[Federal Register Volume 70, Number 59 (Tuesday, March 29, 2005)]
[Proposed Rules]
[Pages 15800-15803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6187]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 050224044-5044-01; I.D. 092304A]
RIN 0648-AS57


Sea Turtle Conservation; Exceptions to Taking Prohibitions for 
Endangered Sea Turtles

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to allow any agent or employee of NMFS, the U.S. 
Fish and Wildlife Service (FWS), the U.S. Coast Guard, or any other 
Federal land or water management agency, or any agent or employee of a 
state agency responsible for fish and wildlife who, when acting in the 
course of his or her official duties, is a member of the Sea Turtle 
Stranding and Salvage Network (STSSN), to take endangered sea turtles 
encountered in the marine environment if such taking is necessary to 
aid a stranded endangered sea turtle, or dispose a dead endangered sea 
turtle, or salvage a dead endangered sea turtle that may be useful for 
scientific and educational purposes. This action is necessary to 
provide equal conservation and protection measures to stranded 
endangered sea turtles as is afforded for threatened sea turtles under 
50 CFR 223.206.

DATES: Comments on this action are requested, and must be received at 
the appropriate address, e-mail, or fax number (ADDRESSES) by no later 
than 5 p.m., eastern daylight time, on April 28, 2005.

ADDRESSES: Written comments on this action or requests for copies of 
the draft Environmental Assessment should be addressed to Michael 
Payne, Chief, Marine Mammal Division, NMFS Office of Protected 
Resources, 1315 East-West Highway, Silver Spring, MD, 20910; or by fax 
(301) 427-2522, or by e-mail at: [email protected].

FOR FURTHER INFORMATION CONTACT: Therese Conant, phone: 301-713-1401, 
fax: 301-427-2523.

SUPPLEMENTARY INFORMATION:

Background

    All sea turtles that occur in U.S. waters are listed as either 
endangered or threatened under the Endangered Species Act (ESA). Kemp's 
ridley (Lepidochelys kempii), leatherback (Dermochelys coriacea), and 
hawksbill (Eretmochelys imbricata) sea turtles are listed as 
endangered. Loggerhead (Caretta caretta), green (Chelonia mydas), and 
olive ridley (Lepidochelys olivacea) sea turtles are listed as 
threatened, except for breeding colony populations of green turtles in 
Florida and on the Pacific coast of Mexico and breeding colony 
populations of olive ridleys on the Pacific coast of Mexico which are 
listed as endangered. NMFS and the FWS share jurisdictional 
responsibility for sea turtles under the ESA. FWS has responsibility in 
the terrestrial environment and NMFS has responsibility in the marine 
environment.
    Under the ESA and its implementing regulations, taking endangered 
sea turtles - even incidentally - is prohibited. The ESA allows take of 
threatened species; however, section 4(d) of the ESA allows NMFS to 
implement regulations for the conservation of threatened species. NMFS 
implemented a section 4(d) regulation that extended the take 
prohibitions to threatened sea turtles with exceptions identified in 50 
CFR 223.206. The take of endangered species may be authorized by an 
incidental take statement pursuant to section 7 or a permit or 
programmatic permit regulation issued pursuant to section 10 of the 
ESA.
    NMFS implemented regulations (50 CFR 223.206) pursuant to section 
4(d) of the ESA to allow appropriate handling of sick, injured, 
entangled, or dead threatened sea turtles found in the marine 
environment. Activities related to responding to sick, injured, 
entangled, and dead turtles have been ongoing for over 30 years and 
became institutionalized in 1980 with the establishment of the NMFS' 
STSSN. The STSSN consists of agents or employees of NMFS, the FWS, the 
U.S. Coast Guard, or any other Federal land or water management agency, 
or any agent or employee of a state agency responsible for fish and 
wildlife (hereinafter referred to as the STSSN Responder). Each state 
participating in the STSSN has an ESA section 6 agreement with the FWS. 
The FWS grants authority to each cooperating state for permitting land-
based activities (i.e., on the beach and in holding facilities) related 
to the STSSN. FWS also implemented regulations to allow any employee or 
agent of FWS, NMFS, or a state conservation agency, to aid, dispose, 
salvage or humanely remove endangered species that constitute a 
demonstrable threat to human safety (50 CFR 17.21). NMFS currently has 
ESA section 6 agreements with only 10 states/territories: Florida, 
Georgia, South Carolina, North Carolina, Maryland, New Jersey, New 
York, Massachusetts, Puerto Rico, and U.S. Virgin Islands (note: On 
June 11, 1997, NMFS entered into a Memorandum of Agreement with the 
California Department of Fish and Game, Office of Oil Spill Prevention 
and Response to aid sick, injured or stranded sea turtles impacted by 
oil and other hazardous material spills) . The STSSN encompasses all 
U.S. states and territories. The ESA does not allow exceptions to 
takings for endangered species through section 4(d). Therefore, NMFS 
proposes to grant authority under section 10(a)(1)(A) to provide for 
the aid, collection, and disposition of, stranded endangered sea 
turtles found in the marine environment. By definition, the term 
'stranded' includes live endangered sea turtles that are sick, injured, 
or entangled and dead endangered sea turtles found in the marine 
environment. Because the activities of the STSSN are similar in nature 
and scope, NMFS proposes to issue a programmatic permit by regulation 
pursuant to section 10(a)(1)(A). Implementing this section 10(a)(1)(A) 
action would provide consistency with FWS regulations which allow such 
activities on land as described in 50 CFR 17.21.
    The STSSN was formally established in the southeastern United 
States and Gulf of Mexico in 1980 and in Hawaii in 1982. The NMFS 
Southwest Region California Marine Mammal Stranding Network (CMMSN) has 
responded to sea turtle strandings in California since 1983. 
Maintaining an active stranding network has been identified in each of 
the ESA section 4 sea turtle recovery plans developed jointly by FWS 
and NMFS as a task necessary for the conservation and recovery of 
listed sea turtles. The purpose of the STSSN is to document dead sea 
turtles, salvage specimens, and aid sick, injured, or entangled sea 
turtles that strand in coastal areas under U.S. jurisdiction. State 
agencies that hold an ESA section 6 agreement with FWS and/or NMFS have 
designated staff or have developed memorandums of understanding (MOU) 
with academic institutions or other state-run institutions (e.g., 
aquaria) to oversee the STSSN. In some cases where NMFS does not have a 
direct MOU with a STSSN participant within a state, NMFS has applied 
directly to the FWS to cover STSSN activities (permit number: 
TED697823-2). The STSSN is organized under a national coordinator

