8956 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Public Land Order 7115

[UT–942–1430–01; UTU–52338]

Partial Revocation of Executive Order

of April 17, 1926, Public Water Reserve

107 Withdrawal; Utah

AGENCY: Bureau of Land Management.

ACTION: Public land order.

SUMMARY: This order revokes Executive

Order of April 17, 1926, insofar as it

affects 40.84 acres of public land

withdrawn as a public water reserve.

The land is no longer needed for the

purpose of the withdrawal, and the

revocation is needed to permit disposal

of the land through a land exchange

under the authority of the Federal Land

Policy and Management Act of 1976.

This action will open the land to surface

entry, and to mining for

nonmetalliferous minerals. The land has

been and will remain open to mineral

leasing and mining for metalliferous

minerals.

EFFECTIVE DATE: March 20, 1995.

FURTHER FOR FURTHER INFORMATION

CONTACT: Randy Massey, BLM Utah

State Office, P.O. Box 45155, Salt Lake

City, Utah 84145–0155.

By virtue of the authority vested in

the Secretary of the Interior by Section

204 of the Federal Land Policy and

Management Act of 1976, 43 U.S.C.

1714 (1988), it is ordered as follows:

1. Executive Order of April 17, 1926,

which withdrew public land containing

springs and water holes as public water

reserves, is hereby revoked insofar as it

affects the following described land:

Salt Lake Meridian

T. 11 N., R. 19 W.,

Sec. 4, lot 1;

The area described contains 40.84 acres in

Box Elder County.

The land described above is no longer

needed for the purpose for which

withdrawn. There is no water on the

parcel, nor evidence of any in the past.

2. At 9 a.m. on March 20, 1995, the

land will be opened to the operation of

the public land laws generally, subject

to valid existing rights, the provision of

existing withdrawals, other segregations

of record, and the requirements of

applicable law. All valid applications

received at or prior to 9 a.m. on March

20, 1995 shall be considered as

simultaneously filed at that time. Those

received thereafter shall be considered

in the order of filing.

3. At 9 a.m. on March 20, 1995 the

land will be opened to location and

entry for nonmetalliferous minerals

under the United States mining law,

subject to valid existing rights, the

provision of existing withdrawals, other

segregations of record, and the

requirements of applicable law.

Appropriation of any of the land

described in this order under the

general mining laws prior to the date

and time of restoration is unauthorized.

Any such attempted appropriation,

including attempted adverse possession

under 30 U.S.C. 38 (1988), shall vest no

rights against the United States. Acts

required to establish a location and to

initiate a right of possession are

governed by State law where not in

conflict with Federal law. The Bureau of

Land Management will not intervene in

disputes between rival locators over

possessory rights since Congress has

provided for such determinations in

local courts.

Dated: February 6, 1995.

Bob Armstrong,

Assistant Secretary of the Interior.

[FR Doc. 95–3893 Filed 2–15–95; 8:45 am]

BILLING CODE 4310–DQ–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 227

[Docket No. 950201033–5033–01; I.D.

041294E]

RIN 0648–AG37

Sea Turtle Conservation; Shrimp

Trawling Requirements

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: This final rule allows nonFederal 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). Under

existing regulations, the prohibitions of

section 9 of the ESA apply to both

endangered and threatened species, but

section 10 incidental take permits may

be authorized for endangered, but not

threatened, species of sea turtles. This

regulation corrects this discrepancy in

the application of sections 9 and 10 to

threatened species of sea turtles.

EFFECTIVE DATE: March 20, 1995.

ADDRESSES: Requests for copies of the

Environmental Assessment (EA) for the

proposed rule, should be addressed to

Endangered Species Division, Office of

Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD

20910.

FOR FURTHER INFORMATION CONTACT:

Heather Weiner, Endangered Species

Division, 301–713–1401; 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, 813–570–

5312.

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 a proposed rule published on July

21, 1994 (59 FR 37213), NMFS proposed

to extend existing incidental-take permit

regulations to all threatened species of

sea turtles as authorized under section

10(a)(1)(B) of the ESA. Section 10

authorizes the Secretary of Commerce 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.

Comments and Responses on the

Proposed Rule

NMFS received responses from four

commenters, including the U.S.

Department of the Interior, regarding the

proposed rule. Commenters were

generally supportive of the proposed

rule, but expressed some concerns about

permit issuance and review. NMFS

reviewed all comments in detail and

combined their common concerns for

response.
Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Rules and Regulations 8957

Comment: Incidental take permits

imply acceptance of the killing of

threatened and endangered species.

Granting exceptions to the ESA

undermines the intent of the Act.

Protective regulations for threatened

species impacted by non-Federal

entities should be issued under section

4(d) of the Act instead of through

section 10 permits. If section 10 permits

are allowed, then they should not be

used as a means to avoid the required

use of turtle excluder devices in shrimp

fisheries.

