18984 Federal Register / Vol. 73, No. 68 / Tuesday, April 8, 2008 / Rules and Regulations 

compliance with the maximum 

achievable control technology (MACT) 

requirements of part 63, subpart EEE, of 

this chapter by conducting a 

comprehensive performance test and 

submitting to the Administrator a 

Notification of Compliance under 

§§ 63.1207(j) and 63.1210(d) of this 

chapter documenting compliance with 

the requirements of part 63, subpart 

EEE, of this chapter. * * * 

* * * * * 

(3) The particulate matter standard of 

§ 264.343(c) remains in effect for 

incinerators that elect to comply with 

the alternative to the particulate matter 

standard under §§ 63.1206(b)(14) and 

63.1219(e) of this chapter. 

* * * * * 

PART 266—STANDARDS FOR THE 

MANAGEMENT OF SPECIFIC 

HAZARDOUS WASTES AND SPECIFIC 

TYPES OF HAZARDOUS WASTE 

MANAGEMENT FACILITIES 

■ 15. The authority citation for part 266 

continues to read as follows: 

Authority: 42 U.S.C. 1006, 2002(a), 3001–

3009, 3014, 6905, 6906, 6912, 6921, 6922, 

6924–6927, 6934, and 6937. 

§ 266.100 [Amended] 

■ 16. Section 266.100 is amended by 

redesignating the second paragraph 

(b)(3)(ii) as (b)(3)(iii). 

[FR Doc. E8–6667 Filed 4–7–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 071030628–8482–02] 

RIN 0648–AV84 

Endangered and Threatened Wildlife; 

Sea Turtle Conservation 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

clarify the existing sea turtle 

conservation requirements for sea 

scallop dredge vessels entering waters 

south of 41°9.0′ N. latitude from May 1 

through November 30 each year and to 

add a transiting provision to the 

requirements. Any vessel with a sea 

scallop dredge and required to have a 

Federal Atlantic sea scallop fishery 

permit, regardless of dredge size or 

vessel permit category, that enters 

waters south of 41°9.0′ N. latitude, from 

the shoreline to the outer boundary of 

the Exclusive Economic Zone (EEZ) 

must have a chain mat on each dredge, 

unless the terms of the transiting 

provision are met. The chain-mat 

modified dredge is necessary to help 

reduce mortality and injury to 

endangered and threatened sea turtles in 

scallop dredge gear and to conserve sea 

turtles listed under the Endangered 

Species Act (ESA). This current action 

addresses a procedural error in the 

original rulemaking to require chain 

mats on scallop dredge gear, clarifies the 

existing requirements, and adds a 

transiting provision to the regulations. 

Any incidental take of threatened sea 

turtles in sea scallop dredge gear in 

compliance with this gear modification 

requirement and all other applicable 

requirements will be exempted from the 

ESA’s take prohibition. 

DATES: Effective May 8, 2008. 

ADDRESSES: Copies of the 

Environmental Assessment (EA) and 

Regulatory Impact Review/Final 

Regulatory Flexibility Analysis (RIR/ 

FRFA) prepared for this final rule may 

be obtained by writing to Ellen Keane, 

NMFS, Northeast Region, One 

Blackburn Drive, Gloucester, MA 01930. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Keane (ph. 978–281–9300 x6526, 

fax 978–281–9394, e-mail 

ellen.keane@noaa.gov) or Barbara 

Schroeder (ph. 301–713–2322, fax 301–

427–2522, e-mail 

barbara.schroeder@noaa.gov). 

SUPPLEMENTARY INFORMATION: 

Background 

All sea turtles that occur in U.S. 

waters are listed as either endangered or 

threatened under the Endangered 

Species Act of 1973 (ESA). The Kemp’s 

ridley (Lepidochelys kempii), 

leatherback (Dermochelys coriacea), and 

hawksbill (Eretmochelys imbricata) sea 

turtles are listed as endangered. The 

loggerhead (Caretta caretta) and green 

(Chelonia mydas) sea turtles are listed 

as threatened, except for breeding 

populations of green turtles in Florida 

and on the Pacific coast of Mexico that 

are listed as endangered. Due to the 

inability to distinguish between these 

populations of green turtles away from 

the nesting beach, NMFS considers 

green sea turtles endangered wherever 

they occur in U.S. waters. Kemp’s 

ridley, hawksbill, loggerhead, and green 

sea turtles are hard-shelled sea turtles. 

The incidental take, both lethal and 

non-lethal, of loggerhead, Kemp’s 

ridley, and unidentified hard-shelled 

sea turtles has been documented in the 

sea scallop dredge fishery, as well as a 

non-lethal take of a green sea turtle 

(NEFSC FSB, Observer Database). In 

addition, an unconfirmed take of a 

leatherback sea turtle was reported 

during the experimental fishery to test 

the chain-mat modified dredge gear 

(DuPaul et al., 2004). 

This action is being taken under the 

ESA provisions authorizing the issuance 

of regulations to conserve threatened 

species and for enforcement purposes 

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

The requirement to use chain-mat 

modified dredge gear is necessary to 

provide for the conservation of 

threatened loggerhead sea turtles, and 

will have ancillary benefits for other sea 

turtle species that have been taken in 

the sea scallop dredge fishery, albeit to 

a lesser extent than loggerheads. Under 

the ESA and its implementing 

regulations, taking endangered sea 

turtles—even incidentally—is 

prohibited. The incidental take of 

endangered species may only legally be 

exempted by an incidental take 

statement (ITS) or an incidental take 

permit issued pursuant to section 7 or 

10 the ESA, respectively. Existing sea 

turtle conservation regulations at 50 

CFR 223.206(d) exempt fishing activities 

and scientific research from the 

prohibition on takes of threatened 

species under certain conditions. Any 

incidental take of threatened loggerhead 

sea turtles in sea scallop dredge gear in 

compliance with this gear modification 

requirement and other applicable 

requirements is exempted from the 

prohibition against takes. 

The chain-mat modified dredge is 

expected to benefit sea turtles following 

an interaction in the water column. 

Based on the available information, 

NMFS has determined that the use of a 

chain-mat modified dredge will prevent 

most captures of sea turtles in the 

dredge bag as well as any ensuing 

injuries as a result of such capture (e.g., 

crushing in the dredge bag, crushing on 

deck, etc.). However, NMFS has made 

the conservative assumption that a 

turtle in a bottom interaction sustains 

significant injuries on the bottom, so, 

under this conservative assumption, 

there would not be a benefit from the 

chain mat for bottom interactions. This 

assumption, however, may be too 

conservative in that it is possible 

(although not likely) that turtles in a 

bottom interaction only receive minor 

injuries. In the unlikely scenario of a 

turtle receiving only minor injuries 

following a bottom interaction, the 

chain mat modification would prevent 

significant injuries that result from 

capture in the dredge bag (i.e, injuries 


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from debris in the bag, drowning from 

forced submergence, dropping on deck, 

or crushing by the dredge). Additional 

information on the background, affected 

environment, and environmental 

consequences of this action is included 

in the preamble to the proposed rule (72 

FR 63537, November 9, 2007) and in the 

Final Environmental Assessment (EA) 

for this aciton. 

This final rule will (1) clarify the 

requirements related to the use of chain 

mats in the Atlantic sea scallop dredge 

fishery, (2) add a transiting provision, 

and (3) address a procedural error in the 

August 2006 rulemaking (71 FR 50361, 

August 25, 2006) that required the use 

of chain-mat modified dredges in the 

Atlantic sea scallop fishery. 

Specifically, this action requires any 

vessel with a sea scallop dredge and 

required to have a Federal Atlantic sea 

scallop fishery permit, regardless of 

dredge size or vessel permit category, 

that enters waters south of 41° 9.0′ N. 

latitude from the shoreline to the outer 

boundary of the EEZ, to modify their 

dredge(s) with a chain mat. The chain 

mat must be composed of horizontal 

and vertical chains configured such that 

the openings formed by the intersecting 

chains have no more than four sides. 

The length of each side of the openings 

created by the intersecting chains, 

including the sweep, must be less than 

or equal to 14 inches (35.5 cm). Any 

vessel that enters the waters described 

above and that is required to have a 

Federal Atlantic sea scallop fishery 

permit must have the chain mat 

configuration installed on all dredges 

for the duration of the trip, unless it 

meets the terms of the transiting 

provision. Vessels may transit through 

the regulated area provided that the 

dredge gear is stowed and there are no 

scallops on board. These requirements 

are in place from May 1 though 

November 30 each year. 

New Information 

Since the requirement for the chainmat modified gear became effective in 

the fall of 2006, there have been five 

takes of sea turtles in the scallop dredge 

fishery. Four of the takes, all loggerhead 

sea turtles, occurred south of the current 

northern boundary of the chain mat 

regulation, while one take, a Kemp’s 

ridley sea turtle, was documented north 

of this line. Of the four takes south of 

the line, one of the turtles was observed 

on top of the dredge frame, swimming 

away before the dredge came on deck; 

two were observed in the dredge bag; 

and one turtle was reported between the 

chain mat and the dredge. These takes 

occurred in June (1), August (1), 

September (2), and October (2). While 

information on the incidental take that 

occurred in June was available for the 

proposed rule, the data on the 

remaining takes were considered 

preliminary at that time. Detailed 

information on these takes and the 

implications these takes may have 

regarding the chain-mat modified gear 

are discussed in the response to 

Comment 1. 

Comments and Responses 

On November 9, 2007, NMFS 

published a proposed rule to clarify the 

requirements regarding chain-mat 

modified dredges in the Atlantic sea 

scallop fishery and to add a transiting 

provision to these requirements (72 FR 

63537, November 9, 2007). Comments 

on this proposed action were requested 

through December 10, 2007. Six 

comment letters from individuals or 

organizations were received during the 

public comment period. Two 

commenters were generally supportive 

of the action but provided comments on 

particular aspects of the proposed rule, 

three commenters were opposed to the 

proposed action, and one provided 

neither support nor opposition to the 

proposed action. A complete summary 

of the comments and NMFS( responses, 

grouped according to general subject 

matter in no particular order, is 

provided here. In their comment letter 

on the proposed rule, Oceana 

incorporated comments submitted 

previously on the Biological Opinion for 

the Atlantic sea scallop fishery and on 

the August 2006 chain mat regulation. 

Those comments included in the 

submission and relevant to this action 

will be addressed in the comment/ 

response section below. This 

submission also included comments 

that are not relevant to this particular 

action. These include comments on the 

original rulemaking related to the 

economic analysis for the seasonal 

closure (a non-preferred alternative), 

other comments on alternatives not 

considered in this action, and 

reinititation of consultation based on a 

letter dated March 13, 2005 received 

from Dr. Heppell addressing the 

December 2005 Biological Opinion and 

a statement on cumulative effects 

included in the Draft EA (NMFS 2006a) 

for that action. These comments are 

addressed in the August 2006 final rule 

(71 FR 50361, August 25, 2006). 

Additional comments not relevant to 

this action are related to the jeopardy 

analysis included in the Biological 

Opinion, and the model used for the 

analysis, and turtle excluder devices for 

the sea scallop trawl fishery. 

Comment 1: The purported benefit of 

chain mats was that, even though most 

sea turtles are probably severely injured 

or killed as a result of seafloor 

collisions, some small number that 

collide with dredges in the water 

column are saved because they are 

prevented from entering the dredge bag. 

This benefit may be illusory since five 

turtles were observed captured in 2007, 

a large number given the low levels of 

observer coverage in the fishery. 

Response: Since the requirement for 

the chain-mat modified gear became 

effective, the Northeast Fisheries 

Science Center (NEFSC) Fisheries 

Sampling Branch (FSB) has documented 

five takes of sea turtles in the scallop 

dredge fishery. These takes occurred in 

June (1), August (1), September (2), and 

October (2). Four of the takes, all 

loggerhead sea turtles, occurred south of 

the 41°9.0′ N. latitude line (the northern 

boundary of the regulation); while one 

take, a Kemp’s ridley (fresh dead), was 

documented north of this line. Chain 

mats were not required, nor were they 

used, on the trip that occurred north of 

41°9.0′ N. latitude. Of the four takes 

south of the line, one of the turtles was 

reported by the crew on top of the 

dredge frame; two were reported in the 

dredge bag; and one was reported by the 

captain on the outside of the chains, 

between the chains and the dredge. All 

four of the turtles were alive and the 

observers’ comments indicated that the 

turtles were injured (NEFSC, FSB, 

Observer Database). 

One of the turtles was reported on the 

top of the dredge frame, possibly held 

by water pressure. This turtle swam 

away before the gear was hauled above 

the waterline. Sea turtles have been 

documented on the dredge frame 

previously and have swum away as the 

gear nears/reaches the surface, 

indicating that the turtle may have been 

held by water pressure. NMFS has no 

indication that this type of interaction 

would result in significant injury. The 

chain mat gear is designed to prevent 

sea turtles from being captured in the 

dredge bag, not to prevent this type of 

interaction, which can occur regardless 

of whether a chain mat is used. 

