[Federal Register Volume 59, Number 139 (Thursday, July 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17512]


[[Page Unknown]]

[Federal Register: July 21, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 940793-4193; I.D. 060994A]
RIN 0648-AG37

 

Sea Turtle Conservation; Shrimp Trawling Requirements

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would allow 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). Existing regulations provide for the issuance of an 
incidental take permit for endangered sea turtles.

DATES: Written comments must be received by August 22, 1994.

ADDRESSES: Comments on this proposed rule, and requests for copies of 
the Environmental Assessment (EA) for this proposed rule, should be 
addressed to William W. Fox, Jr., Ph.D., Director, Office of Protected 
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Heather Weiner, Endangered Species 
Division, (301) 713-2319; 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) 893-3366.

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 1990, the National Academy of Sciences (NAS) completed a review 
of the biology of sea turtles and the causes and extent of their 
decline. The NAS concluded that incidental capture in shrimp trawls 
without turtle excluder devices (TEDs) is by far the leading cause of 
human-induced mortality to sea turtles at sea, but that collectively, 
activities in the non-shrimp fisheries constitute the second largest 
source of mortality. The study identified finfish trawls, seine nets, 
pompano gillnets, and various passive fishing gear, such as sink 
gillnets, weirs, traps and longlines, as potential sources of mortality 
to sea turtles.
    Because threatened sea turtles are often incidentally taken in 
state coastal fisheries, NMFS established a regulatory framework that 
requires the use of TEDs on most shrimp trawls and allows NMFS to 
impose measures with respect to shrimp trawl and other fisheries to 
protect sea turtles, such as the use of limited tow times, the 
requirement to carry observers, and the closure of certain areas (57 FR 
57348, December 4, 1992). Under this framework, measures are 
implemented as temporary restrictions, which is a time-consuming, 
repetitious, and short-term means to accomplish conservation measures 
for sea turtles. For example, NMFS has implemented many temporary 
restrictions allowing the North Carolina shrimp fishery to comply with 
tow-time limits as an alternative to using TEDs in areas of high algae 
concentrations (see 58 FR 48975, September 21, 1993).
    As an addition to the regulatory framework governing state 
fisheries in which listed species of sea turtles are incidentally 
taken, NMFS is proposing a rule that would extend section 10 permit 
regulations to all threatened species of sea turtles. Section 
10(a)(1)(B) of the ESA authorizes the Secretary of Commerce (Secretary) 
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.
    While sections 9 and 10 and corresponding regulations apply to 
species listed as endangered, they may be applied to threatened species 
as well, pursuant to section 4(d) of the ESA. Section 4(d) provides 
that the Secretary issue such regulations as deemed necessary and 
advisable to provide for the conservation of such species. For example, 
for those threatened species whose taking is prohibited by NMFS (such 
as salmon (50 CFR 227.21) and Guadalupe fur seal (50 CFR 227.11)), NMFS 
has promulgated special regulations that allow incidental takings of 
such species in compliance with a section 10 incidental take permit. 
Although NMFS has extended the section 9 takings prohibitions to 
threatened sea turtles (50 CFR 227.71(a)), the exceptions to the 
prohibitions contained in 50 CFR 227.72 do not provide for the issuance 
of an incidental take permit. This rule, as proposed, would make it 
possible to issue such permits for the taking of threatened sea 
turtles.
    The extension of the section 10 incidental take permit exception to 
threatened sea turtles would allow the same substantive protective 
measures that can be implemented, and the same fishing activities that 
can be carried out, as under the current regulatory framework, while 
eliminating the procedural shortcomings of the regulatory framework, 
such as the short duration of the rules and the length of time required 
to issue rules. Incidental take permits are not intended to undermine 
the TED-use requirement or the taking prohibition in general. 
Furthermore, the regulatory framework would remain in effect for any 
entity that has not been issued an incidental take permit. This 
proposed rule would provide an additional means whereby non-Federal 
entities can engage in commercial fishing practices while affording 
adequate protection to both endangered and threatened sea turtles.
    Through the implementation of this proposed rule, NMFS would accept 
and consider incidental take permit applications from non-Federal 
entities, such as individuals, businesses, municipalities, fishery 
organizations and state agencies. NMFS anticipates that it would invite 
state agencies, which are responsible for regulating state fisheries, 
to apply for general permits that would cover specific fisheries known 
or believed to incidentally take threatened or endangered sea turtles. 
This would be more efficient than requiring permits for individual 
vessels. It would also allow the states to assume management of 
fisheries through the permits, which are limited to activities within 
the territorial sea.
    The general permit procedures in 50 CFR part 220, as well as the 
endangered species permit requirements in 50 CFR part 222, would 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 proposed 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 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), 1335 East-West Highway, Silver Spring, MD 
20910, and to the Office of Information and Regulatory Affairs, Office 
of Management and Budget, Washington, D.C. 20503 (Attn: Paperwork 
Reduction Act 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 proposed rule, if adopted, would not have significant economic 
impact on a substantial number of small entities because the proposed 
rule establishes a discretionary permitting procedure that will, by 
itself, have no economic impact on fisherman. As a result, a regulatory 
flexibility analysis was not prepared.
    The AA prepared an EA for this 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: July 13, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 227 is 
proposed to be 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, 222.2(a) and 222.22(a).
* * * * *
[FR Doc. 94-17512 Filed 7-20-94; 8:45 am]
BILLING CODE 3510-22-P