[Federal Register Volume 73, Number 68 (Tuesday, April 8, 2008)]
[Rules and Regulations]
[Pages 18984-19000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1107]


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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.

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

DATES: Effective May 8, 2008.

ADDRESSES: Copies of the Environmental Assessment (EA) and Regulatory 
Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA) prepared 
for this final rule may be obtained by writing to Ellen Keane, NMFS, 
Northeast Region, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Ellen Keane (ph. 978-281-9300 x6526, 
fax 978-281-9394, e-mail <a href="/cdn-cgi/l/email-protection#33565f5f565d1d5856525d56735d5c52521d545c45"><span class="__cf_email__" data-cfemail="7d18111118135316181c13183d13121c1c531a120b">[email protected]</span></a>) or Barbara Schroeder 
(ph. 301-713-2322, fax 301-427-2522, e-mail 
<a href="/cdn-cgi/l/email-protection#8be9eaf9e9eaf9eaa5f8e8e3f9e4eeefeef9cbe5e4eaeaa5ece4fd"><span class="__cf_email__" data-cfemail="187a796a7a796a79366b7b706a777d7c7d6a5876777979367f776e">[email protected]</span></a>).

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

[[Page 18985]]

from debris in the bag, drowning from forced submergence, dropping on 
deck, or crushing by the dredge). Additional information on the 
background, affected environment, and environmental consequences of 
this action is included in the preamble to the proposed rule (72 FR 
63537, November 9, 2007) and in the Final Environmental Assessment (EA) 
for this aciton.
    This final rule will (1) clarify the requirements related to the 
use of chain mats in the Atlantic sea scallop dredge fishery, (2) add a 
transiting provision, and (3) address a procedural error in the August 
2006 rulemaking (71 FR 50361, August 25, 2006) that required the use of 
chain-mat modified dredges in the Atlantic sea scallop fishery.
    Specifically, this action requires any vessel with a sea scallop 
dredge and required to have a Federal Atlantic sea scallop fishery 
permit, regardless of dredge size or vessel permit category, that 
enters waters south of 41[deg] 9.0' N. latitude from the shoreline to 
the outer boundary of the EEZ, to modify their dredge(s) with a chain 
mat. The chain mat must be composed of horizontal and vertical chains 
configured such that the openings formed by the intersecting chains 
have no more than four sides. The length of each side of the openings 
created by the intersecting chains, including the sweep, must be less 
than or equal to 14 inches (35.5 cm). Any vessel that enters the waters 
described above and that is required to have a Federal Atlantic sea 
scallop fishery permit must have the chain mat configuration installed 
on all dredges for the duration of the trip, unless it meets the terms 
of the transiting provision. Vessels may transit through the regulated 
area provided that the dredge gear is stowed and there are no scallops 
on board. These requirements are in place from May 1 though November 30 
each year.