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and consists of a coordinator for each state as well as trained 
volunteers and municipal, state and Federal employees and their 
designated agents operating under the direction of the state and 
national coordinator. Each state oversees and is responsible for 
collecting data under their STSSN program, except for California where 
NMFS oversees the program. In response to the high number of 
leatherbacks found entangled in fishing gear (primarily pot gear) along 
the U.S. northeast Atlantic coast, NMFS established the Northeast 
Atlantic Coast Sea Turtle Disentanglement Network (STDN) in 2002. The 
STDN is considered a component of the larger STSSN program, and the 
NMFS Northeast Regional Office oversees the STDN program.

Training Requirements for the STSSN

    STSSN Responders are highly experienced personnel who have 
undertaken extensive training through NMFS and/or state STSSN programs. 
The U.S. Coast Guard maintains a separate professional training program 
for responding to events involving protected resources. However, U.S. 
Coast Guard staff often attend STSSN meetings and training workshops 
held by states. Individual state STSSNs conduct annual training and 
refresher workshops for authorized STSSN Responders. STSSN Responders 
who receive additional training may also perform necropsies on sea 
turtle carcasses to determine the general state of health prior to 
death, sex, and document any abnormalities that may have contributed to 
the mortality of the animal. It is particularly important to undertake 
necropsies during an unexplained mass mortality event. Comprehensive 
disentanglement guidelines and sea turtle disentanglement tool kits 
were disseminated to the STSSN in October, 2003. In addition, NMFS 
holds regular meetings with the state STSSN coordinators to exchange 
information and develop recommendations for improving the STSSN.

Reporting Requirements for the STSSN

    The state STSSN programs collect the following information: name 
and address of observer, date, stranding location, species 
identification, state of decomposition; description of any obvious 
wounds, injuries or abnormalities; standard carapace measurements; and 
disposition. Photographs are taken whenever possible to verify species 
identification. Data are recorded on standardized report forms which 
are submitted to the state coordinator and then to the national STSSN 
coordinator at the NMFS Southeast Fisheries Science Center or the NMFS 
Pacific Islands Science Center.
    For disentanglement events, the following information is collected: 
name and type of reporting vessel; vessel cell phone number or radio 
call channel; reporter name and home phone number; date/time of report 
(and/or sighting event); location (latitude and longitude); description 
of turtle for species identification; status of turtle (alive or dead); 
description of entangling gear (rope, line, buoys, colors, ID numbers); 
location of entangling gear on turtle (head, flippers, single wrap, 
multiple wraps); description of any visible injuries; and weather/sea 
conditions at the scene.
    NMFS reviews the information collected and submitted through the 
states in the STSSN on a monthly basis for data quality control and 
assesses, in coordination with the states, the effectiveness of the 
program on a yearly basis.

