Endangered and Threatened Wildlife: Sea Turtle Conservation

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Federal Register: April 8, 2008 (Volume 73, Number 68)

Rules and Regulations

Page 18984-19000

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr08ap08-14

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration 50 CFR Part 223

Docket No. 071030628-8482-02

RIN 0648-AV84

Endangered and Threatened Wildlife; Sea Turtle Conservation

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to clarify the existing sea turtle conservation requirements for sea scallop dredge vessels entering waters south of 41[deg]9.0' N. latitude from May 1 through November 30 each year and to add a transiting provision to the requirements. 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 (EEZ) must have a chain mat on each dredge, unless the terms of the transiting provision are met. The chain-mat modified dredge is necessary to help reduce mortality and injury to endangered and threatened sea turtles in scallop dredge gear and to conserve sea turtles listed under the Endangered Species Act (ESA). This current action addresses a procedural error in the original rulemaking to require chain mats on scallop dredge gear, clarifies the existing requirements, and adds a transiting provision to the regulations. Any incidental take of threatened sea turtles in sea scallop dredge gear in compliance with this gear modification requirement and all other applicable requirements will be exempted from the ESA's take prohibition.

DATES: Effective May 8, 2008.

ADDRESSES: Copies of the Environmental Assessment (EA) and Regulatory

Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA) prepared for this final rule may be obtained by writing to Ellen Keane, NMFS,

Northeast Region, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Ellen Keane (ph. 978-281-9300 x6526, fax 978-281-9394, e-mail ellen.keane@noaa.gov) or Barbara Schroeder

(ph. 301-713-2322, fax 301-427-2522, e-mail barbara.schroeder@noaa.gov).

SUPPLEMENTARY INFORMATION:

Background

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973

  (ESA). The Kemp's ridley (Lepidochelys kempii), leatherback

(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) sea turtles are listed as endangered. The loggerhead (Caretta caretta) and green (Chelonia mydas) sea turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico that are listed as endangered. 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. The incidental take, both lethal and non-lethal, of loggerhead, Kemp's ridley, and unidentified hard-shelled sea turtles has been documented in the sea scallop dredge fishery, as well as a non-lethal take of a green sea turtle (NEFSC FSB, Observer Database). In addition, an unconfirmed take of a leatherback sea turtle was reported during the experimental fishery to test the chain-mat modified dredge gear (DuPaul et al., 2004).

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). The requirement to use chain-mat modified dredge gear is necessary to provide for the conservation of threatened loggerhead sea turtles, and will have ancillary benefits for other sea turtle species that have been taken in the sea scallop dredge fishery, albeit to a lesser extent than loggerheads. Under the ESA and its implementing regulations, taking endangered sea turtles--even incidentally--is prohibited. The incidental take of endangered species may only legally be exempted by an incidental take statement (ITS) or an incidental take permit issued pursuant to section 7 or 10 the ESA, respectively. Existing sea turtle conservation regulations at 50 CFR 223.206(d) exempt fishing activities and scientific research from the prohibition on takes of threatened species under certain conditions. Any incidental take of threatened loggerhead sea turtles in sea scallop dredge gear in compliance with this gear modification requirement and other applicable requirements is exempted from the prohibition against takes.

The chain-mat modified dredge is expected to benefit sea turtles following an interaction in the water column. Based on the available information, NMFS has determined that the use of a chain-mat modified dredge will prevent most captures of sea turtles in the dredge bag as well as any ensuing injuries as a result of such capture (e.g., crushing in the dredge bag, crushing on deck, etc.). However, NMFS has made the conservative assumption that a turtle in a bottom interaction sustains significant injuries on the bottom, so, under this conservative assumption, there would not be a benefit from the chain mat for bottom interactions. This assumption, however, may be too conservative in that it is possible (although not likely) that turtles in a bottom interaction only receive minor injuries. In the unlikely scenario of a turtle receiving only minor injuries following a bottom interaction, the chain mat modification would prevent significant injuries that result from capture in the dredge bag (i.e, injuries

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from debris in the bag, drowning from forced submergence, dropping on deck, or crushing by the dredge). Additional information on the background, affected environment, and environmental consequences of this action is included in the preamble to the proposed rule (72 FR 63537, November 9, 2007) and in the Final Environmental Assessment (EA) for this aciton.