One turtle was reported by the vessel 

captain to be on the outside of the chain 

mat, caught between the dredge and the 

chains. However, it is unclear exactly 

how and where the turtle was caught/ 

hung up on the dredge frame and/or the 

chains. The observer did not see the 

turtle until it was brought on-board. The 

captain reported that the turtle hit 

between the dredge and the vessel and 

then again while lowering the gear to 

deck. This type of interaction could 

result in injuries that occur during 

hauling and emptying of the gear. In 

2005 and 2006, NMFS worked with 


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industry to test a dredge with a 

modified frame designed to guide sea 

turtles up and over the dredge frame 

(see response to Comment 3). The video 

work conducted during this project did 

show that sea turtles may become 

caught on the chains following an 

interaction on the bottom. However, this 

likely follows the turtle being struck by 

the dredge, during which it is likely to 

have become injured. It is not known 

whether the interaction in 2007 

occurred in the water column or on the 

bottom. From the available information, 

it is not known whether the chain mat 

contributed to the take or the nature of 

the injuries sustained by the turtle. 

NMFS is not aware of any other 

interactions of this nature and it is 

possible that this is a unique event. 

NMFS will continue to monitor the sea 

scallop dredge fishery to determine 

whether this is indeed a unique event. 

The chain-mat modified gear is 

expected to prevent most sea turtles 

from entering the dredge bag and 

injuries that result from such capture. 

However, two turtles were documented 

in the dredge bag by the NEFSC FSB in 

2007. NMFS investigated whether this 

may mean that the gear was not 

functioning as expected and as 

described in the proposed rule for this 

action. For one of the interactions 

resulting in capture in the dredge bag, 

the openings in the chain mat were 

measured by the observer at the start of 

the trip and following the take. After the 

tow in which the turtle was observed, 

some openings in the chain mat, 

particularly at the top of the bag and 

near the sweep, measured from 16 to 20 

inches (40.6–50.8 cm). The turtle 

captured on this trip measured 65.2 cm 

(25.7 inches) curved carapace length 

from notch to tip and 61.5 cm (24.2 

inches) curved carapace width (NEFSC, 

FSB, Observer database). Using the 

formulas in Teas (1993) and Coles 

(1999), respectively, this is a straight 

carapace length of 60.4 cm (23.8 inches) 

and a straight carapace width of 50.2 cm 

(19.8 inches). Given the larger openings 

recorded in the chain mat, a sea turtle 

of the size observed captured would be 

small enough to pass through the 

observed openings. 

The second turtle reported captured 

in the dredge bag measured 89 cm (35.0 

inches) from notch to tip and 83 cm 

(32.7 inches) curved carapace width 

(NEFSC, FSB, Observer database). Using 

the formulas in Teas (1993) and Coles 

(1999), respectively, this is a straight 

carapace length of 82.9 cm (32.6 inches) 

and a straight carapace width of 66.2 cm 

(26.1 inches). No measurements were 

taken of the openings in the chain mat. 

However, the observer’s comments 

indicate that there were breaks in, or 

problems with, the chain mat that 

allowed the turtle to be captured in the 

bag. There were several comments in 

the observer’s log about chains/shackles 

being broken, but none specifically on 

the tow in which the turtle was taken. 

On tows prior to the one on which the 

turtle was taken, there were several 

instances of large (500 pound (227 kg) 

and 800 pounds (363 kg)) rocks being 

caught inside the dredge. The rocks 

were larger than the turtle that was 

taken, and too large to fit through a 

chain mat that was operating correctly. 

The observer also stated that the 

horizontal chain closest to the cutting 

bar may not have been attached to the 

vertical chain, so the grid was not fixed, 

which would allow for larger openings 

(memo from Pasquale Scida to The File, 

March 11, 2008). For both interactions 

that resulted in the capture of the sea 

turtle in the dredge bag, the observers’

comments indicate that there were 

openings in the gear larger than the 

openings required, allowing the sea 

turtles to pass into the dredge bag. 

This information shows that noncompliant chan mats may result in 

failure to achieve the intended 

conservation benefits. However, it does 

not indicate that the gear, when 

properly implemented, does not 

function as expected. NMFS believes 

that when the gear is properly 

implemented, it will prevent most sea 

turtles from being captured in the 

dredge bag. NMFS is developing a plan 

to collect information on and to monitor 

the degree/frequency of stretch and 

breakage that is occurring in order to 

better understand the impacts of the 

wear of the gear. NMFS will also 

continue to use observer data to gain a 

better understanding of how sea turtles 

may be interacting with other parts of 

the dredge gear (i.e., outside of the 

dredge bag). 

The observer coverage in the Atlantic 

sea scallop dredge fishery in 2007 is 

comparable to that over the preceding 5 

years (memo from Ellen Keane to The 

File, February 27, 2007). The number of 

observed hauls May 1 through 

November 30 in waters south of 41°9.0′ 

N. latitude was 4617 in 2002, 5877 in 

2003, 10609 in 2004, 7601 in 2005, and 

5176 in 2006. From May 1 through 

October 31, 2007, 8317 hauls were 

observed. Data on the number of hauls 

observed in November 2007 is not yet 

available, but will increase the total 

number of observed hauls in 2007. The 

number of hauls observed in 2007 is 

greater than all but one of the preceding 

5 years. 

Comment 2: Two comments 

addressed the spatial extent of the 

proposed rule. One supported using a 

longitudinal line at 70° W. longitude 

(long.) as the boundary of the rule as, 

according to the comment, this is the 

area in which the gear was tested and 

is far northward of the area where takes 

are likely to occur, or where they have 

occurred with rare exceptions. A second 

commenter supported the action and the 

northern boundary as proposed, but 

noted that the boundary needs to be 

monitored closely for any changes in the 

distribution of sea turtles or sea 

scallops, and therefore, fishing effort, 

due to environmental change. 

Response: Sea turtle species that are 

found off the northeastern coast of the 

United States north of Cape Hatteras, 

North Carolina are, in order of 

frequency of occurrence, loggerhead, 

leatherback, Kemp’s ridley, and green 

sea turtles (Shoop, 1980; Shoop and 

Kenney, 1992). The distributions of all 

four species overlap in part with the 

distribution of scallop dredge gear. 

Loggerhead, leatherback, Kemp’s ridley, 

and green sea turtles occur seasonally in 

southern New England and mid-Atlantic 

continental shelf waters north of 

Hatteras. The occurrence of these 

species in these waters is temperature 

dependent (Keinath et al., 1987; Shoop 

and Kenney, 1992; Musick and Limpus, 

1997; Morreale and Standora, 1998; 

Braun-McNeill and Epperly, 2002; 

James et al., 2005b; Morreale and 

Standora, 2005). In general, turtles move 

up the coast from southern wintering 

areas as water temperatures warm in the 

spring. The trend is reversed in the fall 

as water temperatures cool. By 

December, turtles have passed Cape 

Hatteras, returning to more southern 

waters for the winter (Keinath et al., 

1987; Shoop and Kenney, 1992; Musick 

and Limpus, 1997; Morreale and 

Standora, 1998; Braun-McNeill and 

Epperly, 2002; James et al., 2005b; 

Morreale and Standora, 2005). Hardshelled species are typically observed as 

far north as Cape Cod whereas more 

cold-tolerant leatherbacks are observed 

in more northern Gulf of Maine waters 

in the summer and fall (Shoop and 

Kenney, 1992; STSSN database). 

Extensive survey effort on the 

continental shelf from Cape Hatteras, 

North Carolina to Nova Scotia, Canada 

in the 1980s (CeTAP, 1982) revealed 

that loggerheads were observed in 

waters from the beach to depths of up 

to 4481 m (14,701 ft). However, they 

were, in general, more commonly found 

in waters from 22–49 m (72.2–160.8 ft) 

deep (Shoop and Kenney, 1992). The 

overall depth range of leatherback 

sightings in the CeTAP study (1982) was 

comparable to loggerheads. 


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Leatherbacks were sighted in water 

depths ranging from 1–4151 m (3.3–

13,619 ft) (Shoop and Kenney, 1992). 

However, leatherback depth distribution 

was broader than that of loggerheads 

with 84.4 percent of the sightings in 

waters less than 180 m (590.6 ft) (Shoop 

and Kenney, 1992). By comparison, 84.5 

percent of loggerhead sightings were in 

waters less than 80 m (262.5 ft) (Shoop 

and Kenney, 1992). The CeTAP study 

did not include Kemp’s ridley and green 

turtle sightings given the difficulty of 

sighting these smaller species. 

Sixty-five turtles have been observed 

taken in the sea scallop dredge fishery 

from 1996 through December 2007. An 

additional 16 turtles were reported 

captured on an off-watch or unobserved 

haul. Prior to 2005, no sea turtle takes 

had been observed in the sea scallop 

dredge fishery outside the mid-Atlantic 

region. In the 1999 and 2000 scallop 

fishing years, relatively high levels of 

observer coverage (22 percent–51 

percent) occurred in portions of the 

Georges Bank Multispecies Closed Areas 

that were conditionally opened to 

scallop fishing (memo from M. 

Sissenwine to P. Howard, November 1, 

2000). Despite this high level of 

observer coverage and operation of 

scallop dredge vessels in the area during 

June–October, no sea turtles were 

observed captured in scallop dredge 

gear in these years. From 2001 through 

2004, observer coverage was low in the 

Gulf of Maine (<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, 2004a, 2005). 

Two takes have been documented in 

the sea scallop dredge fishery on 

Georges Bank. In August 2005, a Kemp’s 

ridley sea turtle was taken at 

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

long., just south of the northern 

boundary of the chain-mat 

requirements, by a dredge vessel 

operating on the southern portion of 

Georges Bank demonstrating that takes 

in this area are possible. In 2007, a 

second Kemp’s ridley was taken on 

Georges Bank at approximately 41° 24′ 

N. lat./68° 30′ W., just north of the 

northern boundary of the requirements. 

The NEFSC FSB has documented 

interactions between sea turtles and 

other commercial fisheries operating in 

the Georges Bank region. NMFS 

examined the observer database for sea 

turtle-fishery interactions in statistical 

areas 521, 522, 525, 526, 561, and 562. 

These areas overlap Georges Bank and 

are east of 70° W. long. From 1989 

through 2006, the NEFSC FSB 

documented 166 sea turtles (excluding 

moderately and severely decomposed 

turtles) taken in these areas (memo from 

John Boreman to Patricia A. Kurkul, 

March 16, 2006). Of these, only one 

interaction was documented north of 

41°9.0′ N lat. It should be noted that 

these numbers include all of the turtle 

data contained in the NEFSC observer 

database, even though fisheries and 

turtle bycatch information in the early 

years is not necessarily reflective of 

current conditions, nor necessarily 

analyzed by the NEFSC (such as pelagic 

longline data) (memo from John 

Boreman to Patricia A. Kurkul, March 

16, 2006). These data show that sea 

turtles are present on the southern 

portion of Georges Bank and would be 

vulnerable to capture by sea scallop 

dredge gear operating in this area. 

As described in the Final EA, the 

variables associated with sea turtle 

bycatch in the sea scallop dredge gear 

are inconclusive (Murray 2004a, 2004b, 

2005). Sea surface temperature (SST), 

depth, time-of-day, and tow time were 

identified as variables affecting 

observed bycatch rates of sea turtles 

with scallop dredge gear (Murray, 

2004a, 2004b, 2005). However, the 

variable(s) associated with the highest 

bycatch rates changed from one year to 

another (e.g., SST, depth) or could not 

be further analyzed (e.g., time-of-day 

and tow time) because the information 

is not collected for the entire fishery 

(Murray, 2004a, 2004b, 2005). 

Therefore, a single variable has not yet 

been found for forecasting sea turtle 

bycatch in sea scallop dredge gear. 

Intense biological activity is usually 

associated with oceanographic fronts 

because they are areas where water 

masses of different densities converge 

(Robinson and Hamner; www.mbari.org/ 

muse/Participants/RobinsonHamner.html posted February 18, 2004). 

A review of the data associated with the 

11 sea turtles captured by the scallop 

dredge fishery in 2001 concluded that 

the turtles appeared to have been near 

the shelf/slope front (memo from David 

Mountain to Cheryl Ryder and Paul 

Rago, March 22, 2002). Such 

oceanographic features occurring in the 

same area as the operation of scallop 

dredge gear may increase the risk of 

interactions between scallop dredge gear 

and sea turtles. 

While these geographic and 

oceanographic factors may increase the 

risk of sea turtle interactions with 

scallop gear, evidence for these is 

presently lacking. Interactions of sea 

turtles with scallop dredge gear are 

likely where sea turtle distribution 

overlaps with the fishery. Based on the 

known distribution of sea turtles and 

the observed take of sea turtles in 

fisheries operating on Georges Bank, 

NMFS expects the take of sea turtles by 

dredge vessels operating north of 41°9.0′ 

N. lat. to be rare. However, it is known 

that sea turtles are present on southern 

Georges Bank and may be vulnerable to 

capture in sea scallop dredge gear 

operating in this area. Therefore, based 

on: (1) the known distribution of sea 

turtles, (2) sea scallop dredge fishing 

effort, and (3) the observed take of sea 

turtles, this rule maintains the eastern 

boundary at the EEZ and the northern 

boundary at 41°9.0′ N. lat. NMFS will 

continue to evaluate new information as 

it becomes available and continue to 

assess the appropriateness of these 

boundaries. This action does not 

preclude NMFS from modifying these 

boundaries at a future time. 

Comment 3: One commenter 

supported the changes to the chain mat 

requirement but noted that the changes 

do not address the operation of the 

dredge on the bottom and that further 

efforts, such as modifications to the 

dredge design, are needed. NMFS has 

expended major effort addressing sea 

turtle interactions with ‘‘dredge trawls’’, 

but has paid insufficient attention to the 

dredges themselves where turtles can 

get lodged in the gear and run over by 

the dredge. The commenter urges NMFS 

to increase funding and research to 

determine the extent of interactions and 

address them as soon as possible. 

