be smaller (even if the
length of the side created by the sweep exceeds 14 inches (35.5 cm))
than the size of the openings created by a square with 14 inches (35.5
cm) per side, the maximum opening allowed throughout the chain mat.
Given the configuration of the dredge gear, it is possible that one
opening at the bottom of the arc created by the sweep could be greater
than the opening created by a square with 14 inches (35.5 cm) per side
if the vertical chains forming the two sides of this opening were at or
near 14 inches (35.5 cm) in length.
There are several reasons why this proposed change would result in
inconsequential impacts on the conservation benefit of the chain mats.
First, along the sweep, the openings are irregularly shaped and may be
three- or four-sided (see EA for figure), generally resulting in a
smaller opening than throughout the rest of the chain mat. Given the
configuration of the gear and the area of the openings along the sweep,
the number of openings that may be larger than the opening created by a
square with 14 inches (35.5 cm) per side is limited to a single opening
in the chain mat. Second, the increase in size of the one opening is
only a small fraction of the size of the openings allowed throughout
the chain mat due to the arc in the sweep. This increase is further
limited by the fact that the sweep chain is generally a heavier chain,
which would take up some of the space within the opening. Third, this
slightly larger opening would only be present on a subset of the
dredges used in the fishery and, where present on a dredge, would be
limited to only one of the chain mat openings. In some cases, fishermen
are configuring the gear such that the sides of the openings created by
the intersecting chains are less than 14 inches (35.5 cm) to allow for
chain stretch and wear. In these cases, the opening at the bottom of
the arc created by the sweep would likely be smaller than that created
by a square with 14 inches (35.5 cm) per side, and all of the openings
in the chain mat would be consistent with the openings allowed under
the current regulations.
Given that the slightly larger opening is limited to one opening on
a subset of the dredges used in the fishery and that the increase in
the size of the opening is small due to the way the gear is configured,
the conservation benefit to sea turtles under this requirement is
essentially the same as the current requirements. While possible, it is
highly unlikely that a sea turtle that would be excluded by a square
with 14 inches (35.5 cm) per side would encounter and pass through the
one slightly larger opening that may be present on some dredges.
Chain mats are currently required in certain areas and times. This
rule would not change the spatial or temporal extent of the
requirements. It would make minor modifications to how the gear is
configured. However, given that the modifications are minor and that
the gear would continue to be required in the same areas and times,
this action
[[Page 20669]]
would not result in any additional impacts to the physical environment
or to habitat. This change would also not result in any additional
economic costs (see Classification section).
Definition of the Sweep and the Diamonds
As the modifications above specifically exclude the sweep from the
requirement that the openings in the chain mat be 14 inches (35.5 cm)
per side, NMFS would add a definition of the sweep to the regulations.
NMFS is proposing to define the sweep as ``A chain extending, usually
in an arc, from one end of the dredge frame to the other to which the
ring bag, including the diamonds, is attached. The sweep forms the edge
of the opening of the dredge bag.'' NMFS would also add a definition of
the ``diamonds'' to the regulations. NMFS is proposing to define the
diamonds as ``the triangular shaped portions of the ring bag on the
`dredge bottom' as defined at 50 CFR 648.2.'' This definition is
necessary as the term diamonds is used to define the sweep.
Classification
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866. A description of the action, why it
is being considered, and the legal basis for this action are contained
in the preamble. No reporting, recordkeeping, or other compliance
requirements are proposed. No duplicative, overlapping, or conflicting
Federal rules have been identified.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
As a result, an initial regulatory flexibility analysis is not required
and none has been prepared.
The small entities affected by the chain mat regulations are
Atlantic sea scallop fishermen entering waters south of 41[deg] 9.0' N.
latitude from the shoreline to the outer boundary of the Exclusive
Economic Zone. These regulations apply to all vessels with a sea
scallop dredge(s) and required to have a Federal Atlantic sea scallop
fishery permit, regardless of the dredge size or vessel permit
category.
The final rule (73 FR 18984, April 8, 2008) and Final Environmental
Assessment/Final Regulatory Flexibility Act Analysis/Regulatory Impact
Review (EA/FRFA/RIR) (NMFS 2008) implementing the chain-mat modified
dredge requirements identified 314 vessels that would be affected by
the chain mat requirements. The economic impacts of the minor changes
proposed here are described below.
Under the current requirements, the length of each side of the
opening created by the intersecting chains, including the side created
by the sweep chain, must be 14 inches (35.5 cm) or less. NMFS has
identified two alternate ways to configure the gear to comply with the
regulation as currently written. Fishermen could create smaller
openings (approximately 9-10 inches (27.9-25.4 cm) per side) throughout
the mat to ensure that the length of the side created by the sweep was
less than or equal to 14 inches (35.5 cm). However, it was never the
intention that the requirement result in openings in the chain mat of
9-10 inches (27.9-25.4 cm) per side. Alternatively, fishermen could add
a small piece of chain to any opening where the length of the side
created by the sweep is greater than 14 inches (35.5 cm). The number of
openings that would require a piece of additional chain is expected to
be limited to that area along the sweep that is curved. This short
piece of chain would divide the sweep, creating two smaller openings.