This final rule will (1) clarify the requirements related to the use of chain mats in the Atlantic sea scallop dredge fishery, (2) add a transiting provision, and (3) address a procedural error in the August 2006 rulemaking (71 FR 50361, August 25, 2006) that required the use of chain-mat modified dredges in the Atlantic sea scallop fishery.

Specifically, this action requires 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 EEZ, to modify their dredge(s) with a chain mat. The chain mat must be composed of horizontal and vertical chains configured such that the openings formed by the intersecting chains have no more than four sides. The length of each side of the openings created by the intersecting chains, including the sweep, must be less than or equal to 14 inches (35.5 cm). 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, unless it meets the terms of the transiting provision. Vessels may transit through the regulated area provided that the dredge gear is stowed and there are no scallops on board. These requirements are in place from May 1 though November 30 each year.

New Information

Since the requirement for the chain-mat modified gear became effective in the fall of 2006, there have been five takes of sea turtles in the scallop dredge fishery. Four of the takes, all loggerhead sea turtles, occurred south of the current northern boundary of the chain mat regulation, while one take, a Kemp's ridley sea turtle, was documented north of this line. Of the four takes south of the line, one of the turtles was observed on top of the dredge frame, swimming away before the dredge came on deck; two were observed in the dredge bag; and one turtle was reported between the chain mat and the dredge. These takes occurred in June (1), August (1), September (2), and October (2). While information on the incidental take that occurred in June was available for the proposed rule, the data on the remaining takes were considered preliminary at that time. Detailed information on these takes and the implications these takes may have regarding the chain-mat modified gear are discussed in the response to Comment 1.

Comments and Responses

On November 9, 2007, NMFS published a proposed rule to clarify the requirements regarding chain-mat modified dredges in the Atlantic sea scallop fishery and to add a transiting provision to these requirements

(72 FR 63537, November 9, 2007). Comments on this proposed action were requested through December 10, 2007. Six comment letters from individuals or organizations were received during the public comment period. Two commenters were generally supportive of the action but provided comments on particular aspects of the proposed rule, three commenters were opposed to the proposed action, and one provided neither support nor opposition to the proposed action. A complete summary of the comments and NMFS( responses, grouped according to general subject matter in no particular order, is provided here. In their comment letter on the proposed rule, Oceana incorporated comments submitted previously on the Biological Opinion for the Atlantic sea scallop fishery and on the August 2006 chain mat regulation. Those comments included in the submission and relevant to this action will be addressed in the comment/response section below. This submission also included comments that are not relevant to this particular action.

These include comments on the original rulemaking related to the economic analysis for the seasonal closure (a non-preferred alternative), other comments on alternatives not considered in this action, and reinititation of consultation based on a letter dated March 13, 2005 received from Dr. Heppell addressing the December 2005

Biological Opinion and a statement on cumulative effects included in the Draft EA (NMFS 2006a) for that action. These comments are addressed in the August 2006 final rule (71 FR 50361, August 25, 2006).

Additional comments not relevant to this action are related to the jeopardy analysis included in the Biological Opinion, and the model used for the analysis, and turtle excluder devices for the sea scallop trawl fishery.

Comment 1: The purported benefit of chain mats was that, even though most sea turtles are probably severely injured or killed as a result of seafloor collisions, some small number that collide with dredges in the water column are saved because they are prevented from entering the dredge bag. This benefit may be illusory since five turtles were observed captured in 2007, a large number given the low levels of observer coverage in the fishery.

Response: Since the requirement for the chain-mat modified gear became effective, the Northeast Fisheries Science Center (NEFSC)

Fisheries Sampling Branch (FSB) has documented five takes of sea turtles in the scallop dredge fishery. These takes occurred in June

  (1), August (1), September (2), and October (2). Four of the takes, all loggerhead sea turtles, occurred south of the 41[deg]9.0' N. latitude line (the northern boundary of the regulation); while one take, a

Kemp's ridley (fresh dead), was documented north of this line. Chain mats were not required, nor were they used, on the trip that occurred north of 41[deg]9.0' N. latitude. Of the four takes south of the line, one of the turtles was reported by the crew on top of the dredge frame; two were reported in the dredge bag; and one was reported by the captain on the outside of the chains, between the chains and the dredge. All four of the turtles were alive and the observers' comments indicated that the turtles were injured (NEFSC, FSB, Observer

Database).

