E7-25268. Listing Endangered and Threatened Wildlife and Designating Critical Habitat; 90-day Finding for a Petition to Revise the Critical Habitat Designation for the Leatherback Turtle

AGENCY:

National Marine Fisheries Service (NMFS), National

Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of petition finding; request for information and comments.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), announce a 90-day finding for a petition to revise leatherback turtle (Dermochelys coriacea) critical habitat under the Endangered Species Act of 1973, as amended (ESA). The leatherback turtle is currently listed as endangered throughout its range, and critical habitat consists of Sandy Point Beach and adjacent waters, St. Croix, U.S. Virgin Islands. The petition seeks to include waters along the U.S. West Coast as critical habitat. We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted.

We are initiating a review of the critical habitat of the species to determine whether the petitioned action is warranted. To ensure a comprehensive review, we solicit information and comments pertaining to this species' essential habitat needs from any interested party.

DATES:

Written comments and information related to this petition finding must be received [see ADDRESSES] by February 26, 2008.

ADDRESSES:

You may submit comments, identified by [0648-XE13], by any one of the following methods: (1) Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at http://www.regulations.gov; (2) Fax: [phone], attention: Therese Conant; and (3) mail: addressed to the Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Therese Conant by phone [phone], fax [phone], or e-mail [e-mail]; Christina Fahy by phone [phone], fax [phone], or e-mail [e-mail]).

SUPPLEMENTARY INFORMATION:

Background

Critical habitat is defined in the ESA (16 U.S.C. 1531 et seq.) as:

“(i) the specific areas within the geographical area occupied by the species, at the time it is listed... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed... upon a determination by the Secretary that such areas are essential for the conservation of the species.”

Our implementing regulations (50 CFR 424.12) describe those essential physical and biological features to include, but not be limited to: (1) space for individual and population growth, and normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring; and (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distribution of a species. We are required to focus on the primary constituent elements (PCEs), which best represent the principal biological or physical features. PCEs may include, but are not limited to: nesting grounds, feeding sites, water quality, tide, and geological formation. Our implementing regulations (50 CFR 424.02) define “special management considerations or protection” as any method or procedure useful in protecting physical and biological features of the environment for the conservation of the species.

Section 4(b)(2) of the ESA requires us to designate and make revisions to critical habitat for listed species based on the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any particular area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned. We are required to consider whether the petition contains information indicating that areas petitioned contain physical and biological features essential to, and that may require special management to provide for, the conservation of the species. Section 4(b)(3)(D)(i) of the ESA requires us to make a finding as to whether a petition to revise critical habitat presents substantial scientific information indicating that the revision may be warranted. Our implementing regulations (50 CFR 424.14) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In determining whether substantial information exists, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the Federal Register. If we find that a petition presents substantial information indicating that the revision may be warranted, within 12 months after receiving the petition, we are required to determine how we intend to proceed with the requested revision and promptly publish notice of such intention in the Federal Register. See ESA Section 4(b)(3)(D)(ii).

Analysis of Petition

On October 2, 2007, we received a petition from the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network (Petitioners) to revise the leatherback sea turtle critical habitat designation. Current critical habitat consists of terrestrial shoreline at Sandy Point Beach, St. Croix, U.S. Virgin Islands (50 CFR 17.95), and adjacent waters up to and inclusive of the waters from the hundred fathom curve shoreward to the level of mean high tide with boundaries at 17° 42′12″ N. and 64° 50′00″ W (50 CFR 226.207). The Petitioners seek to revise the critical habitat designation to include the area we currently manage under the authority of the Magnuson-Stevens Fishery Conservation and Management Act to reduce leatherback interactions in the California/Oregon drift gillnet fishery targeting swordfish and thresher shark. This area encompasses roughly 200,000 square miles (321,870 km²) of the Exclusive Economic Zone from 45°deg; N latitude about 100 miles (160 km) south of the Washington/Oregon border southward to Pt. Sur and along a diagonal line due west of Pt. Conception, California, and west to 129° W longitude. Under the current regulations implementing the Highly Migratory Species Fishery Management Plan, drift gillnet gear is prohibited in this area from August 15^th through November 15^th (50 CFR 660.713).