Response: Section 10(a)(1)(B) of the

ESA explicitly provides that the

Secretary may permit any taking

otherwise prohibited by section

9(a)(1)(B) if such taking is incidental to,

and not the purpose of, the carrying out

of an otherwise lawful activity. The

intent of this provision of the ESA is to

allow non-Federal entities to carry out

an activity that may incidentally take

endangered species without

jeopardizing the species, thereby

extending the same allowance for

Federal actions to non-Federal actions.

Section 4(d) of the ESA allows NMFS to

apply this provision and the takings

prohibition of section 9, to threatened as

well as endangered species.

As a Federal action that may affect

listed species, the proposed issuance of

a section 10 incidental take permit must

be accompanied by a section 7

consultation. Through the consultation

process, NMFS must ensure that the

activity conducted under the permit,

including the conservation plan, is not

likely to jeopardize the listed species.

This is the same substantive

requirement applicable to regulations.

Comment: The section 10 incidental

take permit program should require

adequate Federal oversight of permits

and conditions. NMFS must deny

general permits to states unless there are

adequate assurances that state

applicants have the requisite legal

authority, resources, and commitment to

administer a statewide general permit

under the required conservation plan. A

conservation plan should provide for

the registration of all vessels covered by

the permit, observers on a substantial

portion of the vessels, onshore and

aerial observations, and procedures to

halt the activity if conditions are being

violated. In addition, applicants must

demonstrate that they have sufficient

resources and interest to provide

adequate monitoring and enforcement of

permit conditions, including an

effective turtle stranding network to

monitor mortalities.

Response: Both section 10 of the ESA

and NMFS regulations (50 CFR

222.22(b)(5)) require permit applicants

to include a detailed conservation plan

that specifies (among other things) the

steps that will be taken to monitor,

minimize, and mitigate the activity’s

impacts on listed species. The

conservation plan must also detail the

funding available to implement these

measures. In addition, one of the criteria

used to determine issuance is the

availability of effective monitoring

techniques. Conservation plans for

incidental take permits for commercial

fisheries that incidentally take sea

turtles may include requirements such

as observer coverage, aerial surveys, and

a monitoring network to document

turtle strandings as necessary,

depending on the activity involved.

If the permit holder fails to comply

with the conditions of the permit or

with any applicable laws or regulations

governing the conduct of the permitted

activity, then NMFS may suspend or

revoke the permit pursuant to 50 CFR

227.27. In a state that has an authorized

general section 10 permit, those vessels

that wish to conduct an activity covered

by the permit must apply to NMFS for

a certificate of inclusion. Certificates of

inclusion may also be suspended or

revoked if the certificate holder fails to

comply with the applicable terms of the

permit.

Comment: Adequate procedural

safeguards should be added to ensure

that interested parties receive timely

notice and meaningful opportunity to

comment on applications for incidental

take permits.

Response: Under existing NMFS

regulations (50 CFR 222.24) and

guidelines, a notice of receipt of a

completed permit application is

published in the Federal Register with

a 30-day comment period. The permit

application is then distributed to

interested parties for review and

comment. All comments received are

reviewed and considered prior to final

agency action on the permit application.

In addition, any commenter may request

a hearing. Specific questions raised by

reviewers are directed anonymously to

the applicant for reply. If the issuance

of the permit may significantly affect the

human environment, then an

environmental assessment is prepared,

as required by the National

Environmental Policy Act. Because

issuance of an incidental take permit is

a Federal action that may affect the

listed species, consultation pursuant to

section 7 is required. The permit

application may be altered, denied or

issued based on the public comments

and environmental compliance reviews.

NMFS will make every effort to ensure

that comments are adequately

responded to in the applicable section 7

consultations and environmental

assessments.

Comment: NMFS recently issued a

joint policy with the U.S. Fish and

Wildlife Service (USFWS) regarding

Habitat Conservation Plans (HCPs)

under section 10 of the ESA. This policy

should not apply to section 10 permits

for sea turtles because the conservation

plans do not involve private ownership,

but address the taking of public

resources from public trust waters.

Response: NMFS agrees. The ‘‘No

Surprises’’ policy states that the purpose

of the policy is to provide assurances to

non Federal landowners participating in

Habitat Conservation Planning that ‘‘no

additional land restrictions or financial

compensation will be required from an

HCP permittee for species adequately

covered by a properly functioning HCP

in light of unforeseen or extraordinary

circumstances.’’

Comment: Permits should be issued

for periods not to exceed 1 year because

conditions may change altering the

necessity for exemptions and

modifications to existing ESA rules

governing turtles.

Response: NMFS agrees that

circumstances may change that alter the

conditions of the activity or the status

of the species, thereby requiring

alterations to the terms of the permit.

