[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Proposed Rules]
[Pages 319-335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31310]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0808061067-91396-01]
RIN 0648-AX06


Endangered and Threatened Species: Proposed Rule To Revise the 
Critical Habitat Designation for the Endangered Leatherback Sea Turtle

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose 
revising the current critical habitat for the leatherback sea turtle 
(Dermochelys coriacea) by designating additional areas within the 
Pacific Ocean. Specific areas proposed for designation include two 
adjacent marine areas totaling approximately 46,100 square miles 
(119,400 square km) stretching along the California coast from Point 
Arena to Point Vincente; and one 24,500 square mile (63,455 square km) 
marine area stretching from Cape Flattery, Washington to the Umpqua 
River (Winchester Bay), Oregon east of a line approximating the 2,000 
meter depth contour. The areas proposed for designation comprise 
approximately 70,600 square miles (182,854 square km) of marine 
habitat. Other Pacific waters within the U.S. Exclusive Economic Zone 
(EEZ) were evaluated based on the geographical area occupied by the 
species, but it was decided to exclude those areas from the critical 
habitat designation because the potential costs outweighed the benefits 
of critical habitat designation and exclusion would not result in the 
extinction of the species. We are soliciting comments from the public 
on all aspects of the proposal, including information on the economic, 
national security, and other relevant impacts. We will consider 
additional information received prior to making a final designation.

DATES: Comments and information regarding this proposed rule must be 
received by March 8, 2010.

ADDRESSES: You may submit comments, identified by RIN 0648-AX06, 
addressed to: David Cottingham, Chief, Marine Mammal and Sea Turtle 
Conservation Division, by any of the following methods:

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     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal http://www.regulations.gov.
     Facsimile (fax): 301-713-4060, Attn: David Cottingham.
     Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, NMFS, Office of Protected Resources, 1315 East West Highway, 
Silver Spring, MD 20910.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. NMFS may elect not to post comments 
that contain obscene or threatening content. 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 (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only. The proposed rule, list of references and supporting 
documents, including the biological report, economic report, IRFA 
analysis, and 4(b)(2) report, are also available electronically at 
http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents.

FOR FURTHER INFORMATION CONTACT: Sara McNulty, NMFS, Office of 
Protected Resources, 301-713-2322; Elizabeth Petras, NMFS Southwest 
Region, 562-980-3238; Steve Stone, NMFS Northwest Region, 503-231-2317.

SUPPLEMENTARY INFORMATION:

Background

    The leatherback sea turtle was listed as endangered throughout its 
range on June 2, 1970 (35 FR 8491). Pursuant to a joint agreement, the 
U.S. Fish and Wildlife Service (USFWS) has jurisdiction over sea 
turtles on the land and NMFS has jurisdiction over sea turtles in the 
marine environment. The USFWS initially designated critical habitat for 
leatherbacks on September 26, 1978 (43 FR 43688). The critical habitat 
area consists of a strip of land 0.2 miles (0.32 kilometers) wide (from 
mean high tide inland) at Sandy Point Beach on the western end of the 
island of St. Croix in the U.S. Virgin Islands. On March 23, 1979, NMFS 
designated the marine waters adjacent to Sandy Point Beach as critical 
habitat from the hundred fathom (182.9 meters) curve shoreward to the 
level of mean high tide (44 FR 17710).
    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 critical habitat 
designation. The Petitioners sought to revise the designation to 
include the area currently managed under the authority of the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act to 
reduce leatherback interactions in the California/Oregon drift gillnet 
fishery targeting swordfish and thresher sharks. This area encompasses 
roughly 200,000 square miles (321,870 square km) of the U.S. EEZ from 
45[deg] N. latitude about 100 miles (160 km) south of the Washington/
Oregon border southward to Point Sur, California and along a diagonal 
line due west of Point Conception, California, and west to 129[deg] W. 
longitude. Under the current regulations implementing the Highly 
Migratory Species Fishery Management Plan, the use of large mesh drift 
gillnet gear is prohibited in this area from August 15th through 
November 15th (50 CFR 660.713).
    On December 28, 2007, we announced our 90-day finding that the 
petition provided substantial scientific information indicating that 
the petitioned action may be warranted (72 FR 73745). We did not meet 
the statutory deadline of October 2, 2008 for deciding whether to 
proceed with a proposed designation and the Petitioners filed a lawsuit 
seeking to compel that decision. Per the settlement agreement, we 
agreed to submit this finding to the Federal Register by December 4, 
2009. We were then granted an extension to submit this finding by 
December 31, 2009.
    When initially evaluating the petition to designate critical 
habitat off the U.S. West Coast, we reviewed a variety of data sources 
to identify specific areas within and adjacent to the petitioned area 
that might warrant consideration as critical habitat. Due to the 
extensive movements of leatherback sea turtles throughout the U.S. West 
Coast within the U.S. EEZ, we determined that areas adjacent to the 
petitioned area should also be considered. Additionally, the petitioned 
area included waters outside the U.S. EEZ, however, joint NMFS and FWS 
regulations provide that areas outside of U.S. jurisdiction not be 
designated as critical habitat (50 CR 424.12(h)), so any areas outside 
of the U.S. EEZ were excluded from our analysis. Therefore, this CH 
analysis evaluated approximately 292,600 square miles (757,833 square 
km) of Pacific waters within the U.S. West Coast EEZ.
    We considered various alternatives to the critical habitat 
designation for the leatherback sea turtle. The alternative of not 
designating critical habitat for leatherbacks would impose no economic, 
national security, or other relevant impacts, but would not provide any 
conservation benefit to the species. This alternative was considered 
and rejected because such an approach does not meet the legal 
requirements of the ESA and would not provide for the conservation of 
the species. The alternative of designating all potential critical 
habitat areas (i.e., no areas excluded) also was considered and 
rejected because, for a number of areas, the economic benefits of 
exclusion outweighed the benefits of inclusion, and we determined that 
exclusion of these areas would not significantly impede conservation or 
result in extinction of the species. The total estimated annualized 
economic impact associated with the designation of all potential 
critical habitat areas would be $3.8 million to $25.5 million 
(discounted at 7 percent) or $3.5 million to $25 million (discounted at 
3 percent). An alternative to designating critical habitat within all 
of the areas considered for designation is the designation of critical 
habitat within a subset of those areas. Under section 4(b)(2) of the 
ESA, we must consider the economic impacts, impacts to national 
security, and other relevant impacts of designating any particular area 
as critical habitat. NMFS has the discretion to exclude an area from 
designation as critical habitat if the benefits of exclusion (i.e., the 
impacts that would be avoided if an area were excluded from the 
designation) outweigh the benefits of designation (i.e., the 
conservation benefits if an area were designated), so long as exclusion 
of the area will not result in extinction of the species. Exclusion 
under section 4(b)(2) of the ESA of one or more of the particular areas 
considered for designation would reduce the total impacts of 
designation. The determination of which particular areas and how many 
to exclude depends on NMFS' ESA 4(b)(2) analysis, which is conducted 
for each area and described in detail in the 4(b)(2) report. Under the 
preferred alternative, we propose to exclude 5 out of 8 areas 
considered. The total estimated economic impact associated with this 
proposed rule is $3.1 million to $20.4 million (discounted at 7 
percent) or $2.8 million to $20 million (discounted at 3 percent).

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We believe that the exclusion of these areas would not significantly 
impede conservation or result in the extinction of the leatherback sea 
turtle. We selected this alternative because it would result in a 
critical habitat designation that provides for the conservation of the 
species while reducing the economic impacts on entities. This 
alternative also meets ESA and joint NMFS and USFWS regulations 
concerning critical habitat.