Response: NMFS continues to be 

concerned about sea turtle takes in the 

scallop fishery and is working to 

minimize them. The chain-mat 

modification has been shown to reduce 

the capture of sea turtles in the scallop 

dredge bag and injuries resulting from 

such capture. As described in the 

response to Comment 24, it is likely that 

sea turtles interact with sea scallop 

dredge gear on the sea floor and in the 

water column. However, it is not known 

what proportion of sea turtles interact 

with the gear on the sea floor or the 

water column. NMFS believes the chain 

mat will prevent serious injury leading 

to death or failure to reproduce caused 

by crushing from debris in the dredge 

bag, dumping of turtles on the vessel’s 

deck, and crushing them by the falling 

gear. NMFS recognizes that interactions 

may still occur on the sea floor and may 

result in serious injury or mortality. 

Therefore, NMFS is continuing to work 

to address this type of interaction. 

In 2005 and 2006, NMFS worked with 

industry to test a dredge with a 

modified cutting bar and bail designed 

to minimize impacts to turtles that may 

be encountered on the bottom by 

guiding the sea turtle over the dredge 

frame (NMFS, 2005; Milliken et al., 


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2007). The project used turtle carcasses 

and model turtles to simulate a worst 

case scenario of a dredge overtaking a 

sea turtle lying on the bottom. During 

the 2005 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 in 2005. During this tow, the 

model turtle was deflected over the bail 

of the modified dredge (NMFS, 2005). 

Based on the results of the 2005 study, 

the dredge was further modified and 

additional trials were conducted in 

2006. In 8 of the 12 successful trials, the 

carcasses went over the dredge (n=7) or 

were deflected to the side (n=1), 

indicating that the design may be 

effective in guiding turtles up and over 

the dredge (Milliken et al., 2007). 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 results of these 

studies indicate that this modification 

may be effective at guiding sea turtles 

up and over the dredge frame. NMFS is 

continuing to test this modification to 

assess whether it will be effective in 

reducing the severity of injuries to sea 

turtles interacting with sea scallop 

dredges on the bottom. 

In addition, research using video has 

been conducted to better understand the 

nature of the interactions. Three recent 

projects have used video to try to 

document sea turtle behavior and 

interactions with sea scallop dredges. In 

addition to the work conducted in 2005 

and 2006 on the modified dredge frame, 

researchers used video during the 2003–

2004 study of the chain-mat modified 

dredge. During this study, one trip was 

designated as a research camera cruise 

where underwater video was taken of 

the modified dredge during normal 

fishing operations (DuPaul et al., 2004). 

Video was also used on two other 

cruises. No sea turtles were documented 

by video on the three cruises that 

utilized cameras (R. Smolowitz, pers. 

comm.). 

In 2004 and 2005, the NEFSC also 

worked with researchers and 

commercial fishermen to conduct 

approximately 80 hours of videotaping 

of dredges as they are fished. These 

studies were designed to observe sea 

turtle behavior around sea scallop 

dredge gear. In 2004, 7 hours of video 

was taken on a 3-day trip. During this 

project, video techniques and tools were 

developed to document the behavior of 

sea turtles. However, no sea turtles were 

recorded (Smolowitz et al., 2005). In 

2005, video was collected over 2 trips, 

one in August and one in September 

(Smolowitz and Weeks, 2006). 

Approximately 80 hours of video were 

collected during these trips. This video 

has been reviewed and no sea turtles 

were documented (Smolowitz and 

Weeks, 2006). 

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. Despite the 

challenges associated with using video 

to document interactions between sea 

turtles and sea scallop dredges, NMFS 

plans to continue collecting video in 

conjunction with other gear projects in 

an effort to gain a better understanding 

of interactions between sea scallop 

dredge gear and sea turtles. 

NMFS is also investigating gear 

modifications to minimize impacts to 

sea turtles resulting from interactions in 

the sea scallop trawl fishery. In 2006, 

the use of a turtle excluder device (TED) 

in the scallop trawl fishery was 

investigated (Lawson and DeAlteris, 

2006). This research is on-going. NMFS 

is considering amendments to the 

regulatory requirements for TEDs, 

including requiring the use of TEDs in 

the trawl component of the Atlantic sea 

scallop fishery (72 FR 7382, February 

15, 2007). 

Comment 4: One commenter believes 

the solution is to create hatcheries for 

turtles that release more turtles than 

have interactions with commercial 

fishing gear. The hatchery could raise 

the turtles to two or more years before 

releasing them. 

Response: Headstarting is used to 

describe the process whereby turtles are 

maintained in captivity for a period 

following hatching (USFWS and NMFS, 

1992). The premise behind headstarting 

is that sea turtles will be larger and less 

susceptible to predators upon their 

release; thus, increasing their chances of 

survival. Sea turtles have been captive 

reared in a number of projects, 

including green sea turtles in Florida 

(Huff, 1989) and Kemp’s ridley sea 

turtles in Texas (USFWS and NMFS, 

1992). Generally, this has been 

considered experimental as a 

management technique (NRC, 1990; 

USFWS and NMFS, 1992) and has been 

controversial for a number of reasons, 

including that it is unproven, removes 

turtles from their natural environment, 

and does not reduce the threats that 

cause population declines (NRC, 1990; 

Shaver and Wibbels, 2007). The 

effectiveness of headstarting is 

dependent on the survival, adaptation, 

and eventual breeding of sea turtles after 

their release (Shaver and Wibbels, 

2007). Some headstarted sea turtles have 

been documented nesting (Shaver and 

Calliouet, 1998; Bell et al., 2005; Shaver, 

2005). However, data are often limited 

and it is not clear how many 

documented nestings are required to 

indicate success of a program. Although 

headstarted sea turtles have been shown 

to successfully nest, it is not known that 

such a program increases the size of the 

wild breeding stock of sea turtles. 

In addition, it is important to protect 

in-water populations of sea turtles. 

Based on the size of Atlantic 

loggerheads at various life stages and 

the measurements of sea turtles 

captured in the sea scallop dredge 

fishery, NMFS anticipates that both 

benthic immature and sexually mature 

loggerhead sea turtles are captured in 

the fishery (NMFS, 2008). This is a 

different size class than would be 

released from the head-starting program. 

Population model analyses for 

loggerhead sea turtles indicated survival 

in the first year was less critical than 

survival in later life stages (Crouse et al., 

1987). Heppel et al. (1996) used a series 

of deterministic matrix models for 

yellow mud turtles and Kemp’s ridley 

sea turtles to examine the effects of 

headstarting. This study showed that 

efforts focusing exclusively on 

improving survival in the first year of 

life are unlikely to be effective for longlived species such as turtles. Across 

turtle species, analyses of growth rates 

have consistently shown that these rates 

depend strongly on survival of turtles 

nearing or reaching sexual maturity (i.e., 

large juveniles, sub-adults, and sexually 

mature animals) (Heppell, 1998). 

Benthic immature and sexually mature 

loggerhead sea turtles are the size 

classes that are impacted by the sea 

scallop dredge fishery. 

Comment 5: Several comments were 

received on the ITS for the Atlantic sea 

scallop dredge fishery. One commenter 

states that NMFS has a history of failing 

to recognize the extent and impact of 

the scallop dredge fishery’s impact on 

turtles as estimates of take have 

increased in the 2003 and 2004 

Biological Opinions and that the current 

levels are unacceptably high. In 

addition, chain mats contribute to 

underestimates by not bringing sea 

turtles out of the water, and the failure 

to lower the ITS in the 2006 Biological 

Opinion leads them to believe that 

NMFS does not expect that the take and 

injury will be significantly reduced with 

the use of the chain mats. Comments on 

the original chain-mat rulemaking, and 

resubmitted with this rulemaking, 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 


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(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). In addition, one 

commenter stated that the assumption 

that sea turtles are interacting with the 

dredges at the same rate as prior to 2006 

is not sound science, as industry has 

fewer days. 

Response: The most recent 

consultation on the continued 

authorization of the Atlantic sea scallop 

fishery, conducted under section 7 of 

the ESA, was completed in March 2008. 

The Biological Opinion for that 

consultation provides the consultation 

history, the past and anticipated future 

effects of the fishery on ESA-listed 

species, and measures to be taken by 

NMFS to address the taking of ESAlisted species in the scallop dredge and 

trawl fisheries (NMFS, 2008). 

For the reasons stated in the 

background and in the response to 

comment 24, NMFS believes that the 

serious injury and mortality rate of sea 

turtles interacting with chain-mat 

modified gear will be less than that 

calculated for the Biological Opinion 

since fewer turtles will be subject to 

injuries occurring within the dredge bag 

or as a result of dumping the bag on 

deck. However, NMFS cannot quantify 

the reduction in mortality rate given 

that the proportion of sea turtles 

interacting with the dredge in the water 

column versus on the bottom is not 

known. For the section 7 consultation 

on the continued authorization of the 

scallop fishery, NMFS uses the best 

available information and provides the 

benefit of the doubt to the species where 

information is incomplete. Therefore, 

since the reduction in the mortality rate 

cannot be quantified, the anticipated 

number of lethal sea turtle interactions 

was not reduced as a result of the 

implementation of the chain-mat 

regulations. 

The bycatch estimates completed by 

the NEFSC (Murray 2004a, 2004b, 2005, 

2007), and the anticipated take level in 

the Biological Opinions, included any 

interaction occurring during an onwatch 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, held against 

the dredge by the pressure of the flow 

of water as observed from on deck, or 

turtles swimming at the surface that 

were observed ‘‘bumped’’ by the cables 

of the dredge. Sea turtles may interact 

with the gear and not be brought to the 

surface. These interactions cannot be 

quantified at this time. 

The number of days available to 

industry would not change the bycatch 

rate (number of turtles taken per unit of 

effort) of sea turtles in the fishery, but 

would change the total estimated 

bycatch of sea turtles if the fishing effort 

has been reduced in areas and at times 

where turtle occur. NMFS recognizes 

that recent management measures have/ 

will constrain effort in the mid-Atlantic 

sea scallop fishery. In Framework 18 to 

the Scallop FMP, open areas DAS 

allocations were lower than the 2004 

levels (71 FR 2006, June 8, 2006). 

Amendment 11 to the Scallop FMP 

proposes to control the capacity of the 

general category scallop fishery and, if 

implemented, would limit the number 

of vessels that can participate in the 

fishery and the number of scallops that 

can be retained and landed by vessels in 

the general category fleet (72 FR 71315, 

December 17, 2007). As described 

above, in the section 7 consultation 

process under the ESA, NMFS uses the 

best available information and provides 

the benefit of the doubt to the species 

where information is incomplete. For 

the purpose of analyzing the effects of 

the sea scallop dredge fishery on 

loggerhead sea turtles, NMFS considers 

that the bycatch estimates in the 2003 

and 2004 fishing years provide the best 

available information. NMFS believes 

that the serious injury and mortality rate 

of sea turtles interacting with chain-mat 

modified gear will be less than that 

calculated for the Biological Opinion 

since fewer turtles will be subject to 

injuries occurring within the dredge bag 

or as a result of dumping the bag on 

deck. However, NMFS cannot quantify 

the reduction in mortality rate at this 

time. Refer to the March 2008 Biological 

Opinion for additional information on 

the estimate of take in this fishery. 

Comment 6: Sonar could be utilized 

to displace sea turtles from the areas 

where scallopers are working. 

Response: The information on the 

hearing capabilities of sea turtles is 

limited, but suggests that the auditory 

capabilities are centered in the lowfrequency range (<1kHz) (Ridgeway et 

al., 1969; Lenhardt et al., 1996; Bartol et 

al., 1999). There is also very little 

information about sea turtle behavioral 

reactions to levels of sound below the 

thresholds suspected to cause injury or 

Temporary Threshold Shift (Ridgeway 

et al., 1969; McCauley, 2000). Given the 

limited information on sea turtle 

hearing and behavior in response to 

sound, this type of mitigation is not 

feasible. The use of sonar could result 

in injury, affect sea turtle behavior, and 

displace sea turtles from a preferred 

habitat including foraging grounds, and 

would constitute a take under the ESA. 

The use of sonar could also impact other 

animals in the area in which it is 

utilized. Some of these species are 

protected under the Marine Mammal 

Protection Act and the ESA. 

Comment 7: No dredging, trawling, or 

longlining should be allowed. 

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 sea turtle 

distribution and sea scallop dredge 

effort are not expected to overlap from 

December 1 through April 30, banning 

dredging during these months is not 

expected to provide benefits to sea 

turtles. A seasonal closure of the midAtlantic was considered during the 

original rulemaking to require chain-mat 

modified dredges in the Atlantic sea 

scallop dredge fishery. This alternative 

was rejected given the uncertainty of the 

extent of the area in which interactions 

occur, the broad extent of the closure, 

and the potential displacement of effort 

to other fishing areas. Additional 

information on this alternative can be 

found in the August 2006 final rule (71 

FR 50361, August 25, 2006) and its 

accompanying EA (NMFS, 2006). The 

comments regarding longline and trawl 

fisheries are not relevant to this action. 