New Information

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

Comments and Responses

    On November 9, 2007, NMFS published a proposed rule to clarify the 
requirements regarding chain-mat modified dredges in the Atlantic sea 
scallop fishery and to add a transiting provision to these requirements 
(72 FR 63537, November 9, 2007). Comments on this proposed action were 
requested through December 10, 2007. Six comment letters from 
individuals or organizations were received during the public comment 
period. Two commenters were generally supportive of the action but 
provided comments on particular aspects of the proposed rule, three 
commenters were opposed to the proposed action, and one provided 
neither support nor opposition to the proposed action. A complete 
summary of the comments and NMFS( responses, grouped according to 
general subject matter in no particular order, is provided here. In 
their comment letter on the proposed rule, Oceana incorporated comments 
submitted previously on the Biological Opinion for the Atlantic sea 
scallop fishery and on the August 2006 chain mat regulation. Those 
comments included in the submission and relevant to this action will be 
addressed in the comment/response section below. This submission also 
included comments that are not relevant to this particular action. 
These include comments on the original rulemaking related to the 
economic analysis for the seasonal closure (a non-preferred 
alternative), other comments on alternatives not considered in this 
action, and reinititation of consultation based on a letter dated March 
13, 2005 received from Dr. Heppell addressing the December 2005 
Biological Opinion and a statement on cumulative effects included in 
the Draft EA (NMFS 2006a) for that action. These comments are addressed 
in the August 2006 final rule (71 FR 50361, August 25, 2006). 
Additional comments not relevant to this action are related to the 
jeopardy analysis included in the Biological Opinion, and the model 
used for the analysis, and turtle excluder devices for the sea scallop 
trawl fishery.
    Comment 1: The purported benefit of chain mats was that, even 
though most sea turtles are probably severely injured or killed as a 
result of seafloor collisions, some small number that collide with 
dredges in the water column are saved because they are prevented from 
entering the dredge bag. This benefit may be illusory since five 
turtles were observed captured in 2007, a large number given the low 
levels of observer coverage in the fishery.
    Response: Since the requirement for the chain-mat modified gear 
became effective, the Northeast Fisheries Science Center (NEFSC) 
Fisheries Sampling Branch (FSB) has documented five takes of sea 
turtles in the scallop dredge fishery. These takes occurred in June 
(1), August (1), September (2), and October (2). Four of the takes, all 
loggerhead sea turtles, occurred south of the 41[deg]9.0' N. latitude 
line (the northern boundary of the regulation); while one take, a 
Kemp's ridley (fresh dead), was documented north of this line. Chain 
mats were not required, nor were they used, on the trip that occurred 
north of 41[deg]9.0' N. latitude. Of the four takes south of the line, 
one of the turtles was reported by the crew on top of the dredge frame; 
two were reported in the dredge bag; and one was reported by the 
captain on the outside of the chains, between the chains and the 
dredge. All four of the turtles were alive and the observers' comments 
indicated that the turtles were injured (NEFSC, FSB, Observer 
Database).
    One of the turtles was reported on the top of the dredge frame, 
possibly held by water pressure. This turtle swam away before the gear 
was hauled above the waterline. Sea turtles have been documented on the 
dredge frame previously and have swum away as the gear nears/reaches 
the surface, indicating that the turtle may have been held by water 
pressure. NMFS has no indication that this type of interaction would 
result in significant injury. The chain mat gear is designed to prevent 
sea turtles from being captured in the dredge bag, not to prevent this 
type of interaction, which can occur regardless of whether a chain mat 
is used.
    One turtle was reported by the vessel captain to be on the outside 
of the chain mat, caught between the dredge and the chains. However, it 
is unclear exactly how and where the turtle was caught/hung up on the 
dredge frame and/or the chains. The observer did not see the turtle 
until it was brought on-board. The captain reported that the turtle hit 
between the dredge and the vessel and then again while lowering the 
gear to deck. This type of interaction could result in injuries that 
occur during hauling and emptying of the gear. In 2005 and 2006, NMFS 
worked with

[[Page 18986]]