Leatherback Natural History

    The leatherback is the sole remaining member of the taxonomic 
family Dermochelyidae. All other extant sea turtles belong to the 
family Cheloniidae. Leatherbacks are the largest marine turtle, with a 
curved carapace length (CCL) often exceeding 150 cm and front flippers 
that can span 270 cm (NMFS and USFWS, 1998). The leatherback's slightly 
flexible, rubber-like carapace is distinguishable from other sea 
turtles that have carapaces with bony plates covered with horny scutes. 
In adults, the carapace consists mainly of tough, oil-saturated 
connective tissue raised into seven prominent ridges and tapered to a 
blunt point posteriorly. The carapace and plastron are barrel-shaped 
and streamlined. Leatherbacks display several unique physiological and 
behavioral traits that enable this species to inhabit cold water, 
unlike other chelonid species. These include a countercurrent 
circulatory system (Greer et al., 1973), a thick layer of insulating 
fat (Goff and Lien, 1988; Davenport et al., 1990), gigantothermy 
(Paladino et al., 1990), and the ability to elevate body temperature 
through increased metabolic activity (Southwood et al., 2005; Bostrom 
and Jones, 2007). These adaptations enable leatherbacks to extend their 
geographic range farther than other species of sea turtles.
    The leatherback life cycle is broken into several stages: (1) Egg/
hatchling; (2) post-hatchling; (3) juvenile; (4) sub-adult; and (5) 
adult. There is still uncertainty regarding the age at first 
reproduction. The most recent study, based on skeletochronological data 
from scleral ossicles, suggests that leatherbacks in the western North 
Atlantic may not reach maturity until 29 years of age (Avens et al., 
2009), which is longer than earlier estimates (Pritchard and Trebbau, 
1984: 2-3 years; Rhodin, 1985: 3-6 years; Zug and Parham, 1996: 13-14 
years for females; Dutton et al., 2005: 12-14 years for leatherbacks 
nesting in the U.S. Virgin Islands). The average size of reproductively 
active females is generally 150-162 cm CCL for Atlantic, western 
Pacific, and Indian Ocean populations, and 140-150 cm CCL for eastern 
Pacific populations (Hirth et al., 1993; Starbird and Suarez, 1994; 
Benson et al., 2007a; Benson et al., 2007d). However, females as small 
as 105-125 cm CCL have been observed nesting at various sites (Stewart 
et al., 2007). Rhodin et al. (1996) speculated that extreme rapid 
growth may be possible in leatherbacks due to a mechanism that allows 
fast penetration of vascular canals into the fast growing cartilaginous 
matrix of their bones. Whether the vascularized cartilage in 
leatherbacks serves to facilitate rapid growth, or some other 
physiological function, has not yet been determined.
    Female leatherbacks typically nest on sandy, tropical beaches at 
intervals of 2 to 4 years (McDonald and Dutton, 1996; Garcia and Sarti, 
2000; Spotila et al., 2000). Females lay clutches of approximately 100 
eggs several times during a nesting season, typically at 8-12 day 
intervals. Female leatherbacks appear to exhibit more variable nesting 
site fidelity than cheloniids and may nest at more than one beach in a 
single season (Eckert et al., 1989a; Keinath and Musick, 1993; 
Steyermark et al., 1996; Dutton et al., 2005). This nesting behavior 
has been observed in the western Pacific Ocean; one female nesting on 
Jamursba-Medi, Indonesia was observed nesting approximately 30 km east 
on Wermon, Indonesia a few weeks later (S. Benson, NMFS, April 2006, 
pers. comm.).
    A comparison of sex ratios between Atlantic and some Pacific 
nesting populations suggests that Pacific populations may be more 
female biased (Binckley et al., 1998) than Atlantic populations 
(Godfrey et al., 1996; Turtle Expert Working Group, 2007). However, 
caution is necessary when making basin-wide comparisons because only 
one study was conducted in the Pacific (Binckley et al., 1998) and sex 
ratios may vary by beach or even clutch. Chevalier et al. (1999) 
compared temperature-dependent sex determination patterns between the 
Atlantic (French Guiana) and the Pacific (Playa Grande, Costa Rica) and 
found that the range of temperatures producing both sexes was 
significantly narrower for the Atlantic population.
    Reliable estimates of survival and mortality at different life 
history stages are not easily obtained. The annual mortality for 
leatherbacks that nested at Playa Grande, Costa Rica, was estimated to 
be 34.6 percent in 1993-1994 and 34.0 percent in 1994-1995 (Spotila et 
al., 2000). Leatherbacks nesting in French Guiana and St. Croix had 
estimated annual survival rates of 91 percent (Rivalan et al., 2005b) 
and 89 percent (Dutton et al., 2005) respectively. For the St. Croix 
population, the average annual juvenile survival rate was estimated to 
be approximately 63 percent, and the total survival rate from hatchling 
to first year of reproduction for a female was estimated to be between 
0.4 and 2 percent, given an assumed age at first reproduction between 9 
and 13 years (Eguchi et al., 2006). Spotila et al. (1996) estimated 
first year survival rates for leatherbacks at 6.25 percent. Individual 
female leatherbacks have been observed to reproduce as long as 25 years 
(Hughes, 1996; D. Dutton, Ocean Planet Research, Inc., August 2009, 
pers. comm.). The data suggest that leatherbacks follow a life history 
strategy similar to many other long-lived species that delay age of 
maturity, have low and variable survival in the egg and juvenile 
stages, and have relatively high and constant annual survival in the 
subadult and adult life stages (Spotila et al., 1996; 2000; Crouse, 
1999; Heppell et al., 1999; 2003; Chaloupka, 2002).
    Leatherbacks have the most extensive range of any living reptile 
and have been reported circumglobally throughout the oceans of the 
world (Marquez, 1990; NMFS and USFWS, 1998). Leatherbacks can forage in 
the cold temperate regions of the oceans, occurring at latitudes as 
high as 71[deg] N. and 47[deg] S.; however, nesting is confined to 
tropical and subtropical latitudes. In the Pacific Ocean, significant 
nesting aggregations occur primarily in Mexico, Costa Rica, Indonesia, 
the Solomon Islands, and Papua New Guinea. In the Atlantic Ocean, 
significant leatherback nesting aggregations have been documented on 
the west coast of Africa, from Guinea-Bissau south to Angola, with 
dense aggregations in Gabon. In the wider Caribbean Sea, leatherback 
nesting is broadly distributed across 36 countries or territories with 
major nesting colonies (> 1,000 females nesting annually) in Trinidad, 
French Guiana, and Suriname (Dow et al., 2007). In the Indian Ocean, 
nesting aggregations are reported in South Africa, India and Sri Lanka. 
Leatherbacks have not been reported to nest in the Mediterranean Sea.
    Migratory routes of leatherbacks are not entirely known. However, 
recent satellite telemetry studies have documented transoceanic 
migrations between nesting beaches and foraging areas in the Atlantic 
and Pacific Ocean basins (Ferraroli et al., 2004; Hays et al., 2004; 
James et al., 2005; Eckert, 2006; Eckert et al., 2006; Benson et al., 
2007a). In a single year, a leatherback may swim more than 10,000 
kilometers (Eckert, 2006; Eckert et al., 2006). Leatherbacks

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nesting in Central America and Mexico migrate thousands of miles into 
tropical and temperate waters of the South Pacific (Eckert and Sarti, 
1997). After nesting, females from Jamursba-Medi, Indonesia, make long-
distance migrations across the equator either to the eastern North 
Pacific, westward to the Sulawasi and Sulu and South China Seas, or 
northward to the Sea of Japan (Benson et al., 2007a). One turtle tagged 
after nesting in July at Jamursba-Medi arrived in waters off Oregon in 
August (Benson et al., 2007a) coincident with seasonal maxima 
aggregations of jellyfish (Shenker, 1984; Suchman and Brodeur, 2005). 
Other studies similarly indicate that leatherbacks arrive along the 
Pacific coast of North America during the summer and fall months, when 
large aggregations of jellyfish form (Bowlby, 1994; Starbird et al., 
1993; Benson et al., 2007b; Graham, 2009). Leatherbacks primarily 
forage on cnidarians (jellyfish and siphonophores) and, to a lesser 
extent, tunicates (pyrosomas and salps) (NMFS and USFWS, 1998). Largely 
pelagic, leatherbacks forage widely in temperate waters and exploit 
convergence zones and upwelling areas in the open ocean along 
continental margins and in archipelagic waters (Morreale et al., 1994; 
Eckert, 1998; 1999).

Critical Habitat

    Section 4(b)(2) of the ESA requires NMFS to designate critical 
habitat for threatened and endangered species ``on the basis of 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.'' This section also grants the Secretary of Commerce 
(Secretary) discretion to exclude any area from critical habitat if he 
determines ``the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat.'' The Secretary's 
discretion is limited, as he may not exclude areas that ``will result 
in the extinction of the species.''
    The ESA defines critical habitat under section 3(5)(A) 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.''
    If critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement is additional to the section 7 requirement that Federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.

Methods and Criteria Used To Identify Critical Habitat

    In the following sections, we describe the relevant definitions and 
requirements in the ESA, our implementing regulations, and the key 
information and criteria used to prepare this proposed critical habitat 
designation. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations (50 CFR 423.12(a)), this proposed rule is 
based on the best scientific information available.
    To assist with the revision of leatherback critical habitat, we 
convened a critical habitat review team (CHRT) consisting of biologists 
from NMFS Headquarters, the Southwest and Northwest Regional Offices, 
and the Southwest and Northwest Fisheries Science Centers. The CHRT 
members had experience and expertise on leatherback biology, 
distribution and abundance of the species along the U.S. West Coast as 
it relates to oceanography, consultations and management, and/or the 
critical habitat designation process. The CHRT used the best available 
scientific data and their best professional judgment to: (1) Verify the 
geographical area occupied by the leatherbacks at the time of listing; 
(2) identify the physical and biological features essential to the 
conservation of the species that may require special management 
considerations or protection; (3) identify specific areas within the 
occupied area containing those essential physical and biological 
features; (4) evaluate the conservation value of each specific area; 
and (5) identify activities that may affect any designated critical 
habitat. The CHRT's evaluation and conclusions are described in detail 
in the following sections.

Physical or Biological Features Essential for Conservation

    Joint NMFS and USFWS regulations (50 CFR 424.12(b)) state that in 
determining what areas are critical habitat, the agencies ``shall 
consider those physical and biological features that are essential to 
the conservation of a given species and that may require special 
management considerations or protection.'' Features to consider may 
include, but are not limited to: ``(1) Space for individual and 
population growth, and for 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, germination, or seed dispersal; and generally; (5) Habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.'' The 
regulations also require agencies to ``focus on the principle 
biological or physical constituent elements'' (hereafter referred to as 
``Primary Constituent Elements'' or PCEs) within the specific areas 
considered for designation, which may include, but are not limited to, 
the following: spawning sites, feeding sites, water quality or 
quantity, geological formation, and tide.
    The northeastern Pacific Ocean is a highly variable environment 
where the habitat upon which leatherbacks and other marine species 
depend can change rapidly. Although some relatively permanent features 
are present, transient oceanographic features, such as eddies or 
fronts, are strong drivers of ecological interactions. The major 
current of the region is the southward-flowing California Current, 
which is the eastern boundary current within the North Pacific Ocean 
(Huyer, 1983; Hickey, 1979; 1998). The California Current is subject to 
significant variations in seasonal (Barber and Smith, 1981; Hutchings 
et al., 1995; Castelao et al., 2006), inter-annual (e.g. El 
Ni[ntilde]o: Barber and Chavez, 1983), and decadal (e.g. Pacific 
Decadal Oscillation (PDO) cycles: McGowan et al., 1998; 2003) time 
scales, adding variability to local productivity resulting from 
upwelling (Longhurst, 1996).
    Wind-driven coastal upwelling drives primary productivity within 
waters off the U.S. West Coast. As nutrient-rich water comes to the 
surface, phytoplankton blooms occur and are transported offshore. 
Productivity dissipates as upwelled waters move offshore (away from 
regions of upwelling) and phytoplankton deplete available nutrients 
(Thomas and Strub, 2001). Episodic intrusions of offshore, nutrient 
depleted water and offshore movement of nutrient-rich water occur 
throughout the year. The characteristics of coastal upwelling vary over 
the extent of the California Current, with upwelling north of Cape 
Blanco (~42.8[deg] N.) confined to a narrower band than upwelling 
farther south (Huyer, 1983;

