Federal Register / Vol. 71, No. 165 / Friday, August 25, 2006 / Rules and Regulations 50361 

Dated: August 17, 2006. 

David I. Maurstad, 

Mitigation Division Director, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. E6–14141 Filed 8–24–06; 8:45 am] 

BILLING CODE 9110–12–P 

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° 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° 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° 

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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50362 Federal Register / Vol. 71, No. 165 / Friday, August 25, 2006 / Rules and Regulations 

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 midAtlantic 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° 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° 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° N lat (Shoop 

and Kenney, 1992). South of Cape 

Hatteras, loggerhead sea turtles are yearround 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 midAtlantic 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° 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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Federal Register / Vol. 71, No. 165 / Friday, August 25, 2006 / Rules and Regulations 50363 

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 (<1 percent in 2001, 2002, 

and 2004) and Georges Bank regions (<1 

percent in 2001, 2002, and 2003; < 2 

percent from September through 

November 2004 with most of the 

coverage occurring in November) 

(Murray 2004, 2005). In August 2005, a 

Kemp’s ridley sea turtle was taken at 

approximately 40° 58′ N. lat./67° 16′ W. 

long. by a dredge vessel operating on 

southern Georges Bank indicating that 

takes in this area are possible. 

Based on: (1) the known distribution 

of sea turtles, (2) sea scallop dredge 

fishing effort, and (3) the observed take 

of sea turtles in this fishery, NMFS 

expects the take of sea turtles by dredge 

vessels operating in the New England 

sea scallop dredge fishery on Georges 

Bank to be rare. However, the take of the 

Kemp’s ridley sea turtle on southern 

Georges Bank is evidence that takes in 

this area are possible. It should be noted 

that this take occurred on southern 

Georges Bank, south of the 41° 9.0′ N. 

lat. boundary. Although takes of sea 

turtles north of this boundary are 

possible, NMFS expects interactions 

between sea turtles and sea scallop 

dredge gear in this area to be rare. This 

final rule requires vessels fishing south 

of 41° 9.0’ N. lat. from the shoreline to 

the outer boundary of the EEZ to use the 

chain mat configuration from May 1 

through November 30 each year. 

Mating for loggerhead sea turtles takes 

place in late March to early June in the 

general vicinity of the nesting area, and 

eggs are laid throughout the summer. In 

the western Atlantic, most loggerhead 

sea turtles nest from North Carolina to 

Florida and along the Gulf Coast of 

Florida, although Virginia is the 

northernmost extent of loggerhead 

nesting on the eastern coast of the 

United States (DeGroot and Shaw, 1993; 

USFWS 2004). Sea scallops only occur 

in inshore waters in the Gulf of Maine 

and Canada. Therefore, NMFS does not 

anticipate the overlap of sea turtles and 

sea scallop dredging in inshore areas 

during nesting and mating season. 

Comment 2: Two comments 

addressed the temporal extent of the 

proposed rule. One commenter 

supported the use of November 30, the 

preferred alternative, rather than 

October 15, as described in nonpreferred alternative 1, to better account 

for variability in sea turtle migration 

and fishing activities. The other 

commenter stated that the proposed rule 

is for too long a time and the 

modification should be required when 

sea turtles are in the area (a dynamic 

area management (DAM) program). The 

commenter explained that the DAM 

program could be implemented 

similarly to the program currently used 

for right whales and could use the 

observer program to report the presence 

of sea turtles in the area. The 

commenter also stated that the use of 

the turtle chains will consume more 

fuel, catch less scallops, and be less 

efficient. The commenter believes that a 

DAM program would minimize this loss 

of efficiency and the use of a nonrenewable resource, fuel. 

Response: The temporal extent of 

these proposed measures are based on 

the time period associated with the 

overlap of sea turtles and the sea scallop 

dredge fishery using Cape Hatteras, 

North Carolina as the lower boundary. 

Cape Hatteras was chosen as the lower 

boundary as NMFS does not anticipate 

any fishing south of Cape Hatteras due 

to a lack of scallop resources. In general, 

hard-shelled sea turtles move from 

offshore to inshore and/or from south to 

north in the spring and in the opposite 

direction in the fall. These turtles occur 

year round in waters off North Carolina; 

however, they are considered rare North 

of Cape Hatteras in the winter (Mitchell 

et al., 2003). Hard-shelled sea turtles 

occur 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 until October (NMFS, 1994). 

Interactions between the sea scallop 

dredge fishery and hard-shelled sea 

turtles have been documented from late 

June to late October, and the potential 

for interactions exists during May and 

November due to the overlap of sea 

turtles and fishing distribution. 

Interactions with sea turtles have been 

observed in the sea scallop dredge 

fishery south of 41° 9.0’ N. lat. to the 

Virginia/North Carolina border. Based 

on the known distribution of sea turtles, 

as described in the response to 

Comments 1 and 2, the observed take of 

sea turtles in the sea scallop dredge 

fishery from June through October, and 

to account for variability in both sea 

turtle migration and fishing activity, the 

final rule requires vessels to use the 

modified sea scallop from May 1 

through November 30 each year. 

At this time, it would not be feasible 

to implement a DAM program for sea 

turtles. The DAM program for right 

whales is based on scientific aerial 

survey effort. These aerial surveys for 

right whales are not designed to assess 

sea turtle distribution and, currently, 

there is no aerial survey program for sea 

turtles. The observer program is not the 

appropriate platform for looking for sea 

turtle aggregations as sea turtles are 

often difficult to see from a vessel, the 

program is not a scientific survey to 

assess distribution of protected species, 

and observer locations are determined 

by many criteria and may not be 

appropriate for evaluating aggregations 

of turtles in the mid-Atlantic. 

Comment 3: One commenter stated 

that the proposed rule should identify 

areas more prone to sea scallop dredge 

- sea turtle interactions based on water 

temperature and known sea turtle 

biology. The commenter also stated that 

although it is not reasonable to ask that 

all scallop dredging cease during 

warmer months, dredging should be 

restricted in shallow embayments and 

deeper offshore waters during these 

months. 

Response: During 2001–2003, sea 

surface temperature (SST) was found to 

be significant factor influencing sea 

turtle bycatch rates in the mid-Atlantic 

sea scallop dredge fishery. In 2001 and 

2002, a higher probability of turtle 

bycatch occurred after waters had 

warmed to 19 °C and in 2003, higher 

probabilities occurred after waters 

warmed to 22 °C. These differences may 

reflect inter-annual variations in SST or 

turtle distributions, shifting patterns in 

the fishery, or interactions between 

random samples and statistical models 

(Murray, 2004). Murray (2004) found 

that there may be a minimal threshold 

above which sea turtle bycatch is likely 

to occur, although this minimal 

temperature threshold is likely to 

fluctuate from year to year. SST was not 

found to be a significant predictor of sea 

turtle bycatch rates in the mid-Atlantic 

during the 2004 fishing year (Murray, 

2005). Interactions in 2004 may have 

been influenced by a combination of 

depth zone and SST, and the small 

number of takes in 2004 relative to the 

number of dredge hours examined 

(approximately 1 take:1,000 observed 

dredge hours) may have precluded the 

detection of a significant effect. The rare 

nature of turtle interactions in 2004 

made it difficult to identify variables 

significantly affecting bycatch rates, and 

even area and depth, selected for a best 

fit, were not strong predictors (Murray, 

2005). 

Due to the influence of temperature in 

2001, 2002, and 2003 affecting sea turtle 


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50364 Federal Register / Vol. 71, No. 165 / Friday, August 25, 2006 / Rules and Regulations 

bycatch rates, NMFS considered an 

alternative which would provide 

protection to sea turtles when sea 

surface temperatures reached a level at 

which elevated sea turtle bycatch was 

expected. Under the alternative, vessels 

would be prohibited from fishing south 

of 41° 9.0′ N. lat. and north of 38° 0.0′ 

N. lat. from May 1 through October 31 

and south of 38° 0.0′ N. from May 

through November 30. NMFS rejected 

this alternative from further analysis as 

it would result in essentially the same 

impacts to sea turtles and the fishing 

industry as a closure from May 1 

through November 30 each year (see 

Comment 4 for a more detailed response 

regarding seasonal closures) and, given 

the recent bycatch analysis, the 

relationship between elevated levels of 

bycatch and SST is unclear. Requiring 

the chain mat modification when sea 

surface temperatures reached a level at 

which elevated sea turtle bycatch was 

expected would likely result in the same 

impacts as this action. The sea scallop 

dredge fishery is not expected to overlap 

with sea turtle distribution in shallow 

embayments of the mid-Atlantic as sea 

scallops do not occur in shallow 

embayments there. Sea scallops only 

occur in inshore waters in the Gulf of 

Maine and Canada. 

