[Federal Register Volume 60, Number 32 (Thursday, February 16, 1995)]
[Rules and Regulations]
[Pages 8956-8958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3816]



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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]
BILLING CODE 3510-22-F