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Brodeur et al., 2004). Seasonally, upwelling begins earlier and lasts 
longer in the southern California Current. The peak time of sea turtle 
sightings (July-September) in neritic waters corresponds to the period 
when intermittent relaxation of upwelling causes sea surface 
temperatures to increase to their warmest annual levels. During these 
relaxation events, there is less mixing of nutrient rich upwelled 
waters and greater retention of these waters near the coast.
    Eddy and frontal features are also critical elements of regional 
productivity. The interaction of the California Current and topographic 
features, such as banks, canyons, and other submerged features, as well 
as shoreline features, such as Cape Blanco, result in the formation of 
eddies, jets, and squirts (Barth et al., 2000). The most prominent 
regional eddy is the Juan de Fuca Eddy, which develops offshore of 
northern Washington at the mouth of the Strait of Juan de Fuca as a 
result of wind-driven current interaction with the continental slope 
(Hickey and Banas, 2003). The eddy is persistent from the spring 
through the fall and delivers nutrient-rich waters to the surface 
(Freeland and Denman, 1982; Hickey and Banas, 2003). Where eddy 
features interact with coastal waters, oceanic fronts are often found. 
Off Oregon and Washington, these frontal features tend to reoccur in 
the same places, such as near Cape Blanco in Oregon or off Vancouver 
Island and the coast of Washington (Freeland and Denman, 1982).
    Leatherbacks are often described as a pelagic species; however, it 
is becoming increasingly evident that they aggregate in productive 
coastal areas to forage on preferred jellyfish prey (scyphomedusae) 
(Houghton et al., 2006; Benson et al., 2007b; Witt et al., 2007). While 
their range spans the entire Pacific, occupation of the California 
Current is highly seasonal. Most of our current knowledge of 
leatherback turtle use of the California Current comes from recent and 
ongoing telemetry studies, aerial surveys, and ship-based research 
conducted primarily in the nearshore areas off central California. The 
telemetry work has documented trans-Pacific migrations between the 
western tropical Pacific and the California Current; however, it is 
difficult to define specific migratory corridors.
    There is likely an important temporal component to the arrival and 
departure of leatherbacks to and from key nearshore foraging areas. 
Current research has shown that leatherbacks clearly target the dense 
aggregations of brown sea nettle (Chrysaora fuscescens) that occur near 
the central California coast and north through Washington during summer 
and fall (Peterson et al., 2006; Harvey et al., 2006; Benson et al., 
2006; 2008). Leatherbacks have also been observed foraging on other 
scyphomedusae in this area, particularly moon jellies (Aurelia labiata) 
(Eisenberg and Frazier, 1983; S. Benson, NMFS, September 2007, pers. 
comm.). The CHRT hypothesized that leatherbacks are primarily 
transiting through offshore areas to get to these dense nearshore 
aggregations of scyphomedusae, and that the boundary between primary 
coastal foraging habitat and the offshore areas may vary seasonally and 
inter-annually with changing oceanographic conditions. In some years, 
the primary foraging habitat may be poor, or oceanographic features may 
deter migration into the nearshore habitat (Benson et al., 2007c), 
resulting in a more diffuse or offshore leatherback distribution.
    Although jellyfish blooms are seasonally and regionally 
predictable, their fine-scale local distribution is patchy and 
dependent upon oceanographic conditions. Some descriptive studies have 
been conducted on the distribution of scyphomedusae along the west 
coast of North America; however, much more information is needed to 
characterize the temporal variability from seasonal patterns to long-
term climate-linked variations. Moreover, it is ultimately the benthic 
polyp stages that contribute to seasonal and annual population 
variation of the adult medusae, and little information exists on their 
populations in open coastal systems, including the California Current 
upwelling system (W.M. Graham, University of South Alabama, September 
2009, pers. comm.). Graham et al. (2001) found that jellyfish tend to 
collect along boundaries: mesoscale oceanic fronts, local circulation 
patterns, thermoclines, haloclines, etc., and that scyphomedusae 
(specifically C. fuscescens) are closely linked to the physical 
structure of the water column and the dynamics of upwelling-related 
circulations. An important example is the Columbia River plume which 
can act to aggregate and retain jellyfish in the northern California 
Current (Shenker, 1984). These hydrographic features can be persistent 
or recurrent (seasonally) in space and time (Castelao et al., 2006).
    Prey concentrating forces may also be fixed in space and time 
associated with geomorphologic features (e.g. headlands, capes, 
seamounts, and canyons). Upwelling shadows (e.g. north Monterey Bay) 
are areas of sustained high productivity (Graham and Largier, 1997) and 
these areas are favorable for leatherback prey (Graham, 1994; Benson et 
al., 2007b). Features such as the Monterey Bay upwelling shadow often 
persist longer than other coastal fronts of similar length scale 
(Graham, 1993). C. fuscescens are highly abundant north of Cape Blanco 
off the Oregon Coast (Suchman and Brodeur, 2005; Reese, 2005) where 
leatherback occurrence has been documented from sighting records and 
telemetry studies (Bowlby, 1994; Benson et al., 2007a; 2007c). Reese 
(2005) found that A. labiata was frequently abundant south of Cape 
Blanco, off the coast of Crescent City, CA (~42[deg] N). Reese (2005) 
also described areas of persistent jellyfish abundance north and south 
of Cape Blanco and farther north along the Oregon coast inshore of 
Heceta Bank (~44[deg] N), all inshore of the 100m isobath line. The 
abundance of jellyfish close to shore may be enhanced by their need for 
substrate during the benthic stage of their lifecycle (Suchman and 
Brodeur, 2005). Jellyfish are largest and most abundant in coastal 
waters of California, Oregon, and Washington during late summer-early 
fall months (Shenker, 1984; Suchman and Brodeur, 2005; Graham, 2009), 
which overlaps with the time when turtles are most frequently sighted 
near Monterey Bay (Starbird, 1993; Benson et al., 2007b) and in Oregon 
and Washington waters (Bowlby, 1994).
    There is evidence that prey-concentrating hydrographic features can 
be influenced by El Nino and other climate forcing. Survey data has 
shown a poleward and offshore re-distribution of C. fuscescens during 
El Nino events (Lenarz et al., 1995). However, it is likely that the 
reliable availability of prey associated with fixed or recurrent 
physical features is the reason for the leatherbacks trans-Pacific 
migration from Western Pacific nesting beaches and their presence in 
neritic west coast waters during summer and fall.
    Jellyfish, and to a lesser extent tunicates (pyrosomas and salps), 
have a low nutritive value per unit biomass, although the nutritional 
value of the entire organism can be quite high in the case of large 
scyphomedusae (Doyle et al., 2007). Davenport and Balazs (1991) debated 
the hypothesis that the source of nutrients for leatherbacks may be 
from the stomach contents of the prey, rather than from the medusae and 
tunicates themselves. Leatherbacks consuming C. fuscescens might also 
ingest additional prey items found in the stomach contents of this 
jellyfish (Suchman et al., 2008). Regardless, leatherbacks must eat a 
massive amount of jellyfish per day, approximately 20-

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30 percent of their body weight compared to cheloniids, which eat 
approximately 2-3 percent of their body weight (Davenport and Balazs, 
1991). It has been estimated that an adult leatherback would need to 
eat about 50 large jellyfish (equivalent to approximately 200 liters) 
per day to maintain its nutritional needs (Bjorndal, 1997). 
Leatherbacks have been observed at or near the surface consuming C. 
fuscescens within upwelling shadows or oceanographic retention areas 
within neritic waters off central California (Benson et al., 2003; 
2007b); however, satellite-linked time-depth recorders suggest foraging 
can also occur at deeper offshore waters of the U.S. West Coast (S. 
Benson, NMFS, February 2006, pers. comm.). Leatherbacks likely select 
C. fuscescens as prey over other scyphomedusae species in neritic 
central California waters because C. fuscescens is larger and more 
nutritionally beneficial than other available scyphomedusae species 
(Graham, 2009). The CHRT considered areas as primary foraging habitat 
if they contain great densities of C. fuscescens; secondary foraging 
habitat if they contain A. labiata and some scattered C. fuscescens; 
and tertiary foraging habitat if they contain only scattered A. 
labiata.
    Although leatherbacks are capable of deep diving (Lutcavage and 
Lutz, 1997; Hays et al., 2004), the majority of their time is spent at 
or near the surface. Depth profiles developed for four leatherbacks 
tagged and tracked from Monterey Bay in 2000 and 2001 (using satellite-
linked dive recorders) showed that most dives were to depths of less 
than 100 meters and leatherbacks spent most of their time shallower 
than 80 meters. Dutton (NMFS, January 2004, pers. comm.) estimated that 
leatherbacks spend 75-90 percent of their time at depths of less than 
80 meters based on preliminary data analysis. Within neritic central 
California waters, leatherbacks spend approximately 50 percent of their 
time at or within one meter of the surface while foraging and over 75 
percent of their time within the upper five meters of the water column 
(Benson et al., 2007b). Leatherback turtles also appear to spend almost 
the entire dive time traveling to and from maximum depth, suggesting 
that efficient transit of the water column is of paramount importance 
(Eckert et al., 1989b). Leatherbacks have been observed periodically 
resting on the surface, presumably to replenish oxygen stores after 
repeated dives (Harvey et al., 2006; Benson et al., 2007b).

Primary Constituent Elements (PCEs)

    Based on the aforementioned information, the CHRT identified two 
PCEs essential for the conservation of leatherbacks in marine waters 
off the U.S. West Coast: (1) Occurrence of prey species, primarily 
scyphomedusae of the order Semaeostomeae (Chrysaora, Aurelia, 
Phacellophora, and Cyanea) of sufficient condition, distribution, 
diversity, and abundance to support individual as well as population 
growth, reproduction, and development; (2) Migratory pathway conditions 
to allow for safe and timely passage and access to/from/within high use 
foraging areas.
    When evaluating the second identified PCE, migratory pathway 
conditions or passage, the CHRT considered the type of activities that 
could affect or impede the passage of a leatherback turtle. After 
reviewing several potential types of impediments, the CHRT determined 
that only permanent or long-term structures that alter the habitat 
would be considered as having potential effects on passage. Given this 
determination, the CHRT did not consider fishing gear or vessel traffic 
as potential threats to passage.
    The CHRT considered a third PCE--water quality to support normal 
growth, development, viability, and health. This PCE would encompass 
bioaccumulation of contaminants and pollutants in prey and subsequent 
accumulation in leatherbacks as well as direct ingestion and contact 
with contaminants and pollutants. The CHRT eliminated this option 
because knowledge on how water quality affects scyphomedusae was 
lacking, and, where data were available, the CHRT believed prey 
condition, distribution, diversity, and abundance would encompass water 
quality considerations regarding bioaccumulation. The CHRT also felt 
that direct ingestion and contact with contaminants and pollutants 
would be encompassed in a direct effects analysis for the listed 
species. We encourage public comment on the exclusion of water quality 
as a PCE (see ADDRESSES).

