[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
