Sea Turtle Conservation; Shrimp Trawling Requirements

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 950201033-5033-01; I.D. 041294E]

RIN 0648-AG37

Sea Turtle Conservation; Shrimp Trawling Requirements

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: This final rule allows non-Federal entities to apply for, and

NMFS to issue, permits for the incidental take of threatened species of

sea turtles consistent with section 10(a) of the Endangered Species Act

(ESA). Under existing regulations, the prohibitions of section 9 of the

ESA apply to both endangered and threatened species, but section 10

incidental take permits may be authorized for endangered, but not

threatened, species of sea turtles. This regulation corrects this

discrepancy in the application of sections 9 and 10 to threatened

species of sea turtles.

EFFECTIVE DATE: March 20, 1995.

ADDRESSES: Requests for copies of the Environmental Assessment (EA) for

the proposed rule, should be addressed to Endangered Species Division,

Office of Protected Resources, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Heather Weiner, Endangered Species

Division, 301-713-1401; Doug Beach, Protected Species Program

Coordinator, NMFS Northeast Regional Office, 508-281-9254; or Charles

A. Oravetz, Chief, Protected Species Program, NMFS Southeast Regional

Office, 813-570-5312.

SUPPLEMENTARY INFORMATION:

Background

All sea turtles that occur in U.S. waters are listed as either

endangered or threatened under the ESA. Kemp's ridley (Lepidochelys

kempii), leatherback (Dermochelys coriacea) and hawksbill (Eretmochelys

imbricata) turtles are listed as endangered. Loggerhead (Caretta

caretta), green (Chelonia mydas) and olive ridley (Lepidochelys

olivacea) turtles are listed as threatened, except for breeding

populations of green turtles in Florida and on the Pacific Coast of

Mexico, and the breeding population of olive ridley turtles on the

Pacific Coast of Mexico, which are listed as endangered.

In a proposed rule published on July 21, 1994 (59 FR 37213), NMFS

proposed to extend existing incidental-take permit regulations to all

threatened species of sea turtles as authorized under section

10(a)(1)(B) of the ESA. Section 10 authorizes the Secretary of Commerce

to permit under such terms and conditions as he or she may prescribe,

any taking otherwise prohibited by section 9(a)(1)(B) of the ESA, if

the taking is incidental to, and not the purpose of, carrying out an

otherwise lawful activity. NMFS implemented regulations for the

application and issuance of incidental-take permits, under section

10(a) of the ESA, which appear at 50 CFR parts 220 and 222, and allow

the Assistant Administrator for Fisheries, NOAA, (AA) to issue permits

to incidentally take endangered marine species during otherwise lawful

activities.

Comments and Responses on the Proposed Rule

NMFS received responses from four commenters, including the U.S.

Department of the Interior, regarding the proposed rule. Commenters

were generally supportive of the proposed rule, but expressed some

concerns about permit issuance and review. NMFS reviewed all comments

in detail and combined their common concerns for

response. [[Page 8957]]

Comment: Incidental take permits imply acceptance of the killing of

threatened and endangered species. Granting exceptions to the ESA

undermines the intent of the Act. Protective regulations for threatened

species impacted by non-Federal entities should be issued under section

4(d) of the Act instead of through section 10 permits. If section 10

permits are allowed, then they should not be used as a means to avoid

the required use of turtle excluder devices in shrimp fisheries.

Response: Section 10(a)(1)(B) of the ESA explicitly provides that

the Secretary may permit any taking otherwise prohibited by section

9(a)(1)(B) if such taking is incidental to, and not the purpose of, the

carrying out of an otherwise lawful activity. The intent of this

provision of the ESA is to allow non-Federal entities to carry out an

activity that may incidentally take endangered species without

jeopardizing the species, thereby extending the same allowance for

Federal actions to non-Federal actions. Section 4(d) of the ESA allows

NMFS to apply this provision and the takings prohibition of section 9,

to threatened as well as endangered species.

