46930 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 

and Budget (OMB) under the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.). 

This rule will not impose new 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We have determined that 

Environmental Assessments and 

Environmental Impact Statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.), need not 

be prepared in connection with 

regulations adopted under section 4(a) 

of the Act. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

References Cited 

A complete list of all references cited 

in this rule is available on the Internet 

at http://www.regulations.gov or upon 

request from the Branch of Listing, 

Endangered Species Program, U.S. Fish 

and Wildlife Service (see ADDRESSES). 

Author 

The primary authors of this final rule 

are staff members of the Division of 

Scientific Authority, U.S. Fish and 

Wildlife Service. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as follows: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

■ 2. Amend § 17.11(h) by adding new 

entries for ‘‘Petrel, Chatham,’’ ‘‘Petrel, 

Fiji,’’ and ‘‘Petrel, magenta’’ in 

alphabetical order under ‘‘Birds’’ to the 

List of Endangered and Threatened 

Wildlife as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic 

range 

Vertebrate 

population where 

endangered or 

threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

BIRDS

* * * * * * * 

Petrel, Chatham Pterodroma axillaris ................ Pacific Ocean—New Zealand 

(Chatham Islands).

Entire .................. E ....... 763 NA ........ NA 

Petrel, Fiji .......... Pseudobulweria macgillivrayi .. Pacific Ocean—Fiji (Gau Island).Entire .................. E ....... 763 NA ........ NA 

* * * * * * * 

Petrel, magenta Pterodroma magentae ............ Pacific Ocean—New Zealand 

(Chatham Islands).

Entire .................. E ....... 763 NA ........ NA 

* * * * * * * 

Dated: August 31, 2009. 

Daniel M. Ashe, 

Deputy Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–22033 Filed 9–11–09; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 222 and 223 

[Docket No. 0809121212–91160–02] 

RIN 0648–AX20 

Endangered and Threatened Wildlife; 

Sea Turtle Conservation 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

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. NMFS issues this final rule 

to make minor modifications to these 

chain-mat requirements. This final rule 

clarifies where on the dredge the chain 

mat must be hung, excludes 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 adds 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. 

DATES: Effective October 14, 2009. 

ADDRESSES: Copies of the Supplement to 

the Environmental Assessment/ 

Regulatory Impact Review prepared for 

this final rule may be obtained by 

writing to Ellen Keane, NMFS, 

Northeast Region, 55 Great Republic 

Drive, Gloucester, MA 01930. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Keane (ph. 978–282–8476, fax 

978–281–9394, email 

ellen.keane@noaa.gov). 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 46931 

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. Due to the 

inability to distinguish between these 

populations of green turtles away from 

the nesting beach, NMFS considers 

green sea turtles endangered wherever 

they occur in U.S. waters. Kemp’s 

ridley, hawksbill, loggerhead, and green 

sea turtles are hard-shelled sea turtles. 

Under the ESA and its implementing 

regulations, taking sea turtles under 

NMFS’ jurisdiction, even incidentally, 

is prohibited, with exceptions identified 

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 

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 opening 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). Additional information on the 

background, affected environment, and 

environmental consequences of this 

action is included in the preamble to the 

proposed rule (74 FR 20667, May 5, 

2009) and in the Supplement to the 

Environmental Assessment (NMFS 

2009). 

This action is being taken under the 

ESA provisions authorizing the issuance 

of regulations to conserve threatened 

species and for enforcement purposes 

(sections 4(d) and 11(f), respectively). 

This final rule modifies the existing 

chain mat regulations that apply to 

chain-mat modified dredges in the 

Atlantic sea scallop fishery to: (1) more 

clearly define where on the dredge gear 

the chain mat must be hung; (2) exclude 

the sweep from the requirement that the 

each side of the opening 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. 

Specifically, the chain-mat 

regulations now require 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 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. The action does not 

change the requirement that any vessel 

that enters the waters described above 

and that is required to have a Federal 

Atlantic sea scallop fishery permit must 

have the chain mat configuration 

installed on all dredges for the duration 

of the trip (50 CFR 223.206 (d)(11)(ii)) 

or the transiting provision (50 CFR 

223.206 (d)(11)(iii). 

