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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [I.D. 082205A]

# AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce

# ACTION:

Notice of permit issuance.

# SUMMARY:

Notice is hereby given of that NMFS issued on August 17, 2005, an incidental take permit 1529 to David N. Hata, Ph.D., Virginia Polytechnic Institute and State University (Virginia Tech) pursuant to the Endangered Species Act of 1973, as amended (ESA). As required by the ESA, the application includes a conservation plan designed to minimize and mitigate any such take of endangered or threatened species. The Permit application is for the incidental take of ESA-listed sea turtles associated with otherwise lawful research to assess horseshoe crab abundance from Cape Cod, Massachusetts south to the Georgia-Florida border. The duration of the proposed Permit is for 7 years. 

# ADDRESSES:

The application, permit, and related documents are available in the following office by appointment:

                        Marine Mammal and Turtle Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. The application and conservation plan is also available for download at                        *http://www.nmfs.noaa.gov/​prot_​res/​PR3/​Permits/​ESAPermit.html*.                    

# FOR FURTHER INFORMATION CONTACT:

Therese Conant (ph. 301-713-1401, fax 301-427-2522, e-mail Therese.Conant@noaa.gov.)

# SUPPLEMENTARY INFORMATION:

Section 9 of the ESA and Federal regulations prohibit the “taking” of a species listed as endangered or threatened. The term “take” is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may issue permits, under limited circumstances, to take listed species incidental to, and not the purpose of, otherwise lawful activities. Section 10(a)(1)(B) of the ESA provides for authorizing incidental take of listed species. NMFS regulations governing permits for threatened and endangered species are promulgated at 50 CFR 222.307.

## Species Covered in This Notice

                    The following species are included in the conservation plan and Permit application: Loggerhead (                    *Caretta caretta*), green (                    *Chelonia mydas*), leatherback (                    *Dermochelys coriacea*), hawksbill (                    *Eretmochelys imbricata*), and Kemp's ridley (                    *Lepidochelys kempii*) sea turtles.                

## Background

NMFS received an application from Dr. Hata on April 2, 2004. Based on a review of the application, NMFS determined that the application was incomplete and requested further information. The applicant submitted a revised application on January 10, 2005. NMFS published a notice of receipt and requested comment on the revised application (70 FR 19733, April 14, 2005). No comments were received.

The application is for incidental take of ESA-listed species that may result from proposed research. The proposed research activity will consist of annual horseshoe crab abundance monitoring surveys and associated studies to evaluate survey methodology. The annual trawl surveys will provide abundance, distribution and demographic information in support of the horseshoe crab Fishery Management Plan of the Atlantic States Marine Fisheries Commission. The surveys will be conducted from Cape Cod, Massachusetts to the Georgia-Florida border. Sampling consists of approximately 48 days at sea for a total of 250 tows deploying flounder and whelk trawls intended to capture horseshoe crabs for examination and enumeration. Tows will be no longer than 15 minutes of bottom time and will be conducted at night from mid-August through mid-November. Turtle excluder devices will not be installed in the trawl gear because these devices may hinder capture of horseshoe crabs. Thus, it is anticipated that fish and sea turtles will be captured by the unmodified gears. The application anticipates the annual capture of one lethal or non-lethal leatherback, one lethal or non-lethal hawksbill, one lethal and 3 non-lethal green, 2 lethal and 34 non-lethal loggerheads, one lethal and 15 non-lethal Kemp's ridley sea turtles in 48 days of sampling. The lethal take numbers are based on a 3 percent mortality rate which is the rate published for trawl fisheries with less than a 40 minute tow time (NMFS Southeast Fisheries Science Center Tech. Memo. NMFS-SEFSC-455 2002).
      ( print page 51757)    

## Conservation Plan

The conservation plan prepared by the applicant describes measures designed to monitor, minimize, and mitigate the incidental takes of ESA-listed sea turtles. The conservation plan includes limiting sampling effort in areas and times where sea turtles are likely to be present; avoiding coral and rock habitats associated with hawksbills and areas of submerged aquatic vegetation associated with green turtles; using minimal tow durations; avoiding areas of high fishing vessel activity which may attract foraging sea turtles and may increase the chance of multiple captures.

All activities will be conducted under the direct supervision of scientific parties from Virginia Tech. Sampling will not be conducted when sea turtles are observed in the area. If a sea turtle is captured, all efforts will be made to release the turtle as quickly as possible with minimal trauma. If necessary, resuscitation will be attempted as proscribed by 50 CFR 223.206. Scientific parties will be familiarized with resuscitation techniques prior to surveys, and a copy of the resuscitation guidelines will be carried aboard the vessel during survey activities. In the event resuscitation is unsuccessful, the sea turtle will be transferred to the sea turtle stranding network of the appropriate jurisdiction. Other monitoring or mitigation actions will be undertaken as required.

The applicant considered and rejected three other alternatives: Not applying for a permit; conducting the research in an area where ESA-listed species do not occur; and using different sampling gear when developing their conservation plan.

Upon a review of the application, relevant documents, public comments, and further discussions with NCDMF, NMFS found that the application met the criteria for issuance of 50 CFR 222.307(c). Permit 1529 was issued on August 17, 2005, and expires on December 15, 2011.

Dated: August 26, 2005.

Thomas C. Eagle,

Acting Chief, Marine Mammal and Turtle Division, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 05-17343 Filed 8-30-05; 8:45 am]

BILLING CODE 3510-22-S