Comment 4: One comment was 

received that supported non-preferred 

alternative 3 (seasonal closure of the 

mid-Atlantic) to effectively protect sea 

turtles from scallop dredging during the 

summer by removing sea scallop dredge 

vessels from the times and places where 

sea turtles occur. The commenter stated 

that this is the only alternative that can 

be shown to effectively reduce 

loggerhead sea turtle takes and 

subsequent injury and mortality, that 

concern about displacement of effort 

adversely affecting habitat should not 

block protection of sea turtles, and that 

economic considerations in no way 

argue against alternative 3, in part 

because the economic analysis of 

alternative 3 is grossly irrational (see 

Comment 17). 

Response: A seasonal closure of all 

waters south of 41° 9.0′ N. lat. was 

considered and analyzed in the EA. This 

alternative would provide the most 

protection to sea turtles as scallop 

dredge vessels would not be in the area 

when sea turtles are present. Sea scallop 

fishing is not distributed evenly 

throughout this area. In a review of 

Vessel Trip Reports for 2003 and 2004, 

reported trips for the mid-Atlantic 

(defined in Murray as approximately 

41°15′N/70°00’W to 36°06′N/70°00′W) 

during the period June through 

November occurred from approximately 

75° 30.0′ W. long. to approximately 71° 

W long. (Murray 2004, 2005). The 

commercial sea scallop fishery in the 

mid-Atlantic generally operates at 

depths between 35 – 75 m (memo from 

John Boreman to Patricia A. Kurkul, 6 

December 2004). 

At this time, it is not known whether 

sea turtles interact with sea scallop 

dredge gear throughout the area in 

which the fleet operates in the midAtlantic or if interactions are limited to 

certain areas and certain times. Observer 

coverage has documented several trips 

on which more than one sea turtle was 

observed taken. In 2002, out of 62 

observed trips, one of the observed trips 

took three sea turtles and four of the 

observed trips took two sea turtles. In 

2003, out of 71 observed trips, one of 

the observed trips took four sea turtles, 

two of the observed trips took three sea 

turtles, and three of the observed trips 

took two sea turtles (Murray, 2004), and 

in 2004, out of 172 observed trips, one 

observed trip took two sea turtles 

(Murray, 2005). At this time, NMFS 

does not know why some trips have 

multiple takes and does not have 

sufficient evidence to refine a potential 

closure area further. 

A closure of the mid-Atlantic would 

likely result in a shift of effort further 

north. A behavioral model, which does 

not exist at this time, would be 

necessary to assess shifts in effort. In the 

absence of this model, NMFS assumed 

the worse case scenario that vessels 

would choose not to fish an alternative 

area. According to the 2003 VTR data, 

of the 314 scallop dredge vessels that 

fished in the mid-Atlantic during May 

through November, 208 vessels fished 

exclusively in the mid-Atlantic region 

and 106 vessels fished in the midAtlantic and further north. If, under a 

closure, vessels choose to relocate to 

fishing grounds not affected by the 

closure, gear conflicts may result. As the 

number of scallop vessels fishing on 

these grounds increases, the vessels 

would be competing with other scallop 

vessels that have historically fished 

these grounds as well as with each 

other. Other gear conflicts might include 

the lobster fishery and, to a lesser 

extent, the groundfish fishery. It is 

difficult to determine how much effort 

would increase on Georges Bank based 

on a closure in the mid-Atlantic, but if 

effort were to increase on Georges Bank, 

there could be an increase in the 

bycatch of groundfish in this area. 

The extent of this shift and its impacts 

on physical, habitat, and biological 

resources in these areas cannot be 

quantified at this time. In general, a shift 

in effort would increase impacts to 

habitat in the areas outside of the midAtlantic and perhaps in the midAtlantic during the periods it would be 

open to sea scallop dredge fishing. 

During the closure (May through 

November), it is expected that there 

would be beneficial impacts to the midAtlantic habitat. The net impacts, and 

the magnitude of these impacts, to 

habitat are not clear. The economic 

analysis for a seasonal closure in the 

mid-Atlantic assumed the economically 

worst case scenario, that the alternative 

would not result in a displacement of 

effort. Instead, the analysis assumed that 

the vessels would not fish during the 

closure period (see Comment 17 for a 

more detailed response regarding the 

economic analysis). It is likely that some 

vessels will shift their fishing effort to 

other areas; therefore, the economic 

impact will be less than that assumed 

for the final EA. Due to these factors - 

the broad extent of the closure area, 

displacement of effort, and uncertainty 

of the extent of the area in which 

interactions are occurring - nonpreferred alternative 3 was rejected. 

Comment 5: One commenter stated 

that all dredging should be banned year 

round in the area proposed. This 

commenter also stated that all longlines 

and purse seine fishing should be 

banned. 

Response: As described in the 

response to Comment 2, sea turtle 

presence varies with season. The 

capture of sea turtles in sea scallop 

dredge gear has been documented in the 

mid-Atlantic from June through October 

and the potential for takes exists in May 

and November due to the overlap of the 

sea scallop dredge fishery with sea 

turtle distribution. As described above, 

a single sea turtle take has been 

documented in the sea scallop dredge 

fishery on southern Georges Bank in 

August. As sea turtle distribution and 

sea scallop dredge effort are not 

expected to overlap from December 1 

through April 30, extending the 

effective period of the rule through 

these months is not expected to provide 

additional benefit to sea turtles. A 

seasonal closure of the mid-Atlantic to 

sea scallop dredging is addressed in the 

response to Comment 4. The comments 

regarding longline and purse seine 

fisheries are not relevant to the 

proposed rule. 

Comment 6: Two comments were 

received relating to scallop dredge gear 

and operational modifications in the 

fishery. One commenter stated that the 

rule should require modifications to the 

dredge frame and cutting bar to reduce 

injury to sea turtles as well as 

modifications in the operation of the 

fishery, including not setting gear if a 

sea turtle is seen in wake, stopping gear 

at the 10–fathom mark for 30 seconds 


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during haul back, and restricting tow 

times to reduce drowning of sea turtles. 

Another commenter stated that NMFS 

should consider additional ways to 

reduce interactions of dredges with 

turtles, such as keeping discards on 

board during fishing operations. 

Response: NMFS is working with 

industry to evaluate the effectiveness of 

a dredge with a modified cutting bar 

and bail. This dredge was designed to 

reduce serious injury to sea turtles that 

may be encountered on the bottom. 

Initial testing of the gear in Panama 

City, FL showed that the gear was 

capable of deflecting a model turtle over 

the bail. However, additional studies are 

necessary to assess the effectiveness of 

this modification at reducing the 

severity of interactions on the ocean 

floor and at maintaining the scallop 

catch. This gear research is on-going. 

It has been suggested that the discard 

of scallop viscera during fishing 

operations may be attracting sea scallop 

dredge vessels to the fishing area. White 

(2004) reported loggerhead sea turtles 

opportunistically feeding on discards 

from gillnet vessels docked at a quay in 

Greece and there are anecdotal reports 

of sea turtles opportunistically feeding 

on discards in the shrimp trawl fishery. 

It is unclear whether the turtles were 

drawn to the vessel because of the 

discards or just happened to be in the 

same place as the vessels at the same 

time. At this time, NMFS has no 

evidence to refute or support the 

possibility that discards may be 

attracting sea turtles to the scallop 

vessel. In addition, it is not clear what 

the effect would be from a prohibition 

of dumping viscera. Sea turtles that may 

be attracted to discarded viscera might 

disperse away from fishing vessels if the 

practice is prohibited. Alternatively, 

these turtles may remain in the fishing 

area and feed on natural prey in the 

benthos. It is not clear that a prohibition 

on the discard of sea scallop viscera 

would reduce the risk of interaction. 

NMFS does encourage observers to 

collect all sea turtle carcasses brought 

on board for necropsy, including an 

analysis of stomach/GI samples for prey 

items. However, this is logistically 

difficult and, to date, only one sea turtle 

carcass has been returned and 

necropsied. Stomach and intestinal 

samples could not be obtained from this 

turtle due to its condition. 

In the draft EA for the proposed rule 

and the final EA, NMFS considered an 

alternative that would require 

operational modifications in the sea 

scallop dredge fishery. Although 

operational modifications could provide 

some benefit to sea turtles, the extent of 

these benefits is unclear. It would be 

difficult to ensure compliance and to 

assess the impact of these modifications 

on sea turtles. Due to this uncertainty, 

this alternative was rejected and not 

further analyzed. 

Comment 7: One commenter stated 

that the decrease in scallop catch would 

be greater than the 6.71 percent 

observed in the experimental fishery. 