Comment 8: NMFS should consider 

additional methodologies to reduce sea 

turtle interactions with the dredge fleet, 

such as keeping discards on board 

during fishing operations as sea turtles 

may be attracted to the discards. 

Response: It has been suggested that 

the discard of scallop viscera during 

fishing operations may be attracting sea 

turtles 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 scallop vessels. 

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. 

Therefore, it is not clear that a 


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prohibition on the discard of sea scallop 

viscera would reduce the risk of 

interaction. 

NMFS is continuing to investigate 

additional modifications to reduce 

injury and mortality to sea turtles 

resulting from an interaction with sea 

scallop dredge gear. See the response to 

Comment 3 for additional information. 

Comment 9: Regulations result in 

scallop fishing occurring in smaller 

areas which creates a non-natural food 

supply congregating sea turtles. Reduce 

the non-natural food supply by 

changing the regulations. 

Response: The distribution of sea 

scallop fishing effort is a function of the 

condition of the resource. Vessels fish 

where the sea scallop catch is most 

efficient. Certain management measures 

may amplify this as with more 

restrictive measures, there is more 

interest in maximizing the yield 

compared to the effort. While vessels 

may fish the same areas, NMFS has no 

evidence to refute or support the 

possibility that discards from the sea 

scallop fishery may be attracting sea 

turtles to those areas (see response to 

Comment 8). 

Comment 10: NMFS could 

substantially mitigate the impacts of the 

scallop dredge fishery on sea turtles 

through narrowly crafted time-area 

closures. An analysis of potential 

closure areas was submitted with the 

comment. Recommended closures 

include the Elephant Trunk Access Area 

from June 1 to October 31, the eastern 

portion of the Hudson Canyon Access 

Area and the area immediately east from 

July 1 to October 31, and the Delmarva 

Area from June to October. Time-area 

closures must be considered in this 

rulemaking. 

Response: During the original 

rulemaking to require chain-mats in the 

Atlantic sea scallop dredge fishery, 

NMFS evaluated a seasonal closure of 

the mid-Atlantic in order to reduce the 

impacts on sea turtles from sea scallop 

dredge activity. However, given the 

uncertainty of the extent of the area in 

which interactions occur, the broad 

extent of the closure, and the potential 

displacement of effort to other fishing 

areas, this alternative was rejected at 

that time (71 FR 50361, August 25, 

2006). 

Framework 18 to the Scallop FMP 

implemented a closure of the Elephant 

Trunk Access Area (ETAA) during 

September and October to reduce 

potential interactions between the sea 

scallop fishery and sea turtles (71 FR 

33211, June 8, 2006). On November 8, 

2007, the New England Fishery 

Management Council (Council) 

submitted Framework 19 to the Scallop 

FMP to NMFS. In Framework 19, the 

Council recommends removing the 

seasonal closure for the ETAA. NMFS 

has published a proposed rule for 

Framework 19 that indicates that NMFS 

would disapprove the Council’s 

recommended closure, thereby leaving 

the September through October closure 

in place (73 FR 14748). As there is no 

new information that justifies 

eliminating the seasonal closure, and 

due to concern relating to the potential 

bycatch of sea turtles if this closure 

were eliminated, the Council’s 

recommendation to eliminate the ETAA 

seasonal closure will be disapproved. 

NMFS would continue to monitor the 

effectiveness of this closure and adjust 

management measures as appropriate. 

As described in the Final EA, a 

consistent set of variables has not yet 

been found for forecasting sea turtle 

bycatch with sea scallop dredge gear. 

NMFS is continuing to work towards 

identifying ‘‘hot spots’’ of sea turtle 

bycatch in the mid-Atlantic. NMFS is 

currently conducting a study to examine 

various environmental variables in 

relation to sea turtle takes in multiple 

NER fisheries, including the sea scallop 

fishery. This project integrates data from 

a suite of satellite sensors, electronic 

tags, fishery observer logs, and highresolution coupled physical-biological 

models to quantitatively characterize 

sea turtle habitat in a variety of oceanic 

environments. The end product will be 

a set of decision support tools that 

forecast the likelihood of sea turtlefishery interactions. 

Comment 11: NMFS should 

expeditiously issue new and adequate 

regulations to protect loggerhead sea 

turtles from sea scallop dredging before 

scallop dredging begins to take sea 

turtles in the spring. 

Response: As described in the 

proposed rule and the EA for this final 

action, NMFS believes that the chainmat modification will protect sea turtles 

from capture in the dredge bag and will, 

therefore, protect them from injury and 

mortality that results from such capture. 

Therefore, NMFS is issuing this final 

rule to minimize the impacts that would 

result from capture in the dredge bag. 

NMFS recognizes that sea turtles may be 

struck by the dredge gear as it is fished 

and that injuries and mortality may 

result from such an interaction. NMFS 

will continue to investigate and 

implement, as appropriate, measures to 

reduce interactions with sea turtles and/ 

or the severity of interactions that do 

occur (see comment 3). 

Comment 12: The reevaluation of the 

chain mat modification must be 

undertaken in the context that the south 

Florida nesting population is in perilous 

condition. The loggerhead sea turtle is 

no closer to recovery now than when it 

was originally listed. 

Response: A detailed description of 

the status of the species can be found in 

the EA 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 nesting 

groups. These are the northern, south 

Florida, Dry Tortugas, Florida 

Panhandle, and Yucatan nesting groups. 

Genetic analyses conducted at the 

nesting sites indicate that they are 

distinct nesting groups (TEWG, 2000). 

The 5-year status review for loggerhead 

sea turtles (NMFS and USFWS, 2007) 

compiled the available information on 

mean number of loggerhead nests per 

year and, where available, the 

approximated counts of nesting females 

for each of the five identified nesting 

groups in the western North Atlantic. 

Nesting survey data is important in 

that it provides information on the 

relative abundance of nesting, the 

estimated number of reproductively 

mature females in each nesting group, 

and the contribution of each nesting 

group to loggerhead nesting in the 

western Atlantic, overall. During the 

majority of the 1990s, the south Florida 

nesting group showed an increase in the 

number of nests of 3.6 percent annually 

from 1989–1998 (TEWG, 2000). 

However, in 2006, information was 

presented at an international sea turtle 

symposium (Meylan et al., 2006) and in 

a letter to NMFS (letter to NMFS from 

the Director, Fish and Wildlife Research 

Institute, Florida Fish and Wildlife 

Conservation Commission, October 25, 

2006) that the south Florida loggerhead 

nesting group was experiencing a 

decline in nesting. A trend analysis of 

the nesting data collected for Florida’s 

Index Nesting Beach Survey program 

showed a decrease in nesting of 22.3 

percent in the annual nest density of 

surveyed shoreline over the 17-year 

period and a 39.5-percent decline since 

1998 (letter to NMFS from the Director, 

Fish and Wildlife Research Institute, 

Florida Fish and Wildlife Conservation 

Commission, October 25, 2006). Data 

collected in Florida in 2007 reveal that 

the decline in nest numbers has 


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continued as 2007 had the lowest nest 

count in any year during the period of 

1989–2007 (FWRI, 2007). Standardized 

ground surveys of 11 North Carolina, 

South Carolina, and Georgia nesting 

beaches showed a significant declining 

trend of 1.9 percent annually in 

loggerhead nesting from 1983–2005 

(NMFS and USFWS, 2007). In addition, 

standardized aerial nesting surveys in 

South Carolina have shown a significant 

annual decrease of 3.1 percent from 

1980–2002 (NMFS and USFWS, 2007). 

The South Carolina data represents 

approximately 59 percent of nesting by 

the northern nesting group (Dodd, 

2003). No surveys of the Dry Tortugas 

nesting group have been conducted 

since 2004. No trend was detected in the 

number of nests laid from 1995 to 2004 

(excluding 2002 when surveys were not 

conducted); however, because of the 

annual variability in nest totals, a longer 

time series is needed to detect a trend 

(NMFS and USFWS, 2007). The Florida 

Panhandle nesting group has shown a 

significant declining trend of 6.8 

percent annually from 1995–2005 

(NMFS and USFWS, 2007). The Yucatan 

nesting group is characterized as having 

declined since 2001 (NMFS and 

USFWS, 2007). 

Unlike nesting beach data, in water 

studies of sea turtles typically sample 

both sexes and multiple age classes. As 

is the case with nesting data, there are 

caveats for using results from in water 

studies to assess sea turtles abundance 

and the trend of turtle populations, 

overall. Nevertheless, these can be 

useful for gaining information on the 

species away from the nesting beach. As 

was described in a 1999 report of the 

IUCN/SSC Marine Turtle Specialist 

Group, although sea turtles spend at 

most 1 percent of their lives in or on 

nesting beaches, approximately 90 

percent of the literature on sea turtle 

biology is based on nesting beach 

studies (Bjorndal, 1999). In water 

studies have been conducted in some 

areas of the western Atlantic and 

provide some data by which to assess 

the relative abundance of loggerhead sea 

turtles and changes in abundance over 

time (Maier et al., 2004; Morreale et al., 

2004; Mansfield, 2006). Maier et al. 

(2004) used fishery-independent trawl 

data to establish a regional index of 

loggerhead abundance for the southeast 

coast of the United States (Winyah Bay, 

South Carolina to St. Augustine, FL) 

during the period 2000–2003. A 

comparison of loggerhead catch data 

from this study with historical values 

suggested that in-water 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 

(Maier et al., 2004). However, reduced 

catch rates in the smaller size classes 

was also noted over the four year time 

period (Maier et al., 2004). A long-term, 

on-going study of loggerhead abundance 

in the Indian River Lagoon System of 

Florida found a significant increase in 

the relative abundance of loggerheads 

over the last 4 years of the study, but 

there was no discernable trend in 

abundance over the 24-year time period 

of the study (1982–2006) (Ehrhart et al., 

2007). Sea turtles captured in pound 

nets in the fall and early winter in North 

Carolina were sampled from 1995–1997 

and 2001–2003 to monitor trends in 

catch rates. The catch rates of 

loggerhead sea turtles increased 

significantly at a rate of 13 percent per 

year during the study period (Epperly et 

al., 2007). There was also a significant 

increase in the size of loggerhead sea 

turtles over time (Epperly et al., 2007). 

In contrast to these studies, Morreale 

et al. (2004) observed a decline in the 

incidental catch of loggerhead sea 

turtles in pound net gear fished around 

Long Island, NY during the period 

2002–2004 in comparison to the period 

1987–1992. No changes in size 

distribution were noted but only two 

loggerheads were captured from 2002–

2004 and these were comparable in size 

to the larger turtles captured during the 

1987–1992 period (Morreale et al., 

2004). Using aerial surveys, Mansfield 

(2006) also found a decline in the 

densities of loggerhead sea turtles in 

Chesapeake Bay over the period 2001–

2004 compared to aerial survey data 

collected in the 1980s. Significantly 

fewer turtles (p<0.05) were observed in 

both the spring (May–June) and the 

summer (July–August) of 2001–2004 

compared to aerial surveys in the 1980s 

(Mansfield, 2006). A comparison of 

median densities from the 1980s to the 

2000s suggested that there had been a 

63.2 percent reduction in densities 

during the spring residency period and 

a 74.9 percent reduction in densities 

during the summer residency period 

(Mansfield, 2006). 

NMFS is undertaking a number of 

efforts in order to determine the status 

of loggerhead sea turtles. In November 

2007, NMFS initiated a review of the 

status of loggerhead sea turtles to 

determine whether a petitioned action 

to classify the North Pacific or Pacific 

loggerhead sea turtles as a Distinct 

Population Segment (DPS) with 

endangered status is warranted, and 

whether any additional changes to the 

current threatened listing for the 

loggerhead sea turtle are warranted (72 

FR 64585, November 16, 2007). This 

review is expected to be completed in 

the summer of 2008. NMFS also 

received a petition in November 2007 to 

designate loggerhead sea turtles in the 

western North Atlantic as a DPS with 

endangered status and to designate 

critical habitat for this population. The 

petition also requested that if the 

western Atlantic loggerhead sea turtle is 

not determined to meet the DPS criteria 

that loggerheads throughout the Atlantic 

be designated as a DPS and listed as 

endangered and that critical habitat be 

designated for it (Petition from Oceana 

and The Center for Biological Diversity 

to Carlos M. Gutierrez, Dr. William 

Hogarth, Dirk Kempthorne, and H. Dale 

Hall, November 15, 2007). On March 5, 

2008, NMFS published a response to the 

petition (73 FR 11851). NMFS has 

convened a biological review team to 

review the status of the species to 

determine whether the petitioned action 

is warranted and to determine whether 

any additional changes to the current 

listing of the loggerhead turtle are 

warranted (73 FR 11851, March 5, 

2008). The Recovery Plan for loggerhead 

sea turtles is currently being revised, 

and NMFS has convened a new 

loggerhead Turtle Expert Working 

Group (TEWG) to review all available 

information on Atlantic loggerheads. 

The TEWG is continuing to explore 

several hypotheses as to the decline in 

nest numbers observed in Florida. A 

final report from the TEWG is 

anticipated in 2008. 

The information on the decline in the 

south Florida nesting group is detailed 

and considered in the EA for this action. 

This action is expected to mitigate to 

some extent negative impacts to sea 

turtles by reducing injury and mortality 

resulting from capture in the sea scallop 

dredge bag. 

Comment 13: Two comments were 

received regarding reinitiation of 

consultation under section 7 of the ESA. 