Geographical Area Occupied and Specific Areas

    One of the first steps in the critical habitat revision process was 
to define the geographical area occupied by the species at the time of 
listing. As described above, leatherbacks are distributed 
circumglobally throughout the oceans of the world, and along the U.S. 
West Coast (including the petitioned area) within the U.S. EEZ. The 
CHRT reviewed a variety of data sources to identify specific areas 
within and adjacent to the petitioned area that contain one or more PCE 
requiring special management considerations or protection. Information 
reviewed included: turtle distribution data from nearshore aerial 
surveys (Peterson et al., 2006; Benson et al., 2006; 2007b; 2008; NMFS 
unpublished data); offshore ship sightings and fishery bycatch records 
(Bowlby, 1994; Starbird et al., 1993; Bonnell and Ford, 2001; NMFS SWR 
Observer Program, unpublished data); satellite telemetry data (Benson 
et al., 2007a; 2007c; 2008; 2009; NMFS unpublished data); distribution 
and abundance information on the preferred prey of leatherbacks 
(Peterson et al., 2006; Harvey et al., 2006; Benson et al., 2006; 
2008); bathymetry (Benson et al., 2006; 2008); and regional 
oceanographic patterns along the U.S. West Coast (Parrish et al., 1983; 
Shenker, 1984; Graham, 1994; Suchman and Brodeur, 2005; Benson et al., 
2007b).
    Joint NMFS and FWS regulations provide that areas outside of U.S. 
jurisdiction not be designated as critical habitat (50 CR 424.12(h)), 
so any areas outside of the U.S. EEZ were excluded from our analysis. 
Thus, the occupied geographic area under consideration for this 
designation was limited to areas along the U.S. West Coast within the 
U.S. EEZ from the Washington/Canada border to the California/Mexico 
border.
    The CHRT recognized that leatherback habitat use appears to vary 
seasonally and spatially. The boundaries chosen to define each specific 
area represent the CHRT's best estimate of where these turtles 
transition from foraging to migrating or where prey composition or 
abundances change. Most leatherback sightings occur in marine waters 
within the neritic zone. The species may pursue prey as far as the 
extent of mean lower low water (S. Benson, NMFS, September 2000, 
unpublished) so the CHRT considered this as the shoreward extent of 
distribution in those specific areas with documented nearshore 
distribution.
    The following paragraphs describe each specific area (shown on 
Figure 1) and summarize the data used to determine that each area is 
occupied by leatherbacks:
    Area 1: Nearshore area from Point Arena (peninsula where the Point 
Arena Lighthouse is located) to Point Sur California and offshore to 
the 200 meter isobath. The specific boundaries are the area bounded by 
Point Sur (36[deg]18'22'' N./121[deg]54'9'' W.) then north along the 
shoreline following the line of mean lower low water to Point Arena, 
California (38[deg]57'14'' N./123[deg]44'26'' W.) then west to 
38[deg]57'14'' N./123[deg]56'44'' W. then south along the 200 meter 
isobath

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to 36[deg]18'22'' N./122[deg]4'13'' W. then east to the point of origin 
at Point Sur. Leatherback presence is based on aerial surveys, 
shipboard sightings, and telemetry studies. This area is a principal 
California foraging area (Benson et al., 2007b) with high densities of 
primary prey species C. fuscescens occurring here seasonally from April 
to November (Graham, 1994).
    Area 2: Nearshore area from Cape Flattery, Washington, to Umpqua 
River (Winchester Bay), Oregon and offshore to a line approximating the 
2000 meter isobath. The specific boundaries are the area bounded by 
Winchester Bay, Oregon (at the tip of the south jetty) north along the 
shoreline following the line of mean lower low water to Cape Flattery, 
Washington (48[deg]23'10'' N./124[deg]43'32'' W.) then north to the 
U.S./Canada boundary at 48[deg]29'38'' N./124[deg]43'32'' W. then west 
and south along the line of the U.S. EEZ to 47[deg]57'38'' N./
126[deg]22'54'' W. then south along a line approximating the 2,000 
meter isobath that passes through points at 47[deg]39'55'' N./
126[deg]13'28'' W., 45[deg]20'16'' N./125[deg]21' W. to 43[deg]40'8'' 
N./125[deg]17' W. then east to the point of origin at Winchester Bay. 
Leatherback presence is based on aerial surveys, shipboard surveys, 
fishery interaction data, and telemetry studies. This area is the 
principal Oregon/Washington foraging area and includes important 
habitat associated with Heceta Bank, Oregon. The greatest densities of 
a primary prey species C. fuscescens occur north of Cape Blanco, Oregon 
and in shallow inner shelf waters (Suchman and Brodeur, 2005).
    Area 3: Nearshore area south of Area 2 from Umpqua River 
(Winchester Bay), Oregon, to Point Arena, California, shoreward of a 
line approximating the 2000 meter isobath. This line runs from 
43[deg]40' N./125[deg]17' W. through 43[deg]24'10'' N./125[deg]16' W., 
42[deg]39'3'' N./125[deg]7'37'' W., 42[deg]24'49'' N./125[deg]0'13'' 
W., 42[deg]3'17'' N./125[deg]9'51'' W., 40[deg]49'38'' N./
124[deg]49'29'' W., 40[deg]23'33'' N./124[deg]46'32'' W., to 
38[deg]57'14'' N./123[deg]56'44'' W. then east to Point Arena. 
Leatherback presence is based on aerial survey data. This area includes 
major upwelling centers between Cape Blanco, Oregon and Cape Mendocino, 
California and is characterized by cold sea surface temperatures 
(<13[deg] C) and great densities of the prey species A. labiata. 
Although leatherback use is limited, this area could experience greater 
use during warm water episodes such as an El Nino event.
    Area 4: Offshore area west and adjacent to Area 2 (see above). 
Includes waters west to a line from 47[deg]57'38'' N./126[deg]22'54'' 
W. southwest to 43[deg]40'8'' N./129[deg]1'30'' W. Leatherback presence 
is based on aerial surveys. This area is used primarily as a region of 
passage to/from Areas 2 and 5 (see below) although prey species are 
present and it is used as a secondary foraging area. This area contains 
large numbers of A. labiata and some C. fuscescens, with greater 
densities of C. fuscescens found east of Area 4 in Area 2.
    Area 5: Offshore area south and adjacent to Area 4 and west and 
adjacent to the northern portion of Area 3 (see above). This area 
includes all waters north of a line consistent with the California/
Oregon border and west to the boundary of the U.S. EEZ. Leatherback 
presence is based on aerial surveys, telemetry studies, and fishery 
interaction data. This area includes prey species within primary 
offshore foraging habitat and passage to Areas 2, 3 and 4 (see above).
    Area 6: Offshore area south and adjacent to Area 5 and west and 
adjacent to the southern portion of Area 3 (see above) offshore to a 
line connecting 42[deg] N./129[deg] W. and 38[deg]57'14'' N./
126[deg]22'55'' W. Leatherback presence is based on aerial surveys, 
telemetry studies, and fishery interaction data. This area includes 
prey species within secondary foraging habitat west of Cape Mendocino 
and passage between Area 5 (see above) and Area 7 (see below).
    Area 7: Nearshore area from Point Arena, California, to Point 
Vicente, California (35[deg]44'30'' N./118[deg]24'44'' W.), exclusive 
of Area 1 (see above) and offshore to a line connecting 38[deg]57'14'' 
N./126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W. This 
area includes waters surrounding the northern Santa Barbara Channel 
Islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa Islands). 
Leatherback presence is based on aerial surveys, telemetry studies, and 
fishery interaction data. This area includes prey species within 
secondary foraging areas characterized by ocean frontal zones west of 
the continental shelf that are occupied by aggregations of A. labiata 
and lower densities of C. fuscescens. The frontal zones are created by 
a series of quasi-permanent, retentive eddies or meanders, associated 
with offshore-flowing squirts and jets anchored at coastal promontories 
between Point Reyes and Point Sur, which create linkages between 
nearshore waters of Area 1 and offshore waters of the California 
Current. Telemetry data indicate that this area is commonly utilized by 
leatherbacks, particularly when jellyfish availability in Area 1 is 
poor. This area also provides passage to/from foraging habitat in Areas 
1, 5, and 6 (see above), often through the northern Santa Barbara 
Channel Islands during the spring and early summer months.
    Area 8: Extreme offshore area west and adjacent to Areas 6 and 7 
from the California/Oregon border then south of Area 7, including areas 
closer to the coast, along the U.S. EEZ to the U.S./Mexico border. The 
western and southern borders of Area 8 are the U.S. EEZ. This area 
includes waters surrounding the southern Santa Barbara Channel Islands 
(San Nicholas, Santa Barbara, Catalina, and San Clemente Islands). 
Leatherback presence is based on aerial surveys, telemetry studies, and 
fishery interaction data. This area includes prey species within 
tertiary foraging habitat characterized by warm, low salinity offshore 
waters and passage to/from foraging habitat in Areas 1, 5, 6, and 7 
(see above).
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP05JA10.012

BILLING CODE 3510-22-C

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes designation of ``specific 
areas outside the geographical areas occupied by the species at the 
time it is listed'' if those areas are determined to be essential to 
the conservation of the species. Joint NMFS and USFWS regulations (50 
CFR 424.12(e)) emphasize that the agency shall designate as critical 
habitat areas outside the geographical area presently occupied by a 
species only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species. At the present 
time we have not identified additional specific areas outside the 
geographic area occupied by leatherbacks that may be essential for the 
conservation of the species.

