[Federal Register Volume 69, Number 211 (Tuesday, November 2, 2004)]
[Proposed Rules]
[Pages 63498-63501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24430]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[I.D 062804C]


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Petition for Rulemaking

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

ACTION: Notice of decision on petition for emergency rulemaking.

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SUMMARY: NMFS responds to a NMFS announces its decision not to 
undertake the rulemaking requested in a Petition for Rulemaking 
(Petition) submitted by the Fisheries Survival Fund (FSF) and the 
Garden State Seafood Association (GSSA) (Petitioners) , that 
requesteding that that NMFS develop and implement an emergency rule 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) to require specific modifications to the 
fishing gear used by Atlantic sea scallop vessels fishing south of Long 
Island and north of Cape Hatteras from May 1 through October 15. The 
gear modifications requested are the installation of a chain mesh 
configuration (``turtle chains'') in dredge gear and the installation 
of effective turtle excluder devices (TEDs) in trawl gear. The 
Petitioners proposed that these measures should be required for any 
Atlantic sea scallop vessel, whether fishing under a Limited Access or 
General Category permit, to prevent the incidental capture of sea 
turtles. NMFS announces that it will conduct rulemaking under the 
authority of the Endangered Species Act (ESA) to enact measures by May 
2005 to address incidental sea turtle takes in the Atlantic sea scallop 
fishery. NMFS has decided not to undertake the rulemaking as an 
emergency rule under the Magnuson-Stevens Act because the circumstances 
outlined in the Petition do not justify an immediate need for a 
Magnuson-Stevens Act emergency rule and the Magnuson-Stevens Act is not 
the appropriate legal authority for adequately addressing incidental 
takes of sea turtles in the sea scallop fishery. NMFS has denied the 
specific request made in the petition for the use of the emergency 
rulemaking authority provided in the Magnuson-Stevens Act. This 
decision is based on the determination that the circumstances outlined 
in the petition are not consistent with NMFS policy guidelines for the 
use of the emergency authority provided in the Magnuson-Stevens Act. 
While emergency action is not warranted under the Magnuson-Stevens Act, 
NMFS announces that it will conduct rulemaking under the authority of 
the Endangered Species Act (ESA) to enact measures by May 2005 to 
address incidental sea turtle takes in the Atlantic sea scallop 
fishery.

FOR FURTHER INFORMATION CONTACT: Peter Christopher, 978-281-9288; fax 
978-281-9135 or Pat Scida, 978-281-9208; fax 978-281-9394.

SUPPLEMENTARY INFORMATION: On June 17, 2004, the Petitioners submitted 
a Petition requesting that NMFS promulgate an emergency rule pursuant 
to section 305(c) of the Magnuson-Stevens Act. The Petitioners asserted 
that sea turtle captures in the scallop fishery ``represent a recently-
emerging and relatively modest phenomenon.'' The Petitioners stated 
that, after increased incidental sea turtle captures were documented in 
2001, the FSF began working with Dr. William DuPaul of the Virginia 
Institute of Marine Sciences (VIMS) and Captain Ronald Smolowitz, a 
scallop gear researcher, to design and test a chain configuration for 
the front of the scallop dredge to reduce or eliminate the catch of sea 
turtles in scallop dredges. The Petition referenced an interim report 
authored by W. DuPaul, D. Rudders, and R. Smolowitz, ``Interim Report: 
Industry Trials of a Modified Sea Scallop Dredge to Minimize the Catch 
of Sea Turtles,'' VIMS Marine Research Report No. 2004-08 (May 2004), 
that described the 2 years of field trials during which turtle chains 
were tested. Preliminary results described in that report stated that 
the researcher's experimental dredge recorded no takes of sea turtles, 
while the control dredge recorded nine takes. The Petitioners noted 
that the VIMS Sea Grant Program and FSF had developed instruction cards 
for vessel captains, which set forth specifications for voluntary use 
of the turtle chains. The Petitioners requested that NMFS immediately 
initiate emergency rulemaking to require use of turtle chains on 
scallop dredges and TEDs on scallop trawl vessels from Long Island to 
Cape Hatteras from May 1 through October 15. NMFS published a notice of 
receipt of a Petition for rulemaking on July 7, 2004 (69 FR 40850) and 
invited public comment for 30 days, through August 6, 2004. Subsequent 
to the publication of the notice of receipt, the researchers submitted 
a draft final version of the report submitted with the Petition (DuPaul 
et al., 2004) to NMFS.