Types of Activities Conducted Under the STSSN

    Tens of thousands of sea turtles have been reported through the 
STSSN since its inception. A portion of these reports have been 
endangered sea turtles found in the marine environment. Cumulatively, 
from 1993-2002, the STSSN responded to approximately 1,000 endangered 
sea turtles in the marine environment in the Atlantic Ocean and Gulf of 
Mexico. The species composition of these events in the marine 
environment was: 99 leatherbacks, 45 hawksbills, 223 Kemp's ridleys, 
and 633 green turtles (note: all green turtles are considered 
endangered because breeding colony origin is largely unknown). Thirty-
seven percent of these incidents were live encounters. In Hawaii, for 
the same time period, approximately 20 endangered sea turtles were 
responded to in the marine environment. The species composition of 
these events was approximately split between hawksbill and olive 
ridleys (note: all olive ridleys are considered endangered because 
breeding colony origin is largely unknown). Of these events, over half 
were live encounters. In California, for the same time period, the 
STSSN responded to 12 endangered sea turtles in the marine environment. 
The species composition of these events was 4 leatherbacks, 2 olive 
ridleys, and 6 green turtles. Of the total 12, half were live 
encounters.
    The types of events that render turtles in need of aid in the 
marine environment are varied and include cold-stunning, disease and 
health related issues, entanglement in and impingement on commercial 
and recreational fishing gear, ingestion of pollutants or marine 
debris, and vessel strikes and other traumatic injuries, including 
shark attacks. Typically, these events are reported through a NMFS 
dedicated phone line or through the state's STSSN phone line for 
reporting sick, injured, entangled or stranded wildlife. Alternately, 
the STSSN Responder may encounter a turtle in the water when acting in 
the course of official duties. On rare occasions, a sick, injured or 
entangled sea turtle is reported by the public and an immediate 
response is necessary to prevent further injury or death to the turtle. 
In these rare events, NMFS grants authority and gives specific 
instructions to the person at the scene to safely and properly aid the 
sea turtle.
    When a turtle is encountered in the water, the STSSN Responder 
determines whether the turtle is alive or dead. The response protocol 
is based upon this determination. For live turtles, the treatment is, 
in part, based upon the circumstances surrounding the event. For 
example, when water temperatures drop below a certain level, sea 
turtles can become lethargic or comatose, a condition known as cold-
stunning. For these cold stun cases, the most immediate response is to 
remove the turtle from the water, apply a moisture emollient around the 
nostrils and eyes to prevent the membranes from drying out, provide a 
cover for the animal and transport it to a rehabilitation facility for 
veterinary care. For entanglement events, removal from the water is not 
always the best response and can result in further injury. The STSSN 
Responder assesses the amount and type of gear that is involved and 
examines where and how the turtle is entangled in the gear. The STSSN 
Responder also looks for injuries associated with the entanglement and 
observes the turtle's behavior (e.g., lethargic, energetic). Based on 
the assessment and examination, and given concern for their own safety, 
the STSSN Responder attempts to remove any gear that can be removed 
without further injury to the turtle. If the animal can be brought on 
board a vessel without further injury, the STSSN Responder attempts to 
remove all external gear and treat the turtle for any associated 
injuries. If the turtle's injuries are severe, and it is logistically 
possible, the turtle is transported to shore for transfer to a 
rehabilitation facility for veterinary care. During transport, the 
turtle is kept shaded and kept moist. For live turtles

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that are not injured but need resuscitation, procedures specified in 50 
CFR 223.206(d)(1) are followed. Resuscitation and rehabilitation 
increases the turtle's chance of survival after being released.
    For dead specimens found in the marine environment, the STSSN 
Responder records data and either leaves the carcass in the water with 
a mark on the animal or salvages the specimen for further examination 
or for scientific or educational purposes (for example, data are 
collected to determine population sex and age structure, and etiology 
of diseases).

Summary

    The STSSN was established in response to the need to better 
understand threats to sea turtles in the marine environment and to 
provide aid to stranded sea turtles, or dispose of a dead endangered 
sea turtle, or salvage a dead endangered sea turtle that may be useful 
for scientific and educational purposes. Maintaining a stranding 
network is identified as a recovery task in all federal sea turtle 
recovery plans. The extensive training requirements, comprehensive data 
collection, and frequent review and evaluation of these programs, 
satisfy the requirements described for individual directed research 
permits. Actions taken by stranding and entanglement networks improve 
survivability of sick, injured, entangled or stranded turtles and 
improve our knowledge about population structure, the etiology of 
disease, environmental stressors and manmade threats in the marine 
environment. The proposed rule would authorize activities that clearly 
provide a bona fide and desirable benefit to the enhancement and 
survival of endangered sea turtles.
    This proposed rule would not authorize incidental take. The 
activities described are limited to responding to a sea turtle 
stranding or death that has occurred incidental to a human activity and 
responding to a stranding or death due to natural causes. NMFS is 
requesting comment on this proposed action. Copies of the draft 
Environmental Assessment are available (see ADDRESSES).