Special Management Considerations or Protections

    An occupied area may be designated as critical habitat if it 
contains physical and biological features that ``may require special 
management considerations or protection.'' Joint NMFS and USFWS 
regulations (50 CFR 424.02(j)) define ``special management 
considerations or protection'' to mean ``any methods or procedures 
useful in protecting physical and biological features of the 
environment for the conservation of listed species.'' The CHRT 
identified a number of activities that may threaten the identified 
PCEs, as impacts to the PCEs also impact the physical and biological 
features. The CHRT grouped these activities into eight

[[Page 327]]

activity types: Pollution from point sources (e.g. National Pollution 
Discharge Elimination System (NPDES)); runoff from agricultural 
pesticide use; oil spills; power plants; aquaculture; desalination 
plants; tidal energy or wave energy projects; and liquid natural gas 
(LNG) projects. All of these activities have the potential to affect 
the PCEs by altering prey abundance, prey contamination levels, and 
free passage between and within specific areas (Table 1). Some of these 
activities may also have the potential to impact PCEs positively (e.g. 
infrastructure for aquaculture may provide substrate and habitat for 
the benthic polyp stages of medusae).
    The CHRT initially considered impacts to PCE's from potential 
offshore wind energy projects, but due to lack of data and uncertainty 
regarding the potential for offshore wind energy projects off the U.S. 
West Coast, they did not have enough information to fully evaluate 
costs and effects of wind projects alongside the analysis on tidal 
energy and wave energy projects. Therefore, the CHRT recommended that 
we exclude wind energy from this analysis and solicit public comment on 
this issue (see ADDRESSES).
    The CHRT also considered impacts to PCE's from commercial fishing 
activities, but ultimately determined that commercial fisheries would 
not impact PCE's. When considering the prey PCE, the CHRT looked at 
potential fisheries that would target jellyfish, but no such fishery 
was anticipated, within the evaluated areas, in the foreseeable future. 
The bycatch of jellyfish in existing commercial fisheries was also 
considered, but it was determined that the level of bycatch was 
limited. When considering impacts to the passage PCE, the team 
considered whether fishing gear could be considered an impediment to 
the passage of leatherbacks to and from their foraging areas, and if 
the presence of that gear altered the habitat. It was determined that 
only permanent or long-term structures would be considered for their 
potential to affect habitat and the passage PCE. Additionally, the 
direct take of the species in fishing gear is more appropriately 
considered under the jeopardy standard in ESA section 7 consultations. 
Therefore, the CHRT recommended that we exclude commercial fishing 
activities from our analysis and solicit public comment on this issue 
(see ADDRESSES).
    The CHRT also considered ocean acidification (and myriad 
contributing activities) as possibly affecting the prey PCE. The Class 
Scyphozoa, which includes C. fuscescens and A. labiata, has calcium 
sulfate hemihydrate statoliths, which may be affected by acidification. 
Winans and Purcell (in review) found no pH effect on production of new 
medusae (ephyrae); statoliths were not decreased in number, but were 
smaller in low pH. Iglesias-Rodriquez et al. (2008) found increases in 
biogenic calcification in phytoplankton with increased CO2 
using methods they argued were more realistic than those used in 
previous studies that showed decreased calcification with increasing 
PCO2. Attrill et al. (2007) suggested that lower pH in parts 
of the North Sea opened an ecological niche leading to an increase in 
jellyfish abundance. Yet, Richardson and Gibbons (2008) repeated and 
expanded the work of Attrill et al. (2007) and found no correlation 
between ocean acidification and scyphomedusae abundance. Given 
equivocal or sparse data, the CHRT recommended that we exclude ocean 
acidification and the contributing activities from our analysis and 
solicit public comment on this issue (see ADDRESSES).

  Table 1--Summary of Occupied Specific Areas, Surface Area Covered, the PCEs Present, and Activities That May
   Affect the PCEs Within Each Area Such That Special Management Considerations or Protection May Be Required
----------------------------------------------------------------------------------------------------------------
           Specific area               Est. area (sq. mi)        PCE(s) present               Activities
----------------------------------------------------------------------------------------------------------------
Area 1.............................  4,700 (12,173 sq. km).  Prey, Passage.........  Prey--point pollution,
                                                                                      pesticides, oil spills,
                                                                                      power plants, desalination
                                                                                      plants, tidal wave/energy
                                                                                      projects, aquaculture.
                                                                                     Passage--oil spills, tidal
                                                                                      wave/energy projects,
                                                                                      aquaculture.
Area 2.............................  24,500 (63,455 sq. km)  Prey, Passage.........  Prey--point pollution,
                                                                                      pesticides, oil spills.
                                                                                     Passage--oil spills.
Area 3.............................  11,600 (30,044 sq. km)  Prey, Passage.........  Prey--point pollution,
                                                                                      pesticides, oil spills,
                                                                                      tidal wave/energy
                                                                                      projects, LNG.
                                                                                     Passage--oil spills, tidal
                                                                                      wave/energy projects.
Area 4.............................  30,000 (77,700 sq. km)  Prey, Passage.........  Prey--oil spills.
                                                                                     Passage--oil spills.
Area 5.............................  24,500 (63,455 sq. km)  Prey, Passage.........  Prey--oil spills.
                                                                                     Passage--oil spills.
Area 6.............................  34,200 (88,578 sq. km)  Prey, Passage.........  Prey--oil spills.
                                                                                     Passage--oil spills.
Area 7.............................  46,100 (119,398 sq.     Prey, Passage.........  Prey--point pollution,
                                      km).                                            pesticides, oil spills,
                                                                                      power plants, desalination
                                                                                      plants, tidal wave/energy
                                                                                      projects, LNG,
                                                                                      aquaculture.
                                                                                     Passage--oil spills, tidal
                                                                                      wave/energy projects,
                                                                                      aquaculture.
Area 8.............................  117,000 (303,030 sq.    Prey, Passage.........  Prey-- oil spills, LNG,
                                      km).                                            aquaculture.
                                                                                     Passage--oil spills,
                                                                                      aquaculture.
----------------------------------------------------------------------------------------------------------------

Military Areas Ineligible for Designation

    Recent amendments to the ESA preclude the Secretary from 
designating military lands as critical habitat if those lands are 
subject to an Integrated Natural Resource Management Plan (INRMP) under 
the Sikes Act and the Secretary certifies in writing that the plan 
benefits the listed species (Section 4(a)(3), Pub. L. 108-136). We are 
not aware of any INRMPs in the areas under

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consideration for designation as critical habitat.

ESA Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA requires us to use the best scientific 
information available in designating critical habitat. It also requires 
that before we designate any ``particular areas,'' we must consider the 
economic impacts, impacts on national security, and any other relevant 
impacts. The ESA does not define what ``particular areas'' means in the 
context of section 4(b)(2), or the relationship of particular areas to 
``specific areas'' that meet the statute's definition of critical 
habitat. As there was no biological basis to further subdivide the 
eight ``specific areas'' identified within the occupied geographical 
area into smaller units, we treated these areas as the ``particular 
areas'' for our initial consideration of impacts of designation. Once 
impacts are determined, we decide whether to consider exercising 
discretion to exclude any areas. If we consider exercising such 
discretion, we are to weigh the benefits of excluding any particular 
area (avoiding the economic, national security or other costs) against 
the benefits of designating it (the conservation benefits to the 
species). If we conclude that the benefits of exclusion in any 
particular area outweigh the benefits of designation, we have 
discretion to exclude areas, so long as exclusion will not result in 
extinction of the species. We determined to proceed with evaluating the 
benefits of designation.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to ensure their 
actions are not likely to destroy or adversely modify critical habitat. 
This is in addition to the requirement that all Federal agencies ensure 
that their actions are not likely to jeopardize the continued existence 
of the species. The designation of critical habitat also provides other 
benefits such as improved education and outreach by informing the 
public about areas and features important to species conservation.
    For the purposes of conducting the 4(b)(2) analysis, it was not 
possible to directly compare the benefits to the costs of designation. 
For a direct comparison, the benefits would need to be monetized, but 
we are unaware of available data that would allow us to monetize the 
benefits expected from ESA section 7 consultations, education, and 
outreach for the considered areas. As an alternative approach, we used 
the overall conservation value ratings that were calculated for each 
area by the CHRT to represent the qualitative conservation benefit of 
designation.
    In evaluating the conservation value of each specific area, the 
CHRT assessed how leatherbacks use each area, the frequency and 
duration of that use, and the quality and quantity of prey species 
within each area. After reviewing the best available information, the 
CHRT determined that the eight specific areas varied in terms of 
potential conservation value for leatherback turtles. The CHRT used 
professional judgment to assign a relative biological importance score 
of 1, 2, or 3 (3 representing the highest importance) to each area for 
each of our two identified PCEs. Scores were then summed and used to 
assign an overall conservation rating of ``Very Low'', ``Low'', 
``Medium'', or ``High'' for each specific area. Summed numeric 
equivalents for each conservation rating were: Very Low = 3 or less; 
Low = 4; Medium = 5; High = 6. The scoring criteria, parameter scores, 
and overall conservation rating for each specific area are summarized 
in Table 2.

   Table 2--Summary of Presence (Yes/No) of Primary Constituent Elements and the Resultant Conservation Value
                           Ratings for Specific Areas Occupied by Leatherback Turtles
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                   PCE Condition & Frequency
                                 1 = Preferred prey rare or absent and passage conditions to/
                                   from/within high use foraging areas needed infrequently or
                                                         inconsistently
         Specific area            2 = Preferred prey present but not consistently abundant or  Overall
                                   not well distributed and passage conditions to/from/within   conservation
                                     high use foraging areas are needed more frequently and     rating
                                                          consistently
                                       3 = Preferred prey consistently abundant and well
                                   distributed and passage conditions to/from/within high use
                                       foraging areas needed frequently and consistently
                                --------------------------------------------------------------------------------
                                 Prey..............      Value  Passage...........      Value  Total
----------------------------------------------------------------------------------------------------------------
Area 1.........................  Yes...............          3  Yes...............          3  High.
Area 2.........................  Yes...............          3  Yes...............          3  High.
Area 3.........................  Yes...............          2  Yes...............          1  Very Low.
Area 4.........................  Yes...............          2  Yes...............          3  Medium.
Area 5.........................  Yes...............          2  Yes...............          3  Medium.
Area 6.........................  Yes...............          1  Yes...............          3  Low.
Area 7.........................  Yes...............          2  Yes...............          3  Medium.
Area 8.........................  Yes...............          1  Yes...............          3  Low.
----------------------------------------------------------------------------------------------------------------

Economic Benefits of Exclusion

    To determine the economic benefits of excluding particular areas 
from designation, we estimated the potential cost of designation 
associated with each area. To do this we first accounted for the 
baseline level of protection afforded to leatherbacks based on existing 
Federal and state regulations. When calculating baseline cost 
estimates, the CHRT heavily relied on information from the draft 
economic reports supporting critical habitat designations for the 
southern resident killer whale (Industrial Economics Incorporated, 
2006), green sturgeon (Industrial Economics Incorporated, 2008), and 
the final economic report for salmon and steelhead (NMFS, 2005). The 
level of future activities was developed using GIS data and other 
published data on existing, pending, or future actions (e.g. Federal 
Energy Regulatory Commission (FERC) permit license data for LNG 
projects).
    In areas where listed species coexist with leatherbacks 
(particularly green sturgeon), a portion of affected future activities 
modifications (and associated costs) are expected to occur regardless 
of leatherback critical habitat designation. Thus, after estimating the 
number of projects that may potentially

[[Page 329]]

require modifications, the CHRT applied an ``incremental score'' to 
more accurately represent the portion of the projects that would be 
affected solely by leatherback critical habitat designation. For 
activities that occur in areas with more existing protections (e.g. 
areas with Marine Sanctuaries or overlapping critical habitat with 
other listed species), the CHRT estimated that 30 percent of costs 
would be attributable to designated leatherback critical habitat. For 
activities that occur in areas with fewer existing protections (e.g. 
areas with other listed species), the CHRT estimated that 50 percent of 
costs would be attributable to designation of leatherback critical 
habitat (see economic report for more details).
    Annual costs were estimated for each activity in each area and then 
modified by the incremental score percentage to determine the estimated 
costs for project modifications due to leatherback critical habitat 
designation. The majority of activity costs were projected 20 years 
into the future and where applicable, costs were adjusted for inflation 
to reflect 2009 values (with a 7 percent discount rate applied to 
future costs). The CHRT calculated low and high cost scenarios based on 
spatial considerations for activities that occur on land (e.g. 
agriculture pesticide application) and the likelihood of modifications 
to existing activities. Where applicable, the high cost scenario 
estimated costs for activities within 5 miles of the coastline; the low 
cost scenario estimated costs for activities within 1 mile of the 
coastline. Estimated costs were determined for all activities except 
LNG and aquaculture, therefore only a qualitative assessment was 
possible for these activities. The median value between the high and 
low cost scenarios was used as the estimated incremental cost for the 
designation of each area (see economic report for more details).