One commenter stated that NMFS 

should reinitiate on all major U.S. 

fisheries interacting with sea turtles 

given the recent nest numbers for 

Florida. A second commmenter stated 

that the new rule should be subject to 

formal consultation to ensure that the 

scallop dredge fishery does not 

jeopardize the continued existence and 

recovery of the loggerhead sea turtle. 

Response: 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 


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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. 

NMFS determined on November 2, 2007 

that this action does not trigger the need 

to reinitiate consultation (memo from 

Patricia A. Kurkul to The Record, 

November 2, 2007). 

Although this action does not trigger 

reinitiation of consultation, NMFS 

reinitiated ESA section 7 consultation 

on the Scallop FMP on April 3, 2007 as 

new information had become available 

on the take of sea turtles in the sea 

scallop trawl fishery (Murray, 2007). 

This consultation (March 2008) 

considered the effects of the sea scallop 

fishery as a whole, including the use of 

chain-mat modified gear. The comments 

related to reinitiating on other major 

U.S. fisheries that interact with sea 

turtles are not relevant to this action. 

Comment 14: NMFS should consider 

ways for fishermen, working in 

conjunction with appropriate veterinary 

or rescue facilities, to bring injured 

turtles to these facilities for treatment. 

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 turtle 

with significant injuries 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. 

Regulations under 50 CFR 223.206(d) 

require fishermen who incidentally take 

turtles to return them to the water 

immediately (or after resuscitation) and 

prohibit the landing, offloading, or 

transhipping of incidentally caught sea 

turtles. At this time, fishermen should 

contact NMFS Northeast Regional Office 

to see if a Sea Turtle Stranding and 

Salvage Network member would meet 

the vessel and retrieve the turtle at sea 

or what other options may be available. 

Comment 15: The requirement should 

be that the chain mat be created with 

‘‘any material’’ to create openings of 14 

inches (35.5 cm) or less. The chains are 

causing vessels to turn the engines 

harder using more fuel. 

Response: The experimental fishery to 

test the modified gear used 3⁄8 inch 

hardened steel chain to create the chain 

mat (DuPaul et al., 2004). This was the 

modification that was shown to be 

effective at preventing sea turtles from 

entering the dredge bag. As far as NMFS 

is aware, no other materials have been 

tested. NMFS cannot assume that all 

other materials would be as effective as 

chain at preventing sea turtles from 

entering the gear. Therefore, NMFS is 

requiring that chain be used over the 

opening to the dredge bag. The impacts 

of the chains on the efficiency of the 

dredge are discussed in the response to 

Comment 20. 

Comment 16: Two comments were 

received on cumulative impacts. One 

commenter stated that there is a need to 

expeditiously address the cumulative 

impacts of U.S. fisheries on sea turtles 

given the recent nest numbers. The 

estimate of takes, and the authorized 

take, in fisheries has been revised 

upwards in recent year, and as new 

information becomes available increases 

in takes can be expected. NMFS must 

address these cumulative impacts if the 

decline of Atlantic loggerhead sea 

turtles is to be arrested. A second 

commenter stated that NMFS must 

ensure that the ESA and National 

Environmental Policy Act (NEPA) 

analysis considers cumulative impacts 

on loggerheads, including the threats 

from global climate change. 

Response: The response to Comment 

12 summaries the information on the 

recent nest numbers and the status of 

the species. Cumulative effects, 

including global climate change, on sea 

turtles were evaluated in the NEPA 

analysis for this action and under 

section 7 consultation on the continued 

authorization of the fishery. The EA for 

this action and the most recent 

Biological Opinion (NMFS 2008) should 

be referred to for the analysis. 

NMFS continues to work to minimize 

negative impacts to sea turtles. NMFS 

has implemented measures to reduce 

fisheries impacts including restrictions 

on the use of gillnet gear and gear 

requirements in the Virginia pound net 

fishery, the pelagic longline fishery, and 

the shrimp and summer flounder trawl 

fisheries. As described in the response 

to Comment 3, NMFS is conducting 

research on gear modifications to 

minimize impacts from benthic 

interactions between sea turtles and sea 

scallop dredge gear. In addition, NMFS 

is considering amendments to the 

regulatory requirements for TEDs in the 

mid-Atlantic (72 FR 7382, February 15, 

2007). NMFS continues to work to 

identify and address threats to sea 

turtles. 

Comment 17: Two commenters stated 

that the configuration should be defined 

as a fixed number of chains based on 

dredge width for ease of compliance and 

enforcement. In addition, one 

commenter stated that the regulation 

can be only enforced by measuring all 

sides of the squares, the current 

configuration presents too great a risk of 

unintentional violations, and is a safety 

issue. To measure the chain mat at sea, 

enforcement must either disengage the 

mats and lay them out, measure a 

suspended dredge, which is unsafe for 

all, or disengage the dredge and turn it 

up. None of these are practicable and all 

take away from fishing opportunities. 

Response: NMFS Office of Law 

Enforcement (OLE) and the United 

States Coast Guard (USCG) are confident 

that the regulation is enforceable 

regardless of whether the requirement is 

for a specified number of chains or for 

an opening of less than or equal to 14 

inches (35.5 cm). We have discussed the 

issue of safety with both OLE and the 

USCG and they have not raised any 

concerns. Measurements may be taken 

with the gear on deck if measuring a 

suspended dredge is determined at the 

time to present a safety issue. As with 

any gear modification of this type (i.e., 

mesh size requirements), it is not 

necessary that enforcement measure 

each and every opening, but rather that 

they measure a subset of openings to 

determine whether the gear is in 

compliance. 

NMFS recognizes that as the chains 

stretch and wear (‘‘stretch’’), they 

become longer and the openings may 

exceed 14 inches (35.5 cm), even if the 

gear was originally configured to meet 

the requirement. This may result in 

fishermen being concerned about 

unintentional violations resulting from 

larger openings due to this stretch. The 

degree of stretch depends on a number 

of factors including the area in which 

the vessel is fishing and the type/quality 

of chain that the vessel uses to configure 

the gear. NMFS has limited information 

on the degree of stretch that may occur. 

For one of the interactions resulting in 

the capture of a sea turtle in the dredge 

bag in 2007 (see response to Comment 

1), the openings in the chain mat were 

measured by the observer at the start of 

the trip and following the take. At the 

start of the trip, the openings were 12 

inches (30.5 cm) to 14 inches (35.5 cm), 


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but by the tow in which the turtle was 

observed, some openings in the chain 

mat, particularly at the top of the bag 

and near the sweep, measured from 16 

to 20 inches. The openings measured at 

the start of the trip and those measured 

after the take were not necessarily the 

same openings (memo from Pasquale 

Scida to The File, March 11, 2008). That 

is, the openings which measured 16 

inches (40.6 cm) to 20 inches (50.8 cm) 

inches may have been greater than 12 

inches (30.5 cm) to 14 inches (35.5 cm) 

measured at the start of the trip. This is 

the only trip on which measurements 

are available. However, there is 

anecdotal information from the observer 

program that indicates the stretch that 

may have occurred on this trip is not 

what is normally observed. Observers 

have noted that all the chains do stretch 

slightly. However, the stretch on this 

trip seemed excessive (memo from 

Pasquale Scida to The File, March 11, 

2008). NMFS will continue to work with 

the observer program to get additional 

measurements with which to better 

assess the degree of stretch and to 

evaluate the implications of the 

observed stretch. NMFS has advised 

fishermen that they need to be aware of 

this stretch and take it into 

consideration when configuring the 

gear. 

Comment 18: The design of the 

modified gear was driven by the desire 

to balance the need to protect turtles 

with an objective and easy to enforce 

standard and was structured to balance 

dredge efficiency with the prevention of 

turtles entering the dredge. There was 

no expectation of absolute uniformity in 

the rectangles created. There is no basis 

for the statement ‘‘As indicated in the 

final report, the number of chains in and 

of itself was not what drove the 

configuration tested. Rather it was the 

target size of the openings that drove the 

overall configuration.’’

Response: According to the final 

report on the experimental fishery, the 

design criteria that were used in 

developing the chain mat were to: (1) 

Prevent turtles of greater than 24 inches 

(60.7 cm) from entering the dredge bag 

(6 ticklers by 11 or 13 up and downs); 

(2) decrease the size and weight of the 

chains to keep impacts low; (3) increase 

chain hardness (grade) to minimize 

wear and stretching; (4) place tickler 

chains on top of up and down chains 

(allows gear to slide rather than dig); (5) 

use rubber cookies at each shackle to 

prevent wear; and (6) minimize bottom 

impacts by keeping gear light (DuPaul et 

al., 2004). The report does not include 

criteria related to enforcement. The first 

criterion in the gear design is to prevent 

turtles of a certain size from entering the 

dredge bag. This criterion notes a 

particular number of chains, 

presumably the number of chains 

needed to achieve this objective. During 

initial testing, the gear was hung in 

typical rock chain fashion which 

resulted in as much as a 32-inch (81.3- 

cm) diagonal between connection 

points. To correct for this, the design 

was modified to hang the horizontal 

chains straight across the opening 

(DuPaul et al., 2004). This information 

indicates that the gear was designed to 

achieve a particular spacing between the 

chains. That is, the criteria was to create 

an opening sufficiently small enough to 

prevent sea turtles of a certain size from 

entering the gear. While there may not 

have been an expectation of uniform 

openings, it is clear that the openings 

need to be small enough to prevent sea 

turtles from passing through the chains 

into the dredge bag. Based on the 

information provided to NMFS on the 

size of the openings in the experiment 

to test the chain-mat modified gear and 

the species identification and size of sea 

turtles taken in this fishery, NMFS 

believes that openings of 14 inches (35.5 

cm) or less will prevent most sea turtles 

from entering the dredge bag and will 

prevent the injury and mortality 

resulting from such capture. Under 

these requirements, the openings do not 

need to be uniform but cannot be larger 

than 14 inches (35.5 cm) per side. 

The criteria also included decreasing 

the size and weight of the chains in 

order to keep impacts low (criteria 2 and 

6). The report does not include 

information on the type of impacts 

being considered in criteria 2 and it is 

possible that this criteria included 

impacts related to dredge efficiency. 

However, as described in the response 

to Comment 20, the weight of the chainmat modified gear is not substantially 

different than the unmodified gear. 

Therefore, NMFS does not anticipate 

that the additional weight of the chain 

mat will significantly impact the dredge 

efficiency. In addition, the openings 

required in the regulation are based on 

the experimental fishery to test the 

chain mat modified gear (see response 

to Comment 19). 

Comment 19: A fixed number of 

chains based on dredge width is the 

only configuration that has been 

rigorously tested on a variety of dredge 

widths and has been proven effective in 

eliminating virtually all incidence of sea 

turtles becoming entrapped in the 

dredge. If the agency believes a different 

design would be more efficacious, it 

should test such gear to account for all 

factors relevant to turtle takes, and 

collect empirical data on other 

conservation or economic impacts. 

There is no data showing the impacts of 

chains configured to comply with the 

14-inch (35.5-cm) requirement. The 

commenter urges NMFS to re-adopt a 

fixed number of chains based on dredge 

width as the change to the 14-inch 

(35.5-cm) requirement is based on a 

misinterpretation of the science upon 

which the gear is based, has unknown 

implications for sea turtle protection, 

conservation and economic impacts, 

and presents an enforcement concern. 

Response: The size of the opening 

created by the chains is the important 

factor in preventing sea turtles from 

entering the dredge bag, not the number 

of chains. Although the size of the 

openings is not provided in the final 

report (DuPaul et al., 2004), the 

information provided to NMFS during 

the development of the chain mat 

requirements was that the configuration 

tested during the experimental fishery 

had openings that were less than 14 

inches. 

The experimental fishery was 

conducted with 11-ft (3.35-m), 14-ft 

(4.27-m), and 15-ft (4.57-m) dredges. 

The 14-ft (4.27-m) and 15-ft (4.57-m) 

dredges had 11 vertical chains and 6 

horizontal chains; while the 11-ft (3.35- 

m) dredge had 9 vertical chains and 

either 5 or 6 horizontal chains. The table 

included in the original rule included 

dredges binned into four groups: less 

than 10 ft (3.05 m), 10 ft (3.05 m) to less 

than 11 ft (3.35 m), 11 ft (3.35 m) to 13 

ft (3.96 m), and greater than 13 ft (3.96 

m). Dredges of several widths fall into 

each grouping. Therefore, only a subset 

of the dredge widths included in the 

table were actually tested in the 

experimental fishery. Two of these 

dredge widths tested fall into the bin for 

dredges greater than 13 ft (3.96 m). The 

number of horizontal chains included in 

the original chain-mat regulation for an 

11-ft (3.35-m) dredge based on dredge 

width was 5. However, the 11-ft dredge 

tested in the experiment used 5 or 6 

horizontal chains. If the 11-ft dredge in 

the experimental fishery used 5 

horizontal chains, this configuration 

would also have been tested. 

