[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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