The petition contains a detailed description of the species' natural history and status, including information on distribution and movements, feeding and prey selection, reproduction, population status and trends, and factors contributing to the current status of the species in the Pacific Ocean. The petition describes the marine area off Oregon and California as unique, characterized by distinctive oceanographic and geomorphic features that create a dynamic and highly productive ecosystem. The petition describes oceanographic conditions such as upwellings (i.e., the movement of nutrient-rich subsurface waters to the surface) that favor increased zooplankton production. The petitioners cite studies indicating a positive relationship with leatherback presence and these conditions (Benson et al., 2007a) and that leatherbacks migrate to and forage in the area (Benson et al., 2007b).

The Petitioners claim the petitioned area provides space for population growth and normal behavior and is a known crucial feeding site for leatherbacks. The Petitioners believe the area contains physical and biological features essential to the conservation of leatherback sea turtles. They offer that the PCEs should be those habitat components that are essential for feeding, resting, migrating, and include all marine waters, along with associated marine aquatic flora and fauna in the water column, and the underlying marine benthic community. The petitioners argue that the area requires special management considerations as evidenced by the existing measures to reduce leatherback interactions with fisheries. They claim the area should be managed for other fisheries, marine debris, vessel strikes, oil spills, coastal development, and changing ocean conditions brought on by global warming.

Finally, the Petitioners request that, if we determine some portion of the petitioned area does not meet the criteria for critical habitat, we analyze whether some subset of this area should be designated as critical habitat.

Petition Finding

Based on the above information and information readily available in our files, and pursuant to criteria specified in 50 CFR 424.14(c), we find the petitioners present substantial scientific information indicating that a revision to the critical habitat designation for leatherbacks may be warranted. Our Southwest Fisheries Science Center has conducted research on leatherbacks foraging within and migrating through the petition area. Several female leatherbacks nesting in Indonesia made trans-Pacific post-nesting migrations to foraging areas off the coasts of Oregon and Washington (Benson et al., 2007a; Benson unpublished data, 2007). Benson et al., (2007b) found that leatherbacks associate with areas along the U.S. West Coast where nutrient-rich, upwelling water is entrained nearshore. These areas provide increased retention of zooplankton, larval fish, crabs, and gelatinous organisms and represent important foraging grounds for leatherbacks.

To ensure that the review to revise critical habitat for leatherbacks is complete and based on the best available data, we solicit information and comments on whether the petitioned area, or some subset, or some adjacent areas along the U.S. West Coast, qualify as critical habitat. Areas that include the physical and biological features essential to the conservation of the species and that may require special management considerations or protection should be identified. As stated earlier, essential features include, but are not limited to, space for individual growth and for normal behavior, food, water, air, light, minerals, or other nutritional or physiological requirements, cover or shelter, sites for reproduction and development of offspring, and habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of the species (50 CFR 424.12).

We request that all data, information, and comments be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address (see ADDRESSES).

Peer Review

OMB issued its Final Information Quality Bulletin for Peer Review on December 16, 2004. The Bulletin went into effect June 16, 2005, and generally requires that all “influential scientific information” and “highly influential scientific information” disseminated on or after that date be peer reviewed. Because the information used to evaluate this petition may be considered “influential scientific information,” we solicit the names of recognized experts in the field that could serve as peer reviewers of such information we may disseminate as we evaluate this petition. Independent peer reviewers will be selected from the academic and scientific community, applicable tribal and other Native American groups, Federal and state agencies, the private sector, and public interest groups.

References Cited

Benson, S.R., K.A. Forney, J.T. Harvey, J.V. Carretta, and P.H. Dutton. 2007a. Abundance, distribution, and habitat of leatherback turtles (Dermochelys coriacea) off California, 1990-2003). Fisheries Bulletin. 105:337-347.

Benson, S.R., P.H. Dutton, C. Hittipeuw, B. Samber, J. Bakarbessy, and D. Parker. 2007b. Post-Nesting Migrations of Leatherback Turtles (Dermochelys coriacea) from Jamursba-Medi, Bird's Head Peninsula, Indonesia. Chelonian Conservation and Biology. 6(1):150-154.

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

Dated: December 20, 2007.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.