In addition, dredges of the same 

width may be configured differently. As 

such, the same number of chains on two 

dredges with the same width, may not 

result in the same size openings. For 

example, the distance between the 

cutting bar and the sweep is known to 

vary by up to 1.7 ft (0.5 m) for certain 

dredge widths (NMFS 2007). Given the 

variability in the distance between the 

cutting bar and the sweep, it would be 

difficult to specify a number of 

horizontal chains that would achieve 

the desired spacing. As noted above, the 

chains wear and become longer with 


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time, and this wear depends on a 

number of factors including the chain 

used and the bottom habitat fished. This 

variability may be difficult to account 

for in a table. As a result of these factors, 

the rule does not define the 

configuration based on a number of 

vertical and horizontal chains required, 

but by the desired size of the opening, 

which is the important factor for sea 

turtle conservation. Based on the results 

of the experimental fishery and 

information on the sea turtles observed 

taken in this fishery, NMFS has 

determined that a spacing of 14 inches 

(35.5 cm) or less will prevent most sea 

turtles from being captured in the 

dredge bag. Enforcement and safety are 

addressed in the response to Comment 

17 and conservation and economic 

impacts are addressed in the response to 

Comment 20. 

Comment 20: As a precaution, 

fishermen are rigging the chain mats 

with rectangles with sides of no more 

than 11 inches (27.9 cm) or 12 inches 

(30.5 cm) to avoid being found in 

violation. As a result, the data collected 

during the experimental fishery is not 

applicable. The economic impact will 

greatly exceed that currently assumed 

due to greater loss of scallops, increased 

fuel consumption due to the heavier mat 

and increased drag, additional loss of 

fishing time while emptying the bags, 

and increased stretching/breaking of the 

chains. Vessels may tow longer to offset 

the loss of scallops, increasing bottom 

time which has habitat implications and 

may have unintended consequences on 

protected species. 

Response: The total weight of a sea 

scallop dredge with a width of 15 ft 

(4.57 m) is approximately 4,500 lbs 

(2041 kg) for the dredge frame, chain 

bag, and club stick. Weights may vary 

slightly due to differences in materials 

and configuration. The weight of the 

chain mat is estimated to be between 56 

lbs (25.4 kg) for a 10-ft (3.05-m) dredge 

and 147 lbs (66.7 kg) for a 15-ft dredge 

(4.57-m)(e-mail from Henry Milliken 

(NEFSC) to Richard Merrick (NEFSC), 

October 1, 2004). Assuming 20 percent 

additional chains and shackles would 

be required for some vessels to comply 

with the 14-inch (35.5-cm) requirement 

(a conservative overestimate) (memo 

from Ellen Keane (NERO) to The File, 

October 3, 2007), the range of weights 

would increase by 11 lbs (5 kg) for a 10- 

ft (3.05-m) dredge and 29 lbs (13 kg) for 

a 15-ft (4.57-m) dredge. The weight of 

the chain mat, and the additional chain 

required to configure the openings to 

the 14-inch (35.5-cm) requirement, is 

relatively small compared to the weight 

of the dredge. Some vessels that choose 

to rig their gear at 11 inches (27.9 cm) 

or 12 inches (30.5 cm) to account for 

stretch in the chains may need to use 

additional chain. However, this is not 

expected to substantially increase the 

weight of the chain-mat modified gear. 

As the weight of the modified dredge is 

not significantly different from an 

unmodified dredge, the additional chain 

is not expected to substantially impact 

the efficiency of the gear. 

The economic costs of the chain mat 

requirements include costs required to 

configure and maintain the gear, costs 

due to loss of catch, and costs associated 

with a loss of efficiency. The costs to 

configure the gear result from the cost 

of materials and the cost of labor. The 

cost of materials and labor is estimated 

from approximately $200 for a dredge 

less than 10-ft (3.05-m) up to $460 for 

a 15-ft (4.57-m) dredge. These costs will 

vary depending on the type and size of 

chain used. Maintenance of the gear will 

be required as the chain mats wear. 

Vessels that configure the opening at or 

near the 14-inch (35.5 cm) requirement 

may need to readjust the gear more 

frequently than vessels that configure 

the opening less than 14 inches (35.5 

cm) to allow for wear. In addition, the 

longevity of the chain is affected by 

numerous factors including the type of 

chain used, the bottom fished, and the 

configuration of the gear. All of these 

may affect the frequency with which the 

chains need to be replaced. Vessels 

fishing on sandy bottom will likely need 

to replace the gear less frequently than 

vessels fishing on rockier bottom. 

Information from the observer program 

indicates that the chains do stretch and 

break. One observer noted that the 

chains need to be re-adjusted once per 

a trip to once every three trips (memo 

from Pasquale Scida to The File, March 

11, 2008). In addition, the observer logs 

indicate that the links/shackles 

connecting the chains break, but that 

these are relatively simple and quick 

repairs. If a high-quality chain is used, 

NMFS anticipates that the chain mat 

would need to be replaced in its entirety 

over the course of a fishing season. It is 

unlikely that the gear will be replaced 

all at once as broken links and shackles 

will be repaired as they occur over the 

course of the year. Nevertheless, the 

vessel would incur the costs associated 

with configuring gear each year. This 

replacement cost is considered in the 

EA/FRFA/RIR for this action. 

In assessing the impacts of requiring 

this gear modification, the analysis of 

the cost due to a loss of catch is based 

on the average loss of scallops that was 

observed in the experimental fishery. 

Although measurements of the opening 

are not included in the final report on 

the experiment (DuPaul et al., 2004), all 

of the information provided to NMFS 

during the rulemaking indicated that the 

size of the openings tested was less than 

or equal to 14 inches (35.5 cm), ranging 

from 11 to 14 inches (27.9 to 35.5 cm). 

The data from the experimental fishery 

shows that scallop catches were highly 

variable from vessel to vessel and trip to 

trip, ranging from a ¥30.88 percent to 

a 7.28 percent difference, with the 

average loss of sea scallop catch 

approximately 6.7 percent (DuPaul et 

al., 2004). The researchers believe that 

this variability will decrease as vessels 

became more familiar with the gear 

(DuPaul et al., 2004). The size of the 

openings tested in the experimental 

fishery is the size of the openings that 

are required under the current 

regulations and this final regulation. It 

is possible that the loss of scallops may 

vary if the openings in the chain mats 

are configured significantly smaller than 

those tested in the experiment. 

However, there is no data available at 

this time to evaluate this difference. 

Therefore, the loss of catch is based on 

the experimental fishery. 

Other potential costs are those due to 

increased drag, weight, and tow times, 

as well as increased fuel consumption, 

which will result from adding chains to 

the dredge. As described above, the 

difference in weight between an 

unmodified dredge and a chain-mat 

modified dredge is not substantial and 

NMFS does not anticipate any 

significant costs resulting from extra 

weight on the gear. As described above, 

the size of the openings is based on the 

experimental fishery to test the 

modified gear. The final report on the 

study does not indicate that the dredge 

bag was more difficult to empty. It is 

expected that as fishermen become more 

familiar with the gear, difficulties that 

may be associated with dumping the bag 

will decrease. In general, the chain-mat 

modified dredge with openings of 14 

inches (35.5 cm) or less has been 

required in the Atlantic sea scallop 

dredge fishery for one fishing season, 

with minimal reports of economic 

disruption that are described herein. 

More detailed information on the 

analysis can be found in the EA/RIR/ 

IRFA for this action. 

The area swept by the modified and 

the unmodified dredge gear is the same. 

However, as described in the Final EA, 

an increase in disturbance to bottom 

sediments is expected whenever the 

chain mats are used. Vessels are 

expected to continue to fish in the same 

areas, but a loss of scallops may be 

offset by increasing the tow time. The 

sediment type in the regulated area has 

a rapid recovery time and impacts to 

habitat are expected to be minimal. In 


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addition, the researchers believe that 

this variability in catch retention will 

decrease as vessels became more 

familiar with the gear (DuPaul et al., 

2004). Thus, as vessels become more 

familiar with fishing the chain-mat 

modified gear, these impacts will be 

even further minimized. As described in 

the response to Comment 24, it is not 

known whether turtles interact on the 

bottom or in the water column. 

Therefore, it is not known whether the 

increased tow times would result in a 

greater risk of interaction. It is 

reasonable to assume that interactions 

are occurring both on the bottom and in 

the water column, but the proportion of 

interactions occurring in each of these 

cannot be quantified. While increased 

tow times may result in an increased 

risk for sea turtles, this risk is limited by 

the facts that the average loss of scallops 

was fairly small ∼6.7 percent) and that 

as fishermen become more familiar with 

the gear, it is expected that the chainmat modified dredge will be more 

comparable to the unmodified dredge. 

This will lessen the need to offset a loss 

of catch. While the loss of catch may be 

greater than that observed in the 

experiment if fishermen rig the gear 

significantly different than that tested in 

the experiment, NMFS cannot quantify 

what this loss would be. From the 

information available, it appears that 

vessels are rigging the gear in the same 

manner that was tested (i.e., 

approximately 11- to 14-inch (20.9–35.5 

cm) openings). 

Comment 21: Vessels have received 

violations for broken chains. We 

recommend that NMFS add a 

requirement that any broken chains be 

fixed immediately, but make it clear that 

a broken chain itself cannot support a 

violation. A violation could be given if 

a vessel deploys a dredge with a broken 

chain. 

Response: NMFS recognizes that 

chains and links/shackles will break 

during normal fishing activity. These 

breaks must be repaired before 

redeploying the gear. In addition, the 

gear must be readjusted as necessary to 

ensure that the openings maintain a 

spacing of 14 inches (35.5 cm) or less. 

Broken chains have been noted during 

boardings by enforcement agents. NMFS 

enforcement agents and the USCG have 

discretion when conducting boardings 

and can take into account whether the 

captain or crew is in the process of 

repairing broken chains. 

Comment 22: One commenter 

supported the transiting provision; 

while a second commenter was opposed 

to this provision. This commenter 

objected to the limitation that requires 

vessels that transit the area and fish 

exclusively north of the line to install 

chains before transiting home. The 

commenter stated that allowing vessels 

to stow their gear while in transit would 

not implicate any reasonable 

enforcement concern. It is unlikely that 

vessels fishing in the mid-Atlantic 

would undertake the labor intensive 

action of removing the chains to steam 

home, but in the event they did, no 

harm exists as long as the dredges are 

stowed and unavailable for use. Vessels 

fishing in the mid-Atlantic could be 

identified easily through Vessel 

Monitoring System (VMS) data. 

Response: With the clarifications to 

the existing regulatory text, vessels that 

transit through areas south of 41° 9.0′ N. 

latitude would be required to use chain 

mats while fishing north of that line. 

That is not the intent of the regulation 

as sea turtle interactions north of the 

line are unlikely. Therefore, NMFS has 

added a transiting provision that would 

exempt vessels from the chain mat 

requirements provided that there are no 

scallops on board and the gear is 

stowed. NMFS recognizes that this 

provision requires vessels fishing north 

of the line to either land the catch north 

of the line or install chain mats before 

transiting back through the regulated 

area. This provision is necessary as 

vessels that fish north of the line on a 

trip cannot be distinguished from those 

that fish south of the line once they 

transit south. Some have suggested that 

VMS can be used to identify where 

these vessels were fishing for the 

purposes of enforcing this regulation. At 

this time, regulations require scallop 

vessels to be responsible for position 

reports ‘‘at least twice per hour.’’

Although it is sometimes possible to 

determine a vessel’s activity (such as 

fishing) from half-hour polls, half-hour 

polls alone often do not provide a full 

picture of where the vessel was between 

polls. Therefore, increased polling 

would be necessary to determine where 

the vessel was fishing. Increased polling 

is not possible because the current 

technology provided by the VMS 

providers does not support changing the 

reporting rate by fishery declaration. 

Before a vessel starts a trip, it must 

declare through VMS whether the trip 

will be general category or limited 

access and the area in which it will fish. 

The vendors do not have the capacity to 

sort through the declarations and target 

polling intervals accordingly. 

Comment 23: NMFS must withdraw 

and re-evaluate the proposed rule, 

including revising the NEPA analysis, to 

take into account the status of 

loggerheads and the apparent failure of 

the turtle chains. 

Response: As described in the 

response to Comment 1, the chain-mat 

modification has not failed, but rather 

has been improperly implemented in 

some cases. This has resulted in the 

capture of sea turtles in the dredge bag. 

The available information shows that, 

when properly implemented, the gear 

modification will prevent most captures 

and injuries resulting from such 

capture. In evaluating the impacts of 

this gear modification, the EA has taken 

into account the status of loggerheads 

(see response to Comment 12). 

Comment 24: It is not known what 

happens when turtles interact with the 

chain mat modified dredge and there is 

a significant risk that the chains do not 

reduce take, but simply change the 

nature of the interaction. The proposed 

action may do very little to reduce 

mortality and injury to sea turtles. 

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. 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. 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. 

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. Some of these injuries have 

been reported to occur after the gear has 

been brought on-board the vessel 

(DuPaul et al., 2004; NEFSC, FSB, 

Observer Database). As described in the 

EA, NMFS believes that interactions 


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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. The 

most recent Biological Opinion 

anticipates that up to 929 loggerhead sea 

turtles will be captured by sea scallop 

dredge gear biennially, and that up to 

595 of these may sustain serious injury 

or mortality (as defined in the NMFS 

Northeast Region ‘‘Serious Injury 

Determinations for Sea Turtles Taken in 

Scallop Dredge Gear—Working 

Guidance’’). 

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. Some of the seriously injured 

sea turtles probably obtained those 

injuries after being caught in the water 

column by unmodified gear, because the 

turtles were captured in the dredge bag. 

After an interaction in the water 

column, severe injuries and mortality 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. 

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 than 

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. 

