[Federal Register Volume 70, Number 230 (Thursday, December 1, 2005)]
[Proposed Rules]
[Pages 72099-72100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23537]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[I.D. 111805A]


Sea Turtle Requirements; Petition for Rulemaking

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

ACTION: Notice of decision on petition.

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SUMMARY: The National Marine Fisheries Service (NMFS), National Oceanic 
and Atmospheric Administration (NOAA), Department of Commerce, 
announces its denial of a petition for rulemaking submitted by Oceana. 
Oceana failed to request specific and discrete actions that are 
properly within the scope of a rulemaking petition pursuant to the 
Administrative Procedure Act (APA); instead the petitioner challenged 
the agency's general pattern, practice, or policy. NMFS is denying the 
petition because the agency is already addressing aspects of the 
petition and has determined that additional regulations dictating the 
choice of method used to achieve agency goals are unwarranted at this 
time.

FOR FURTHER INFORMATION CONTACT: Barbara Schroeder (ph. 301-713-1401, 
fax 301-713-0376, e-mail [email protected]).

SUPPLEMENTARY INFORMATION:

Petition Request

    On August 4, 2005, Oceana submitted a petition requesting NMFS to 
promulgate the following regulations:
    (1) Conduct in-water population level assessments. The petition 
requests that NMFS use in-water survey techniques, such as trawl or 
aerial surveys to obtain supplemental population assessment information 
for those species for which nesting beach survey data are available 
among other things, Oceana cites the Turtle Expert Working Group (TEWG 
2000) recommendations to improve datasets and data-gathering methods in 
order to support its petition;
    (2) Increase observer coverage to obtain accurate information on 
the number of sea turtles caught in all fisheries. The petition 
requests that NMFS promulgate regulations that increase coverage. The 
petition cites the TEWG statement that observer coverage over a 
statistically valid portion of the fishing effort throughout the range 
of sea turtles is necessary to accurately estimate catch and mortality; 
and
    (3) Establish a quantitative method for determining take limits for 
biological opinions. The petition claims that NMFS fails to provide a 
quantitative rationale for incidental take specified in its biological 
opinions. The petition mentions several NMFS' evaluations of 
quantitative models for sea turtles, including the Potential Biological 
Removal (PBR) model used for marine mammals. Finally, the petition 
refers to the August 2004 workshop convened by NMFS to develop an 
analytical framework for conducting jeopardy analyses under the 
Endangered Species Act (ESA) and identify options for assessing 
species' risk when data are limited. The petition requests that NMFS 
adopt regulations immediately to insure that biological opinions use a 
standardized method to make decisions.

[[Page 72100]]

