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Receipt of an Application for Incidental Take Permit (1529)

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Information about this document as published in the Federal Register.

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


Notice of availability.


NMFS has received an application for an incidental take permit (Permit) from 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, shortnose sturgeon, smalltooth sawfish, and Atlantic salmon 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 6 years. NMFS is furnishing this notice in order to allow other agencies and the public an opportunity to review and comment on this document. All comments received will become part of the public record and will be available for review.


Written comments from interested parties on the Permit application and Plan must be received at the appropriate address or fax number (see ADDRESSES) no later than 5 p.m. Eastern daylight time on May 16, 2005.


Requests for copies of the application, cited literature, and written comments on this action should be addressed to Therese Conant, Marine Mammal and Turtle Division, NMFS Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD, 20910; or by fax (301) 427-2522, or by e-mail at: The application is available for download and review at​pr/​permits/​review.htm.

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Therese Conant (ph. 301-713-1401, fax 301-427-2522, e-mail Comments received will also be available for public inspection, by appointment, during normal business hours by calling 301-713-1401.

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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. Other species that may be affected are: Shortnose sturgeon (Acipenser brevirostrum), smalltooth sawfish (Pristis pectinata), and Atlantic salmon (Salmo salar).


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. 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 Start Printed Page 19734border. 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 green, 12 lethal and 28 non-lethal loggerheads, 4 lethal and 9 non-lethal Kemp's ridley sea turtles in 48 days of sampling. The lethal take numbers are based on a 29 percent mortality rate which is the higher rate published for trawl fisheries (Henwood and Stuntz, 1987; Epperly et al., 1995). However, those rates are based on commercial fishing conditions where trawl tow times often exceed 60 minutes. The tow times described in the application will not exceed a 15 minute bottom time—a submergence period that sea turtles are able to survive. Thus, the mortality rate is likely much lower then 29 percent.

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, or using different sampling gear when developing their conservation plan.

This notice is provided pursuant to section 10(c) of the ESA and the National Environmental Policy Act (NEPA) regulations (40 CFR 1506.6). NMFS will evaluate the application, associated documents, and comments submitted thereon to determine whether the application meets the requirements of the NEPA regulations and section 10(a) of the ESA. If it is determined that the requirements are met, a permit will be issued for incidental takes of ESA-listed sea turtles under the jurisdiction of NMFS. The final NEPA and permit determinations will not be completed until after the end of the 30-day comment period and will fully consider all public comments received during the comment period. NMFS will publish a record of its final action in the Federal Register.

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Dated: April 11, 2005.

P. Michael Payne,

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

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[FR Doc. 05-7516 Filed 4-13-05; 8:45 am]