Endangered and threatened species: Sea turtle conservation— Mid-Atlantic; sea scallop dredge vessels,

[Federal Register: August 25, 2006 (Volume 71, Number 165)]

[Rules and Regulations]

[Page 50361-50373]

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

[DOCID:fr25au06-16]

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 223

[Docket No. 050315074-6117-02; I.D. 022405B]

RIN 0648-AS92

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 require sea turtle conservation measures for all sea scallop dredge vessels fishing south of 41[deg] 9.0' N. latitude from May 1 through November 30 each year. All vessels with a sea scallop dredge and that are required to have a Federal Atlantic sea scallop fishery permit, regardless of dredge size or vessel permit category, must modify their dredge(s) when fishing south of 41[deg] 9.0' N. latitude, from the shoreline to the outer boundary of the Exclusive Economic Zone (EEZ). This action 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). 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 on the ESA's prohibition against takes.

DATES: Effective September 25, 2006.

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, email ellen.keane@noaa.gov) or Barbara Schroeder (ph. 301-713-1401, fax 301-713-0376, email 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 and unidentified hard-shelled sea turtles as a result of scallop dredging has been documented in the sea scallop dredge fishery. In addition, non-lethal takes of a green and a Kemp's ridley sea turtle have been documented in this fishery.

This action, taken under the authority of section 4(d) of the ESA, is necessary to provide for the conservation of threatened loggerhead sea turtles, and will have ancillary benefits for Kemp's ridley and green sea turtles, which have been observed 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 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. Additional background information for this action is included in the preamble to the proposed rule (70 FR 30660, May 27, 2005).

Based on the available information, NMFS has determined that the use of a dredge modified with a chain mat will prevent most, if not all, captures of sea turtles in the dredge bag as well as any ensuing injuries as a result of being caught in the dredge (e.g., crushing in the dredge bag, crushing on deck, etc.). In addition, it is possible that this action may reduce drowning due to forced submergence following an interaction with sea scallop dredge gear on the seafloor. Sea turtles observed captured in the scallop dredge fishery in 2003 ranged in size from 55 107 cm (21.6 - 42.1 inches) from notch to tip (curved carapace length). When converted to straight carapace length (SCL) based on the formula for loggerheads provided in Teas (1993), the size range of the loggerhead sea turtles observed captured in the fishery in 2003 is 51-100 cm (20.1 - 39.4 inches). NMFS reviewed size at stage data for Atlantic loggerheads. Depending on the dataset used, the cutoff between pelagic immature and benthic immature loggerhead sea turtles was 42-49 cm (16.5 - 19.3 inches) SCL, and the cutoff between benthic immature and sexually mature loggerhead sea turtles was described as 83 90 cm (32.7 - 35.4 inches) SCL (NMFS SEFSC, 2001). Other authors define the benthic immature stage for loggerheads as 36 100 cm (14.2 - 39.4 inches) (Bass et al., 2004). Based on these datasets and observer measurements of loggerhead sea turtles captured in the sea scallop dredge fishery, NMFS anticipates that both benthic immature and sexually mature loggerhead sea turtles are captured in this fishery. NMFS recognizes that, on rare occasions, sea turtles that interact with the modified gear may be small enough to enter the dredge bag, and that this interaction may result in the capture of the sea turtle in the bag. However, NMFS expects this to be a rare occurrence based on the life history of loggerhead sea turtles and the observer measurements.

This action requires all vessels with a sea scallop dredge and that are required to have a Federal Atlantic sea scallop fishery permit, regardless of dredge size or vessel permit category, to modify their dredge(s) with a chain mat configuration when fishing south of 41[deg] 9.0' N. latitude (lat.) from the shoreline to the outer boundary of the EEZ.

New Information

On May 27, 2005, NMFS published a proposed rule to require the modification of sea scallop dredge gear for Federally-permitted vessels fishing in the mid-Atlantic. Comments on this proposed action were requested through June 27, 2005. Since the publication of

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the proposed rule, three new pieces of information have become available. First, the Northeast Fisheries Science Center (NEFSC) re- examined observer records to clarify the species identity of two individual sea turtle takes that were observed in the sea scallop dredge fishery in 1996 and 1997. With respect to interactions between sea scallop dredge gear and sea turtles, ``observed take'' and ``observed'' refer to interactions that were seen and documented by a NMFS approved observer while on-watch. The 1996 take was deemed to be a loggerhead sea turtle and the 1997 take a green sea turtle. Secondly, a sea turtle take occurred in August 2005 in the Georges Bank sea scallop dredge fishery. The observer was off-watch at the time the sea turtle was taken. It is important to note that when an observer is off-watch at the time of the take much of the information on the haul that would otherwise be recorded will not be included in the observer's report. This sea turtle was identified as a Kemp's ridley sea turtle and this identification was confirmed through photographs. Lastly, a bycatch estimate of loggerhead sea turtles captured in the 2004 mid-Atlantic sea scallop dredge fishery became available. This assessment estimated 180 loggerhead sea turtles (CV = 0.37) to have been captured in sea scallop dredge gear operating in the Mid-Atlantic from June 1 through November 30.