Analysis of Petition and Decision

    NMFS carefully considered the information contained in the petition 
and supporting documents, and made the final determinations for each 
portion of the petition as follows.
    Petition Component (1): Conduct In-water Population Level 
Assessments
    The petition fails to provide any new information that justifies 
the need for regulations that would change the agency's general pattern 
or practice regarding data collection and analytical methodologies. 
NMFS is aware of the TEWG's assessments of the current datasets and is 
already working to improve the empirical data that define where, how 
many, and at what life stage and condition sea turtles may be 
encountered. NMFS is also conducting and supporting in-water research 
in many Atlantic states, as well as conducting aerial surveys in the 
mid-Atlantic to better assess sea turtle distribution and abundance. 
NMFS has built upon the TEWG recommendations by developing a 
requirements plan (NOAA 2004) to improve our understanding of the 
status of U.S. sea turtle populations. The requirements plan reviews 
the current sea turtle population assessment program in terms of 
present research capability and capacity, and delineates the resources 
necessary to acquire reliable assessment information to fully address 
identified data requirements. NMFS has addressed, and will continue to 
address, both the substance of this petitioned action and the TEWG 
recommendations through existing research planning documents and 
programs. Improvement of NMFS' research program is a matter left to the 
agency's discretion; it is not a specific and discrete action that is 
properly within the scope of a petition for rulemaking pursuant to APA 
5 U.S.C. 553(e). Accordingly, NMFS denies this component of the 
petition.
    Petition Component (2): Increase Observer Coverage to Obtain 
Accurate Information on the Number of Sea Turtles Caught in All 
Fisheries
    Oceana has previously petitioned NMFS to develop and implement a 
workplan for placing observers on enough fishing trips to provide 
statistically reliable bycatch estimates in all fisheries (67 FR 19154; 
April 18, 2002). In its response to that petition, NMFS explained that 
even though observers are effective in many fisheries, they may not be 
appropriate for all fisheries (68 FR 11501, March 11, 2003). NMFS is 
continuing to expand and modernize observer programs for Federal 
commercial fisheries. NMFS recognizes that improving monitoring 
programs should increase our understanding of sea turtle interactions, 
but constraints on agency resources and logistical difficulties (e.g., 
small boats) make it difficult to monitor the extent of sea turtle 
interactions in state-managed and recreational fisheries. NMFS is 
exploring various observer options that could allow for more 
comprehensive, longer term monitoring of sea turtle-fishery 
interactions across fishing sectors and jurisdictional boundaries, but 
this on going effort is still in its early stages. Options may include 
placing observers in fisheries of concern pursuant to authority under 
the Endangered Species Act (ESA). In light of NMFS' previous denial of 
a substantially similar petitioned action and the agency's ongoing 
efforts to improve observer coverage, granting this petitioned action 
is unwarranted at this time.
    Petition Component (3): Establish a New, Uniform Quantitative 
Method for Determining Take Limits for Biological Opinions
    NMFS is interested in maintaining consist ESA section 7 jeopardy 
analyses in its biological opinions, while taking into account the wide 
variability in listed species' biology, as well as the wide variability 
in available information on them. To this end, NMFS convened a workshop 
in August 2004 as a first step in vetting the ESA section 7 biological 
opinion assessment framework. NMFS is still in the process of adding 
features such as identifying a suite of quantitative and qualitative 
methods for use in both data-sparse and data-rich situations, as well 
as testing and refining the applicability of the methods using 
information typical to section 7 consultations.
    Any structured decision approach adopted by NMFS must, in the 
overall jeopardy evaluation, weigh such qualitative factors as severity 
of injury, significance of behavioral responses, and extent and 
severity of habitat disturbance. Approaches for evaluating take levels 
for biological opinions should contain options suitable to the varied 
species, available data sets, and actions under consideration. Use of 
any particular quantitative model such as PBR for every evaluation is 
inappropriate. Moreover, section 7 of the ESA and its implementing 
regulations do not require NMFS to estimate incidental take 
quantitatively. When promulgating the section 7 regulations in 1986, 
NMFS and the U.S. Fish and Wildlife Service explicitly declined to 
endorse the use of numerical estimates of incidental take in all cases. 
In many biological opinions, a description of the extent of take is 
used because the loss of habitat resulting in death or injury of 
individuals may have more significant adverse consequences than the 
direct loss of a certain number of individuals (51 FR 19953, June 3, 
1986). Where Federal actions 'take' threatened or endangered species by 
altering the species' habitat, it is often impossible to translate the 
habitat lost into numerical estimates of the number of individuals 
taken. Consequently, numerical estimates are not appropriate to every 
consultation, and requiring them through rulemaking could reduce the 
protections listed species currently receive.
    The analytical framework for evaluating take levels in biological 
opinions is not yet completed and has not been fully tested. NMFS has 
determined that it is premature to consider rulemaking to adopt the 
framework, or any other uniform decision approach, at this time. Thus, 
NMFS denies this component of the petition.

References Cited

    Turtle Expert Working Group. 2000. Assessment update for the Kemp's 
ridley and loggerhead sea turtle populations in the western North 
Atlantic. U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-444, 115 pp.
    NOAA Fisheries National Task Force for Improving Marine Mammal and 
Turtles Stock Assessment. September 2004. A Requirements Plan for 
Improving Understanding of the Status of U.S. Protected Species.

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

    Dated: November 28, 2005.
Donna Wieting,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-23537 Filed 11-30-05; 8:45 am]
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