Another commenter stated that the 

proposed rule affords a practical 

solution, that the modification could be 

retrofitted onto existing scallop dredges, 

and that the costs of the chains and 

losses of scallops are a reasonable 

measure for insuring the conservation of 

sea turtles stocks as well as the viability 

of the industry. 

Response: During the experimental 

fishery to test the chain mat 

configuration, scallop catches were 

variable from vessel to vessel and trip to 

trip, with differences ranging from 

-30.88 percent to 7.28 percent (average 

-6.71 percent). The study authors and 

NMFS gear technologists anticipate that 

the difference in catch will decrease as 

industry becomes more familiar with 

the chain configuration. However, if 

vessels with a loss of catch do not 

choose not to offset this loss with an 

increase in effort, there is the potential 

for loss of revenue. 

Comment 8: Two comments were 

received on the species considered in 

the proposed rule. One commenter 

stated that the proposed rule should 

consider other species of sea turtles 

found in the geographic area of the 

proposed measures. One commenter 

stated that Kemp’s ridley, green, and 

leatherback sea turtle may be captured 

by scallop dredges and trawls as a 

number of individuals captured in the 

fishery are not identified to species. In 

addition, the commenter stated that the 

unobserved take reported as a 

leatherback in the experimental fishery 

should be considered valid. The 

commenter believes that all four species 

are likely to be taken in the fishery; 

therefore, consultation should be 

reinitiated and take of all four species 

considered. 

Response: Since the publication of the 

proposed rule, two new pieces of 

information have become available 

indicating that Kemp’s ridley and green 

sea turtles are vulnerable to capture in 

sea scallop dredge gear. Two sea turtles 

were observed taken in the sea scallop 

dredge fishery from 1996 through 1997. 

For the initial and subsequent Biological 

Opinions on the Atlantic Sea Scallop 

Fishery Management Plan, these sea 

turtles were considered unidentified 

hard shelled species based on 

discussions with some of the staff of the 

NEFSC. Subsequent to the publication 

of the proposed rule, the records 

maintained by the Fisheries Sampling 

Branch, NEFSC were re-examined and, 

on August 23, 2005, the NEFSC 

indicated that the 1996 sea turtle should 

be considered a loggerhead and the 1997 

sea turtle should be considered a green 

based on written documentation 

provided by the observer and the 

observer’s experience. Both of these 

observed takes occurred in the midAtlantic sea scallop dredge fishery. 

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 and Kenney, 1992). Additional 

information on the distribution of 

loggerhead, Kemp’s ridley, hawksbill 

and green sea turtles is found in 

comment 1 and the EA for this action. 

This action will provide for the 

conservation of threatened loggerhead 

sea turtles. Based on information 

received subsequent to the publication 

to the proposed rule, it is also expected 

to 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. 

While the sea scallop dredge fishery 

does overlap with leatherback sea turtle 

distribution, NMFS has no confirmed 

report that this gear interacts with 

leatherback sea turtles, either in the 

water column or on the bottom. During 

the experimental testing of the modified 

sea scallop dredge gear, two unobserved 

interactions were reported. One of the 

unobserved interactions was reported by 

the fisherman as a loggerhead sea turtle. 

The second unobserved interaction was 

reported by the fisherman as a 

leatherback. NEFSC’s general protocol 

for confirmation of at-sea species 

identification requires that the species 

be considered as unknown unless either 

the observer is experienced in sea turtle 

identification and has confidence in the 

identification, or the observer is 

inexperienced and has provided 

supporting information (i.e., photos, 

tissue samples). As far as the NEFSC is 

aware, the fishermen reporting the take 

of the leatherback and the take of the 

loggerhead have not been trained nor 

are they experienced in identifying sea 

turtle species. No supporting materials, 

such as photos or tissue samples, have 

been provided. Therefore, based on the 

confirmation protocol for at-sea species 

identification, the NEFSC considers the 

species identification of these takes to 

be ‘‘unknown turtle species’’. 

Leatherback sea turtles are 

predominantly a pelagic species and 


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feed on jellyfish. Since scallop dredge 

gear operates on the bottom, leatherback 

sea turtles are less likely to encounter 

this gear compared with loggerhead sea 

turtles. Given their large size, prey and 

habitat preferences, leatherback sea 

turtles are not expected to be struck by 

the gear operating on the bottom or 

caught in sea scallop dredge gear. In the 

unlikely event that a leatherback sea 

turtle were to interact with sea scallop 

dredge gear, the chain mat configuration 

would prevent it from entering the 

dredge bag, and would prevent 

subsequent injuries that might ensue 

from such capture. 

As provided in 50 CFR 402.16, 

reinitiation of formal consultation is 

required where discretionary Federal 

agency involvement or control over the 

action has been retained and if: (1) the 

amount or extent of incidental take is 

exceeded; (2) new information reveals 

effects of the agency action that affect 

listed species or critical habitat in a 

manner or to an extent not considered 

in the previous opinion; (3) the agency 

action is subsequently modified in a 

manner that causes an effect to listed 

species or critical habitat not considered 

in the previous opinion; or (4) a new 

species is listed or critical habitat 

designated that may be affected by the 

action. This action does not trigger 

reinitiation. 

Although this action does not trigger 

reinitiation of consultation, NMFS 

reinitiated ESA section 7 consultation 

on the Scallop FMP on November 1, 

2005. Observer coverage of the Atlantic 

sea scallop fishery in the 2005 fishing 

year and a review of past observer 

records has revealed new information 

on the fishery in relation to its effects on 

ESA-listed sea turtles. This information 

includes the take of five loggerhead sea 

turtles in the sea scallop trawl fishery, 

the take of a Kemp’s ridley on southern 

Georges Bank, and confirmation from 

the NEFSC that a turtle observed taken 

in scallop dredge gear in 1997 should be 

considered a green sea turtle. 

Comment 9: Several comments were 

received on the nature of the 

interaction. One commenter expressed 

concerns that the tests on the chain mats 

have been limited and that additional 

research is needed to determine how 

‘‘dredge bars’’ injure and kill sea turtles. 

A second commenter stated that it is 

unknown what happens when turtles 

interact with the chain mat modified 

dredge and that there is a significant 

risk that the chains do not reduce take, 

but simply change the nature of the 

interaction. This commenter also stated 

that, without video monitoring, it is 

possible that the rule may prevent real 

attempts to address the problem by 

hiding what is happening from view 

and that, to be effective, video work 

must be done in a systematic manner 

prior to proposing the modifications as 

a regulation. The commenter stated that 

the proposed action may do very little 

to reduce mortality and injury to sea 

turtles and that NMFS admits that the 

chain mat configuration would not 

lessen the number of sea turtles taken, 

injured, or killed by the dredge on the 

sea floor. The commenter stated that it 

stands to reason that a significant 

number of the sea turtles that are 

seriously injured and end up dying are 

caught on the sea floor as the dredge is 

towed on the sea floor for far more time 

than it is hauled up to the boat through 

the water column. Lastly, the 

commenter states that the EA does not 

appear to analyze how often injuries 

occur from interactions with the dredge 

in the water column, but the implication 

is that even without the turtle chains, 

such interactions are unlikely. Another 

commenter stated that it is unlikely that 

strikes by scallop dredges with turtle 

excluder devices represent a significant 

source of mortality or injury while 

fishing on bottom. The commenter 

stated that while fishing, dredges are 

towed at a relatively slow speed and 

that it appears that most injuries result 

from negative interactions caused when 

turtles enter the dredge, remain 

submerged, or are brought on deck. 

Response: NMFS recognizes the 

uncertainty regarding whether sea 

turtles interact with sea scallop dredges 

as the dredge is dragged along the 

bottom, as the dredge is hauled back, or 

both. It takes approximately 1 minute to 

set a dredge and approximately 10 

minutes to haul back, dump the catch, 

and reset the gear. For the remainder of 

the haul, the gear is on the bottom. 

However, it is not known where sea 

turtles are encountering the gear. It is 

likely that sea turtles are interacting 

with the gear both in the water column 

and on the bottom. Sea turtles have been 

observed in the area in which sea 

scallop gear operates and they have 

been seen near scallop vessels when 

they are fishing or hauling gear. In 

addition, sea turtles are known to forage 

and rest on the sea floor as part of their 

normal behavior. The condition of sea 

turtles observed taken in the sea scallop 

dredge fishery ranges from alive with no 

apparent injuries to alive and injured to 

fresh dead. As described below, NMFS 

believes that interactions between sea 

turtles and sea scallop dredge gear that 

occur on the bottom are likely to result 

in serious injury to the sea turtle. Based 

on this assumption, NMFS believes that 

the unharmed/slightly injured turtles 

observed captured in the sea scallop 

dredge bag follow an interaction with 

sea scallop dredge gear in the water 

column. 

