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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 223
          - [I.D. 111805A]

# AGENCY:

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

# ACTION:

Notice of decision on petition.

# SUMMARY:

The National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce, announces its denial of a petition for rulemaking submitted by Oceana. Oceana failed to request specific and discrete actions that are properly within the scope of a rulemaking petition pursuant to the Administrative Procedure Act (APA); instead the petitioner challenged the agency's general pattern, practice, or policy. NMFS is denying the petition because the agency is already addressing aspects of the petition and has determined that additional regulations dictating the choice of method used to achieve agency goals are unwarranted at this time.

# FOR FURTHER INFORMATION CONTACT:

                        Barbara Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail                         *barbara.schroeder@noaa.gov*).                    

# SUPPLEMENTARY INFORMATION:

## Petition Request

On August 4, 2005, Oceana submitted a petition requesting NMFS to promulgate the following regulations:

(1) Conduct in-water population level assessments. The petition requests that NMFS use in-water survey techniques, such as trawl or aerial surveys to obtain supplemental population assessment information for those species for which nesting beach survey data are available among other things, Oceana cites the Turtle Expert Working Group (TEWG 2000) recommendations to improve datasets and data-gathering methods in order to support its petition;

(2) Increase observer coverage to obtain accurate information on the number of sea turtles caught in all fisheries. The petition requests that NMFS promulgate regulations that increase coverage. The petition cites the TEWG statement that observer coverage over a statistically valid portion of the fishing effort throughout the range of sea turtles is necessary to accurately estimate catch and mortality; and

(3) Establish a quantitative method for determining take limits for biological opinions. The petition claims that NMFS fails to provide a quantitative rationale for incidental take specified in its biological opinions. The petition mentions several NMFS' evaluations of quantitative models for sea turtles, including the Potential Biological Removal (PBR) model used for marine mammals. Finally, the petition refers to the August 2004 workshop convened by NMFS to develop an analytical framework for conducting jeopardy analyses under the Endangered Species Act (ESA) and identify options for assessing species' risk when data are limited. The petition requests that NMFS adopt regulations immediately to insure that biological opinions use a standardized method to make decisions.
      ( print page 72100)    

## Analysis of Petition and Decision

NMFS carefully considered the information contained in the petition and supporting documents, and made the final determinations for each portion of the petition as follows.

*Petition Component (1): Conduct In-water Population Level Assessments*

The petition fails to provide any new information that justifies the need for regulations that would change the agency's general pattern or practice regarding data collection and analytical methodologies. NMFS is aware of the TEWG's assessments of the current datasets and is already working to improve the empirical data that define where, how many, and at what life stage and condition sea turtles may be encountered. NMFS is also conducting and supporting in-water research in many Atlantic states, as well as conducting aerial surveys in the mid-Atlantic to better assess sea turtle distribution and abundance. NMFS has built upon the TEWG recommendations by developing a requirements plan (NOAA 2004) to improve our understanding of the status of U.S. sea turtle populations. The requirements plan reviews the current sea turtle population assessment program in terms of present research capability and capacity, and delineates the resources necessary to acquire reliable assessment information to fully address identified data requirements. NMFS has addressed, and will continue to address, both the substance of this petitioned action and the TEWG recommendations through existing research planning documents and programs. Improvement of NMFS' research program is a matter left to the agency's discretion; it is not a specific and discrete action that is properly within the scope of a petition for rulemaking pursuant to APA 5 U.S.C. 553(e). Accordingly, NMFS denies this component of the petition.

*Petition Component (2): Increase Observer Coverage to Obtain Accurate Information on the Number of Sea Turtles Caught in All Fisheries*

Oceana has previously petitioned NMFS to develop and implement a workplan for placing observers on enough fishing trips to provide statistically reliable bycatch estimates in all fisheries (67 FR 19154; April 18, 2002). In its response to that petition, NMFS explained that even though observers are effective in many fisheries, they may not be appropriate for all fisheries (68 FR 11501, March 11, 2003). NMFS is continuing to expand and modernize observer programs for Federal commercial fisheries. NMFS recognizes that improving monitoring programs should increase our understanding of sea turtle interactions, but constraints on agency resources and logistical difficulties (e.g., small boats) make it difficult to monitor the extent of sea turtle interactions in state-managed and recreational fisheries. NMFS is exploring various observer options that could allow for more comprehensive, longer term monitoring of sea turtle-fishery interactions across fishing sectors and jurisdictional boundaries, but this on going effort is still in its early stages. Options may include placing observers in fisheries of concern pursuant to authority under the Endangered Species Act (ESA). In light of NMFS' previous denial of a substantially similar petitioned action and the agency's ongoing efforts to improve observer coverage, granting this petitioned action is unwarranted at this time.

*Petition Component (3): Establish a New, Uniform Quantitative Method for Determining Take Limits for Biological Opinions*

NMFS is interested in maintaining consist ESA section 7 jeopardy analyses in its biological opinions, while taking into account the wide variability in listed species' biology, as well as the wide variability in available information on them. To this end, NMFS convened a workshop in August 2004 as a first step in vetting the ESA section 7 biological opinion assessment framework. NMFS is still in the process of adding features such as identifying a suite of quantitative and qualitative methods for use in both data-sparse and data-rich situations, as well as testing and refining the applicability of the methods using information typical to section 7 consultations.

Any structured decision approach adopted by NMFS must, in the overall jeopardy evaluation, weigh such qualitative factors as severity of injury, significance of behavioral responses, and extent and severity of habitat disturbance. Approaches for evaluating take levels for biological opinions should contain options suitable to the varied species, available data sets, and actions under consideration. Use of any particular quantitative model such as PBR for every evaluation is inappropriate. Moreover, section 7 of the ESA and its implementing regulations do not require NMFS to estimate incidental take quantitatively. When promulgating the section 7 regulations in 1986, NMFS and the U.S. Fish and Wildlife Service explicitly declined to endorse the use of numerical estimates of incidental take in all cases. In many biological opinions, a description of the extent of take is used because the loss of habitat resulting in death or injury of individuals may have more significant adverse consequences than the direct loss of a certain number of individuals (51 FR 19953, June 3, 1986). Where Federal actions 'take' threatened or endangered species by altering the species' habitat, it is often impossible to translate the habitat lost into numerical estimates of the number of individuals taken. Consequently, numerical estimates are not appropriate to every consultation, and requiring them through rulemaking could reduce the protections listed species currently receive.

The analytical framework for evaluating take levels in biological opinions is not yet completed and has not been fully tested. NMFS has determined that it is premature to consider rulemaking to adopt the framework, or any other uniform decision approach, at this time. Thus, NMFS denies this component of the petition.

## References Cited

Turtle Expert Working Group. 2000. Assessment update for the Kemp's ridley and loggerhead sea turtle populations in the western North Atlantic. U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-444, 115 pp.

NOAA Fisheries National Task Force for Improving Marine Mammal and Turtles Stock Assessment. September 2004. A Requirements Plan for Improving Understanding of the Status of U.S. Protected Species.

Authority:16 U.S.C. 1531*et seq.*

Dated: November 28, 2005.

Donna Wieting,

Deputy Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 05-23537 Filed 11-30-05; 8:45 am]

BILLING CODE 3510-22-S