Skip to Content


Endangered Species; File No. 15338

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble


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


Notice; receipt of application.


Notice is hereby given that David N. Hata, Ph.D., Virginia Polytechnic Institute and State University (Virginia Tech), has applied in due form for a permit pursuant to the Endangered Species Act of 1973, as amended (ESA). The Permit application is for the incidental take of ESA-listed sea turtles and shortnose sturgeon associated with otherwise lawful research to assess horseshoe crab abundance from the southern coast of Long Island, New York through the Eastern Shore, Virginia, and in Delaware Bay. The duration of the proposed Permit is 10 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 must be received at the appropriate address or fax number (see ADDRESSES) on or before April 19, 2010.


The application is available for download and review at​pr/​permits/​esa_​review.htm, found under the section heading ESA Section 10(a)(1)(B) Permits and Applications.

The application is also available upon written request or by appointment in the following office: Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2322; fax (301)713-4060.

Written comments should be addressed to Sara McNulty, Marine Mammal and Sea Turtle Conservation Division, NMFS Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD, 20910; or by fax (301)713-4060, or by e-mail at:

Start Further Info


Sara McNulty (ph. 301-713-2322, fax 301-713-4060).

End Further Info End Preamble Start Supplemental 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: Shortnose sturgeon (Acipenser brevirostrum), loggerhead (Caretta caretta), green (Chelonia mydas), leatherback (Dermochelys coriacea), hawksbill (Eretmochelys imbricata) and Kemp's ridley (Lepidochelys kempii) sea turtles. In addition, Atlantic sturgeon (Acipenser oxyrinchus), a candidate species for listing, may be affected.


NMFS received an application from Dr. Hata on August 26, 2009. Based on Start Printed Page 13256a review of the application, NMFS determined that the application was incomplete and requested further information. The applicant submitted a revised application on January 19, 2010. 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 trawl surveys along the coastal mid-Atlantic and Delaware Bay. The coastal mid-Atlantic survey will consist of two regional surveys; (1) The Coastal Delaware Bay Area survey, which extends from shore out 22.2 kilometers (12 nautical miles), and from the Eastern Shore of Virginia (37° 10' N) north to Atlantic City, New Jersey (39° 20' N), and (2) The New York Apex survey, which extend from shore out 22.2 kilometers (12 nautical miles), and from 39° 20' N north along the New Jersey coast and east along the southern coast of Long Island to Montauk Point, New York (71° 50' W). The Delaware Bay survey will be conducted in Delaware and New Jersey state jurisdictional waters deeper than three meters (10 feet) in Delaware Bay west of the territorial sea demarcation line. 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. Sampling will consist of approximately 27 days at sea annually, for a total of 140 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, when horseshoe crabs are more susceptible to the gear. However, boat traffic and the presence of fixed fishing gear may restrict sampling to daylight hours, depending on the location. The proposed activity will be conducted in the fall, between early September and 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 that the coastal trawl survey effort will annually capture 24 loggerhead, 21 Kemp's ridley, and 4 green sea turtles, with up to one sea turtle mortality each year. Additionally, the application anticipates 7 loggerhead, 6 Kemp's ridley, and 1 green sea turtle will be captured in the Delaware Bay trawl survey, with no mortalities expected. 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 estimates are low. Based on available data, the application does not anticipate the capture of shortnose sturgeon in the coastal or Delaware Bay trawl survey effort. The application anticipates the annual capture of 11 Atlantic sturgeon, in the coastal trawl survey effort and 9 Atlantic sturgeon in the Delaware Bay trawl survey, with near 100% survival.

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.

Start Signature

Dated: March 11, 2010.

David Cottingham,

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

End Signature End Supplemental Information

[FR Doc. 2010-5982 Filed 3-18-10; 8:45 am]