Data do not exist on the percentage of 

sea turtles interacting with the chain 

mat-modified gear that will be 

unharmed, sustain minor injuries, or 

sustain serious injuries that will result 

in death or failure to reproduce. 

However, there are several assumptions 

that can be made to assess the degree of 

interaction. With the chain mat installed 

over the opening to the dredge bag, it is 

reasonable to assume that sea turtles, 

which would otherwise enter the dredge 

bag, will instead come into contact with 

the chain mat at least. NMFS recognizes 

that this modification may not reduce 

the number of sea turtles interacting 

with sea scallop dredge gear, but it is 

reasonable to assume that the 

modification will reduce mortality and 

the severity of injury following 

interactions that occur in the water 

column. After an interaction in the 

water column, severe injuries to sea 

turtles following capture in a dredge bag 

without the chain mat configuration 

likely result from crushing by debris in 

the dredge bag, dumping of the turtle on 

the vessel’s deck, or crushing them with 

falling gear. NMFS does not have 

information on the proportion of takes 

occurring in the water column. 

However, preventing the turtles from 

entering the dredge bag will prevent 

injuries resulting from such capture and 

likely result in a non-serious interaction 

following an encounter in the water 

column. 

With the chain mat in place, it is 

reasonable to assume that the sea turtles 

on the sea floor would still interact with 

the gear, but that the nature of the 

interaction would be different. With the 

modified gear, the sea turtles may still 

be hit by the leading edge of the frame 

and cutting bar and would likely be 

forced down to the sea floor rather then 

swept into the dredge bag. Since the 

turtles are not being swept into the bag, 

they could be run over by the dredge 

bag and club stick. At this point, the 

turtle will have likely already been hit 

and run over by the cutting bar and the 

leading edge of the dredge frame, which 

constitutes a substantial weight. In 

2005, NMFS worked with industry to 

test a dredge with a modified cutting bar 

and bail designed to minimize the 

severity of impacts to turtles that may be 

encountered on the bottom. A standard 

New Bedford style dredge was used as 

a control, and both dredges were 

equipped with the chain mat 

configuration, although the purpose of 

the project was not to study the chain 

mats. The project used turtle carcasses 


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and model turtles to simulate a worse 

case scenario of a dredge overtaking a 

sea turtle lying on the bottom. During 

the study, the turtle carcasses were 

observed lodged in front of the cutting 

bar and pushed along, eventually going 

under the cutting bar and getting caught 

on the chain mat. The model turtle was 

deployed on one tow with the modified 

dredge. During this tow, the model 

turtle was deflected over the bail of the 

modified dredge, indicating that this 

type of modification might be effective 

at reducing the severity of encounters 

on the bottom. It is important to note 

that the project was limited in that 

behavioral responses of a live turtle 

encountering a dredge could not be 

assessed. The video from the study did 

show that it is possible that sea turtles 

encountering the dredge on the bottom 

may become caught on the chains after 

being hit by the leading bar of the 

dredge. However, this follows the turtle 

being struck by the leading edge of the 

dredge during which it is likely to have 

sustained serious injuries. NMFS has 

made the conservative assumption that 

a turtle in a bottom interaction sustains 

serious injuries on the bottom regardless 

of whether the chain mat is used. 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 that 

turtles in a bottom interaction may 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 serious injuries that result from 

capture in the dredge bag (i.e., injuries 

from debris in the bag, forced 

submergence, dropping on deck, or 

crushing by the dredge). A detailed 

description the assumptions made and 

the assessment of the interactions can be 

found in the EA on this action. 

NMFS recognizes that the interactions 

between sea turtles and sea scallop 

dredges are likely to continue and may 

not be observed from on deck. In 2004 

and 2005, NMFS conducted video 

research to document the nature of the 

interaction between sea turtles and sea 

scallop dredge gear. Approximately 80 

hours of video were collected and 

reviewed. No sea turtles were 

documented. Further video work may 

be conducted under the Sea Scallop 

Research Set Aside Program. It is 

evident from these studies that using 

video to document the specific nature of 

sea turtle-sea scallop dredge 

interactions, in general, and sea turtlechain mat interactions specifically, is 

logistically difficult. Due to the low 

number of interactions between sea 

turtles and sea scallop dredge gear 

(approximately 1 take per 1,000 

observed dredge hours in 2004), it will 

be difficult to obtain sufficient video 

documentation of sea turtle behavior to 

allow a thorough analysis of the types 

of interactions that may occur. Waiting 

for such video documentation would 

result in an extended delay in the use 

of a chain-mat modified dredge. As this 

modification is expected to provide a 

net benefit to sea turtles, NMFS believes 

it is important to move forward without 

delay. 

In addition, NMFS will monitor 

scallop fishing effort for significant 

increases or decreases in effort in the 

mid-Atlantic and the possible effects 

that changes in effort may have on sea 

turtles. NMFS is continuing to 

investigate modifications of the gear that 

may reduce the effects of interactions 

which occur on the ocean bottom. 

Comment 10: Two comments were 

received on the level of take in the sea 

scallop fishery. One commenter stated 

that NMFS has repeatedly failed to 

recognize the extent and impact of the 

scallop fishery’s impact on threatened 

and endangered species, that the 

anticipated take level in the proposed 

rule does not incorporate the supposed 

benefits of the chain mat requirement, 

and that these benefits should be 

reflected in a reduction of allowed take. 

If the action is not expected to reduce 

take and injury, then further efforts are 

needed. In addition, the commenter 

urged NMFS to expeditiously provide 

information on genetic samples taken in 

this fishery. The second commenter 

stated that the proposed rule’s estimated 

take was too low because the 2004 

Biological Opinion did not include a 

number of ways that dredges can take 

sea turtles (i.e., being hauled up on top 

of the gear, being wedged in the forward 

parts of the dredge frame, being held 

against the dredge by the pressure of the 

flow of water, or by being run over by 

the dredge and chain bag). 

Response: According to the December 

2004 Biological Opinion, the agency 

anticipates that up to 749 sea turtles 

will be taken each year without the 

chain mat configuration in place, and 

that up to 479 of these are expected to 

sustain injuries leading to death or 

failure to reproduce. As described in the 

proposed rule (70 FR 30660) and in the 

response to Comment 9, up to 749 

turtles may still interact with the gear. 

However, the chain mat configuration is 

expected to prevent serious injury 

leading to death or failure to reproduce 

caused by dumping of the turtles on the 

vessel’s deck and crushing them by 

falling gear or debris in the bag 

following an interaction in the water 

column. At this time, the proportion of 

sea turtles interacting with the dredge 

gear in the water column cannot be 

quantified. In 2004 and 2005, NMFS 

worked with industry to conduct 

approximately 80 hours of video 

research to document the nature of the 

interaction between sea turtles and sea 

scallop dredge gear and to investigate 

the behavior of sea turtles around sea 

scallop dredges, but no sea turtles were 

documented. 

Tissue samples for genetics samples 

have been collected from loggerhead sea 

turtles captured in the sea scallop 

dredge fishery, and the results are still 

pending. NMFS is working to obtain 

these results as soon as is reasonably 

possible. 

The bycatch estimate completed by 

the NEFSC, and the anticipated take 

level in the 2004 Biological Opinion, 

included any interaction occurring 

during an on-watch haul, that was not 

moderately or severely decomposed 

upon capture. This includes sea turtles 

hauled up on top of the gear, wedged in 

the forward parts of the dredge frame, or 

held against the dredge by the pressure 

of the flow of water as observed from on 

deck. Sea turtles may interact with sea 

turtle dredge gear in the water column 

or on the sea bottom and not be brought 

to the surface. These interactions cannot 

be quantified at this time. 

Comment 11: A number of comments 

were received on the need for additional 

research including monitoring the 

degree of progress made in reducing sea 

turtle bycatch, modifications to the 

dredge frame and cutting bar, video 

footage to document the interactions, 

and observer coverage on scallop dredge 

vessels and underwater video cameras 

on the dredge to evaluate the 

effectiveness of the chain mats. One 

commenter also expressed concern that 

the tests on the chain mats have been 

very limited, and urged NMFS to 

provide extensive observer coverage to 

determine the effectiveness of the chain 

mats. 

Response: As described above, NMFS 

will continue to monitor the take of sea 

turtles and the effectiveness of this 

regulation in the sea scallop dredge 

fishery through observer coverage, 

fishing effort data, and other data, as 

available. NMFS is currently working 

with industry to research the 

effectiveness of a dredge with a 

modified bail and cutting bar at 

reducing the severity of sea turtle 

interactions that are occurring on the 

sea floor bottom and retaining sea 

scallop catch. This research is described 

above. Video work conducted in 2004 

by the NEFSC and industry did not 


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document any interactions between sea 

turtles and sea scallop dredge gear, but 

was successful in devising a 

methodology to video in front of sea 

scallop dredges. In 2005, approximately 

73 hours of video work was conducted 

to document the nature of the 

interaction between sea turtles and sea 

scallop dredges and to investigate the 

behavior of sea turtles around sea 

scallop dredges. No sea turtles were 

documented. 