Comments and Responses

Nine comment letters from eight different individuals or organizations were received during the public comment period for the proposed rule. Five commenters were generally supportive of the action but provided comments on particular aspects of the proposed rule, and three commenters were opposed to the proposed action. Two public hearings were held during the comment period. One in Fairhaven, Massachusetts on June 16, 2005, and one in Cape May, New Jersey on June 22, 2005. Two individuals provided oral comments. Both of the oral comments were generally supportive of the proposed action. One of the individuals also provided written comments. A complete summary of the comments and NMFS' responses, grouped according to general subject matter in no particular order, is provided here.

Comment 1: Four comments addressed the spatial extent of the proposed rule. One commenter supported using a longitudinal line at 70[deg] 20' W. longitude (long.) as the eastern boundary of the rule, one supported keeping the spatial extent as proposed as there is not evidence that sea turtles do not use the entire region, one stated that the spatial extent was too broad, and one urged caution when choosing a longitude closer to shore as sea turtles are found in warmer waters closer to the Gulf Stream. Additionally, this commenter felt that the northern boundary did not adequately assess the potential for interactions on Georges Bank and in the Gulf of Maine, that ``near- shore'' areas potentially prone to warmer waters should potentially be regulated more, and that special care should be taken for vessels to avoid waters close to known nesting beaches during sea turtle nesting and mating.

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). This action will provide for the conservation of threatened loggerhead sea turtles and will have ancillary benefits for Kemp's ridley and green sea turtles.

Loggerhead, Kemp's ridley, and green sea turtles undergo temperature dependent seasonal migrations along the mid-Atlantic coast (Morreale and Standora, 1998; Plotkin and Spotila, 2002). In general, these turtles occur in waters off North Carolina year round, in the inshore waters (i.e., bays, estuaries, and other coastal waters) of Virginia from May through November, and in New York's inshore waters from June through October (NMFS, 1994). All three are species are known to occur in Massachusetts waters as far north as Cape Cod, but with the exception of rare sightings and strandings are not known to occur in more northern New England waters (Shoop and Kenney, 1992; Mitchell et al., 2003). Detailed information on the distribution of sea turtles can be found in the EA for this action.

Off the northeastern U.S., loggerhead sea turtles are commonly sighted across the continental shelf from the shore to the shelf break as far north as Long Island (approximately 41[deg] 9.0' N. latitude), although further north and east sightings are sparse (CeTAP, 1982; Shoop and Kenney, 1992; Mitchell et al., 2003). During CeTAP surveys, loggerhead sea turtles, the most common sea turtle observed taken in the sea scallop dredge fishery, were rarely documented north of 41[deg] N lat (Shoop and Kenney, 1992). South of Cape Hatteras, loggerhead sea turtles are year-round residents (Mitchell et al., 2003).

In the western Atlantic, Kemp's ridley sea turtles are found year- round in the Gulf of Mexico and many juveniles migrate north along the east coast in the summer (Wynne and Schwartz, 1999). Off the northeastern U.S., inshore waters of southern New England, especially Cape Cod Bay and Long Island Sound, appear to be developmental habitat for juvenile Kemp's ridley and green sea turtles (Mitchell et al., 2003; Morreale and Standora, 2005). During the summer and fall, Kemp's ridley and green sea turtles are expected to occur predominantly in inshore waters where the scallop fishery does not typically operate (Lutcavage and Musick, 1985; Keinath et al., 1987; Morreale and Standora, 1993; Spotila et al., 1998). In addition, although the broadest extent of the western Atlantic green sea turtle's range is from Massachusetts to Argentina, including the Gulf of Mexico and the Caribbean, they are considered rare north of Cape Hatteras (Wynne and Schwartz, 1999). In 1997, a green sea turtle was observed taken in the sea scallop dredge fishery operating off of New Jersey. Based on the identification of species taken in this fishery and the distribution of green and Kemp's ridley sea turtles, NMFS expects the take of these species in the sea scallop dredge fishery to be rare.

The hawksbill sea turtle is uncommon in waters of the continental United States, preferring coral reefs. There are accounts of hawksbills in south Florida and a number are encountered in Texas. In the north Atlantic, small hawksbills have stranded as far north as Cape Cod, Massachusetts. However, many of these strandings were observed after hurricanes or offshore storms. No takes of hawksbill sea turtles have been recorded in the northeast or mid-Atlantic fisheries covered by the Northeast Fisheries Science Center observer program. Hawksbills are not expected to be present in the area impacted by this action.

Interactions with sea turtles have been observed in the sea scallop dredge fishery south of 41[deg] N. 9.0' N lat. to the Virginia/North Carolina border. A total of 61 sea turtles have been observed taken in the Atlantic sea scallop dredge fishery during normal fishery operations from 1996 through October 31, 2005. Of these, 44 were identified as loggerhead sea turtles, 1 was identified as a green sea turtle, and 15 were hard-shelled sea turtles that could not be positively identified. An additional 13 sea turtles were reported captured while the observer was off-watch. These include a Kemp's ridley sea turtle in the sea scallop dredge fishery in August 2005.

Prior to 2005, no sea turtle takes had been observed in the sea scallop dredge fishery outside the mid-Atlantic region.

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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. Despite this high level of observer coverage and operation of scallop dredge vessels in the area during June - October, which is generally when the water could be warm enough to support sea turtles, 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 (