[Federal Register Volume 72, Number 248 (Friday, December 28, 2007)]
[Proposed Rules]
[Pages 73745-73747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25268]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 071214845-7848-01]
RIN 0648-XE13


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), NationalOceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of petition finding; request for information and 
comments.

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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

[[Page 73746]]

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: 301-427-2522, 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 301-713-2322, 
fax 301-427-2522, or e-mail [email protected]; Christina Fahy by 
phone 562-980-4023, fax 562-980-4027, or e-mail 
[email protected]).

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[deg] 42'12'' N. and 64[deg] 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 km\2\) of the Exclusive Economic Zone from 
45[deg]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[deg] 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

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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.
[FR Doc. E7-25268 Filed 12-27-07; 8:45 am]
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