Comment 12: One commenter stated 

that the proposed action could have 

profound adverse effects on efforts to 

protect loggerhead sea turtles and thus 

on loggerhead turtle populations. The 

commenter claimed that without video 

monitoring, no one will know how 

many loggerhead turtles were taken, 

injured, and killed underwater, an 

accurate estimate of sea turtle takes 

would be impossible, and neither 

individuals nor the agency would be 

able to assess whether these takes may 

exceed the December 2004 incidental 

take statement. Another commenter 

expressed concerns that the chain mat 

modified dredge may contribute to 

underestimates of sea turtle capture by 

preventing injured and dead turtles 

from being brought on deck. 

Response: NMFS recognizes that 

interactions between sea scallop dredge 

gear and sea turtles are likely to occur 

and that these interactions may not be 

observed from on deck. As described 

above, NMFS will continue to use 

observer information, fishing effort data, 

and other data, as available, to monitor 

the fishery and its possible effects on 

sea turtles. NMFS will use observer data 

to continue to evaluate the take of sea 

turtles in other parts of the dredge (i.e., 

the forward parts of the frame and on 

top of the gear). In addition, observer 

coverage may provide information on 

the effectiveness of the chain mat 

modification. NMFS will monitor 

scallop fishing effort for significant 

increases or decreases in effort in the 

mid-Atlantic and the possible effects 

that changes in effort may have on sea 

turtles. This will be of particular 

importance for monitoring the level of 

take exempted in the Incidental Take 

Statement (ITS) for the fishery. NMFS 

will develop a methodology, using 

observer and fisheries data, and other 

information as available, to assess 

compliance with the ITS. In addition, 

further video research may be 

conducted under the Sea Scallop 

Research Set Aside Program to evaluate 

the behavior of sea turtles around sea 

scallop dredge gear and to document the 

specific nature of the interaction. 

Comment 13: One comment was 

received regarding enforcement and 

monitoring of regulations to ensure 

vessel compliance. The commenter 

stated that a modification deadline 

should be implemented, that the 

proposed rule should mention selfreporting programs and observer 

programs because reporting and recordkeeping measurements are necessary to 

assess if the modification is an effective 

means of reducing bycatch, and that 

NMFS should ensure that vessels have 

complied with the modification. 

Response: The effective date for the 

regulations is 30 days after publication 

of the final rule in the Federal Register. 

NMFS will continue to use observer 

information, fishing effort data, 

enforcement, and other data, as 

available, to monitor the fishery and its 

possible effects on sea turtles. This 

includes self-reporting programs, such 

as the Vessel Trip Report program that 

is already in place in the fishery. 

Comment 14: One commenter stated 

that the rule is more appropriately 

enacted under the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act), rather 

than the ESA. The Atlantic sea scallop 

fishery is managed by the New England 

Fishery Management Council, which 

has expertise in the management of the 

scallop fishery and would be able to 

more quickly and efficiently adjust the 

rules as new information becomes 

available. 

Response: Implementing the proposed 

regulation under the ESA rather than 

the Magnuson-Stevens Act does not 

prevent NMFS from responding quickly 

and efficiently as new information 

becomes available. In addition, 

implementing this action under the ESA 

does not preclude future actions from 

being implemented under either the 

ESA or the Magnuson-Stevens Act, as 

appropriate. 

Comment 15: One commenter stated 

that NMFS should consider ways for 

fishermen, working in conjunction with 

appropriate veterinary or rescue 

facilities, to bring turtles with cracked 

shells to these facilities. In addition, 

developing good techniques to repair 

turtle shells damaged by boats and 

fishing gear is a growing need to be 

addressed. 

Response: Currently, information 

regarding the transfer of injured turtles 

to appropriate rehabilitation facilities is 

included in the fishery observer training 

packets, including contacts for 

appropriate/authorized facilities from 

Maine to North Carolina. Observers are 

encouraged to make these arrangements 

for injured sea turtles as logistics and 

practicality allow, taking into account 

trip length and ability to transfer turtles 

quickly and safely. It is generally 

considered prohibitive if a turtle is 

taken during a multi-day trip, as a 

seriously injured turtle would need to 

be transferred immediately, all 

resources to enable the transfer would 

be voluntary/donated, the receiving 

facility must be able to accept the case, 

and must agree to the transfer before a 

turtle is brought in. Vessels in the 

limited access fleet generally take 

extended trips of up to 12–20 days. 

Often, based on NMFS’ experience with 

trained observers, the transportation of 

sea turtles to rehabilitation facilities is 

logistically challenging. 

Currently, an agent or employee of 

NMFS while acting in the course of his/ 

her official duties is exempt from the 

take prohibitions on endangered and 

threatened sea turtles while aiding an 

injured sea turtle in the marine 

environment. Regulations under 50 CFR 

223.206(d) require fishermen who 

incidentally take turtles to return them 

to the water immediately (or after 

resuscitation), prohibit the landing, 

offloading, or transhipping of 

incidentally caught sea turtles. NMFS 

will consider whether and how it is 

possible under these provisions for a 

fishermen to work with rehabilitation 

facilities to bring sea turtles to these 

facilities. Currently, fishermen should 

contact the Sea Turtle Stranding and 

Salvage Network to see if a network 

member would meet the vessel and 

retrieve the turtle at sea. 

Comment 16: One commenter stated 

that the draft EA strongly supports a 

finding of significant impact. They state 

that the EA contends that the chain mat 

modification would significantly benefit 

sea turtles and that the characteristics of 

the geographic area, the presence of 

loggerhead sea turtles, indicate the need 

for an Environmental Impact Statement. 

They also state that the action is highly 

controversial, highly uncertain, and 

creates a significant precedent. 

Response: The draft EA supports a 

finding of no significant impact. There 

is expected to be a benefit to sea turtles 

by reducing serious injury and mortality 

following a take in the water column; 

however, the degree of benefit is limited 

given that the installation of a chain mat 

would only reduce the severity of 

injuries resulting from a portion of 

possible takes. No unique characteristics 

of the geographic area were identified. 

The presence of loggerhead sea turtles 

in the mid-Atlantic is not a unique 

characteristic of the area. The gear 

modifications are limited in geographic 

area and time and are implemented in 

an effort to facilitate the coexistence of 

fishing activity and sea turtles. These 

factors restrict the scope of the effects. 

This action is not highly controversial 


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given that the action is designed to 

benefit sea turtles, it would have a 

relatively small impact on the fishing 

industry, and the industry has 

petitioned NMFS for a similar action. 

While there is not perfect information 

available on the nature of the interaction 

between sea scallop dredge gear and sea 

turtles, NMFS has made reasonable 

assumptions in evaluating the risks and 

benefits of the proposed action. The best 

available scientific information shows 

that the use of the chain mat will 

prevent sea turtles from entering the 

dredge bag and prevent injuries ensuing 

from their capture. The action also does 

not set a significant precedent as gear 

modifications are a commonly used tool 

to reduce the severity of interactions 

between fishing gear and sea turtles. 

Comment 17: One comment was 

received on the economic analysis of 

alterative 3. The commenter stated that 

the economic analysis is grossly 

irrational as it does not take into 

account a shift of effort in the fishery, 

but rather assumes that during the 

closure season fishing activity that 

would ordinarily take place in the midAtlantic would simply disappear. 

According to the comment, the 

economic analysis must take shifting 

effort into account and properly analyze 

and quantify the economic impact 

caused by the limited seasonal 

displacement. 

Response: To properly estimate 

potential shifts in scallop dredge fishing 

effort, an economic behavioral model, 

which does not exist at this time, would 

be needed. In the absence of this model, 

NMFS assumed the worst case scenario 

in assessing the economic impacts of a 

seasonal closure. The conservative 

approach is to overestimate, rather than 

to underestimate, the total industry loss 

due to a regulation. According to the 

2003 VTR data, 208 of the 314 vessels 

that were included in the analysis 

fished exclusively in the mid-Atlantic 

and 106 vessels fished both in the midAtlantic and the New England fishing 

areas. NMFS recognizes that some of 

these vessels would likely shift their 

effort to other areas if the mid-Atlantic 

were closed to sea scallop dredge 

fishing from May 1 through November 

30. 