Comments and Responses 

On May 5, 2009, NMFS published a 

proposed rule which would clarify 

where on the dredge the chain mat 

should be hung, exclude the sweep from 

the requirement that each side of the 

opening in the chain mat be less than or 

equal to 14 inches (35.5 cm), and add 

definitions of the sweep and diamonds 

(74 FR 20667). Comments on this 

proposed rule were requested through 

June 4, 2009. Four comment letters from 

individuals or organizations were 

received during the public comment 

period. One comment letter was related 

to the Hawaii shallow set longline 

fishery, and another letter was related to 

overfishing. These two comment letters 

are not relevant to the proposed action 

and are not discussed further. One 

commenter was generally supportive of 

the action but provided comments on 

particular aspects of the rule. One 

commenter expressed neither support 

for nor opposition to the action. A 

complete summary of the comments/ 

issues raised in the relevant comment 

letters and NMFS’ responses, grouped 

according to general subject matter in no 

particular order, is provided here. 

Comment 1: The commenter supports 

the refinements. While the proposed 

changes stating that the chain mat must 

cover the entire opening of the dredge 

bag provide more clarity, the exclusion 

of the sweep from the 14–inch (35.5– 

cm) requirement is a significant 

improvement that helps insure the 

configuration of the chain mat more 

closely resembles the design that 

Fisheries Survival Fund developed and 

tested. 

Response: The information available 

on the size and identification of sea 

turtles encountered in this fishery and 

the gear tested during the experimental 

fishery supports the 14–inch (35.5–cm) 

requirement. As described in the 

Supplement to the Environmental 

Assessment and the proposed rule (74 

FR 20667, May 5, 2009), excluding the 

sweep from the 14–inch (35.5–cm) 

requirement will only have an 

inconsequential impact on the degree to 

which the modified gear provides 

protection to sea turtles. This change 

will result in only one slightly larger 

opening on a subset of dredges used in 

the fishery, and this increase in size of 

the opening is small due to the way the 

gear is configured. For these reasons, 

this action excludes the sweep from the 

14–inch (35.5–cm) requirement. 

Comment 2: Applying the 14–inch 

(35.5–cm) requirement to the sides of 


cprice-sewell on DSK2BSOYB1PROD with RULES
46932 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 

the squares (or triangles) formed by the 

sweep would mean that the other 

squares in the mat would have to be 

significantly smaller than 14–inches 

(35.5–cm) per side because the sweep 

hangs in an arc. The commenter claims 

that the chain mat design, as tested, had 

openings with sides that exceeded 14 

inches (35.5 cm) and yet the test results 

showed that the device was highly 

effective in protecting sea turtles by 

preventing them from entering the 

dredge bag. For this reason, the 

commenter agrees that the new rule 

‘‘would result in inconsequential 

impacts on the conservation benefit of 

the chain mats.’’ 

Response: As described in the 

Supplement to the EA and the proposed 

rule (74 FR 20667, May 5, 2009), NMFS 

identified two alternate ways to 

configure the gear to comply with the 

14–inch requirement throughout the 

chain mat, including the sweep. One of 

these would result in smaller openings 

(approximately 9–10 inches (22.9 25.4 

cm) per side) throughout the chain mat. 

It was never the intention that the 

requirement result in openings in the 

chain mat of 9–10 inches (22.9- 25.4 cm) 

per side. The second way fishermen 

could comply with the 14–inch 

requirement including the sweep would 

be to add a small piece of chain to any 

opening where the sweep side measured 

more than 14 inches, dividing the sweep 

and creating two smaller openings. The 

number of openings that would require 

modification with a small piece of chain 

would be limited to that area along the 

sweep that is curved. 

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 chainmat equipped dredge was completed in 

2008. Only a single photograph of one 

11–ft dredge was analyzed. The analysis 

showed that the lengths of the sides of 

the openings on the image analyzed 

were both greater than and less than 14 

inches (35.5 cm) and that 14 inches 

(35.5 cm) was within the range of 

openings tested in the experimental 

fishery. Based on this information, 

NMFS re-evaluated the chain mat 

requirements and found that the 

available information continues to 

support an opening of 14 inches (35.5 

cm) or less and that the conclusions of 

the analysis conducted for the April 

2008 rule are still valid. 

The proposed rule describes the 

reasons why excluding the sweep from 

the 14–inch requirement would only 

result in inconsequential impacts on the 

conservation benefits of the chain mats. 