One of the turtles was reported on the top of the dredge frame, possibly held by water pressure. This turtle swam away before the gear was hauled above the waterline. Sea turtles have been documented on the dredge frame previously and have swum away as the gear nears/reaches the surface, indicating that the turtle may have been held by water pressure. NMFS has no indication that this type of interaction would result in significant injury. The chain mat gear is designed to prevent sea turtles from being captured in the dredge bag, not to prevent this type of interaction, which can occur regardless of whether a chain mat is used.

One turtle was reported by the vessel captain to be on the outside of the chain mat, caught between the dredge and the chains. However, it is unclear exactly how and where the turtle was caught/hung up on the dredge frame and/or the chains. The observer did not see the turtle until it was brought on-board. The captain reported that the turtle hit between the dredge and the vessel and then again while lowering the gear to deck. This type of interaction could result in injuries that occur during hauling and emptying of the gear. In 2005 and 2006, NMFS worked with

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industry to test a dredge with a modified frame designed to guide sea turtles up and over the dredge frame (see response to Comment 3). The video work conducted during this project did show that sea turtles may become caught on the chains following an interaction on the bottom.

However, this likely follows the turtle being struck by the dredge, during which it is likely to have become injured. It is not known whether the interaction in 2007 occurred in the water column or on the bottom. From the available information, it is not known whether the chain mat contributed to the take or the nature of the injuries sustained by the turtle. NMFS is not aware of any other interactions of this nature and it is possible that this is a unique event. NMFS will continue to monitor the sea scallop dredge fishery to determine whether this is indeed a unique event.

The chain-mat modified gear is expected to prevent most sea turtles from entering the dredge bag and injuries that result from such capture. However, two turtles were documented in the dredge bag by the

NEFSC FSB in 2007. NMFS investigated whether this may mean that the gear was not functioning as expected and as described in the proposed rule for this action. For one of the interactions resulting in capture in the dredge bag, the openings in the chain mat were measured by the observer at the start of the trip and following the take. After the tow in which the turtle was observed, some openings in the chain mat, particularly at the top of the bag and near the sweep, measured from 16 to 20 inches (40.6-50.8 cm). The turtle captured on this trip measured 65.2 cm (25.7 inches) curved carapace length from notch to tip and 61.5 cm (24.2 inches) curved carapace width (NEFSC, FSB, Observer database).

Using the formulas in Teas (1993) and Coles (1999), respectively, this is a straight carapace length of 60.4 cm (23.8 inches) and a straight carapace width of 50.2 cm (19.8 inches). Given the larger openings recorded in the chain mat, a sea turtle of the size observed captured would be small enough to pass through the observed openings.

The second turtle reported captured in the dredge bag measured 89 cm (35.0 inches) from notch to tip and 83 cm (32.7 inches) curved carapace width (NEFSC, FSB, Observer database). Using the formulas in

Teas (1993) and Coles (1999), respectively, this is a straight carapace length of 82.9 cm (32.6 inches) and a straight carapace width of 66.2 cm (26.1 inches). No measurements were taken of the openings in the chain mat. However, the observer's comments indicate that there were breaks in, or problems with, the chain mat that allowed the turtle to be captured in the bag. There were several comments in the observer's log about chains/shackles being broken, but none specifically on the tow in which the turtle was taken. On tows prior to the one on which the turtle was taken, there were several instances of large (500 pound

(227 kg) and 800 pounds (363 kg)) rocks being caught inside the dredge.

The rocks were larger than the turtle that was taken, and too large to fit through a chain mat that was operating correctly. The observer also stated that the horizontal chain closest to the cutting bar may not have been attached to the vertical chain, so the grid was not fixed, which would allow for larger openings (memo from Pasquale Scida to The

File, March 11, 2008). For both interactions that resulted in the capture of the sea turtle in the dredge bag, the observers' comments indicate that there were openings in the gear larger than the openings required, allowing the sea turtles to pass into the dredge bag.

This information shows that non-compliant chan mats may result in failure to achieve the intended conservation benefits. However, it does not indicate that the gear, when properly implemented, does not function as expected. NMFS believes that when the gear is properly implemented, it will prevent most sea turtles from being captured in the dredge bag. NMFS is developing a plan to collect information on and to monitor the degree/frequency of stretch and breakage that is occurring in order to better understand the impacts of the wear of the gear. NMFS will also continue to use observer data to gain a better understanding of how sea turtles may be interacting with other parts of the dredge gear (i.e., outside of the dredge bag).