Comment 18: One comment was 

received on the failure to provide data 

on skate bycatch at the species level in 

the experimental fishery. The barndoor 

and thorny skates are included on 

NMFS national ‘‘Species of Concern’’

list and the American Fisheries Society 

of ‘‘Marine Species at Risk’’. The 

commenter stated NMFS should lead 

the way in fulfilling the Skate Fishery 

Management Plan’s goals to improve the 

data-poor situation with skates by 

ensuring all approved experimental 

fisheries in the region record and report 

skate catches by species. 

Response: The sea scallop dredge 

research on the chain mat modification 

was conducted under a grant through 

the NMFS Sea Scallop Research TAC 

Set-Aside program. As such, the 

experimental fishery was operating 

under the Atlantic Sea Scallop Fishery 

Management Plan, which requires that 

vessels submit Vessel Trip Reports 

(VTR) on which all bycatch species are 

reported to species level whenever 

possible. In addition, bycatch 

information for experimental fisheries is 

requested to the highest level possible. 

VTR codes for skates at the species level 

have existed since 2003 and NMFS has 

revised the printed VTR instructions to 

include species level codes for skates 

although they have yet to go to print. 

However, it is permissible for fishermen 

to report skates as unspecified and not 

at the species level. Thus, data collected 

at the species level may be incomplete. 

Comment 19: One commenter stated 

that the information used to support the 

preferred alternative is based on 

assumptions and guesswork, not 

scientific research and that this 

information is inadequate. The 

commenter stated that it is crucial to 

assess the effects of turtle chains 

through underwater video monitoring 

prior to proposing the non-experimental 

use of the chain mat. Furthermore, the 

commenter states that the studies on 

which the preferred alternative is based 

are fatally flawed as they rely only on 

on-deck observations and so only 

addressed whether the chain mat could 

reduce the number of sea turtles caught 

in the dredge and did not address 

whether the chains reduced the number 

of sea turtle takes, injuries, and deaths 

caused by scallop dredging. 

Response: The experimental fishery 

used two paired dredges, one equipped 

with a standard dredge and one 

equipped with a modified dredge. This 

paired design is an industry standard in 

gear work and is utilized to minimize 

unaccountable environmental variation. 

The study involved over 3000 paired 

hauls, which resulted in enough 

statistical power to be able to detect 

differences in the turtle catches between 

the modified and the unmodified 

dredge. There was a statistical 

difference between turtle catches in the 

control and modified dredges (at alpha 

- 0.05 level). NMFS recognizes that 

these studies relied on on-deck 

observations, and that sea turtles may be 

struck by the dredge while fishing near 

the bottom or while being hauled 

through the water column and not 

brought on-board. Unfortunately, these 

types of interactions cannot be 

quantified at this time because 

information on these interactions does 

not exist. However, the best available 

information does show that the chain 

mat modification prevents most, if not 

all, captures of sea turtles in the dredge 

bag; therefore preventing injuries that 

occur from such capture. 

Comment 20: One comment was 

received on the status of the loggerhead 

sea turtle. The commenter stated that 

the loggerhead sea turtle is no closer to 

recovery now than when it was 

originally listed and that the most recent 

data show that the number of 

loggerhead nests in Florida’s Archie 

Carr National Wildlife Refuge has 

dropped precipitously from 1998 to 

2004. 

Response: A detailed description of 

the status of the species can be found in 

the Environmental Assessment for this 

action, while a summary is provided 

here. A number of stock assessments 

(TEWG, 1998,2000; NMFS SEFSC 2001; 

Heppell et al., 2003) have examined the 

stock status of loggerhead sea turtles in 

the waters of the United States, but have 

been unable to develop any reliable 

estimates of absolute population size. 

Due to the difficulty of conducting 

comprehensive population surveys 

away from nesting beaches, nesting 

beach survey data are used to index the 

status and trends of loggerhead sea 

turtles (68 FR 53949, Sept. 15, 2003). 

There are at least five western Atlantic 

loggerhead subpopulations. These are 

the south Florida, northern, Dry 

Tortugas, Florida Panhandle, and 

Yucatan subpopulations. Genetic 

analyses conducted at the nesting sites 

indicate that they are distinct 

subpopulations (TEWG, 2000). NMFS 

has concluded that the survival and 

recovery of each of these nesting 

subpopulations are critical to the 

survival and recovery of the species. 

While nesting beach data is a useful 

tool for assessing sea turtle populations, 

the detection of nesting trends requires 

consistent data collection methods over 

long periods of time (USFWS and 

NMFS, 2003). In 1989, a statewide sea 

turtle Index Nesting Beach Survey 

(INBS) program was developed and 

implemented in Florida, and similar 

survey programs have been in 

implemented in Georgia, South 

Carolina, and North Carolina. Although 

not part of the INBS program, nesting 

survey data are also available for the 

Yucatan Peninsula, Mexico (USFWS 

and NOAA Fisheries 2003). However, 

the currently available nesting data is 

still too limited to indicate statistically 

reliable trends for these subpopulations. 


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To date, analysis of nesting data from 

the INBS program through 2003 indicate 

that there is no discernable trend for the 

south Florida, northern, or Florida 

Panhandle subpopulations (68 FR 

53949, September 15, 2003). Given the 

relatively short period of survey effort 

for the Dry Tortugas subpopulation, no 

conclusions can be made at this time on 

the trend of this subpopulation. Survey 

effort overall at the Yucatan nesting 

beaches has been inconsistent and no 

trend can be determined for this 

subpopulation given the currently 

available data (68 FR 53949, September 

15, 2003). More reliable nesting trend 

information is available from some 

south Florida and northern 

subpopulation nesting beaches that have 

been surveyed for longer periods of 

times. Using the information gathered 

from these select south Florida and 

northern subpopulation nesting 

beaches, the Turtle Expert Working 

Group concluded that the south Florida 

subpopulation was increasing based on 

nesting data over the last couple of 

decades, and that the northern 

subpopulations was stable or declining 

(TEWG, 2000). 

Similar to other loggerhead nesting 

beaches, counts at Archie Carr National 

Wildlife decreased from 2001 through 

2004. Preliminary data for 2005 

indicates that loggerhead nest counts at 

Archie Carr increased from the 2004 

counts (Florida Fish and Wildlife 

Conservation Commission, pers. comm., 

2005). It should be recognized that this 

data is still preliminary and further 

analysis is needed. It is unknown at this 

time whether the overall nest counts 

represent an actual decline in the 

loggerhead subpopulations or not. 

Loggerhead sea turtles do exhibit a 

cyclical nesting pattern such that in 

some years nest counts are high while 

in others they are low. Natural events, 

such as the hurricanes of 2004, can also 

destroy many nests and affect nesting 

trends since a majority of the nests may 

be destroyed in any particular year. In 

addition, since nest counts are a 

reflection of only one sex and age class 

in the subpopulation (adult females), 

using nesting trend data to make 

conclusions about the status of an entire 

subpopulation requires making certain 

assumptions. These are that the current 

impacts to mature females are 

experienced to the same degree amongst 

all age classes regardless of sex and/or 

that the impacts that led to the current 

abundance of nesting females are 

affecting the current immature females 

to the same extent. There is no current 

evidence to support or refute these 

assumptions. 

In 2001, NMFS reviewed and updated 

the stock assessment for loggerhead sea 

turtles of the western North Atlantic, 

including information on nesting 

abundance and trends. The assessment 

also considered the impact of the U.S. 

pelagic longline fishery with and 

without the proposed changes in the 

Turtle Excluder Device (TED) 

regulations for the shrimp fishery using 

a modified population model from 

Heppell et al. (2003) to include new 

estimates of the duration of life stages 

and time at maturity and, unlike 

Heppell et al. (2003), also considered 

sex ratios other than 1:1 (NMFS SEFSC, 

2001). A more detailed description of 

NMFS’ assessment can be found in the 

supporting documents. Given the 

implementation of TED regulations to 

allow larger benthic immature and 

sexually mature loggerhead sea turtles 

to escape from shrimp trawl gear and 

given measures to increase pelagic 

immature survival by 10% have been 

implemented in the Highly Migratory 

Species fishery, loggerhead 

subpopulations in the western Atlantic 

should experience positive or at least 

stable growth as loggerheads in the 

various stage classes mature. These 

changes are unlikely to be evident in 

nesting beach censuses for many years 

given the late age at maturity for 

loggerhead sea turtles and the normal 

fluctuations in nesting. 

In-water population studies to 

measure abundance have also been 

conducted. Maier et al. (2004) used 

fishery-independent trawl data to 

establish a regional index of abundance. 

The study was designed to concentrate 

on loggerhead sea turtles with emphasis 

on the northen subpopulation, and was 

conducted along the southeast coast of 

the United States (Winyah Bay, South 

Carolina to St. Augustine, FL) from 2000 

2003. The loggerhead sea turtle was the 

dominant turtle collected during the 

study, with moderate levels of Kemp’s 

ridley and a few green sea turtles 

encountered during the study. There 

was no significant difference for 

loggerheads in Catch per Unit Effort 

(CPUE) among the years sampled. 