Exclusion of Particular Areas Based on Economic Impacts

    The conservation benefit to the species resulting from the 
designation of a particular area is not directly comparable to the 
economic benefit resulting from the exclusion of that particular area. 
As explained above, we had sufficient information to monetize the 
estimated economic benefits of exclusion, but were not able to monetize 
the conservation benefits of designation. To qualitatively scale the 
economic cost estimates in the same manner as the conservation value 
ratings, we created economic thresholds (see Table 3) and assigned each 
area an economic rating based on its median annualized cost.

     Table 3--Economic Thresholds and Corresponding Economic Ratings
------------------------------------------------------------------------
                 Threshold                         Economic  rating
------------------------------------------------------------------------
$20,000,000 or more........................  High.
$700,000-$19,999,999.......................  Medium.
$25,000-$699,999...........................  Low.
$0-$24,999.................................  Very Low.
------------------------------------------------------------------------

    As shown in Table 3 above, we set the high economic threshold at 
$20 million or more in costs, based on an estimate of 3 percent of 
total revenue for activities associated with Area 7, the area with the 
highest estimated revenues and costs. The economic threshold between 
medium and low economic costs was set at $700,000 based on the median 
value of cost per area. A very low estimated cost threshold was set at 
less than $25,000, based on the presumed insignificant distributed 
burden this would place on affected activities. No areas currently 
under review as potential leatherback critical habitat have either high 
or very low economic costs using this economic scale (see the economic 
and ESA section 4(b)(2) reports for more details).
    The dollar thresholds do not represent a judgment that areas with 
medium conservation value are worth no more than $19,999,999, or that 
areas with very low conservation value ratings are worth no more than 
$24,999. These thresholds represent the levels at which we believe the 
economic impact associated with a particular area would outweigh the 
conservation benefits of designating that area.
    To weigh the benefits of designation against the benefits of 
exclusion, we compared the conservation value ratings against the 
economic ratings. Areas were determined to be eligible for exclusion 
based on economic impacts using three decision rules: (1) Areas with 
conservation value ratings of ``high'' or ``medium'' were eligible for 
exclusion only if they had an economic rating above the conservation 
rating, unless decision rule 3 applies; (2) Areas with conservation 
value ratings of ``low'' or ``very low'' were eligible for exclusion if 
they had an economic rating equal to or above the conservation value 
rating; and (3) Offshore areas with oil spills as the only activity 
that may affect PCEs are eligible for exclusion regardless of 
conservation value or economic ratings (see explanation below). We seek 
public comment on these decision rules (see ADDRESSES).
    The dollar thresholds and decision rules provided a relatively 
simple process for identifying specific areas warranting consideration 
for exclusion. See Table 4 for a summary of the information used to 
determine which areas are eligible for exclusion based on economic 
impacts.

                                                    Table 4--Median Annual Costs and Ratings by Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              
                                       Median annualized   Activities types                               Conservation value      Eligible for exclusion
                Areas                         cost         that may affect        Economic rating               rating              based on economic
                                                                 PCEs                                                                    impacts?
--------------------------------------------------------------------------------------------------------------------------------------------------------
7....................................       * $6,820,450                  8  Medium..................  Medium..................  No.
1....................................        * 3,581,850                  6  Medium..................  High....................  No.
3....................................        * 2,739,800                  5  Medium..................  Very Low................  Yes.
2....................................        * 1,345,950                  3  Medium..................  High....................  No.
4....................................             46,650               ** 1  Low.....................  Medium..................  Yes.
5....................................             46,650               ** 1  Low.....................  Medium..................  Yes.
6....................................             46,650               ** 1  Low.....................  Low.....................  Yes.
8....................................           * 46,650                  3  Low.....................  Low.....................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Cost estimates for LNG and Aquaculture were not available so were not included in these estimates. See the economic report for more details.
** Oil spill is only activity.

    Based on this analysis, Areas 3, 4, 5, 6 and 8 were identified as 
eligible for exclusion based on economic impacts. The Secretary may 
exclude any area from critical habitat if he determines that the 
benefits of exclusion outweigh

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the benefits of designating such an area as critical habitat, unless he 
determines that failure to designate will result in the extinction of 
the species concerned. Therefore, the CHRT considered whether the 
exclusion of Areas 3, 4, 5, 6, and 8 would result in the extinction of 
the endangered leatherback sea turtle.
    The CHRT evaluated this question based on the information reviewed 
when addressing the conservation value ratings and activities that may 
impact PCEs, and determined that exclusion of Areas 3, 4, 5, 6, and 8 
is not likely to cause the extinction of leatherbacks. The CHRT also 
evaluated whether excluding any of these areas would significantly 
impede the conservation of the species. After examining relevant 
scientific and commercial information, the CHRT determined that the 
exclusion of these areas would not significantly impede conservation. 
For Area 3 the CHRT based this determination in part on the area's 
limited overall prey abundance, distribution of preferred prey species, 
and use of the area by leatherbacks. For Areas 6 and 8 the CHRT based 
this determination on the fact that these areas have relatively few 
threats and offer only secondary and tertiary foraging habitat, 
respectively.
    Given their medium conservation value ratings, special attention 
was given to Areas 4 and 5 to ensure that exclusions would not 
significantly impede conservation. The CHRT found that although these 
areas received a medium conservation value rating, oil spills are the 
only identified activity that may affect PCEs. Based on NOAA's records 
since the late 1950s, there have been very few and relatively small oil 
spills documented in these two areas. In general, vessels transiting 
offshore are widely dispersed and less vulnerable to collisions with 
one another or with man-made or natural structures. In addition, there 
has been limited or no response to offshore oil spills when they have 
occurred off the U.S. West Coast. Therefore, the CHRT reasoned that 
exclusion of these areas would not impede conservation of leatherback 
sea turtles since there are few activities within Areas 4 and 5 likely 
to require special management afforded by critical habitat designation.
    Based on the best scientific data currently available, we propose 
to exclude Areas 3, 4, 5, 6, and 8 from critical habitat designation 
because the benefits of exclusion outweigh the benefits of inclusion 
and exclusion will not impede conservation or result in the extinction 
of the species. We recognize that the lack of documented evidence of 
leatherbacks in some of these areas may be the result of inadequate 
monitoring and encourage directed surveys in both offshore and 
nearshore areas to increase our knowledge of leatherback use of the 
waters of the U.S. West Coast. We will evaluate any new information in 
the final rule stage and encourage public comment on these proposed 
exclusions (see ADDRESSES).

Exclusions Based on Impacts on National Security

    The Secretary must consider possible impacts on national security 
when determining critical habitat. Discussions with the Department of 
Defense (DOD) indicate that there is overlap between the areas proposed 
here as critical habitat and areas off southern California and 
Washington where the U.S. Navy conducts training exercises. The Navy 
provided letters to NMFS detailing the operations areas that they 
believe should be excluded from critical habitat due to national 
security. We will continue working with the DOD to identify impacts to 
national security and to determine whether any military areas are 
eligible for exclusion from the proposed critical habitat designation. 
We encourage the public to see Appendix 1 of the 4(b)(2) report for 
additional information.

Exclusions for Indian Lands

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Pursuant to these authorities lands have been retained by Indian Tribes 
or have been set aside for tribal use. These lands are managed by 
Indian Tribes in accordance with tribal goals and objectives within the 
framework of applicable treaties and laws. Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the responsibilities of the Federal Government in matters affecting 
tribal interests. Indian lands are those defined in the Secretarial 
Order ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997), 
including: (1) Lands held in trust by the United States for the benefit 
of any Indian tribe; (2) land held in trust by the United States for 
any Indian Tribe or individual subject to restrictions by the United 
States against alienation; (3) fee lands, either within or outside the 
reservation boundaries, owned by the tribal government; and (4) fee 
lands within the reservation boundaries owned by individual Indians.
    We reviewed maps indicating that several areas along the Washington 
coast under consideration as critical habitat overlap with Indian 
lands. These overlapping areas consist of a narrow intertidal zone 
associated with Indian lands, from the line of mean lower low water to 
extreme low water, for the following federally recognized tribes (73 FR 
18553, April 4, 2008): The Hoh, Makah, Quileute, and Quinault tribes.
    To assess the exclusion of Indian lands under section 4(b)(2) of 
the ESA, we compared the benefits of designation to the benefits of 
exclusion. The benefits of exclusion include: (1) The furtherance of 
established national policies, our Federal trust obligations and our 
deference to the tribes in management of natural resources on their 
lands; (2) the maintenance of effective long-term working relationships 
to promote species conservation on an ecosystem-wide basis; (3) the 
allowance for continued meaningful collaboration and cooperation in 
scientific work to learn more about the conservation needs of the 
species on an ecosystem-wide basis; and (4) continued respect for 
tribal sovereignty over management of natural resources on Indian lands 
through established tribal natural resource programs. Given that the 
affected Indian lands represent a very small proportion of the total 
critical habitat area and, moreover, the high benefits of exclusion, we 
determined that the benefits of exclusion outweigh the benefits of 
designation. We also determined that these proposed exclusions will not 
result in extinction, or impede conservation, of leatherback turtles. 
Therefore, we propose the exclusion of the identified Indian lands from 
the proposed critical habitat designation for leatherback turtles. The 
4(b)(2) report provides a more detailed description of our assessment 
and determination for Indian lands.