The observer coverage in the Atlantic sea scallop dredge fishery in 2007 is comparable to that over the preceding 5 years (memo from Ellen

Keane to The File, February 27, 2007). The number of observed hauls May 1 through November 30 in waters south of 41[deg]9.0' N. latitude was 4617 in 2002, 5877 in 2003, 10609 in 2004, 7601 in 2005, and 5176 in 2006. From May 1 through October 31, 2007, 8317 hauls were observed.

Data on the number of hauls observed in November 2007 is not yet available, but will increase the total number of observed hauls in 2007. The number of hauls observed in 2007 is greater than all but one of the preceding 5 years.

Comment 2: Two comments addressed the spatial extent of the proposed rule. One supported using a longitudinal line at 70[deg] W. longitude (long.) as the boundary of the rule as, according to the comment, this is the area in which the gear was tested and is far northward of the area where takes are likely to occur, or where they have occurred with rare exceptions. A second commenter supported the action and the northern boundary as proposed, but noted that the boundary needs to be monitored closely for any changes in the distribution of sea turtles or sea scallops, and therefore, fishing effort, due to environmental change.

Response: Sea turtle species that are found off the northeastern coast of the United States north of Cape Hatteras, North Carolina are, in order of frequency of occurrence, loggerhead, leatherback, Kemp's ridley, and green sea turtles (Shoop, 1980; Shoop and Kenney, 1992).

The distributions of all four species overlap in part with the distribution of scallop dredge gear. Loggerhead, leatherback, Kemp's ridley, and green sea turtles occur seasonally in southern New England and mid-Atlantic continental shelf waters north of Hatteras. The occurrence of these species in these waters is temperature dependent

(Keinath et al., 1987; Shoop and Kenney, 1992; Musick and Limpus, 1997;

Morreale and Standora, 1998; Braun-McNeill and Epperly, 2002; James et al., 2005b; Morreale and Standora, 2005). In general, turtles move up the coast from southern wintering areas as water temperatures warm in the spring. The trend is reversed in the fall as water temperatures cool. By December, turtles have passed Cape Hatteras, returning to more southern waters for the winter (Keinath et al., 1987; Shoop and Kenney, 1992; Musick and Limpus, 1997; Morreale and Standora, 1998; Braun-

McNeill and Epperly, 2002; James et al., 2005b; Morreale and Standora, 2005). Hard-shelled species are typically observed as far north as Cape

Cod whereas more cold-tolerant leatherbacks are observed in more northern Gulf of Maine waters in the summer and fall (Shoop and Kenney, 1992; STSSN database). Extensive survey effort on the continental shelf from Cape Hatteras, North Carolina to Nova Scotia, Canada in the 1980s

(CeTAP, 1982) revealed that loggerheads were observed in waters from the beach to depths of up to 4481 m (14,701 ft). However, they were, in general, more commonly found in waters from 22-49 m (72.2-160.8 ft) deep (Shoop and Kenney, 1992). The overall depth range of leatherback sightings in the CeTAP study (1982) was comparable to loggerheads.

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Leatherbacks were sighted in water depths ranging from 1-4151 m (3.3- 13,619 ft) (Shoop and Kenney, 1992). However, leatherback depth distribution was broader than that of loggerheads with 84.4 percent of the sightings in waters less than 180 m (590.6 ft) (Shoop and Kenney, 1992). By comparison, 84.5 percent of loggerhead sightings were in waters less than 80 m (262.5 ft) (Shoop and Kenney, 1992). The CeTAP study did not include Kemp's ridley and green turtle sightings given the difficulty of sighting these smaller species.

Sixty-five turtles have been observed taken in the sea scallop dredge fishery from 1996 through December 2007. An additional 16 turtles were reported captured on an off-watch or unobserved haul.

Prior to 2005, no sea turtle takes had been observed in the sea scallop dredge fishery outside the mid-Atlantic region. In the 1999 and 2000 scallop fishing years, relatively high levels of observer coverage (22 percent-51 percent) occurred in portions of the Georges Bank

Multispecies Closed Areas that were conditionally opened to scallop fishing (memo from M. Sissenwine to P. Howard, November 1, 2000).

Despite this high level of observer coverage and operation of scallop dredge vessels in the area during June-October, no sea turtles were observed captured in scallop dredge gear in these years. From 2001 through 2004, observer coverage was low in the Gulf of Maine (

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