As described in the response to 

Comment 3, NMFS worked with 

industry to evaluate a dredge designed 

to minimize impacts from interactions 

with a sea turtle encountered on the 

bottom (NMFS, 2005; Milliken et al., 

2007). The video from the 2005 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. 

The chain mats have been noted in 

four reported interactions. During the 

pilot study to test the chain-mat 

modified gear, a sea turtle was reported 

on the chain mat, subsequently 

swimming away as the gear was hauled 

to the surface. The NEFSC FSB has 

documented other interactions where 

the sea turtle is observed on the dredge 

gear, swimming away as the gear nears/ 

breaks the surface. NMFS has no 

indication that this type of interaction 

would result in serious injury. The sea 

turtle may be held against the gear by 

water pressure as the gear moves 

through the water. Once the pressure is 

relieved, the animal is able to swim 

away. In 2007, two sea turtles were 

observed captured in the dredge bag. As 

described in the response to Comment 

1, the gear modification was improperly 

configured in each of these cases, 

resulting in the capture in the dredge 

bag. 

In 2007, a sea turtle was reported as 

being caught between the chains and the 

dredge, on the outside of the chain mat. 

This animal was unable to swim away 

and was brought aboard the vessel. It is 

not known exactly where or how the 

turtle was caught/hung up in the gear 

nor is it known whether the chain mat 

contributed to the interaction or the 

injuries resulting from the interaction. It 

is also not known whether this 

interaction occurred on the sea floor or 

in the water column. NMFS is not aware 

of any other interactions of this nature 

and it is possible that this interaction 

was a unique event on an individual 

haul. NMFS will continue to work with 

the observers to gain a better 

understanding of how sea turtles may be 

interacting with other parts of the 

dredge gear (i.e., outside of the dredge 

bag) and to determine whether this 

interaction was, in fact, a unique event. 

Comment 25: In their comments on 

the original chain mat regulation, one 

commenter stated that the EA for the 

August 2006 rule 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 considered in 

the EA is highly controversial, highly 

uncertain, and creates a significant 

precedent. 

Response: The EAs on the chain mat 

requirements support a finding of no 

significant impact. There is expected to 

be a benefit to sea turtles by reducing 

significant 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 

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, 

albeit over a shorter time period each 

year, slightly different geographic area, 

and for a fixed number of chains. 

While there is not perfect information 

available on the nature of the interaction 

between sea scallop dredge gear and sea 


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turtles, NMFS has made reasonable 

assumptions in evaluating the risks and 

benefits of this action. The best 

available scientific information shows 

that the use of the chain mat will 

prevent most sea turtles from entering 

the dredge bag and injuries ensuing 

from such 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 26: The proposed action 

could have profound adverse effects on 

efforts to protect loggerhead sea turtles 

and thus on loggerhead turtle 

populations. 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 incidental take 

statement. Deploying adequate 

monitoring for sea turtle takes must be 

considered and adopted. 

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 (e.g., 

the forward parts of the frame and on 

top of the gear) as well as to better 

understand stretch and breakage in the 

chain mat gear. NMFS has developed a 

methodology to assess compliance with 

the ITS. 

Prior to the chain mat requirement, 

observer coverage was used as the 

principal means to estimate sea turtle 

bycatch in the scallop fishery and to 

monitor incidental take levels provided 

in biological opinions for the scallop 

fishery. However, the use of chain mats 

on scallop dredge gear is expected to 

greatly reduce the likelihood that sea 

turtles struck by or incidentally 

swimming into scallop dredge gear 

would enter the bag and be carried to 

the surface (70 FR 30660, May 27, 2005; 

71 FR 50361, August 25, 2006; 72 FR 

63537, November 9, 2007). Injuries to 

sea turtles that occur as a result of the 

turtle being struck by the dredge gear 

underwater will continue to occur but 

will not be observed unless the turtle is 

small enough to pass between the 

chains and enter the dredge bag or is 

otherwise caught on the dredge frame 

and carried to the surface. Based on 

information provided by the NEFSC on 

fishery dependent and fishery 

independent approaches to monitoring 

bycatch (memo from John Boreman to 

Patricia A. Kurkul, March 6, 2006), 

NERO concluded that a method does 

not currently exist for enumerating sea 

turtle taken by chain-mat equipped 

scallop dredge gear that meets the 

NEFSC’s definition of a scientifically 

robust and accurate take estimate and 

the guiding principles for the 

preparation of biological opinions 

provided in the Final ESA Section 7 

Handbook developed jointly by the Fish 

and Wildlife Service and NMFS (memo 

from Patricia A. Kurkul to The Record, 

April 5, 2006; NMFS, 2008). In the 

absence of a method for enumerating 

most takes to monitor the ITS on the 

scallop dredge fishery, NMFS has 

developed a method of monitoring the 

fishery, as a proxy. Specifically, NMFS 

will use dredge hours as a surrogate 

measure of actual takes, and find that 

the ITS provided in the Biological 

Opinion has been exceeded when the 

fishery operates in a manner that, based 

on the best available information, would 

reasonably likely result in greater sea 

turtle interactions with scallop dredge 

gear than what is estimated to have 

occurred in 2003 and 2004 (NMFS, 

2008). A detailed description of the 

approaches considered and the 

methodology chosen to monitor sea 

turtle takes in the dredge component of 

the fishery are included in the 

Biological Opinion and the associated 

memoranda (NMFS, 2008; memo from 

John Boreman to Pat Kurkul, March 6, 

2006; memo from Patricia A. Kurkul to 

The Record, April 5, 2006). 

As described previously, there have 

been several projects designed to look at 

the details of sea turtle-sea scallop 

dredge interactions (DuPaul et al., 2004; 

Smolowitz et al., 2005; Smolowitz and 

Weeks, 2006; Milliken et al., 2007). 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 given the low 

interaction rate. To date, no sea turtles 

have been documented on video used in 

the commercial fishery. Additional 

difficulties identified through these 

studies include low visibility due to 

water clarity and available light, 

improper focus, inappropriate camera 

angle, and the range of viewing field. 

Requiring all scallop dredges using the 

modification to carry observers and 

monitor underwater interactions with 

video cameras may provide some 

additional information on interactions 

between sea turtles and scallop dredges. 

However, given the low rate of 

interaction and the technical challenges 

of underwater video, it is not clear that 

this approach would provide sufficient 

information to understand the nature of 

these interactions. 

In addition, this level of coverage is 

infeasible at this time given existing 

resources. The video would need to be 

reviewed by the observer or NMFS 

personnel upon completion of the trip. 

If the observer was to review the video 

in real-time, they would likely be 

unable to collect all the information, 

including discards, biological 

information on the catch, and gear 

performance and characteristics, that is 

currently collected and utilized by 

NMFS. Given the total dredge hours in 

the mid-Atlantic, review of the video 

taken would require additional 

resources. NERO has investigated the 

feasibility of using video technology on 

a subset of vessels to monitor sea turtlesea scallop dredge interactions and 

found that, at this time, video 

monitoring is not feasible. The use of 

video monitoring is discussed in detail 

in the most recent Biological Opinion 

(NMFS 2008). 

Despite the challenges associated with 

using video to document interactions 

between sea turtles and sea scallop 

dredges, NMFS does plan to continue to 

collect video in conjunction with other 

gear projects. These projects may shed 

light on how to overcome the 

difficulties of using video to monitor sea 

turtle behavior and interactions with 

gear. 

Comment 27: NMFS should put in a 

cap system that would have 100 percent 

observer coverage, including 

underwater video monitoring, and 

would shut down the fishery when they 

reached their capped level of turtle 

takes. 

Response: As described in the 

response to Comment 26, 100 percent 

observer coverage with video 

monitoring is not feasible at this time. 

The anticipated level of take and the 

monitoring of the ITS are addressed 

through the section 7 process under the 

ESA. 

Comment 28: Turtle chains are not 

scientifically validated. The information 

used to support the chain mat 

requirements is based on assumptions 

and guesswork, not scientific research 

and this information is inadequate. The 

studies on which the chain-mat 

modification 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 


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18998 Federal Register / Vol. 73, No. 68 / Tuesday, April 8, 2008 / Rules and Regulations 

takes, injuries, and deaths caused by 

scallop dredging. It is crucial to study 

the effects of the chains through 

underwater video monitoring. 

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 onboard. 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 

captures of sea turtles in the dredge bag; 

thereby preventing injury and mortality 

that occur from such capture. 

Nevertheless, NMFS intends to use 

video in conjunction with other projects 

in an attempt to learn more about sea 

turtle-sea scallop dredge interactions 

(see response to Comment 3). 

Comment 29: NMFS must obtain data 

on sea turtles’ oceanic and neritic life 

history stages by conducting in-water 

surveys for all sea turtle species in order 

to accurately determine sea turtle 

abundance and population structure. 

Response: NMFS concurs that data on 

sea turtles’ oceanic and neritic life 

history stages from in-water surveys is 

important in determining sea turtle 

abundance and population structure. 

The preliminary findings of the TEWG 

offer recommendations regarding 

research that include a program to 

provide annual estimates of turtles in 

the NE and SE regions which would 

include a survey program to obtain 

estimates of total turtle in-water tagging 

studies and nesting beach tagging 

studies (memo from Nancy Thompson 

to James Lecky, December 4, 2007). 

Classification 

The rule has been determined to be 

not significant under 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 December 10, 2007. 

One comment was received on the 

economic impacts of the proposed 

action (comment/response 20 in this 

final rule). No changes were made as a 

result of the comment. 

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 Atlantic sea scallop dredge 

fishery. The action requires all vessels 

with a Federal Atlantic sea scallop 

fishery permit, regardless of dredge size 

or vessel permit category, that enter 

waters south of 41°9.0′ N. latitude, from 

the shoreline to the outer boundary of 

the EEZ to modify their dredge gear 

with a chain mat. Vessels transiting the 

area are exempt from this requirement 

provided that the gear is stowed and 

there are no scallops on board. 

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 three 

alternatives. The preferred alternative 

(PA), Alternative 1, and the ‘‘no action’’

alternative. The PA, alternative 1, and 

the ‘‘no action’’ alternative were 

analyzed in the regulatory flexibility 

analysis and summarized in the 

proposed rule (72 FR 63537, November 

9, 2007). NMFS selected the preferred 

alternative in the final rule 

(modification of the current regulatory 

requirements) because this alternative 

would clarify the regulatory language 

and add a transiting provision while 

maintaining the level of protection to 

sea turtles. The agency minimized 

impacts to small entities from the 

requirement to use chain-mat modified 

gear by limiting the requirements to the 

May through November time period and 

limiting the spatial extent to south of 

41°9.0′ N latitude. NMFS rejected 

Alternative 1 (no chain mat 

requirement) because this alternative 

would leave sea turtles vulnerable to 

capture in the sea scallop dredge bag 

and to injury and mortality that may 

result from such capture. This 

alternative would have the least 

economic impact. NMFS also rejected 

the no action alternative. Although this 

alternative would provide the same 

level of protection to sea turtles as the 

preferred alterative, this alternative does 

not clarify the regulatory requirements 

or provide a transiting provision. 

This final rule is consistent with the 

ESA and other applicable laws. 

Literature Cited 

Bartol, S. M., J. A. Musick, and M. L. 

Lenhardt. 1999. Auditory evoked potentials 

of the loggerhead sea turtle (Caretta caretta). 

Copeia 1993(3):836–840. 

Bjorndal, K. A. 1999. Priorities for research 

in foraging habitats. Pp. 12–14. In: Eckert, 

K.L., K.A. Bjorndal, F. Alberto AbreuGrobois, and M. Donnelly (eds.) Research and 

management techniques for conservation of 

sea turtles. IUCN/SSC Marine Turtle 

Specialist Group Publication Number 4. 

Braun-McNeill, J., and S. P. Epperly. 2002. 

Spatial and temporal distribution of sea 

turtles in the western North Atlantic and the 

U.S. Gulf of Mexico from Marine 

Recreational Statistics Survey (MRFSS). 

Marine Fisheries Review 64(4):50–56. 

Bell, C. D., J. Parsons, T. J. Austin, A. C. 

Broderick, G. Ebanks-Petrie, and B. J. Godley. 

Some of them came home: the Cayman Turtle 

Farm headstarting project for the green turtle 

Chelonia mydas. Oryx. 39(2):137–147. 

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. 

Coles, W. C. 1999. Aspects of the biology 

of sea turtles in the mid-Atlantic bight. 

Unpublished dissertation, The College of 

William and Mary in Virginia. 149 pp. 

Crouse, D. T., L. B. Crowder, H. Caswell. 

1987. A stage-based population model for 

loggerhead sea turtles and implications for 

conservation. Ecology 68:1412–1423. 

Dodd, M. 2003. Northern recovery unit—

nesting female abundance and population 

trends. Presentation to the Atlantic 

Loggerhead Sea Turtle Recovery Team, April 

2003. 

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

Smolowitz. 2004. Industry trials of a 

modified sea scallop dredge to minimize the 

catch of sea turtles. Final Report. November 

2004. VIMS Marine Resources Report, No. 

2004–12. 35 pp. 

Ehrhart, L. M, W. E. Redfoot, D. A. Bagley. 

2007. Marine turtles of the central region of 

the Indian River lagoon system, Florida. 

Biological Sciences 2007(4):415–434. 

Epperly, S. P., J. Braun-McNeil, and P. M. 