Reinitiation of Consultation

    In addition to the information provided by the Petitioners and the 
public comments, which are addressed in detail below, a technical 
report was issued by the Northeast Fisheries Science Center (NEFSC) in 
August 2004 entitled, ``Bycatch of Sea Turtles in the Mid-Atlantic Sea 
Scallop (Placopecten magellanicus) Dredge Fishery during 2003'' (NEFSC 
Reference Document 04-11). The report presents an extrapolation of 
loggerhead sea turtle takes for the Mid-Atlantic sea scallop dredge 
fishery from June to November, 2003, and is based on data collected 
during observed scallop dredge fishing trips that occurred from Long 
Island, NY, to Cape Hatteras, NC, during the period June 1, 2003-
November 30, 2003. In all, 630 loggerhead sea turtles are estimated to 
have been caught with scallop dredge gear that operated in this Mid-
Atlantic region during that portion of the 2003 scallop fishing year. 
This represents new information regarding the capture of sea turtles in 
scallop dredge gear. Therefore, formal consultation pursuant to section 
7 of the ESA was reinitiated on September 3, 2004, to reconsider the 
effects of the Atlantic sea scallop fishery on ESA-listed species.

NMFS Decision

    NMFS has carefully considered the information contained in the 
Petition and supporting research report, the public comments, and the 
NEFSC reference document. While NMFS denies the specific request made 
in the Petition for the use of the emergency rulemaking authority 
provided in the Magnuson-Stevens Act, NMFS will conduct rulemaking 
under the authority of the ESA to enact measures by May 2005 to address 
incidental sea turtle takes in the Atlantic sea scallop fishery. This 
rulemaking will have the benefit of providing for full public 
participation under the Administrative Procedure Act.
    This decision is based on the determination that the Magnuson-
Stevens Act does not provide sufficient authority or flexibility to 
adequately address the sea turtle incidental take issue. Any measures 
developed under the Magnuson-Stevens Act are effective only in the 
Exclusive Economic Zone or to federally permitted vessels. As such,

[[Page 63499]]

Magnuson-Stevens Act regulations may not be sufficient to fully address 
incidental takes in state and Federal waters. Further, emergency 
measures under the Magnuson-Stevens Act can only be effective for up to 
180 days with the option of extending such measures for up to an 
additional 180 days. It would then be necessary for the New England 
Fishery Management Council to develop permanent measures for the 
Atlantic sea scallop fishery in a timely fashion. Therefore, given the 
uncertainty of ensuring the promulgation of permanent measures in a 
timely fashion, and the lack of legal authority to regulate fully the 
incidental takes of sea turtles in state waters, emergency rulemaking 
under the Magnuson-Stevens Act is not appropriate to address the 
concerns of the Petitioners.
    Furthermore, the Petitioners proposed that emergency measures 
should be required by fishery participants for the period May 1 through 
October 15. It would not be possible, even through emergency action, to 
prepare required analytical documents and enact the gear requirements 
before October 15, 2004. Also, when regulatory requirements for gear 
construction are involved, NMFS customarily provides a reasonable time 
period for the industry to obtain materials and make the modification 
to their gear. Therefore, upon publication of final regulations, NMFS 
would likely be compelled to delay the effectiveness of the measure to 
provide time for compliance.
    There is no research currently available that demonstrates that the 
TEDs required in other fisheries would be equally effective in reducing 
sea turtle interactions with sea scallop trawl gear. Research conducted 
by NMFS has demonstrated that the development of effective TEDs is 
dependent upon many fishery-specific variables. Fishery-specific gear 
trials are needed in order to determine the most effective TED designs 
for use in sea scallop trawl nets.
    Given the inappropriateness of implementing the Petitioners' 
request as an emergency measure under the Magnuson-Stevens Act, NMFS 
will instead pursue rulemaking under the ESA that will consider the 
promising results of the turtle chain gear study as a way to mitigate 
the impact of the fishery on sea turtles. By pursuing this rulemaking 
process, NMFS has determined that it will be possible to develop new 
regulations that would take effect in early May 2005 without 
jeopardizing the status of the sea turtle populations. Sea turtles are 
present in the waters north of the North Carolina/Virginia border only 
for part of the year due to seasonal changes in water temperature. The 
implementation of management measures in May would coincide with sea 
turtles' distributional patterns in the Mid-Atlantic area.
    NMFS has determined that it will not be making any irreversible or 
irretrievable commitment of resources under section 7(d) of the ESA 
during the consultation period that would have the effect of 
foreclosing the formulation or implementation of any reasonable and 
prudent alternative measures. NMFS also determined that the continued 
implementation of the scallop fishery during the consultation period 
will not reduce the likelihood of survival and recovery of any ESA-
listed species under NMFS jurisdiction.