Critical Habitat Designation

    We proposed to designate areas 1, 2, and 7, which includes 
approximately 70,600 square miles (182,854 square km) of marine habitat 
in California, Oregon, and Washington and offshore Federal waters. The 
proposed critical habitat areas contain the physical or biological 
features essential to the conservation of

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the species that may require special management considerations or 
protection. We propose to exclude from designation areas 3, 4, 5, 6, 
and 8, for which the benefits of exclusion outweigh the benefits of 
designation. We conclude that the exclusion of these areas will not 
result in the extinction of the species, nor impede conservation of the 
species.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies to insure that 
any action authorized, funded, or carried out by the agency (agency 
action) does not jeopardize the continued existence of any threatened 
or endangered species or destroy or adversely modify designated 
critical habitat. Federal agencies are also required to confer with us 
regarding any actions likely to jeopardize a species proposed for 
listing under the ESA, or likely to destroy or adversely modify 
proposed critical habitat, pursuant to section 7(a)(4). A conference 
involves informal discussions in which we may recommend conservation 
measures to minimize or avoid adverse effects. The discussions and 
conservation recommendations are to be documented in a conference 
report provided to the Federal agency. If requested by the Federal 
agency, a formal conference report may be issued; including a 
biological opinion prepared according to 50 CFR 402.14. A formal 
conference report may be adopted as the biological opinion when the 
species is listed or critical habitat designated, if no significant new 
information or changes to the action alter the content of the opinion. 
When a species is listed or critical habitat is designated, Federal 
agencies must consult with NMFS on any agency actions to be conducted 
in an area where the species is present and that may affect the species 
or its critical habitat. During the consultation, we would evaluate the 
agency action to determine whether the action may adversely affect 
listed species or critical habitat and issue our findings in a 
biological opinion or concurrence letter. If we conclude in the 
biological opinion that the agency action would likely result in the 
destruction or adverse modification of critical habitat, we would also 
recommend any reasonable and prudent alternatives to the action. 
Reasonable and prudent alternatives (defined in 50 CFR 402.02) are 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat. Regulations (50 CFR 402.16) 
require Federal agencies that have retained discretionary involvement 
or control over an action, or where such discretionary involvement or 
control is authorized by law, to reinitiate consultation on previously 
reviewed actions in instances where: (1) Critical habitat is 
subsequently designated; or (2) new information or changes to the 
action may result in effects to critical habitat not previously 
considered in the biological opinion. Consequently, some Federal 
agencies may request reinitiation of a consultation or conference with 
us on actions for which formal consultation has been completed, if 
those actions may affect designated critical habitat or adversely 
modify or destroy proposed critical habitat. Activities subject to the 
ESA section 7 consultation process include activities on Federal lands 
and activities on private or state lands requiring a permit from a 
Federal agency (e.g. an ESA section 10(a)(1)(B) permit from NMFS) or 
some other Federal action, including funding (e.g. Federal Highway 
Administration (FHA)). ESA section 7 consultation would not be required 
for Federal actions that do not affect listed species or critical 
habitat and for actions on non-federal and private lands that are not 
federally funded, authorized, or carried out.

Activities That May Be Affected

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate, in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect critical habitat and, when carried out, funded, 
or authorized by a Federal agency, will require an ESA section 7 
consultation. These Federal actions and/or regulated activities 
(detailed in the economic report) include: regulation of point source 
pollution, particularly NPDES facilities and pesticide application 
(e.g. EPA); oil spills (e.g. U.S. Coast Guard (USCG) and EPA have 
response authorities); power plants (e.g. Nuclear Regulatory Commission 
(NRC) regulates commercial nuclear power); desalination plants (e.g. 
EPA regulates discharge/USCG and U.S. Army Corps of Engineers (USACE) 
are involved with permitting or approving structures or placing fill 
that may affect navigation); tidal/wave energy (e.g. FERC permitting or 
licensing); LNG projects (e.g. FERC or USCG permitting requirement), 
and aquaculture (e.g. USACE, EPA, or Minerals Management Service 
permitting requirements). We believe this proposed rule will provide 
Federal agencies, private entities, and the public with clear 
notification of critical habitat for leatherback sea turtles and the 
boundaries of such habitat. This designation will also allow Federal 
agencies and others to evaluate the potential effects of their 
activities on critical habitat to determine if ESA section 7 
consultation with NMFS is needed. Questions regarding whether specific 
activities will constitute destruction or adverse modification of 
critical habitat should be directed to NMFS (see ADDRESSES).

Information Quality Act and Peer Review

    The data and analyses supporting this proposed action have 
undergone a pre-dissemination review and have been determined to be in 
compliance with applicable information quality guidelines implementing 
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In 
December 2004, the Office of Management and Budget (OMB) issued a Final 
Information Quality Bulletin for Peer Review pursuant to the IQA. The 
Bulletin established minimum peer review standards, a transparent 
process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on or after June 16, 
2005. To satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of the scientific information that supports the 
proposal to designate critical habitat for the leatherback sea turtle 
and incorporated the peer review comments prior to dissemination of 
this proposed rulemaking.

Public Comments Solicited

    We solicit comments or suggestions from the public, other concerned 
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning 
the proposed designation and exclusions, the biological report, the 
economic report, IRFA analysis, and the 4(b)(2) report. We are 
particularly interested in comments and information in the following 
areas: (1) Information describing the abundance, distribution, and 
habitat use of leatherback sea turtles in the eastern Pacific Ocean; 
(2)

[[Page 332]]

Information on the identification, location, and the quality of 
physical or biological features and PCEs which may be essential to the 
conservation of the species, including whether water quality should be 
a PCE; (3) Information regarding potential benefits of designating any 
particular area of the proposed critical habitat, including information 
on the types of Federal actions that may affect the designated critical 
habitat, the physical and biological features, and/or the PCEs; (4) 
Information regarding potential impacts of designating any particular 
area, including the types of Federal actions that may trigger an ESA 
section 7 consultation and the possible modifications that may be 
required of those activities; (5) Information regarding the benefits of 
excluding a particular area of the proposed critical habitat; (6) 
Current or planned activities in the area proposed as critical habitat 
and costs of potential modifications to those activities due to 
critical habitat designation; (7) Any foreseeable economic, national 
security, or other relevant impact resulting from the proposed 
designation; (8) Information on water quality, ocean acidification and 
projected global climate change impacts in the proposed areas and their 
potential effects on the physical and biological features, and/or the 
PCEs; (9) Information regarding commercial fishing activities and their 
potential effects on the physical and biological features, and/or the 
PCEs; (10) Information on the potential for wind energy projects off 
the U.S. West Coast, including potential economic costs and effects on 
the physical and biological features, and/or the PCEs.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES). Copies of the proposed 
rule and supporting documentation, including the biological report, 
economic analysis, IRFA analysis, and the 4(b)(2) report, can be found 
on the NMFS Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents. We will consider all comments pertaining to 
this designation received during the comment period in preparing the 
final rule. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Joint NMFS and USFWS regulations (50 CFR 424.16(c)(3)) state that 
the Secretary shall promptly hold at least one public hearing if any 
person requests one within 45 days of publication of a proposed 
regulation to list a species or to designate critical habitat. Requests 
for public hearings must be made in writing (see ADDRESSES) by February 
19, 2010. If a public hearing is requested, a notice detailing the 
specific hearing location and time will be published in the Federal 
Register at least 15 days before the hearing is to be held. Information 
on the specific hearing locations and times will be posted on our Web 
site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents. Such hearings provide the opportunity for 
interested individuals and parties to give comments, exchange 
information and opinions, and engage in a constructive dialogue 
concerning this proposed rule. We encourage the public's participation 
and involvement in ESA matters.

Classification

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is significant under Executive Order 12866. An economic 
report and 4(b)(2) report have been prepared to support the exclusion 
process under section 4(b)(2) of the ESA.

National Environmental Policy Act

    We have determined that an environmental analysis as provided for 
under the National Environmental Policy Act of 1969 for critical 
habitat designations made pursuant to the ESA is not required. See 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. Denied, 
116 S.Ct 698 (1996).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis describing the effects 
of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We have prepared an 
initial regulatory flexibility analysis (IRFA). This document is 
available upon request (see ADDRESSES), via our Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, or via 
the Federal eRulemaking Web site at http://www.regulations.gov. The 
results of the IRFA are summarized below. A description of the action, 
why it is being considered, and the objectives of and legal basis for 
this action are contained in the preamble of this proposed rule.
    At the present time, little information exists regarding the cost 
structure and operational procedures and strategies in the sectors that 
may be directly affected by the potential critical habitat designation. 
In addition, a great deal of uncertainty exists with regard to how 
potentially regulated entities will attempt to avoid the destruction or 
adverse modification of critical habitat. This is because relatively 
little data exist on the effects to leatherback sea turtles and their 
prey from aspects of the activities identified (i.e., water quality, 
water temperature, etc.). With these limitations in mind, we considered 
which of the potential economic impacts we analyzed might affect small 
entities. These estimates should not be considered exact estimates of 
the impacts of potential critical habitat to individual businesses.
    The impacts to small businesses were assessed for the following six 
activities: NPDES activities; agriculture; oil spills; power plants; 
tidal/wave energy projects; and LNG projects. The impacts on small 
entities were not assessed for desalination plants and aquaculture 
facilities due to lack of information.
    Small entities were defined by the Small Business Administration 
size standards for each activity type. The majority (> 97 percent) of 
entities affected within each specific area would be considered a small 
entity. A total of 3,458 small businesses involved in the activities 
listed above would most likely be affected by the proposed critical 
habitat designation. The estimated annualized costs associated with ESA 
section 7 consultations incurred per small entity range from $0 to 
$281,800, with the largest annualized impacts estimated for entities 
involved in agricultural pesticide application ($5,500 to $281,800) and 
tidal/wave energy projects ($11,300 to $236,600). These amounts are 
most likely overestimates, as they are based on assumptions that such 
actions may not be able to proceed if a consultation found that the 
project adversely modified critical habitat. The total estimated 
annualized cost of section 7 consultation incurred by small entities is 
estimated to be about $930,000. The estimated economic impacts on small 
entities vary depending on the activity type and location.
    As required by the RFA (as amended by the SBREFA), we considered 
various alternatives to the proposed critical habitat designation for 
the leatherback. We considered and rejected the alternative of not 
designating critical habitat for the leatherback because such

[[Page 333]]

an approach does not meet the legal requirements of the ESA. Because 
the benefits of exclusion for particular areas appear to outweigh the 
benefits of designation, NMFS is proposing to exclude those areas from 
the designation; however, NMFS is seeking comments on the alternative 
of designating all potential critical habitat areas (i.e., no areas 
excluded), and will evaluate comments received.
    We have considered and evaluated each of these alternatives in the 
context of the ESA section 4(b)(2) process of weighing benefits of 
exclusion against benefits of designation, and we believe that the 
current proposal provides an appropriate balance between conservation 
needs and the associated economic and other relevant impacts. It is 
estimated that small entities will avoid $578,300 in compliance costs, 
due to the proposed exclusions made in this designation. We seek 
information regarding the information in the economic analysis and the 
impacts to small entities (see ADDRESSES).