Richards. 2007. Trends in catch rates of sea 

turtles in North Carolina, USA. Endangered 

Species Research 3:283–293. 

FWRI (Florida Fish and Wildlife 

Conservation Commission, Fish and Wildlife 

Research Institute). 2007. Long term 

monitoring program reveals a continuing 

loggerhead decline, increases in green turtle 

and leatherback nesting. 2 pp. 

Heppell, S. S. 1998. An application of life 

history theory and population model analysis 

to turtle conservation. Copeia 1998:367–375. 


rwilkins on PROD1PC63 with RULES
Federal Register / Vol. 73, No. 68 / Tuesday, April 8, 2008 / Rules and Regulations 18999 

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

1996. Models to evaluate headstarting as a 

management tool for long-lived turtles. 

Ecological Applications. 6:556–565. 

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. 

Huff, J. A. 1989. Florida terminates 

headstart program. Marine Turtle Newsletter. 

46:1–2 

James, M. C., C. A. Ottensmeyer, and R. A. 

Myers. 2005. Identification of high-use 

habitat and threats to leatherback sea turtles 

in northern waters: new directions for 

conservation. Ecol. Lett. 8:195–201. 

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. 

Lawson, D. D. and J. T. DeAlteris. 2006. 

Evaluation of a turtle excluder device (TED) 

in the scallop trawl fishery in the midAtlantic. Final Contract to National Marine 

Fisheries Service, Northeast Fisheries 

Science Center, Woods Hole, MA. Contract 

No. EA133F–105–SE6561. 145 pp. 

Lenhardt, M. L., S. Moein, and J. Musick. 

1995. A method for determining hearing 

thresholds in marine turtles. In Keinath, J. A., 

D. E. Barnard, J. A. Musick, and B. A. Bell. 

1996. Proceedings of the Fifteenth Annual 

Workshop on Sea Turtle Biology and 

Conservation. NOAA Technical 

Memorandum NMFS–SEFSC–387, 355 pp. 

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. 

Mansfield, K. L. 2006. Sources of 

mortalities, movements, and behavior of sea 

turtles in Virginia. Chapter 5. Sea turtle 

population estimates in Virginia. Pp. 193–

240. Ph.D. dissertation. School of Marine 

Science, College of William and Mary. 

McCauley, R. D., J. Fewtrell, A. J. Duncan, 

C. Jenner, M. N. Jenner, J. D. Penrose, R. I. 

T. Prince, A. Adhitya, J. Murdoch, and K. 

McCabe. 2000. Marine seismic surveys: 

analysis and propagation of air-gun signals; 

and effects of air-gun exposure on humpback 

whales, sea turtles, fishes and squid. Report 

R99–15. Centre for Marine Science and 

Technology, Curtin University of 

Technology, Western Australia. 198 pp. 

Meylan, A., B. E. Witherington, B. Brost, R. 

Rivero, and P. S. Kubilis. 2006. Sea turtle 

nesting in Florida, USA: Assessments of 

abundance and trends for regionally 

significant populations of Caretta, Chelonia, 

and Dermochelys. pp 306–307. In: M. Frick, 

A. Panagopoulou, A. Rees, and K. Williams 

(compilers). 26th Annual Symposium on Sea 

Turtle Biology and Conservation Book of 

Abstracts. 

Milliken, H. O., L. Belskis, W. DuPaul, J. 

Gearhart, H. Haas, J. Mitchell, R. Smolowitz, 

and W. Teas. 2007. Evaluation of a modified 

scallop dredge’s ability to reduce the 

likelihood of damage to loggerhead sea turtle 

carcasses. U.S. Dep Commer., Northeast 

Fisheries Science Center Reference 

Document 07–07. Northeast Fisheries 

Science Center. Woods Hole, MA. 30 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., C. F. Smith, K. Durham, R. 

DiGiovanni Jr., A. A. Aguirre. 2004. 

Assessing health, status, and trends in 

northeastern sea turtle populations. Year-end 

report September 2002–November 2004 to 

the Protected Resources Division, NMFS, 

Gloucester, MA. 

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. 2004a. Magnitude and 

distribution of sea turtle bycatch in the sea 

scallop (Placopecten magellanicus) dredge 

fishery in two areas in the northwestern 

Atlantic Ocean, 2001–2002. Fish. Bull. 

102:671–681. 

Murray, K. T. 2004b. 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. 

Murray, K. T. 2007. Estimated bycatch of 

loggerhead turtles (Caretta caretta) in U.S. 

mid-Atlantic scallop trawl gear, 2004–2005, 

and in sea scallop dredge gear, 2005. U.S. 

Dep Commer. Northeast Fisheries Science 

Center Reference Document 07–04. Northeast 

Fisheries Science Center. Woods Hole, MA. 

30 pp. 

Musick, J. A. and C. J. Limpus. 1997. 

Habitat utilization and migration in juvenile 

sea turtles. Pp. 137–164 In: Lutz, P. L., and 

J. A. Musick, eds., The Biology of Sea Turtles. 

CRC Press, New York. 432 pp. 

NMFS (National Marine Fisheries Service). 

2005. Scallop dredge evaluations. F/V Capt. 

Wick, Panama City FL. 6/18/05–6/23/05. 

Report and Video. NOAA, National Marine 

Fisheries Service, Southeast Fisheries 

Science Center. Harvesting Systems and 

Engineering Branch. Received 7/12/2005. 8 

pp. 

NMFS (National Marine Fisheries Service) 

2006. Final Environmental Impact 

Assessment and Regulatory Impact Review/ 

Regulatory Flexibility Act Analysis for sea 

turtle conservation measures in the midAtlantic sea scallop dredge fishery. NOAA, 

National Marine Fisheries Service Northeast 

Regional Office, Gloucester, MA. 140 pp. 

NMFS (National Marine Fisheries Service) 

2008. Endangered Species Act Section 7 

consultation on the Atlantic sea scallop 

fishery management. Biological Opinion. 

NOAA, National Marine Fisheries Service 

Northeast Regional Office. Gloucester, MA. 

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. 

NMFS and USFWS (National Marine 

Fisheries Service and United States Fish and 

Wildlife Service). 2007a. Loggerhead sea 

turtle (Caretta caretta) 5-year review: 

summary and evaluation. National Marine 

Fisheries Service, Silver Spring, MD 65 pp. 

NRC (National Research Council). 1990. 

Decline of the sea turtles: causes and 

prevention. Committee on Sea Turtle 

Conservation. Natl. Academy Press, 

Washington, D.C. 259 pp. 

Ridgway, S. H., E. G. Wever, J. G. 

McCormick, and J. a. A. J. H. Palin. 1969. 

Hearing in the giant sea turtle, Chelonia 

mydas. Proceedings of the National Academy 

of Sciences 64(3). 884–890. 

Shaver, D. P. 2005. Analysis of the Kemp(s 

ridley imprinting and headstart project at 

Padre Island National Seashore, Texas, 1978–

88, with subsequent nesting and stranding 

records on the Texas coast. Chelonian 

Conservation and Biology. 4:846–859. 

Shaver, D. J. And C. W. Caillouet Jr. 1998. 

More Kemp’s ridley turtles return to south 

Texas to nest. Marine Turtle Newsletter. 

82:1–5. [Erratum published in 1999. Marine 

Turtle Newsletter 83:23]. 

Shaver, D. J. and T. Wibbels. 2007. Headstarting the Kemp’s ridley sea turtle. In 

Biology and conservation of ridley sea 

turtles. Plotkin, P.T. (ed). The Johns Hopkins 

University Press, Baltimore. Pp 297–323. 

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. 

Smolowitz, R. C. Harnish, and D. Rudders. 

2005. Turtle-scallop dredge interaction study. 

Final Project Report. Submitted to U.S. Natl. 

Mar. Fish. Serv. Northeast Fisheries Science 

Center. Woods Hole. 83 pp. 

Smolowitz, R. and M. Weeks. 2006. Turtlescallop dredge interaction study, 2005 field 

season. Project Report. Submitted to U.S. 

Natl. Mar. Fish. Serv. Northeast Fisheries 

Science Center. Woods Hole. 45 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 


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19000 Federal Register / Vol. 73, No. 68 / Tuesday, April 8, 2008 / Rules and Regulations 

in the western North Atlantic. U.S. Dep. 

Commer. NOAA Tech Memo. NMFS–SEFSC–

444, 115 pp. 

USFWS and NMFS (United States Fish and 

Wildlife Service and National Marine 

Fisheries Service). 1992. Recovery plan for 

the Kemp’s ridley sea turtle (Lepidochelys 

kempii). NMFS, St. Petersburg, Fl. 40 pp. 

White, M. 2004. Observations of 

loggerhead sea turtles feeding on discarded 

fish catch at Argostoli, Kefalonia. Marine 

Turtle Newsletter. 105:7–9. 

List of Subjects in Part 50 CFR Part 223 

Endangered and threatened species, 

Exports, Reporting and recordkeeping 

requirements, Transportation. 

Dated: April 2, 2008. 

James W. Balsiger, 

Acting Assistant Administrator for Regulatory 

Programs, National Marine Fisheries Service. 

■ For the reasons set forth in the 

preamble, 50 CFR part 223 is amended 

as follows: 

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 § 223.206, paragraph (d)(11) is 

revised to read as follows: 

§ 223.206 Exemptions to prohibitions 

relating to sea turtles. 

* * * * * 

(11) Restrictions applicable to sea 

scallop dredges in the mid-Atlantic—(i) 

Gear Modification. During the time 

period of May 1 through November 30, 

any vessel with a sea scallop dredge and 

required to have a Federal Atlantic sea 

scallop fishery permit, regardless of 

dredge size or vessel permit category, 

that enters waters south of 41°9.0′ N. 

latitude, from the shoreline to the outer 

boundary of the Exclusive Economic 

Zone must have on each dredge a chain 

mat described as follows. The chain mat 

must be composed of horizontal 

(‘‘tickler’’) chains and vertical (up-anddown) chains that are configured such 

that the openings formed by the 

intersecting chains have no more than 4 

sides. The length of each side of the 

openings formed by the intersecting 

chains, including the sweep, 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 enters the waters 

described in paragraph (d)(11)(i) of this 

section 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. 

(iii) Vessels subject to the 

requirements in paragraphs (d)(11)(i) 

and (d)(11)(ii) of this section transiting 

waters south of 41°9.0′ N. latitude, from 

the shoreline to the outer boundary of 

the Exclusive Economic Zone, will be 

exempted from the chain-mat 

requirements provided the dredge gear 

is stowed in accordance with § 648.23(b) 

and there are no scallops on-board. 

[FR Doc. 08–1107 Filed 4–2–08; 3:31 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 070717354–8251–02] 

RIN 0648–AV73 

Endangered and Threatened Species; 

Designation of Critical Habitat for 

North Pacific Right Whale 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, NMFS, designate critical 

habitat for the North Pacific right whale 

in this rulemaking. The North Pacific 

right whale was recently listed as a 

separate, endangered species, and 

because this was a newly listed entity, 

we were required to designate critical 

habitat for it. 

DATES: This rule is effective on May 8, 

2008. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for public 

inspection by appointment 

duringnormal business hours at the 

NMFS Alaska Region, 709 W. 9th Street, 

Juneau, AK 21688. 

FOR FURTHER INFORMATION CONTACT: Brad 

Smith, NMFS Alaska Region (907) 271–

5006; Kaja Brix, NMFS, Alaska Region, 

(907) 586–7235; or Marta Nammack, 

(301) 713–1401, ext. 180. The final rule, 

references, and other materials relating 

to this determination can be found on 

our website at http:// 

www.fakr.noaa.gov/. 

SUPPLEMENTARY INFORMATION: 

Background 

On December 27, 2006, we published 

a proposed rule (71 FR 77694) to list the 

North Pacific right whale (Eubalaena 

japonica) as an endangered species 

pursuant to the Endangered Species Act 

(ESA) (16 U.S.C. 1531 et seq.), and we 

listed this species as endangered on 

March 6, 2008 (73 FR 12024). On 

October 29, 2007, we published a 

proposed rule (72 FR 61089) to 

designate critical habitat for the North 

Pacific right whale. We proposed the 

same two areas that we had previously 

designated as critical habitat for the 

northern right whale in the North 

Pacific Ocean (71 FR 38277, July 6, 

2006). We now designate these same 

areas as critical habitat for the North 

Pacific right whale. A description of, 

and the basis for, the designation 

follows. 

Critical Habitat Designations Under the 

ESA 

Section 3 of the ESA defines critical 

habitat as ‘‘(i) the specific areas within 

the geographical area occupied by the 

species, at the time it is listed . . . on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and which 

may require special management 

considerations or protection; and (II) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination by the 

Secretary to be essential for the 

conservation of the species.’’ Section 3 

of the ESA (16 U.S.C. 1532(3)) also 

defines the terms ‘‘conserve,’’

‘‘conserving,’’ and ‘‘conservation’’ to 

mean ‘‘to use, and the use of, all 

methods and procedures which are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to this chapter are no longer 

necessary.’’

In determining what areas meet the 

definition of critical habitat, 50 CFR 

424.12(b) requires that we ‘‘consider 

those physical or biological features that 

are essential to the conservation of a 

given species including space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing of offspring; and habitats 

that are protected from disturbance or 

are representative of the historical 

geographical and ecological distribution 

of a species.’’ The regulations refine our 

task by directing us to ‘‘focus on the 

principal biological or physical 


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