63498 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Proposed Rules 

operating on spectrum between 2160 

MHz and 2200 MHz.

[FR Doc. 04–24433 Filed 11–1–04; 8:45 am] 

BILLING CODE 6712–01–P

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.

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 MagnusonStevens 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 ESAlisted 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 MagnusonStevens 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, 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Proposed Rules 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. Fisheryspecific 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 MidAtlantic 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 

63500 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Proposed Rules 

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 Yucata ́n nesting 

subpopulations (Bass et al. 1998; 

Rankin-Baransky et al. 2001).

The largest loggerhead subpopulation 

occurs from 29° 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 Yucata ́n nesting 

subpopulation, occurring on the eastern 

Yucata ́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.

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Proposed Rules 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]

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