In general, there may only be one 

slightly larger opening on a subset of 

dredges used in the fishery and the 

increase in the size of that opening is 

small due to the way the gear is 

configured. Therefore, the conservation 

benefits to sea turtles are essentially the 

same. It is 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 present on some 

dredges. 

Comment 3: The commenter requests 

that NMFS consider that any vessel 

leaving a mid-Atlantic port for a Georges 

Bank access area trip would have to 

install the chains to transit the regulated 

area, uninstall them at sea to fish, and 

then reinstall them for the return 

voyage. The commenter claims that the 

alleged lack of a transit provision an 

exemption for vessels embarking on a 

declared access area trip outside the 

regulated area serves no purpose. All 

vessels have a Vessel Monitoring 

System (VMS), and it would be an easy 

matter to know if vessels were fishing in 

the mid-Atlantic. Enforcement officials 

would be able to confirm that the vessel 

was declared into an access program. 

Response: The current chain-mat 

regulations have a transiting provision, 

allowing transiting vessels to be 

exempted from the requirements 

provided the dredge gear is stowed and 

there are no scallops on-board. A vessel 

leaving a port in the mid-Atlantic would 

not need to install the gear while 

transiting to the fishing grounds 

provided it met those conditions of the 

transiting provision. As a consequence 

of this provision, vessels fishing north 

of the line would need to either land the 

catch north of the line or install chain 

mats before transiting back through the 

regulated area with scallops on-board. 

It is possible to determine if the vessel 

has declared into an access area. 

However, the northern boundary of the 

chain-mat regulation divides the Closed 

Area I (CAI) and Closed Area II (CAII) 

Scallop Access Areas. Therefore, vessels 

fishing in CAI or CAII may or may not 

be within the regulated area. The VMS 

regulations require scallop vessels to be 

responsible for position reports ‘‘at least 

twice per hour.’’ Although speed and 

vessel tracklines might indicate fishing 

activity, half-hour polls alone do not 

provide a full picture of where the 

vessel was between polls. Therefore, 

increased polling would be necessary to 

determine where the vessel was fishing. 

At this time, increased polling is not 

possible because the current technology 

provided by the VMS vendors does not 

support changing the reporting rate by 

fishery declaration. Before a vessel starts 

a trip, it must declare whether the trip 

will be general category or limited 

access and the area in which it will fish. 

The vendors do not have the capacity to 

sort through the declarations and target 

polling intervals accordingly. In 

addition, it is more enforceable during 

an at-sea boarding to have the 

requirement that the chain-mat gear be 

installed as the boarding officer would 

not need to make the determination 

whether the vessel is or recently has 

been fishing or is only transiting. For 

these reasons, NMFS is not modifying 

the transiting provision with this action. 

Comment 4: There are no 

objectionable vessel safety or 

enforcement concerns with the 

proposed rule. 

Response: NMFS concurs with this 

comment. 

Changes From the Proposed Rule 

No changes have been made from the 

proposed rule (74 FR 20667, May 5, 

2009). 

Classification 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this rule 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis is not 

required and none has been prepared. 

Literature Cited 

DuPaul, W. D., D. B. Rudders, and R. 

J. Smolowitz. 2004. 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. NOAA, NMFS 

Northeast Regional Office. Gloucester, 

MA. 152 pp. 

NMFS (National Marine Fisheries 

Service). 2009. Final Supplement to the 

Environmental Assessment/Finding of 

No Significant Impact and Regulatory 

Impact Review for Sea Turtle 

Conservation Measures for the Atlantic 

Sea Scallop Dredge Fishery. NOAA, 

NMFS Northeast Regional Office. 

Gloucester, MA. 26 pp. 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 46933 

List of Subjects in 50 CFR Parts 222 and 

223 

Endangered and threatened species. 

Dated: September 8, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set forth in the 

preamble, 50 CFR parts 222 and 223 are 

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: 

§ 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, 

§ 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. 

* * * * * 

(d) * * * 

(11) Restrictions applicable to sea 

scallop dredges in the mid-Atlantic—(i) 

Gear Modification. During the time 

period of May 1 through November 30, 

any vessel with a sea scallop dredge and 

required to have a Federal Atlantic sea 

scallop fishery permit, regardless of 

dredge size or vessel permit category, 

that enters waters south of 41° 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 

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. E9–22039 Filed 9–11–09; 8:45 am] 

BILLING CODE 3510–22–S 


cprice-sewell on DSK2BSOYB1PROD with RULES