Comments and Responses

    NMFS received comment letters from 10 individuals and organizations 
during the comment period. Eight commenters expressed support for the 
proposed action, while one commenter expressed qualified support. One 
organization supported emergency action to require implementation of 
the proposed TED requirement, but did not support emergency action to 
require the use of turtle chains.
    Comment 1: Eight commenters strongly supported the Petition. Four 
of these noted that the implementation of the proposed measures is 
vital to avoid unnecessary closures of the scallop fishery in the Mid-
Atlantic. Two of these commenters expressed concern that such a closure 
would result in too much fishing effort being redirected to New 
England. They also expressed concern that a closure of the Mid-Atlantic 
scallop fishery would devastate the small boat and day boat fleet.
    Response: NMFS commends the initiative shown by the scallop 
industry in developing a modified scallop dredge design to reduce sea 
turtle bycatch, and has provided support for the research. NMFS will 
continue to support efforts to develop innovative gear modification 
solutions to reduce bycatch in fishing gear. The draft final report for 
the turtle chain gear research trials (DuPaul et al., 2004) reinforces 
the preliminary conclusions about the effectiveness of this gear 
modification. The reinitiated ESA section 7 consultation will assess 
the impacts of the scallop fishery on listed species. In the absence of 
the conclusion from this section 7 consultation, it is premature to 
predict whether or not implementation of the research results would 
prevent the need for closures of the Mid-Atlantic scallop fishery. NMFS 
acknowledges that such a closure would have negative impacts on some 
fishery participants.
    Comment 2: One commenter expressed qualified support for the 
Petition on a temporary basis only. The commenter expressed concern 
that the proposed measures are overly broad because seasonal migration 
patterns of turtles are not clear. The commenter suggested that the 
measures should be implemented temporarily while additional research is 
conducted. The commenter expressed concern that the area within which 
the measures would be required is too large, and the season during 
which the measures would be required is too long, extending beyond the 
time when sea turtles leave the area. The commenter noted that the 
captains of vessels using the turtle chain gear on a voluntary basis 
have reported that there is an associated loss of efficiency in the 
fishing operation, which means that the gear must be deployed longer, 
increasing the time the gear is on the bottom and increasing vessel 
operating costs.
    Response: NMFS agrees that regulatory measures should be modified 
as appropriate in response to new, reliable information. However, that 
does not preclude NMFS from taking action based on the best available 
information. As noted previously, NMFS intends to carry out rulemaking 
under the ESA to address the interaction between the sea scallop 
fishery and sea turtles. If turtle chains or similar gear modification 
measures are implemented in the future as a result of the upcoming 
rulemaking process, the timing and locations of such measures will be 
based upon the best available information.
    Further, one benefit of proposed and final rulemaking will be to 
afford the full scope of public participation in rulemaking. This means 
that opportunities will be provided for the public to pass on 
information such as that provided by the commenter about the impact of 
the gear on fishing operations. NMFS notes that the draft final report 
on the turtle chain research acknowledged that, during the 2003-2004 
field trails, scallop catches averaged 6.76 percent less for the 
experimental dredge than for the control dredge. The researchers stated 
that the reduction in scallop catch appears to be less for higher 
powered vessels than for lower powered vessels.
    Comment 3: Several commenters suggested areas that should be 
further investigated in future research. Two commenters recommended 
research to better understand sea turtle behavior and reaction when 
encountering modified (and unmodified) dredges. One commenter 
recommended that video cameras should be installed on the dredge frames 
to monitor dredge and

