[Federal Register Volume 70, Number 141 (Monday, July 25, 2005)]
[Rules and Regulations]
[Pages 42508-42510]
From the Federal Register Online via the Government Publishing 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]
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