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action does not contain new reporting or recordkeeping 
requirements.
    This proposed rule does not duplicate, overlap or conflict with 
other Federal rules.
    This proposed rule does not limit state policymaking or preempt 
state law and, therefore, does not contain policies with federalism 
implications under Executive Order 13132.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this proposed rule, if adopted, 
will not have a significant economic impact on a substantial number of 
small businesses, organizations, or governments pursuant to the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. Activities authorized 
under this proposed rule authorize a suite of activities that may be 
taken at the discretion of the STSSN Responder. Proscriptive activities 
are limited to safe handling protocols for live sea turtles described 
at 50 CFR 223.206(d)(1). These protocols were most recently updated and 
authorized through separate rulemaking (66 FR 67495, December 31, 
2001). The activities authorized under this proposed rule will only 
affect STSSN Responders and will not constitute any additional burden 
to small businesses, organizations, or governments.

    Dated: March 23, 2005.
Rebecca Lent,
Deputy Assisstant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

List of Subjects in 50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements.
    For the reasons set forth in the preamble, 50 CFR part 222 is 
proposed to be amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

    1. The authority citation for 50 CFR part 222 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701.
    2. In subpart C, Sec.  222.310 is added to read as follows:


Sec.  222.310  Permit authority for designated agents and employees of 
specified Federal and state agencies.

    (a) This section constitutes a programmatic permit, pursuant to 16 
U.S.C. 1539(a)(1)(A), that authorizes activities by agents and 
employees of Federal and state agencies, as described in paragraph (b) 
of this section, to aid stranded endangered sea turtles, and to 
salvage, collect data from, and dispose of, dead carcasses of 
endangered sea turtles in the marine environment. For purposes of this 
section, 'stranded' means endangered sea turtles, in the marine 
environment, that are alive but sick, injured, or entangled.
    (b) If any member of any endangered species of sea turtle is found 
stranded or dead in the marine environment, any agent or employee of 
the National Marine Fisheries Service, the Fish and Wildlife Service, 
the U.S. Coast Guard, or any other Federal land or water management 
agency, or any agent or employee of a state agency responsible for fish 
and wildlife who is designated by his or her agency for such purposes, 
may, when acting in the course of his or her official duties, take such 
endangered sea turtles if such taking is necessary to aid a stranded 
sea turtle, or dispose of or salvage a dead sea turtle, or collect data 
from a dead sea turtle which may be useful for scientific and 
educational purposes. Live turtles will be handled as described in 
Sec.  223.206(d)(1). Whenever possible, live sea turtles shall be 
returned to their aquatic environment as soon as possible. The 
following data collection activities for live turtles while they are in 
the marine environment are allowed:
    (1) Turtles may be flipper and passive integrated transponder (PIT) 
tagged, prior to release. Flipper tags would be applied to the trailing 
edge of either the front or rear flippers with standard tagging 
applicators after the tagging area has been cleaned with alcohol or 
iodine solution. PIT tags would be subcutaneously inserted after 
cleaning the insertion site with alcohol or iodine solution. Before 
application of flipper tags or insertion of PIT tags all flippers and 
the neck/shoulder area will be examined and scanned for the presence of 
any pre-existing flipper or PIT tags.
    (2) Turtles may also be weighed, measured, and photographed prior 
to release.
    (c) Every action shall be reported in writing to the Assistant 
Administrator, or authorized representative, via the agency or 
institution designated by the state to record such events. Reports 
shall contain the following information:
    (1) Name and position of the official or employee involved;
    (2) Description of the sea turtle(s) involved including species and 
condition of the animal;
    (3) When applicable, description of entangling gear, its location 
on the turtle, and the amount of gear left on the turtle at release;
    (4) Method, date and location of disposal of the sea turtle(s), 
including, if applicable, where the sea turtle(s) has been retained in 
captivity; and

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    (5) Such other information as the Assistant Administrator, or 
authorized representative, may require.
[FR Doc. 05-6187 Filed 3-28-05; 8:45 am]
BILLING CODE 3510-22-S