As a Federal action that may affect listed species, the proposed

issuance of a section 10 incidental take permit must be accompanied by

a section 7 consultation. Through the consultation process, NMFS must

ensure that the activity conducted under the permit, including the

conservation plan, is not likely to jeopardize the listed species. This

is the same substantive requirement applicable to regulations.

Comment: The section 10 incidental take permit program should

require adequate Federal oversight of permits and conditions. NMFS must

deny general permits to states unless there are adequate assurances

that state applicants have the requisite legal authority, resources,

and commitment to administer a statewide general permit under the

required conservation plan. A conservation plan should provide for the

registration of all vessels covered by the permit, observers on a

substantial portion of the vessels, onshore and aerial observations,

and procedures to halt the activity if conditions are being violated.

In addition, applicants must demonstrate that they have sufficient

resources and interest to provide adequate monitoring and enforcement

of permit conditions, including an effective turtle stranding network

to monitor mortalities.

Response: Both section 10 of the ESA and NMFS regulations (50 CFR

222.22(b)(5)) require permit applicants to include a detailed

conservation plan that specifies (among other things) the steps that

will be taken to monitor, minimize, and mitigate the activity's impacts

on listed species. The conservation plan must also detail the funding

available to implement these measures. In addition, one of the criteria

used to determine issuance is the availability of effective monitoring

techniques. Conservation plans for incidental take permits for

commercial fisheries that incidentally take sea turtles may include

requirements such as observer coverage, aerial surveys, and a

monitoring network to document turtle strandings as necessary,

depending on the activity involved.

If the permit holder fails to comply with the conditions of the

permit or with any applicable laws or regulations governing the conduct

of the permitted activity, then NMFS may suspend or revoke the permit

pursuant to 50 CFR 227.27. In a state that has an authorized general

section 10 permit, those vessels that wish to conduct an activity

covered by the permit must apply to NMFS for a certificate of

inclusion. Certificates of inclusion may also be suspended or revoked

if the certificate holder fails to comply with the applicable terms of

the permit.

Comment: Adequate procedural safeguards should be added to ensure

that interested parties receive timely notice and meaningful

opportunity to comment on applications for incidental take permits.

Response: Under existing NMFS regulations (50 CFR 222.24) and

guidelines, a notice of receipt of a completed permit application is

published in the Federal Register with a 30-day comment period. The

permit application is then distributed to interested parties for review

and comment. All comments received are reviewed and considered prior to

final agency action on the permit application. In addition, any

commenter may request a hearing. Specific questions raised by reviewers

are directed anonymously to the applicant for reply. If the issuance of

the permit may significantly affect the human environment, then an

environmental assessment is prepared, as required by the National

Environmental Policy Act. Because issuance of an incidental take permit

is a Federal action that may affect the listed species, consultation

pursuant to section 7 is required. The permit application may be

altered, denied or issued based on the public comments and

environmental compliance reviews. NMFS will make every effort to ensure

that comments are adequately responded to in the applicable section 7

consultations and environmental assessments.

Comment: NMFS recently issued a joint policy with the U.S. Fish and

Wildlife Service (USFWS) regarding Habitat Conservation Plans (HCPs)

under section 10 of the ESA. This policy should not apply to section 10

permits for sea turtles because the conservation plans do not involve

private ownership, but address the taking of public resources from

public trust waters.

Response: NMFS agrees. The ``No Surprises'' policy states that the

purpose of the policy is to provide assurances to non Federal

landowners participating in Habitat Conservation Planning that ``no

additional land restrictions or financial compensation will be required

from an HCP permittee for species adequately covered by a properly

functioning HCP in light of unforeseen or extraordinary

circumstances.''

Comment: Permits should be issued for periods not to exceed 1 year

because conditions may change altering the necessity for exemptions and

modifications to existing ESA rules governing turtles.

Response: NMFS agrees that circumstances may change that alter the

conditions of the activity or the status of the species, thereby

requiring alterations to the terms of the permit. However, NMFS

regulations set neither a minimum nor maximum time limit to incidental

take permits. Regulations at 50 CFR 222.22(e) state that the duration

of the permit is related to the duration of the proposed activities, as

well as the possible positive and negative effects associated with

issuing a permit of the proposed duration. Rather than requiring annual

renewals of all section 10 permits, NMFS may require either periodic

renewals or reviews and, if needed, require applicable modifications.