industry to test a dredge with a modified frame designed to guide sea 
turtles up and over the dredge frame (see response to Comment 3). The 
video work conducted during this project did show that sea turtles may 
become caught on the chains following an interaction on the bottom. 
However, this likely follows the turtle being struck by the dredge, 
during which it is likely to have become injured. It is not known 
whether the interaction in 2007 occurred in the water column or on the 
bottom. From the available information, it is not known whether the 
chain mat contributed to the take or the nature of the injuries 
sustained by the turtle. NMFS is not aware of any other interactions of 
this nature and it is possible that this is a unique event. NMFS will 
continue to monitor the sea scallop dredge fishery to determine whether 
this is indeed a unique event.
    The chain-mat modified gear is expected to prevent most sea turtles 
from entering the dredge bag and injuries that result from such 
capture. However, two turtles were documented in the dredge bag by the 
NEFSC FSB in 2007. NMFS investigated whether this may mean that the 
gear was not functioning as expected and as described in the proposed 
rule for this action. For one of the interactions resulting in capture 
in the dredge bag, the openings in the chain mat were measured by the 
observer at the start of the trip and following the take. After the tow 
in which the turtle was observed, some openings in the chain mat, 
particularly at the top of the bag and near the sweep, measured from 16 
to 20 inches (40.6-50.8 cm). The turtle captured on this trip measured 
65.2 cm (25.7 inches) curved carapace length from notch to tip and 61.5 
cm (24.2 inches) curved carapace width (NEFSC, FSB, Observer database). 
Using the formulas in Teas (1993) and Coles (1999), respectively, this 
is a straight carapace length of 60.4 cm (23.8 inches) and a straight 
carapace width of 50.2 cm (19.8 inches). Given the larger openings 
recorded in the chain mat, a sea turtle of the size observed captured 
would be small enough to pass through the observed openings.
    The second turtle reported captured in the dredge bag measured 89 
cm (35.0 inches) from notch to tip and 83 cm (32.7 inches) curved 
carapace width (NEFSC, FSB, Observer database). Using the formulas in 
Teas (1993) and Coles (1999), respectively, this is a straight carapace 
length of 82.9 cm (32.6 inches) and a straight carapace width of 66.2 
cm (26.1 inches). No measurements were taken of the openings in the 
chain mat. However, the observer's comments indicate that there were 
breaks in, or problems with, the chain mat that allowed the turtle to 
be captured in the bag. There were several comments in the observer's 
log about chains/shackles being broken, but none specifically on the 
tow in which the turtle was taken. On tows prior to the one on which 
the turtle was taken, there were several instances of large (500 pound 
(227 kg) and 800 pounds (363 kg)) rocks being caught inside the dredge. 
The rocks were larger than the turtle that was taken, and too large to 
fit through a chain mat that was operating correctly. The observer also 
stated that the horizontal chain closest to the cutting bar may not 
have been attached to the vertical chain, so the grid was not fixed, 
which would allow for larger openings (memo from Pasquale Scida to The 
File, March 11, 2008). For both interactions that resulted in the 
capture of the sea turtle in the dredge bag, the observers' comments 
indicate that there were openings in the gear larger than the openings 
required, allowing the sea turtles to pass into the dredge bag.
    This information shows that non-compliant chan mats may result in 
failure to achieve the intended conservation benefits. However, it does 
not indicate that the gear, when properly implemented, does not 
function as expected. NMFS believes that when the gear is properly 
implemented, it will prevent most sea turtles from being captured in 
the dredge bag. NMFS is developing a plan to collect information on and 
to monitor the degree/frequency of stretch and breakage that is 
occurring in order to better understand the impacts of the wear of the 
gear. NMFS will also continue to use observer data to gain a better 
understanding of how sea turtles may be interacting with other parts of 
the dredge gear (i.e., outside of the dredge bag).
    The observer coverage in the Atlantic sea scallop dredge fishery in 
2007 is comparable to that over the preceding 5 years (memo from Ellen 
Keane to The File, February 27, 2007). The number of observed hauls May 
1 through November 30 in waters south of 41[deg]9.0' N. latitude was 
4617 in 2002, 5877 in 2003, 10609 in 2004, 7601 in 2005, and 5176 in 
2006. From May 1 through October 31, 2007, 8317 hauls were observed. 
Data on the number of hauls observed in November 2007 is not yet 
available, but will increase the total number of observed hauls in 
2007. The number of hauls observed in 2007 is greater than all but one 
of the preceding 5 years.
    Comment 2: Two comments addressed the spatial extent of the 
proposed rule. One supported using a longitudinal line at 70[deg] W. 
longitude (long.) as the boundary of the rule as, according to the 
comment, this is the area in which the gear was tested and is far 
northward of the area where takes are likely to occur, or where they 
have occurred with rare exceptions. A second commenter supported the 
action and the northern boundary as proposed, but noted that the 
boundary needs to be monitored closely for any changes in the 
distribution of sea turtles or sea scallops, and therefore, fishing 
effort, due to environmental change.
    Response: Sea turtle species that are found off the northeastern 
coast of the United States north of Cape Hatteras, North Carolina are, 
in order of frequency of occurrence, loggerhead, leatherback, Kemp's 
ridley, and green sea turtles (Shoop, 1980; Shoop and Kenney, 1992). 
The distributions of all four species overlap in part with the 
distribution of scallop dredge gear. Loggerhead, leatherback, Kemp's 
ridley, and green sea turtles occur seasonally in southern New England 
and mid-Atlantic continental shelf waters north of Hatteras. The 
occurrence of these species in these waters is temperature dependent 
(Keinath et al., 1987; Shoop and Kenney, 1992; Musick and Limpus, 1997; 
Morreale and Standora, 1998; Braun-McNeill and Epperly, 2002; James et 
al., 2005b; Morreale and Standora, 2005). In general, turtles move up 
the coast from southern wintering areas as water temperatures warm in 
the spring. The trend is reversed in the fall as water temperatures 
cool. By December, turtles have passed Cape Hatteras, returning to more 
southern waters for the winter (Keinath et al., 1987; Shoop and Kenney, 
1992; Musick and Limpus, 1997; Morreale and Standora, 1998; Braun-
McNeill and Epperly, 2002; James et al., 2005b; Morreale and Standora, 
2005). Hard-shelled species are typically observed as far north as Cape 
Cod whereas more cold-tolerant leatherbacks are observed in more 
northern Gulf of Maine waters in the summer and fall (Shoop and Kenney, 
1992; STSSN database). Extensive survey effort on the continental shelf 
from Cape Hatteras, North Carolina to Nova Scotia, Canada in the 1980s 
(CeTAP, 1982) revealed that loggerheads were observed in waters from 
the beach to depths of up to 4481 m (14,701 ft). However, they were, in 
general, more commonly found in waters from 22-49 m (72.2-160.8 ft) 
deep (Shoop and Kenney, 1992). The overall depth range of leatherback 
sightings in the CeTAP study (1982) was comparable to loggerheads.

