[Federal Register Volume 70, Number 141 (Monday, July 25, 2005)]
[Rules and Regulations]
[Pages 42508-42510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14619]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 050224044-5185-02; 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: Final rule.

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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: 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 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)

[[Page 42509]]

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. Sec.  
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.

0
For the reasons set forth in the preamble, 50 CFR part 222 is amended 
as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
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.

0
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 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

[[Page 42510]]

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.

[FR Doc. 05-14619 Filed 7-22-05; 8:45 am]
BILLING CODE 3510-22-S