The timing of that review will depend on the nature of the permitted

activity, and will be set as a condition of the permit. Additionally,

permit holders will be required to submit reports on the implementation

of and activities conducted under the conservation plan.

Final Regulations and Changes From the Proposed Rule

The purpose of this final rule is to amend the existing regulations

to allow NMFS to authorize incidental take permits for threatened, as

well as endangered, species of sea turtles. The final regulations are

identical to those published in the proposed rule. NMFS has determined

that no changes to the text of the regulations are necessary.

The general permit procedures in 50 CFR part 220, as well as the

endangered [[Page 8958]] species permit requirements in 50 CFR part

222, apply to the application, issuance, modification, revocation,

suspension, and amendment of an incidental take permit for threatened,

as well as for endangered sea turtles.

Classification

This final rule has been determined to be not significant for

purposes of E.O. 12866.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act (PRA). This requirement has been

approved previously by the Office of Management and Budget (OMB) (OMB

Control Number 0648-0230). The reporting burden for this collection is

estimated to average approximately 80 hours for permit applications,

0.5 hours for certificate of inclusion applications and 0.5 hours for

reports. These estimates include the time for reviewing instructions,

gathering and maintaining the data needed, and completing and reviewing

the collection of information. Send comments regarding these burden

estimates or any other aspect of this collection of information,

including suggestions for reducing this burden, to the National Marine

Fisheries Service (F/PR), 1315 East-West Highway, Silver Spring, MD

20910, and to the Office of Information and Regulatory Affairs, OMB,

Washington, D.C. 20503 (Attn: PRA Project 0648-0230).

The General Counsel of the Department of Commerce certified to the

Chief Counsel for Advocacy of the Small Business Administration that

this final rule will not have significant economic impact on a

substantial number of small entities because the final rule establishes

a discretionary permitting procedure that will, by itself, have no

economic impact. As a result, a regulatory flexibility analysis was not

prepared.

The AA prepared an EA for the proposed rule that concludes that the

rule would have no significant impact on the human environment. A copy

of the EA is available (see ADDRESSES) and comments on it are

requested.

List of Subjects in 50 CFR Part 227

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: February 10, 1995.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 227 is amended

as follows:

PART 227--THREATENED FISH AND WILDLIFE

1. The authority citation for part 227 continues to read as

follows:

Authority: 16 U.S.C. 1531 et seq.

2. In Sec. 227.72, paragraph (e)(1) introductory text is revised

and paragraph (e)(7) is added to read as follows:

Sec. 227.72 Exceptions to prohibitions.

* * * * *

(e) * * * (1) General. The prohibitions against taking in

Sec. 227.71(a) do not apply to the incidental take of any member of any

species of sea turtle listed in Sec. 227.4 (i.e., a take not directed

toward such member) during fishing or scientific research activities,

to the extent that those involved are in compliance with the

requirements of paragraphs (e)(1), (2), (3), and (6) of this section,

or in compliance with the terms and conditions of an incidental take

permit issued pursuant to paragraph (e)(7) of this section.

* * * * *

(7) Incidental-take permits. The Assistant Administrator may issue

permits authorizing activities that would otherwise be prohibited in

Sec. 227.71(a) of this chapter in accordance with section 10(a)(1)(B)

of the Act (16 U.S.C. 1539(a)(1)(B)), and in accordance with, and

subject to, the provisions of parts 220 and 222 of this chapter. Such

permits may be issued for the incidental taking of both endangered and

threatened species of sea turtles. This section supersedes restrictions

on the scope of parts 220 and 222, including, but not limited to, the

restrictions specified in Secs. 220.3, 222.1, 222.2(a) and 222.22(a).

* * * * *

[FR Doc. 95-3816 Filed 2-15-95; 8:45 am]

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