05-14619. 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:

Final rule.

SUMMARY:

NMFS is allowing 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, when acting in the course of his or her official duties, to take endangered sea turtles encountered in the marine environment if such taking is necessary to aid a sick, injured, or entangled endangered sea turtle, or dispose of 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:

Effective August 24, 2005.

FOR FURTHER INFORMATION CONTACT:

Therese Conant, phone: [phone], fax:[phone].

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 which allows appropriate handling of sick, injured, entangled, or dead threatened sea turtles found in the marine environment. 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.

Surveying, documenting and 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' Sea Turtle Stranding and Salvage Network (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. The FWS grants authority to each state with an official ESA section 6 agreement 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 is granting authority under ESA 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 is issuing this final programmatic permit by regulation pursuant to section 10(a)(1)(A). Implementing this section 10(a)(1)(A) provides consistency with FWS regulations that allow such activities on land as described in 50 CFR 17.21. For a description of the activities related to the STSSN, see the proposed rule published on March 29, 2005 (70 FR 15800).

Comments on the Proposed Rule and Changes to the Final Rule

NMFS did not receive any public comments germane to the proposed rule. However, upon further internal agency review, NMFS is making two minor changes to clarify the requirements of the final rule. First, NMFS is requiring that all equipment (tagging equipment, tape measures, etc.) that comes in contact with turtles exhibiting fibropapilloma, be cleaned with a mild bleach solution. Fibropapilloma is a tumor-forming and debilitating transmissible disease of sea turtles. A herpes virus and retrovirus have been identified in association with fibropapilloma, but the etiology of the disease has not been determined. Cleaning equipment that has come in contact with fibropapilloma turtles may help prevent transmission. Second, NMFS is replacing the specification that passive integrated transponder (PIT) tags be applied 'subcutaneously' with a specification that such tags will be applied according to best practice and approved scientific protocols. This is necessary to ensure that the most current protocols are used. Protocols are based on the results of directed research (permitted through separate actions) for development of tagging methods, and are conveyed through annual STSSN training programs and through published literature (e.g., The World Conservation Union Marine Turtle Specialist Group's 2002 Research and Management Techniques for the Conservation of Sea Turtles).

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. This final rule authorizes activities that clearly provide a bona fide and desirable benefit to the enhancement and survival of endangered sea turtles.

For the reasons described above, the Assistant Administrator for Fisheries has determined that this permit by regulation complies with section 10 of the ESA. The activity and the exceptions provided for in this permit by regulation are being undertaken in good faith. No individual or organization receives any financial gain or any career advancement as a result of their volunteer activities for the STSSN. Further, the activity will increase the probability, for each rescued endangered sea turtle, of survival and reproduction of that sea turtle. This activity can therefore operate only to the advantage of endangered species involved. Further, this activity is consistent with relevant purposes and policy set forth in ESA section 2. The STSSN was established for the sole purpose of the conservation of endangered sea turtles. Maintaining a stranding network is identified as a recovery task in all federal sea turtle recovery plans. NMFS is using its authority under 10(a)(1)(A) to issue this regulation for the specific purpose of conserving endangered sea turtles. While the STSSN and the rescuing of endangered sea turtles does not impact water resources in any state, it is worth noting that the STSSN is at its heart a cooperative effort between NMFS, FWS and state conservation agencies.

Classification

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule does not contain new reporting or recordkeeping requirements.

This final rule does not duplicate, overlap or conflict with other Federal rules.

This final rule does not limit state policymaking or preempt state law and, therefore, does not contain policies with federalism implications under Executive Order 13132.

For the proposed rule, 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 the rule, if adopted, would 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. The factual basis for the certification was published in the proposed rule. No comments were received regarding the economic impacts of this action. As a result, no regulatory flexibility analysis was prepared.

Dated: July 20, 2005.

James W. Balsiger,

Acting Deputy Assistant 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 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, § 222.310 is added to read as follows:

§ 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 § 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 inserted according to best practice, approved scientific protocols, 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.

(3) When handling turtles exhibiting fibropapilloma, all equipment (tagging equipment, tape measures, etc.) that comes in contact with the turtle shall be cleaned with a mild bleach solution.

(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

(5) Such other information as the Assistant Administrator, or authorized representative, may require.