[[Page 63500]]

sea turtle interactions. Two commenters recommended reassessing the 
turtle populations. One commenter recommended tracking sea turtle 
migrations, rotationally opening other areas for scalloping during 
times of likely sea turtle interactions, experimenting with other 
dredge modification materials, and comparing the modified dredge to a 
dredge without turtle chains on vessels with observers.
    Response: NMFS agrees that additional research would be beneficial, 
but that does not mean that the current level of knowledge is 
insufficient to serve as the basis for action. These issues will be 
considered further in the upcoming rulemaking process and in other 
initiatives pursued by NMFS.
    Comment 4: One commenter stated that the data and research provided 
by the Petitioners is inadequate to determine whether the use of 
turtles chains on dredge gear would reduce the number of sea turtle 
takes. This commenter felt that, rather than reducing mitigating sea 
turtle interactions, turtle chains may just change their nature of the 
interaction. Instead of being captured by a scallop dredge, sea turtles 
could be struck by a dredge underwater and that interaction would go 
unobserved and unreported. The commenter felt that further information, 
including underwater video, is needed to characterize turtle behavior 
when it encounters dredge gear in order to demonstrate that the turtle 
chains are beneficial to these animals.
    Response: From July 17, 2003, to July 19, 2004, a series of 18 
experimental fishing trips were completed for a total of 230 days and 
2,675 observed tows (DuPaul et al., 2004). Seven sea turtle 
interactions were observed, all of which were found in the unmodified 
scallop dredge. NMFS believes this initiative represents valuable 
research to evaluate the interactions between scallop dredge gear and 
sea turtles, and will consider the results when preparing future 
management measures potentially impacting the scallop dredge fishery. 
It is possible that sea turtles could be struck by the dredge as it is 
fished, and this interaction could remain unobserved and undocumented. 
NMFS currently has information documenting the take of sea turtles in 
the dredge itself, as observed from on deck, and the recent research 
with a modified dredge appears to have reduced those takes. NMFS 
recognizes that the specific nature of the interactions remain unknown, 
as sea turtles could be taken when the dredge is being fished on the 
bottom or during haulback. Video work will be conducted to provide more 
information on the interactions between sea turtles and dredge gear in 
the water.
    Comment 5: One commenter who supported the TED requirement 
suggested that the recent NMFS modification of TED requirements in the 
southern shrimp fishery (68 FR 8456, February 21, 2003) to assure the 
escapement of large sea turtles, especially leatherback turtles, should 
be applicable to the scallop fishery as well.
    Response: As discussed above, there is no research that 
demonstrates that the TEDs required in other fisheries would be equally 
effective in reducing sea turtle interactions with sea scallop trawl 
gear. Fishery-specific gear trials are needed in order to determine the 
most effective TED designs for use in sea scallop trawl nets. NMFS 
agrees that the maximum sizes of sea turtles likely to be encountered 
in the Mid-Atlantic scallop fishery should be considered when designing 
and implementing effective TEDs for scallop trawl gear.
    Comment 6: Two commenters expressed the opinion that sea turtle 
populations are larger than in previous years, given the existing 
protection measures. One of these commenters stated that the incidence 
of sea turtle sightings and takes in the scallop dredge fishery is 
infrequent, even with the increase in turtle populations. One of these 