[[Page 18987]]

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[deg] 58' N. lat./67[deg] 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[deg] 24' N. lat./68[deg] 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[deg] 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[deg]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/Robinson-Hamner.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[deg]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[deg]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.,

[[Page 18988]]

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 turtle-chain 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 long-lived 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

[[Page 18989]]

(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 ESA-
listed 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 on-watch haul, that was 
not moderately or severely decomposed upon capture. This includes sea 
turtles hauled up on top of the gear, wedged in the forward parts of 
the dredge frame, 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 low-frequency 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 mid-Atlantic 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

[[Page 18990]]

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 high-
resolution 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 turtle-fishery 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 chain-mat 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

[[Page 18991]]

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

[[Page 18992]]

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),

[[Page 18993]]

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 chain-mat 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

[[Page 18994]]

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

[[Page 18995]]

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 chain-mat 
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[deg] 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

[[Page 18996]]

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

[[Page 18997]]

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 turtle-chain 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 turtle-sea 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

[[Page 18998]]

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[deg]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[deg]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.

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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.

0
For the reasons set forth in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.12 also 
issued under 16 U.S.C. 1361 et. seq.; 16 U.S.C. 5503(d) for Sec.  
223.206(d)(9).

0
2. In Sec.  223.206, paragraph (d)(11) is revised to read as follows:


Sec.  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[deg]9.0' N. latitude, from the shoreline to the outer boundary of 
the Exclusive Economic Zone must have on each dredge a chain mat 
described as follows. The chain mat must be composed of horizontal 
(``tickler'') chains and vertical (up-and-down) chains that are 
configured such that the openings formed by the intersecting chains 
have no more than 4 sides. The 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[deg]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 Sec.  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


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