The pieces of chain would be no more than 14 inches (35.5 cm), and in
many cases, the segments are likely to be much less than 14 inches
(35.5 cm). As described in the EA (NMFS 2008) for the final rule (73 FR
18984, April 8, 2008) requiring the use of chain-mat modified dredge
gear, a 15-ft (4.57-m) dredge with frame, bag, and club stick weighs
approximately 4500 pounds (2041 kg). The weight of the chain mat was
estimated to be between 67 pounds (30.1 kg) for a 10-ft (3.05-m) dredge
and 176 pounds (79.8 kg) for a 15-ft (4.57-m) dredge (NMFS 2008). In
the economic analysis for the 2008 regulations, a conservative estimate
(20 percent) of the additional chain required to comply with the 14-
inch (35.5-cm) requirement was used. Therefore, it is likely that the
costs of these additional small segments were subsumed in that
analysis. However, some additional information on the amount of chain
required to divide these openings is provided here. The estimated cost
for the chain was $2.00 to $3.00 per foot. Therefore, given that the
additional chain required is only a short segment added to a limited
number of openings, it is expected that the economic costs would be
minimal. This amount of chain is also not expected to affect the weight
of the gear or its efficiency.
The proposed action would not result in any additional costs, and,
under this action, the vessel would not incur the costs associated with
adding small lengths of additional chain to ensure that the sweep
segments do not exceed 14 inches (35.5 cm). Therefore, the differences
in cost between a chain mat configured under the current requirements
and one configured as proposed here are minimal. This action would not
affect the profitability of the vessel. As this action is not expected
to result in any additional costs or to affect the profitability of the
vessel, it will not contribute to cumulative economic impacts.
With the exception of the rare cases described in the preamble, the
size of the openings along the sweep will be smaller (even if the
length of the side created by the sweep exceeds 14 inches (35.5 cm))
than the size of the openings created by a square with 14 inches (35.5
cm) per side, the maximum opening allowed throughout the chain mat.
Therefore, the proposed action would only result in inconsequential
impacts on the conservation benefit of the chain mats (see preamble).
In addition, the clarification as to the configuration of the gear and
the additional definitions would not result in any socio-economic
impacts.
Literature Cited
DuPaul, W.D., D.B. Rudders, and R.J. Smolowitz. 2004a. Industry
trials of a modified sea scallop dredge to minimize the catch of sea
turtles. Final Report. November 2004. VIMS Marine Resources Report, No.
2004-12. 35 pp.
NMFS (National Marine Fisheries Service). 2008. Final Environmental
Assessment and Regulatory Impact Review/Regulatory Flexibility Act
Analysis of Sea Turtle Conservation Measures for the Atlantic Sea
Scallop Dredge Fishery. 152 pp.
Dated: April 29, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Parts 222 and 223
Endangered and threatened species.
For the reasons set forth in the preamble, 50 CFR parts 222 and 223
are proposed to be amended as follows:
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
1. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31
U.S.C. 9701.
2. In Sec. 222.102, the definition of ``Diamonds'' and ``Sweep''
are added in alphabetical order to read as follows:
[[Page 20670]]
Sec. 222.102 Definitions.
* * * * *
Diamonds, with respect to dredge or dredge gear as defined in this
section, means the triangular shaped portions of the ring bag on the
``dredge bottom'' as defined in 50 CFR 648.2.
* * * * *
Sweep, with respect to dredge or dredge gear as defined in this
section, means a chain extending, usually in an arc, from one end of
the dredge frame to the other to which the ring bag, including the
diamonds, is attached. The sweep forms the edge of the opening of the
dredge bag.
* * * * *
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
3. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec.
223.206(d)(9).
4. In Sec. 223.206, paragraph (d)(11)(i) is revised to read as
follows:
Sec. 223.206 Exemptions to prohibitions relating to sea turtles.
* * * * *
(11) Restrictions applicable to sea scallop dredges in the mid-
Atlantic--(i) Gear Modification. During the time period of May 1
through November 30, any vessel with a sea scallop dredge and required
to have a Federal Atlantic sea scallop fishery permit, regardless of
dredge size or vessel permit category, that enters waters south of
41[deg]9.0' N. latitude, from the shoreline to the outer boundary of
the Exclusive Economic Zone must have on each dredge a chain mat
described as follows. The chain mat must be composed of horizontal
(``tickler'') chains and vertical (``up-and-down'') chains that are
configured such that the openings formed by the intersecting chains
have no more than 4 sides. The vertical and horizontal chains must be
hung to cover the opening of the dredge bag such that the vertical
chains extend from the back of the cutting bar to the sweep. The
horizontal chains must intersect the vertical chains such that the
length of each side of the openings formed by the intersecting chains
is less than or equal to 14 inches (35.5 cm) with the exception of the
side of any individual opening created by the sweep. The chains must be
connected to each other with a shackle or link at each intersection
point. The measurement must be taken along the chain, with the chain
held taut, and include one shackle or link at the intersection point
and all links in the chain up to, but excluding, the shackle or link at
the other intersection point.
* * * * *
[FR Doc. E9-10311 Filed 4-30-09; 4:15 pm]
BILLING CODE 3510-22-P