Endangered and Threatened Wildlife; Sea Turtle Conservation, 18984-19000 [08-1107]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 68 (Tuesday, April 8, 2008)]
[Rules and Regulations]
[Pages 18984-19000]
From the Federal Register Online via the Government Printing 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 ellen.keane@noaa.gov) or Barbara Schroeder 
(ph. 301-713-2322, fax 301-427-2522, e-mail 
barbara.schroeder@noaa.gov).

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act of 1973 
(ESA). The Kemp's ridley (Lepidochelys kempii), leatherback 
(Dermochelys coriacea), and hawksbill (Eretmochelys imbricata) sea 
turtles are listed as endangered. The loggerhead (Caretta caretta) and 
green (Chelonia mydas) sea turtles are listed as threatened, except for 
breeding populations of green turtles in Florida and on the Pacific 
coast of Mexico that are listed as endangered. Due to the inability to 
distinguish between these populations of green turtles away from the 
nesting beach, NMFS considers green sea turtles endangered wherever 
they occur in U.S. waters. Kemp's ridley, hawksbill, loggerhead, and 
green sea turtles are hard-shelled sea turtles. The incidental take, 
both lethal and non-lethal, of loggerhead, Kemp's ridley, and 
unidentified hard-shelled sea turtles has been documented in the sea 
scallop dredge fishery, as well as a non-lethal take of a green sea 
turtle (NEFSC FSB, Observer Database). In addition, an unconfirmed take 
of a leatherback sea turtle was reported during the experimental 
fishery to test the chain-mat modified dredge gear (DuPaul et al., 
2004).
    This action is being taken under the ESA provisions authorizing the 
issuance of regulations to conserve threatened species and for 
enforcement purposes (sections 4(d) and 11(f), respectively). The 
requirement to use chain-mat modified dredge gear is necessary to 
provide for the conservation of threatened loggerhead sea turtles, and 
will have ancillary benefits for other sea turtle species that have 
been taken in the sea scallop dredge fishery, albeit to a lesser extent 
than loggerheads. Under the ESA and its implementing regulations, 
taking endangered sea turtles--even incidentally--is prohibited. The 
incidental take of endangered species may only legally be exempted by 
an incidental take statement (ITS) or an incidental take permit issued 
pursuant to section 7 or 10 the ESA, respectively. Existing sea turtle 
conservation regulations at 50 CFR 223.206(d) exempt fishing activities 
and scientific research from the prohibition on takes of threatened 
species under certain conditions. Any incidental take of threatened 
loggerhead sea turtles in sea scallop dredge gear in compliance with 
this gear modification requirement and other applicable requirements is 
exempted from the prohibition against takes.
    The chain-mat modified dredge is expected to benefit sea turtles 
following an interaction in the water column. Based on the available 
information, NMFS has determined that the use of a chain-mat modified 
dredge will prevent most captures of sea turtles in the dredge bag as 
well as any ensuing injuries as a result of such capture (e.g., 
crushing in the dredge bag, crushing on deck, etc.). However, NMFS has 
made the conservative assumption that a turtle in a bottom interaction 
sustains significant injuries on the bottom, so, under this 
conservative assumption, there would not be a benefit from the chain 
mat for bottom interactions. This assumption, however, may be too 
conservative in that it is possible (although not likely) that turtles 
in a bottom interaction only receive minor injuries. In the unlikely 
scenario of a turtle receiving only minor injuries following a bottom 
interaction, the chain mat modification would prevent significant 
injuries that result from capture in the dredge bag (i.e, injuries

[[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 wer