However, the annual mean CPUE did 

increase over the study period. The 

minimum rate of annual population 

change could not be detected within the 

four-year sampling period of the project. 

During the 4 years of the study, a 

disturbing trend of reduced catch rates 

in the smaller size classes was noted. 

Growth could account for a shift to 

larger size classes, but the observed 

decline in the percentages of sea turtles 

in the smallest size classes may indicate 

a recruitment failure. The pattern 

warrants continued observation. Maier 

et al. (2004) found that a comparison of 

loggerhead catch data from this study 

with historical values suggests that inwater populations of loggerhead sea 

turtles along the southeastern United 

States appear to be larger, possibly an 

order of magnitude higher than they 

were 25 years ago. SEAMAP long-term 

data provides further support for the 

conclusion of increasing abundance of 

in-water loggerhead populations with 

catch rates increasing substantially 

since the early 1990s (Maier et al., 

2004). This type of regional abundance 

may be useful in examining long-term 

trends in overall turtle population status 

on a regional basis, but a number of 

inherent temporal, spatial, and, perhaps, 

environmental factors can affect catch 

rates and need to be recognized in 

developing a regional index of 

abundance. 

Comment 21: One commenter stated 

that there were two factors requiring the 

agency to reinitiate consultation. The 

first factor was Dr. Heppell’s letter 

addressing the existing Biological 

Opinion. The second factor is the 

statement ‘‘Biological resources, in 

particular sea turtles, have been, are, 

and will continue to be negatively 

impacted by a variety of past, present, 

and future activities. These cumulative 

impacts may be impacting the recovery 

of the species, although the extent 

cannot be quantified’’ (draft EA, pg. 93). 

The commenter states that this is new 

information requiring reinitiation. 

Response: NMFS received a letter 

dated March 13, 2005 concerning the 

December 2004 Opinion on the Atlantic 

Sea Scallop FMP. The concerns raised 

in the letter were responded to by 

NMFS’ Southeast Fisheries Science 

Center and were addressed in the 

litigation on the December 2004 

Opinion. The letter does not trigger 

reinitiation. The cumulative impacts 

listed in the EA are not new information 

and were considered in the December 

2004 Opinion. Therefore, that statement 

in the EA does not trigger reinitiation of 

the ESA Section 7 consultation on the 

Scallop Fishery. 

Classification 

The rule has been determined to be 

significant by the Office of Management 

and Budget for the purposes of 

Executive Order 12866. 

NMFS prepared an initial regulatory 

flexibility analysis for the proposed 

rule, which was described in the 

classification section of the preamble to 

the proposed rule. The public comment 

period ended on June 27, 2005. No 

comments were received on the 

economic impacts of the proposed 


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action; one comment, as described 

above, was received on the economic 

impacts of non-preferred alternative 3 

(seasonal closure). No changes were 

made as a result of such comments. 

NMFS has prepared a final regulatory 

flexibility analysis (FRFA) that 

describes the economic impact this final 

rule would have on small entities. A 

description of the action, why it is being 

considered and the legal basis for this 

action are contained at the beginning of 

the preamble, in the SUMMARY, and in 

the FRFA. A summary of the analysis 

follows: 

The fishery affected by this final rule 

is the mid-Atlantic sea scallop dredge 

fishery. The action requires all vessels 

with a Federal Atlantic sea scallop 

fishery permit, regardless of dredge size 

of vessel permit category, to modify 

their dredge gear when fishing south of 

41° 9.0′ N. latitude, from the shoreline 

to the outer boundary of the EEZ. 

According to Vessel Trip Report Data for 

2003, 314 vessels fished in this area 

from May 1 through November 30. The 

economic analysis assumes that all 314 

vessels are independently owned and 

operated. All 314 sea scallop dredge 

vessels are considered small entities. 

This final rule does not contain any 

additional reporting, recordkeeping, or 

other similar compliance requirements. 

The FRFA considered five 

alternatives. The preferred alternative 

(PA), non-preferred alternatives 1–3 

(NPA 1–3), and the ‘‘no action’’

alternative. The PA, NPA 1–3, and the 

‘‘no action’’ alternative were analyzed in 

the initial regulatory flexibility analysis 

and summarized in the proposed rule 

(70 FR 30660). 

NMFS selected the preferred 

alternative in the final rule (required the 

use of chain mats on all sea scallop 

dredges in the Mid-Atlantic from May 

through November 30) because this 

alternative would provide, with the 

exception of NPA 3 (seasonal closure of 

the mid-Atlantic), the most protection to 

sea turtles. The agency minimized 

impacts to small entities under this 

alternative by limiting the rule to the 

May through November time period and 

limiting the spatial extent to the midAtlantic. While NPA 1 (use of chain 

mats on all sea scallop dredges in the 

Mid-Atlantic from May 1 through 

October 15) may have had slightly 

reduced economic impacts compared to 

the PA, NMFS rejected NPA 1 because 

this alternative would leave sea turtles 

vulnerable to capture in the dredge bag 

from October 15 through November 30, 

a period when sea turtle distribution 

and sea scallop fishing overlap in the 

southern part of the fishery. While NPA 

2 (use of chain mats on all large sea 

scallop dredges in the Mid-Atlantic 

from May through November 30) may 

have had slightly reduced economic 

impacts compared to the PA, NMFS 

rejected NPA 2 because this alternative 

would leave sea turtles vulnerable to 

capture in the dredge bag of smaller 

dredges operating in this area. Sea 

turtles have been documented taken in 

this smaller dredge gear. NMFS rejected 

NPA 3 (prohibit sea scallop dredge 

fishing south of 41° 9.0′ N. lat. from May 

1 through November 30) because of the 

uncertainty of the extent of the area in 

which interactions are occurring, the 

broad extent of the closure, and the 

potential displacement of effort to other 

fishing areas. At this time, NMFS does 

not have sufficient information to 

further refine NPA 3 to limit the extent 

of the closure and rejected NPA 3, in 

part, because of the uncertainty 

regarding the extent of the area in which 

interactions between sea turtles and sea 

scallop dredge gear are occurring. NPA 

3 would have had the highest economic 

impact. 

This final rule is consistent with the 

ESA and other applicable laws. 

Literature Cited 

Bass, A. L., S. P. Epperly, J. BraunMcNeill. 2004. Multi-year analysis of 

stock composition of a loggerhead sea 

turtle (Caretta caretta) foraging habitat 

using maximum likelihood and 

Bayesian methods. Conservation 

Genetics. 5:783–796. 

CeTAP (Cetacean and Turtle 

Assessment Program). 1982. Final report 

on the cetacean and turtle assessment 

program. University of Rhode Island to 

Bureau of Land Management, U.S. 

Department of the Interior. Ref. No. 

AA551–CT8–48. 568 pp. 

DeGroot, K. A. and J. H. Shaw. 1993. 

Nesting activities by the loggerhead 

(Caretta caretta) at Back Bay National 

Wildlife Reguge, VA. Proceedings of the 

Oklahoma Academy of Science. 73:15–

17. 

Heppell, S. S., L. B. Crowder, D. T. 

Crouse, S. P. Epperly, and N.B. Frazer. 

2003. Population models for Atlantic 

loggerheads: past, present, and future. In 

A.B. Bolten and B. E. Witherington 

(editors) Loggerhead sea turtles. 

Smithsonian Institute, Washington, D.C. 

pp. 255–273 

Keinath, J. A., J. A. Musick, and R. A. 

Byles. 1987. Aspects of the biology of 

Virginia’s sea turtles: 1979–1986. 

Virginia J. Sci. 38(4):329–336. 

Lutcavage, M. E. And J. A. Musick. 

1985. Aspects of the biology of sea 

turtles in Virginia. Copeia. 2:449–456. 

Maier, P. P., A. L. Segars, M. D. 

Arendt, J. D. Whitaker, B. W. Stender, L. 

Parker, R. Vendetti, D. W. Owens, J. 

Quattro, and S. R. Murphy. 2004. 

Development of an index of sea turtle 

abundance based on in-water sampling 

with trawl gear. Final report to the 

National Marine Fisheries Service. 86 

pp. 

Mitchell, G. H., R. D. Kenney, A. M. 

Farak, R. J. Campbell. 2003. Evaluation 

of occurrence of endangered and 

threatened marine species in naval ship 

trial areas and transit lanes in the Gulf 

of Maine and offshore of Georges Bank. 

Naval Undersea Warfare Center Division 

Newport, Rhode Island. NUWC-NPT 

Technical Memo 0–121A. 113 pp. 