Coastal Zone Management Act

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 requires that all Federal activities that affect the land or water 
use or natural resource of the coastal zone be consistent with approved 
state coastal zone management programs to the maximum extent 
practicable. We have determined that this proposed designation of 
critical habitat is consistent to the maximum extent practicable with 
the enforceable policies of approved Coastal Zone Management Programs 
of California, Oregon, and Washington. The determination has been 
submitted for review by the responsible agencies in the aforementioned 
states.

Federalism

    Executive Order 13132 requires agencies to take into account any 
Federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law, or impose substantial direct compliance costs on 
state and local governments (unless required by statute). We have 
determined that the proposed rule to designate critical habitat for the 
leatherback sea turtle under the ESA is a policy that does not have 
federalism implications. Consistent with the requirements of Executive 
Order 13132, recognizing the intent of the Administration and Congress 
to provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, and in keeping with Department of Commerce 
policies, the Assistant Secretary for Legislative and Intergovernmental 
Affairs will provide notice of the proposed action and request comments 
from the appropriate officials in states where leatherback sea turtles 
occur.

Paperwork Reduction Act

    This proposed rule does not contain a collection-of-information 
requirement for the purposes of the Paperwork Reduction Act.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings: (a) The designation of critical habitat does not 
impose an ``enforceable duty'' on state, local, tribal governments or 
the private sector and therefore does not qualify as a Federal mandate. 
In general, a Federal mandate is a provision in legislation, statute, 
or regulation that would impose an ``enforceable duty'' upon non-
federal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
Under the ESA, the only regulatory effect is that Federal agencies must 
ensure that their actions do not jeopardize the continued existence of 
the species or destroy or adversely modify critical habitat under 
section 7. While non-federal entities who receive Federal funding, 
assistance, permits or otherwise require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
jeopardy and the destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply. (b) We do 
not believe that this proposed rule would significantly or uniquely 
affect small governments because it is not likely to produce a Federal 
mandate of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. In addition, the designation of critical habitat imposes no 
obligations on local, state or tribal governments. Therefore, a Small 
Government Agency Plan is not required.

Takings

    Under Executive Order 12630, Federal agencies must consider the 
effects of their actions on constitutionally protected private property 
rights and avoid unnecessary takings of property. A taking of property 
includes actions that result in physical invasion or occupancy of 
private property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with Executive 
Order 12630, the proposed critical habitat designation does not pose 
significant takings implications. A takings implication assessment is 
not required. This proposed designation affects only Federal agency 
actions (i.e. those actions authorized, funded, or carried out by 
Federal agencies). Therefore, the critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits. This designation would not increase or decrease the current 
restrictions on private property concerning take of leatherback sea 
turtles, nor do we expect the final critical habitat designation to 
impose substantial additional burdens on land use or substantially 
affect property values. Additionally, the final critical habitat 
designation does not preclude the development of Habitat Conservation 
Plans and issuance of incidental take permits for non-Federal actions. 
Owners of areas included within the proposed critical habitat 
designation would continue to have the opportunity to use their 
property in ways consistent with the survival of listed leatherback sea 
turtles.

Government to Government Relationships With Tribes

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal Government in 
matters affecting tribal interests. If NMFS issues a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal

[[Page 334]]

Government and Indian tribes) we must consult with those governments or 
the Federal Government must provide funds necessary to pay direct 
compliance costs incurred by tribal governments. The proposed critical 
habitat designation does not have tribal implications. The proposed 
critical habitat designation excludes tribal lands (see Exclusions for 
Indian Lands section above) and does not affect tribal trust resources 
or the exercise of tribal rights.

Energy Effects

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects when undertaking a ``significant energy action.'' 
According to Executive Order 13211, ``significant energy action'' means 
any action by an agency that is expected to lead to the promulgation of 
a final rule or regulation that is a significant regulatory action 
under Executive Order 12866 and is likely to have a significant adverse 
effect on the supply, distribution, or use of energy. We have 
considered the potential impacts of this action on the supply, 
distribution, or use of energy (see economic report). Activities 
associated with the supply, distribution, or use of energy that may be 
affected by the critical habitat designation include the operation of: 
(1) Power plants; (2) proposed and potential tidal, wave and wind 
energy projects; (3) LNG projects.
    The economic analysis identified seven power plants that may be 
affected by the potential critical habitat designation. Future 
management and required project modifications for leatherback critical 
habitat related to power plants under ESA Section 7 consultation 
include: Cooling of thermal effluent before release to the environment; 
treatment of any contaminated waste materials; and modifications 
associated with permits issued under NPDES. All of the power plants are 
located on the California coast and are subject to existing regulations 
through the NRC and California Energy Commission.
    The economic analysis identified twelve tidal/wave energy projects 
that may be affected by the potential critical habitat designation. 
Eight of these energy projects have received preliminary permits from 
the FERC and four of the projects have pending applications. Given the 
necessary timeframes for project construction, it may be reasonable to 
assume that this set of projects will incur project modification costs 
related to leatherback critical habitat within the next 20 years. 
However, it should also be noted that other new permit applications are 
likely to be filed in the future, and that rate of application may be 
increasing. We seek comment on the likely number of projects within the 
timeframe of this analysis (see ADDRESSES). Relevant information 
received will inform our final analysis of energy effects.
    Given that these projects are in their preliminary stages, it is 
not clear what effects the projects will have on habitats and natural 
resources, nor what effects a critical habitat designation would have 
on these projects. The exact nature of habitat impacts is difficult to 
predict; however, possible impacts to features of the potential 
leatherback critical habitat include obstruction of passage or 
migration and disturbance to prey species during their benthic, polyp 
stage. It is unknown whether the passage PCE could also be affected by 
the electromagnetic fields generated by these types of projects.
    The economic analysis identified seven LNG projects that may be 
affected by potential leatherback critical habitat. FERC regulates LNG 
projects. There are three proposed LNG projects and four potential LNG 
projects within the analyzed areas. Like the alternative energy 
projects, there is a high degree of uncertainty regarding whether these 
proposed projects will be implemented. As a result, it is unclear at 
this time what effects a critical habitat designation would have on 
these proposed LNG projects; however, using available information, 
project modifications may include: biological monitoring; spatial 
restrictions on project installation; and specific measures to respond 
to catastrophes. We seek information on the nature and extent of likely 
modifications from LNG projects resulting from the designation of 
leatherback critical habitat (see ADDRESSES). Relevant information 
received will inform our final analysis.
    We have determined that the energy effects of this proposed rule 
are unlikely to exceed the energy impact thresholds identified in 
Executive Order 13211 and that this proposed rulemaking is, therefore, 
not a significant energy action (see economic report).

References Cited

    A complete list of all references cited in this rule making can be 
found on our Web site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, and is available upon request from the NMFS 
(see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: December 30, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 226 to read as follows:

PART 226--DESIGNATED CRITICAL HABITAT

    1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

    2. Revise Sec.  226.207, to read as follows:


Sec.  226.207  Critical habitat for leatherback turtles (Dermochelys 
coriacea).

    Critical habitat is designated for leatherback turtles as described 
in this section. The textual descriptions of critical habitat in this 
section are the definitive source for determining the critical habitat 
boundaries. The overview maps are provided for general guidance 
purposes only and not as a definitive source for determining critical 
habitat boundaries.
    (a) The waters adjacent to Sandy Point, St. Croix, U.S. Virgin 
Islands, 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.
    (b) All U.S. coastal marine waters within the areas in paragraphs 
(b)(1) and (2) of this section and as described in paragraphs (b)(3) 
and (4) of this section and depicted in paragraph (b)(5) of this 
section:
    (1) California.
    (i) The area bounded by Point Sur (36[deg]18'22'' N./121[deg]54'9'' 
W.) then north along the shoreline following the line of mean lower low 
water to Point Arena, California (38[deg]57'14'' N./123[deg]44'26'' W.) 
then west to 38[deg]57'14'' N./123[deg]56'44'' W. then south along the 
200 meter isobath to 36[deg]18'22'' N./122[deg]4'13'' W. then east to 
the point of origin at Point Sur.
    (ii) Nearshore area from Point Arena, California, to Point Vicente, 
California (35[deg]44'30'' N./118[deg]24'44'' W.), exclusive of Area 1 
(see above) and offshore to a line connecting 38[deg]57'14'' N./
126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W.
    (2) Oregon/Washington. The area bounded by Winchester Bay, Oregon 
(43[deg]39'58'' N./124[deg]13'06'' W.) north along the shoreline 
following the line of mean lower low water to Cape Flattery, Washington 
(48[deg]23'10'' N./124[deg]43'32'' W.) then north to the U.S./Canada 
boundary at 48[deg]29'38'' N./124[deg]43'32'' W. then west and south 
along the line of the U.S. Exclusive Economic Zone to 47[deg]57'38'' 
N./126[deg]22'54'' W. then south along a line approximating the 2,000

[[Page 335]]

meter isobath that passes through points at 47[deg]39'55'' N./
126[deg]13'28'' W., 45[deg]20'16'' N./125[deg]21' W. to 43[deg]40'8'' 
N./125[deg]17' W. then east to the point of origin at Winchester Bay.
    (3) Critical habitat extends to a water depth of 80 meters from the 
ocean surface and is delineated along the shoreline at the line of mean 
lower low water, except in the case of estuaries and bays where COLREGS 
lines (defined at 33 CFR part 80) shall be used as the shoreward 
boundary of critical habitat.
    (4) Primary Constituent Elements. The primary constituent elements 
essential for conservation of leatherback turtles are:
    (i) Occurrence of prey species, primarily scyphomedusae of the 
order Semaeostomeae (Chrysaora, Aurelia, Phacellophora, and Cyanea) of 
sufficient condition, distribution, diversity, and abundance to support 
individual as well as population growth, reproduction, and development.
    (ii) Migratory pathway conditions to allow for safe and timely 
passage and access to/from/within high use foraging areas.
    (5) A map of proposed critical habitat for leatherback sea turtles.
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[FR Doc. E9-31310 Filed 12-31-09; 11:15 am]
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