commenters stated that the turtle chains will become more necessary as 
sea turtle populations increase.
    Response: It is possible that sea turtle populations in the Mid-
Atlantic have increased, but there are no current data to support that 
assumption. The most reliable assessment of sea turtle populations 
comes from evaluating the number of females on nesting beaches. Most of 
the observed sea turtle takes in the scallop dredge fishery have been 
identified as loggerhead turtles, with the rest of the takes consisting 
of unidentified hard-shelled turtles. Most loggerheads in U.S. waters 
come from one of five genetically distinct nesting subpopulations. 
Based on genetic data, loggerhead sea turtles found interacting with 
the Mid-Atlantic scallop fishery likely originate from the northern, 
south Florida, and Yucat[aacute]n nesting subpopulations (Bass et al. 
1998; Rankin-Baransky et al. 2001).
    The largest loggerhead subpopulation occurs from 29[deg] N. lat. on 
the east coast of Florida, to Sarasota on the west coast of Florida, 
and has shown increases in numbers of nesting females based upon an 
analysis of annual surveys of all nesting beaches. However, a more 
recent analysis, limited to nesting data from the Index Nesting Beach 
Survey program from 1989 to 2002, a period encompassing index surveys 
that are more consistent and more accurate than surveys in previous 
years, has shown no detectable trend (B. Witherington, Florida Fish and 
Wildlife Conservation Commission, pers. comm., 2002). The northern 
subpopulation of loggerheads, which nests from northeast Florida 
through North Carolina, is much smaller than the south Florida 
subpopulation, and nesting numbers are stable or declining. The 
Yucat[aacute]n nesting subpopulation, occurring on the eastern 
Yucat[aacute]n Peninsula, Mexico, is also smaller than the south 
Florida subpopulation, but appears to be stable or increasing (TEWG 
2000).
    During the 1996-2003 fishing years, 53 sea turtle takes were 
documented and attributed to the scallop dredge fishery. Fifty of these 
takes occurred from 2001-2003, when a higher level of observer coverage 
was dedicated to this fishery. Most of the observed sea turtle takes in 
the scallop dredge fishery have been identified as loggerhead turtles. 
However, the ranges of five species of sea turtles overlap with 
portions of the Mid-Atlantic scallop grounds. All of these sea turtle 
species are listed as either endangered or threatened under the ESA. 
Kemp's ridley (Lepidochelys kempii), leatherback (Dermochelys 
coriacea), and hawksbill (Eretmochelys imbricata) turtles are listed as 
endangered, loggerhead (Caretta caretta) and green (Chelonia mydas) 
turtles are listed as threatened, except for breeding populations of 
green turtles in Florida, which are listed as endangered. NMFS has a 
statutory obligation to manage and protect all of these species.

References Cited

    Bass, A.L., S.P. Epperly, J.Braun, D.W. Owens, and R.M. Patterson. 
1998. Natal origin and sex ratios of foraging sea turtles in Pamlico-
Abermarle Estuarine Complex. U.S. Dep. Commer. NOAA Tech. Memo. NOAA 
Fisheries-SEFSC-415.
    Rankin-Baransky, K., C.J. Williams, A.L. Bass, B.W. Bowen, and J.R. 
Spotila. 2001. Origin of loggerhead turtles (Caretta caretta) stranded 
in the northeastern United States as determined by mitochondrial DNA 
analysis. Journal of Herpetology, v. 35, no. 4, 638-646 pp.
    Turtle Expert Working Group (TEWG). 2000. Assessment update for the 
Kemp's ridley and loggerhead sea turtle populations in the western 
North Atlantic. U.S. Dep. Commer. NOAA Tech. Mem. NOAA Fisheries-SEFSC-
444, 115 pp.


[[Page 63501]]


    Dated: October 28, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-24430 Filed 11-1-04; 8:45 am]
BILLING CODE 3510-22-S