Morreale, S. J. and E. A. Standora. 

1998. Early life stage ecology of sea 

turtles in northeastern U.S. waters. U.S. 

Dep. Commer. NOAA Tech. Mem. 

NMFS-SEFSC–413. 49pp. 

Morreale, S. J. and E. A. Standora. 

1993. Occurrence, movement, and 

behavior of the Kemp’s ridley and other 

sea turtles in New York waters. Final 

Report April 1988 - March 1993. 70 pp. 

Morreale, S. J. and E. A. Standora. 

2005. Western North Atlantic waters: 

Critical developmental habitat for 

Kemp’s ridley and loggerhead sea 

turtles. Chelonian Conservation and 

Biology. 4(4)872–882. 

Murray, K. T. 2004. Bycatch of sea 

turtles in the mid-Atlantic sea scallop 

(Placopecten magellanicus) dredge 

fishery during 2003. 2nd ed. U.S. Dep 

Commer., Northeast Fisheries Science 

Center Reference Document 04–11. 

Northeast Fisheries Science Center. 

Woods Hole, MA. 25 pp. 

Murray, K. T. 2005. Total bycatch 

estimate of loggerhead turtles (Caretta 

caretta) in the 2004 Atlantic sea scallop 

(Placopecten magellanicus) dredge 

fishery. U.S. Dep Commer., Northeast 

Fisheries Science Center Reference 

Document 05–12. Northeast Fisheries 

Science Center. Woods Hole, MA. 22 

pp. 

NMFS (National Marine Fisheries 

Service). 1994. State and federal fishery 

interactions with sea turtles in the midAtlantic area. NOAA/NMFS, Silver 

Spring, MD. 13 pp. 

NMFS SEFSC (National Marine 

Fisheries Service Southeast Fisheries 

Science Center). 2001. Stock 

assessments of loggerhead and 

leatherback sea turtles and an 

assessment of the impact of the pelagic 

longline fishery on the loggerhead and 

leatherback sea turtles of the Western 

North Atlantic. U.S. Dep. Commer. 

NMFS, Miami, Fl, SEFSC Contribution 

PRD 00/01–08; Parts I-III and 

Appendices I-IV. NOAA Tech. Mem. 

NMFS-SEFSC–455, 343 pp. 

Plotkin P. T. and J. R. Spotila. 2002. 

Post nesting migrations of loggerhead 

turtles, Caretta caretta, from Georgia, 


cprice-sewell on PROD1PC66 with RULES
50372 Federal Register / Vol. 71, No. 165 / Friday, August 25, 2006 / Rules and Regulations 

USA: conservation implications for a 

genetically distinct subpopulation. 

Oryx. 36(4):396–399. 

Shoop, C. R. 1980. Sea turtles in the 

Northeast. Maritimes 24:9–11. 

Shoop, C. R. and R. D. Kenney. 1992. 

Seasonal distributions and abundance of 

loggerhead and leatherback sea turtles 

in waters of the northeastern United 

States. Herpetol. Monogr. 6:43–67. 

Spotila, J. R., P. T. Plotkin, and J. A. 

Keinath. 1998. In water population 

survey of sea turtles of Delaware Bay. 

Unpublished report. Final Report to 

NMFS Office of Protected Resource for 

work conducted under Contract No. 

43AANF600211 and NMFS Permit no. 

1007 by Drexel University, 

Philadelphia, PA. 21 pp. 

Teas, W. G. 1993. Species 

composition and size class distribution 

of marine turtle strandings on the Gulf 

of Mexico and southeast United States 

coasts, 1985–1991. NOAA Tech. Memo. 

NMFS-SERFSC–315. 43pp. 

TEWG (Turtle Expert Working 

Group). 1998. An assessment update for 

the Kemp’s ridley (Lepidochelys kempii) 

and loggerhead (Caretta caretta) sea 

turtle populations in the western North 

Atlantic. U.S. Dep. Commer. NOAA 

Tech Memo. NMFS-SEFSC–409 96 pp. 

TEWG (Turtle Expert Working 

Group). 2000. An assessment update for 

the Kemp’s ridley and loggerhead sea 

turtle populations in the western North 

Atlantic. U.S. Dep. Commer. NOAA 

Tech Memo. NMFS-SEFSC–444, 115 pp. 

USFWS (United States Fish and 

Wildlife Service). 2004. Loggerhead sea 

turtle (Caretta caretta). Fact Sheet. 

USFWS North Florida Field Office. 

Available at http://northflorida.fws.gov/ 

SeaTurtles/Turtle%20Factsheets/ 

loggerhead-sea-turtle-htm. 3 pp. 

White, M. 2004. Observations of 

loggerhead sea turtles feeding on 

discarded fish catch at Argostoli, 

Kefalonia. Marine Turtle Newsletter. 

105:7–9. 

Wynne, K. and M. Schwartz. 1999. 

Guide to marine mammals and turtles of 

the U.S. Atlantic and Gulf of Mexico. 

Rhode Island Sea Grant. Narragansett, 

RI. 115 pp. 

List of Subjects in 50 CFR Parts 222 and 

223 

Endangered and threatened species, 

Exports, Imports. 

Dated: August 18, 2006. 

Samuel D. Rauch, III 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

PART 222—GENERAL ENDANGERED 

AND THREATENED MARINE SPECIES 

■ For the reasons set forth in the 

preamble, 50 CFR part 222 and 223 are 

to be amended as follows: 

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 

‘‘Chain mat’’ and ‘‘Dredge or dredge 

gear’’ are added in alphabetical order to 

read as follows: 

§ 222.102 Definitions. 

* * * * * 

Chain mat means a device designed to 

be installed in a scallop dredge forward 

of the sweep, as described in 50 CFR 

223.206, for the purpose of excluding 

sea turtles from the dredge. 

* * * * * 

Dredge or dredge gear, with respect to 

the fishery operating under the Atlantic 

Sea Scallop Fishery Management Plan, 

means gear consisting of a mouth frame 

attached to a holding bag constructed of 

metal rings, or any other modification to 

this design, that can be or is used in the 

harvest of sea scallops. 

* * * * * 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. 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). 

■ 2. In § 223.205, paragraph (b)(16) is 

redesignated as (b)(17); paragraph 

(b)(15) is revised and new paragraph 

(b)(16) is added to read as follows: 

§ 223.205 Sea turtles. 

* * * * * 

(b) * * * 

(15) Fail to comply with the 

restrictions set forth in § 223.206(d)(10) 

regarding pound net leaders; 

(16) Fail to comply with the 

restrictions set forth in § 223.206(d)(11) 

regarding sea scallop dredges; or 

* * * * * 

■ 3. In § 223.206, paragraph (d) 

introductory text is revised and 

paragraph (d)(11) is added to read as 

follows: 

§ 223.206 Exemptions to prohibitions 

relating to sea turtles. 

* * * * * 

(d) Exception for incidental taking. 

The prohibitions against taking in 

§ 223.205(a) do not apply to the 

incidental take of any member of a 

threatened species of sea turtle (i.e., a 

take not directed towards such member) 

during fishing or scientific research 

activities, to the extent that those 

involved are in compliance with all 

applicable requirements of paragraphs 

(d)(1) through (d)(11) of this section, or 

in compliance with the terms and 

conditions of an incidental take permit 

issued pursuant to paragraph (a)(2) of 

this section. 

* * * * * 

(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, 

present in waters south of 41° 9.0′ N. 

lat., 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 ‘‘tickler’’

(horizontal) chains and ‘‘vertical’’

chains that are evenly spaced and 

configured in the following manner 

dependent on the dredge width: Dredges 

with a frame width of greater than 13 ft 

(3.96 m) must use 11 vertical and 6 

tickler chains; dredges with a frame 

width of 11 ft to 13 ft (3.35–3.96 m) 

must use 9 vertical and 5 tickler chains; 

dredges with a frame width of 10 ft (3.05 

m) to less than 11 ft (3.35 m) must use 

7 vertical and 4 tickler chains; dredges 

with a frame width of less than 10 ft 

(3.05 m) must use 5 vertical and 3 

tickler chains. The tickler and vertical 

chains must be connected to each other 

with a shackle or link at the intersection 

point. If a vessel elects to 


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Federal Register / Vol. 71, No. 165 / Friday, August 25, 2006 / Rules and Regulations 50373 

use a different configuration, the length 

of each side of the square or rectangle 

formed by the intersecting chains must 

be less than or equal to 14 inches (35.5 

cm). 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. 

(ii) Any vessel that harvests sea 

scallops in or from the waters described 

in (d)(11)(i) 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. 

[FR Doc. 06–7160 Filed 8–24–06; 8:45 am] 

BILLING CODE 3510–22–S 


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