However, NMFS regulations set neither

a minimum nor maximum time limit to

incidental take permits. Regulations at

50 CFR 222.22(e) state that the duration

of the permit is related to the duration

of the proposed activities, as well as the

possible positive and negative effects

associated with issuing a permit of the

proposed duration. Rather than

requiring annual renewals of all section

10 permits, NMFS may require either

periodic renewals or reviews and, if

needed, require applicable

modifications. The timing of that review

will depend on the nature of the

permitted activity, and will be set as a

condition of the permit. Additionally,

permit holders will be required to

submit reports on the implementation of

and activities conducted under the

conservation plan.

Final Regulations and Changes From

the Proposed Rule

The purpose of this final rule is to

amend the existing regulations to allow

NMFS to authorize incidental take

permits for threatened, as well as

endangered, species of sea turtles. The

final regulations are identical to those

published in the proposed rule. NMFS

has determined that no changes to the

text of the regulations are necessary.

The general permit procedures in 50

CFR part 220, as well as the endangered
8958 Federal Register / Vol. 60, No. 32 / Thursday, February 16, 1995 / Rules and Regulations

species permit requirements in 50 CFR

part 222, 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 final rule has been determined to

be not significant for purposes of E.O.

12866.

This rule contains a collection-ofinformation requirement subject to the

Paperwork Reduction Act (PRA). This

requirement has been approved

previously by the Office of Management

and Budget (OMB) (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), 1315 East-West Highway, Silver

Spring, MD 20910, and to the Office of

Information and Regulatory Affairs,

OMB, Washington, D.C. 20503 (Attn:

PRA 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

final rule will not have significant

economic impact on a substantial

number of small entities because the

final rule establishes a discretionary

permitting procedure that will, by itself,

have no economic impact. As a result,

a regulatory flexibility analysis was not

prepared.

The AA prepared an EA for the

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: February 10, 1995.

Nancy Foster,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 227 is 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 § 227.72, paragraph (e)(1)

introductory text is revised and

paragraph (e)(7) is added to read as

follows:

§ 227.72 Exceptions to prohibitions.

* * * * *

(e) * * * (1) General. The prohibitions

against taking in § 227.71(a) do not

apply to the incidental take of any

member of any species of sea turtle

listed in § 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

§ 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 §§ 220.3, 222.1, 222.2(a)

and 222.22(a).

* * * * *

[FR Doc. 95–3816 Filed 2–15–95; 8:45 am]

BILLING CODE 3510–22–F

50 CFR Part 625

[Docket No. 950206038–5038–01; I.D.

#103194A]

RIN 0648–XX04

Summer Flounder Fishery; Final

Specifications for 1995

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final specifications for the 1995

summer flounder fishery.

SUMMARY: NMFS issues the final

specifications for the 1995 summer

flounder fishery, which include

commercial catch quotas and mesh size

requirements. The intent of this

document is to comply with

implementing regulations for the fishery

that require NMFS to publish measures

for the upcoming fishing year that will

prevent overfishing of the summer

flounder resource. In order to comply

with an Order issued by the U.S. District

Court for the Eastern District of Virginia,

this document adds 3.05 million lb (1.4

million kg) to the final commercial

catch quota established under the

implementing regulations.

EFFECTIVE DATE: February 10, 1995.

ADDRESSES: Copies of the

Environmental Assessment and

supporting documents used by the

Monitoring Committee are available

from: Executive Director, Mid-Atlantic

Fishery Management Council, Room

2115, Federal Building, 300 S. New

Street, Dover, DE 19901–6790.

FOR FURTHER INFORMATION CONTACT:

Hannah Goodale, 508–281–9101.

SUPPLEMENTARY INFORMATION: The

Fishery Management Plan for the

Summer Flounder Fishery (FMP) was

developed jointly by the Atlantic States

Marine Fisheries Commission (ASMFC)

and the Mid-Atlantic Fishery

Management Council (Council) in

consultation with the New England and

South Atlantic Fishery Management

Councils. The management unit for the

FMP is summer flounder (Paralichthys

dentatus) in U.S. waters of the Atlantic

Ocean from the southern border of

North Carolina northward to the

Canadian border. Implementing

regulations for the fishery are found at

50 CFR part 625.

Section 625.20 specifies the process

for setting annual management

measures for the summer flounder

fishery. Pursuant to § 625.20, the

Director, Northeast Region, NMFS,

implements certain measures for the

fishing year to ensure achievement of

the appropriate fishing mortality rate.

These measures include the following,

which, with the exception of measure

(1) below, are unchanged from the

proposed 1995 specifications that were

published in the Federal Register on

December 2, 1994 (59 FR 61864); note

that all quota figures are rounded for the

convenience of the reader: (1) A

coastwide commercial quota of 14.7

million lb (6.7 million kg); (2) a

coastwide recreational harvest limit of

7.8 million lb (3.5 million kg); (3) no

change from the present minimum

commercial fish size of 13 inches (33

cm); and (4) no change in the present

minimum mesh restriction of 5.5-inch

(14.0 cm) diamond or 6-inch (15.2 cm)

square.